Gordon v. Dana Companies (Del. Super. Ct. 2011)

The decision

Court: Delaware Superior Court
Decided: November 16, 2011
Stage: Summary judgment
State: Delaware

Outcome. 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.

What the court held. Under Kansas's asbestos statute, which the court read as codifying the Lohrmann frequency, regularity and proximity test, a plaintiff must show that exposure to the defendant's product was a substantial factor. The court held that Kansas law does not apply this test less strictly in mesothelioma cases, and that specific dates or counts of exposure are not required.

Issues decided: Causation, Product Identification.

The people and their exposure

Melvin C. Gordon: mesothelioma; died

Who	Work	Where	When	Products
Melvin C. Gordon	automotive repair hobbyist (vehicle and farm equipment repairs)		1958 onward	gaskets and packing, brakes, clutches and friction materials, Victor gaskets (Dana Companies, successor to Victor Gasket Manufacturing Company), Fel-Pro gaskets
Melvin C. Gordon	laborer, relief or vacation person in the Furfural Vacuum Unit (refineries and petrochemical plants); worked near others using it	Coffeyville Refinery, Coffeyville, Kansas	1966-1971	pipe and block insulation
Melvin C. Gordon	Operations Foreman of the Coker Unit (refineries and petrochemical plants); worked near others using it	Coffeyville Refinery, Coffeyville, Kansas	1971-1981	gaskets and packing, pipe and block insulation, Elliott steam-driven turbines (packing glands, gaskets, block and blanket insulation)
Melvin C. Gordon	supervisor of the boilermakers (refineries and petrochemical plants); worked near others using it	Coffeyville Refinery, Coffeyville, Kansas	1980-1985	gaskets and packing, pipe and block insulation, Born heaters
Melvin C. Gordon	maintenance supervisor (refineries and petrochemical plants); worked near others using it	Coffeyville Refinery, Coffeyville, Kansas	1980s	gaskets and packing, chrysotile, Armstrong steam traps (gaskets made by Durabla)

The defendants

Dana Companies, LLC (manufacturer)
Elliott Company (manufacturer)
UOP, LLC
Armstrong (manufacturer)
Born, Inc. (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.
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.
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:

Chavers v. General Motors Corp. (Arkansas Supreme Court, 2002). The Arkansas Supreme Court affirmed the trial court's summary judgment for General Motors, AlliedSignal and Ford, rejecting the claims of Deidra Chavers over her husband's mesothelioma death.
Tragarz v. Keene Corp. (U.S. Court of Appeals, Seventh Circuit, 1992). The Seventh Circuit affirmed the $3,000,000 judgment for Grace Tragarz against Keene and Owens-Corning Fiberglas, but reversed the denial of Keene's request to file a contribution cross-claim against OCF and remanded for proceedings between the two defendants.
Lohrmann v. Pittsburgh Corning Corp. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the judgment for the defendants: directed verdicts for Raymark, Celotex and Pittsburgh Corning, a jury verdict for the other four defendants, and the challenged evidentiary rulings and jury instructions, against plaintiff Lohrmann.
Linster v. Allied Signal, Inc. (Pennsylvania Superior Court, 2011). The Superior Court vacated the judgment, reversed the trial court's grant of summary judgment for Crane Company, and remanded for further proceedings, so the Linsters (plaintiffs) won and Crane Company lost.
Buttitta v. Allied Signal, Inc. (New Jersey Superior Court, Appellate Division, 2010). The Appellate Division affirmed the jury verdict and judgment for plaintiff Susan Buttitta against Borg-Warner and Asbestos Corporation Ltd., rejecting all of their challenges.

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: Gordon, Melvin Carl.

C.A. No. N10C-08-307 ASB.

November 16, 2011.

November 15, 2011.

November 14, 2011.

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge.

Plaintiff Melvin C. Gordon ("Gordon") was diagnosed with mesothelioma in 2010, which led to his death in June 2011. Before his death, Gordon and his wife Carol Ann Gordon initiated this lawsuit against various manufacturers and suppliers of allegedly asbestos-containing products that Plaintiffs claim caused Gordon's mesothelioma.
Plaintiffs allege a host of occupational and non-occupational exposures to asbestos. Gordon worked for nearly forty years at the Coffeyville Refinery ("the refinery") in Coffeyville, Kansas. Gordon also performed significant automotive repair work on personal vehicles and farm equipment, which brought him into contact with brakes, clutches, gaskets and engine components. Plaintiffs' specific claims against Defendant Dana Companies, LLC ("Dana"), the successor to Victor Gasket Manufacturing Company, arise from Gordon's automotive repair hobby.
Beginning in 1958 and continuing throughout his life, Gordon occasionally performed vehicle maintenance repair jobs for family and friends. Gordon, who was deposed several months before his death, estimated that he performed fifty brake jobs in his life.[1] Similarly, Gordon estimated that he had performed roughly fifty clutch jobs.[2] He testified, however, that he would have performed "considerably more" gasket jobs because of his engine overhaul work and estimated that the total number of gasket jobs ranged between fifty and seventy-five.[3] Gordon explained that any engine work more significant than a minor tune-up would involve the use of gaskets.[4] Gordon worked with exhaust manifold gaskets, which were all asbestos in the early years, intake manifold gaskets, which Gordon said "wouldn't necessarily... have any asbestos in them," though he also said his "feeling" was that "they probably did."[5] Gordon also worked with side panel gaskets and tappet gaskets, which he described as made of cork, and later, paper.[6]
Gordon testified that he used "[a] lot of Victor gaskets, especially in the early years."[7] Though he said he used gaskets supplied by other manufacturers, including Fel-Pro, he described Victor as "the main one."[8] Gordon purchased Victor gaskets as part of a Victor engine overhaul package, which included everything he needed to perform an overhaul.[9] Gordon could clearly recall the Victor name on the package and on the gaskets themselves.[10] All of the Victor gaskets that Gordon used were pre-formed.[11] Installing a new gasket was a simple procedure that only required putting the new gasket down on the bolts and rebolting the piece of equipment, a process that Gordon said would take less than a minute[12]. Gordon testified, however, that removing a gasket with a wire wheel or scraper could take up to an hour.[13] 5. Gordon could only recall removing a Victor gasket from a vehicle on one occasion, when he overhauled a 1957 Ford.[14] He could not identify any other specific occasion where he had used a Victor gasket, nor was he able to identify the manufacturer of gaskets that he used to repair farm equipment.[15] On cross-examination, he was unable to say whether he used Victor or Fel-Pro gaskets a greater percentage of the time.[16]
In its motion for summary judgment, Dana argues that Plaintiffs have not produced sufficient evidence that Gordon was exposed to asbestos-containing Victor gaskets to show that Victor gaskets were a substantial factor in causing Gordon's mesothelioma, as required by Kansas law. Since Gordon could only identify one type of Victor gasket he used as containing asbestos, and since he also worked with gaskets produced by other manufacturers, Dana argues that it is entitled to summary judgment because Gordon may never have handled a Victor gasket containing asbestos at all. Furthermore, Dana submits that, even if it could be established that Gordon only used Victor asbestos-containing gaskets, Plaintiffs still would

not be able to prove exposure because there is no evidence that Gordon was exposed to any respirable or friable dust from the gaskets. Finally, Dana contends that, even if such exposures could be established, there is no evidence that they were in an amount and frequency sufficient to establish causation under Kansas' heightened causation statute. 7. In response, Plaintiffs presented essentially the same evidence as Dana: that Gordon worked with Victor gaskets on vehicle maintenance work over a period of forty-seven years, and that until 1988, some of Victor's gaskets contained asbestos. Plaintiffs urge that this quantity of evidence, viewed in the light most favorable to the Plaintiffs, permits an inference that Gordon was exposed to asbestos from Dana products. Moreover, Plaintiffs urge that Kansas law imposes a less stringent burden of proving causation on plaintiffs in mesothelioma cases, such that a plaintiff can establish that a defendant's product was a substantial factor in causing his illness with a relatively small amount of evidence.[17] Here, Plaintiffs argue that the inference of exposure to asbestos from Victor gaskets is sufficient to establish that Victor gaskets were a substantial factor in Gordon's illness.

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.[18] Initially, the burden is placed upon the moving party to demonstrate that its legal claims are supported by the undisputed facts.[19] 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."[20] 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.[21]
The parties agree that Kansas substantive law applies to this case. Under Kansas' Silica and Asbestos Claims Act,[22] a plaintiff in an asbestos case bears the burden of establishing that exposure to asbestos from the defendant's product was a substantial factor in the plaintiff's illness.[23] The court determines whether the product was a substantial factor according to the following four-factor test:

(1) The manner in which the plaintiff was exposed.

(2) The proximity to the plaintiff when the exposure occurred.

(3) The frequency and length of the plaintiff's exposure; [and]

(4) [A]ny factors that mitigated or enhanced the plaintiff's exposure.[24]

In essence, this statute codifies the well-known "frequency, regularity, proximity" test of Lohrmann v. Pittsburgh Corning Co. [25] Indeed, this Court recently suggested that the Kansas statute may in fact impose a heightened version of the Lohrmann test.[26]

Lohrmann itself operates as a de minimis rule, intended to prevent plaintiffs from holding defendants liable where the plaintiff can only demonstrate casual or minimal contact with the defendant's product.[27] This Court recently held that a plaintiff need not demonstrate specific dates or times of exposure to survive summary judgment under Lohrmann.[28] This Court also recently granted summary judgment to Fel-Pro, a gasket manufacturer, in a case involving personal automotive repairs under Arkansas' version of the Lohrmann test where none of the plaintiff's witnesses could connect the deceased plaintiff, to any particular asbestos-containing product manufactured by the defendant.[29] The Court noted that the Pelzel plaintiff had failed to carry its summary judgment burden of identifying any evidence from which a jury could reasonably infer that the plaintiff was exposed to asbestos from gaskets manufactured or supplied by the defendant.
Upon review of the record in this case and Kansas law, the Court finds that Plaintiffs have failed to carry their burden of producing evidence that would show that exposure to asbestos-containing Victor gaskets was a substantial factor in Gordon's illness. Dana carried its initial burden of establishing the non-existence of material issues of fact by highlighting the absence of direct evidence that Gordon received significant asbestos exposure from a Victor product. The burden then shifted to Plaintiffs, who have failed to identify any evidence from which a jury could reasonably infer that Gordon was exposed to asbestos from Victor gaskets regularly and frequently over an extended period of time.
Plaintiffs rely on the understandably hazy recollections of Gordon and an article asserting that Dana manufactured asbestos-containing products until 1988. At best, this evidence permits only a weak inference that Gordon may have been

exposed to asbestos from a Victor product. Even assuming that Plaintiffs had shown that Gordon was exposed to an asbestos-containing Victor product, there is a lack of evidence of frequent or regular exposure to asbestos in a Victor product over an extended period of time. Gordon estimated that he performed at most seventy-five gasket repair jobs total and estimated that he might spend an hour removing and replacing a gasket. Over the course of a lifetime, this averages out to a little over an hour per year that Gordon spent replacing automotive gaskets. This Court has already held that Kansas law does not permit a less stringent application of the Lohrmann standard in mesothelioma cases.[30] Accordingly, the Court holds that Plaintiffs have not submitted evidence by which a reasonable jury could find that exposure to Victor gaskets was a substantial factor in causing Gordon's mesothelioma. Dana's motion for summary judgment is therefore GRANTED.

IT IS SO ORDERED.

Facts

Plaintiff Melvin Gordon ("Gordon") worked for nearly forty years in various capacities at the Coffeyville Oil Refinery ("the refinery") in Coffeyville, Kansas from 1965 until his retirement in 2005. Gordon was diagnosed with mesothelioma, which led to his death in June 2011.

Gordon and his wife Carol Ann Gordon filed this lawsuit on August 30, 2010, shortly after Mr. Gordon was diagnosed. Plaintiffs alleged in the Complaint that the defendants in this case each either manufactured, distributed, sold, supplied, or installed products that caused Gordon's mesothelioma. Plaintiffs' claims against Elliott Company ("Elliott") relate to Gordon's exposures to turbines that were manufactured by Elliott and which were present at the refinery where Gordon was employed throughout his occupational life.

Gordon, who was deposed prior to his death, testified extensively concerning his employment at the refinery. During the first year of his employment, Gordon worked as a Laborer digging ditches and cleaning up.[1] Thereafter, from 1966 until 1971, he continued as a laborer but served as a relief or vacation person, filling in for others in the Furfural Vacuum Unit.[2] During this time, Gordon worked with insulators and was often present when insulation was removed or installed.[3] In 1971, Gordon was promoted to the position of Operations Foreman of the Coker Unit where he remained until 1981.[4] He then became supervisor of the Boilermakers for four or five years, maintenance supervisor for approximately five years, and maintenance superintendent for the following five years.[5]

Gordon was present and worked around Elliott steam-driven turbines during the ten years he spent as the foreman at the Coker unit. Gordon was able to recall the name Elliott as the manufacturer of at least two of the plant's turbines, as did his co-workers Elmer Moon and Thurman Medsker.[6] Co-worker Loran Beeson also distinctly recalled the presence of Elliott equipment at the refinery, although he mistakenly associated the name with pumps.[7]

The turbines had to be maintained and repaired, generally on site at the Coker unit, although on some occasions they were repaired in the shop. According to Plaintiff, these turbines had packing similar to asbestos packing in pumps. Gordon associated gaskets, block insulation, and blanket insulation with the turbines in the Coker unit.[8] The Elliott turbines had flanges sealed by asbestos gaskets.[9] Gordon also testified that "without a doubt" the refinery purchased replacement parts for the turbines from the manufacturer because "you didn't just use off-brand parts on that type of equipment. That's something that we as a maintenance department did not — I mean, they didn't want any cut-rate parts."[10] In its Objections and Responses to Plaintiffs' Interrogatories, Elliott admitted that its turbines were supplied with asbestos-containing components such as gaskets, packing, and insulation.[11] The asbestos components Elliott used included compressed asbestos sheet gaskets and packing.[12]

Parties' Contentions

Defendant Elliott has moved for summary judgment on the basis of a lack of product nexus, claiming that plaintiffs have failed to produce any evidence that would satisfy their burden of proof under Kansas law, that is, that Gordon was exposed

to asbestos-containing materials attributable to Elliott with some frequency, proximity, and duration, and that the alleged exposure was a substantial factor in causing Gordon's mesothelioma.

In response, Plaintiffs contend that the "frequency, regularity, and proximity" test (also known as "the Lohrmann test") should be applied less rigorously in cases of mesothelioma because it is well known in the scientific literature that there is no threshold level of exposure required for the development of mesothelioma, and it can result from even brief or low-level exposures. Plaintiff also points out that the Kansas legislature has actually recognized the difference between mesothelioma and other asbestos-related diseases, although the statute still does require that the four factors be considered in evaluating "substantial factor" causation under section 60.4907. Since Gordon was exposed to Elliott turbines when others were performing repair, and since he spent ten years as the foreman in the Coker unit where the Elliott turbines were located, even without any recollection of specific instances of exposure, Plaintiffs submit that they have presented sufficient evidence to survive summary judgment.

Standard of Review

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.[13] Initially, the burden is placed upon the moving party to demonstrate that its legal claims are supported by the undisputed facts.[14] 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."[15] Summary judgment will not be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are material facts in dispute, or if judgment as a matter of law is not appropriate.[16]

Under Kansas substantive codified law, which the parties agree is applicable to this case, the plaintiff in an asbestos case must establish that the defendnat's product was a substantial factor in causing his disease:

(2) In any civil action under this Act [...] alleging an asbestos claim, the party with the burden of establishing this claim [...] must show that the alleged exposure attributable to a given [...] party was a substantial factor in causing the injury, loss, or damages.[17]

In assessing whether substantial factor causation has been established, the Kansas statute requires the Court to consider, without limitation, all of the following factors:

(1) The manner in which the plaintiff was exposed.

(2) The proximity to the plaintiff when the exposure occurred.

(3) The frequency and length of the plaintiff's exposure; [and]

(4) Any factors that mitigated or enhanced the plaintiff's exposure.[18]

In essence, then, the statute has codified what is generally known as the Lohrmann "frequency, regularity, and proximity" standard.[19]

Upon review of the record, the Court finds that Elliott's liability for Gordon's alleged exposures to its turbines is a triable issue, applying the Lohrmann test, even without regard to whether it should be applied less stringently in cases of mesothelioma as opposed to other asbestos-related diseases.[20] The Lohrmann standard is intended as a "de minimis rule" requiring that a plaintiff prove "more than a casual or minimum contact with the product."[21] In this case, Gordon spent ten years as foreman in the Coker unit where the Elliott turbines were situated and, although he did not personally perform repair work on these pieces of equipment, there is no question that he was a "hands on" supervisor who was directly involved and present in all aspects of the unit's operations. As his co-worker Thurman Medsker testified: There was [sic] many occasions of us working in there while we would be working on the same equipment. Now he was a foreman, but Melvin was a hands-on foreman. If he walked through the shop, he was going to get involved, he was going to do something.[22]

As a foreman, Gordon spent time assisting his maintenance employees in every aspect of their work, including working on pieces of equipment with his hands.[23]

While neither Gordon nor his co-workers could recall specific details of when or where he may have been so involved, there is no question that he was regularly and frequently exposed to these products, and to the dust emanating from them during repairs. Merely by virtue of his ten-year presence in that section of the refinery and his tendency to become involved in the work of those whom he supervised, Gordon's exposure meets the Kansas causation standard. As this Court reasoned in In re Asbestos Litig. (Bowser),[24] the Lohrmann test does not "require evidence of specific instances or numbers of exposures, and the absence of such precise evidence is often understandable in mesothelioma cases due to the lengthy latency period of that disease."[25]

Applying the four factors set forth in the Kansas statute, the Court concludes that Gordon was exposed to Elliott turbines by his presence in the area where his maintenance workers performed repairs on them on a daily basis for a lengthy period of time when he served as foreman in the Coker unit. Taken in the context of Gordon's full testimony, as well as that of his co-workers, the presence of Elliott turbines at the jobsite where Gordon spent a decade of his occupational life provides sufficient evidence that Gordon received frequent and regular exposure to asbestos from the packing glands of these turbines to render summary judgment in defendant's favor inappropriate.

Accordingly, Elliott Company's Motion for Summary Judgment is hereby DENIED.

IT IS SO ORDERED.

Plaintiff Melvin Gordon ("Gordon") worked for nearly forty years in various capacities at the Coffeyville Oil Refinery in Coffeyville, Kansas, form 1965 until his retirement in 2005. Gordon was diagnosed with mesothelioma which led to his death in June 2011.

Gordon and his wife, Carol Ann Gordon, filed this lawsuit on August 30, 2010, shortly after Mr. Gordon was diagnosed. Plaintiffs alleged in the Complaint that the defendants in this case each either manufactured, distributed, sold, supplied, or installed products that caused Gordon's mesothelioma. Plaintiffs' claims against the UOP, LLC ("UOP") relate to Gordon's exposures to heaters that they allege were manufactured by UOP and which were present at the refinery where plaintiff was employed throughout his occupational life.

Gordon, who was deposed prior to his death, testified extensively concerning his employment at the refinery. During the first year of his employment, Gordon worked as a laborer digging ditches and cleaning up. Thereafter, from 1966 until 1971, he continued as a laborer but served as a relief or vacation person, filling in for others in the Furfural Vacuum Unit. During this time, Gordon worked with insulators and was often present when insulation was removed or installed.

In 1971, Gordon was promoted to the position of Operations Foreman of the Coker Unit where he remained until 1981. He then became supervisor of the boilermakers for four or five years, maintenance supervisor for approximately five years, and maintenance superintendent for the following five years. He served as a contractor and construction supervisor for the last ten years of his employment before he retired.

Gordon was present and worked around heaters that bore the nameplate or placard of "UOP"[1] which he perceived to be the manufacturer or trade name of the heaters. The heaters were situated in the Coker unit of the refinery, and were approximately 40 feet long, 15 or 16 feet wide, and 20 feet high. While Gordon had no recollection of doing any work on the heater unit itself, he testified that he supervised 18 boilermakers and "was in and around every heater they worked on."[2] Gordon testified that the heaters would have had gaskets on the inlet and outlet valves, but could not identify the brand or manufacturer of the insulation.

Defendant UOP has moved for summary judgment on the ground that there is no evidence to support plaintiffs' claims that Gordon was exposed to asbestos from any UOP heater, any gaskets associated with UOP heater technology, or through any products or materials supplied by UOP. In fact UOP submits that it is in the business of developing and licensing technology primarily in the petrochemical industry.[3] It licenses the intellectual property to refiners and performs the initial sizing and process requirements for refiners to produce certain chemical reactions to convert the refiners' feedstock into petrochemical product. UOP submits that it did not do the detailed design of the heaters, or construct the heater, or select the materials to be used in its construction. Nor did it design or require any heater to be insulated with asbestos. UOP does

not typically supply its customers or licensees with any products or materials, much less any containing asbestos, except for products such as catalysts. As a licensor of technology, UOP argues that it cannot be held liable for Gordon's exposure to asbestos.

In its brief in opposition to summary judgment, Plaintiff argues that Gordon "always went inside the UOP heater when it was down" to check for weak spots with the tubing or burners. Since "the work would have involved gaskets if the inlet and outlet valves were removed," Plaintiff submits that Gordon was necessarily exposed to asbestos by UOP.

Since plaintiff cannot dispute the fact that UOP did not utilize any asbestos products in its heaters, but insulated them with non-asbestos refractory materials such as lumite, haydite, or vermiculite ("LHV") plaintiffs make a rather tortuous argument that the LHV used in the 1950s, 60s, and 70s was also toxic because some of the vermiculite from the mine in Libby, Montana was contaminated with asbestos. Plaintiffs provide no evidence that any vermiculite was used in the UOP Coffeyville heater or that it was derived from Libby, Montana.

When considering a motion for summary judgment, the Court examines the record to determine whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law. Initially, the burden is placed on the moving party to demonstrate that its legal claims are supported by the undisputed facts. If the proponent properly supports its claims, the burden then shifts to the non-moving party to demonstrate that there are material issues of fact for resolution by the jury. Summary judgment will not be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are material facts in dispute, or if judgment as a matter of law is not appropriate. Under Kansas substantive law, which the parties agree applies to this case, the plaintiff in an asbestos case must establish that the defendant's product was a substantial factor in causing his disease:

(a) In any civil action under this act ... alleging an asbestos claim, the party with the burden of establishing this claim ... must show that the alleged exposure attributable to a given... party was a substantial factor is causing the injury, loss, or damages.

In assessing whether the factor causation test has been met, the Kansas statute requires the Court to consider, without limitation all of the following factors:

(1) The manner in which the plaintiff was exposed;

(2) The proximity to the plaintiff when the exposure occurred;

(3) The frequency and length of the plaintiff's exposure;

(4) Any factors that mitigated or enhanced the plaintiff's exposure.

The Kansas statute has thus essentially codified what is generally known as the Lohrmann "frequency, regularity and proximity" standard.[4]

Upon reviewing the record and the Kansas statute, the Court is satisfied that UOP is entitled to summary judgment as there is no evidence supporting plaintiffs' claims against it. UOP did not perform the detailed design, engineering, or construction of any of the heaters at the Coffeyville Refinery. Rather, the refinery separately hired independent third parties to engineer and construct the heaters. Nor were the heaters designed to be insulated with asbestos but instead were to be used in conjunction with a non-asbestos, concrete composite refractory material.

Plaintiffs' somewhat farfetched effort to attribute an asbestos product to UOP, by arguing the contamination of the vermiculite from the Libby, Montana mines, is not sufficient to salvage the claim or to present a triable issue of fact, without asking a jury to engage in pure speculation. Without any evidence even circumstantially linking the portion of vermiculite that may have been contaminated to the LHV non-asbestos refractory insulation material recommended by UOP for its heaters, the record is simply insufficient to survive summary judgment.

The Court will not consider Defendant's argument that plaintiffs' claims against UOP are barred by either the Kansas or Delaware statutes of repose as they were presented for the first time in UOP's reply brief and the Court's disposition on other grounds renders consideration of this argument unnecessary.[5]

Even viewed in the light most favorable to plaintiff, the record does not support a non-speculative inference that Gordon was exposed to asbestos from a UOP, LLC product. UOP's Motion for Summary Judgment is therefore granted.

IT IS SO ORDERED.

Facts

Melvin C. Gordon ("Gordon") worked in various capacities at the National Refinery in Coffeyville, Kansas ("the Coffeyville refinery") for nearly four decades, from 1965 until 2005. In 2010, Gordon was diagnosed with mesothelioma, which led to his death in June 2011. Together with his wife Carol Ann Gordon, Gordon filed this lawsuit alleging that the defendants in this case each manufactured, distributed, sold, or installed asbestos-containing products that caused Gordon's mesothelioma. Plaintiffs allege that Gordon was exposed to asbestos while supervising co-workers who repaired and replaced asbestos-containing Armstrong steam traps at the Coffeyville refinery.

Gordon's videotaped deposition was taken in January 2011. Gordon began working at the Coffeyville refinery in October 1965. In the early 1980s, he became a supervisor in the maintenance department overseeing the boilermakers in 1980 or 1981, a position he held for five years.[1] In that role, Gordon supervised the maintenance work done by pipefitters and boilermakers.[2] Around 1990 or 1991, Gordon was promoted to maintenance supervisor and became responsible for supervising all maintenance in the refinery.[3]

Armstrong has manufactured steam traps since 1911.[4] Until 1988, Armstrong manufactured steam traps which included an asbestos-containing gasket.[5] The gaskets appear to have been manufactured by a company known as Durabla.[6] The Material Safety Data Sheets ("MSDS") from the relevant period indicated that the gaskets contained more than eighty percent chrysotile asbestos.[7] Armstrong's corporate representative also confirmed at a deposition that any replacement gaskets sold by Armstrong would contain the same amount and type of asbestos.[8]

Gordon and several product identification witnesses offered by Plaintiffs all identified Armstrong as one of two main suppliers of steam traps at the Coffeyville refinery.[9] The witnesses who identified Armstrong as a manufacturer of steam traps recalled seeing the Armstrong name either stamped on the side of the trap itself or on the box that originally contained the traps.[10] Gordon, along with many of the product identification witnesses, believed that the steam traps contained asbestos in the gasket located inside of the trap.[11]

The steam traps came in a variety of sizes and would be repaired or replaced as needed. Elmer Wayne Moon, a pipefitter at the Coffeyville Refinery in the 1980s, explained that the steam traps were used to remove excess condensate from the steam lines.[12] The steam traps were often turned off in the warmer months and would not be replaced or repaired until they were turned on again in the fall.[13] Moon estimated that "hundreds" of steam traps would be changed out in the fall, a process which he testified took ten to thirty minutes.[14] Gordon testified that the smaller steam traps were usually replaced because it was not cost-effective to repair them.[15] However, Thurman Medsker, another pipefitter at the Coffeyville Refinery in the 1970s and 1980s, testified that the Armstrong steam traps were large enough that they could be disassembled and repaired.[16] Similarly, Loran Beeson, who also worked under Gordon as a pipefitter, recalled that the pipefitters would remove old gaskets from the ten-inch steam traps and replace them with new ones.[17] Gordon described himself as a hands-on manager who "tried to make the rounds at least once a week routinely and visit all the shops and all the people."[18] The pipefitters who worked under Gordon's supervision in the maintenance shop all confirmed Gordon's description of his management style. For example, Medsker testified that if Gordon "walked through the shop he was going to get involved, he was going to do something."[19] Medsker also recalled Gordon "working on pieces of equipment with his hands" as foreman.[20] However, Moon characterized Gordon's efforts as verbal discussions about the work and testified that union rules would have prevented Gordon from handling the equipment himself.[21] The record leaves room for doubt as to whether Gordon was ever in the area when workers were opening up one of the steam traps for repair work. Gordon himself testified that he personally worked on Armstrong steam traps, though he could not remember a specific number of times that he replaced an Armstrong unit, nor could he recall personally opening an

Armstrong steam trap.[22] Gordon also testified that he had been in the area when others had opened up a steam trap, though he did not recall specific details about when or how many times this might have occurred.[23] The testimony presented by Gordon's co-workers does not conflict with Gordon's own recollection. For example, Medsker could not recall Gordon having tested or working on a steam trap himself.[24] However, Moon testified that Gordon would have "been around" if he came into the shop when he was working on Armstrong steam traps.[25] Moon also did not recall seeing Gordon work on a steam trap himself.[26]

Parties' Contentions

In its motion for summary judgment, Armstrong argues that Plaintiffs cannot establish that Gordon was exposed to asbestos from Armstrong steam traps on a regular basis over an extended period of time as required by Kansas law, which the parties agree is applicable to this case. Armstrong characterizes Plaintiffs' allegations of exposure as overly vague and urges that Plaintiffs must show more than its products were present at the Coffeyville Refinery during Gordon's employment there. In essence, Armstrong argues that Plaintiffs' showing does not meet the requirement of "more than a casual or minimum contact with the product" as required under the well-known Lohrmann "frequency, regularity, proximity" test.[27] Plaintiffs respond that they have established that Gordon worked with or around Armstrong steam traps as a maintenance supervisor at the Coffeyville refinery, and that such evidence is sufficient to meet their burden of proving causation in a mesothelioma case under Kansas law. In particular, Plaintiffs rely on a number of non-Kansas cases holding that the Lohrmann standard should be relaxed in mesothelioma cases because of the scientific evidence finding that even brief exposure to asbestos can be sufficient to cause the development of mesothelioma.[28] Plaintiffs argue that this line of cases is consistent with Kansas statutory law, which imposes a heavier burden of proof with regard to causation in non-mesothelioma asbestos cases.

Standard of Review

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.[29] Initially, the burden is placed upon the moving party to demonstrate that its legal claims are supported by the undisputed facts.[30] 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."[31] Summary judgment will not be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are material facts in dispute, or if judgment as a matter of law is not appropriate.[32]

Discussion

Upon review of the record and applicable Kansas law, the Court finds that Armstrong's liability for Gordon's alleged exposure to asbestos in the gaskets of Armstrong steam traps presents a triable issue. Kansas law requires that a plaintiff in an asbestos case demonstrate that a claimed exposure was a substantial factor in the plaintiff's injury, as measured by the following:

(1) The manner in which the plaintiff was exposed.

(2) The proximity to the plaintiff when the exposure occurred.

(3) The frequency and length of the plaintiff's exposure; [and]

(4) Any factors that mitigated or enhanced the plaintiff's exposure.[33]

The Court was unable to find any Kansas case law interpreting this statute. However, the language of the Kansas statute closely tracks the "frequency, regularity, and proximity" test established in the Lohrmann decision.[34]

The Court finds that there is a triable issue of fact regarding Gordon's exposure to Armstrong steam traps even without considering Plaintiffs' argument that the Lohrmann standard should be applied less stringently in mesothelioma cases. Plaintiffs have not attempted to show exposure by simply establishing that Armstrong steam traps were in use at the Coffeyville refinery. Rather, Plaintiffs have presented consistent evidence that Armstrong was one of two major suppliers of steam traps to the Coffeyville refinery, that the traps were repaired or replaced with some frequency, and that Gordon was a hands-on manager who was actively involved in the maintenance work done by the employees he supervised. Taken together, Gordon's testimony and that of his co-workers offers reasonable support for his assertions that he was present when Armstrong steam traps were opened and repaired, even if Gordon and his co-workers cannot recall specific occasions when this occurred.

This Court recently declared that Lohrmann does not "require evidence of specific instances or numbers of exposures, and the absence of such precise evidence is often understandable in mesothelioma cases due to the lengthy latency period of that disease."[35] Viewed in the light most favorable to Plaintiffs, the record provides sufficient evidence that Gordon received frequent and regular exposure to asbestos from Armstrong steam traps over an extended period of time to render summary judgment regarding Plaintiffs' steam trap exposure claims inappropriate. Therefore, Armstrong's motion for summary judgment is hereby DENIED.

IT IS SO ORDERED.

Facts

Gordon and his wife Carol Ann Gordon filed this lawsuit on August 30, 2010, shortly after Mr. Gordon was diagnosed. Plaintiffs alleged in the Complaint that the defendants in this case each either manufactured, distributed, sold, supplied, or installed products that caused Gordon's mesothelioma. Plaintiffs' claims against Born, Inc. ("Born") relate to Gordon's exposures that were manufactured by Born and which were present at the refinery where Gordon was employed throughout his occupational life.

Gordon was present and worked around Born heaters from 1980 to 1984 or 1985 during the period that he served as supervisor of the boilermakers. These heaters were repaired by pipefitters and boilermakers. The insulated "mule ear headers", which were components of the heaters were generally taken to the shop to be repaired. The shop was shared by pipefitters and boilermakers as there was no wall separating them; it was just one long building.

Gordon worked around asbestos-containing heaters while at the Coffeyville Refinery and specifically recalled that two heaters manufactured by Born were present there. Although Plaintiff testified that he never personally performed repair work on the heater, and could not specifically recall being present while others were working on them, he did testify that: . . . if the boilermakers was (sic) working on a heater, no matter which one it was if we were doing anything at all, I was there at some time during the day when they was (sic) working on that heater.

Co-worker Thurman Jerald Medsker testified at his deposition that he recalled seeing Gordon working on a Born heater in the crude unit of the refinery, although he did not know whether that work would have exposed plaintiff to asbestos. Medsker and other workers replaced the insulation on the mule ear headers in the shop, a process that Medsker described as "a dusty job." He explained "inside the heaters you would always — it didn't matter what was going on, you always would see a

lot of dust." Medsker testified that when there was a lot of maintenance work going on, "there would be fibers in the air. . . you always would see a lot of dust." At times they would even need to use a dusk mask. Medsker specifically recalled that Gordon was present while he worked on the boilers. He referred to Gordon as a "hands on foreman" who was always involved.

A second co-worker, Elmer Moon, recalled a Born heater in the crude unit when Gordon was a supervisor. He described the units as being so large, possibly 26 feet by 26 feet, that the men working on them would have to climb inside, but they would first have to remove asbestos gaskets from the manways before installing new tubes. The old gaskets often had to be scraped or filed to remove them and the blinding process also required removal of flanges and gaskets to isolate equipment. Defendant Born, Inc. has moved for summary judgment. In its motion, Born claims that plaintiff cannot satisfy his burden under Kansas law that he was exposed to asbestos from a Born heater and thus cannot establish causation. Born submits that, with the exception of co-worker Medsker, no witness testified that Gordon ever worked on or was present when others worked on a Born heater, and Medsker could not say for sure that Plaintiff would have been exposed to asbestos at that time.

In response, Plaintiffs argue that the "frequency, regularity, and proximity test set forth in Lohrmann should be applied more liberally in cases of mesothelioma because the scientific literature confirms that there is no threshold level of exposure required for the development of mesothelioma and it can result from even brief or low level exposures. Plaintiff also points out that the Kansas legislature has actually recognized the difference between mesothelioma and other asbestos-related diseases, although the Kansas statute, Section 60-4907, specifies that a finding of substantial factor causation requires a consideration of four factors.[6] Since Gordon was exposed to Born heaters when others were performing repairs and since he spent four or five years as the supervisor of the boilermakers in the area of the refinery where the heaters were located, plaintiff has presented sufficient evidence to render summary judgment inappropriate as to Born, even in the absence of specific instances of exposure.

(a) In any civil action under this act. . . alleging an asbestos claim, the party with the burden of establishing this claim. . . must show that the alleged exposure attributable to a given. . . party was a substantial factor is causing the injury, loss, or damages.

In assessing whether the factor causation test has been met, the Kansas statute requires the Court to consider, without limitation all of the following factors:

(1) The manner in which the plaintiff was exposed;

(2) The proximity to the plaintiff when the exposure occurred;

(3) The frequency and length of the plaintiff's exposure;

(4) Any factors that mitigated or enhanced the plaintiff's exposure.

The Kansas statute has thus essentially codified what is generally known as the Lohrmann "frequency, regularity and proximity" standard.[7]

The Court is satisfied, after having reviewed the record in this case, that Born's liability for Gordon's alleged exposure to its heaters is a triable issue. Even without regard to whether the Lohrmann test should be applied less rigorously in cases of mesothelioma, as opposed to other asbestos-related diseases, the fact that Gordon spent four or five years as supervisor of the boilermakers in the area of the refinery where Born heaters were located and was present there on a daily basis as a

"hands on" supervisor suggests that his exposure to Born heaters was regular and frequent, especially since their insulation and gaskets were being disrupted by others who repaired or maintained this equipment on a regular basis. While the extent of exposure to Born heaters was not as extensive as his exposure to Elliott turbines, Gordon still spent four or five years in the field and in the shop while the heaters and the mule ear headers were repaired creating a lot of asbestos dust. As Gordon himself recalled:

. . . if the boilermakers was (sic) working on a heater, no matter which one it was, if we were doing anything that amounted to anything at all, I was there at some time during the day when they was (sic) working on that heater.

While Gordon understandably did not have a specific recollection of being in the vicinity of one of his boilermakers while they were working on a heater he "was in and around that on every heater they worked on." And, as his co-worker Medsker testified "I do know for a fact that at times when there was a lot of maintenance work going on, there could be fibers in the air. . . you always would see a lot of dust."

Applying the four statutory factors required under Kansas law for a finding of substantial factor causation, the Court is satisfied that Gordon was exposed to asbestos from Born heaters by his presence in the area where the boilermakers repaired the heaters on a frequent and regular basis so as to create a triable issue of material fact for a jury. Accordingly, Born Inc.'s Motion for Summary Judgment is denied.

IT IS SO ORDERED.

[1] Melvin C. Gordon, Video Dep. Tr., 59: 15-21.

[2] Id. at 60: 4-5.

[3] Id. at 60: 24-25.

[4] Id. at 91: 20-22.

[5] Id. at 92: 1-6.

[6] Id. at 92: 6-14. 6

[7] Id. at 92: 17-18.

[8] Id. at 92: 18-20.

[9] Id. at 92: 23-93: 10.

[10] Id. at 93: 13-15.

[11] Melvin C. Gordon Discovery Dep. Tr., Jan. 14, 2011, 406: 12-22; 17-18.

[12] Id. at 407: 18.

[13] Gordon Video Dep. Tr. at 95:3-97:23.

[14] Gordon Discovery Dep. Tr. at 398: 1-3 ("I can say with confidence that the '57 Ford I had, had Victor gaskets on it more than once.") [15] Id. at 398: 9-17.

[16] Id. at 399: 8-11.

[17] The Court previously rejected Plaintiffs' argument that mesothelioma is treated differently under Kansas law in In re Asbestos Litig. (Haas), C.A. No. 10C-05-245 ASB (Del. Super. Jun. 9, 2011) (TRANSCRIPT). Finding no change in Kansas law since its previous ruling, the Court declines to revisit this issue.

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

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

[20] Id. at 880.

[21] Id. at 879-80.

[22] KAN. STAT. ANN. Ch. 60, art. 49.

[23] KAN. STAT. ANN. §60-4907(a) (2011).

[24] KAN. STAT. ANN. §60-4907(b)(2011)

[25] 782 F.2d 1156, 1163 (4th Cir. 1986).

[26] In re: Asbestos Litig. (Haas), C.A. No. 10C-05-245 ASB (Del. Super. Jun. 9, 2011) (TRANSCRIPT).

[27] See, e.g., Chavers v. General Motors Corp., 79 S.W.3d 361, 368 (Ark. 2002).

[28] In re: Asbestos Litig. (Bowser), C.A. No. N10C-05-104 ASB (Jun. 3, 2011).

[29] In re: Asbestos Litig. (Pelzel), C.A. No. 10C-05-205 ASB (Del. Super. Aug. 17, 2011).

[30] In re: Asbestos Litig. (Haas), C.A. No. 10C-05-245 ASB (Del. Super. Jun. 9, 2011) (TRANSCRIPT).

[1] Melvin C. Gordon Video Dep. Tr., Jan. 12, 2011, at 165: 16-24.

[2] Id. at 165: 23-167: 12.

[3] Id. at 218: 18-219: 2 and 222: 24-227: 23; see also Melvin C. Gordon Discovery Dep., Jan. 13, 2011, at 151: 11-153: 7. [4] Gordon Video Dep. Tr. at 171: 16-22.

[5] Id. at 171: 19-21.

[6] Gordon Video Dep. Tr. at 246: 3-7; see also Elmer Wayne Moon Dep. Tr., May 4, 2011, at 111: 25-112: 1-5 (identifying Elliott as the manufacturer of compressors); Thurman Medsker Dep. Tr., May 4, 2011, at 65: 22-25 and 66: 1-6.

[7] Loran Beeson Dep. Tr. May 3, 2011, at 47: 6-12.

[8] Gordon Video Dep. Tr. at 245: 7-23 and 246: 1-2.

[9] Id. at 246: 1-2.

[10] Gordon Discovery Dep. Tr. at 304: 19-22.

[11] Defendant's Objections and Responses to Plaintiffs' Interrogatories.

[12] Id.

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

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

[15] Id. at 880.

[16] Id. at 879-80.

[17] KAN. STAT. ANN. § 60-4907 (2011).

[18] KAN. STAT. ANN. §60-4907(a)-(b) (2011).

[19] Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986).

[20] The Court notes that Plaintiff has belatedly pointed out that this Court has rejected this argument in In re Asbestos Litigation (Haas), C.A. No. 10C-05-245 (Del. Super. Jun. 9, 2011) (TRANSCRIPT).

[21] In re Asbestos Litig. (Bowser), C.A. No. N10C-05-104 ASB, 2011 WL 2239803, [*3] (Del. Super. Jun. 3, 2011). [22] Medsker Dep. Tr. at 50: 3-7.

[23] Id. at 50: 8-10.

[24] No. N10C-05-104 ASB, 2011 WL 2239803 (Del. Super. Jun. 3, 2011).

[25] Id. at [*4].

[1] Universal Oil Product.

[2] Melvin C. Gordon Disc. Dep. Tr., Vol. I, Jan. 13, 2011, at 125: 23-24.

[3] Clary Affidavit.

[4] See, e.g., In re Asbestos Litig. (Haas), No. 10C-05-245 ASB at 42(Del. Super. 9, 2011) (TRANSCRIPT) (finding that the Kansas statute tracks the Lohrmann standard); see also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986). [5] See, e.g., In re Asbestos Litig. (Lagrone), 2007 WL 2410879, [*4] (Del. Super. Aug. 27, 2007) (citing Stilwell v. Parsons, 145 A.2d 397, 402 (Del. 1958); Murphy v. State., 632 A.2d 1150, 1152 (Del. 1993)).

[1] Melvin C. Gordon Video Dep. Tr., Jan. 12, 2011, at 172: 19-24.

[2] Id. at 173: 17-21.

[3] Id. at 174: 20-25; 175: 1.

[4] Thomas Grubka Discovery Dep. Tr., May 29, 2008, at 20: 25; 21: 4-6.

[5] Id. at 40: 5-9.

[6] Thomas Grubka Discovery Dep. Tr., Dec. 10, 2008, at 40: 19-21.

[7] Id. at 40: 7-10; 40: 19-22.

[8] Id. at 46: 11-13.

[9] Melvin C. Gordon Discovery Dep. Tr., Jan. 14, 2011, at 363: 7-9; Thurman Medsker Discovery Dep. Tr., May 4, 2011, at 72: 15-22; Loran Beeson Discovery Dep. Tr., May 3, 2011 at 73: 22-25; Elmer Wayne Moon Discovery Dep. Tr., May 4, 2011, at 125: 18-23, 125: 24-25, 126: 4.

[10] Thurman Medsker Discovery Dep. Tr., July 7, 2011, at 203: 23-25 and 204: 1-11; Beeson Dep. Tr. at 88: 16-24; Moon Dep. Tr. at 140: 4-11.

[11] Gordon Jan. 14, 2011 Discovery Dep. Tr. at 366: 5-7; see also Beeson Dep. Tr. at 74: 14-19 and Moon Dep. Tr. at 125: 24-25 and 126: 1-4.

[12] Moon Dep. Tr. at 138: 6-9.

[13] Id. at 141: 9-17.

[14] Id. at 141: 24-25; 142: 2-10.

[15] Gordon Jan. 14, 2011 Dep. Tr. at 366: 19-25.

[16] Medsker Dep. Tr. May 4, 2011 at 72: 15-22.

[17] Beeson Dep. Tr. at 74: 9-19.

[18] Id. at 175: 4-8; 175: 18-25; 176: 2-10.

[19] Thurman Medsker Discovery Dep. Tr., May 4, 2011, at 50: 2-7.

[20] Id. at 50: 8-10.

[21] Moon Dep. Tr. at 73: 7-14.

[22] Gordon Dep. Tr. Jan. 14, 2011, at 367: 18-25; 368: 8-10.

[23] Id. at 368: 11-14.

[24] Medsker Dep. Tr. July 7, 2011 at 211: 2-9.

[25] Moon Dep. Tr. at 126: 13-18.

[26] Id. at 136: 8-12.

[27] In re Asbestos Litig. (Bowser), C.A. No. N10C-05-104, 2011 WL 2239803, [*3] (Del. Super. Jun. 3, 2011); see also Lohrmann v. Pittsburgh Corning Corp., 792 F.2d 1156 (4th Cir. 1986).

[28] Pls' Mem. in Opposition to Def. Armstrong's Mot. for Summary Judgment at 7-8 (discussing Kurak v. A.P. Green Refractories Co., 689 A.2d 757 (N.J. App. Ct. 1997); Linster v. Allied Signal, 21 A.3d 220 (Pa. Super. Ct. 2011); Buttita v. Allied Signal, Inc., 2010 WL 1427273 (N.J. Super. Ct. Apr. 5, 2010); Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992)).

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

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

[31] Id. at 880.

[32] Id. at 879-80.

[33] KAN. STAT. ANN §60-4907(a)-(b).

[34] 782 F.2d 1156, 1163 (4th Cir. 1986).

[35] In re Asbestos Litig. (Bowser), C.A. No. N10C-05-104, 2011 WL 2239803, [*4] (Del. Super. Jun. 3, 2011). [1] Melvin C. Gordon Video Dep. Tr., Jan. 12, 2011, at 165: 16-24.

[2] Id. at 165: 23-167: 12.

[3] Id. at 218: 18-219: 2 and 222: 24-227: 23; see also Melvin C. Gordon Discovery Dep., Jan. 13, 2011, at 151: 11-153: 7. [4] Gordon Video Dep. Tr. at 171: 16-22.

[5] Id. at 171: 19-21.

[6] The Court notes that Plaintiff has belatedly pointed out that this Court already rejected this argument in In re Asbestos Litig. (Haas), C.A. No. 10C-05-245 ASB (Del. Super. June 9, 2011) (TRANSCRIPT).

[7] See, e.g., In re Asbestos Litig. (Haas), No. 10C-05-245 ASB at 42(Del. Super. 9, 2011) (TRANSCRIPT) (finding that the Kansas statute tracks the Lohrmann standard); see also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986).

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