Asbestos Litigation, In re

• Decision Date: 04 April 1986
• Citation: 509 A.2d 1116
• Parties: In re ASBESTOS LITIGATION.
• Court: Delaware Superior Court

Page 1116

509 A.2d 1116

In re ASBESTOS LITIGATION.

Superior Court of Delaware,

New Castle County.

April 4, 1986.

Defendant Nicolet, Inc.'s Motion for Summary Judgment--Granted in part, Denied in part.

Thomas C. Crumplar, Esquire, Douglas B. Canfield, Mary Ann Matuszewski and Robert Jacobs, of Jacobs and Crumplar, Wilmington, for plaintiffs.

Jeffrey M. Austin, and Howard M. Berg, of Howard M. Berg & Associates, P.A., Wilmington for Nicolet.

POPPITI, Judge.

Defendant Nicolet, Inc. (hereinafter "Nicolet") filed a Motion for Summary Judgment in this case, claiming a lack of evidence showing product nexus or conspiracy. Summary judgment is granted with regard to product nexus, but denied as to conspiracy.

The appropriate standard for product nexus was set out by this Court in Clark v. A.C. & S., Del.Super., C.A. No. 82C-DE-26, Poppiti, J. (Sept. 3, 1985). In order to withstand a motion for summary judgment, the plaintiff "must proffer evidence that at the time [the defendant's asbestos product] was present on the site he was in the area where [the product] was used, near that area, walked past that area, or was in a building adjacent to where [the product] was used if open windows or doors would allow asbestos fibers to be carried to the area where the plaintiff was working." Clark, at 4-5. In short, "a plaintiff must show ... that a particular defendant's asbestos-containing product was used at the job site and that the plaintiff was in proximity to that product at the time it was being used." Odum v. Celotex Corp., 11th Cir., 764 F.2d 1486, 1488 (1985); see Kee v Allied Chemical Corp., Del.Super., C.A. No. 80C-JA-14, Bifferato, J. (Feb. 6, 1986)

On a motion for summary judgment, facts and reasonable inferences are viewed in a light most favorable to the non-moving party. Allstate Auto Leasing Co. v. Caldwell, Del.Super., 394 A.2d 748, 752 (1978). The Court, however, will not indulge in speculation and conjecture; a motion for summary judgment is decided on the record presented and not on evidence potentially possible. See Rochester v. Katalan, Del.Supr., 320 A.2d 704, 708 n. 7 (1974); Chrysler Corporation v. New Castle County, Del.Super., 464 A.2d 75, 85 (1983). Thus the Court will not allow the plaintiffs to bring a defendant in based on a speculative exposure to a possible shipment of the defendant's product.

The defendant has supported its contention that there is no evidence of record showing any direct sales by Nicolet to the DuPont Newport plant where the plaintiffs worked, nor do any of the plaintiffs in this case recall ever having worked with Nicolet asbestos products. Likewise, while the evidence indicates that Nicolet had supplied raw asbestos fibers and asbestos products to other asbestos companies, the Court is satisfied that there is no evidence from which a person could reasonably infer that those fibers or products ever made their way to the Newport plant. To conclude otherwise would be mere speculation.

The testimony of Harold Silvious, a Newport worker, is that he worked with a "high temp" product but that he does not remember the name of the manufacturer. The plaintiffs have been unable to show any records documenting a shipment of Nicolet's high-temp product to Newport. The defendant notes that Nicolet was just one of several manufacturers of high temp, several of which were listed on DuPont's material specification sheets. Without more, a person cannot reasonably infer that the high temp Silvious worked with was a Nicolet product. To hold otherwise would be mere speculation and would be the establishment of something akin to market-share liability for makers of high temp, a change in Delaware tort law which if desired this Court believes is best left to the legislature. Cf. Bateman v. Johns-Manville Sales Corp. (Keene Corp.), 5th Cir., 781 F.2d 1132, Jolly, J. (1986); Blackston v. Shook & Fletcher Insulation Co., 11th Cir., 764 F.2d 1480, 1483-86 (1985).

Finally, the plaintiffs refer to the testimony of Louis Mancari, who stated at his August 16, 1983 deposition that he worked with Nicolet Kaytherm at the Newport plant. The evidence shows that the last shipment of Nicolet Kaytherm in Delaware was to Delaware Insulation in January of 1964 which, at the latest, would normally be shipped out in April or May of 1964. In February 1964, Nicolet stopped making Kaytherm. The earliest Mancari could possibly have seen Kaytherm at the Newport plant was when he began working there in March 1965, a full year after Nicolet stopped making the product. Mancari's testimony wavers from stating that Kaytherm was there "absolutely," Mancari Deposition at 95, to stating "if it was there I probably, I must have used it." Mancari Deposition at 117. Of the 38 workers at the Newport plant who have filed asbestos injury suits, including the six plaintiffs here, only Mancari claims to recognize the name "Nicolet" as one of the products they worked with. In addition, Mancari was not listed as a co-worker with the plaintiffs. The closest that Mancari can be placed to the plaintiffs is that Mancari used a washroom that he testifies was also used by two of the six plaintiffs, Earl Nutt and Horace Taylor. Mancari has no knowledge as to the other four plaintiffs. Further, no evidence has been produced to suggest that at the time Mancari allegedly used the Kaytherm he had been in proximity to the plaintiffs, either on the job or in the washroom. Without some evidence regarding proximity as to time and place no reasonable person could infer facts necessary to the nexus test. Without proximity being shown any inference would be merely speculative.

The defendant has produced evidence to indicate that the plaintiffs were not exposed to Nicolet products. The burden therefore shifts to the plaintiffs to demonstrate that a material issue of fact does exist. Moore v. Sizemore, Del.Supr., 405 A.2d 679, 680-81 (1979). By failing to produce evidence from which exposure to the defendant's product can reasonably be inferred, the plaintiffs have not demonstrated a dispute as to a material issue of fact. ¹ Summary Judgment is therefore granted to the defendant with regard to plaintiffs' exposure to Nicolet products. I next turn to plaintiffs' conspiracy claim.

In reliance on their claim of an industry-wide conspiracy plaintiffs make a substantial effort in their answering brief to develop facts which they assert form the "linchpin" of their cause of action in this regard. I am satisfied, however, that a lengthy recitation of facts is not necessary to dispose of the instant application for summary judgment. I will, rather, focus on certain key facts in conjunction with the development of certain legal principles. In this regard, I am satisfied that the following basic alleged facts form the gravaman of plaintiffs' claim: First, Nicolet or its wholly owned Canadian subsidiary, Nicolet Mines, Ltd. (hereinafter "Nicolet Mines") was a member of the Quebec Asbestos Mining Association (hereinafter "QAMA") from 1948 until 1968 and a member of the Asbestos Textile Institute ("A.T.I.") in 1969, 1971 and 1972; and second, members of the referenced trade associations "suppress[ed] publication as well as general dissemination of medical and scientific data concerning the health hazards associated with inhalation of asbestos fibers."

Civil conspiracy does not exist as an independent cause of action in Delaware courts. It exists, it has been said, for only two purposes: first, to implicate others; second, to increase the measure of damages. Phoenix Canada Oil Co. v. Texaco Inc., D.Del., 560 F.Supp. 1372, 1388 & n. 43 (1983). "The gravaman of an action in civil conspiracy is not the conspiracy itself but the underlying wrong which would be actionable absent the conspiracy." McLaughlin v. Copeland, D.Del., 455 F.Supp. 749, 752 (1978), aff'd 3d Cir., 595 F.2d 1213 (1979).

"[I]n order to establish a civil conspiracy it is necessary to show the combination of two or more persons for an unlawful purpose, or a combination for the accomplishment of a lawful purpose by unlawful means. In addition, while the essence of the crime of conspiracy is the agreement, the essence of a civil conspiracy is damages. In other words, absent damages, there is no cause of action for a civil conspiracy." Weinberger v. UOP, Inc., Del. Ch., 426 A.2d 1333 (1981), rev'd on other grounds, Del.Supr., 457 A.2d 701 (1983).

In Farrall v. Armstrong Cork Co., Del.Super., 457 A.2d 763 (1983), it was stated that in the absence of direct evidence that the plaintiff was exposed to the asbestos product of a particular defendant, any general conspiratorial claim against that defendant lacks the necessary causal connection for tort contribution. Farrall, 457 A.2d at 770. To the extent this suggests that a defendant can only be liable in conspiracy when his own product causes the damage, it is in error. "It is a fundamental principle of our jurisprudence that co-conspirators are jointly and severally liable for the acts of their confederates committed in furtherance of the conspiracy." Laventhol, Krekstein, Horwath & Horwath v. Tuckman, Del.Supr., 372 A.2d 168, 170 (1976). Thus a person who conspires with a fiduciary to breach the fiduciary duty of trust is liable to the beneficiaries of the trust even though he himself had no fiduciary duty to those beneficiaries. Tuckman, 372 A.2d at 170; Gilbert v. El Paso Co., Del. Ch., 490 A.2d 1050, 1057 (1984). This is how civil conspiracy fulfills its purpose to "implicate others."

In the present case, then, the defendant would be liable to the plaintiffs for injuries caused by exposure to another party's asbestos if it is shown that the defendant and that other party conspired to suppress information about the dangers of asbestos and that, as a result of and in furtherance of that conspiracy, that other party supplied asbestos without proper and adequate warning to the plaintiffs' workplace, where the plaintiffs sustained...