Foucha v. CertainTeed Corp. (In re Asbestos Litigation, 2011)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, May 31, 2011).

Raymond Foucha was diagnosed with mesothelioma in February 2010. He and his wife sued several companies, including CertainTeed Corp., claiming they exposed him to asbestos. The claim against CertainTeed concerned non-occupational roofing work in Louisiana. Foucha testified that in 1965 and 1969, after Hurricanes Betsy and Camille, he helped his father repair roofs on the family camp house and a shed using CertainTeed three-tab asphalt shingles. He believed the shingles contained asbestos because of "common knowledge" that many shingles of that era did, but admitted he had no personal knowledge of it. CertainTeed moved for summary judgment, offering an affidavit and interrogatory answers saying its three-tab asphalt shingles sold through 1972 had no asbestos. Plaintiffs did not dispute that evidence and pointed instead to other CertainTeed roofing products containing asbestos. Applying Louisiana law, the Delaware Superior Court held that those other products were irrelevant and that Foucha's belief was speculation. It granted summary judgment for CertainTeed.

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: May 31, 2011
• Stage: Summary judgment
• State: Delaware

Outcome. 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.

What the court held. Under Louisiana law, a plaintiff must show exposure to asbestos from the specific defendant's product; a belief based on general "common knowledge" that shingles contained asbestos, against unrebutted evidence that the particular product was asbestos-free, is speculation that cannot defeat summary judgment.

Issues decided: Causation, Choice of Law, Product Identification.

The people and their exposure

• Raymond Foucha: mesothelioma

The defendants

• CertainTeed Corp. (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.
• Freeman v. Georgia-Pacific (In re Asbestos Litigation) (January 13, 2011). 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.
• 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. 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:

• McAskill v. American Marine Holding Co. (Louisiana Court of Appeals, 4th Circuit, 2009). The Louisiana Court of Appeal reversed the trial court's summary judgment for Eagle, Branton and Commercial Union and remanded for further proceedings, so plaintiff McAskill's claims go forward.

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: Foucha, Raymond.

C.A. No. N10C-05-042 ASB.

May 31, 2011.

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge.

Plaintiff Raymond Foucha ("Foucha") was diagnosed with mesothelioma in February 2010. Foucha and his wife, Sussanah Foucha, filed this action against various defendants that they allege are responsible for exposing Foucha to asbestos products and thereby causing his mesothelioma. Plaintiffs' claims against CertainTeed Corp. ("CertainTeed") relate to non-occupational roofing work in Louisiana in the mid- to late-1960s. During his deposition, Foucha testified to using CertainTeed roofing shingles while assisting his father with roof repairs on three different occasions: (1) replacing a combined ten-foot-by-ten-foot area of roofing on the family's "camp" house after Hurricane Betsy in 1965; (2) replacing the roof on a shed at the family's primary residence after Hurricane Betsy; and (3) re-shingling a smaller area of the "camp" house roof that was damaged by Hurricane Camille in 1969.

Foucha described the CertainTeed shingles that he and his father used during these repair jobs as long rectangles with three "separate pieces" or "tabs" on them.[1] Foucha recollected that the shingles were asphalt-based seal tab shingles.[2] He believed they were asbestos-containing based upon "common knowledge" that "a lot of shingles" during that time period utilized asbestos, although he conceded that he had no personal knowledge as to the asbestos content of the CertainTeed shingles.[3]

CertainTeed has moved for summary judgment on the basis that Plaintiffs cannot establish exposure to any asbestos-containing CertainTeed products. In support of its position, CertainTeed submits an affidavit from its associate general counsel, Charles B. Blakinger, provided for a Pennsylvania asbestos case. Blakinger states that CertainTeed's three-tab shingles were asbestos-free except for a period from 1973 to 1974, when CertainTeed produced a three-tab fiberglass shingle that included asbestos.[4] Blakinger also notes that CertainTeed sold another manufacturer's asbestos-containing asphalt shingling from 1966 to 1972, but those shingles were not three-tab shingles and would not match the physical description of a three-tab shingle.[5]

In response, Plaintiffs argue that Foucha identified the CertainTeed shingles as asbestos-containing during his deposition and emphasize that CertainTeed "manufactured and sold a number of asbestos-containing roofing products" during the period of Foucha's alleged exposures.[6] According to Plaintiffs, Foucha's deposition testimony satisfies the applicable substantial factor causation standard, because it demonstrates that he "was exposed to asbestos from CertainTeed shingles on numerous occasions."[7]

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.[8] Initially, the burden is placed upon the moving party to demonstrate that its legal claims are supported by the undisputed facts.[9] If the proponent properly supports its 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."[10] Summary judgment will only be granted if, after viewing the evidence in the light most favorable to the non-moving party, no material factual disputes exist and judgment as a matter of law is appropriate.[11]

The parties agree that Louisiana substantive law applies to this case. Under Louisiana law, the plaintiff in a multi-defendant asbestos-exposure action must establish "that the defendant's asbestos-containing product was a substantial factor in causing his alleged disease."[12] A plaintiff may satisfy this burden "by simply showing that he was actively working with asbestos-containing materials."[13]

Here, Plaintiffs have shown (and CertainTeed has conceded) that Foucha worked directly with CertainTeed shingles. However, Plaintiffs lack evidence from which a fact-finder could reasonably infer that Foucha was exposed to an asbestos-containing CertainTeed product. During his deposition, Foucha described working with a three-tab asphalt shingle on all three roofing projects for which he recalled using CertainTeed shingles. Because each project occurred soon after a major hurricane, Foucha's testimony is unusually specific in placing the repair work in the years from 1965 to 1969. Even allowing for the possibility that the shingles may have been purchased before 1965, both Blakinger's affidavit and CertainTeed's interrogatory responses indicate that none of the three-tab asphalt shingles manufactured or sold by CertainTeed through 1972 contained asbestos. Plaintiffs' opposition brief does not dispute or even address this evidence, but rather highlights interrogatory responses establishing that CertainTeed manufactured other asbestos-containing roofing products. Contrary to Plaintiffs' position, the asbestos content of CertainTeed roofing products that were not identified by Foucha is irrelevant. As a central element of their case, Plaintiffs must be able to establish that Foucha "was exposed to asbestos from the defendant's products."[14] Foucha's belief that the CertainTeed three-tab shingles he used were asbestos-containing is speculation based upon "common knowledge" about shingles generally; CertainTeed presented evidence that this "knowledge," even if admissible, would not apply to the particular product at issue in this case. CertainTeed's showing shifted the burden to Plaintiffs to demonstrate the existence of a material factual dispute. Because Plaintiffs' evidence is insufficient to support a reasonable inference that Foucha was exposed to asbestos from CertainTeed three-tab shingles, they have not met that burden. Accordingly, Defendant CertainTeed Corp.'s Motion for Summary Judgment is hereby GRANTED.

IT IS SO ORDERED.

[1] Raymond Foucha, Discovery Dep., July 13, 2010, at 174:13:19.

[2] Id. at 174:20-22; 175:24-176:2.

[3] Id. at 182:20-183:13.

[4] Charles B. Blakinger Aff. ¶¶ 6, 8.

[5] Id. ¶ 5.

[6] Pls.' Opp'n to Def. CertainTeed's Mot. for Summ. J. 2.

[7] Id. at 5.

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

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

[10] Id. at 880.

[11] Id. at 879-80.

[12] McAskill v. Am. Marine Holding Co., 9 So.3d 264, 268 (La. Ct. App. 2009); see also Vodanovich v. A.P. Green Indus., Inc., 869 So.2d 930, 932 (La. Ct. App. 2004).

[13] McAskill, 9 So.3d at 268.

[14] Vodanovich, 869 So.2d at 932 ("To prevail, a plaintiff in an asbestos case must show, by a preponderance of the evidence, that he was exposed to asbestos from the defendant's products, and that he received an injury that was substantially caused by that exposure.").

Sources

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