Trousdale v. Certainteed Corporation ( 2017 )

IN THE SUPERIOR C()URT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION
JACK E. TROUSDALE, and SANDRA
TROUSDALE, his Wife,
Plaintiffs,
C.A. NO. N15C-08-186 ASB
V.
CERTAINTEED CORPORATION et
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Defendants. )
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August 17, 2017
Upon Defendant Certal``n Teed ’s
Motion for Summary Jua’gment
GRANTED IN PART; DENIED IN PART.
Plaintiffs Jack E. Trousdale, and his wife Sandra Trousdale (collectively
“Plaintiffs”) satisfied the summary judgment criteria.l
Plaintiffs filed an action against Defendant CertainTeed Corporation
(“Defendant”) alleging that Plaintiff Jack Trousdale (“Mr. Trousdale”) Was exposed
to asbestos from Defendant’s products Plaintiffs contend that Mr. Trousdale
l Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parls, Inc., 2013 WL 6920864, at
*3 (Del. Super. Dec. 3(), 2013); see Moore v. Sz``zemore, 405 A.2d 679, 680 (Del.
1979); Nutt v. A.C. & S., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In re
Asbestos Litigatz``on (Helm), 2012 WL 3264925 (Del. Aug. 13, 2012).
purchased a flat-bed tractor trailer in 1972 to Work as an independent truck driver,
and as part of his job Mr. Trousdale shipped CertainTeed pipe. Plaintiffs claim that
Mr. Trousdale drove to Defendant’s Ambler, Pennsylvania facility and Defendant’s
personnel loaded asbestos-cement pipe onto the truck ilatbed, Which took
approximately half an hour. Mr. Trousdale strapped the pipes down and put tarp
over the pipes. Plaintiffs claim the pipes Were dusty and “dust rose into the air as
Mr. Trousdale removed placed, manipulated, and tightened the straps and tarps. At
delivery Mr. Trousdale removed the straps and tarps, again raising dust, and folded
the tarps.” Plaintiffs claim that Mr. Trousdale repeated this process about fifty times,
and the first twenty to thirty occurred between 1973 and 1977. Plaintiffs presented
evidence that Defendant sold asbestos-cement pipe from Ambler, Pennsylvania from
1962 through 1982.
Defendant’s first argument is that Mr. Trousdale’s description of the pipes is
inconsistent With CertainTeed asbestos cement pipe. Defendant contends that
CertainTeed shipped pipe With couplings attached in order to join the pipes in the
field, and Mr. Trousdale did not identify couplings on the pipes. Additionally,
Defendant argues that CertainTeed asbestos-pipe did not have the Word “asbestos”
on the pipe, as Mr. Trousdale described in his deposition. At the onset, the Court
notes that Plaintiffs met their product identification burden. Defendant’s argument
regarding the alleged discrepancies in Mr. Trousdale’s description of Defendant’s
asbestos pipes, and Defendant’s description of the pipes, are issues of fact
appropriate for the jury. Next, Defendant argues that Plaintiffs have not met their
burden under Indiana law which requires that they prove Mr. Trousdale was exposed
to Defendant’s product and that product “produced a significant amount of asbestos
”2 Defendant contends that
dust and that the plaintiff might have inhaled the dust.
“there is no evidence that the manner of contact described by Mr. Trousdale would
have produced respirable asbestos much less in amounts as required under Indiana
law.” Defendant relies on an affidavit of Kyle Dotson to support this proposition
Mr. Dotson stated that a study performed by the Equitable Environmental Health in
1977 focused on asbestos levels during certain work practices with asbestos cement
pipe. Mr. Dotson avers that the test showed that unloading and laying of pipe
detected levels of asbestos ranging from non-detectable to a high of 0.03 f/cc (peak
samples), which is one-tenth of the current OSHA Permissible Exposure Limit of
0.1 f/cc.
To avoid summary judgment under Indiana law, the plaintiff “must produce
evidence sufficient to support an inference that he inhaled asbestos dust from the
defendant’s product.”3 “This inference can only be made if it is shown that the
2 Defendant cites to Falk, 755 N.E.2d 1198, 1203 (Ind. Ct. App. 2001).
3 Parks v. A.P. Green Indust., Inc., 754 N.E.2d 1052, 1056 (Ind. Ct. App. 2001)
(quoting Black v. ACana'S, 752 N.E.2d 148, 155 (Ind. Ct. App. 2001)), abrogated
on other grounds; see also Asbestos Corp. Ltd. V. Akaiwa, 827 N.E.2d 1095, 1097
(Ind. Ct. App. 2007).
product, as it was used during the plaintiffs tenure at the job site, could possibly
have produced a significant amount of asbestos dust and that the plaintiff might have
inhaled the dust.”4 “However, an inference is not reasonable when it rests on no
more than speculation or conjecture.”5 Plaintiffs demonstrated that Defendant
produced asbestos cement pipe during the time frame Mr. Trousdale transported
pipes on his flat-bed truck. Additionally, Mr. Trousdale testified that the pipes were
dusty and the process created dust. Thus, Plaintiffs demonstrated that genuine
disputes of material facts exist, and a reasonable jury could determine that his work
produced a significant amount of asbestos dust pursuant to Indiana’s causation
standard. However, summary judgment for the claims against CertainTeed post
1982 are hereby GRANTED. Mr. Trousdale testified that he did not haul
CertainTeed pipe out of another plant except for the one in Pennsylvania, and
Defendant presented evidence that it stopped manufacturing asbestos cement pipe at
the Ambler, Pennsylvania plant in 1982. Accordingly, Defendant’s Motion for
Sumrnary Judgment is hereby DENIED IN PART and GRANTED IN PART.
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.
4 Fulk v. Allz'ea’Signal, Inc., 755 N.E.2d 1198, 1203 (Ind. Ct. App. 2001) (citing
Peerman v. Georgia-Pacz'fz``c Corp., 35 F.3d 284, 287 (7th Cir. 1994)).
5 Parks, 754 N.E.2d at 1056 (citations omitted).