Opinion
C.A. No. 06C-05-297-BEN.
Date Submitted: July 7, 2008.
Date Decided: October 1, 2008.
Upon Defendant Sunoco's Motion for Summary Judgment: GRANTED.
Ian C. Bifferato, Esq., Linda Richenderfer, Esq., Chad J. Toms, Esq., Wilmington, Delaware, attorneys for Plaintiff.
Paul M. Lukoff, Esq., Tanya E. Pino, Esq., Wilmington, Delaware, attorneys for defendant Shell Oil Company A/K/A/ Shell Chemical Company.
Paul A. Bradley, Esq., Wayne A. Marvel, Esq., Wilmington, Delaware, attorneys for defendants Ashland, Inc. and BP Amoco Chemicals.
Daniel M. Silver, Esq., Katharine L. Mayer, Esq., Wilmington, Delaware, attorneys for defendant Sunoco, Inc. A/K/A Sunoco Chemicals.
I. INTRODUCTION
Before the Court is Defendant Sunoco's Motion for Summary Judgment. The lawsuit giving rise to this motion was filed on May 26, 2006 by George Herring ("Plaintiff"), the surviving spouse of Regina Herring. Plaintiff claims that Ms. Herring developed Acute Myelogenous Leukemia ("AML") as a result of exposure to toluene, xylene and mineral spirits manufactured by Sunoco during her employment with the Warner Graham Company ("Warner Graham"). Regrettably, Ms. Herring passed away on September 9, 2005. She was never deposed regarding her alleged exposure to solvents while working for Warner Graham. By its motion, Sunoco argues there are no facts upon which Plaintiff can rely to establish that a product manufactured by Sunoco caused her injuries.
Compl., Docket Item ("D.I.") 1.
Am. Compl. at ¶ 5(N), D.I. 28.
II. BACKGROUND
Warner Graham blends, packages and distributes alcohol and solvent products. It purchases many different solvents and other chemicals (primarily alcohols) which it repackages and/or blends for resale. Although Warner Graham sometimes purchases solvents directly from manufacturers, it typically purchases from distributors. Warner Graham does not select which manufacturers' solvents it purchases from a distributor, nor does it necessarily know the manufacturer unless it receives paperwork identifying which entity made the product.
Id.
Pl. Mem. in Opp'n to Shell's Mot. for Summ. J. ("Pl. Answ. Br.") at 2, D.I. 148.
Dominick Dep. 20:10 — 21:21; Farrell Dep. 23:7 — 13, 56:11 — 60:21.
Reipe Dep. 33:13 — 37:1.
Warner Graham's alcohol and solvent operations are conducted in separate warehouses located on opposite ends of the facility. The solvents are delivered by a tanker truck and are pumped into three 30,000 gallon elevated storage tanks located outside of the solvent warehouse. The solvents are delivered through a piping system to a filling system found in the solvent warehouse. The warehouse employees dispense the solvents from the filling system into blending tanks or directly into various sized containers which are then shipped to customers. The warehouse employees typically do not know the manufacturer of the solvents they are dispensing. Nor does Warner Graham keep track of which manufacturer's solvent is being dispensed at any given time. Solvents are not typically used in the alcohol warehouse except when used to manufacture denatured alcohols. The solvents at issue in this case are toluene, xylene and mineral spirits. Toluene and xylene are chemicals that occur naturally in crude oil and are used as solvents in refining and industrial processes for many commercial and household products. Mineral spirits are often used interchangeably with xylene and/or toluene as solvents and paint thinners.
The alcohol warehouse is building 7 and the solvent warehouse is building 3 on the map attached to Ex. B to the Pino Aff.; Knox Dep. 13:14 — 14:4.
Dominick Dep. 20:10 — 21:21, 131:21 — 133:10; Farrell Dep. 18:15 — 20:3.
Id.
Dominick Dep. 23:16 — 25:2, 111:1 — 112:5; Farrell Dep. 23:4 — 25:9.
See Reipe Dep. 34:9 — 37:1.
Dominick Dep. 17:16 — 19:16, 152:3 — 153:21; Farrell Dep. 58:2 — 10.
Sunoco Chemicals, Sunoco Chemicals Products Descriptions,
http://www.sunocochemicals.com/products/product___descf.htm; The Warner Graham Company,http://www.warnergraham.com/products/solvents.html
Dominick Dep. 18:18 — 19:4,
III. DISCUSSION
Defendant does not dispute that Ms. Herring was "periodically present" in the solvents area "from time to time during 1983 through the late 1990s even though she worked in the alcohol warehouse located on the opposite side of the facility." Nor does Sunoco dispute that when Ms. Herring worked in the alcohol warehouse she "periodically" assisted with operations in the solvent warehouse or retrieved a solvent product for use in the alcohol warehouse. What Sunoco does dispute is that this is enough to defeat summary judgment in light of the following:
• Neither of Plaintiff's product identification witnesses recall Sunoco supplying Warner Graham with any of the chemicals at issue in this litigation;
• Neither of the Plaintiff's product identification witnesses could identify the products Ms. Herring obtained from the solvent warehouse for use in the alcohol warehouse, much less who manufactured the products;
• Xylene, toluene and mineral spirits are just three of the many solvent products used at Warner Graham and their use was dependent on customer demands and orders;
• When not in use, the three solvents are not stored in open air containers in the warehouse; they are stored in sealed storage tanks outside the Warner Graham building.
Viewing the facts in the light most favorable to the Plaintiff, the best Plaintiff can do is place Ms. Herring periodically in an area where solvents possibly manufactured by Sunoco might have been used.
There is no reasonable inference from the undisputed facts that Ms. Herring was exposed to any of the three solvents, much less those manufactured by Sunoco. All reasonable inferences go in favor of the non-moving party at the summary judgment stage of the proceedings; however there must still be "substantial support" for such inferences in the record. The record does reflect the presence of mineral spirits at Warner Graham. However, the record lacks evidence necessary to reasonably infer that the mineral spirits at Warner Graham were supplied by Sunoco. The few shipments of Sunoco xylene and toluene to Warner Graham during the 2002-04 time frame are insufficient as a matter of law to establish product nexus because there is no evidence that Ms. Herring came into contact with those products. There simply is no evidence that Ms. Herring used or was exposed to any benzene-containing products manufactured by Sunoco while employed at Warner Graham. The Plaintiff's product identification is based on speculation not reasonable inferences from the evidence.
See e.g. Dominick Dep. 22:4 — 25:2; Farrell Dep. 17:3 — 20:16.
Cain v. Green Tweed Co., 832 A.2d 737, 738 (Del. 2003).
Farrall v. A.C. S. Co., Inc., 1988 WL 167320 (Del.Super.); In re Asbestos Litig., 509 A.2d 1116, 1117-119 (Del.Super.), aff'd.by Nicolet, Inc. v. Nutt, 525 A.2d 146 (Del. 1987).
IV. CONCLUSION
Sunoco is entitled to summary judgment. The record fails to support a reasonable inference that Ms. Herring was exposed to xylene, toluene or mineral spirits manufactured by Sunoco. The Court will not grant Plaintiff's request to reopen discovery. The discovery cutoff for product identification has long since passed and no good cause has been shown. Consequently, Sunoco's Motion for Summary Judgment is GRANTED. IT IS SO ORDERED.