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Rockman v. Union Carbide Corp.

United States District Court, D. Maryland

June 22, 2017

JEFFREY ROCKMAN & SONJA ROCKMAN, Plaintiffs,
v.
UNION CARBIDE CORP., et al., Defendants.

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge.

         Plaintiff Jeffrey Rockman and his wife, Sonja Rockman, (collectively “Plaintiffs” or “the Rockmans”) have brought this action against Defendants Union Carbide Corporation (“Union Carbide”) and Georgia-Pacific, LLC (“Georgia-Pacific”)[1], alleging Strict Liability (Count One); Breach of Warranty (Count Two); Negligence (Count Three); Fraud (Count Four); Conspiracy (Count Five); Market Share Liability (Count Six); and Loss of Consortium (Count 7), in connection with Mr. Rockman's alleged exposures to Defendants' asbestos-containing product during three home repairs in the summer of 1965, June of 1973, and early 1976, which the Plaintiffs now contend have caused him to develop Mesothelioma[2]. Short Form Compl., p. 8, ECF No. 2[3]; Jeffrey Rockman Dep., pp. 36-88; 111-125; 133-160, ECF No. 174-2. This action was initially filed in the Circuit Court for Baltimore City, Maryland, but Union Carbide has subsequently removed the case to this Court. Although Plaintiffs initially named an additional twenty-four Defendants in this action, they have since voluntarily dismissed all claims against those Defendants, including all Defendants with corporate citizenship in Maryland, thereby rendering this case removable based on diversity of citizenship[4]. See Memorandum Order, ECF No. 114 (granting Stipulations of Dismissal).

         Currently pending before this Court are the following five unopposed motions for partial summary judgment: Defendants' Joint Motion for Partial Summary Judgment and to Exclude Opinion Evidence on Any Claim Based on Unrelated Kidney Cancer (ECF No. 154); Union Carbide's Motion for Partial Summary Judgment on Breach of Warranty, Fraud, Market Share Liability, Conspiracy, and Punitive Damages (ECF No. 155); Georgia-Pacific's Motion for Summary Judgment on Plaintiff's Claims of Civil Conspiracy, Fraud and Aiding and Abetting (ECF No. 157); Georgia-Pacific's Motion for Summary Judgment on Plaintiff's Claim for Breach of Warranty (ECF No. 158); and Georgia-Pacific's Motion to Dismiss, or, in the Alternative, for Summary Judgment on Plaintiffs' Claims for Punitive Damages (ECF No. 163). The parties' submissions have been reviewed, and no hearing on these five unopposed motions is necessary. See Local Rule 105.6 (D. Md. 2016).[5]

         For the reasons stated herein, Defendants' Unopposed Joint Motion for Partial Summary Judgment and to Exclude Opinion Evidence on Any Claim Based on Unrelated Kidney Cancer (ECF No. 154) is GRANTED. Accordingly, Judgment shall be entered for Defendants as to any claim based on Mr. Rockman's earlier-diagnosed kidney cancer, and Plaintiffs' expert Dr. Arthur Frank shall not testify that Mr. Rockman's kidney cancer was caused by asbestos exposure. Additionally, Union Carbide's Unopposed Motion for Partial Summary Judgment on Breach of Warranty, Fraud, Market Share Liability, Conspiracy, and Punitive Damages (ECF No. 155) is GRANTED; Georgia-Pacific's Unopposed Motion for Summary Judgment on Plaintiff's Claims of Civil Conspiracy, Fraud and Aiding and Abetting (ECF No. 157) is GRANTED; Georgia-Pacific's Unopposed Motion for Summary Judgment on Plaintiff's Claim for Breach of Warranty (ECF No. 158) is GRANTED; and Georgia-Pacific's Unopposed Motion for Summary Judgment on Plaintiffs' Claims for Punitive Damages (ECF No. 163) is also GRANTED. Therefore, Judgment shall be entered for Defendants as to Mr. Rockman's Breach of Warranty claim (Count Two), Fraud claim (Count Four), Conspiracy claim (Count Five), and Market Share Liability claim (Count Six); any aiding and abetting claim against Georgia-Pacific; and the Rockmans' request for punitive damages. Punitive damages shall not be awarded in this case. Accordingly, there are three remaining counts against Defendants Union Carbide and Georgia-Pacific: Mr. Rockman's Strict Liability claim (Count One), Mr. Rockman's Negligence claim (Count Three), and the Rockmans' Loss of Consortium claim (Count Seven).

         BACKGROUND

         Plaintiff Jeffrey Rockman and his wife Sonja Rockman (collectively “Plaintiffs” or “the Rockmans”) live in Timonium, Maryland. Jeffrey Rockman Dep., p. 10, ECF No. 174-2. Mr. Rockman was diagnosed with Mesothelioma on October 28, 2014. See Attach. to Short Form Compl., ECF No. 2-2. Prior to his illness, Mr. Rockman was a partner in the Towson, Maryland law firm of Serotte, Rockman & Wescott, P.A., although he has indicated in an October 27, 2015 deposition that he is no longer able to work. Rockman Dep. at 12.

         Mr. Rockman has stated that he was exposed to an asbestos-containing product only three times in his life: during a repair to the bedroom ceiling of his Brooklyn, New York apartment in the summer of 1965, repairs to the foyer and living room walls of his Baltimore, Maryland apartment in June of 1973, and a repair to the living room ceiling and dining room walls of his prior home on Broadmoor Road in Baltimore, Maryland in early 1976. See Rockman Dep. at 36-88; 111-125; 133-160. On all three occasions, Mr. Rockman did not perform the repairs himself, but rather hired “workmen” or “handymen.” Id. Mr. Rockman contends that Georgia-Pacific Ready Mix joint compound was used in all three repairs, that the joint compound contained chrysotile asbestos, and that its use generated asbestos-containing dust, to which Mr. Rockman was exposed. Id.

         From 1963 to 1985, Union Carbide Corporation (“Union Carbide”) mined, milled, manufactured and marketed to other asbestos product manufacturers a particular chrysotile asbestos product under the trade name Calidria asbestos. See Union Carbide's Answers to Plaintiffs' First Set of Interrogatories and Request for Production of Documents in the United States District Court for the District of South Carolina, ECF No. 174-3. There is no dispute that Georgia-Pacific purchased Calidria for use in its joint compound products in approximately 1970. Mr. Rockman concedes that he was not exposed to Union Carbide Calidria prior to 1970, during the repair to his New York apartment in the summer of 1965.

         Plaintiffs Jeffrey and Sonja Rockman have now brought this action against Defendants Union Carbide and Georgia-Pacific, adopting several claims set forth in the “Other Asbestos Cases Master Complaint” in the Circuit Court for Baltimore City, Maryland. See Short Form Compl., p. 8, ECF No. 2. Specifically, Mr. Rockman has brought claims for Strict Liability (Count One), Breach of Warranty (Count Two), Negligence (Count Three), Fraud (Count Four), Conspiracy (Count Five), and Market Share Liability (Count Six). Id. The Rockmans have jointly raised an additional claim for Loss of Consortium (Count Seven). Id. This case was initially brought in the Circuit Court for Baltimore City, but was subsequently removed to this Court by Union Carbide. Now pending before this Court are Georgia-Pacific's and Union Carbide's five unopposed motions for partial summary judgment as to several of the Rockmans' claims.[6]

         STANDARD OF REVIEW

         Rule 56 of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is one that “might affect the outcome of the suit under the governing law.” Libertarian Party of Va. v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A genuine issue over a material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. When considering a motion for summary judgment, a judge's function is limited to determining whether sufficient evidence exists on a claimed factual dispute to warrant submission of the matter to a jury for resolution at trial. Id. at 249. In undertaking this inquiry, this Court must consider the facts and all reasonable inferences in the light most favorable to the nonmoving party. Libertarian Party of Va., 718 F.3d at 312; see also Scott v. Harris, 550 U.S. 372, 378 (2007). This Court “must not weigh evidence or make credibility determinations.” Foster v. University of Md.-Eastern Shore, 787 F.3d 243, 248 (4th Cir. 2015) (citing Mercantile Peninsula Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007)). However, this Court must also abide by its affirmative obligation to prevent factually unsupported claims and defenses from going to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993).

         ANALYSIS

         I. Judgment Shall Be Entered for Defendants Union Carbide and Georgia-Pacific as to Any Claim Based on Mr. Rockman's Kidney Cancer

         Defendants Union Carbide and Georgia-Pacific have indicated to this Court that Plaintiff Jeffrey Rockman was diagnosed with “unrelated stage one kidney cancer” in 2004, “ten years before he developed mesothelioma, and eleven years before Plaintiffs filed this lawsuit.” Mem. Supp. Mot., p. 1, ECF No. 154-1. Plaintiffs have not discussed Mr. Rockman's kidney cancer diagnosis either in their Short Form Complaint or in their subsequent filings in this Court. However, Dr. Arthur Frank, one of Plaintiffs' medical experts, has testified at his deposition that he believes Mr. Rockman's kidney cancer was caused by asbestos exposure. Dr. Frank Dep., p. 8, ECF No. 154-2. “Out of an abundance of caution, ” Defendants have now jointly moved for summary judgment as to any claim based on Mr. Rockman's kidney cancer. Defendants ...


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