IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WERNER RATH, )
Plaintiff, §
v. § C.A. No. N17C-08-228 ASB
3M COMPANY, et al. §
Defendants. §
M

Submitted: March 27, 2019
Decided: April 5, 2019

Upon Defendam Oyj Partek Ab ’s Motl`onfor Summary Judgment,
GRANTED.

Loreto P. Rufo, Esq., (arguea’) of Rufo Associates PA, Wilmington, Delaware.
Attorneyfor Defena’ant

Thomas C. Crumplar, Esq. (argued), of Jacobs & Crumplar, P.A., Wilmington,
Delaware; Donald P. Blydenburgh, Esq. and Patrick I. Andrews, Esq., Levy
Konigsberg, LLP, New York, New York. Attorneysfor Plaintij”.

MEDINILLA, J.

AND NOW this 5th day of April, 2019, upon consideration of Defendant Oyj
Partek Ab (“Partek”)’s Motion for Summary Judgment, the responses thereto, and
the parties’ oral arguments, IT IS HEREBY ORDERED that the Motion for
Summary Judgment is GRANTED for the following reasons:

l. Plaintiff Werner Rath (“Rath”) alleges he suffered occupational
exposure to asbestos While Working as a union carpenter at a number of industrial
sites to include the Getty Oil Refmery in DelaWare City, the Sunolin Plant in
Claymont, and the Delmarva Power & Light facility in DelaWare City, the Salem
Nuclear Power Plant in Salem, New Jersey, and other DuPont facilities, including
manufacturing plants in Newport and Edgemoor, DelaWare.

2. On September 20, 2017, one Week before Rath Was to be deposed,
Plaintiff’s counsel filed a Motion for Leave to Amend to file an Amended Complaint
joining additional Defendants, including Partek and added a claim for environmental
exposure from proximity to the Haveg plant.l

3. The Haveg lndustries plant_noW demolished_-is one of two sites in
DelaWare Where asbestos associated With Partek Was used in the manufacturing
processes.2 Partek Was not the only supplier of asbestos used at those plants. Partek

supplied asbestos to the Haveg plant during December 1964 to May 1975.

 

l See Pl.’s Mot. to Am. Compl.; see also First Am. Compl.
2 Asbestos associated With Partek Was also used in the manufacturing process at the Avisun plant
in NeW Castle, also now demolished.

4. The sole allegation of the environmental exposure claim is that Rath
“Was exposed to asbestos fibers environmentally While living at his home. . .between
1962-1973. This address Was in close proximity to the Haveg plant being three-
quarters of a mile of the plant.”3 lt is undisputed that Rath never Worked at the
Haveg plant. Also undisputed is that Rath lived Within this approximate distance of
three-quarters of the Haveg plant.

5. Plaintiffs filed a Witness & Exhibit List intended to be introduced to
support the claim against Partek, including four expert Witnesses, two treating
physicians, four “damages” Witnesses, and approximately forty
identification/exposure Witnesses. Partek maintains that none provide evidence that
Rath Was exposed to asbestos associated With Partek. In addition, Rath identified
Dr. Joseph Sobel, a meteorologist to provide Wind estimations related to the
environmental claim.

6. Dr. Sobel produced a report Wherein he states he Was asked to
determine “average Wind conditions in the vicinity of the former Haveg Plant. . .from
September 1964 through January l972...in order to estimate the exposure that
[Rath] had to asbestos Which We understand Was used extensively at the plant during

that time period.”4 The analysis took into consideration various data sets that

 

3 First Am. Compl. 11 39.
4 See Def.’s Mot. summ. J., Ex. E at 1.

suggested the “wind would have blown from the Haveg plant toward [Rath’s
residence] an average of 810 [or 875 depending on the data set] hours per year.” In
sum, he opines that the wind traveled in the general direction of Rath’s residence
approximately ten percent of the time.5 He opines as such within a reasonable degree
of scientific probability.

7. The medical experts Rath intends to introduce opine that Rath’s
exposure was caused by the occupational, exposure to asbestos while working on
the various sites previously noted. Rath’s counsel suggested to the Court that the
expert could simply modify his/her opinion to include reference to Partek.
Discovery is closed and the Defendant is entitled to test the sufficiency of plaintiffs
evidence with confidence that the record is fixed.6

8. Delaware Superior Court Civil Rule 56 mandates the granting of
summary judgment where the moving party demonstrates that “there is no genuine
issues as to any material fact and that the moving party is entitled to judgment as a
matter of law.”7 “Once the movant meets its burden, then the burden shifts to the

non-movant to demonstrate sufficiently an existence of one or more genuine issues

 

5 Rath does not dispute that his residence is located across a creek, up a hill, across a maj or
highway, and approximately three-quarters of a mile away from the Haveg plant.

6 In re Asbestos Lz'tz`g. (Tisdel), 2006 WL 3492370, at *4 (Del. Super. Nov. 28, 2006) (citation
omitted).

7 Super. Ct. Civ. R. 56(c).

of material fact.”8 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.”9 In considering the motion,
“[a]ll facts and reasonable inferences must be considered in a light most favorable
to the non-moving party.”lo 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.”ll The parties agree Delaware substantive
law applies.

9. Under Delaware law a plaintiff must show “some evidence that not only
was a particular defendant’s asbestos containing product present at the job site, but
also that the plaintiff was in proximity to that product at the time it was being used.”12
“A plaintiff simply establishing that a defendant’s product was present at plaintiffs

work-site is not sufficient to establish product nexus.”13 The initial burden is on the

 

8 Qualily Elec. C0., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488 (Del. 1995). See also Super.
Ct. Civ. R. 56(e); Moore v. Sz'zemore, 405 A.2d 679, 681 (Del. 1979).

9 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).

10 Nutt v. A.C. & S. Co., 517 A.2d 690, 692 (Del. Super. 1986) (citing Mechell v. Palmer, 343
A.2d, 621 (Del. 1975); Allstate Auto Leasing C0. v. Caldwell, 394 A.2d 748, 752 (Del. Super.
1978)).

ll In re. Asbestos Litz'g., 509 A.2d 1116 (Del. Super. 1986), af’d sub. nom. Nicolet, Inc. v. Nutt,
525 A.2d 146 (Del. 1987).

'2 Nutt, 517 A.2d at 692 (citation omitted); see e.g. , In re Asbestos Litigation (Truitt), 2011 WL
5429168, at * 2 (Del. Super. Oct. 6, 2011).

13 Collins v. Ashlana', Inc., 2009 WL 81297, at *3 (Del. Super. Jan. 6, 2009) (citing Lee v. A.C. &
S., Inc., 1986 WL 15421, at l (Del. Super. Dec. 15, 1986)).

5

plaintiff to establish “some evidence” of product nexus as to this time and place
standard14

10. Here, Dr. Sobel does not opine that any asbestos from Haveg traveled
to Rath’s house to Support the environmental exposure claim. His determination
was limited to opine in which direction the wind generally blew. He produces the
report “to estimate the exposure that [Rath] had to asbestos which we understand
was used extensively at the plant. . ..” Notably, Dr. Sobel indicates that his
understanding (not his opinion) was that asbestos (non-specific) was used
extensively at the plant. lt is undisputed that asbestos was used at the Haveg plant.
But the claim is not that Rath was exposed at the plant. Rath must establish he was
exposed at his home. Even as to this point, the most the report provides is that the
wind “would have blown from the Haveg plant toward [Rath’s address]
approximately 10% of the time.” This does not establish that any asbestos product,
let alone a Partek associated product, was released into the wind.

ll. This Court finds that Rath fails to establish product nexus and fails to
provide evidence that create a genuine issue of material fact whether he was exposed
by an asbestos-containing product associated with Partek. Reliance on Dr. Sobel’s
report to establish that respirable asbestos dust associated with Partek traveled in the

direction of Plaintiff’s residence and exposed him to this asbestos requires

 

14 Collz'ns v. Ashlana’, Inc., 2009 WL 81297, at *3 (citing Nutt, 517 A.2d at 692).
6

impermissible speculation. Plaintiff has not presented evidence from which a jury
could reasonably infer, without undue speculation, that Rath was exposed to

asbestos-containing products produced by Partek.

IT IS HEREBY ORDERED that Defendant’s Motion for Summary

A¢ge vivian L. Mediniiia

cc: All Counsel of Record (via Fz'le/Serve)

Judgment is GRANTED.

 

