Lempert v. CertainTeed Corporation

• Court: Superior Court of Delaware
• Decided: September 12, 2017
• Docket: N15C-05-221 ASB
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN RE: ASBESTOS LITIGATION

THELMA LEMPERT, individually and ) as Personal Representative of the Estate ) of HAROLD LEMPERT, deceased, ) ) Plaintiff, ) ) C.A. No. N15C-05-221 ASB v. ) ) CERTAINTEED CORPORATION et ) al., ) ) Defendants. )

Decided: August 30, 2017 Order Published: September 12, 2017

Upon Defendant CertainTeed’s Motion for Summary Judgment GRANTED.

ORDER

Plaintiff’s, Thelma Lempert (“Plaintiff”), claims cannot survive summary

judgment.1 Plaintiff claims that her husband, Harold Lempert (“Mr. Lempert”)

contracted asbestos related lung cancer from exposure to Defendant CertainTeed

Corporation’s (“Defendant”) asbestos-containing plaster, joint compound, and

1 Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del. Super. Dec. 30, 2013); see Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S., Inc., 517 A.2d 690, 692 (Del. Super. 1986); In re Asbestos Litigation (Helm), 2012 WL 3264925 (Del. Aug. 13, 2012). drywall products. Mr. Lempert installed plaster, drywall, and joint compound from

1952 until 2000. Mr. Lempert moved bags of plastering material and cleaned up his

father’s garage starting in 1944, and he continued to work on weekends until 1952.

In 1952 Mr. Lempert started apprentice school. At this time he began using plaster

products. Mr. Lempert went into the United States Army, and he was discharged in

1957. Once he was discharged, Mr. Lempert resumed his apprenticeship. Mr.

Lempert stated that he applied Bestwall plaster, CertainTeed plaster, CertainTeed

joint compound, Bestwall joint compound, and CertainTeed drywall.

Defendant first argues that Mr. Lempert did not recall using CertainTeed joint

compound until he completed his apprenticeship in 1958. Defendant presented

evidence that CertainTeed transferred all of its gypsum business to Bestwall Gypsum

company in 1956, and the only gypsum product it manufactured with asbestos was

drywall joint compound, acoustical plaster, and patching plaster. Defendant claims

that CertainTeed did not manufacture or supply any additional joint compound,

plaster, or drywall materials after this transfer to Bestwall. Defendant also states that

it sold only asbestos-free wall plaster until June 30, 1956. Additionally, Defendant

states that it manufactured drywall, or “wall board” under the name Bestwall until

June 30, 1956, and Defendant never marketed or sold any drywall under the

“CertainTeed” name. Defendant asserted that only one of the two joint compounds

Defendant sold until June 30, 1956 contained asbestos as an ingredient.

2 Defendant maintains that it is entitled to summary judgment because

Plaintiff’s claims against Defendant fail. First, Defendant argues that because it

exited the gypsum manufacturing business in 1956, and Mr. Lempert’s testimony

shows that he did not work with CertainTeed products until 1958, Mr. Lempert could

not have worked with a CertainTeed product. Plaintiff argues that Mr. Lempert, as

the only product identification witness, sufficiently identified working with

Defendant’s asbestos products. First, Plaintiff states that Mr. Lampert testified that

he used CertainTeed asbestos containing wall plaster prior to 1956. However,

Plaintiff’s assertion is not supported by the record Plaintiff provided, nor was the

portion of the deposition Plaintiff referred to attached to the Response Motion.2

Plaintiff also argues that Mr. Lempert identified CertainTeed Gypsum wallboards.

Again, this proposition was not supported by the record Plaintiff provided, nor was

portion of the deposition Plaintiff cited to attached to the Response.3 Defendant

points to numerous excerpts of Mr. Lempert’s testimony. Mr. Lempert stated that

he worked with CertainTeed wall boards after he completed his apprenticeship. Mr.

Lempert identified working with Defendant CertainTeed’s and Bestwall joint

compound. He started using this joint compound after he finished his apprenticeship.

2 See Plaintiff’s footnotes 22 through 25 referring to “Exhibit B.” 3 See Plaintiff’s footnotes 22 through 25 referring to “Exhibit B.” It does not appear that Mr. Lempert mentions Defendant CertainTeed as a product in any portion of the testimony that Plaintiff attached as Exhibit A or Exhibit B. 3 Plaintiff argues that a rational juror could determine that Mr. Lempert worked with

Defendant’s wallboard and plaster products which exposed him to asbestos.

Plaintiff’s claims against Defendant fail because Plaintiff is unable to show

that Mr. Lempert was exposed to asbestos from Defendant’s products beyond

speculation. Defendant offered evidence demonstrating that “the only gypsum-

related products that are known by CertainTeed to have been marketed by it and

have contained asbestos are drywall joint compounds, Kalite acoustical plaster, and

patching plaster.” Defendant presented evidence that its drywall joint compound

was discontinued on June 30, 1956, and Mr. Lempert recalled using joint compound

after his apprenticeship ended, which was in 1958. Thus, a rational juror could not

find that Mr. Lempert was exposed to asbestos from Defendant’s drywall joint

compound. Similarly, Defendant carried acoustical plaster, under the tradename

Kalite, and patching plaster which were both discontinued on June 30, 1956.

However, the dry powdered wall plasters sold in bags by CertainTeed did not contain

asbestos. CertainTeed manufactured plasters with asbestos and without asbestos.

Plaintiff did not offer evidence, beyond Mr. Lempert’s assumption, that the plaster

Mr. Lempert used contained asbestos. Thus, Plaintiff cannot show that Mr. Lempert

was exposed to an asbestos product manufactured by Defendant.

4 For the aforementioned reasons, Defendant CertainTeed’s Motion for

Summary Judgment is GRANTED.

IT IS SO ORDERED.

/s/ Calvin L. Scott The Honorable Calvin L. Scott, Jr.