United States District Court, D. Maryland
Richard D. Bennett United States District Judge.
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”), 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. Short Form Compl., p. 8, ECF No.
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. See Memorandum Order, ECF No.
114 (granting Stipulations of Dismissal).
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).
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).
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
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
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.
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.
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.
Judgment Shall Be Entered for Defendants Union Carbide
and Georgia-Pacific as to Any Claim Based on Mr.
Rockman's Kidney Cancer
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 ...