Freeman v. Georgia-Pacific (In re Asbestos Litigation, 2011)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, January 13, 2011).

Wilburn Freeman died of mesothelioma in September 2009. His wife and the representative of his estate sued several defendants, saying his work and non-work exposures to asbestos-containing products caused the disease. Freeman was not deposed before he died, but his son Jackie testified about renovation and construction projects the family did in North Carolina in the 1960s and 1970s. Jackie said his father used a Georgia-Pacific pre-mixed joint compound on each project, sold in a white plastic bucket with a green triangle "GP" logo. Georgia-Pacific asked for summary judgment. It argued that it did not sell its joint compound in plastic buckets nationally until 1978, after asbestos was removed, and that it did not sell pre-mixed compound until 1965. Plaintiffs pointed to Georgia-Pacific's discovery answers in other cases saying Ready Mix was sold in buckets from 1963 to 1977. The court denied the motion. It found a genuine dispute about which product Freeman was exposed to, including whether Jackie misremembered the packaging. It held that this depended on the witness's credibility, which is for the jury to decide.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Delaware Superior Court
• Decided: January 13, 2011
• Stage: Summary judgment
• State: Delaware

Outcome. The court denied Georgia-Pacific's motion for summary judgment because plaintiffs raised a genuine dispute of fact about whether Wilburn Freeman was exposed to Georgia-Pacific's asbestos-containing joint compound.

What the court held. Under North Carolina law a plaintiff must show actual exposure to the defendant's asbestos-containing product; conflicting evidence about the product's dates and packaging, turning on a witness's credibility, is a jury question that precludes summary judgment.

Issues decided: Choice of Law, Product Identification.

The people and their exposure

• Wilburn Freeman: mesothelioma; died

The defendants

• Georgia-Pacific LLC (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• In re Asbestos Litigation (May 9, 2006). The court denied DaimlerChrysler's motion in limine to exclude the plaintiffs' experts on general causation, so the plaintiffs' experts may testify that automotive friction products increase the risk of asbestosis, lung cancer and mesothelioma.
• Grenier v. General Motors Corp. (In re Asbestos Litigation) (April 8, 2009). On remand from the Delaware Supreme Court, the Superior Court concluded that, despite factual errors in its earlier opinion, it properly denied General Motors' and Ford's motion to exclude plaintiffs' general causation expert testimony, so Grenier's experts remained admissible.
• Olson v. Crane Co. (In re Asbestos Litigation) (January 18, 2011). The Delaware Superior Court granted summary judgment to defendants Crane Co. and CBS Corp. (Westinghouse) against plaintiffs, holding Idaho law would not make them liable for other manufacturers' asbestos-containing parts.
• Cruz v. Georgia-Pacific (In re Asbestos Litigation) (January 19, 2011). The court granted Georgia-Pacific's motion for summary judgment, ruling that plaintiffs could not show under Texas law that exposure to its Ready Mix joint compound was a substantial factor in causing Cruz's mesothelioma.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (February 14, 2011). The court granted Pneumo Abex's summary judgment motion on the survival action as time-barred, but denied it on the wrongful death claim, which was timely and had factual disputes on causation and product identification.
• James v. Albany Int'l (In re Asbestos Litigation) (February 16, 2011). The court granted Albany International's motion for summary judgment against plaintiff Charlene James because there was no non-speculative evidence that Robert James was exposed to an asbestos-containing Albany product.
• Newman v. Avocet Enterprises (In re Asbestos Litigation) (March 15, 2011). The court denied Avocet Enterprises' motion for summary judgment on the Newmans' remaining claims, because Newman's testimony about using Ventbestos raised a factual dispute on causation, and found the motion moot as to the withdrawn conspiracy claim.
• Henderson v. Dana Companies (In re Asbestos Litigation) (March 22, 2011). The court granted in part and denied in part the plaintiffs' post-trial motion for costs against Dana and Zoom, awarding $14,597.12 in costs plus pre- and post-judgment interest.
• Foucha v. CertainTeed Corp. (In re Asbestos Litigation) (May 31, 2011). The court granted CertainTeed Corp.'s motion for summary judgment, ruling against plaintiffs Raymond and Sussanah Foucha because they lacked evidence that he was exposed to an asbestos-containing CertainTeed product.
• Foucha v. Georgia-Pacific (In re Asbestos Litigation) (June 3, 2011). The court granted Georgia-Pacific's motion for summary judgment against Raymond and Sussanah Foucha because they could not show without speculation that Foucha was exposed to asbestos from Georgia-Pacific joint compound.
• Bowser v. Parker-Hannifin Corp. (In re Asbestos Litigation) (June 3, 2011). The court granted Parker-Hannifin's summary judgment motion in part (strict liability count and helicopter brake exposures before 1967) and denied it as to the airplane brake claims, so Plaintiff Jenny Bowser's remaining claims proceed.
• Davis v. Crane Co. (In re Asbestos Litigation) (June 7, 2011). The court granted Crane Co.'s motion for summary judgment against plaintiff Wesley Davis, finding he had not shown Crane-supplied asbestos products were a substantial factor in causing his mesothelioma.
• Clineff v. BP Amoco Chemical Co. (In re Asbestos Litigation) (July 8, 2011). The court granted summary judgment to BP Amoco Chemical Company, BP Corporation North America Inc., and Kvaerner U.S. Inc. because the plaintiffs' claims were filed after the two-year limitations period expired.
• Gordon v. Dana Companies (In re Asbestos Litigation) (November 16, 2011). The court granted summary judgment to Dana (Victor gaskets) and UOP, and denied summary judgment to Elliott, Armstrong and Born, so the plaintiffs' claims against those three go forward.
• McCoy v. PolyVision Corp. (In re Asbestos Litigation) (February 21, 2012). The court granted summary judgment to PolyVision Corp. against Janine and Marvin McCoy, predicting Pennsylvania law imposes no duty on an employer or premises owner to an employee's spouse for take-home asbestos exposure.
• Galliher v. R. T. Vanderbilt (In re Asbestos Litigation) (May 9, 2012). The court allowed plaintiff's late-disclosed geologist (Fitzgerald) to testify, excluded plaintiff's other late expert (Dr. Rigler), continued the trial to July 16, 2012 so defendant R. T. Vanderbilt could develop rebuttal evidence, and sanctioned defendant's out-of-state counsel $5000.
• Farrall v. Ford Motor Co. (In re Asbestos Litigation) (August 19, 2013). The court denied the plaintiff's motion for reargument, leaving in place its grant of summary judgment for Ford Motor Company on the failure to warn claim about asbestos-containing replacement parts.
• Muse v. Honeywell Int'l (In re Asbestos Litigation) (December 31, 2014). The court denied the plaintiffs' motion for reargument, leaving in place summary judgment for Honeywell International Inc. against James Muse and Clarice Roberts-Muse.
• Harris v. Deere & Co. (In re Asbestos Litigation) (May 10, 2017). The court granted Deere & Company's motion for summary judgment, ruling for Deere against the plaintiff, because under North Carolina law the plaintiff offered no evidence beyond speculation that the asbestos-containing parts he worked on were made or sold by Deere.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (August 30, 2017). The court granted Air Products and Chemicals Inc.'s motion for summary judgment on the negligence, strict liability and wrongful death claims, ruling against plaintiff Sandra Kivell.
• Kivell v. Union Carbide Corp. (In re Asbestos Litigation) (August 30, 2017). The Delaware Superior Court granted Union Carbide's motion for summary judgment on Sandra Kivell's negligence and strict liability claims, so Union Carbide won and the plaintiff lost.
• Kivell v. Murphy Oil USA (In re Asbestos Litigation) (August 30, 2017). The court granted Murphy Oil USA Inc.'s motion for summary judgment on the negligence and strict liability claims brought by Sandra Kivell, so the plaintiff lost.
• Walsh v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (October 27, 2017). The court granted summary judgment to Air & Liquid Systems Corp. (successor to Buffalo Pumps) against plaintiffs Phillip and Naomi Walsh, finding no evidence Mr. Walsh was exposed to asbestos parts the defendant was responsible for.
• Leathers v. Pneumo Abex (In re Asbestos Litigation) (November 8, 2017). The court denied Pneumo Abex LLC's motion for summary judgment, so plaintiff Raymond Leathers' claims against Abex go forward to trial.
• Walsh v. Aurora Pump Co. (In re Asbestos Litigation) (November 29, 2017). The court granted Aurora Pump Company's motion for summary judgment against Phillip and Naomi Walsh because they did not show that Mr. Walsh was exposed to asbestos from Aurora's products.
• Sykes v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (February 7, 2018). The Superior Court affirmed the Special Master's order excluding William Don Sykes's videotaped trial deposition at trial, a ruling for the defendants and against the plaintiff estate.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (March 26, 2018). The court granted Georgia Pacific's motion for judgment on the pleadings, holding that Sandra Kivell's wrongful death and survival claims were time barred under Louisiana's one-year limit.
• Richards v. Copes-Vulcan (In re Asbestos Litigation) (August 8, 2018). The court denied the Richards plaintiffs' motion for leave to supplement their expert's report and for reargument, leaving in place summary judgment for Copes-Vulcan, Fairbanks, Ford and Goodyear.
• Call v. Ford Motor Co. (In re Asbestos Litigation) (December 12, 2018). The court granted Ford Motor Company's motion for summary judgment against plaintiff Marilyn Kay Call, holding Indiana's "but for" causation standard applies and her expert's opinion did not meet it.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (January 31, 2019). The Delaware Superior Court denied Ford Motor Company's renewed motion for judgment as a matter of law, its alternative motion for a new trial, and its motion for a new trial or remittitur, leaving the plaintiff's jury verdict in place.
• Rowland v. Union Carbide Corp. (In re Asbestos Litigation) (April 24, 2019). The Delaware Superior Court granted Union Carbide's motion for summary judgment against Jane and Douglas Rowland because they could not show that the joint compound they used contained Union Carbide's asbestos.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (March 3, 2020). On remand from the Delaware Supreme Court, the Superior Court denied Ford Motor Company's motion for a new trial or remittitur, leaving the $40.625 million compensatory verdict for Paula Knecht in place.
• Petit v. Hennessy Indus. (In re Asbestos Litigation) (August 31, 2020). The Delaware Superior Court granted Hennessy Industries' motion for summary judgment against the Petit plaintiffs, because plaintiff did not show exposure to asbestos-containing brakes or to friable asbestos with the AMMCO machines.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (December 23, 2020). The court denied Heidelberg USA's summary judgment motion on causation, statute of repose and product misuse, and granted it only on the willful and wanton conduct claim, which Mrs. Pearsons did not contest.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 11, 2023). The court denied Hennessy Industries' motion for reargument, so its earlier oral denial of summary judgment on the duty-to-warn claim stood and the plaintiff, Lisa Estrada, prevailed on this motion.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 25, 2023). The Superior Court denied defendant Hennessy Industries' request to certify an interlocutory appeal to the Delaware Supreme Court of the earlier denial of its summary judgment motion, so plaintiff Estrada prevailed on this request.
• Braxton v. J-M Mfg. Co. (In re Asbestos Litigation) (December 17, 2024). The court granted defendant J-M Manufacturing's motion for leave to designate responsible third parties, rejecting plaintiff Braxton's objections on pleading sufficiency, limitations timing and bankruptcy proofs of claim.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Wilder v. Amatex Corp. (North Carolina Supreme Court, 1985). The North Carolina Supreme Court reversed the summary judgments for Owens-Corning and for the other defendant appellees, ruling for plaintiff J.W. Wilder against Owens-Corning, Eagle-Picher, Pittsburgh Corning, Celotex, Keene and Starr-Davis.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

IN RE: ASBESTOS LITIGATION

Limited to: FREEMAN, WILBURN

C.A. No. 09C-12-232 ASB

January 13, 2011.

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge.

This 13th day of January, 2011, it appears to the Court that:

1. Wilburn Freeman died of mesothelioma in September 2009. Plaintiffs, Freeman's wife and the representative of his estate, brought the instant action alleging, inter alia, that Freeman's occupational and non-occupational exposures to asbestos-containing products manufactured or supplied by certain of the defendants caused his mesothelioma. Although Freeman passed away prior to being deposed, his son Jackie testified regarding renovation and construction projects his father undertook in the 1960s and 1970s, when the family lived in North Carolina.

2. According to Jackie, he was recruited by his father to assist with construction work from 1961, when he was six years old. During his deposition, Jackie recalled assisting Wilburn on more than a dozen specific projects. The particular jobs described in Jackie's deposition spanned a time period from approximately 1963, when Jackie would have been eight years old, to 1975. Jackie recounted that for each of the projects, his father used a Georgia-Pacific pre-mixed joint compound. He further recalled that the joint compound was always packaged in a white tub- or bucket-type plastic container bearing a green triangle logo with a "GP" label.

3. Defendant Georgia-Pacific LLC ("Georgia-Pacific") moves for summary judgment on the basis that Plaintiffs cannot establish that their decedent was exposed to an asbestos-containing Georgia-Pacific product. Georgia-Pacific has supplied an affidavit from Howard A. Schutte, a former Georgia-Pacific employee, stating that "Georgia-Pacific did not place Ready Mix joint compound on the market for national distribution in plastic pails or buckets until 1978, after asbestos was removed from Ready Mix."[1] Furthermore, Georgia-Pacific contends that the joint compound Jackie Freeman described cannot be its product, because it did not begin distributing a pre-mixed joint compound until 1965, and Jackie recounted working on projects with Wilburn as early as 1961.

4. In response, Plaintiffs point to interrogatory responses drafted or filed by Georgia-Pacific in other jurisdictions, in which Georgia-Pacific states that its Ready Mix joint compound was sold from 1963 to 1977 and packaged in buckets or pails. Furthermore, Plaintiffs emphasize that although Jackie testified generally about assisting his father with construction work as early as 1961, he described his father's use of Georgia-Pacific joint compound in the context of specific projects that began in 1965, when Georgia-Pacific Ready Mix was on the market.

5. When considering a motion for summary judgment, the Court examines the record to ascertain whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law.[2] Initially, the burden is placed upon the moving party to demonstrate that his legal claims are supported by the undisputed facts.[3] If the proponent properly supports his claims, the burden "shifts to the non-moving party to demonstrate that there are material issues of fact for resolution by the ultimate fact-finder."[4] Summary judgment will only be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are no material facts in dispute and judgment as a matter of law is appropriate.[5]

6. Under North Carolina law, the plaintiff in an asbestos suit must be able to demonstrate actual exposure to an asbestos-containing product manufactured, sold, or distributed by the defendant.[6] Upon review of the record, the Court concludes that Plaintiffs have raised a genuine dispute of material fact as to the identification of the joint compound to which Wilburn Freeman was exposed during the projects described by his son, such that summary judgment would be inappropriate. The specific projects Jackie Freeman associated with his father's exposure to Georgia-Pacific joint compound were not all assigned precise dates, but Jackie described the earliest as occurring in or around 1965, when Ready Mix was marketed as

a Georgia-Pacific product. Jackie clearly and repeatedly identified the joint compound his father used as a Georgia-Pacific product, and Georgia-Pacific has not disputed for the purposes of this motion that its Ready Mix joint compound contained asbestos until at least 1973. Georgia-Pacific nonetheless contends that either Jackie "was correct about the years during which he and Decedent worked with joint compound packaged in plastic buckets but has mis-identified Georgia-Pacific, or [he] was correct that he and Decedent used Georgia-Pacific joint compound, but was mistaken about the years during which they used it" and has therefore described containers of asbestos-free Georgia-Pacific product.[7] This characterization of the record is a false dichotomy which ignores several alternative possibilities. Even if the Court accepts arguendo Georgia-Pacific's position that the Shutte affidavit is "uncontroverted," it does not establish Georgia-Pacific's entitlement to summary judgment. Georgia-Pacific asserts that it did not sell pails or buckets of Ready Mix on the East Coast until 1978, but the containers the Freemans used may not have traveled through the normal distribution channels. Furthermore, although the Court will not deny summary judgment on the basis that a witness might provide testimony at trial that completely contradicts his discovery deposition testimony, and does not do so in this case, it is cognizant of the unusually lengthy gaps in time between exposure and disease that arise in mesothelioma cases. It does not appear from his deposition that Jackie Freeman's identification of the joint compound as a GeorgiaP-acific product stemmed wholly from the packaging. Under the circumstances, a jury could reasonably conclude that Jackie, who was revisiting events which occurred in his childhood and early adolescence more than thirty-five years ago, correctly recalled the time period, the Georgia-Pacific product, and the logo, but inaccurately described or misremembered the packaging in use during the relevant timeframe. 7. Plaintiffs have presented evidence from which a jury could reasonably conclude that Wilburn Freeman experienced significant exposures to an asbestos-containing Georgia-Pacific product; by its motion, Georgia-Pacific has presented evidence from which a jury could reach the opposite conclusion. The issues raised by Georgia-Pacific amount to a product-identification dispute that hinges upon the credibility of Plaintiffs' witness. Such credibility determinations are within the province of the jury, not the Court.

8. For the foregoing reasons, Defendant Georgia-Pacific LLC's Motion for Summary Judgment is hereby DENIED. IT IS SO ORDERED.

[1] Schutte Aff. ¶ 7.

[2] Super. Ct. Civ. R. 56(c).

[3] E.g., Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879 (Del. Super. 2005).

[4] Id. at 880.

[5] Id. at 879-80.

[6] Wilder v. Amatex Corp., 336 S.E.2d 66, 67-68 (N.C. 1985).

[7] Georgia-Pacific's Mot. for Summ. J. 7.

Sources

• The opinion on Google Scholar
• Delaware asbestos laws
• Delaware asbestos exposure sites