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Sherin v. John Crane-Houdaille, Inc.

United States District Court, D. Maryland, Northern Division

September 16, 2014

MELVIN F. SHERIN, et al., Plaintiffs,
JOHN CRANE-HOUDAILLE, INC., et al., Defendants

Page 281

For Melvin F. Sherin, Personal Representative of the Estate of Roberta L. Sherin, Melvin F. Sherin, Surviving Spouse of Roberta L. Sherin, Suzette Desser, Surviving Child of Roberta L. Sherin, Stephanie Love, Surviving Child of Roberta L. Sherin, Plaintiffs: Fredrick Hugh Durst, LEAD ATTORNEY, Law Offices of Peter G Angelos, Baltimore, MD.

For Owens-Illinois Glass Co., f/k/a Owens-Illinois, Inc., Defendant, Cross Defendant: Steven Andrew Luxton, LEAD ATTORNEY, Morgan Lewis and Bockius LLP, Washington, DC.

For Metropolitan Life Insurance Company, Defendant, Cross Defendant: Richard Damon Albert, Steptoe and Johnson LLP, Washington, DC.

For A.W. Chesterton Company, Defendant, Cross Defendant: Keith R Truffer, Royston Mueller McLean and Reid LLP, Towson, MD.

For Kaiser Gypsum Company, Inc., Defendant, Cross Defendant: Joel D Newport, LEAD ATTORNEY, Moore and Jackson LLC, Baltimore, MD.

For Union Carbide Corporation, Defendant: Anna Schultz Kelly, Danielle Grilli Marcus, Peter Woodward Sheehan, Whiteford Taylor and Preston LLP, Baltimore, MD; R Thomas Radcliffe, Jr, Dehay and Elliston LLP, Baltimore, MD.

For Union Carbide Corporation, Cross Defendant: Danielle Grilli Marcus, Whiteford Taylor and Preston LLP, Baltimore, MD; R Thomas Radcliffe, Jr, Dehay and Elliston LLP, Baltimore, MD.

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William D. Quarles, Jr., United States District Judge.

Melvin F. Sherin,[1] individually and as personal representative of the Estate of Roberta L. Sherin, sued Union Carbide Corporation (" Union Carbide" )[2] in an asbestos-related product liability action. Pending are Union Carbide's motion in limine, ECF No. 179, motion for summary judgment, ECF No. 178, and motion for partial summary judgment, ECF No. 181. For the following reasons, the motions will be granted in part and denied in part.

I. Background[3]

A. Facts

1. Exposure to Asbestos Dust

This case arises from Mrs. Sherin's fatal mesothelioma, allegedly caused by asbestos fibers she inhaled during the construction of her home and while washing the clothing Mr. Sherin wore while visiting construction sites as a carpet salesman. See ECF Nos. 2, 183 at 1.[4]

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In 1968, Mr. and Mrs. Sherin bought an undeveloped lot at 8528 Brattle Road, Pikesville, Maryland. ECF No. 183 at 4. In the spring of 1969, construction of their new home (" Brattle Road" ) began; it was completed in early 1970. Id. Mr. and Mrs. Sherin visited the Brattle Road construction site every day for almost one year. ECF Kos. 182 at 3, 183-2 at 22. Each visit lasted between 20 and 90 minutes. ECF No. 183-2 at 23.

While at the site, Mr. Sherin saw buckets of " Georgia-Pacific" and " Gold-Bond" [5] joint compound. ECF Nos. 183 at 4, 183-2 at 26-28. Mr. Sherin described the buckets as " black," " bluish-white," and " white" plastic and metal. ECF No. 183-2 at 26-28. Contractors used the joint compound to tape the seams of the drywall sheets and then sanded the joint compound. Id. at 25.[6] Mr. Sherin saw " tremendous" clouds of dust generated by this work. ECF Nos. 183 at 4, 183-2 at 25-26. Mrs. Sherin would sweep the dust off the floor so that their children could sit and play. ECF No. 183-2 at 15, 25-26.

From 1968 to 1976, Mr. Sherin was a sales representative for Crown Products, a carpet manufacturer, covering Maryland, Northern Virginia, and the District of Columbia. Id. at 10-12.[7] Mr. Sherin visited eight to ten construction sites each month; he ultimately visited " hundreds" of sites. Id. at 42, 49, 53. While at the sites, Mr. Sherin saw buckets of " Georgia-Pacific" and " Gold Bond" joint compound being used " [m]any times." Id. at 54, 57. Dust from the construction sites adhered to his outer clothing, some of which was washed by Mrs. Sherin. Id. at 48, 52, 55.

Doctors Abraham and Kipen testified about Mrs. Sherin's mesothelioma. See ECF Nos. 183-19; 183-20. Dr. Abraham testified that " [i]f laundering [Mr. Sherin's] clothes created aerosolized asbestos fibers that she inhaled, that would be part of her cumulative exposures and part of the causation of her mesothelioma." ECF No. 183-19 at 14. Dr. Abraham also testified that every exposure would be a contributing cause, and that each exposure increases the risk of mesothelioma because " there is a dose-response relationship." Id. At 11-12. Dr. Kipen characterized Mrs. Sherin's exposure as " substantial domestic exposure" as a result of her laundering of Mr. Sherin's clothes for many years. ECF No. 183-20 at 7.[8] He opined that Mrs. Sherin's mesothelioma resulted from her " cumulative exposure to asbestos dust." Id. at 5-6.

2. Union Carbide's Sales

Between 1963 and 1985 Union Carbide sold raw chrysotile asbestos fiber referred to as " SG-210" or " Calidria" to third-party manufacturers--including Georgia-Pacific and National Gypsum--who incorporated it into their products. Id. at 2.

Sales to Georgia-Pacific began in the late 1960s[9] or early 1970s. See ECF No. 183-6 at 119-122.

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Until 1973, Georgia-Pacific manufactured " Ready Mix" joint compound and supplied the Baltimore area from its Akron, New York plant. ECF No. 183-10 at 7-8. Thereafter, manufacturing for the Baltimore area shifted to Georgia-Pacific's Milford, Virginia plant. Id. Until 1970, the various Ready Mix formulas contained asbestos supplied by Phillip Carey. ECF No. 183-8 at 10. After September 1970, all Ready Mix formulas used Calidria supplied by Union Carbide. Id.[10]

There is conflicting evidence about when National Gypsum, the manufacturer of " Gold Bond" joint compound, began using Calidria. Responses to interrogatories in a prior case stated that--" around 1967" --National Gypsum began using Calidria. ECF No. 183-11 at 9. Interoffice correspondence from National Gypsum's Long Beach, California, plant states that--in 1968--National Gypsum began testing Calidria as a replacement asbestos fiber. ECF No. 186-16 at 2.[11] Donald Doty, a former National Gypsum employee, testified that--as of early 1969--National Gypsum used SG-210 exclusively in its joint compound formula. ECF No. 183-13 at 15. However, Doty's testimony consisted of him reading from a Regional Plant Manager's Meeting Report about National Gypsum's West Coast operations. ECF Nos. 186-1 at 2-3, 183-14 at 5-6. National Gypsum supplied the Baltimore area from its Baltimore plant. ECF Nos. 186 at 4 n.6, 186-1 at 6.

National Gypsum business records show substantial sales of Calidria from Union Carbide to National Gypsum's Baltimore plant. ECF No. 183-18. The earliest recorded sale was in April 1969. Id. at 23, 42. Almost all the invoices, however, are dated 1971 to 197b. See generally id.

3. Union Carbide's Awareness of the Dangers of Asbestos Exposure and its Warnings to Customers

Controversy about the safety of asbestos dates from the 1940s. See ECF No. 183-24 at 6.[12] A 1947 Report of Preliminary Dust Investigation (" Dust Investigation Report" ) prepared by the Industrial Hygiene Foundation of America, Inc. (" IHF" ), of which Union Carbide is allegedly a founding member, stated that information available at that time " [did] not permit complete assurance that five million [particles per cubic foot][13] is thoroughly safe nor has information been developed permitting a better estimate of safe dustiness." ECF No. 183-25 at 4, 23. The Dust Investigation Report urged further

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study to measure " any remaining hazard in the dust zone below five million for the elimination of future asbestosis depends upon the degree of control effected now." Id.

In 1956, Henry Field Smith, Jr., Ph.D., authored a journal article for Union Carbide and the Mellon Institute, in which he stated that threshold limits and maximum allowance concentrations were misleading. See ECF no. 183-29 at 3. According to Dr. Smith, the use of such terms suggested that " human response" to exposures less than those amounts would be " negligible," when " no such description can truthfully attach[] to most of them." Id.

In 1965, Union Carbide prepared an internal memorandum in response to news reports concerning the possible carcinogenic properties of asbestos. See ECF No. 183-32. The memorandum recommended that personnel responding to customer inquiries after the news reports refer to an Asbestos Toxicology Report (" Toxicology Report" ) prepared by Union Carbide's Director of Toxicology, Dr. C.U. Dernehl. See id. at 1. The Toxicology Report states that although " [i]t has been known for many years that some persons working in asbestos production were prone to develop a disabling lung disease," " a man can work a 40-hour week for a lifetime without developing asbestosis" if exposures were kept below five million particles per cubic foot. See id. at 3.[14]

In 1967, I.C. Sayers prepared a report for Union Carbide in the United Kingdom, titled " Asbestos as a Health Hazard in the United Kingdom" (" Sayers Report" ). See ECF No. 183-36. The Sayers Report states that mesothelioma is associated with inhaling asbestos; that " [m]esothelioma is the most disturbing" of diseases attributable to asbestos; and that it can occur after " brief exposure," possibly as low as " three months," or, according to " [s]ome authorities[,] . . . a single brief exposure might be sufficient." Id. at 11. The Sayers Report also mentions an article published on October 31, 1965, by the Sunday Times, describing a dock worker's wife who died of mesothelioma; her only exposure to asbestos was from washing her husband's work clothes. See id. at 4.

In June 1967, Dr. Dernehl reviewed the Sayers Report, finding it " reasonably accurate." ECF No. 183-38 at 1. Dr. Dernehl stated that " [i]t is probable that the 5 million particles per cubic foot will not be acceptable for the prevention of mesothelioma." Id. at 2.

In May-June 1972, the Occupational Safety and Health Administration (" OSHA" ) published " Asbestos: Airborne Danger" (" Asbestos Article" ). See ECF No. 183-55. The Asbestos Article states that incidences of mesothelioma are " now appearing at an unprecedented rate," and " [r]esearchers are linking it to asbestos exposure, however slight." Id. at 6. The Asbestos Article further states that " [a]sbestos contamination holds an increasing threat to the general public." Id. at 8. " Unsuspecting passers-by in the vicinity of construction sites or families of workers who return home with dusty clothing are among those exposed to this hazard." Id.

In May 1973, Union Carbide's Medical Department sent a letter to its Law Department citing the Medical Department's

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disagreements with various conclusions drawn by the Mining and Metals Division following its Calidria Asbestos study. See ECF No. 183-59. The Medical Department compared the Mining and Metals Division's conclusions with criteria for asbestos exposure set by the National Institute of Occupational Safety and Health (" NIOSH" ). See id. at 1. The Medical Department stated:

- In response to the conclusion by Mining and Metals Division that asbestosis and lung cancer occurred only in workers with longterm exposure to large amounts of dust, NIOSH had reported positive x-ray findings of asbestos exposure in individuals known to be exposed for just one day and had referenced " earlier data of family cases with reasonably short and/or low levels of exposure" ; and - In response to the conclusion that " there is no evidence that the general public is in any danger from the amount of asbestos fiber in the community air," NIOSH had previously stated that " some question may be raised of a possible neighborhood exposure."

See id. at 1-2, 4-5. The Medical Department also noted that various slides produced by the Mining and Metals Division were " misleading" or contained " half-truths." Id. at 6-7.

Beginning in 1968, Union Carbide included warnings on its bags of Calidria asbestos[15] and--in 1972--it modified the warning to comply with newly-enacted OSHA regulations. See ECF No. 178-1 at 18. Georgia-Pacific employees who handled bags of Calidria asbestos testified that they did not recall seeing any warnings printed on the bags or receiving information from Union Carbide about the health hazards of asbestos. See ECF Nos. 183-73 at 3; 183-74 at 2. Union Carbide no longer has any of the bags that were used during the time it sold Calidria through 1985. See ECF No. 183 at 29.

Beginning in 1964, Union Carbide provided its Asbestos Toxicology Report to all customers. See ECF No. 178-4 at 5, 9. Union Carbide also provided its customers with various regulations, reports, and literature on the topic of health risks associated with asbestos. See id. The 1967 Sayers Report, however, was not distributed to customers. See ECF No. 183-39 at 18.

In 1972, Union Carbide began providing customers with its Material Safety Data Sheet about Calidria asbestos (" Calidria Data Sheet" ). Id. The Calidria Data Sheet stated that Calidria contained no hazardous ingredients, although it provided guidance on airborne exposure to asbestos and noted that " [p]rolonged overexposure may result in lung damage." ECF No. 183-56.

Also in 1972, Union Carbide's Mining and Metals Division recommended responding to customer concerns about asbestos by stating that " [a]sbestos is proven harmful only when TLV's are exceeded for 10-30 years" and that " [i]t is not a proven fact that asbestos dust causes cancer when regulations are observed." ECF No. 183-50 at 1.

In 1973, Union Carbide internal correspondence directed personnel to inform customers that " asbestos is not a carcinogen" under OSHA regulations, and stated that " [a]s you know, the answer to the same question in the broad sense is not as clear-cut," and medical opinion varies from " [a]sbestos is a very dangerous ...

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