WILLIAM D. QUARLES, JR., District Judge.
Melvin F. Sherin,
This case arises from Mrs. Sherin's fatal mesothelioma, allegedly caused by asbestos fibers she inhaled during the construction of her home and while washing the clothing Mr. Sherin wore while visiting construction sites as a carpet salesman. See ECF Nos. 2, 183 at 1.
While at the site, Mr. Sherin saw buckets of "Georgia-Pacific" and "Gold-Bond"
From 1968 to 1976, Mr. Sherin was a sales representative for Crown Products, a carpet manufacturer, covering Maryland, Northern Virginia, and the District of Columbia. Id. at 10-12.
Doctors Abraham and Kipen testified about Mrs. Sherin's mesothelioma. See ECF Nos. 183-19; 183-20. Dr. Abraham testified that "[i]f laundering [Mr. Sherin's] clothes created aerosolized asbestos fibers that she inhaled, that would be part of her cumulative exposures and part of the causation of her mesothelioma." ECF No. 183-19 at 14. Dr. Abraham also testified that every exposure would be a contributing cause, and that each exposure increases the risk of mesothelioma because "there is a dose-response relationship." Id. At 11-12. Dr. Kipen characterized Mrs. Sherin's exposure as "substantial domestic exposure" as a result of her laundering of Mr. Sherin's clothes for many years. ECF No. 183-20 at 7.
Between 1963 and 1985 Union Carbide sold raw chrysotile asbestos fiber referred to as "SG-210" or "Calidria" to third-party manufacturers — including Georgia-Pacific and National Gypsum — who incorporated it into their products. Id. at 2.
Sales to Georgia-Pacific began in the late 1960s
There is conflicting evidence about when National Gypsum, the manufacturer of "Gold Bond" joint compound, began using Calidria. Responses to interrogatories in a prior case stated that — "around 1967" — National Gypsum began using Calidria. ECF No. 183-11 at 9. Interoffice correspondence from National Gypsum's Long Beach, California, plant states that — in 1968 — National Gypsum began testing Calidria as a replacement asbestos fiber. ECF No. 186-16 at 2.
National Gypsum business records show substantial sales of Calidria from Union Carbide to National Gypsum's Baltimore plant. ECF No. 183-18. The earliest recorded sale was in April 1969. Id. at 23, 42. Almost all the invoices, however, are dated 1971 to 1975. See generally id.
Controversy about the safety of asbestos dates from the 1940s. See ECF No. 183-24 at 6.
In 1956, Henry Field Smith, Jr., Ph.D., authored a journal article for Union Carbide and the Mellon Institute, in which he stated that threshold limits and maximum allowance concentrations were misleading. See ECF no. 183-29 at 3. According to Dr. Smith, the use of such terms suggested that "human response" to exposures less than those amounts would be "negligible," when "no such description can truthfully attach[] to most of them." Id.
In 1965, Union Carbide prepared an internal memorandum in response to news reports concerning the possible carcinogenic properties of asbestos. See ECF No. 183-32. The memorandum recommended that personnel responding to customer inquiries after the news reports refer to an Asbestos Toxicology Report ("Toxicology Report") prepared by Union Carbide's Director of Toxicology, Dr. C.U. Dernehl. See id. at 1. The Toxicology Report states that although "[i]t has been known for many years that some persons working in asbestos production were prone to develop a disabling lung disease," "a man can work a 40-hour week for a lifetime without developing asbestosis" if exposures were kept below five million particles per cubic foot. See id. at 3.
In 1967, I.C. Sayers prepared a report for Union Carbide in the United Kingdom, titled "Asbestos as a Health Hazard in the United Kingdom" ("Sayers Report"). See ECF No. 183-36. The Sayers Report states that mesothelioma is associated with inhaling asbestos; that "[m]esothelioma is the most disturbing" of diseases attributable to asbestos; and that it can occur after "brief exposure," possibly as low as "three months," or, according to "[s]ome authorities[,] ... a single brief exposure might be sufficient." Id. at 11. The Sayers Report also mentions an article published on October 31, 1965, by the Sunday Times, describing a dock worker's wife who died of mesothelioma; her only exposure to asbestos was from washing her husband's work clothes. See id. at 4.
In June 1967, Dr. Dernehl reviewed the Sayers Report, finding it "reasonably accurate." ECF No. 183-38 at 1. Dr. Dernehl stated that "[i]t is probable that the 5 million particles per cubic foot will not be acceptable for the prevention of mesothelioma." Id. at 2.
In May-June 1972, the Occupational Safety and Health Administration ("OSHA") published "Asbestos: Airborne Danger" ("Asbestos Article"). See ECF No. 183-55. The Asbestos Article states that incidences of mesothelioma are "now appearing at an unprecedented rate," and "[r]esearchers are linking it to asbestos exposure, however slight." Id. at 6. The Asbestos Article further states that "[a]sbestos contamination holds an increasing threat to the general public." Id. at 8. "Unsuspecting passers-by in the vicinity of construction sites or families of workers who return home with dusty clothing are among those exposed to this hazard." Id.
In May 1973, Union Carbide's Medical Department sent a letter to its Law Department citing the Medical Department's
See id. at 1-2, 4-5. The Medical Department also noted that various slides produced by the Mining and Metals Division were "misleading" or contained "half-truths." Id. at 6-7.
Beginning in 1968, Union Carbide included warnings on its bags of Calidria asbestos
Beginning in 1964, Union Carbide provided its Asbestos Toxicology Report to all customers. See ECF No. 178-4 at 5, 9. Union Carbide also provided its customers with various regulations, reports, and literature on the topic of health risks associated with asbestos. See id. The 1967 Sayers Report, however, was not distributed to customers. See ECF No. 183-39 at 18.
In 1972, Union Carbide began providing customers with its Material Safety Data Sheet about Calidria asbestos ("Calidria Data Sheet"). Id. The Calidria Data Sheet stated that Calidria contained no hazardous ingredients, although it provided guidance on airborne exposure to asbestos and noted that "[p]rolonged overexposure may result in lung damage." ECF No. 183-56.
Also in 1972, Union Carbide's Mining and Metals Division recommended responding to customer concerns about asbestos by stating that "[a]sbestos is proven harmful only when TLV's are exceeded for 10-30 years" and that "[i]t is not a proven fact that asbestos dust causes cancer when regulations are observed." ECF No. 183-50 at 1.
In 1973, Union Carbide internal correspondence directed personnel to inform customers that "asbestos is not a carcinogen" under OSHA regulations, and stated that "[a]s you know, the answer to the same question in the broad sense is not as clear-cut," and medical opinion varies from "[a]sbestos is a very dangerous carcinogen" to "[u]nder certain exposure conditions
In the early 1970s, Union Carbide employees who visited customers completed a "Report of Call." See ECF Nos. 45-49. Two Reports of Call suggest that Union Carbide customers were dissatisfied with the asbestos-related information they had received. See ECF Nos. 183-45, 183-49. One Report of Call states that a customer complained that "the only information that Carbide has furnished him with regard to this subject in print is our Asbestos Toxicology report and some information concerning methods and equipment for determining dust levels." ECF No. 183-49 at 1. The customer described the Asbestos Toxicology Report as "atrocious," said that it posed more questions than it answered, and requested more specific recommendations for safe use of Calidria. Id.
On December 21, 2011, Mr. Sherin sued Union Carbide,
Union Carbide asserts that Mr. Sherin's testimony should be excluded because it is speculative and inadmissible hearsay. See ECF 179-1.
Union Carbide asserts that Mr. Sherin's testimony is "unfounded" and "speculative" because he did not purchase or use the buckets, and that he is "simply guessing about what was in them and who made them." ECF Nos. 179-1 at 2, 4, 185 at 3. Mr. Sherin asserts that his eye-witness product identification testimony meets the foundational requirements of Federal Rule of Evidence 602. See ECF No. 182 at 3-4.
Under Rule 602, a witness may not testify about matters outside his personal knowledge. Testimony should be excluded for lack of personal knowledge only when "in the proper exercise of the trial court's discretion it finds that the witness could not have actually perceived or observed
Here, Mr. Sherin testified that he and Mrs. Sherin visited the construction site of their new home each day for nearly one year. ECF No. 182 at 3. During that time, he frequently saw "clouds of visible dust" generated by the sanding of joint compound contained in buckets labeled "Georgia-Pacific" and "Gold Bond." Id. Mr. Sherin also testified that he observed those same buckets at "`hundreds' of construction sites in Maryland, Virginia, and Washington D.C." while working as a sales representative for Crown Products. Id.
There has been no showing that it was "nearly impossible" for Mr. Sherin to "actually perceive[] or observe[]" the buckets labeled "Georgia-Pacific" and "Gold Bond." See MBAFB Fed. Credit Union, 681 F.2d at 932. "The quality of a witness's observations is not an issue for foundations; it is a matter for impeachment." Adkins v. Dirickson, 523 F.Supp. 1281, 1284-85 (E.D.Pa.1981). Mr. Sherin's testimony meets the requirements of Rule 602. Accordingly, the Court will deny Union Carbide's motion in limine to exclude Mr. Sherin's testimony as speculative.
Union Carbide argues that Mr. Sherin's product identification testimony asserts that "the buckets contained joint compounds made by Georgia-Pacific, National Gypsum, and U.S. Gypsum," and, thus, is barred by the rule against hearsay. ECF No. 179-1 at 4. Mr. Sherin argues that his testimony is not hearsay because it is not offered "to prove the contents (the actual ingredients) of the materials contained in the buckets," but is "circumstantial evidence of the joint compounds' manufacturers." ECF No. 182 at 7.
Hearsay is an out-of-court statement offered in court to prove the truth of the matter asserted in the statement. Fed. R.Evid. 801(c)(1). A statement is an oral or written assertion or nonverbal conduct "if the person [making the statement] intended it as an assertion." Fed.R.Evid. 801(a). Hearsay is generally inadmissible unless an exception applies. Fed.R.Evid. 802. Whether product identification testimony is hearsay depends on the purpose for which the evidence is offered, see Commonwealth v. Harvey, 446 Pa.Super. 395, 666 A.2d 1108, 1111 (1995), and is of first impression in this circuit.
One line of cases holds that product labels represent out-of-court statements subject to the hearsay rules when offered to prove the contents of the package. See Sternhagen v. Dow Co., 108 F.Supp.2d 1113, 1116 (D.Mont.1999) (testimony that plaintiff saw "defendants' labels on barrels of 2, 4-D" was hearsay); see also DiCola v. White Bros. Performance Products, Inc., 158 Cal.App.4th 666, 69 Cal.Rptr.3d 888, 900 (2008)
Another line of cases holds that testimony about a product's manufacturer by reference to its label is not a statement subject to the hearsay rules, but is circumstantial evidence of the manufacturer.
Cases addressing inscriptions about the place of manufacture are in accord with this view. See United States v. Scott, No. 2:13CR164, 2014 WL 2808802, at *4 (E.D.Va. June 20, 2014) (holding that "Made in China" inscription was circumstantial evidence that product was made in China and not a statement by the manufacturer); United States v. Koch, 625 F.3d 470, 480 (8th Cir.2010) ("China" inscription on computer and flash drive labels not inadmissible hearsay).
Harvey is instructive because the Court had to determine whether the testimony identified the product's manufacturer or its content. See id. at 1111 (stating that "[h]ad the Commonwealth relied upon the Busch label to establish the alcohol content of the beverage, such testimony would have fallen squarely within the dictates of" cases applying the rule against hearsay). Other courts adhering to this view have generally not had to make that distinction.
As Mr. Sherin did not testify about the contents of or ingredients in the buckets, this case differs from those finding that testimony about a label was hearsay when offered to prove a container's contents. See Sternhagen, 108 F.Supp.2d at 1116 (testimony hearsay because offered to prove that barrels contained Defendants' 2, 4-D product, and, thus, that plaintiff was exposed to 2, 4-D). For the same reason, this case also differs from those finding that testimony about ingredients on a label was hearsay. See, e.g., Reemer v. State, 835 N.E.2d 1005, 1007-09 (Ind. 2005).
Here, Mr. Sherin has testified that he saw contractors using joint compound in buckets labeled "Georgia-Pacific" and "Gold Bond," and that he saw those buckets while visiting construction sites as part of his job. ECF No. 182 at 3. The bucket labels imply, but do not assert, that the joint compounds in the buckets were manufactured by Georgia-Pacific and National Gypsum. See Binder & Kaye, The Hearsay Handbook, Part 1, § 2:4 (4th Ed.) (West 2011). The labels are not assertions subject to the hearsay rules but are circumstantial evidence of the manufacturer identities. See Harvey, 666 A.2d at 1112. As with any circumstantial evidence, "[t]he party seeking to avoid the inference for which the evidence is offered must attempt the explanation and it is for the fact finder to determine whether he succeeds." United States v. Snow, 517 F.2d 441, 444 (9th Cir.1975).
Even assuming that Mr. Sherin's testimony about the bucket labels was hearsay, it would be admissible under the residual exception to the rule against hearsay.
Under Federal Rule of Evidence 807(a), hearsay that is not covered by a specific hearsay exception may be admissible if:
Although Rule 807 is narrowly construed, see United States v. Dunford, 148 F.3d 385, 394 (4th Cir.1998), "[w]hen the choice is between evidence which is less than best and no evidence at all, only clear folly would dictate an across-the-board policy of doing without." Morgan v. Foretich, 846 F.2d 941, 943 (4th Cir.1988) (quoting Fed. R.Evid. art. VIII advisory committee's note). Here, all four requirements are met.
Accordingly, even if the bucket labels were construed as assertions subject to the hearsay rules, Mr. Sherin's testimony would be admissible under the residual exception. See Scott, 2014 WL 2808802, at *4.
The Court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a);
The Court must "view the evidence in the light most favorable to ... the non-movant and draw all reasonable inferences in [its] favor," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir.2002), but the Court must abide by the "affirmative obligation of the trial judge to
Union Carbide has raised four grounds in its motion for summary judgment. See ECF No. 178-1 at 2-3.
Union Carbide asserts that it is entitled to summary judgment because Mr. Sherin's testimony is speculative and inadmissible hearsay and, thus, there is no admissible evidence establishing that the joint compounds he saw were manufactured by Georgia-Pacific or National Gypsum. See ECF No. 178-1 at 6-7. As this Court has determined that Mr. Sherin's testimony met the personal knowledge requirement of Federal Rule of Evidence 602, and was not inadmissible hearsay, see infra II.A.2, Union Carbide's motion for summary judgment on this basis will be denied.
Union Carbide asserts that it is entitled to summary judgment because, even if Mr. Sherin saw workers using Georgia-Pacific or National Gypsum joint compound, "there is no evidence that any particular joint compound, to which Mrs. Sherin was actually exposed, in fact contained Calidria as an ingredient." ECF No. 178-1 at 8. Mr. Sherin contends that his testimony establishes that — from 1969 to 1970 — Mrs. Sherin inhaled asbestos-containing dust at their Brattle Road home construction site and — from 1968 to 1976 — on the clothes worn by Mr. Sherin,
In an asbestos products liability action, the plaintiff must present evidence of exposure to the defendant's asbestos. See Reiter v. Pneumo Abex, LLC, 417 Md. 57, 8 A.3d 725, 729 (2010); Owens-Illinois, Inc. v. Zenobia, 325 Md. 665, 602 A.2d 1182, 1184 (1992).
Mr. Sherin's testimony is circumstantial evidence of Mrs. Sherin's exposure at the Brattle Road construction site where he recalled seeing "Georgia-Pacific" and "Gold Bond" joint compound in use. ECF No. 183-2 at 21-23, 26-28. Mrs. Sherin was exposed to asbestos dust when she swept the dust off the floor so that their children could sit and play. Id. at 15, 25-26.
Mr. Sherin also testified that — from 1968 until 1976 — he visited "hundreds" of construction sites where Georgia-Pacific and Gold Bond joint compound was used. Id. at 42, 49, 53-54.
In addition to evidence of exposure, Mr. Sherin must also show that the Georgia-Pacific and National Gypsum asbestos dust contained Calidria asbestos fibers.
Mr. Sherin supports his assertion that the Georgia-Pacific joint compound contained Calidria with deposition testimony by John L. Myers, a former employee of Union Carbide. See ECF No. 183-6. Myers testified that sales to "that sector of the market" including Georgia-Pacific began in the early 1970s and possibly was as early as the late 1960s based on a Calidria brochure dated October 1968. See id. at 119, 122.
Mr. Sherin also relies on the deposition testimony of former Georgia-Pacific employees C. William Lehnert, see ECF No. 183-8, and Howard A. Schutte, see ECF No. 183-10. According to Schutte, until 1973, Georgia-Pacific manufactured Ready Mix supplied to the Baltimore area at its Akron, New York plant. See id. at 7-8. Thereafter, it was manufactured by Georgia-Pacific's Milford, Virginia plant. Id. Lehnert testified, however, that until September 1970, virtually all the formulas used to manufacture Ready Mix at the Akron plant used asbestos produced by Phillip Carey, and that after September, 1970, all available formulas used SG-210. ECF No. 183-8 at 10. Lehnert's handwritten notes indicate that the Milford plant used SG-210 in its Ready Mix joint compound from June 1973 at least until January 1975. See ECF No. 183-9.
Mr. Sherin relies in part on National Gypsum's responses to interrogatories in an earlier asbestos case. See ECF No. 183-11. The responses generally state that National Gypsum began using SG-210 asbestos fiber in its products, including Gold Bond, "[a]round 1967." Id. at 9.
Mr. Sherin also relies on deposition testimony of Donald Doty, a former market service manager for National Gypsum, to establish that — as of early 1969 — National Gypsum began using SG-210 exclusively in its joint compound formula. See ECF No. 183 at 11. However, in the deposition testimony to which Mr. Sherin refers, Doty is reading from a Regional Plant Manager's Meeting Report about National Gypsum's West Coast operations. See ECF Nos. 186-1 at 2-3, 183-14 at 5-6. National Gypsum supplies to the Baltimore area would not have shipped from its West Coast operations, but from its Baltimore
Mr. Sherin has produced business records showing Union Carbide's sales of SG-210 to National Gypsum's Baltimore plant from 1969 until 1976. See ECF No. 183-18.
Based on the foregoing evidence, though a jury could not reasonably infer that Mrs. Sherin inhaled Calidria asbestos dust from Georgia-Pacific joint compound at the Brattle Road worksite or from washing Mr. Sherin's work clothes prior to September 1970, a jury could find that Mrs. Sherin sustained take-home exposure after September 1970. Furthermore, a jury could find that Mrs. Sherin inhaled Calidria asbestos dust from National Gypsum joint compound at the Brattle Road worksite and — from 1969 to 1976 — from washing Mr. Sherin's work clothes.
Union Carbide asserts that it is entitled to summary judgment because Mr. Sherin cannot show that Mrs. Sherin's exposure to Calidria, if any, was a substantial factor in causing Mrs. Sherin's mesothelioma. See ECF No. 178-1 at 10-11. At best, Union Carbide asserts, Mr. Sherin has merely shown that Calidria "was incorporated in certain formulas, of certain manufacturers, at certain times." Id. at 11. Mr. Sherin asserts that expert medical testimony establishes that Mrs. Sherin was exposed to Union Carbide's asbestos "in quantities sufficient to have caused her malignant mesothelioma." ECF No. 183 at 12-13.
Under Maryland law, the plaintiff must show that the defendant's asbestos was a substantial factor in causing her harm. See Shetterly v. Raymark Indus., Inc., 117 F.3d 776, 780 (4th Cir.1997); Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir.1986). In this case, because Mrs. Sherin did not work directly with asbestos products, she is considered a "bystander." See Balbos, 604 A.2d at 460.
Whether a bystander's exposure to asbestos products is legally sufficient to find substantial-factor causation is fact
Mr. Sherin has provided sufficient evidence for a jury to reasonably infer that the Balbos "regular, frequent, and proximate exposure" test is met. See Balbos, 604 A.2d at 460.
Here, Mr. Sherin testified that-between 1968 and 1976-he visited construction sites eight to ten times each month. ECF No. 183-2 at 53. Defining the relevant time period as 1969 to 1976,
Mr. Sherin also offers medical testimony by Drs. Abraham and Kipen. See ECF Nos. 183-19, 183-20. Dr. Abraham testified that each exposure to asbestos fibers while washing Mr. Sherin's clothes would be a contributing cause of Mrs. Sherin's mesothelioma and that each exposure increases the risk of mesothelioma. ECF No. 183-19 at 11-12, 14. Dr. Kipen testified that, in his opinion, Mrs. Sherin's mesothelioma resulted from her "cumulative exposure to asbestos dust" over many years of washing Mr. Sherin's clothes. Id. at 5-7 (describing Mrs. Sherin's exposure as "substantial domestic exposure").
From Mrs. Sherin's laundry exposure and the medical testimony, a jury could reasonably infer that Union Carbide's asbestos fiber was a substantial factor in causing Mrs. Sherin's mesothelioma.
Union Carbide asserts that it is entitled to summary judgment as it did not owe Mrs. Sherin a duty to warn her about the dangers of asbestos because her exposure to asbestos — and her development of mesothelioma — was not foreseeable. See ECF No. 178-1 at 12-13. Union Carbide also asserts that there was no feasible way
Union Carbide asserts that — before 1972 — it did not owe Mrs. Sherin a duty because the "generally available scientific information had not yet clearly suggested that `take-home' exposures to asbestos were a potential health hazard." ECF No. 178-1 at 12.
"The existence of a legal duty is a question of law, to be decided by the court." Gourdine v. Crews, 405 Md. 722, 955 A.2d 769, 775 (2008) (citing Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 879 A.2d 1088, 1092 (2005)).
There is no duty to warn, however, if the warning cannot feasibly be implemented or have practical effect. Farrar, 69 A.3d at 1039 (trial court erred in finding a duty to warn in 1968-69 because "there was no practical way that any warning given by [the defendant] to any of the suggested intermediaries would or could have avoided that danger").
Here, Mr. Sherin has presented sufficient evidence from which a jury could reasonably infer that Union Carbide knew or had reason to know of the dangers of household exposure to asbestos before 1972.
The 1947 Dust Investigation Report prepared by IHF stated that information available then "[did] not permit complete assurance that five million [particles per cubic foot]
On the issue of take-home exposure, Mr. Sherin presented the 1967 Sayers Report, which states that mesothelioma is associated with inhaling asbestos; that "[m]esothelioma is the most disturbing" of diseases attributable to asbestos; and that it can occur after "brief exposure," possibly as low as "three months," or, according to "[s]ome authorities[,] ... a single brief exposure might be sufficient." ECF No. 183-36 at 11. The Sayers Report mentions an October 31, 1965 Sunday Times
Based on the foregoing, the Court finds that a jury could reasonably infer that Union Carbide had, as Mr. Sherin asserts, "clear notice of the dangers of `take-home' exposures" before 1972.
Mr. Sherin presented additional evidence to support his assertion that Union Carbide's awareness of the dangers of exposure to asbestos dust increased throughout the 1970s. For example, Mr. Sherin presented the 1972 "Asbestos Article" warning about the danger from slight exposure to asbestos, including take-home exposure. See ECF No. 183-55. Mr. Sherin also relies on the May 1973 letter prepared by Union Carbide's Medical Department disagreeing with the Mining and Metals Division's conclusions resulting from its Calidria Asbestos study. See ECF No. 183-59. The Medical Department compared the Mining and Metals Division's conclusions with criteria for asbestos set forth by NIOSH and found that its conclusions minimized the health hazards associated with asbestos exposure. See id. at 1-2, 4-5.
The Court is not persuaded by Union Carbide's assertion that Mr. Sherin's presence on worksites was not foreseeable. ECF No. 178-1 at 13. Mr. Sherin visited worksites to convince builders to install his products at the builders' next construction locations. See ECF No. 183-2 at 36. These visits were not uncommon; they occurred eight to ten times per month. See id. at 53. Thus, from the evidence of awareness of take-home exposure and Mr. Sherin's job, a jury could reasonably find that Union Carbide knew or should have known of the dangers of take-home asbestos exposure after 1972.
Before imposing a duty to warn, however, the Court must satisfy itself that Union Carbide could have feasibly and effectively implemented that duty. See Farrar, 69 A.3d at 1039. Union Carbide asserts that Mr. Sherin has provided no evidence of a "feasible way for Union Carbide to have warn[ed] Mrs. Sherin." ECF No. 186 at 10. Farrar, however, does not require Union Carbide to have reached Mrs. Sherin directly. The Farrar Court stated that "there was no practical way that any warning given by [Georgia-Pacific] to any of the suggested intermediaries would or could have avoided that danger." Farrar, 69 A.3d at 1039 (emphasis added). Farrar, thus, leaves open the possibility that the feasibility of the warning may be determined by assessing whether the defendant could feasibly have better warned its intermediaries.
Mr. Sherin does not directly address Farrar's holding about feasibility of warnings.
Union Carbide asserts that it warned its customers of the dangers of asbestos and provided safe-handling instructions. See ECF No. 178-1 at 16. Beginning in 1968, Union Carbide included warnings on its bags of Calidria asbestos and — in 1972 — it modified the warning to comply with newly-enacted OSHA regulations. See ECF No. 178-1 at 18. Union Carbide internal correspondence states, however, that the 1968 labeling used on its asbestos packaging was "weak." See ECF No. 183-79 at 31.
As further support of the adequacy of its warnings, Union Carbide presented an affidavit by John L. Myers, a former Union Carbide employee. See ECF No. 178-4. Myers states that Union Carbide provided its customers with various regulations, reports, and literature about health risks associated with asbestos. See id. at 6. Beginning in 1964, Union Carbide provided its Asbestos Toxicology Report to all customers. Id. at 5. In 1972, Union Carbide began providing customers with its Calidria Data Sheet. Id. at 6.
Mr. Sherin disputes the adequacy of Union Carbide's warnings, asserting that Union Carbide deliberately misled its customers on the dangers of asbestos and "provide[d] the least amount of information possible." See ECF No. 183 at 27, 36. In support, Mr. Sherin points to internal Union Carbide documents. In 1972, Union Carbide's Mining and Metals Division recommended responding to a customer's concerns by stating that "[a]sbestos is proven harmful only when TLV's are exceeded for 10-30 years" and that "[i]t is not a proven fact that asbestos dust causes cancer when regulations are observed." ECF No. 183-50 at 1. In 1973, Union Carbide directed personnel to inform customers that "asbestos is not a carcinogen" under OSHA regulations, while acknowledging "[a]s you know, the answer to the same question in the broad sense is not as clear-cut," and medical opinion varies from "[a]sbestos is a very dangerous carcinogen" to "[u]nder certain exposure conditions certain types of asbestos may be carcinogenic." ECF No. 183-60 at 1.
Mr. Sherin also presents Union Carbide "Reports of Call" suggesting Union Carbide customer dissatisfaction with the information they had received. See ECF Nos. 183-45, 183-49. In one Report of Call, the customer apparently stated that "the only information that Carbide has furnished him with regard to this subject in print is our Asbestos Toxicology report and some information concerning methods and equipment for determining dust levels." ECF No. 183-49 at 1. The customer described the Asbestos Toxicology Report as "atrocious," said that that it posed more questions than it answered, and requested more specific recommendations for safe use of Calidria. Id.
Mr. Sherin asserts that the Calidria Data Sheet stated that Calidria contained no hazardous ingredients, see ECF Nos. 183 at 25, 183-56, although it provided guidance on airborne exposure to asbestos and noted that "[p]rolonged overexposure may result in lung damage." ECF No. 183-56. Mr. Sherin asserts that the list of documents provided to Union Carbide customers was inadequate to fully inform them of the dangers of asbestos. See ECF No 27. For example, the 1967 Sayers
Based on the foregoing, a jury could reasonably infer that it was feasible for Union Carbide to more fully inform its customers about the health hazards associated with asbestos dust. Under Farrar, however, Mr. Sherin must also provide evidence that improved warnings would have effectively prevented Mrs. Sherin's take-home exposure to asbestos dust.
Union Carbide seeks partial summary judgment on claims involving breach of warranty, fraud, conspiracy, aiding and abetting, and punitive damages. See ECF No. 181. That motion is unopposed, and there is no evidence in the record supporting those claims. Accordingly, Union Carbide's motion for partial summary judgment will be granted.
For the reasons stated above, the motion in limine will be denied, the motion for summary judgment will be granted in part and denied in part, and the motion for partial summary judgment will be granted.
This Court previously granted joint motions for voluntary dismissal of all claims against Pfizer Corporation, Premier Refractories, Inc., The Goodyear Tire & Rubber Company, The Wallace & Gale Asbestos Settlement Trust, MCIC, Inc., E.L. Stebbing & Co., Foster Wheeler Corporation, Schneider Electric USA Inc., Bayer CropScience, Inc., and General Electric Company. See ECF Nos. 60, 100, 102, 123, 131, 132, 149, 150, 156, 161.
This Court previously granted motions for voluntary dismissal filed by Hampshire Industries, Inc., Hopeman Brothers, Inc., Lofton Corporation, and Wayne Manufacturing Corporation. See ECF Nos. 126, 127.
This Court previously granted motions for summary judgment filed by Hampshire Industries, Inc., Hopeman Brothers, Inc., Lofton Corporation, Wayne Manufacturing Company, Kaiser Gypsum Company, Inc., CertainTeed Corporation, Selby, Battersby & Company, Foster Wheeler Corporation, Pfizer Corporation, Schneider Electric USA, Inc., General Electric Company, The Wallace & Gale Asbestos Settlement Trust, The Goodyear Tire & Rubber Company, Conwed Corporation, CBS Corporation, John Crane-Houdaille Inc., Cooper Industries, Inc., Green, Tweed & Co., and International Paper Company. See ECF Nos. 157, 167, 169, 189, 190, 191, 192, 193, 194, 195, 196, 197.
Id. at 1033-34 (footnote omitted) (quoting Restatement (Second) of Torts: Chattel Known to be Dangerous for Intended Use § 388 (1965)).
Farrar, 69 A.3d at 1039.
