Heddinger v. Ashland Oil, Inc., et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
KAY HEDDINGER, Individually
and as Surviving Spouse of HAROLD
HEDDINGER, deceased,
Plaintiff,
v.
ASHLAND OIL, Inc., et al.,
Defendants.
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C.A. No. 06C-05-295 BEN
Submitted: November 28, 2011
Decided: January 13, 2012
Upon The Sherwin-Williams Company’s Motion for Summary Judgment Based on
Lack of Product Identification and Product Nexus: DENIED IN PART, and
GRANTED IN PART
Ian Connor Bifferato, David W. deBruin (argued), Bifferato LLC, 800 N. King
Street, Plaza Level, Wilmington, DE 19801, Simmons Browder Gianaris Angelides
& Barnerd LLC, Of Counsel, One Court Street, Alton, IL 62002, Attorneys for
Plaintiffs.
William R. Adams (argued), Dickie, McCamey & Chilcote, P.C., 300 Delaware
Avenue, Suite 1630, Wilmington, DE 19801, and Christopher Stofko, James R.
Miller, and Katherine S. Gallagher, Of Counsel, Two PPG Place, Suite 400,
Pittsburgh, PA 15222, Attorneys for The Sherwin-Williams Company.
Jurden, J.
I. INTRODUCTION
Kay Heddinger, on behalf of her deceased husband, Harold Heddinger, and
as his surviving spouse (“Plaintiff”), brings this wrongful death suit against The
Sherwin-Williams Company (“Sherwin-Williams”). Plaintiff alleges that Mr.
Heddinger’s exposure to Sherwin-Williams’ paint and paint-related products
(hereinafter “paint products”) in his occupational and non-occupational capacities
caused his Acute Myelogenous Lukemia (“AML”), a type of cancer, which
ultimately led to his death. Sherwin-Williams moves for summary judgment based
upon Plaintiff’s witnesses’ failure to specifically identify Mr. Heddinger’s use of
Sherwin-Williams paint products. For the following reasons, Sherwin-Williams
Motion is DENIED IN PART, and GRANTED IN PART.
II. FACTS
Mr. Heddinger worked at Rockwell Goss/Goss Graphic (“Goss”) in Cedar
Rapids, Iowa from 1967 to 1996 assembling and repairing printing presses.1
Plaintiff alleges that Mr. Heddinger, in his occupational capacity at Goss and his
non-occupational capacity at home, was “exposed to, inhaled, ingested and/or
otherwise absorbed benzene fumes emanating from benzene and benzenecontaining products” that were sold, supplied and/or manufactured by Sherwin-
1
Plaintiffs’ Second Amended Complaint (“Pl.’s Am. Compl.”) at ¶ 4.
2
Williams. 2
Plaintiff claims that, as a result of his exposure, Mr. Heddinger
developed AML and died on November 16, 2004. 3
Plaintiff has produced three witnesses to establish Mr. Heddinger’s exposure
to Sherwin-Williams’ products. Robert Leuenberger and Jacob Bulicek testified
about Mr. Heddinger’s occupational exposure at Goss, and Kay Heddinger testified
about his non-occupational exposure in their home. 4
A. Mr. Heddinger’s Alleged Occupational Exposure
1. Mr. Heddinger’s Work Experience
Mr. Leuenberger, who worked at Goss from 1966 to 1996, testified about
Mr. Heddinger’s daily routine and the physical locations where he generally
worked while at Goss. 5 He testified that he worked with Mr. Heddinger for many
years in “Heavy Frames.” 6 Mr. Leuenberger started in Heavy Frames in 1969, and
Mr. Heddinger joined him in 1970.7 Working in Heavy Frames required Mr.
Heddinger to clean, smooth, and apply sealer, 8 and paint the inside of a pair of
printing press frames that came from the machine shop.9 Mr. Heddinger used an
unnamed lacquer thinner to clean the metal.10 Goss employees, including Mr.
2
Id. at ¶ 4.
Id. at ¶ 5, 9
4
Defendant Sherwin-Williams’ Motion for Summary Judgment (“Def. Mot. for Sum. J.”) at p. 1.
5
Plaintiff’s Brief in Opposition to Defendant’s Motion for Summary Judgment (“Pl.’s Br.”) at Exhibit A, p. 8.
6
Id. at p. 10.
7
Id. at pp. 8, 10.
8
Id. at p. 22.
9
Id. at 9.
10
Id. at 19-21.
3
3
Leuenberger and Mr. Heddinger, applied the paint and sealer with small paint
brushes. No one wore gloves, masks, or eye protection during this process. 11 Mr.
Leuenberger and Mr. Heddinger worked together in Heavy Frames until Mr.
Heddinger left that department in 1991 to work in Final Assembly. 12 After Heavy
Frames finished its process, the frames moved to Final Assembly. 13
In Final Assembly, the frames were cleaned again by spraying them down
with the aforementioned lacquer thinner. 14 Mr. Leuenberger stated that it took
approximately an hour to an hour and a half to “spray out” a frame. 15
Mr.
Leuenberger also testified that when he walked through Final Assembly he could
detect fumes in the air. 16
Once Final Assembly completed its preparations, the frames were moved to
the Painting Area. Here, the frames underwent high pressure cleaning and were
painted. 17 Because the fumes would “extend a ways out into the plant,” anyone
working in the Paint Area or Final Assembly in the old Goss building 18 could
11
Id. at pp. 44-45, 47.
Id. at pp. 8, 10.
13
Id. at pp. 19-21.
14
Id. at pp. 23-24.
15
Id. at p. 24.
16
Id.
17
Id. at pp. 25-26. Mr. Leuenberger could not identity the paint that was used for this process.
18
Mr. Heddinger worked in two different buildings while he was employed at Goss. A more thorough description
of the two buildings is provided below.
12
4
smell the fumes. 19
According to Mr. Leuenberger, however, the fumes were not
detectable in Heavy Frames. 20
Jacob Bulicek’s career at Goss started in 1988 in the Purchasing
Department, where he remained until Goss closed in August 2001.21 Mr. Bulicek
worked as a buyer for maintenance, repair, and operating supplies (“MRO”). 22 As
a buyer, he purchased operating supplies for the Goss plant such as “tooling,
lumber, janitorial, paint . . . and related accessories and supplies.” 23
Goss
employees used the paint that Mr. Bulicek ordered for painting the printing
presses. 24
Mr. Bulicek testified that Goss’ main paint supplier was SherwinWilliams. 25 He also testified that although other paint suppliers may have been
used by Goss, 26 he does not recall ordering any other paint besides SherwinWilliams during his time as a purchaser in MRO.
2. The Two Goss Facilities
During Mr. Heddinger’s time at Goss, he worked in two buildings. When he
started, Goss employees worked in a smaller, older building (the “old building”).
19
Pl.’s Br. at pp. 26-27.
Id. at p. 26.
21
Pl.’s Br. at Exhibit B, pp. 6-7.
22
Id. at pp. 7-8. Mr. Bulicek worked in this position for approximately 4 and a half years, but not continuously. He
worked as an MRO for two years, then moved to raw materials purchasing for one year. After that, he moved back
to work as an MRO for a year and a half. Id. at p. 20.
23
Id. at pp. 8-9.
24
Id. at p. 9.
25
Id. at pp. 9-10. Mr. Bulicek also purchased paint related products from Sherwin-Williams on behalf of Goss, but
could not recall if he had ever purchased lacquer thinner.
26
See id. at p. 10.
20
5
In the late 1980’s, Goss obtained a newer, bigger building (the “new building”). 27
In both the old and new buildings, Final Assembly was located directly next to
Heavy Frames, 28 and the Paint Area was located at the end of Final Assembly. 29
The old building had no barriers between each area and the plant was described as
“wide open.” 30 The old building was windowless, and “big corn dryer fans” were
used at one point to circulate air within the old building. 31
The fans did not
circulate fresh air into the old building. 32 Goss used a large exhaust fan to ventilate
the Paint Area. 33
Despite the large exhaust fan and the use of paint booths,
employees could smell paint fumes in Final Assembly every time a frame was
painted in the old building.34
In the new building, the Paint Area was “one bay over from the final
assembly area,” but unlike the old building, there was a wall between the Paint
Area and Final Assembly, with a large door connecting the two. 35 Testimony
suggests that the door may have acted as a barrier that could potentially seal off the
two areas from one another, but not definitively.36 Frames were painted in paint
27
Pl.’s Br. at Exhibit A, pp. 11-12.
Id. at p. 13.
29
Id. at p. 14.
30
Id. at pp. 14; 35.
31
Id. at p. 37.
32
Id.
33
Id. at p. 39.
34
Id. at p. 53. Mr. Leuenberger testified that he did not know the name of the paint used in the paint area.
35
Id. at p. 14.
36
See id. at p. 15.
28
6
booths where a filtering system filtered the air. 37 Mr. Bulicek testified that he did
not know if the filters vented the paint particles outside or inside of the building. 38
Further, he did not know whether the large doors separating Final Assembly and
the Paint Area in the new building were closed or open while the presses were
being painted. 39
B. Mr. Heddinger’s Alleged Non-occupational Exposure
Plaintiff testified that she and Mr. Heddinger used Krylon spray paint, a
Sherwin-Williams’ product, approximately six times per year from the 1970’s until
approximately 1996.40 Mr. Heddinger allegedly used Krylon paint more often in
1995 when he and Plaintiff spray painted pieces of furniture in preparation for
opening a gift shop. 41
Plaintiff testified that Mr. Heddinger did most of the
painting, and that it took approximately four weeks to complete. 42
She also
testified that, while painting, Mr. Heddinger experienced dizziness and nausea,
which were symptoms similar to those he experienced while working at Goss. 43
37
Pl.’s Br. at Exhibit B, p. 23.
Id.
39
Id. at p. 36.
40
Def. Mot. for Sum. J. at Exhibit C, pp. 88-89, 92-93. Krylon spray paint is a Sherwin-Williams product. See
http://www.krylon.com/terms/
41
Id. at pp. 84-85, 88-89.
42
Id. at pp. 89-90.
43
Id. at pp. 91, 94-95.
38
7
III. PARTIES’ CONTENTIONS
Sherwin-Williams moves for summary judgment under Iowa law with
respect to Mr. Heddinger’s occupational and non-occupational exposure. 44
Sherwin-Williams argues that because “Leuenberger and . . . Bulicek failed to
identify any actual occasion, time and/or job where they specifically observed Mr.
Heddinger using a Sherwin-Williams[’] product,” there is no genuine issue of
material fact and Sherwin-Williams is entitled to judgment as a matter of law. 45
Regarding Mr. Heddinger’s non-occupational exposure, Sherwin-Williams
moves for summary judgment because Plaintiff “failed to identify with the
specificity required a particular occasion, time and/or job where she specifically
observed Mr. Heddinger using a Sherwin-Williams product.” 46 In support of its
motion, Sherwin-Williams argues that Plaintiff “must produce some evidence
establishing exposure by Harold Heddinger to a specific Sherwin-Williams product
in order for her [(Plaintiff’s)] claims to survive a summary judgment motion based
on lack of product identification.”47
Moreover, Sherwin-Williams argues that
because Sherwin-Williams did not own Krylon until June 25, 1990, Sherwin-
44
Both parties agree that the substantive law of Iowa controls. See Transcript of Oral Argument at 5-6; Pl.’s Br. at p.
1; Def. Br. in Support of Mot. for Sum. J. at p. 2.
45
Def. Mot. for Sum. J. at ¶ 6.
46
Id.
47
Sherwin-Williams Brief in Support of Motion for Summary Judgment (“Def.’s Br. in Support of Mot. for Sum.
J.”) at p. 2.
8
Williams is not responsible for any liability related to Krylon paint before that
date, and thus summary judgment is appropriate. 48
On this point, Plaintiff argues that summary judgment is premature and
inappropriate because expert discovery has not yet occurred. 49
Plaintiff also
argues that, notwithstanding a lack of expert discovery, she has produced sufficient
evidence of exposure to survive Sherwin-Williams’ Motion for Summary
Judgment. 50
IV. STANDARD OF REVIEW
The Court will grant summary judgment “if the pleadings, depositions,
answers to interrogatories, and admissions on file . . . show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” 51 The moving party bears the initial burden of establishing that
material facts are not in dispute. 52 Summary judgment is appropriate if, after
viewing the facts in the light most favorable to the non-moving party, there are no
material facts in dispute, or the moving party is entitled to judgment as a matter of
law. 53 “If, however, the record reveals that material facts are in dispute, or if the
48
Def. Mot. for Sum. J. at Exhibit D.
Pl.’s Br. at p. 1.
50
Id.
51
Super. Ct. Civ. R. 56(c).
52
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
53
Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879–80 (Del. Super. 2005).
49
9
factual record has not been developed thoroughly enough to allow the Court to
apply the law to the factual record, then summary judgment will not be granted.” 54
V. DISCUSSION
Plaintiff and Sherwin-Williams agree that Iowa law applies to the
substantive issues in this case. 55
However, the parties disagree as to the
application of Iowa law with respect to the proper level of product identification
necessary to withstand a motion for summary judgment.
Both parties suggest that Iowa asbestos cases are instructive. In the context
of asbestos litigation, to recover under Iowa law, a plaintiff must establish that
“[t]he conduct of a party is a proximate cause of damage when it is a substantial
factor in producing damage and when the damage would not have happened except
for the conduct.” 56 Although the Iowa courts have adopted this “substantial factor”
test to analyze proximate cause, it is important to note that proximate cause issues
are “ordinarily a question for the jury.” 57 And, under Iowa law, when making a
proximate cause determination, Iowa courts consider circumstantial evidence
equally as probative as direct evidence. 58
54
In re Asbestos Litigation, 2007 WL 2410879, at *2 (Del. Super) (citing Ebersole v. Lowengrub, 180 A.2d 467,
470 (Del. 1962)); see also Cook v. City of Harrington, 1990 WL 35244, at *3 (Del. Super.) (citing Ebersole, 180
A.2d at 467) (“Summary judgment will not be granted under any circumstances when the record indicates ... that it
is desirable to inquire more thoroughly into the facts in order to clarify the application of law to the
circumstances.”).
55
Pl.’s Br. at p. 1; Def.. Br. in Support of Mot. for Sum. J. at p. 2; Transcript of Oral Argument at p. 5-6.
56
Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 858 (Iowa 1994). The Court notes that Iowa’s
“substantial factor” analysis essentially operates as a straight forward “but-for” analysis.
57
Id.
58
Id. (citing Iowa R.App.P. 14(f)(16).
10
Interestingly, Plaintiff and Sherwin-Williams both rely on the same cases in
support of their positions: Spaur v. Owens-Corning Fiberglas Corp. 59 and Beeman
v. Manville Corp. Asbestos Disease Compesnsation Fund. 60
Spaur is an Iowa Supreme Court case that fully addresses the substantial
factor test and its application in asbestos cases. 61 In that case, doctors diagnosed
the plaintiff with mesothelioma five years after he retired from his job working at
an Iowa power plant. 62 The plaintiff worked in the plant for twenty-five years. 63
The parties did not dispute the plaintiff’s asbestos exposure; they disputed whose
asbestos caused the plaintiff’s injury. 64 In Spaur, the Iowa Supreme Court applied
the substantial factor test, and also discussed three different tests that have been
used in various other jurisdictions. 65
The court noted that plaintiffs in some
jurisdictions are required to prove exposure to the defendant’s product and “that it
is more likely than not this exposure was a substantial factor in his injury.” 66
Other jurisdictions have a “less rigid approach” in that they do not require that
“each of several concurring contributing causes be sufficient, standing alone, to
59
Spaur, 510 N.W.2d at 857.
496 N.W.2d 247 (Iowa 1993).
61
Spaur, 510 N.W.2d at 857. Spaur does not specifically address the substantial factor test in the context of
summary judgment. Rather, Spaur discusses proximate cause determinations on appellate review when parties have
made post-trial motions.
62
Spaur, 510 N.W.2d at 857.
63
Id.
64
Id.
65
See id. at 858-59.
66
Id. (citing Johnson v. Celotex Corp., 899 F.2d 1281, 1285-86 (2d Cir. 1990)).
60
11
bring about the plaintiff’s harm.” 67 Finally, the Spaur court discussed the Fourth
Circuit’s far more stringent and particularized rule adopted in Lohrmann v.
Pittsburgh Corning Corp. 68 There, the Fourth Circuit held that “[t]o support a
reasonable inference of substantial causation from circumstantial evidence, there
must be evidence of exposure to a specific product on a regular basis over some
extended period of time in proximity to where the plaintiff actually worked.” 69
The Spaur court interpreted what has been referred to as the “frequency, regularity
and proximity test” as a test that “requires more than a mere showing that the
plaintiff and an asbestos product were present at the same time.” 70 Rather, the test
mandates a showing “of reasonable and rational nature upon which a jury can
make the necessary inference that there is a causal connection between a
defendant’s action and a plaintiff’s injury.” 71
The defendant in Spaur urged the Iowa Supreme Court to implement the
Lohrmann test, arguing that the plaintiff’s burden should be to prove exposure to a
specific product, and that the exposure was the proximate cause of the plaintiff’s
67
Id. at 859. (See, e.g., In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 816-18 (9th Cir. 1992) (plaintiff must
prove presence of defendant’s product and provide sufficient evidence to support an inference of exposure to that
product); Burton v. Johns-Manville Corp., 613 F.Supp. 91, 94-95 (W.D.Pa. 1985) (evidence that asbestos was cause
of plaintiff’s disease and defendant’s product was a substantial factor in cause established causation)).
68
See 782 F.2d 1156, 1162-63 (4th Cir. 1986).
69
Spaur, 510 N.W.2d at 859 (citing Lohrmann, 782 F.2d at 1162-63).
70
Id. at 859.
71
Id. (citing Lohrmann, 782 F.2d at 1163) (The court in Lohrmann ultimately determined that the plaintiff’s
exposure to the defendant’s products for short periods over thirty-nine year did not “raise a permissible inference
that such exposure was a substantial factor” in causing the plaintiff’s injury) (internal quotation marks omitted).
12
injury. 72 The Spaur Court declined to exclusively adopt the Lohrmann court’s
application, instead stating that, “We do not believe the three-factor test of
Lohrmann is a rigid test with a minimum threshold level of proof required under
each prong.” 73 The Iowa Supreme Court’s application of Lohrmann amounts to a
sub-part of the substantial factor test that is used to aid in the court’s analysis of the
sufficiency of evidence. 74 The Spaur court noted:
Whether evidence of exposure to a particular defendant’s product will
be legally sufficient to permit a finding of substantial factor causation
is fact-specific to each case. This determination involves the
interrelationship between the use of a defendant’s product at the
workplace and the activities of the plaintiff at the workplace. This
requires an understanding of the physical characteristics of the
workplace and of the relationship between the activities of the direct
users of the product and the bystander plaintiff. Within that context,
the factors to be evaluated include the nature of the product, the
frequency of its use, the proximity, in distance and time, of a plaintiff
to the use of a product, and the regularity of the exposure of that
plaintiff to the use of that product. 75
The evidence in Spaur that ultimately satisfied the court consisted of: (1)
where the plaintiff generally worked; (2) the layout of the plant, which was
described as open with no walls; (3) “evidence that the work environment was
loud, vibrating, and dusty”; and (4) testimony by two employees who stated that
the defendant’s product made up eighty to ninety-five percent of the insulating
72
Spaur, 510 N.W.2d at 859.
Id.
74
See id.
75
Id. (citing Eagle-Picher Indus., Inc. v. Balbos, 604 A.2d 445, 460 (Md. 1992) (citations omitted) (emphasis
added)).
73
13
product used in the power plant. 76 General exposure also took place when the
plaintiff rewrapped compressors and boilers with the defendant’s product. 77
Neither party was able to establish a specific time of exposure. The Spaur court
relied upon direct and circumstantial evidence, and the “sheer quantity” of the
defendant’s product used by the plaintiff’s employer, to determine that the
evidence was sufficient to raise a reasonable inference of plaintiff’s exposure to the
defendant’s product, and that his exposure was a substantial factor in causing his
disease. 78 It is important to note that, unlike here, the court in Spaur had the
benefit of analyzing expert medical testimony when reviewing the trial court’s
decision.
The plaintiff in Beeman v. Manville Corp. Asbestos Disease Compensation
Fund was a plumber and pipefitter who worked closely with insulators throughout
his career. 79
Consequently, he was exposed to asbestos-laden insulation dust,
which allegedly caused his injuries. 80
Although the plaintiff sued multiple
manufacturers of asbestos-containing products, by the time of trial only two
defendants remained. 81 After trial, the defendants appealed the trial court’s denial
of the defendants’ post-trial motions for new trial and judgment notwithstanding
76
Id. at 860.
Id. at 860-61.
78
Id.
79
Beeman, 496 N.W.2d 247, 249 (Iowa 1993). Beeman, like Spaur, does not discuss the sufficiency of evidence
when reviewing a motion for summary judgment.
80
Id. at 249-50.
81
Id. at 250.
77
14
the verdict. 82
The defendants argued that the plaintiff “failed to prove by
substantial evidence that . . . [defendants’] products were a proximate cause of . . .
[plaintiff’s] injuries.” 83 Similar to a motion for summary judgment, under Iowa
law, where a party makes a post-trial motion, the judge views the evidence in a
light most favorable to the non-moving party. 84 The plaintiff and a co-worker
testified that the plaintiff’s exposure to one defendant’s product took place
throughout his career. 85 And although the dust contained 2% or less of asbestos,
the plaintiff’s expert testified that each exposure was a contributing factor to the
“disease process.” 86
On review, the court in Beeman agreed with the trial court, emphasizing that
“[q]uestions of proximate cause are for the jury,” 87 and that “[o]nly in exceptional
cases is proximate cause decided as a matter of law.” 88 The court’s analysis also
referenced jurisdictions that have accepted co-worker testimony as a means of
proving proximate cause in asbestos cases where a co-worker identifies the
defendant’s product and the plaintiff’s proximity to the product. 89 The plaintiff in
Beeman identified a defendant’s product with co-worker testimony, and expert
testimony described the cumulative effects of exposure. The court in Beeman
82
Id.
Id. at 254.
84
Id; Crowley v. New Piper Aircraft Corp., 2006 WL 3059914, at *9 (Iowa Dist. Ct.).
85
Beeman, 496 N.W.2d at 254.
86
Id.
87
Id. (citing Bandstra v. Int’l Harvester Co., 367 N.W.2d 282, 285 (Iowa App. 1985)).
88
Id. (citing Iowa R.App.P. 14(f)(10); see also Bandstra, 367 N.W.2d at 285.
89
Id. (see In re Hawaii Fed. Asbestos Cases, 960 F.2d 806 (9th Cir. 1992)).
83
15
determined that after hearing this evidence a reasonable jury could conclude that it
was more likely than not that the plaintiff inhaled the identified defendant’s
product, and that defendant’s product proximately caused the plaintiff’s injuries. 90
Here, Sherwin-Williams argues that Mr. Leuenberger and Mr. Bulicek
“failed to identify any actual occasion, time and/or job where they specifically
observed Mr. Heddinger using a Sherwin-Williams product.” 91
According to
Sherwin-Williams, because Mr. Leuenberger never specifically stated that
“Heddinger used Sherwin-Williams products,” and Mr. Bulicek never observed
Heddinger using Sherwin-Williams products, there are no genuine issues of
material fact and thus it is entitled to judgment as a matter of law.
Sherwin-Williams also argues that summary judgment is appropriate as to
Mr. Heddinger’s non-occupational exposure claim because Plaintiff did not
“identify with the specificity required a particular occasion, time and/or job where
she specifically observed Mr. Heddinger using a Sherwin-Williams product.” 92
The Court finds that although Spaur and Beeman are helpful, they are cases
involving appellate review of post-trial motions. This is a motion for summary
judgment.
The Court is not reviewing a motion for new trial or judgment
notwithstanding the verdict, instances where a jury has already considered the
evidence and on review the Court’s role is to determine whether the jury’s verdict
90
Id. at 254-55.
Def. Mot. for Sum. J. at ¶ 6.
92
Id.
91
16
contradicts the great weight of the evidence, or whether the jury disregarded the
applicable rules of law. 93 The Court’s task here is to determine whether there is a
genuine issue of material fact in dispute.
Moreover, on a motion for summary judgment, the facts are construed in the
light most favorable to the non-moving party, in this case, the Plaintiff. Thus, the
Court must draw all reasonable inferences in favor of the Plaintiff. SherwinWilliams’ burden is to establish that there is no genuine issue of material fact and
that it is entitled to judgment as a matter of law. It has not met this burden.
Contrary to Sherwin-Williams’ argument, Lohrmann, as interpreted by the
Iowa Supreme Court, is not the “end all-be all” as it relates to this case. As the
court in Spaur noted, the Lohrmann test is not a rigid test with a minimum
threshold level of proof for each prong.
substantial factor test. 94
Rather, it is only one part of the
The Court must also take into consideration the facts
specific to the case, the use of the product, the plaintiff’s activities in the
workplace, and the layout of the workplace. 95
Mr. Heddinger worked at Goss until 1996. Goss used Sherwin-Williams
paint products from 1988 through 2001, 96 and Mr. Heddinger’s department was
93
Cofrancesco v. Shop-Rite Supermarkets, Inc., 2001 WL 541482, at *4 (Del. Super.).
See Spaur, 510 N.W.2d at 859.
95
Id.
96
Pl.’s Br. at Exhibit B, p. 6-7.
94
17
very close to the Paint Department. 97 According to Mr. Bulicek, almost all of the
paint products ordered by Goss were Sherwin-Williams products. 98 No one knows
how well Goss ventilated the Paint Area. 99 The old building had a wide-open
layout, so much so that employees could smell fumes from the Paint Department
on a consistent basis. 100 In the new building, no one can definitively say whether
the Paint Department was sealed off from the rest of the plant. 101
The Court must also evaluate the nature of the products (paint and paintrelated products that allegedly gave off fumes), the frequency of their use
(according to Mr. Bulicek, Sherwin-Williams was the main brand), the proximity
to the products in distance and time (Mr. Heddinger worked adjacent to the paint
department for years), and the regularity of exposure. In the old building, Mr.
Leuenberger’s testimony establishes that employees smelled fumes every time a
frame was painted. Mr. Leuenberger’s testimony and Mr. Bulicek’s testimony
taken together establishes that Mr. Heddinger worked with, and in close proximity
to, paint while employed at Goss, and that Goss used Sherwin-Williams paint.
Without expert testimony on the topic of exposure, the Court cannot determine as a
matter of law that Mr. Heddinger’s alleged exposure was insufficient to cause his
AML.
97
Id. at p. 13-14.
Id. at p. 9-10.
99
Id. at p. 23.
100
Pl.’s Br. at Exhibit A, p. 26-27.
101
See id. at p. 15.
98
18
Aside from the evidence of direct exposure in Spaur, the facts in Spaur are
similar to this case.
Here, as in Spaur, a co-worker’s testimony described
generally where exposure took place. Also like Spaur, testimony established the
layout of buildings, and the possibility of exposure to a foreign substance in the air
due to working conditions. Mr. Bulicek provided testimony that from 1988 to
2001 almost all of the paint products ordered by Goss were Sherwin-Williams’
products. In Spaur, the court reasoned that the “sheer quantity” of the defendant’s
product present in the power plant supported the plaintiff’s claim. 102
Sherwin-Williams maintains that the absence of direct evidence is fatal to
the Plaintiff’s claim. The Court does not agree. Under Iowa law, the absence of
direct evidence in this case is only one factor to consider. The courts in Spaur and
Beeman did not explicitly require direct evidence to establish exposure under the
substantial factor test. And, under Iowa law, circumstantial evidence carries the
same weight as direct evidence. 103 Indeed, the fact that the Plaintiff has produced
circumstantial evidence weighs against Sherwin-Williams’ argument.
The Court cannot rule as a matter of law that Mr. Heddinger was not
exposed to Sherwin-Williams products while employed at Goss, and that SherwinWilliams products did not cause his injuries.
The same holds true for Mr.
Heddinger’s alleged non-occupational injuries. The Court cannot rule as a matter
102
103
See Spaur, 510 N.W.2d at 860-61.
Id. at 858. (citing Iowa R.App.P. 14(f)(16).
19
of law that Mr. Heddinger’s home-use of Krylon spray paint did not cause him to
develop AML. Plaintiff testified that Mr. Heddinger used the product on numerous
occasions, and that he experienced symptoms of dizziness and nausea after using
it.
With respect to alleged occupational exposure prior to 1988, the Court will
GRANT Sherwin-Williams’ Motion for Summary Judgment. Mr. Bulicek started
ordering paint for Goss in 1988, and Mr. Leuenberger can only testify that paint
was used by Goss during Mr. Heddinger’s time of employment; he cannot identify
the paint manufacturer.
Consequently, Plaintiff cannot prove that Sherwin-
Williams’ paint products were used by Mr. Heddinger before 1988.
With respect to alleged non-occupational exposure prior to June 25, 1990,
the Court will GRANT Sherwin-Williams’ Motion for Summary Judgment.
Sherwin-Williams produced documentation proving that it did not own Krylon
before June 25, 1990, and Plaintiff has provided no evidence to the contrary. Thus,
Plaintiff has failed to meet its burden and show that a Sherwin-Williams product
caused Harold’s non-occupational injuries before June 25, 1990.
VI. CONCLUSION
For the foregoing reasons, Sherwin-Williams’ Motion for Summary
Judgment is DENIED IN PART, and GRANTED IN PART.
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IT IS SO ORDERED.
_________________________
Jan R. Jurden, Judge
cc: Prothonotary
21
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