Janis, Jr. et al v. A.W. Chesterton, Inc. et al

Filing 136

REPORT AND RECOMMENDATIONS- re 109 MOTION for Summary Judgment, 107 MOTION for Summary Judgment, 114 MOTION for Summary Judgment, 113 MOTION for Summary Judgment, 111 MOTION for Summary Judgment. Please note that when filin g Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 1/31/2019. Signed by Judge Sherry R. Fallon on 1/17/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

EARL JANIS, JR. and
TONI JANIS
Plaintiffs,

v.
A.W. CHESTERTON, INC., et al
Defendants.

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Civil Action No. 17-167-MN-SRF

REPORT AND RECOMMENDATION

I.

INTRODUCTION

Presently before the court in this asbestos-related personal injury action are the motions
for summary judgment of Armstrong International, Inc. ("Armstrong") (D.I. 114), CBS
Corporation 1 ("CBS") (D.I. 109), CertainTeed Corporation ("CertainTeed") (D.I. 111), DAP,
Inc. ("DAP") (D.I. 107), and Union Carbide Corporation ("Union Carbide") (D.I. 113)
(collectively, "defendants"). Plaintiffs, Earl Janis Jr. ("Mr. Janis") and Toni Janis ("Mrs. Janis")
(collectively, "plaintiffs"), did not respond to these motions. As indicated in the chart infra and
for the reasons that follow, the court recommends GRANTING each defendant's motion for
summary judgment. 2

1

CBS is a successor to Westinghouse Electric Corporation ("Westinghouse"). (D.I. 110 at 1)
Armstrong's opening brief in support of its motion for summary judgment is D.I. 116, CBS'
opening brief in support of its motion for summary judgment is D.I. 110, CertainTeed's opening
brief in support of its motion for summary judgment is D.I. 112, DAP's opening brief in support
of its motion for summary judgment is D.I. 108, and Union Carbide's opening brief in support of
its motion for summary judgment is D.I. 115.

2

/;fent!A'itt!~/ f ·
Armstrong International, Inc.
CBS Corporation

GRANT

CertainTeed Corporation

GRANT

DAP, Inc.

GRANT

Union Carbide Corporation

GRANT

IL

BACKGROUND
a. Procedural History

On November 2, 2016, plaintiffs originally filed this personal injury action against
multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr. Janis's
alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On February 16, 2017, the case was
removed to this court by defendant Crane Co. pursuant to 28 U.S.C. §§ 1442(a)(l), the federal
officer removal statute,3 and 1446. (D.I. 1) Armstrong, CBS, CertainTeed, DAP, and Union
Carbide filed motions for summary judgment, individually. (D.I. 114; D.I. 109; D.I. 111; D.I.
107; D.I. 113) Plaintiffs did not respond to these motions. 4
b. Facts

i. Mr. Janis's alleged exposure history
Plaintiffs allege that Mr. Janis developed lung cancer as a result of exposure to asbestoscontaining materials during his service as a machinist mate in the United States Navy and as a
construction worker at Ray Thompson Construction Company. (D.I. 1, Ex. 1 at ,r 23) Plaintiffs
contend that Mr. Janis was injured due to exposure to asbestos-containing products that

3

The federal officer removal statute permits removal of a state court action to federal court
when, inter alia, such action is brought against "[t]he United States or an agency thereof or any
officer (or any person acting under that officer) of the United States or of any agency thereof,
sued in an official or individual capacity for any act under color of such office." 28 U.S.C. §
1442(a)(l).
4
DAP (D.I. 124), CBS (D.I. 125), CertainTeed (D.I. 125), and Union Carbide (D.I. 125)
requested that their motions be granted based on no opposition.
2

defendants manufactured, sold, distributed, licensed, or installed. (Id. at 'j\'j\ 29-30) Accordingly,
plaintiffs assert claims for negligence, willful and wanton conduct, strict liability, loss of
consortium, conspiracy, and punitive damages. (See D.I. 1, Ex. 1)
Mr. Janis served in the Navy from 1971-1975. (D.I. 110, Ex.Bat 60:13-17; D.I. 112, Ex.
A at 68:12-14) Mr. Janis started his service as a machinist's mate onboard the USS Aeolus and
then onboard the USS Richard L. Page. (D.I. 110, Ex.Bat 64:5-7, 65:22-24) He then served on
the USS Yellowstone, which is a tender, a ship that never moved and instead served as a repair
ship for other ships. (Id. at 73:6-10, 74:8-15) Finally, Mr. Janis served on the USS Santa

Barbara, an ammunition carrier. (Id at 81:22-82:4) As a machinist's mate, he installed valves
and pumps. (Id. at 104:1-5) He would sometimes need to remove a motor and deliver it to
electricians to complete the work. (Id. at 104:18-21) While he did not perform any work on
motors, he had to remove insulation in order to remove and transport the motor to the electrician.

(Id. at 104:22-105:3, 105:7-13)
Mr. Janis started working for Ray Thompson's construction company over the weekends
in 1974. (D.I. 115, Ex. A at 70:8-12) While working for Ray Thompson, he installed floors,
sheetrock, insulation, roofing, windows, and doors. (Id at 70:13-18) Mr. Janis described how
he installed sheetrock by applying a thin coat of sheetrock mud, then tape, and a heavier coat of
sheetrock mud. (Id at 79:6-8) The mud compound either came pre-mixed in an iron bucket or
as a powder in a bag that needed to be mixed with water. (Id. at 79:12-80:4) He testified that
pouring powder into a mixing bucket dispersed the product into the air and he inhaled the
resulting dust. (Id. at 80:5-14, 84:1-8) Mr. Janis also replaced floors using a product that came
in a roll. (Id., Ex.Cat 164:12-18) When Mr. Janis replaced roofing, he used a three-tab asphalt
roofing shingle. (D.I. 112, Ex.Cat 169:19-24) He cut the shingles and performed installation.

3

(Id at 173:14-23) Mr. Janis was diagnosed with lung cancer in February 2016. (D.I. 112, Ex. A

at 16:11-13)
ii. Plaintiff's product identification evidence

Plaintiff is the sole product identification witness in this case and his deposition occurred
on February 23, 2017. (D.I. 12)
1. Armstrong, International, Inc.

Mr. Janis identified Armstrong as a manufacturer of a flooring product that he used as a
construction worker. (D.I. 115, Ex.Cat 164:12-23) There is no evidence ofrecord that has
been submitted to the court indicating where, when, and how plaintiff was exposed or whether
such exposure was to an asbestos-containing Armstrong product.
2. CBS Corporation
Mr. Janis did not identify any Westinghouse products or exposure to any asbestoscontaining Westinghouse products. (See D.I. 110, Ex. B) Mr. Janis recounted how he worked
around motors while serving in the Navy. However, he admitted that he performed no work on
the motors themselves, did not know the number of times he had to remove motors, did not know
the number of times the insulation was previously removed prior to his contact with it, and did
not know on which ships he performed this task. (Id. at 105:7-9, 105:21-106:5)
3. CertainTeed Corporation
Mr. Janis identified CertainTeed as a manufacturer shingles he used in roofing jobs as a
construction worker. (D.I. 112, Ex.Cat 169:13-18) Mr. Janis described the shingles as a threetab asphalt roofing shingle. (Id. at 169:19-24) He stated that the shingles were packaged with a
wrap around them. (Id. at 175:1-5) He testified that there were no other words other than
"CertainTeed" and "asbestos" on the packaging. (Id at 175: 13-24) Mr. Janis could not recall

4

the color of the packaging. (Id. at 17 5: 17-19)
4. DAP, Inc.
Mr. Janis did not identify any asbestos-containing DAP products or exposure to any DAP
products. Plaintiffs have not come forward with any evidence in the record to refute DAP's
representation that nothing exists in the record concerning an exposure to DAP's products.
5. Union Carbide Corporation
Mr. Janis did not identify any asbestos-containing Union Carbide products or exposure to
any Union Carbide products. (See D.I. 115, Ex A; Ex. C) Union Carbide mined and milled a
unique asbestos fiber called "Calidria." (Id. at 4; Ex. D) Calidria was not sold to individual
customers, but rather to third-party manufacturers, including Georgia-Pacific and Armstrong.

(Id. at 4-5; Ex. D; Ex. E) Georgia-Pacific and Armstrong may have used Calidria in their joint
compound and flooring, respectively. (D.I. 115 at 5-6) Mr. Janis described his exposure to
Georgia-Pacific's pre-mixed mud compound and dry mix compound, Kaiser Gypsum's
compound, and Armstrong's rolled flooring. (Id., Ex. A at 79:9-22, 84:15-85:11; Ex.Cat
164:19-23, 176:23-177:8) Mr. Janis testified that Georgia-Pacific's dry mix compound needed
to be mixed with water, but pouring powder into a mixing bucket dispersed the product into the
air and he inhaled the resulting dust. (Id., Ex. A at 80:5-14; 84:1-8) He could not quantify how
many times he repeated this process during his career as a construction worker, but indicated that
he did this many times. (Id. at 84:10-14, 85:15-22) He could not remember whether the Kaiser
Gypsum compound was pre-mixed or needed to be mixed. (Id., Ex. C at 177: 14-16) Mr. Janis
also could not recall how many times he installed flooring. (Id. at 164:6-11)

5

III.

LEGAL ST AND ARD

a. Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed.
R. Civ. P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the non-moving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986)).

The moving party bears the initial burden of proving the absence of a genuinely disputed
material fact. See Celotex, 477 U.S. at 322. The burden then shifts to the non-movant to
demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the
light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574,587 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458,

460-61 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). An assertion that a fact cannot
be-or, alternatively, is-genuinely disputed must be supported either by citing to "particular
parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials," or by "showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l)(A) &
(B). To defeat a motion for summary judgment, the nonmoving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475

6

U.S. at 586. The "mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment;" rather, there must be
enough evidence to enable a jury to reasonably find for the non-moving party on the issue. See

Anderson, 477 U.S. at 247-49. "If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted); see

also Celotex, 477 U.S. at 322. If the non-movant fails to make a sufficient showing on an
essential element of its case on which it bears the burden of proof, then the movant is entitled to
judgment as a matter oflaw. See Celotex, 477 U.S. at 322.
If a party fails to address another party's assertion of fact, the court may consider the fact

undisputed, or grant summary judgment if the facts show that the movant is entitled to it. Fed. R.
Civ. P. 56(e)(2)-(3). 5 A plaintiffs failure to respond "is not alone a sufficient basis for the entry
of a summary judgment." Anchorage Assocs. v. Virgin Islands Bd. of Tax Review, 922 F.2d 168,

5

This section was added to Rule 56 to overcome cases in the Third Circuit that impaired the
utility of the summary judgment device:
A typical case is as follows: A party supports his motion for
summary judgment by affidavits or other evidentiary matter
sufficient to show that there is no genuine issue as to a material
fact. The adverse party, in opposing the motion, does not produce
any evidentiary matter, or produces some but not enough to
establish that there is a genuine issue for trial. Instead, the adverse
party rests on averments of his pleadings which on their face
present an issue.
Fed. R. Civ. P. 56(e) advisory committee's note. Before the amendment, the Third Circuit would
have denied summary judgment if the averments were "well-pleaded," and not conclusory. Id.
However, the Advisory Committee noted that summary judgment is meant to pierce the
pleadings and to assess proof to see whether there is a genuine need for trial. Id. Accordingly,
the pre-amendment Third Circuit precedent was incompatible with the basic purpose of the rule.
Id. The amendment recognizes that, "despite the best efforts of counsel to make his pleadings
accurate, they may be overwhelmingly contradicted by the proof available to his adversary." Id.
The amendment, however, was not designed to affect the ordinary standard applicable to
summary judgment. Id.
7

175 (3d Cir. 1990). Even where a party does not file a responsive submission to oppose the
motion, the court must still find that the undisputed facts warrant judgment as a matter of law.
Miller v. Ashcroft, 76 F. App'x 457,462 (3d Cir. 2003) (citing Fed. R. Civ. P. 56; Lorenzo v.
Griffith, 12 F.3d 23, 28 (3d Cir. 1993)). In other words, the court must still determine whether

the unopposed motion for summary judgment "has been properly made and supported."
Williams v. Murray, Inc., 2014 WL 3783878, at *2 (D.N.J. July 31, 2014) (quoting Muskett v.
Certegy Check Svcs., Inc., 2010 WL 2710555, at *3 (D.N.J. July 6, 2010)).

b. Maritime Law: Product Identification/Causation
The parties do not dispute that maritime law applies to all Naval and sea-based claims. 6
(D.I. 98) In order to establish causation in an asbestos claim under maritime law, a plaintiff must
show, for each defendant, "that (1) he was exposed to the defendant's product, and (2) the
product was a substantial factor 7 in causing the injury he suffered." Lindstrom v. A-C Prod.

6

For maritime law to apply, a plaintiffs exposure underlying a products liability claim must
meet both a locality test and a connection test. In Jerome B. Grubart, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527 (1995), the Supreme Court defined these tests as follows:
A court applying the location test must determine whether the tort occurred on
navigable water or whether injury suffered on land was caused by a vessel on
navigable water. The connection test raises two issues. A court, first, must
"assess the general features of the type of incident involved," to determine
whether the incident has "a potentially disruptive impact on maritime
commerce[.]" Second, a court must determine whether "the general character" of
the "activity giving rise to the incident" shows a "substantial relationship to
traditional maritime activity."
513 U.S. at 534 (internal citations omitted).
"Maritime law incorporates traditional 'substantial factor' causation principles, and courts often
look to the Restatement (Second) of Torts for a more helpful definition." Delatte v. A. W
Chesterton Co., 2011 WL 11439126, at *1 n.1 (E.D. Pa. Feb. 28, 2011). The comments to the
Restatement indicate that the word "substantial," in this context, "denote[ s] the fact that the
defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard
it as a cause, using that word in the popular sense, in which there always lurks the idea of
responsibility." Restatement (Second) of Torts § 431 cmt. a (1965).
7

8

Liab. Trust, 424 F.3d 488,492 (6th Cir. 2005) (citing Stark v. Armstrong World Indus., Inc., 21

F. App'x 371, 375 (6th Cir. 2001)); Dumas v. ABB Grp., Inc., 2015 WL 5766460, at *8 (D. Del.
Sept. 30, 2015), report and recommendation adopted, 2016 WL 310724 (D. Del. Jan. 26, 2016);
Mitchell v. Atwood & Morrill Co., 2016 WL 4522172, at *3 (D. Del. Aug. 29, 2016), report and
recommendation adopted, 2016 WL 5122668 (D. Del. Sept. 19, 2016); Denbow v. Air & Liquid
Sys. Corp., 2017 WL 1199732, at *4 (D. Del. Mar. 30, 2017), report and recommendation
adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017). 8

"In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of
the plaintiff or Decedent who experienced the exposure, co-worker testimony, or eye-witness
testimony) or circumstantial evidence that will support an inference that there was exposure to
the defendant's product for some length oftime."9 Abbay v. Armstrong Int'/, Inc., 2012 WL
975837, at *1 n.1 (E.D. Pa. Feb. 29, 2012) (citing Stark, 21 F. App'x at 376). On the other hand,

8

Previously, courts in this Circuit recognized a third element and required a plaintiff to "show
that (3) the defendant manufactured or distributed the asbestos-containing product to which
exposure is alleged," Abbay v. Armstrong Int'/, Inc., 2012 WL 975837, at *1 n.1 (E.D. Pa. Feb.
29, 2012), because the majority of federal courts have held that, under maritime law, a
manufacturer has no liability for harms caused by, and no duty to warn about hazards associated
with, a product it did not manufacture or distribute. This is also referred to as the "bare metal"
defense. See Dalton v. 3M Co., 2013 WL 4886658, at *7 (D. Del. Sept. 12, 2013) (citing cases);
Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012). However, the Third
Circuit rejected the bare metal defense, and held that a manufacturer of a "bare metal" product
may be held liable for injuries sustained from later-added asbestos-containing materials, if the
facts show that the plaintiffs injuries were a reasonably foreseeable result of the manufacturer's
failure to provide a reasonable and adequate warning. In re: Asbestos Prod. Liab. Litig.
(Devries), 873 F.3d 232, 240 (3d Cir. 2017). This decision is currently under review by the
Supreme Court of United States; on May 14, 2018, the Supreme Court granted the Petition for a
Writ of Certiorari of the Devries decision. See Air & Liquid Sys. Corp. v. Devries, No. 17-1104,
2018 WL 753606 (U.S. May 14, 2018).
9 However, '"substantial exposure is necessary to draw an inference from circumstantial
evidence that the exposure was a substantial factor in causing the injury."' Stark, 21 F. App'x at
376 (quoting Harbour v. Armstrong World Indus., Inc., 1991 WL 65201, at *4 (6th Cir. Apr. 25,
1991)).
9

"'[m]inimal exposure' to a defendant's product is insufficient [to establish causation]. Likewise,
a mere showing that defendant's product was present somewhere at plaintiffs place of work is
insufficient." Lindstrom, 424 F.3d at 492 (quoting Stark, 21 F. App'x at 376) (internal citation
omitted). "Rather, the plaintiff must show 'a high enough level of exposure that an inference
that the asbestos was a substantial factor in the injury is more than conjectural."' Abbay, 2012
WL 975837, at *1 n.l (quoting Lindstrom, 424 F.3d at 492). "Total failure to show that the
defect caused or contributed to the accident will foreclose as a matter of law a finding of strict
product[] liability." Stark, 21 F. App'x at 376 (citations omitted).
c. South Carolina Law
The parties do not dispute that South Carolina law applies to all land-based claims. (D.I.
98) In Henderson v. Allied Signal, Inc., 644 S.E.2d 724 (S.C. 2007), the Supreme Court of South
Carolina adopted the "frequency, regularity, and proximity test" outlined in Lohrmann v.
Pittsburgh Corning Corp., 782 F .2d 1156, 1162 (4th Cir. 1986). See Henderson, 644 S.E.2d at

727. "To support a reasonable inference of substantial causation from circumstantial evidence,
there must be evidence of exposure to a specific product on a regular basis over some extended
period of time in proximity to where the plaintiff actually worked." Id. (internal quotation marks
omitted). "Whether a plaintiff could successfully get to the jury or defeat a motion for summary
judgment under such a theory would depend upon the frequency of the use of the product and the
regularity or extent of the plaintiffs employment in proximity thereto." Lohrmann, 782 F.2d at
1162 (internal quotation marks omitted).

10

IV.

DISCUSSION
a. Armstrong International, Inc.

The court recommends granting Armstrong's motion for summary judgment because
there is no genuine issue of material fact in dispute as to whether Mr. Janis was exposed to an
asbestos-containing Armstrong product. Because plaintiffs have not introduced evidence
demonstrating sufficient frequency, regularity, and proximity of exposure to Armstrong's
products, as required under South Carolina law, the court recommends granting Armstrong's
motion for summary judgment.
b. CBS Corporation

The court recommends granting CBS's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether Mr. Janis was exposed to an asbestoscontaining product made by Westinghouse. CBS asserts that Mr. Janis did not associate any
asbestos exposure with Westinghouse motors but instead with the insulation. (D.I. 110 at 5)
Additionally, CBS notes that Mr. Janis was unable to quantify how often he removed motors
during his service in the Navy. (Id) Because Mr. Janis is unable to articulate how often he
removed motors or had exposure to these motors, his deposition testimony fails to create a
genuine issue of material fact as to whether CB S's products were a substantial contributing
factor to his injuries, as required under maritime law. (Id, Ex. B at 104: 18-106:5) Therefore,
the court recommends granting CBS's motion for summary judgment.
c. CertainTeed Corporation

The court recommends granting CertainTeed's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether Mr. Janis was exposed to an
asbestos-containing CertainTeed product. Although Mr. Janis identified CertainTeed as a

11

manufacturer of three-tab asphalt roofing shingles he worked with, CertainTeed argues that Mr.
Janis's description of the shingles indicates that the shingles he encountered did not contain
asbestos. (D.I. 112 at 5) Mr. Janis described the CertainTeed shingles he worked with as threetab asphalt roofing shingles. (Id., Ex. C at 169: 19-24) CertainTeed claims that it did not
manufacture any three-tab asphalt roofing shingles that contained asbestos, with the exception of
a period of a few months in 1973 and 1974. (Id at 5; Ex. D) During this time, CertainTeed
manufactured three-tab shingles that contained asbestos in their Dallas and Chicago Heights
roofing plants. (Id. at 5; Ex. D) CertainTeed contends that Mr. Janis would not have been
exposed to asbestos-containing CertainTeed products for two main reasons. First, his description
of the packaging for the shingles he used is inconsistent with CertainTeed's packaging for their
three-tab, asbestos-containing shingles. (Id at 5) Mr. Janis described the packaging as a wrap
around the shingles, on which the words "CertainTeed" and "asbestos" were printed. (Id., Ex. C
at 175:3-5, 175: 13-24) Second, because Mr. Janis was working in South Carolina, the
CertainTeed roofing shingles he was exposed to would have been manufactured at the roofing
plant in Savannah, Georgia - not in the Dallas and Chicago Heights roofing plants. (Id. at 5; Ex.
D)

Plaintiffs fail to provide evidence from the record which would create a material issue of
fact that the CertainTeed products to which Mr. Janis was exposed contained asbestos, or that
Mr. Janis encountered CertainTeed products with sufficient frequency, regularity, and proximity,
as required under South Carolina law. As such, the court recommends granting CertainTeed's
motion for summary judgment.

12

d. DAP, Inc.
The court recommends granting DAP's motion for summary judgment because there is
no genuine issue of material fact in dispute as to whether Mr. Janis was exposed to an asbestoscontaining Armstrong product. During Mr. Janis's deposition, he did not identify any DAP
product. Because plaintiffs have not introduced evidence demonstrating sufficient frequency,
regularity, and proximity of exposure to DAP's products, as required under South Carolina law,
the court recommends granting DAP' s motion for summary judgment.

e. Union Carbide Corporation
The court recommends granting Union Carbide's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether Mr. Janis was exposed to an
asbestos-containing Union Carbide product. Union Carbide notes that they milled and mined
raw asbestos fiber called "Calidria" that it sold to third-party manufacturers. (D.I. 115 at 4-5;
Ex. D; Ex. E) Union Carbide contends that it was a minority supplier to Georgia-Pacific and
Armstrong, and never sold to Kaiser Gypsum in the relevant distribution area. (Id. at 4-6; Ex. D;
Ex. E) It argues that there is no evidence that Mr. Janis was exposed to Calidria asbestos from
any Georgia-Pacific, Kaiser Gypsum, or Armstrong product. (Id. at 10-11) Although Mr. Janis
has testified that he was exposed to Georgia-Pacific, Kaiser Gypsum, and Armstrong products,
he was unable to provide details as to when, where, and how frequently he was exposed to these
products. (Id., Ex. A at 84:10-18, 85:8-22; Ex.Cat 164:6-11) Mr. Janis was also unable to
describe the appearance of Kaiser Gypsum's joint compound. (Id., Ex.Cat 177:14-24)
Plaintiffs have failed to provide evidence from the record sufficient to create a material issue of
fact as to whether there was sufficient frequency, regularity, and proximity of Mr. Janis's

13

exposure to Union Carbide's product, as required under South Carolina law. Consequently, the
court recommends granting Union Carbide's motion for summary judgment.

V.

CONCLUSION
For the foregoing reasons, and as addressed in the chart infra, the court recommends

granting defendants' motions for summary judgment.

Armstrong International, Inc.
CBS Corporation
CertainTeed Corporation
DAP, Inc.
Union Carbide Corporation

GRANT
GRANT
GRANT
GRANT
GRANT

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed.
R. Civ. P. 72(b)(2). The objection and responses to the objections are limited to ten (10) pages

each. The failure of a party to object to legal conclusions may result in the loss of the right to de
novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir.
2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.
Dated: January l'1 , 2019

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