Roofing Cement Manufacturer Granted Summary Judgment Based on Insufficient Evidence of Exposure Superior Court of Delaware, New Castle, April 4, 2017

Plaintiffs Henry Stowers and his wife Laura Stowers filed suit in the Superior Court of Delaware, New Castle County, alleging that Henry Stowers was exposed to asbestos from various defendants’ products which caused his lung cancer. Stowers, as the plaintiffs’ sole product identification witness, testified that between 1985-87, Stowers was a self-employed roofer. His work included building cabinets and removing/placing old shingles on roofs with new ones. Stowers stated that the new shingles were made by Owens-Corning and Heritage but he was aware of the manufacturer of the roof felt he used. 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.

The defendants filed for summary judgment and argued that the plaintiffs cannot show the roofing cement released asbestos fibers under Oklahoma law. The plaintiffs argued that there was a genuine issue of material fact that Stowers lung cause is a result of his exposure to the defendant’s roof cement. The plaintiffs further presented evidence from interrogatories that Bird, Inc. admittingly made and sold asbestos-containing roofing products.

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.” [Citation Omitted].  A plaintiff must establish that there was a “significant probability” that a defendant’s products caused their injuries. [Citation Omitted].

Upon its review, the court found that the plaintiffs failed to meet this standard and could not demonstrate beyond speculation that there is a significant probability, under Oklahoma law, that the defendant’s product caused Stowers’ injuries. The court emphasized that the only evidence the plaintiffs offered demonstrating that Stowers worked with asbestos roof cement was from the defendant’s answer to Interrogatories. The answer states that Bird manufactured asbestos containing roof cement; however, there is no evidence in the record linking Stowers to the defendant’s asbestos containing roof cement beyond speculation. [Citation omitted].

Therefore, the defendant’s summary judgment motion was granted.

Read the full decision here.


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