Manufacturer and Distributer of Raw Asbestos Wins Summary Judgment under Sophisticated User Defense

Superior Court of Delaware, New Castle, September 28, 2020

Plaintiffs Deforest Gibbs and Sherryl L. Gibb asserted claims against multiple defendants, including Union Carbide Corporation (UCC), alleging Mr. Gibbs suffers from mesothelioma as a result of occupational asbestos exposure. Mr. Gibbs worked as a laborer, plumber, and shade tree mechanic for 50 years in South Carolina. He allegedly suffered exposure to asbestos by working with HVAC equipment, hot water heaters, electrical products, valves, drywall, sheetrock, joint compound, caulk, roofing materials, and flooring products.

From 1963 to 1985, UCC manufactured and distributed raw asbestos, called “Calidria,” which it sold in bulk to manufacturers of products that incorporate asbestos, including joint compound, sheetrock and floor/ceiling tiles. Mr. Gibbs testified to using several brands of joint compound and sheetrock throughout his career, including United States Gypsum, Georgia-Pacific, and National Gypsum. Additionally, he testified to using floor and ceiling tiles produced by Armstrong Products Compan). The plaintiffs alleged UCC supplied raw asbestos to these manufacturers.

On June 12, 2020, UCC filed a motion for summary judgment, which the plaintiff opposed.

Delaware Superior Court Civil Rule 56 requires that summary judgment be granted where the moving party demonstrates that there are no genuine issues of material fact. After the movant meets this burden, the burden then shifts to the non-movant to demonstrate the “existence of one or more genuine issues of material fact.” 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.”

Under South Carolina product liability law, a manufacturer or a seller of a dangerous product has a duty to provide “an adequate warning” to “the ultimate user of the dangers associated with the use of the product.” The duty to warn generally extends to both the immediate purchasers as well as to subsequent purchasers and users. If a plaintiff succeeds in making a showing that no adequate warning was given, liability for his injuries may be imposed on the supplier or seller.

UCC argued the sophisticated user defense as its primary argument in support of summary judgment. The “sophisticated user” doctrine “recognizes that a supplier may rely on an intermediary to provide warnings to the ultimate user if the reliance is reasonable under the circumstances.”The application of this doctrine “relieve[s] the supplier of liability for failure to warn where it is difficult or even impossible for the supplier to meet its duty to warn the end user . . . and the supplier therefore relies on the intermediary or employer to [do so].”

Under South Carolina law a supplier is not liable for harm caused by a final product, into which its component part is integrated, unless that component part is defective. Here, the plaintiffs did not argue that the Calidria, supplied by UCC, was defective. If a component part is not defective, a supplier may still be held liable for failure-to-warn “if the supplier ‘substantially participates’ in the ‘integration of the component into the design of the final product.'” Again, the plaintiffs did not make any claims or submit any evidence that UCC controlled its customers’ compounding, packaging, or marketing of their products. Therefore, the court found that UCC is entitled to summary judgment as a raw materials supplier that did not supply a defective product, and was not involved in any of the named manufacturers’ processes.

The plaintiffs’ argument focused not on the sophistication of the named manufacturers, but rather the inadequacy of the warning provided by UCC to the named manufacturers. The court then considered the interplay of UCC’s assertion of the “sophisticated user” defense and the issue of adequacy of warning. To determine whether the application of this defense is appropriate, the court had to determine whether UCC reasonably relied on the named manufacturers, to warn end users of the dangers associated with the Calidria it supplied. Based on the record, the court found that UCC could reasonably rely upon Georgia-Pacific, National Gypsum, U.S. Gypsum, and Armstrong to recognize the danger of using Calidria in their products, and that they were in the best position to take precautions and warn end users of the use and potential dangers of their products.

Moreover, the court noted that because of its position as an unaffiliated supplier, UCC likely lacked the ability to identify, contact or warn end users of its customers’ finished products. Therefore, this court found that UCC did not have a duty directly to warn the end users of its customers’ finished products. Accordingly, the court granted UCC’s motion.