Gibbs v. 84 Lumber Co.

• Decision Date: 28 September 2020
• Docket Number: C.A. No.: N19C-09-265 ASB
• Parties: DEFOREST GIBBS and SHERRYL GIBBS, his wife. Plaintiffs, v. 84 LUMBER COMPANY, et al., Defendants.
• Court: Superior Court of Delaware

DEFOREST GIBBS and SHERRYL GIBBS, his wife. Plaintiffs, v. 84 LUMBER COMPANY, et al., Defendants.

C.A. No.: N19C-09-265 ASB

SUPERIOR COURT OF THE STATE OF DELAWARE

Submitted: September 3, 2020

September 28, 2020

MEMORANDUM OPINION

Upon Consideration of Defendant Union Carbide Corporation's Motion for Summary Judgment

GRANTED.

Ipek Kurul, Esq., Bartholomew J. Dalton, Esq., Andrew C. Dalton, Esq., Michael C. Dalton, Esq., of Dalton & Associates, P.A., Wilmington, Delaware, and Adam Balick, Esq., Michael Collins Smith, Esq., and Patrick J. Smith, Esq., of Balick & Balick, LLC, Wilmington, Delaware. Attorneys for Plaintiffs.

Beth E. Valocch, Esq., Joseph S. Naylor, Esq., of Swartz Campbell, LCC, Wilmington, Delaware. Attorneys for Defendant, Union Carbide Corporation.

Rennie, J.

I. INTRODUCTION

Plaintiffs, Deforest Gibbs and Sherryl L. Gibbs ("Plaintiffs") assert claims against multiple defendants, including Defendant, Union Carbide Corporation ("UCC") alleging that Mr. Gibbs suffers from mesothelioma as a result of occupational asbestos exposure. UCC moves for summary judgment on Plaintiffs' design-defect and failure-to-warn claims. After consideration of the parties' written submissions and oral arguments, UCC's Motion for Summary Judgment is GRANTED.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Mr. Gibbs' Work History

Plaintiffs reside in South Carolina where Mr. Gibbs worked as a laborer, plumber, and shade tree mechanic for fifty years. Plaintiffs claim that through Mr. Gibbs' various means of employment, he was exposed to asbestos by working with HVAC equipment, hot water heaters, electrical products, valves, drywall, sheetrock, joint compound, caulk, roofing materials, and flooring products.

Mr. Gibbs first began working with sheetrock, joint compounds, and asbestos-containing flooring and ceiling tiles when assisting his father with home renovations as a teenager in the 1960s. The majority of his work with such materials, however, occurred while working with his company, Deforest Company from 1969 to 2019. He also alleges that he was occupationally exposed to asbestos while employed withGeneral Electric Large Steam Turbine Division, as a laborer, from approximately 1969 to 1973, and with General Plumbing, as a plumber, at various job sites and locations in South Carolina from approximately 1973 to 1976.

B. Union Carbide Corporation

UCC is a diversified chemical company. From 1963 to 1985, UCC manufactured and distributed raw asbestos, called "Calidria," which it sold in bulk to manufacturers of products that incorporate asbestos. Calidria worked well as a bulking agent in joint compound. Mr. Gibbs testified to using several brands of joint compound and sheetrock throughout his career, including United States Gypsum ("U.S. Gypsum"), Georgia-Pacific, and National Gypsum. Additionally, he testified to using floor and ceiling tiles produced by Armstrong Products Company ("Armstrong"). Plaintiffs allege that that UCC supplied raw asbestos to these four manufacturers.

For the purposes of this motion, UCC concedes that some of the Georgia-Pacific and National Gypsum joint compound that Mr. Gibbs used during the early-to-mid 1970s may have contained Calidria.¹ UCC contends that it never sold production quantities of Calidria to U.S. Gypsum's Chamblee, Georgia plant, which would have been the supplier of joint compound to the South Carolina area whereMr. Gibbs resided.² Further, UCC does not dispute that it sold Calidria to Armstrong during the relevant period.³ However, it specifies that during such period, Armstrong sold a variety of flooring products that never contained asbestos, and that the Armstrong acoustical ceiling tiles, described by Mr. Gibbs, never contained asbestos.⁴

C. Procedural Background

On June 12, 2020, UCC filed a Motion for Summary Judgment ("Motion") and supporting Memorandum.⁵ On July 17, 2020, Plaintiffs filed their Memorandum in Opposition ("Response").⁶ On August 10, 2020, UCC filed its Reply.⁷ This Court heard oral argument on September 3, 2020. This matter is ripe for review.

III. STANDARD OF REVIEW

Delaware Superior Court Civil Rule 56 requires that summary judgment be granted where the moving party demonstrates that there are no genuine issues of material fact.⁸ After the movant meets this burden, the burden then shifts to the non-movant to demonstrate the "existence of one or more genuine issues of materialfact."⁹ Summary judgment will not be granted if there is a material fact in dispute or if it "seems desirable to inquire thoroughly into [the facts] in order to clarify the application of the law to the circumstances."¹⁰ In considering the motions, "[a]ll facts and reasonable inferences must be considered in a light most favorable to the non-moving party."¹¹ However, the Court shall not "indulge in speculation and conjecture; a motion for summary judgment is decided on the record presented and not on evidence potentially possible."¹²

IV. DISCUSSION

A. Plaintiffs' Design-Defect Claim

UCC first requests that this Court grant its Motion related to Plaintiffs' design-defect claim. It argues that Plaintiffs' claim is not actionable, because asbestos is a naturally occurring raw material, and therefore cannot be defectively designed. Plaintiffs concede that under South Carolina law, UCC is entitled to summary judgment on this claim. Therefore, UCC's Motion for Summary Judgment on Plaintiffs' design-defect claim is GRANTED.

B. Plaintiffs' Failure-to-Warn Claim

UCC next requests that this Court grant its Motion on Plaintiffs' failure-to-warn claim. South Carolina substantive law applies to UCC's Motion. To establish causation in an asbestos claim under South Carolina law, a plaintiff must show that (1) the defendant's product contained asbestos, and (2) that the plaintiff suffered an "actionable exposure" to that product.¹³ Exposure is actionable if it satisfies the "frequency, regularity, and proximity test," set forth in Lohrmann v. Pittsburgh Corning Corp.,¹⁴ which provides: "[t]o support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked."¹⁵ A plaintiff's mere "presence in the vicinity of static asbestos is not exposure to asbestos."¹⁶

In applying the Lohrmann test, the Court considers the record evidence against UCC in turn. The Court's following recitations of the facts are construed in the light most favorable to the non-moving Plaintiffs, without engaging in speculation. This Court's consideration of the issues below pertain to UCC's status as a supplier and the application of a "sophisticated user" defense. i. UCC's Duty to Warn

Under South Carolina product liability law, a manufacturer or a seller of a dangerous product has a duty to provide "an adequate warning"¹⁷ to "the ultimate user of the dangers associated with the use of the product."¹⁸ The duty to warn generally extends to both the immediate purchasers as well as to subsequent purchasers and users.¹⁹ If a plaintiff succeeds in making a showing that no adequate warning was given, liability for his injuries may be imposed on the supplier or seller.

UCC argues that as a supplier, limitations are imposed upon the general duty to warn, under the Restatement (Second) of Torts and the Restatement (Third) of Torts: Product Liability, and accordingly it owed no duty to warn end users, such as Mr. Gibbs, of the hazards associated with Calidria or any of the named manufacturers' finished products.²⁰ UCC references three legal doctrines in making its argument: (1) the "bulk-supplier" doctrine;²¹ (2) the "sophisticated user"doctrine;²² and (3) the "raw material" doctrine.²³ Plaintiffs argue that, even as a supplier, UCC is subject to liability because its warnings to sophisticated intermediaries were inadequate.

1. Delaware Case Law

UCC posits the sophisticated user defense as its primary argument in support of summary judgment. UCC relies on three cases decided by the Delaware Superior Court for the proposition that Georgia-Pacific, National Gypsum, U.S. Gypsum, and Armstrong are objectively sophisticated and knowledgeable regarding the hazards of asbestos as a matter of law.²⁴

In Robinson v. Union Carbide, the Delaware Superior Court granted UCC's motion for summary judgment on the plaintiff's failure-to-warn claim where therecord demonstrated that, "there [were] no genuine issues of material fact regarding Georgia-Pacific's status as a sophisticated intermediary."²⁵ There the Court applied Ohio law, as the substantive law at issue in the case.

In Watson v. Georgia-Pacific, LLC, the plaintiffs alleged that there were genuine issues of material fact concerning Georgia-Pacific's sophistication and knowledge, thereby questioning its status as a "sophisticated user."²⁶ Similar to Robinson, the Delaware Superior Court granted UCC's motion for summary judgment and held that plaintiffs failed to identify any genuine issues of material fact, which indicated that UCC was unable to meet the sophisticated intermediary criteria established by Kansas case law.²⁷ The Court found that the record established that "Georgia-Pacific was adequately trained, familiar with the product and safe methods of handling it, and was capable of passing its knowledge to consumers."²⁸

Finally, in Tibbett v. A.O. Smith Corporation, the Delaware Superior Court found that as a bulk-supplier, UCC had no duty to warn sophisticated purchasers under Wisconsin law, where plaintiffs failed to allege that UCC had any involvementin the design, manufacture, distribution or sale of the finished joint compound products at issue in the case.²⁹

Unlike in the Delaware cases referred to above, Plaintiffs here do not attempt to present an argument to dispute that any of the named manufacturers are "sophisticated users." Additionally, Plaintiffs do not allege that UCC had any involvement in the design,...