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In re Asbestos Litigation9/15/2003
Submitted: June 16, 2003
Upon appeal from the Superior Court. REVERSED and REMANDED.
In this appeal, we hold that plaintiffs who were allegedly injured by asbestos exposure have adduced sufficient evidence to permit a jury to determine whether the defendant, the distributor who sold the asbestos to the plaintiffs' employer, owed a duty to warn the plaintiffs about asbestos hazards. We conclude that the seller cannot avail itself of the "mere supplier" defense set forth in the Restatement (Second) of Torts. That asserted defense pertains only to the duty to inspect manufactured goods, which is not implicated here. It, therefore, is unnecessary for us to decide whether the mere supplier defense would accurately reflect Delaware law in an otherwise applicable context.
As to the plaintiffs' duty to warn claim, we find that the plaintiffs have presented facts from which one can reasonably infer that the defendant, as a sales entity and specialty distributor of industrial minerals, was on notice of the dangers posed by asbestos exposure. A jury must determine whether the defendant knew or should have known of those hazards, given its position in the chain of distribution of the asbestos products.
Finally, we conclude that the Delaware Sealed Container Defense Law does not apply to bar the plaintiffs' claims because the statute was enacted long after the sales of asbestos in this case. Accordingly, we reverse the Superior Court's grant of summary judgment dismissing the complaint. The case is remanded for further proceedings consistent with this opinion.
Facts
The plaintiffs were allegedly injured from exposure to asbestos while working at a chemical plant in Seaford, Delaware, where short-fibre asbestos was used as a sweeping compound to absorb spills on the plant floor. The owner of the plant, E.I. duPont de Nemours & Co. (DuPont), purchased the asbestos from the defendant, Charles A. Wagner Co., Inc. (Wagner). The plaintiffs, former DuPont employees, claim that Wagner owed a duty to warn them of the dangers posed by asbestos.
Wagner, a Pennsylvania corporation based in Philadelphia, served as a distributor for companies producing various types of minerals, including clay, pumice stone, talc, carbon black, and asbestos. These items were sold to several businesses in Pennsylvania, New Jersey, and Delaware. From the early 1950s until the early 1970s, Wagner was the area distributor for Asbestos Corporation Limited (ACL), a Canadian-based asbestos producer. The raw asbestos DuPont used as a sweeping compound was mined, crushed, dried, and ground into short fibers by ACL. The short-fibre asbestos was sold by ACL to Wagner and various other distributors. DuPont began purchasing asbestos from Wagner in 1958 and continued to buy the product until Wagner stopped carrying asbestos in 1973.
Although the asbestos passed through Wagner's warehouse, the distributor did not alter the product before it reached the Seaford Plant. When Wagner received bags of asbestos from ACL, Wagner placed an additional form on the bags, solely to mark the customer's order number and its destination. Occasionally, Wagner had to sew torn bags, or repackage the asbestos that arrived in damaged bags, before shipping the product to the buyer. Over the years, Wagner allegedly sold 38 tons of raw asbestos to DuPont before it stopped carrying asbestos.
Proceedings Leading to This Appeal
Ninety current and former employees of the Seaford Plant brought actions against Wagner in the Superior Court, alleging that they had contracted various injuries related to their exposure to the sweeping compound. According to plaintiff
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