Pearsons v. Heidelberg USA Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION )
)
Limited to: ) C.A. No. N19C-07-118 ASB
)
THOMAS J. PEARSONS and )
DONNA PEARSONS, his wife. )
Submitted: September 29, 2020
Decided: December 23, 2020
Upon Defendant Heidelberg USA Inc.’s Motion for Summary Judgment:
DENIED in part; GRANTED in part.
MEMORANDUM OPINION
Adam Balick, Esquire, Michael Collins Smith, Esquire (Argued), Patrick J. Smith,
Esquire of BALICK & BALICK, LLC, Wilmington, Delaware, Bartholomew J.
Dalton, Esquire, Ipek Kurul, Esquire, Andrew C. Dalton, Esquire, Michael C.
Dalton, Esquire, DALTON & ASSOCIATES, P.A., Attorneys for Plaintiffs.
Timothy A. Sullivan III, Esquire (Argued), of WILBRAHAM, LAWLER & BUBA,
P.C., Wilmington, Delaware, Attorney for Defendant Heidelberg USA, Inc..
Adams, J.
1
I. INTRODUCTION
Thomas Pearsons spent the majority of his career working in the printing shop
of the Vermont Standard, Vermont’s oldest weekly newspaper, where he would
perform maintenance on the company’s Mergenthaler Model 8 Linotype machine.
As part of this process, he would regularly clean the Linotype’s mouthpiece, clean
the area of the printing shop in which the machine was located, and work on other
parts of the machine as needed. His widow, Donna Pearsons (“plaintiff” or “Mrs.
Pearsons”), alleges that he was exposed to asbestos when he performed these duties.
She further alleges that this exposure was a proximate cause of his mesothelioma.
Defendant Heidelberg USA, Inc. (“Heidelberg”), as successor in interest to
Mergenthaler Linotype Company, has moved for summary judgment on the grounds
that all of Mrs. Pearsons’s claims are barred because: (1) she has failed to develop
sufficient evidence to prove causation under Vermont law; (2) Vermont’s asbestos-
related statute of repose acts as a bar to all of her claims; and (3) that Mr. Pearsons
misused the Linotype machine. For the reasons that follow, Heidelberg’s motion for
summary judgment is DENIED on these grounds. Heidelberg also moved for
summary judgment specifically on Mrs. Pearsons’s claim that it behaved willfully
and wantonly. Because she failed to proffer any evidence of such conduct,
Heidelberg’s motion for summary judgment is GRANTED on this specific claim.
2
II. BACKGROUND
A. Facts1
Thomas Pearsons (“Mr. Pearsons”) worked at the Vermont Standard from
1964 until 1988. From 1964-1965, Mr. Pearsons worked part-time, approximately
20 hours a week. Mr. Pearsons worked full-time at the paper from 1965 until 1988,
approximately 40-45 hours a week. Mr. Pearsons started as an apprentice, where he
learned to operate and maintain a Mergenthaler Model 8 Linotype machine. Mr.
Pearsons continued this work throughout his career at the Vermont Standard.
During Mr. Pearsons’s career, he performed various maintenance duties on
the Linotype. One job was cleaning the Linotype mouthpiece by rubbing an asbestos
cleaning tool across the mouthpiece. While cleaning, Mr. Pearsons inhaled the
asbestos dust that was created as the asbestos end of the tool disintegrated. The tool
needed to be replaced periodically. Mr. Pearsons’s maintenance work also included
replacing the Linotype’s mouthpiece every two to four years. This required Mr.
Pearsons to scrape out old asbestos and mix new asbestos with water and pack it on
the mouthpiece. This process also caused him to breathe in asbestos dust.2
1
The following facts are set forth in the light most favorable to plaintiff Donna
Pearsons, as the non-moving party.
2
Mr. Pearsons knew the material was asbestos because the bag it came in was labeled
“asbestos.” According to Mr. Pearsons, Mergenthaler supplied the asbestos and
other replacement parts and materials associated with the Linotype.
3
Mr. Pearsons also performed general maintenance on the Linotype and
cleaned the room where the machine was located. Mr. Pearsons swept dust and
shavings that accumulated under the machine every night, including dust from the
disintegrating asbestos-containing cleaning tool. Mr. Pearsons’s weekly
maintenance duties included pulling the mats out of the machine and brushing dust
out of the magazine. He also swept after cleaning or replacing a part on the machine.
Mr. Pearsons performed less frequent tasks on the Linotype, including
changing the throat heater and changing the crucible heater, which both involved a
process similar to replacing asbestos in the mouthpiece. Mr. Pearsons also changed
the throat heater on the Linotype “several times” and changed the crucible heater at
least once during his career at the Vermont Standard. His work with the throat heater
and crucible heater also involved replacing asbestos wires, which were cracked and
brittle and had asbestos flaking off. This caused him to inhale asbestos dust.
Mr. Pearsons passed away on October 20, 2019 from mesothelioma at the age
of seventy-two.
B. Procedural Background
Thomas and Donna Pearsons filed the Complaint on July 16, 2019 alleging
negligence, willful and wanton conduct, strict liability, and loss of consortium.3 A
wrongful death claim was subsequently added after Mr. Pearsons’s passing via
3
Dkt. 1.
4
Amended Complaint, filed on April 15, 2020 by Mrs. Pearsons.4 Heidelberg filed
its Motion for Summary Judgment (the “Motion”) on February 12, 2019.5 The Court
held oral argument on the Motion on May 5, 2020.6 The Court ordered additional
briefing on the application of 12 V.S.A. § 518(a), Vermont’s asbestos-related statute
of repose, as related to the facts of this case and held additional oral argument on
September 29, 2020.7
III. STANDARD
The standard of review on a motion for summary judgment is well-settled.
When considering a motion for summary judgment, the Court’s principal function
is to examine the record to determine whether genuine issues of material fact exist,
“but not to decide such issues.”8 Summary judgment will be granted if, after viewing
the record in a light most favorable to a non-moving party, no genuine issues of
material fact exist and the moving party is entitled to judgment as a matter of law.9
Summary judgment will not be granted, however, if the record reveals that material
facts are in dispute, or if the factual record has not been developed thoroughly
4
Dkt. 36.
5
Dkt. 27.
6
See Dkt. 37.
7
See Dkt. 46.
8
Merrill v. Crothall-American Inc., 606 A.2d 96, 99–100 (Del. 1992) (internal
citations omitted).
9
Merrill, 606 A.2d at 99–100.
5
enough to allow the Court to apply the law to the factual record.10 The moving party
bears the initial burden of demonstrating that the undisputed facts support his claims
or defenses.11 “If the motion is properly supported, then the burden shifts to the non-
moving party to demonstrate that there are material issues of fact for resolution by
the ultimate fact-finder.”12
IV. ANALYSIS
In her Amended Complaint, plaintiff asserts five causes of action: negligence,
willful and wanton conduct, strict product liability, loss of consortium and wrongful
death. Heidelberg asserts that it is entitled to summary judgment on all of its claims
because: (1) plaintiff has not established causation under Vermont law; (2) all of
plaintiff’s claims are barred by Vermont’s asbestos-related statute of repose; and (3)
Mr. Pearsons misused the Mergenthaler Linotype machine. For the reasons stated
herein, Heidelberg’s motion for summary judgment is denied on all three grounds.
Heidelberg also argues that is entitled to summary judgment on plaintiff’s claim of
willful and wanton conduct because plaintiff has failed to demonstrate any evidence
of such conduct. Heidelberg’s motion is granted on this claim.
A. Plaintiff Has Submitted Sufficient Evidence to Establish Causation under
Vermont Law
10
In re Asbestos Litig., 2007 WL 2410879, at *2 (Del. Super. Aug. 27, 2007) (citing
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962)).
11
Id. (citing Moore v. Sizemore, 405 A.2d 679, 680 (Del.1979)).
12
Id. at *2.
6
Where an injury is brought about by multiple causes or exposures, a plaintiff
must show that the defendant’s conduct was a substantial factor in causing the
injury.13 Vermont substantive law requires a plaintiff to “point to the evidence
suggesting a probability, rather than a mere possibility” that “(1) he was exposed to
the specified chemical at a level that could have caused his physical condition
(general causation); and (2) the exposure to that chemical did in fact result in the
condition (specific causation).”14 Specific causation is demonstrated “by submitting
evidence concerning the amount, duration, intensity, and frequency of exposure.”15
Viewing the record in the light most favorable to plaintiff, it shows that Mr.
Pearsons was exposed to defendant’s products while employed at the Vermont
Standard in a greater than de minimis fashion from 1964 until 1967, when § 518(a)
was enacted. Mr. Pearsons worked 20 hours per week until 1965, and then worked
full time at 40 hours per week for the rest of his career. Mr. Pearsons testified that
he used an asbestos-cleaning tool “a couple times a day” and cleaned under the
13
See Lorrain v. Ryan, 628 A.2d 543, 547–48 (Vt. 1993) (citing Woodcock’s Adm’r
v. Hallock, 127 A. 380, 382 (1925); Restatement (Second) of Torts § 434 (Am. L.
Inst. 1965).
14
See Blanchard v. Goodyear Tire and Rubber, 30 A.3d 1271, 1274 (Vt. 2011)
(citing Golden v. CH2M Hill Hanford Group, Inc., 528 F.3d 681, 683 (9th Cir.
2008); White v. Dow Chem. Co., 321 Fed. Appx. 266, 273 (4th Cir. 2009); Bland v.
Verizon Wireless, (VAW) L.L.C., 538 F.3d 893, 898 (8th Cir. 2008); Sakaria v. Trans
World Airlines, 8 F.3d 164, 172–73 (4th Cir. 1993)).
15
Dakers v. Bartow, 2018 WL 8415310, at *7 (D. Vt. 2018) (quoting Blanchard, 30
A.3d at 1271)).
7
machine nightly from the time he started at the Vermont Standard in 1964 until the
enactment of § 518(a) in 1967. Accordingly, plaintiff has submitted sufficient
evidence of greater than de minimis exposure to asbestos prior to the enactment of §
518(a) in 1967, satisfying the substantial factor causation standard at the summary
judgment stage.16
B. Plaintiff’s Claims Are Not Barred by Vermont’s Statute of Repose
Heidelberg argues that 12 V.S.A. § 518(a),17 Vermont’s asbestos-related
statute of repose, serves as a bar to all of plaintiff’s claims. A statute of repose,
unlike a statute of limitations, can serve as an absolute bar to a plaintiff’s claim by
16
See Lorrain, 628 A.2d at 546–48. Heidelberg also argues that Mrs. Pearsons failed
to satisfy the causation standard under Vermont law because she did not submit
requisite expert evidence of the amount, duration, intensity and frequency of Mr.
Pearsons’s exposure to Defendant’s allegedly asbestos-containing products.
Defendant asserts that Dr. Ginsburg’s expert report is insufficient and that Mrs.
Pearsons must provide a corresponding opinion from an industrial hygienist.
Vermont law, however, permits expert testimony to be based on circumstantial
evidence of exposure level. See Blanchard v. Goodyear Tire and Rubber, 30 A.3d
1271, 1275 (Vt. 2011). Plaintiff’s medical expert report sufficiently provided
evidence of both general and specific causation, appropriately founded upon Mr.
Pearsons’s testimony regarding his work with asbestos-containing products.
17
Section 518(a) provides:
An action to recover for ionizing radiation injury or injury from other noxious
agents medically recognized as having a prolonged latent development shall
be commenced within three years after the person suffering the injury has
knowledge or ought reasonably to have knowledge of having suffered the
injury and of the cause thereof, but in no event more than 20 years from the
date of the last occurrence to which the injury is attributed.
12 V.S.A. § 518(a) (emphasis added).
8
“prohibit[ing] a cause of action from coming into existence.”18 Under Vermont law,
if a plaintiff can show that a defendant’s alleged negligent acts or omissions occurred
before the enactment of a statute of repose, then the plaintiff’s right to recover vested
prior to the statute’s enactments.19 A right is vested when it is “complete and
consummated, and of such character that it cannot be divested without the consent
of the person to whom it belongs, and fixed or established, and no longer open to
controversy.”20 Plaintiff’s claims are not barred by § 518(a) because Mr. Pearson’s
right to recovery vested prior to the enactment of the statute.21
Because the Court has determined that plaintiff has demonstrated that Mr.
Pearsons was exposed to Heidelberg’s products in a greater than de minimis fashion
from 1964 until 1967, Mr. Pearsons’s right to recover vested during this period. In
Lillicrap v. Martin, the Supreme Court of Vermont found that the State’s medical
malpractice statute of repose, enacted in 1978, did not bar plaintiff’s claims because
plaintiff’s injury occurred in 1972.22 Similarly here, given the timing of Mr.
Pearsons’s injuries, the repose period does not bar plaintiff’s claims and
Heidelberg’s Motion is denied on this ground.
18
CTS Corporation v. Waldburger, 573 U.S. 1, 16 (2014).
19
Lillicrap v. Martin, 591 A.2d 41, 48 (Vt. 1989).
20
Lillicrap, at 49 (Vt. 1989) (quoting Black’s Law Dictionary 1402 (5th ed. 1979)).
21
Because the Court finds that plaintiff’s claim vested prior to the enactment of the
statute, the Court need not address the issue of constitutionality of Vermont’s statute
of repose. See Lillicrap v. Martin, 591 A.2d at 48.
22
Lillicrap v. Martin, 591 A.2d at 48.
9
C. A Genuine Issue of Material Fact Exists as to whether Mr. Pearsons
Misused the Mergenthaler Linotype Machine
Heidelberg has not met its initial burden of demonstrating that the undisputed
facts support its claim of product misuse. Defendant relies on Greg Timko’s expert
testimony, which focuses primarily on internally-located pot insulation,23 to show
that Mr. Pearsons misused the Mergenthaler Linotype machine. Timko testified that
any asbestos-containing insulation was located internally, within the pot assembly
and sealed under steel between the crucible and outer pot jacket.24 Timko also
submitted an affidavit whereby he swore that neither the mouthpiece nor the throat
were insulated as manufactured and sold, and insulation “was not specified or
required” for either of these parts to properly function.25
Mr. Pearsons’s testimony surrounding his work, however, shows that there is
a material dispute of fact as to whether he misused the Mergenthaler Linotype
machine. Mr. Pearsons testified that he learned how to clean, maintain, and operate
the Linotype at the Vermont Standard through a four-year, supervised apprenticeship
program and then continued this work for the duration of his career. 26 He testified
that all of the asbestos-containing materials he used in connection with the Linotype
23
See Def.’s Ex. E–F. All exhibit references in this section are to either Heidelberg’s
Motion for Summary Judgment (“Def.’s Ex. __”) or Plaintiff’s Memorandum in
Opposition to Heidelberg’s Motion for Summary Judgment (“Pl.’s Ex. ___”).
24
Def.’s Ex. F at ¶ 12.
25
Def.’s Ex. F at ¶¶ 13–14.
26
Pl.’s Ex. A at 52:19–53:12; Pl.’s Ex. B. at 11:18-24.
10
came from Mergenthaler.27 And, as discussed above, he testified to multiple sources
of asbestos exposure from Defendant’s products, corroborated by excerpts of the
Mergenthaler Special Supplies Catalog, the Linotype Instruction Book, and the
Linotype Maintenance Manual.28 Summary judgment is, therefore, is denied on
product misuse grounds.
D. Plaintiff Has Failed to Demonstrate Evidence of Willful and Wanton
Conduct
Mrs. Pearsons failed to contest Heidelberg’s Motion with respect to her claim
for punitive damages for willful and wanton conduct. As such, Heidelberg’s motion
for summary judgment is granted with respect to this claim.
V. CONCLUSION
For the foregoing reasons, Heidelberg’s Motion for Summary Judgment is DENIED
in part and GRANTED in part.
IT IS SO ORDERED.
Dated: December 23, 2020
27
Pl.’s Ex. A at 68:1-10; Pl.’s Ex. B at 37:19-25.
28
See Pl.’s Ex. C–E.
11