Gibbs v. 84 Lumber Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DEFOREST GIBBS and SHERRYL
GIBBS, his wife.
Plaintiffs,
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v. ) C.A.No.: N19C-09-265 ASB
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84 LUMBER COMPANY, et al., )
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Defendants.
MEMORANDUM OPINION
Submitted: September 3, 2020
Decided: September 28, 2020
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.
Il. 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 with
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General 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.' 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 where
! See UCC’s Memorandum in Support of its Motion for Summary Judgment at 4 [hereinafter
“Def.’s Mot.” ].
lad
Mr. Gibbs resided.” Further, UCC does not dispute that it sold Calidria to Armstrong
during the relevant period. 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.’
C. Procedural Background
On June 12, 2020, UCC filed a Motion for Summary Judgment (“Motion”)
and supporting Memorandum.° On July 17, 2020, Plaintiffs filed their Memorandum
in Opposition (“Response”).° On August 10, 2020, UCC filed its Reply.” This Court
heard oral argument on September 3, 2020. This matter is ripe for review.
Il. 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. 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 material
? See Def.’s Mot. at 3.
3 See UCC’s Reply in Support of its Motion for Summary Judgment at 5 [hereinafter “Def.’s
Reply”].
4 See id.
> See UCC’s Motion for Summary Judgment; see also Def.’s Mot.
° See Plaintiffs’ Memorandum in Opposition to UCC’s Motion for Summary Judgment [hereinafter
“Pl.s’ Resp.” ].
7 See Def.’s Reply.
8 Super. Ct. Civ. R. 56(c).
fact.”? 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.”'° In considering the motions, “[alll
facts and reasonable inferences must be considered in a light most favorable to the
non-moving party.”!' 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.” !”
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.
° Quality Elec. Co., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488 (Del. 1995). See Super. Ct.
Civ. R. 56(e); see also Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).
'0 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
"Nutt v. A.C. & S. Co., 517 A.2d 690, 692 (Del. Super. 1986).
12 Im re. Asbestos Litig., 509 A.2d 1116 (Del. Super. 1986), aff'd sub. nom. Nicolet, Inc. v. Nutt,
525 A.2d (Del. 1987).
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.'? Exposure is actionable if it satisfies the
“frequency, regularity, and proximity test,” set forth in Lohrmann v. Pittsburgh
Corning Corp.,'* 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.”!” A plaintiffs mere “presence in the vicinity
of static asbestos is not exposure to asbestos.”!®
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.
'3 Henderson v. Allied Signal, Inc., 373 $.C. 179, 185 (2007).
'4 782 F.2d 1156, 1162 (4th Cir. 1986).
13 Henderson, 373 S.C. at 185 (emphasis added).
16 Td.
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”’’ to “the ultimate
user of the dangers associated with the use of the product.”'® The duty to warn
generally extends to both the immediate purchasers as well as to subsequent
purchasers and users.'? 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.?° UCC references three legal doctrines in making
its argument: (1) the “bulk-supplier” doctrine;?! (2) the “sophisticated user”
'7 Phillips v. S.C. State Univ., No. 2005-UP-320, 2005 WL 7084045, at *4 (S.C. Ct. App. May 12,
2005) (citing Allen v. Long Mfg. NC, Inc., 332 S.C. 422, 505 S.E.2d 354, 357 (S.C. Ct. App. 1998)).
'8 Tawing v. Univar, USA, Inc., 415 S.C. 209, 225, 781 S.E.2d 548, 557 (2015) (citing Livingston
v. Noland Corp., 293 S.C. 521, 525 (1987) (citing Gardner v. Q.H.S., Inc., 448 F.2d 238, 242 (4th
Cir. 1971) (finding that the duty-to-warn arises when the user may not realize the potential danger
of a product))); see Watson v. Ford Motor Co., 389 S.C. 434, 444, 699 S.E.2d 169, 174 (2010)
(noting that failure-to-warn actions stem from a user’s claim “that he was not adequately warned
of dangers inherent to a product.”).
'9 See Lawing, 415 S.C. at 225.
20 See Def.’s Mot. at 8 (citing Def.’s Mot., Exhibit B at 3-7).
2! See Def.’s Mot., Exhibit B at 4 (citing Hoffman v. Houghton Chemical Corporation, 751 N.E.2d
848, 856 (Mass. 2001); quoting Jn re Asbestos Litig., 542 A.2d 1205, 1211 (Del. Super. 1986)
(quoting Restatement (Second) of Torts § 388, cmt. 1)) (“The bulk-supplier doctrine originates in
Section 388, comment n, and is premised on the special difficulties that bulk suppliers face in
directly warning foreseeable end users of the dangers of their products . . . . [The] process makes
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doctrine;*? and (3) the “raw material” doctrine.”
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. 4
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 the
it unlikely that supplier warnings will reach foreseeable users. Further, even if such warnings
could theoretically reach foreseeable users, the ‘multitudinous commercial uses,’ to which bulk
suppliers are often put would make it ‘crushingly burdensome’ to require the supplier to provide
direct warnings.”).
22 See Def.’s Mot., Exhibit B at 4—5 (citing Taylor v. American Chemistry Council, 576 F.3d 16,
25-26 (1st Cir. 2009)) (“The sophisticated-user doctrine originates in Section 388, comment k, and
is premised on the idea that certain dangers are obvious to a sophisticated user, making a warning
superfluous. Under the sophisticated-user doctrine, a supplier is immune from liability where is
sells its product to a purchaser—either an intermediary or end user—who knows (or should have
known) of the hazards associated with the product. Unlike the bulk-supplier doctrine, this defense
applies regardless of whether the supplier warned the immediate purchaser or end user, so long as
the immediate purchaser was knowledgeable or sophisticated.”).
23 See Def.’s Mot., Exhibit B at 5 (“The ‘raw material’ doctrine combines elements of both the
bulk-supplier and sophisticated-user doctrines . . . although its protections are limited to sellers of
naturally occurring raw materials (such as sand, gravel, kerosene or asbestos). Under this doctrine,
a supplier who sells a raw material that is subsequently integrated into a manufactured product is
not liable for failing to warn end users ... where the raw material supplier did not exercise control
over the fabrication or distribution of [the] finished product.”).
24 See Def.’s Mot., Exhibits H, I [hereinafter “Watson v. Georgia-Pacific, LLC, et al.”], J
[hereinafter “Tibbett v. A.O. Smith Corporation, et al.”’).
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record demonstrated that, “there [were] no genuine issues of material fact regarding
Georgia-Pacific’s status as a sophisticated intermediary.” 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.”?° 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.?’. 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.”8
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 involvement
23 Robinson v. Union Carbide Corp., No. CV N17C-06-143 (ASB), 2019 WL 3822531, at *1 (Del.
Super. Aug. 15, 2019) (granting UCC’s motion for summary judgment where there existed no
genuine issues of material fact regarding the applicability of the bulk supplier defense).
26 Watson v. Georgia-Pacific, LLC, et al., at 4.
27 Td. (citing Jones v. Hittle Serv., Inc., 219 Kan. 627, 549 P.2d 1383 (1976)).
8 Td.
in the design, manufacture, distribution or sale of the finished joint compound
products at issue in the case.”
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, manufacture, distribution or sale of the finished products
at issue. However, the Court cannot grant UCC’s Motion based on Delaware case
law alone. The Superior Court in each case above reached its finding based on the
application of factors or definitions considered under the substantive state law
relevant in that action. Accordingly, this Court must also consider whether the
“sophisticated user” defense applies under South Carolina law.
2. Application of the “Sophisticated User” Defense
The “sophisticated user” doctrine “recognizes that a supplier may rely on an
intermediary to provide warnings to the ultimate user if the reliance is reasonable
under the circumstances.”*° The application of this doctrine “relieve[s] the supplier
of liability for failure to warn where it is difficult or even impossible for the supplier
2° Tibbett v. A.O Smith Corporation, et al., at 3-4.
30 Tawing v. Univar, USA, Inc., 415 S.C. 209, 225-26, 781 S.E.2d 548, 557 (2015) (citing
Restatement (Second) of Torts § 388 cmt. 1)) (emphasis added); see O'Neal v. Celanese Corp., 10
F.3d 249, 251 (4th Cir. 1993) (“The sophisticated user defense is implicated in the situation in
which A supplies a chattel to B, B in turn allows C to be exposed to the chattel, C is injured by
exposure to the chattel, and C claims that A should be liable to C for A’s failure to warn C of the
danger.”).
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to meet its duty to warn the end user . . . , and the supplier therefore relies on the
intermediary or employer to [do so].””!
Although “[t]he South Carolina Supreme Court has not formally adopted the
sophisticated user doctrine[,]”** “other courts have applied the sophisticated user and
learned intermediary doctrine in cases involving the application of South Carolina
law.’33 In Satterfield v. Morris,>* the United States District Court for the District of
South Carolina (the “District Court”) noted that “[clourts generally do not impose
liability or a duty to warn on raw materials suppliers, because to do so would force
suppliers to closely scrutinize manufacturing processes and products over which
they have no control, and at prohibitive expense.”’° Thus, “decisions regarding the
use of raw materials .. . are attributable to the manufacturer of the final product[.]”*°
31 Grimes v. Young Life, Inc., No. CV 8:16-1410-HMH, 2017 WL 10663785, at *4 (D.S.C. May
10, 2017) (citing Lawing, 415 S.C. at 781); see Satterfield v. Morris, No. CIV.A. 7:11-1514-MGL,
2014 WL 2744687, at *4 (D.S.C. June 17, 2014) (citing Phillips v. S.C. State Univ., No. 2005-UP-
320, 2005 WL 7084045, at *5 (S.C. Ct. App. May 12, 2005) (citing Jacobs v. E.l. du Pont de
Nemours & Co., 67 F.3d 1219, 1236 (6th Cir. 1995))).
32 Grimes, 2017 WL 10663785, at *4 (citing Lawing, 415 S.C. at 557 & n.14).
33 Id. (citing Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 462 S.E.2d 321, 332 (Ct. App. 1995); Sauls
v. Wyeth Pharm., Inc., 846 F. Supp. 2d 499, 502 (D.S.C. 2012); Fisher v. Pelstring, 817 F. Supp.
2d 791, 811 (D.S.C. 2011)).
34 No, CIV.A. 7:11-1514-MGL, 2014 WL 2744687 (D.S.C. June 17, 2014) (granting third-party
defendant’s motion for summary judgment against third-party plaintiff, where third-party
defendant was a raw material supplier and component part manufacturer and therefore did not owe
a duty to warn).
35 Tq at *3 (citing Restat. (Third) Torts: Prod. Liab., § 5, cmt. c).
36 Td (citing Restat. (Third) Torts: Prod. Liab., § 5 cmt. c); see generally Phillips v. S.C. State
Univ., No. 2005-UP-320, 2005 WL 7084045 (S.C. Ct. App. May 12, 2005) (affirming summary
judgment in favor of supplier defendant where the supplied product was not deemed to be
dangerous and where supplier defendant could not be held liable for inadequate warning because
the duty to warn should have been fulfilled by the manufacturer under the sophisticated
intermediary rule).
1]
Without explicitly applying the “sophisticated user” or “learned intermediary”
doctrines, the District Court in Satterfield ruled, under South Carolina law that a
supplier is not liable for harm caused by a final product, into which its component
part is integrated, unless that component part is defective.*’ Here, Plaintiffs do not
make any assertions that the Calidria, supplied by UCC, was defective. In alignment
with that same rule, if a component part is not defective, a supplier may still be held
liable for failure-to-warn “if the supplier ‘substantially participates’ in the
‘integration of the component into the design of the final product.’”?® But, Plaintiffs
do not make any claims or submit any evidence that UCC controlled its customers’
compounding, packaging, or marketing of their products. Therefore, under
Satterfield, this Court must find that UCC is entitled to summary judgment as a raw
materials supplier that did not supply a defective product, and was not involved in
any of the named manufacturers’ processes.
However, Plaintiffs argue that the issue is not about the sophistication of the
named manufacturers, but rather the inadequacy of the warning provided by UCC to
the named manufacturers. Hence, the Court must consider the interplay of UCC’s
assertion of the “sophisticated user” defense and the issue of adequacy of warning.
37 See Satterfield, 2014 WL 2744687, at *3 (citing Phillips, 2005 WL 7084045, at *3 (citing 63
AmJur.2d Products Liability § 147 (2004)); Sperry v. Bauermeister, Inc., 4 F.3d 596, 598 (8th Cir.
1993); Childress v. Gresen Mfg. Co., 888 F.2d 45, 49 (6th Cir. 1989); Walker v. Stauffer Chemical
Corp., 19 Cal. App. 3d 669, 672-73, 96 Cal. Rptr. 803 (Cal. Ct. App. 1971)) (emphasis added).
38 Id. (quoting Phillips, 2005 WL 7084045, at *3-4 (citing Restat. (Third) Torts: Prod. Liab. § 5 at
reporter’s note cmt. e)).
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3. UCC’s Reliance on the Named Manufacturers
In reviewing the application of the “sophisticated user” defense, the Court
refers to the Supreme Court of South Carolina’s decision in Lawing v. Univar, USA,
Inc.’ Although the factual circumstances and procedural posture are not identical
to the case before this Court, Lawing is referenced for the principle that “a supplier
may rely on an intermediary to provide warnings to the ultimate user if the reliance
»40 Thus, to determine whether the
is reasonable under the circumstances.
application of this defense is appropriate, the Court must decide whether UCC
reasonably relied on the named manufacturers, to warn end users of the dangers
associated with the Calidria it supplied.
In O’Neal v. Celanese Corp.,*! the United States Fourth Circuit Court of
Appeals (the “Fourth Circuit”) concluded that a defendant supplier acted reasonably
in relying on the, sophisticated user/employer to warn the plaintiff employee. The
Fourth Circuit justified such reliance on the employer being experienced in that line
of business, to such an extent that it knew or should have known the dangers
>? Lawing v. Univar, USA, Inc., 415 S.C. 209, 225-26, 781 S.E.2d 548, 557 (2015).
‘0 Id. (citing Restatement (Second) of Torts § 388 cmt. m)) (emphasis added); see O’Neal v.
Celanese Corp., 10 F.3d 249, 251 (4th Cir. 1993) (“The sophisticated user defense is implicated
in the situation in which A supplies a chattel to B, B in turn allows C to be exposed to the chattel,
C is injured by exposure to the chattel, and C claims that A should be liable to C for A’s failure to
warn C of the danger.”).
*! O'Neal, 10 F.3d 249 (affirming the granting of a judgment notwithstanding the verdict and
conditional new trial in favor of defendant where defendant established a sophisticated user
defense as a matter of law and where plaintiff failed to establish proximate cause).
13
associated with the plant equipment at issue.“ In conducting its analysis
surrounding the application of the “sophisticated user’ defense under Maryland
law,’ the Fourth Circuit considered the following factors to determine whether the
supplier reasonably relied upon the intermediary to warn users:
(1) the dangerous condition of the product; (2) the purpose for which
the product is used; (3) the form of any warnings given; (4) the
reliability for the third party as a conduit of necessary information about
the product; (5) the magnitude of the risk involved; and (6) the burdens
imposed on the supplier by requiring that he directly warn all users.“4
Although this Court refers to O’Neal for guidance, it does not apply the listed
factors explicitly here because such factors were developed under Maryland law —
not controlling in this case. Instead, the Court turns to Bragg v. Hi-Ranger,”” where
the South Carolina Court of Appeals (the “Court of Appeals”) concluded that the
court below properly charged the jury concerning the “sophisticated user” defense.
Although Bragg was decided under a different procedural posture, the commentary
surrounding the application of the “sophisticated user” defense is relevant to the
Court’s decision here. In Bragg, the Court of Appeals applied O’Neal, noting that
the question is not whether the sophisticated intermediary had knowledge, but
“2 Bragg v. Hi-Ranger, Inc., 319 S.C. 531, 550, 462 S.E.2d 321, 332 (Ct. App. 1995).
43 CQ ’Neal, 10 F.3d at 251 (citing Kennedy v. Mobay Corp., 325 Md. 385, 601 A.2d 123 (1992),
aff’g for the reasons stated in 84 Md. App. 397, 579 A.2d 1191 (1990)).
44 Td. at 252 (quoting Eagle—Picher Indus., Inc. v. Balbos, 326 Md. 179, 604 A.2d 445, 465 (1992)).
45 319 S.C. 531, 550, 462 S.E.2d 321, 332 (Ct. App. 1995).
14
“whether the supplier . . . acted reasonably in assuming that the intermediary would
recognize the danger and take precautions .. . .”*°
Therefore, this Court focuses its analysis on whether UCC has established that
no genuine issues of material fact exist about whether it was reasonable for it to rely
on Georgia-Pacific, National Gypsum, U.S. Gypsum, and Armstrong to provide
adequate warnings to end users. Here, UCC provided a myriad of documentation
possessed by each manufacturer which indicates their awareness surrounding the
uses and dangers of asbestos, and their knowledge of its application within their
respective lines of work.*” Further, UCC has also established that Armstrong sold a
variety of flooring products during the relevant period that did not contain asbestos,
and that Armstrong ceiling materials have never contained asbestos.“* Accordingly,
based on the unrefuted record, this Court finds that UCC could reasonably rely upon
Georgia-Pacific, National Gypsum, U.S. Gypsum, and Armstrong to recognize the
danger of using Calidria in their products, and that they were in the best position to
take precautions and warn end users of the use and potential dangers of their
products.
© Bragg, 319 S.C. at 550.
47 See Def.’s Mot, Exhibits C, E, F, G, K, L, M; see also Def.’s Reply, Exhibit A. This position
was unrefuted by Plaintiffs.
48 See Def.’s Reply, Exhibits E, F. This position was unrefuted by Plaintiffs.
15
Moreover, this Court notes that because of its position as an unaffiliated
supplier’? and a lack of evidence in the record to suggest otherwise, UCC likely
lacked the ability to identify, contact or warn end users of its customers’ finished
products. Therefore, this Court finds that UCC did not have a duty directly to warn
the end users of its customers’ finished products.
4. Adequacy of UCC’s Warning to Named
Manufacturers
Plaintiffs suggest that regardless of the status of the manufacturers in this case,
summary judgment is inappropriate because the warnings that UCC did provide
were inadequate. Plaintiffs contend that the “Toxicology Report” issued to
manufacturers by UCC was inadequate. Specifically, Plaintiffs allege that the
“Toxicology Report” presented customers with misleading information that
provided false assurance regarding the safety of “asbestos” and “chrysotile
asbestos.”
However, because the Court finds that Georgia-Pacific, National Gypsum,
U.S. Gypsum, and Armstrong were sophisticated users, it is not required to evaluate
the adequacy of UCC’s warnings — where UCC was not under any obligation to issue
them in the first place. In Phillips v. South Carolina State University,°° the Court of
49 See Def.’s Mot. at 6 (“[UCC] did not participate in or control the manufacture or design of its
customers’ finished products, the subsequent sale and distribution of those products, or the product
warnings that accompanied the finished products to the end users.”).
*° No. 2005-UP-320, 2005 WL 7084045 (S.C. Ct. App. May 12, 2005).
16
Appeals affirmed the lower court’s granting of summary judgment in favor of the
supplier defendant where there was no evidence that the product supplied was
dangerous, and where it was undisputed that the sophisticated intermediary
“received notice of the warning” regarding the component at issue.°! Notably, the
Court of Appeals specified that even if the supplier defendant had not provided a
warning, it would still not be held liable, because “[c]omponent parts manufacturers
generally have no duty to warn end users of the potentially dangerous uses to which
their products may be put.”** Thus, this Court also finds that even if UCC had not
provided a warning to the named sophisticated users, it is not liable on Plaintiffs’
failure-to-warn claim.
Accordingly, after construing all facts and reasonable inferences in a light
most favorable to Plaintiffs, without indulging in speculation or conjecture, the
Court finds that UCC’s Motion for Summary Judgment on Plaintiffs’ failure-to-warn
claim is GRANTED.
>! Phillips, 2005 WL 7084045, at *4.
>2 Iq. (citing Jacobs v. E.I. du Pont de Nemours & Co., 67 F.3d 1219, 1236 (6th Cir. 1995)).
17
Vv. CONCLUSION
For the foregoing reasons, UCC’s Motion for Summary Judgment is
GRANTED, as to Plaintiffs’ design-defect claim and as to Plaintiffs’ failure-to-
warn claim. Because of the Court’s ruling on Plaintiffs’ failure-to-warn claim, it
need not address the individualized arguments of whether UCC ever sold production
quantities of Calidria to U.S. Gypsum or whether Plaintiffs satisfied their shifted
burden of proving that the Armstrong products used by Mr. Gibbs contained
asbestos. i ii
IT IS SO ORDERED.
ShéldonK. Rennie, Judge
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