Superior Court of Delaware, April 5, 2019

DELAWARE — In Werner Rath v. 3M Company, et al., the court ruled on a defendant Oyj Partek Ab’s (Partek) motion for summary judgment. The plaintiff alleged occupational exposure to asbestos while working as a union carpenter at a number of industrial sites in Delaware and New Jersey. One week before the plaintiff’s deposition was scheduled to take place, the plaintiff’s counsel filed a motion for leave to amend to file an amended complaint joining additional defendants, including Partek. Partek was one, non-exclusive supplier of asbestos used at one of the plants (subject plant) where the plaintiff alleged exposure from December 1964 through May 1975. The plaintiff also alleged environmental exposure, in that the plaintiff was exposed to asbestos fibers environmentally while living at his home between 1962 and 1973. His home address was in close proximity to the subject plant, being three-quarters of a mile away from the plant.

The plaintiff filed a witness and exhibit list, listing various witnesses, including a meteorologist to provide wind estimations related to the environmental claim. The meteorologist issued a report in the case regarding the average wind conditions in the vicinity of the subject plant from September 1964 through January 1972 to estimate the exposure that the plaintiff had to asbestos from the subject plant during that time period. The analysis took into consideration data that suggested that the wind would have blown from the subject plant towards the plaintiff’s residence an average of 810 to 875 hours per year, or approximately 10 percent of the time.

When analyzing the meteorologist’s opinions, the court held that it did not suggest that any asbestos from the subject plant traveled to the plaintiff’s house to support the environmental exposure claim. The determination was limited to opine the direction in which the wind generally blew, and was based on the meteorologist’s understanding, but not his opinion, that asbestos was used extensively at the subject plant. The court specifically held that in order to support the environmental exposure claim, the plaintiff must establish that he was exposed to asbestos at his home. The meteorologist’s finding that wind would have blown from the subject plant towards the plaintiff’s home approximately 10 percent of the time did not establish that any asbestos product, let alone the products associated with the moving defendant, was released in the wind.

Under Delaware law, the court held that the plaintiff failed to establish product nexus and to provide evidence that created a general issue of material fact of whether the plaintiff was exposed to asbestos from an asbestos-containing product associated with Partek. Furthermore, the court held that reliance on the meteorologist’s report required impermissible speculation. Since the plaintiff failed to present evidence from which a jury could reasonably infer, without undue speculation, that the plaintiff was exposed to asbestos-containing products produced by Partek, summary judgment was appropriate.

Only the Westlaw citation is currently available at 2019 WL 1504397.