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

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, June 3, 2011).

Raymond Foucha was diagnosed with mesothelioma in February 2010. He and his wife sued several defendants, including Georgia-Pacific, claiming his disease came from asbestos in their products. The claims against Georgia-Pacific concerned home renovation projects on which Foucha helped his father in the 1960s and 1970s. Foucha recalled working with joint compound on a garage conversion, a cabin build and a 1990s bathroom repair. He specifically recalled Georgia-Pacific compound only at the 1990s job, when, according to Georgia-Pacific, its product no longer contained asbestos. For the 1960s projects he could not say which brand was used, and his father kept the mixtures in unlabeled buckets. Georgia-Pacific asked for summary judgment. Applying Louisiana law, which the parties agreed governed, the court found that Foucha's conflicting testimony made his identification of Georgia-Pacific speculative. Without proof of exposure to its asbestos-containing product, the plaintiffs could not meet the substantial factor standard, so the court granted summary judgment to Georgia-Pacific.

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: June 3, 2011
• Stage: Summary judgment
• State: Delaware

Outcome. 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.

What the court held. Under Louisiana substantive law, a plaintiff must show that a defendant's product was a substantial factor in causing disease, and Delaware courts do not allow a plaintiff to proceed on speculative exposure to a defendant's product; conflicting, speculative product identification testimony does not create a genuine factual dispute.

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

The people and their exposure

• Raymond Foucha: mesothelioma

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.
• 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. 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.
• 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:

• Wilson v. AP Green Industries, Inc. (Pennsylvania Superior Court, 2002). The Superior Court affirmed the trial court's grant of summary judgment to Flintkote Co. against the administratrix of Dolly Chase's estate, finding no sufficient evidence that she was exposed to Flintkote Fibrex Cement.
• Abadie v. Metropolitan Life Ins. Co. (Louisiana Court of Appeals, 5th Circuit, 2001). The appeals court reversed the trial judge's JNOVs that had raised the seven plaintiffs' damage awards and reinstated the jury's awards, affirmed liability of Asbestos Corporation Limited and four Avondale safety officers (O'Donnell, Kennedy, Chantrey, Territo; not Chantrey as to Badeaux), reversed liability of two other officers (Kelmell, Roberts), and recalculated each judgment by virile shares, including the Johns-Manville trust and four of the settling manufacturers.
• Asbestos v. Bordelon, Inc. (Louisiana Court of Appeals, 4th Circuit, 1998). The court affirmed the jury verdicts for the plaintiffs against Owens-Corning Fiberglas (Kaylo insulation) and Rock Wool (One Shot cement), reversed the judgments against Garlock, A.W. Chesterton and Flexitallic, affirmed the judgments against Abadie, Naquin and Terrebonne and the dismissal of Plaisance's claim as prescribed, and ordered a virile-share reduction for Avondale's settlement that, on rehearing, applies only to Duronslet.

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.

June 3, 2011.

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge.

Plaintiff Raymond Foucha ("Foucha" or "Plaintiff") was diagnosed with mesothelioma in February 2010. As a result, Foucha and his wife, Sussanah Foucha, have sued various defendants in this action, claiming that they are responsible for exposing Foucha to asbestos from their products and thereby causing his mesothelioma. Plaintiffs' claims against Georgia-Pacific, LLC ("Georgia-Pacific") relate to non-occupational home renovation projects on which Foucha assisted his father in the 1960s and 1970s.

During his deposition, Foucha remembered a wide variety of home renovation projects in his life, but recalled only three in which he worked on or around joint compound: (1) conversion of a garage into living space at his Richland Road family home in the mid-1960s; (2) construction of the family's St. Tammany Parish Camp cabin in the early to mid-1960s; and (3) replacement of drywall in the bathroom at his Cherrywood Street home in the 1990s.

With the exception of the Cherrywood Street home, where Foucha specifically recalled using Georgia-Pacific joint compound, he could not identify any particular brand of joint compound used on any specific project. Although he originally testified that he worked with Georgia-Pacific and Bondex joint compound on the Richland Road garage-conversion project, and that he thought the Georgia-Pacific and Bondex brands were used by his father at the St. Tammany Parish Camp, he later admitted that he did not remember which brand he used on any particular project, or even whether he worked with joint compound to any extent at Richland Road or St. Tammany Parish Camp. He could not testify as to the percentage of time one brand may have been used versus the other. In fact, he had no real way of knowing which brand was used because his father repackaged the mixtures in buckets without labels.

Georgia-Pacific did not begin manufacturing joint compound until it purchased Bestwall Gypsum Co. and their product lines in 1965. From 1965 until 1973, Georgia-Pacific joint compounds contained some asbestos, but by May 1977, Georgia-Pacific did not produce, manufacture, or distribute any asbestos-containing products.

Georgia-Pacific has moved for summary judgment on the basis that Plaintiffs cannot establish exposure to any asbestos-containing Georgia-Pacific products. In support of its position, Georgia-Pacific submits that the only evidence that Foucha personally used Georgia-Pacific joint compound, or was otherwise around it when it was being used, was during renovations to the Cherrywood Street home in the 1990s. Since its joint compound did not contain asbestos during that time period, Georgia-Pacific contends it is entitled to summary judgment.

Georgia-Pacific concedes that plaintiff also testified that Georgia-Pacific joint compound was one of the brands that his father generally used on renovation projects in the 1960s, but asserts that such testimony does not support Plaintiffs' claims against Georgia-Pacific. It maintains that there is no logical link between the fact that Foucha's father used Georgia-Pacific on some renovation projects in the 1960s and Foucha's claimed exposures from that joint compound. Since there is no evidence that Georgia-Pacific was used, as opposed to Bondex, Georgia-Pacific argues that it would require speculation to reach the conclusion that Plaintiff was exposed to Georgia-Pacific joint compound.

In response, Plaintiffs urge that Foucha identified Georgia-Pacific as a manufacturer of joint compound that exposed him to asbestos and further argue, conclusorily, that they have "come forward with more than sufficient evidence of exposure to asbestos-containing products to defeat summary judgment." The details and identification of the "more than sufficient evidence" are not in any way explained in Plaintiffs' brief.

Upon consideration of 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.[1] Initially, the burden is placed upon the moving party to demonstrate that its legal claims are supported by the undisputed facts.[2] 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."[3] 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.[4]

Under Louisiana substantive law, which the parties agree applies here, the plaintiff in a multi-defendant asbestos-exposure action must establish that the defendant's product was a substantial factor in causing his disease.[5] A defendant's product will not be considered a substantial contributing factor to the development of asbestos-related disease unless the plaintiff can show "frequent" and "regular" exposure to asbestos from the product.[6]

As a central element of their case, Plaintiffs must be able to establish that Foucha was exposed to asbestos from Georgia-Pacific products. Foucha's testimony that he did not remember which brand he used on any particular project or the extent to which he worked with Georgia-Pacific joint compound on the two renovation projects that were done in the 1960s cannot be the basis for the Court to conclude that Foucha was exposed to asbestos from Georgia-Pacific's product as opposed to Bondex, unless such a conclusion could be based on pure conjecture. Delaware courts do not allow a plaintiff to proceed against a defendant based on speculative exposure to that defendant's product.[7] Georgia-Pacific correctly notes that a plaintiff's conflicting testimony cannot create a genuine issue of material fact.[8] This principle is subject to the caveat that product identification testimony in asbestos cases sometimes includes understandable and reconcilable self-corrections or developments as witnesses' memories are plumbed. In this case, however, the conflicts in Foucha's testimony reveal that his identification of Georgia-Pacific as a brand of joint compound with which he worked in the 1960s was speculative, and they therefore do not establish a genuine factual dispute.

Since Plaintiffs' evidence does not support a conclusion that Foucha was exposed to asbestos from Georgia-Pacific's products without speculation, it follows that Plaintiffs cannot meet the Louisiana substantial factor causation standard. Accordingly, Georgia-Pacific's motion for summary judgment must be GRANTED.

IT IS SO ORDERED.

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

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

[3] Id. at 880.

[4] Id. at 879-80.

[5] Abadie v. Metro. Life Ins. Co., 784 So.2d 46, 90 (La. Ct. App. 2001).

[6] Asbestos v. Bordelon, Inc., 726 So.2d 926, 948-49 (La. Ct. App. 1998).

[7] See In re Asbestos Litig., 509 A.2d 1116, 1117-18 (Del. Super. 1986).

[8] See Wilson v. A. P. Green Indus., 807 A.2d 922, 926-27 (Pa. Super. Ct. 2002).

Sources

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