Plaintiffs submit this Memorandum of Law in Support of Plaintiffs’ Response to Defendant Union Carbide Corporation’s (“Defendant”) Motion for Summary Judgment and would respectfully show the Court as follows:
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INTRODUCTION
Defendant aggressively marketed a carcinogenic asbestos fiber known as Calidria for use in consumer products. Union Carbide induced customers to use Calidria with false representations about the product’s hazardous properties and failed to give adequate warnings to either its customers or the end users of the products. As a result of exposure to Calidria asbestos incorporated in joint compound products that Ernest Derendinger worked with and around, Mr. Derendinger developed malignant mesothelioma, a fatal asbestos-related disease. Under Missouri law, Plaintiff may seek compensation for these injuries caused by Defendant’s tortious conduct.
ARGUMENT AND AUTHORITIES
A.Defendant Has Failed to Meet Its Summary Judgment Burden.
Under Rule 74.04, summary judgment is proper only when “there is no genuine issue as to any material fact.” Mo. R. Civ. P. 74.04(c)(6). Defendant, as the movant in this case, bears the burden “to demonstrate that there is no genuine issue of fact.” Wilson v. Altruk Freight Sys., Inc., 820 S.W.2d 717, 720 (Mo. Ct. App. 1991). In considering the motion, the trial court should “scrutinize the record in the light most favorable to the party against whom the motion was filed, and accord that party the benefit of every doubt.” Rogers v. Illinois Cent. R.R. Co., 833 S.W.2d 426, 427 (Mo. Ct. App. 1992).
Missouri courts have repeatedly referred to summary judgment as an “extreme and drastic remedy.” See, e.g., Ernst v. Ford Motor Co., 813 S.W.2d 910, 915 (Mo. Ct. App. 1991); Wilson, 820 S.W.2d at 720; Hurwitz v. Kohm, 516 S.W.2d 33, 35 (Mo. Ct. App. 1974). “If the evidence presented to support or oppose the motion is subject to conflicting interpretations, or reasonable people might differ as to its significance, summary judgment is improper.” Rogers, 833 S.W.2d at 427. Likewise, if the trial court “must overlook material in the record that raises a genuine dispute as to the facts underlying the movant’s right to judgment, summary judgment is not proper.” ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 378 (Mo. banc 1993).
Plaintiffs are not required to prove that they would prevail at a trial on the merits; they need only demonstrate “a factual question that would permit a reasonable jury to return a verdict” for Plaintiffs. Wood & Huston Bank v. Malan, 815 S.W.2d 454, 457 (Mo. Ct. App. 1991). In this case, reasonable and fair-minded people could certainly conclude that exposure to Calidria asbestos marketed, supplied and sold to manufacturers of asbestos-containing joint compounds was a proximate cause of Mr. Derendinger’s mesothelioma.
B.The Summary Judgment Evidence Raises Genuine Issues of Material Fact.
1.Defendant Suggests an Inappropriate Standard for Summary Judgment.
Defendant’s request for this Court to apply the "frequency, regularity, and proximity" test of Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), should be rejected because no Missouri court has adopted the Lohrmann standard. The only authority that Defendant cites for this proposition is a federal district court case in which the court applied Lohrmann, even though the Missouri Supreme Court had “not addressed the issue of the proper standard of proximate causation in asbestos-exposure cases.” See Kraus v. Celotex Corp., 925 F. Supp. 646, 651 (E.D. Mo. 1996). In the ten years since Kraus, no Missouri state court has cited the opinion; in fact, Kraus has been cited only once in the past ten years, and then by a panel of the Eighth Circuit Court of Appeals, again noting that “Missouri has not expressly defined the proper standard for proximate causation in asbestos cases.” See Chism v. W.R. Grace & Co., 158 F.3d 988, 992 (8th Cir. 1998). Defendant now asks this Court to do what no other Missouri court has done in the ten years since Kraus: to adopt an inappropriate standard for causation in asbestos cases. The Lohrmann test simply does not apply to this case or any other Missouri case.[1]
The highest court in Ohio, another state that has rejected the Lohrmann standard, disagreed with the standard because it “casts judges in an inappropriate role, is overly burdensome, and is unnecessary.” Horton v. Harwick Chem. Corp., 653 N.E.2d 1196, 1199 (Ohio 1995). The court agreed that the standard “‘flies in the face of evidence which indicates that short periods of exposure—from one day to three months—can cause significant damage to the lungs.’” Id. at 1200 (internal citation omitted). The court said that the standard was particularly troublesome when applied to the causation of mesothelioma since “[m]edical science suggests that very limited exposure to asbestos can cause” the disease. Id. The court labeled the test “pseudoscience in an arena where there is a long tradition of leaving science to the experts.” Id. at 1201. This court should follow this reasoning to once again reject the Lohrmann standard.
2.The Summary Judgment Evidence Raises a Genuine Issue of Fact with Respect to Causation.
Under Missouri law, Plaintiff must establish that Defendant’s product “directly contributed” to a person’s injury or death cause.” Hagen v. Celotex Corp., 816 S.W.2d 667, 670 (Mo. banc 1991). The factual issue to be decided by the jury is whether exposure to Defendant’s product was a “substantial factor” in bringing about Plaintiff’s decedent’s injuries. Id. This question requires consideration of the way in which the product was used, the nature of the exposure, and clinical or pathological evidence concerning the plaintiff’s medical condition. The term “substantial factor” is qualitative, not quantitative: “[T]he word ‘substantial’ is used to denote 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 a popular sense, in which there always lurks the idea of responsibility . . . .” Horton, 73 Ohio St.3d at 686 (quoting Restatement of the Law 2d, Torts (1965) §431, cmt. a). Applying the “substantial factor” test in Jeter v. Owens-Corning Fiberglas Corp. (Pa. Super. Ct. 1998), 716 A.2d 633, an asbestos case, a Pennsylvania court explained that “a cause can be found to be substantial so long as it is significant or recognizable; it need not be quantified as considerable or large. These latter terms imply a percentage threshold that a plaintiff must surmount before a jury will be permitted to rule in his favor; however, our courts have never required such an approach. . . . .” Id. at 636–37.
In Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076 (5th Cir. 1973)—a case that the Missouri Supreme Court described as “the seminal case concerning liability of manufacturers and sellers of asbestos” that “contains a valuable exposition of the entire problem”—the Fifth Circuit explained:
The traditional rule is that a defendant’s conduct is the cause of the event if it was a substantial factor in bringing it about. Whether the defendant’s conduct was a substantial factor is a question for the jury, unless the court determines that reasonable men could not differ.
In the instant case, it is impossible, as a practical matter, to determine with absolute certainty which particular exposure to asbestos dust resulted in injury to Borel. It is undisputed, however, that Borel contracted asbestosis from inhaling asbestos dust and that he was exposed to the products of all the defendants on many occasions. It was also established that the effect of exposure to asbestos dust is cumulative, that is, each exposure may result in an additional and separate injury. We think, therefore, that on the basis of strong circumstantial evidence the jury could find that each defendant was the cause in fact of some injury to Borel.
Borel, 493 F.2d at 1094 (citations omitted). Defendant has given this Court no reason why it should reject this causation standard implicitly adopted by the Missouri Supreme Court in favor of another causation standard that the Missouri courts have ignored for the past ten years.
Plaintiffs have satisfied their summary judgment burden because the evidence raises a genuine issue of material fact that exposure to products manufactured, sold, distributed and/or installed by Defendant directly contributed to Mr. Derendinger’s injury.
According to Defendant’s own estimates, Calidria products accounted for approximately fifty percent of the total amount of asbestos used in tape joint compounds in the United States. See Union Carbide Report by R.E. Byrne dated June 3, 1974 projecting growth of various manufacturing markets using Calidria asbestos, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference as Exhibit 1. Hundreds of tons of Defendant’s Calidria asbestos products were used in a wide range of applications, including joint compounds, textures, roofing products, ceiling tiles, floor tiles, paper, drilling muds and phenolic resins sold by various manufacturers of asbestos containing-materials. See Union Carbide’s Response to Plaintiff’s First Set of Interrogatories, Response to No. 19, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference as Exhibit 2. See also Union Carbide Report " 'Calidria' Asbestos Domestic Sales," identifying companies to which Calidria asbestos was sold, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference as Exhibit 3. Union Carbide aggressively marketed, sold and supplied Calidria asbestos for use in consumer joint compound products to numerous manufacturers of drywall and tape joint compounds. See Union Carbide sales brochure, Calidria Asbestos SG-210 ... an economical, highly efficient product to strengthen and control viscosity of dry and ready-mix ... Tape-Joint Compounds touting the special properties of Calidria asbestos, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference as Exhibit 4. Union Carbide specifically marketed its Calidria asbestos to the following manufacturers of asbestos-containing joint compounds at issue in this case including, but not limited to, Georgia-Pacific Corp., Kelly-Moore Paint Co. (manufacturer of “Paco” brand joint compounds and texture products), National Gypsum Co. (manufacturer “Gold Bond” brand joint compound) and United States Gypsum Co. (manufacturer of “USG” and “Durabond” joint compounds). See Union Carbide sales invoices to Georgia-Pacific Corp., Kelly-Moore Paint Co., Paco Textures Co., National Gypsum Co. and United States Gypsum Co.attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference as Exhibit 5.
Between the years 1968 and 1977, Defendant Union Carbide marketed and supplied Calidria asbestos to U.S. Gypsum Co. See United States Gypsum Company's Answers to Plaintiffs' Interrogatories, Roy Carson, et al .v. Anchor Packing Co., et al., Cause No. 86-L-824, Third Judicial Circuit, Madison County, Illinois and United States Gypsum Company's Amended Response to Certain of Plaintiffs' Standard Interrogatories to Defendants, In Re: All Asbestos Cases presently Pending Before and All Future Cases Assigned to the Honorable James Mies, Circuit Court Judge, Circuit Court, Wayne County, Michigan, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference as Exhibits 6 and 7. U.S. Gypsum, in turn used the Calidria asbestos in the manufacture of its asbestos-containing joint compounds. Id. Indeed, Union Carbide delivered tons of Calidria asbestos to the U.S. Gypsum manufacturing facilities throughout the country, including a manufacturing facility in Chicago, Illinois. See Exhibits 3 and 5 supra.
Between the years 1967 and 1975, Union Carbide supplied Calidria asbestos to National Gypsum Co., which National Gypsum Co. incorporated into its asbestos-containing joint compounds. See Responses of Defendant National Gypsum Company to Plaintiffs' First Set of Interrogatories, Neta Decker, Individually and as Personal Representative for the Heirs and Estate of James Decker, Deceased v. Armstrong World Industries, Inc. et al., Cause No. 86-2385-D, In the 95th Judicial District Court of Dallas County and National Gypsum Company’s Answers to Master Set of Discovery Requests, In Re: Asbestos Litigation, In the 353nd Judicial District Court of Tarrant County, Texas, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference as Exhibits 8 and 9. Union Carbide delivered tons of Calidria asbestos to the National Gypsum manufacturing facilities throughout the country, including a manufacturing facility in Matteson, Illinois. See Exhibits 3 and 5 supra.
Similarly, Union Carbide supplied Calidria asbestos to Georgia-Pacific Corporation for use in the manufacture of its asbestos-containing bedding and joint treatment compounds between the years1970 and 1977. See Georgia-Pacific Corporation’s Responses to Plaintiffs’ Standard Interrogatories, California Superior Court, City and County of San Francisco, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference as Exhibit 10. Union Carbide delivered tons of Calidria asbestos to Georgia-Pacific manufacturing facilities throughout the country, including its facility in Chicago, Illinois. See Exhibits 3 and 5 supra.
Ernest Derendinger worked his entire 34-year career as a carpenter and “working” superintendent at commercial and residential jobsites for numerous construction companies in Missouri, Illinois and Kansas where he was heavily exposed to asbestos-containing materials, including but not limited to joint compounds. As a consequence of these exposures, Plaintiffs allege Mr. Derendinger developed malignant mesothelioma. Mr. Derendinger gave a deposition in this case on June 3, 2005, before his death on November 3, 2005. He testified that he worked around sheetrock mud, joint compound, and drywall compound manufactured by US Gypsum Company, National Gypsum (“Gold Bond” brand joint compound) and Georgia-Pacific. See deposition transcript of Ernest Derendinger, dated June 3, 2005, at 46–48, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference as Exhibit 11. Mr. Derendinger testified that he was exposed to dust when working with and around these products. See id.
James Derendinger, son and co-worker of Ernest Derendinger, gave his deposition in this case on November 17, 2005. James Derendinger worked with his father on jobs between 1959 and 1978. See deposition transcript of James Derendinger, dated November 17, 2005, at 8, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference marked as Exhibit 12. James Derendinger similarly that his father was exposed to asbestos-containing joint compound in the 1960s and 1970s at “[v]irtually all”of his jobsites since he couldn’t “think of a one of them that didn’t use drywall.” See id. at 31.
In his deposition, James Derendinger testified that he recalled his father working with and around joint compound manufactured by Georgia-Pacific. See id. at 30. He testified that when using dry joint compound, his father would have to dump the powder into a bucket to mix it with water before applying it. See id. at 32–33. James Derendinger testified that the dumping of the powder “was like a volcano” that “made a tremendous amount of dust.” See id. at 33. He testified that the dry compound came in a 20- or 25-pound bag. See id. at 34. James Derendinger recalled his father working with Georgia-Pacific dry compound, which he recognized because the bag was labeled with the name. See id. He testified that his father poured and mixed Georgia-Pacific joint compound, which created dust that his father breathed in. See id. James Derendinger testified that his father would sand Georgia-Pacific compound, another process which produced dust that he believed contained asbestos and that his father breathed in. See id. at 35. He also testified that his father would breath dust from Georgia-Pacific joint compound when he would cleanup an area where that compound had been mixed or sanded. See id. at 36.
James Derendinger also testified that he recalled his father being in the area when US Gypsum joint compound was being mixed. See id. He testified that his father would apply and sand US Gypsum joint compound. See id. at 37. James Derendinger testified that this process produced dust, which his father would breathe. See id. He testified that he remembered his father using US Gypsum joint compound while working for Peter Dahlberg Construction between 1973 and 1978 and at the Copper Sinclair project in 1974 and 1975, in particular. See id. at 78–79, 90. He testified that the sanding of US Gypsum joint compound created “a lot of dust.” See id. at 94.
James Derendinger also testified that he recalled seeing Gold Bond joint compound at job sites in Chicago between 1973 and 1978. See id. at 82. James Derendinger testified that Gold Bond dry mix joint compound was packaged in 20- or 25- pound paper bags with the product name printed on it. See id. at 85. He testified that members of his crew would apply three layers of joint compound and would dry-sand one to three layers of the joint compound, depending on how skillful the workers were in applying the joint compound. See id. at 88–89. He testified that sanding joint compound was a dusty process. See id. at 88. He did not recall his father ever wearing a mask during this process. See id. at 90.
Dr. James Robb, a pathologist with board certification in Anatomic Pathology, Clinical Pathology, Dermatopathology, and Cytopathology, and who has written and lectured on the subject of cancer, including the cancer malignant mesothelioma, has reviewed the pathology materials and pertinent medical records of Ernest Derendinger. Dr. Robb diagnosed Ernest Derendinger as having suffered and having died from diffuse malignant mesothelioma, a form of cancer caused by exposure to asbestos. However, Dr. Robb is presently out of the county and is therefore unavailable to submit an affidavit outlining specific cause-in-fact opinions as to Union Carbide. Plaintiffs have attached an affidavit in accord with Missouri Rule of Civil Procedure 74.04(f), attesting Plaintiffs’ inability to present facts essential to justifying opposition to Defendant’s motion. See Affidavit of Jacqueline Montejano, attached to Plaintiffs’ Response to Defendant’s Motion for Summary Judgment and fully incorporated herein by reference marked as Exhibit 13. Plaintiffs accordingly request this Court to continue consideration of Defendant’s Motion to permit adequate time for Plaintiffs to acquire affidavits on the issue of causation.
Contrary to Defendant’s argument in its Memorandum of Law, Plaintiff has produced evidence that Mr. Derendinger was exposed to asbestos-containing products attributable to Defendant. Plaintiffs are therefore not proceeding under any market share or enterprise liability theory. As the Missouri Supreme Court explained in Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. banc 1984), “[s]trict liability in tort continues to provide a remedy to those plaintiffs who satisfy the identification requirement.” Id. at 247. Unlike the facts of Zafft, where Plaintiff had no idea which of approximately 100 pharmaceutical companies distributed the drug which caused Plaintiff’s injury, the Plaintiffs here fully satisfied the identification of several joint compound manufacturers to whom Union Carbide supplied raw Calidria asbestos.
Defendant argues that Plaintiff must show that Mr. Derendinger was “more likely than not” exposed to products associated with Defendant, effectively creating a new standard for summary judgment. Defendant does not and cannot offer a citation to support this standard. Since the summary judgment evidence raises a genuine issue of material fact with respect to whether asbestos-containing products manufactured, sold, distributed and/or installed by Defendant contributed to Mr. Derendinger’s mesothelioma, Defendants are not entitled to summary judgment.
3.The Summary Judgment Evidence Raises a Genuine Issue of Fact with Respect to Defendant’s Duty to Warn.
Defendant had a duty to warn users about the hazardous properties of Calidria.
Under Missouri law, “a manufacturer and/or distributor can be held strictly liable if injury results from its failure to provide an adequate warning of danger inherent in the use of the product it sells.” Grady v. American Optical Corp., 702 S.W.2d 911, 915 (Mo. Ct. App. 1985). Defendant, as the supplier of raw Calidria asbestos, may be held strictly liable under this theory. See Gunderson v. Sani-Kem Corp., 674 S.W.2d 665, 668 (Mo. Ct. App. 1984) (explaining that “liability is imposed on all those in the chain of placing a defective product in the stream of commerce” under Restatement, Second, of Torts § 402A).
Defendant invokes the “bulk supplier” doctrine to argue that Plaintiff may not hold Defendant strictly liable since Defendant allegedly warned the manufacturers who incorporated Calidria into their products of its dangers. Defendant is not entitled to summary judgment on these grounds, however, since a genuine issue of material fact remains as to the adequacy of these warnings. In failure to warn claims, the adequacy of a Defendant’s warnings for is a question of fact for the jury to decide. See Bine v. Sterling Drug, Inc., 422 S.W.2d 623, 626–27 (Mo. 1968). See also Urena v. Biro Mfg. Co., 114 F.3d 359, 366 (2d Cir. 1997) (“The adequacy of the instruction or warning is generally a question of fact to be determined at trial and is not ordinarily susceptible to the drastic remedy of summary judgment.”). A fact question remains as to whether Defendant, as the supplier of an asbestos-containing product, “provide[d] adequate instructions to the distributor next in line or ascertain[ed] that the distributor [was] informed as to the nature of the product and [was] in a position to convey the information so that the ultimate consumer [was] apprised of the dangerous propensity of the product.” Donahue v. Phillips Petroleum Co., 866 F.2d 1008, 1012 (8th Cir.1989) (applying Missouri law). In the sole case which Defendant cites in its motion, the Missouri Supreme Court held that the defendant in that case was not liable because the plaintiff had presented no evidence at trial that the defendant had failed to give an adequate warning. See Morris v. Shell Oil Co., 467 S.W.2d 39, 42 (Mo. 1971). Morris is not applicable in this summary judgment context since a fact issue remains as to whether the warnings that Defendant allegedly gave to the manufacturers were adequate.
Defendant also argues that, under the “sophisticated user” doctrine, it had no duty to warn Ernest Derendinger, as the end user of its asbestos-containing product, since it allegedly warned the manufacturer of the hazards of its product. Courts in Missouri, however, have soundly rejected this argument. In Donahue, the Eight Circuit Court of Appeals, applying Missouri law, held that the “sophisticated user” doctrine could not be “invoked in tandem with the ‘bulk supplier’ doctrine to excuse [the supplier] from strict liability because it claims that its immediate purchaser should have known of the dangers of the product.” See 866 F.2d at 1012. The court noted that the critical question remained whether the ultimate user of the product was warned of the product’s dangers:
Even if Williams Pipeline could be viewed as a sophisticated user (a proposition that, based on the evidence in this case, strikes us as being extremely doubtful), the ultimate users were the Donahues, and there is no evidence whatsoever that they either knew or could reasonably have been expected to know of ethyl mercaptan's propensity toward odor fade.
See id. See also Menschik v. Mid-America Pipeline Co., 812 S.W.2d 861, 864 (Mo. Ct. App. 1991) (citing Donahue and holding that the “learned intermediary doctrine did not apply in Missouri). Since a fact issue remains in this case as to whether Mr. Derendinger, as the end user of products which contained Defendant’s Calidria asbestos, knew or could reasonably have been expected to know of Calidria’s dangers, summary judgment is inappropriate in this case.
Defendant’s misrepresentations preclude any “Bulk Supplier” Defense.
Even if this Court were to find that the “bulk supplier” and “sophisticated user” doctrines apply in this case, summary judgment would still not be available because a fact issue remains as to whether the warnings given were inadequate and misleading. Under section 402B of the Restatement (Second) of Torts, inaccurate representations about a product are actionable regardless of whether the misrepresentations are fraudulently or negligently made. Crocker v. Winthrop Laboratories, Division of Sterling Drug, Inc., 514 S.W.2d 429, 431 (Tex.1974). In this case, the summary judgment evidence demonstrates that Union Carbide deliberately, actively and consistently misrepresented the dangerous properties of Calidria. Union Carbide represented to its customers that it had performed “extensive medical tests on this asbestos (Calidria RG-144)” and gave an “assurance [that] it is non-carcinogenic.” See letter from M.K. Smith of the Castor Oil Company to DuPont Company, dated July 5, 1972, attached as Exhibit A. However, Union Carbide was aware as early as 1967 that the threshold limit value of 5 million particles per cubic foot would probably “not be acceptable for the prevention of mesothelioma.” See letter from C.U. Dernehl, M.D. of Union Carbide Corporation to Dr. T.J. Hall of Union Carbide Europa, dated June 7, 1967, attached as Exhibit B. Yet Union Carbide continued to advise customers that “[a]sbestos is proven to be harmful only when TLVs are exceeded for 10-30 years” and “[i]t is not a proven fact that asbestos dust causes cancer when regulations are observed.” See Union Carbide Internal Correspondence from John Myers to J.W. Rawlings, dated Feb. 7, 1972, attached as Exhibit C. In response to specific customer inquiries about whether asbestos was a carcinogen, Union Carbide produced a carefully worded reply informing customers that asbestos was not listed as a carcinogen in certain OSHA regulations. See Union Carbide Memorandum from G.G. Blankfard, dated Nov. 14, 1973, attached as Exhibit D. A reasonable jury could certainly conclude that the intention of Union Carbide’s statement was to convey the false impression that asbestos was not carcinogenic.
Union Carbide produced a report titled, “The Safe Use of Calidria RG-244" that its own medical department found to be misleading in several respects. See Union Carbide Internal Correspondence from Assitant medicla Director, K.S. Lane to Robert F. S. Fusaro, dated May 22, 1973, attached as Exhibit E. In presentations to trade groups, Union Carbide conveyed the message that “asbestos is like many of the materials they deal with and can be hazardous if not handled properly, but it is not too difficult to use safely.” See Union Carbide Memorandum from H.B. Rhodes, dated July 10, 1975, attached as Exhibit F. Union Carbide claimed to have “sufficient toxicological data that places Calidria in the nuisance dust category.” Memorandum dated Oct. 16, 1974, attached as Exhibit G. To buttress its false representations, Union Carbide published studies that substantially understated the asbestos exposure associated with sanding joint compounds. See, e.g., Verma & Middleton, Occupational Exposure to Asbestos in the Drywall Taping Process, J. Am. Indus. Hygiene Ass’n 41:264, 267 & n.10 (1980) (reporting asbestos concentrations “considerably higher” than the results of the Rhodes study commissioned by Union Carbide). Based on its skewed studies, Union Carbide informed its customers that only a “minute amount” of asbestos was released during sanding. See Union Carbide memorandum from J.E. Walsh,dated May 19, 1975, attached as Exhibit H.
While Union Carbide was falsely claiming that its product fell in the “nuisance dust” category, its own research revealed that Calidria was potentially “more hazardous to use” than other forms of asbestos. See letter from C.U. Dernehl, M.D. of Union Carbide Corporation to Dr. T.J. Hall of Union Carbide Europa, dated June 7, 1967, attached as Exhibit B supra. In 1966, Union Carbide commissioned studies at the Mellon Institute that demonstrated the serious health hazards associated with Calidria. See Mellon Institute Special Report, dated July 8, 1966 attached as Exhibit I. Union Carbide concealed this knowledge and misrepresented its product’s hazards. Union Carbide was well aware that concerns about the toxicity of Calidria asbestos could be “a major deterrent to future sales of the product.” See Union Carbide Memorandum from G.G. Blankfard, dated Nov. 14, 1973, attached as Exhibit D supra. Among other things, Union Carbide’s customers feared that unions would not permit the use of Calidria asbestos “once its hazards are known.” Id. Union Carbide recognized the need to “put[] together as strong a story as we can on the subject.” Id. Unfortunately the “story” Union Carbide put together was untrue.
The fact issues surrounding Union Carbide’s conduct preclude summary judgment on its “bulk supplier” defense. Indeed, it is highly questionable whether Union Carbide can produce sufficient evidence to sustain such a defense at trial. In any event, Union Carbide’s liability for the Plaintiff’s asbestos-related injuries is a question for the jury.
CONCLUSION
Plaintiffs have produced evidence that raises genuine issues of material fact with respect to Defendant’s responsibility for Mr. Derendinger’s mesothelioma. Defendant’s motion should be denied in its entirety.
Respectfully Submitted,
- ↑ Even if this Court were to adopt the unwieldy Lohrmann standard in this case, the record must be read in the light most favorable to Plaintiff, the non-movant in this case. Hurwitz v. Kohm, 516 S.W.2d 33, 36 (Mo. Ct. App. 1974).