Stowers v. Bird Inc. ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION: )
)
HENRY STOWERS, and LAURA )
STOWERS, )
)
Plaintiffs, )
)
v. ) C.A. No. N14C-09-234 ASB
)
BIRD INC., et al., )
)
Defendants. )
April 4, 2017
ORDER
Upon Defendant Bird Inc.’s
Motion for Summary Judgment. GRANTED.
Plaintiffs cannot satisfy the summary judgment criteria on the issues of
product identification and causation.1
Plaintiffs, Henry Stowers, and his wife Laura Stowers claim that Mr.
Stowers was exposed to asbestos from Defendant’s products which caused his lung
cancer. Plaintiffs rely on Mr. Stowers as their sole product identification witness.
Mr. Stowers testified that after leaving high school he worked at Gulf gas station,
and testified that while at Gulf he did about three or four brake jobs per week. He
1
Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del.
Super. Dec. 30, 2013); see Moore v. Sizemore, 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 Litigation (Helm), 2012 WL
3264925 (Del. Aug. 13, 2012).
testified that he started working at McAlester Naval Ammunition Plant in March of
1966 as a sheet metal worker. Mr. Stowers testified that the piping was covered in
asbestos insulation, and he rebuilt and replaced metal parts in the plant including
tar kettles, boilers, and draw piping. Mr. Stowers left the ammunition plant in
January 1976 and returned in 1987. He testified that between 1985 and 1987 he
was a self-employed roofer, carpenter, and built cabinets. Mr. Stowers stated that
he removed old shingles on roofs and replaced them with new ones. He stated that
the new shingles were made by Owens-Corning and Heritage, but he was unaware
of the manufacturer of the roof felt. He also did not know the manufacturer of the
old roof materials he removed. He stated that he used Bird roofing cement around
the openings of pipes that came through the roof. He applied the cement with a
trowel, and cleaned the trowel with a buffing wheel attached to a grinder which
created black dust that he breathed in.
Defendant contends that Plaintiffs cannot show the roofing cement released
asbestos fibers under Oklahoma law. Plaintiffs argue that there is a genuine issue
of material fact that Mr. Stowers’ lung cause is a result of his exposure to
Defendant’s roof cement. Plaintiffs presented evidence from Interrogatories that
Bird Inc. admittedly made and sold asbestos containing roofing products. At Oral
Arguments, an issue came up regarding an expert report. In Defendant’s papers,
Defendant argued that Plaintiffs failed to submit an expert report from an industrial
hygienist or other qualified professional linking Mr. Stowers’ injury to Defendant’s
roof cement. Exhibit B of Plaintiffs’ response Motion is an expert report from Dr.
Sanford M. Ratner stating that “Mr. Stowers was exposed to asbestos from 1966-
1976 as sheet metal mechanic and while performing brake and carpentry work.” In
his opinion, “to a reasonable degree of medical certainty, Mr. Stowers’ primary
lung cancer arose as a result of his exposure to asbestos.” Nothing in the report
links Mr. Stowers’ injury to Bird roof cement. At oral argument, Plaintiffs
presented an Expert report dated January 30, 2017, e-filed on February 9, 2017.
The expert report from Jonathan L. Gelfand, M.D. states that Mr. Stowers was
exposed to asbestos containing roofing cement manufactured by Bird. In Dr.
Gelfand’s opinion, he stated but for Mr. Stowers’ “accumulated burden of
exposure to asbestos dust from each asbestos-containing product” he would “not
have metastatic adenocarcinoma of the lung with a poor prognosis for survival.”
Under Oklahoma law, plaintiffs in asbestos-related injury cases “must prove
that the product was the cause of the injury; the mere possibility that it might have
caused the injury is not enough.”2 A plaintiff must establish that there was a
“significant probability” that a defendant’s products caused their injuries.3 In
Dillon v. Fibreboard Corp.,4 the Tenth Circuit acknowledged that Oklahoma's
2
Kirkland v. Gen. Motors Corp., 521 P.2d 1353, 1363 (Okla. 1974).
3
Case v. Fibreboard Corp., 743 P.2d 1062, 1067 (Okla. 1987) (emphasis added).
4
919 F.2d 1488 (10th Cir. 1990).
"significant probability" standard was "strikingly similar" to what is now readily
known as the Lohrmann standard,5 and endorsed the district court's application of
the Oklahoma standard while approving the "well-formulated" analysis adopted in
Lohrmann.6 Plaintiffs rely on Interrogatories attached to their response Motion as
Exhibit A. Defendant Bird’s answer states:
Bird purchased a great deal of its asbestos-containing cements and
coatings from other companies to be relabeled as Bird. However, it
did manufacture some of its own. Most of the cements and coatings
were believed to contain asbestos. It is believed that chrysotile
asbestos was used in these products, with the exception of one type
that would have utilized Finnish anthophyllite fiber. . . The asbestos
fiber was fully encapsulated into asphalt. The products would also
have been sold in different formulations under varying trade names
for specific varying purposes.
Plaintiffs failed to demonstrate beyond speculation that there is a significant
probability, under Oklahoma law, that Defendant’s product caused Mr. Stowers’
injuries. Beyond speculation, the record lacks evidence supporting Plaintiffs’
contention that Mr. Stowers worked with asbestos roof cement that released
asbestos fibers. Even if this Court accepts Plaintiffs’ expert report dated January
30, under Oklahoma law, the mere possibility that Defendant’s product caused Mr.
Stowers’ injury is not enough to survive summary judgment. 7 The only evidence
Plaintiffs offered demonstrating that Mr. Stowers worked with asbestos roof
5
Lohrmann v. Pittsburgh Corning Corp, 782 F.2d 1156 (4th Cir. 1986).
6
See Dillon, 919 F.2d at 1491.
7
Id.
cement was from Defendant’s answer to Interrogatories stated above. The answer
states that Bird manufactured asbestos containing roof cement; however, there is
no evidence in the record linking Mr. Stowers to Defendant’s asbestos containing
roof cement beyond speculation.
Accordingly, Defendant Bird Inc.’s Motion for Summary Judgment is
hereby GRANTED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.