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IN RE JOINT EASTERN & SOUTHERN DIST. ASBESTOS LITI

May 7, 1997

IN RE JOINT EASTERN AND SOUTHERN DISTRICT ASBESTOS LITIGATION; AGNES GREGER, Individually and as Executrix of the Estate of John J. Greger, deceased, Plaintiff, against OWENS-CORNING CORPORATION, Defendant.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 Owens-Corning Corporation, defendant in this asbestos litigation, has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 dismissing the claim brought against it by the widow of John J. Greger. For the reasons set forth below, the motion is denied.

 Parties

 Owens-Corning Corporation, ("OC"), formerly manufactured asbestos products.

 Agnes Greger, ("Plaintiff"), was married to John J. Greger ("Greger"). During his lifetime, Greger worked for Western Union. As part of his duties, Greger would inspect repair work on ships owned by Western Union.

 Prior Proceedings

 Greger's asbestos claim, naming several defendants including OC, was filed in federal court on August 8, 1989. An Amended Verified Complaint was filed on January 29, 1997. On March 24, 1997, OC sent Plaintiff's counsel a request for dismissal, on the ground that Greger's deposition transcript provided no identification of OC's products at Greger's worksite. On March 25, 1997, OC moved for summary judgment. Oral argument was heard on April 23, 1997, and the motion was considered fully submitted.

 Facts

 According to the Plaintiff, Greger was exposed to asbestos fibers from OC's asbestos-containing products while working at the Halifax Shipyard from 1956 through 1966. During each of these years, Greger would travel to Halifax, Nova Scotia for his employer, Western Union, and spend approximately three months overseeing repair work on ships. Greger testified at his deposition that during this time he was exposed to asbestos in the engine rooms and boiler rooms of ships at Halifax.

 At Greger's deposition of June 27, 1990, he stated that he did not recall seeing any OC product in the Halifax shipyards. The sections of Greger's deposition cited by OC are as follows:

 
Q: Have you ever heard of Owens Corning Fiberglas?
 
A: Yes.
 
Q: And how have you heard of them?
 
A: One bought out the other. I think Owens Corning bought out Owens Illinois Fiberglas.

 Deposition of John G. Greger, June 27, 1990, at 166.

 
Q: Have you ever heard of Kaylo Products? [asbestos product distributed by Owens Corning in Canada]?
 
A: Probably, but I am not sure.

 Id. at 169.

 OC has also cited from the deposition of one of the Plaintiff's witnesses, Keith Dempsey, ("Dempsey"), who testified with respect to the arrival of Kaylo at the Halifax Shipyard in the late 1970s or 1980s, well after Greger last visited the Shipyard. Dempsey worked for Guildfords, a distributor of asbestos products supplied by Fiberglas Canada, a subsidiary of OC:

 
Q: What Owens-Corning fiberglass products did you sell during this time period [after 1968]?
 
A: Well, we sold or I was involved in the sale of all the Fiberglas Canada products. Now I'm trying to think of the date when their Kaylo product came on the market and we were the largest distributor in Canada for Fiberglas Canada products ... So in the Canadian side of things, you know, they were all fiberglass products until Kaylo came out, which is a high temperature product, and this was something new that Owens-Corning were getting involved in the manufacture of. So that product was distributed by our company.
 
Q: Do you recall generally when that was when Kaylo came?
 
A: Oh, gosh. Late '70s probably. Somewhere like that. I can't remember the exact time but late '70s, ...

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