Bier v. Am. Biltrite , 2012 Ohio 1195 ( 2012 )

[Cite as Bier v. Am. Biltrite, 2012-Ohio-1195.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97085
ESTATE OF FERUCCIO BIER
PLAINTIFF-APPELLANT
vs.
AMERICAN BILTRITE, ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Common Pleas Court
Case No. CV-682564
BEFORE: Boyle, P.J., Celebrezze, J., and Jones, J.
RELEASED AND JOURNALIZED: March 22, 2012
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ATTORNEYS FOR APPELLANT
Linda G. Lagunzad
David P. Pavlik
Brent Coon & Associates
Summit One Building
4700 Rockside Road, Suite 320
Independence, Ohio 44131
ATTORNEYS FOR APPELLEES
For Union Carbide Corporation
Richard D. Schuster
Perry W. Doran, II
Robert J. Krummen
Stephen C. Musilli
Vorys, Sater, Seymour & Pease, LLP
52 East Gay Street
P.O. Box 1008
Columbus, Ohio 43216-1008
For Dal-Tile Corporation
Kevin C. Alexandersen
Eric H. Mann
Daniel J. Michalec
Gallagher Sharp
6th Floor Bulkley Building
1501 Euclid Avenue
Cleveland, Ohio 44115
For Kentile Floors, Inc.
James N. Kline
Bruce P. Mandel
Kurt S. Siegfried
Max W. Thomas
Robert E. Zulandt, III
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Ulmer & Berne LLP
Skylight Office Tower
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113-1448
MARY J. BOYLE, P.J.:
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{¶1} In this asbestos action, plaintiff-appellant, Patricia Bier, individually and
as the executrix of the estate of Feruccio Bier (“Bier”), appeals from the trial court’s
decision granting summary judgment in favor of defendant-appellee, Union Carbide.
She raises a single assignment of error:
{¶2} “The trial court erred in granting appellee’s motion for summary judgment
when genuine issues of material fact as to whether asbestos fibers supplied by appellee
were a proximate cause of decedent’s mesothelioma exist.”
{¶3} We find Bier’s sole assignment of error unpersuasive and affirm
Procedural History and Facts
{¶4} Bier filed the underlying action for recovery of damages arising from her
husband’s, Feruccio Bier (“decedent”), development of mesothelioma and resulting
death. She filed suit against several defendants who manufactured products that
allegedly contained asbestos and also against Union Carbide,1 a supplier of raw asbestos
to some of these manufacturers. Union Carbide’s Calidria asbestos was specifically
marketed for vinyl-asbestos floor tile, epoxies for terrazzo flooring, mastics, rubber floor
tile, and adhesives.
{¶5} Bier alleged, among other things, that decedent was exposed to asbestos
fibers supplied by Union Carbide and incorporated into various asbestos-containing
From late 1963 until June 30, 1985, Union Carbide mined and sold chrysotile asbestos that
1
was initially known as “Union Carbide Asbestos” and then sold under the trade name “Calidria.”
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products used by decedent or by others in his presence during his work as a laborer in
the late 1950s and later as an owner of D&F Tile, a flooring company, starting in 1962
and continuing into the 1970s. According to Bier, decedent worked with products
manufactured or supplied by Kentile Floors, Dal-Tile/American Olean, and Armstrong
World Industries, all of which incorporated Union Carbide’s Calidria asbestos.
{¶6} Union Carbide, however, moved for summary judgment, arguing that Bier
cannot meet her burden of proof and demonstrate that decedent was “ever exposed to an
asbestos-containing product manufactured, supplied, distributed or otherwise associated
with Union Carbide.” Bier opposed the motion, arguing that “evidence that Union
Carbide’s asbestos was incorporated into products used by decedent is sufficient to
permit an inference that decedent was exposed to Union Carbide’s asbestos.”
Following briefing and oral argument by the parties, the trial court ultimately granted
Union Carbide’s motion, finding, among other things, that “[t]here is no evidence in the
record that any of the products to which Mr. Bier was exposed contained Union
Carbide’s Calidria asbestos.”
{¶7} Bier appeals, challenging the trial court’s grant of summary judgment.
Standard of Review
{¶8} Appellate review of summary judgment is de novo, governed by the
standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559,
833 N.E.2d 712, ¶ 8. Accordingly, we afford no deference to the trial court’s decision
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and independently review the record to determine whether summary judgment is
appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d
637, ¶ 12 (8th Dist.).
{¶9} As in any case, summary judgment is appropriate in an asbestos case
when, looking at the evidence as a whole, (1) no genuine issue of material
fact remains to be litigated, (2) the moving party is entitled to judgment as
a matter of law, and (3) it appears from the evidence, construed most
strongly in favor of the nonmoving party, that reasonable minds could only
conclude in favor of the moving party. Civ.R. 56; Horton v. Harwick
Chem. Corp., 73 Ohio St.3d 679, 653 N.E.2d 1196 (1995), paragraph three
of the syllabus.
Genuine Issue of Material Fact
{¶10} In her sole assignment of error, Bier argues that the trial court erred in
granting Union Carbide’s motion for summary judgment. She contends that the record
contains sufficient circumstantial evidence that supports a finding that her deceased
husband had been exposed to Union Carbide’s Calidria asbestos at some point in his
career in the flooring industry. At the very least, she argues that a genuine issue of
material fact exists as to this issue. We disagree.
{¶11} Bier points to three manufacturers of asbestos-containing floor products
that she contends used Union Carbide’s Calidria asbestos and that her husband was
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exposed to these products in his career: (1) Kentile Floors, (2) Dal-Tile/American Olean,
and (3) Armstrong World Industries. Bier offered the following evidence to establish
decedent’s exposure to Union Carbide’s Calidria asbestos.
Union Carbide Sales Records
{¶12} According to Union Carbide sales records, Union Carbide shipped its
Calidria asbestos fibers to the following manufacturers (among others): (1) Kentile from
1963 through 1985; (2) L&M Surco in 1975; and (3) Armstrong from 1965 through
1978.
Deposition Testimony
{¶13} Bier, who was married to decedent for nearly 48 years and helped him run
his flooring business, presented her own deposition testimony in support of her claim
that decedent was exposed to these manufacturers’ products. Specifically, she testified
that decedent used Kentile flooring in many different jobs over the years, including the
flooring at the Brandt Street warehouse and the Ohio State Mental Center. Bier
broadly testified that decedent “used a lot of Kentile” and therefore believed decedent
used Kentile’s vinyl flooring in other jobs that specifically required vinyl or resilient
flooring, including some hospital and school facilities.
{¶14} Bier further offered the testimony of her husband’s former employee at
D&F Tile, Ralph Parin, who testified that he recalled using Kentile terrazzo tile on the
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Vandalia school job. He specifically recalled the packaging and the name “Kentile” on
the outside of the box containing the tiles.
{¶15} With respect to American Olean, Bier testified that her husband “used a lot
of American Olean ceramic tile” in residential construction jobs in the 1960s and 1970s.
She further testified that she “assume[d]” her husband used American Olean tile mastic
or thinset with these jobs. Parin likewise testified that he believed that decedent used
thinset purchased from American Olean for the Sinclair College job and the Wendy’s
jobs (done in the 1970s).
{¶16} As for Armstrong, Bier relied on Parin’s testimony that D&F Tile used
Armstrong sheet vinyl and mastic for the Prestonsburg, Kentucky nursing home job and
the Xenia high-rise job (done in the 1970s or 1980s). Bier also presented deposition
testimony of her husband’s former co-worker, Ronald Vayna, who testified that he saw
Armstrong products on jobs while working at Quinlan with the decedent in the 1960s.
Discovery Responses
{¶17} Bier offered discovery responses from Kentile and Armstrong that
evidenced both defendants had manufactured some flooring products that contained
asbestos during the time period that decedent was in business. And according to
Dal-Tile’s answer to interrogatory No. 3, L&M Surco manufactured a “thinset” mortar
product that, prior to 1977, included asbestos fibers, and American Olean sold the
thinset in its stores.
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{¶18} Bier urges this court to accept the inference that because Union Carbide
supplied raw asbestos to these manufacturers, Union Carbide’s Calidria asbestos was
present in the products that decedent purchased or used. Relying specifically on her
testimony that her husband “used Kentile a lot” and that many of the jobs performed by
her husband required the very type of flooring products Kentile manufactured, Bier
argues that “the trier of fact could infer from the evidence presented that decedent would
have been exposed to [Union Carbide’s] asbestos fibers at some point during his long
career in the flooring business.” With respect to American Olean, Bier contends that
“an inference could then be made that in purchasing tile and adhesives from American
Olean over the course of two decades, particularly the 1960s and 1970s, decedent would
have purchased asbestos-containing thinset material that, at some point, incorporated
asbestos supplied by [Union Carbide].” And finally, as for Armstrong, Bier argues that
Parin’s and Vayna’s testimony place Armstrong products at job sites that decedent
worked.
{¶19} Bier’s entire case essentially relies on the stacking of inferences stemming
from the evidence that Union Carbide sold asbestos to the defendant manufacturers at
one point during decedent’s career and that decedent used some of these manufacturers’
products during his career. Bier contends that this evidence is enough to infer that her
husband was exposed to Union Carbide’s Calidria asbestos. But the record reveals that
these manufacturers purchased raw asbestos from other companies and that Union
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Carbide was not the sole supplier of raw asbestos. Thus, even if we were to assume
that sufficient evidence exists that decedent was exposed to asbestos-containing floor
products manufactured or sold by Kentile, American Olean/Dal-Tile, or Armstrong,
there is absolutely no evidence in the record that these products contained Union
Carbide’s Calidria asbestos. Nor is there sufficient evidence to raise a genuine issue of
material fact; instead, Bier relies solely on speculation to support her claim.
{¶20} The mere fact that Union Carbide placed its Calidria asbestos into the
marketplace is not enough to impose liability for decedent’s mesothelioma and death
when there is no link between the two. Indeed, Bier has failed to produce any evidence
that Union Carbide’s Calidria asbestos was contained in any product used or purchased
by decedent.
{¶21} We further do not find that the appellate decision from Washington state is
controlling in this case. Bier argues that Taylor v. Union Carbide Corp., 147
Wash.App. 1017, 2008 WL 4788245 (Div. 2), is analogous to the instant case and
supports reversing the trial court’s decision. In Taylor, the appellate court reversed the
trial court’s decision granting summary judgment in favor of Union Carbide, rejecting
Union Carbide’s claim that there was no evidence that the plaintiff was specifically
exposed to its asbestos. But unlike the instant case, the plaintiff presented evidence
that specifically connected Union Carbide’s Calidria asbestos to the products that the
plaintiff was exposed. For example, the plaintiff established that he was exposed to
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Hamilton Red Dot (a joint compound that contained asbestos) when working at Tacoma
jobsites in 1972-1973 and presented testimony from Hamilton’s president who stated
that, aside from test batches, the use of Union Carbide’s asbestos was “exclusive” in the
1970s. Id. at *3.
{¶22} In this case, we have no such comparable evidence as in Taylor that would
raise a genuine issue of fact. Instead, Bier seeks to impose liability based on the
stacking of inferences, which is simply not allowed under the law. See Nationwide
Agribusiness Ins. Co. v. J.D. Equip., Inc., 12th Dist. No. CA2011-06-012,
2012-Ohio-229, ¶ 21, citing Parras v. Standard Oil Co., 160 Ohio St. 315, 116 N.E.2d
300 (1953), paragraph two of the syllabus (summary judgment standard does not permit
inference stacking). And, although inferences are allowed when reasonably drawn
from some proven facts, an inference can never arise from “mere guess, speculation, or
wishful thinking.” Id.{¶23} Accordingly, because we find that no genuine issues of material fact exist,
we overrule the sole assignment of error.
{¶24} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
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A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR