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[T] Nack v. Charles A. Wagner Co.6/28/2002
Submitted: May 29, 2002
ORDER
This 28th day of June 2002, it appears to this Court that:
1) Appellants are plaintiffs-below in a series of product liability actions filed in the Superior Court against Charles A. Wagner Co., Inc., stemming from Appellants' alleged exposure to asbestos contained in a sweeping compound supplied to their employer by Wagner. Appellants contend that they were exposed to the asbestos compound while employed at the DuPont Seaford nylon plant from 1958 to 1973. Wagner has consistently moved for summary judgment in these cases, based primarily on the theory that the exposed workers were unable to establish a sufficient nexus between the sweeping compound actually used in the DuPont plant and Wagner. In 1988, the Superior Court in Bradley v. A.C. & S. Co., Inc. granted Wagner's motion for summary judgment on exactly that basis. Several other orders of the Superior Court relied on either the precedent or reasoning of the Bradley order to similarly grant summary judgment. This is the consolidated appeal from those orders.
2) A trial judge shall grant summary judgment when the evidence before the court reveals no genuine issue of material fact in dispute. In applying that standard, the court must view all of the material facts and the reasonable inferences arising from them in a light most favorable to the non-moving party. The party bearing the burden of proof at trial, however, must provide sufficient evidence to carry that burden at trial. Among the elements that a plaintiff must prove in an asbestos-related products liability action is the existence of a sufficient nexus between the defendant and the injury -causing asbestos products.
3) The Bradley order granting summary judgment, which is at the heart of each of the decisions Appellants have appealed from, is premised on the notion that neither direct evidence nor the reasonable inferences drawn from the evidence presented could lead to the conclusion that Wagner was responsible for supplying the sweeping compound used. In so ruling, the trial judge relied heavily on a related decision from the United States District Court for the District of Delaware. In Morean v. Pittsburgh-Corning Corp., the Magistrate overseeing the case recommended that summary judgment be granted because the plaintiffs had provided insufficient evidence to defeat summary judgment. Specifically she found that the plaintiffs had failed to produce evidence tying Wagner's name to any of the materials at the DuPont Seaford plant. It is clear from the record that the Bradley trial judge relied heavily on the Magistrate's conclusions in his order.
4) The record supports, however, Wagner's concession that the evidence before the Bradley court was not the same as that before the Magistrate in the Morean case, but instead was materially identical to that of a second case, Wells v. Charles A. Wagner Co., Inc. In the latter case, the District Court rejected Wagner's Motion for Summary Judgment. Plaintiffs in that case expanded the record, presenting evidence that: a) Wagner shipped almost 38 tons of asbestos fiber to the DuPont plant; b) an asbestos compound consistent with that supplied by Wagner was used by or near the plaintiffs as a sweeping compound; c) there was deposition testimony associating Wagner's name with paper bags in which asbestos arrived at the plant; d) there was no evidence of any other asbestos sweeping compound delivered after 1959; and e) DuPont purchasing officers and Wagner's president corresponded in 1969 about the use of Wagner's asbestos fiber as a sweeping compound at the DuPont plant.
5) The Magistrate concluded that this was sufficient evidence
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