Alabama Supreme Court Reverses Summary Judgment In Favor of Talc Defendant Based on Product Identification, Not Asbestos Content, of Talc Supreme Court of Alabama, September 30, 2015
In this case, the Alabama Supreme Court reversed and remanded the order granting summary judgment to defendant Vanderbilt Minerals. The Supreme Court included a large summary of facts in its opinion. The decedent, Dansby W. Sanders, died from mesothelioma; prior to his passing, he sued numerous defendants alleging he was exposed to asbestos while working for Mobile Paint Company. Vanderbilt supplied industrial talc under the brand name Nytal to Mobile Paint. Various witnesses testified as to the presence of Nytal supplied by Vanderbilt. Vanderbilt responded to discovery requests, stating that it never manufactured or sold a product that contained asbestos, talc did not contain asbestos, and talc did not pose the same health risks as asbestos. Vanderbilt also admitted that there was some confusion as to whether specific talc grades contained asbestos. The plaintiff provided expert reports stating that Nytal contained asbestiform fibers, and documenting mesotheliomas in persons exposed to asbestiform talc.
Per the scheduling order, summary judgments were due before expert discovery was completed. Vanderbilt’s summary judgment motion argued that the plaintiff had no evidence the decedent was exposed to a Vanderbilt product. It did not argue that the talc did not contain asbestos. At the hearing two weeks after filing the motion, Vanderbilt raised the issue of asbestos content. The plaintiff responded that he had experts to testify regarding the asbestos content, but that this motion addressed product identification. The trial court granted the summary judgment, stating that the record showed Vanderbilt never manufactured or sold an asbestos product, and the talc did not contain asbestos. However, asbestos content was an issue for experts, and in accordance with the trial court’s own scheduling order, discovery on this issue was not completed at the time the summary judgment was filed.
The Supreme Court held that the trial court erred in entering a summary judgment in favor of Vanderbilt: “Consistent with the trial court’s scheduling order and the corresponding state of discovery at the time it filed its motion for a summary judgment, Vanderbilt clearly argued only the issue of product identification/exposure in that motion. Contrary to that scheduling order and the state of discovery regarding issues other than product identification, and contrary to the content of its summary-judgment motion, Vanderbilt argued only the issue of asbestos content at the hearing on that motion. Before us, Vanderbilt argues as if the two issues are one and the same and, therefore, that Sanders had no reason to be caught unaware in the trial court. We disagree.” Sanders did not present evidence of asbestos content in the summary judgment because it was not an issue being challenged at that time. Sanders presented substantial evidence that the decedent was exposed to Nytal talc supplied by Vanderbilt to establish a genuine issue of material fact.