Raymond A. Petit v. Borgwarner Morse Tec, LLC

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION )
)
Limited to: ) C.A. No. N17C-10-146 ASB
)
PRISCILLA PETIT, Individually and )
as Personal Representative for the )
Estate of RAYMOND A. PETIT, )
deceased. )
Submitted: May 27, 2020
Decided: August 31, 2020
Upon Defendant Hennessy Industries, LLC’s
Motion for Summary Judgment:
Granted.
MEMORANDUM OPINION
Adam Balick, Esq., Michael Collins Smith, Esq. and Patrick J. Smith, Esq., BALICK
& BALICK, LLC, Wilmington, Delaware, Attorneys for Plaintiff.
Megan T. Mantzavinos, Esq., and Eileen M. Ford, Esq., MARKS, O’NEILL,
O’BRIEN, DOHERTY & KELLY, P.C., Wilmington, Delaware, Attorneys for
Defendant.
Adams, J.
Pending before the Court is Defendant Hennessy Industries, LLC’s
(“Defendant”) Motion for Summary Judgment. The Court held oral argument on
May 5, 2020 and ordered additional briefing on the application of Stigliano v.
Westinghouse1 to the facts of this case. For the reasons stated herein, the Court
grants Defendant’s Motion for Summary Judgment.
Background
Plaintiff Raymond Petit (“Plaintiff”) died from mesothelioma, allegedly
caused by exposure to asbestos over the course of Petit’s career working with
AMMCO brake arcing and lathe machines.2 Plaintiff worked for A-1 Auto Parts
from 1981 to 1986 and worked for McLaughlin Auto and Body Shop from 1986 to
1989.3 Plaintiff worked with AMMCO machines at both shops. With regard to his
work at A-1 Auto Parts, Plaintiff testified that he used the lathe to turn brake drums
“several times a day” and would turn “maybe 20, 30 drums on a weekend.”4 Plaintiff
also testified that “a couple of customers” liked to have the brake shoes fit to the
1
2006 WL 3026171 (Del. Super. Oct. 18, 2006).
2
Hennessy is the successor-in-interest to AMMCO Tools, Inc., a brake lathe and
arcing machine manufacturer.
3
Pl.’s Ex. A at 72:10-14, 78:24–79:6. All references to exhibits are from either
Defendant Hennessy Industries, LLC’s Opening Memorandum in Support of its
Motion for Summary Judgment or Plaintiffs’ Memorandum in Opposition to
Defendant Hennessy Industries, LLC’s Motion for Summary Judgment.
4
Pl.’s Ex. A at 74:23–75:2.
2
drums and he would grind the brake shoes “occasionally.”5 Plaintiff defined
“occasionally” as “a couple of times a day” or, depending on how busy the shop was,
“maybe a couple of times a week.”6 Plaintiff also testified, however, that grinding
shoes was “not a regular” occurrence and “happened once in a blue moon.”7
Plaintiff’s process for turning a brake drum was to “sandpaper it down a little
bit, get off whatever was left in there, and then measure, then start proceed [sic] to
cutting.”8 Plaintiff would usually walk away to do other tasks once the drum or rotor
was set up on the lathe, but sometimes he would watch to make sure the lathe was
operating correctly.9 Plaintiff testified that the cause of his asbestos exposure from
using the lathe was from “stuff” in the drums and sanding them down.10 Plaintiff
testified that he breathed in dust from the brake drum “lining and stuff like that,”
which Plaintiff testified contained asbestos.11 Plaintiff also testified that he was
exposed to asbestos dust from cleaning the machines and emptying the dust
collection bags.12 When asked whether he could recall the manufacturers of the
5
Pl.’s Ex. A at 75:7-19.
6
Pl.’s Ex. A at 75:17-23.
7
Def.’s Ex. A at 230:14-18.
8
Def.’s Ex. A at 215:21–216:1.
9
Def.’s Ex. A at 226:18-25.
10
Def.’s Ex. A at 227:19-24.
11
Pl.’s Ex. A at 81:7-19.
12
Pl.’s Ex. B at 223:13-17, 229:3-7, 234:20–235:3.
3
brake drums he was using on the lathe at A-1 Auto Parts, Plaintiff testified that he
“used everything from Wagner, Bendix” and he could not remember them all.13
Discussion
During oral argument, Plaintiff conceded that his strict liability and punitive
damages claims were without merit. The Court therefore grants Defendant’s Motion
with respect to these claims.14 The Court will address Defendant’s remaining
grounds for summary judgment in turn.
1. Product Identification
Defendant argues that Plaintiff’s identification of AMMCO products is
insufficient. Defendant takes issue with Plaintiff’s error in spelling “AMMCO”
incorrectly as “A-A-M-C-O” when identifying the machine’s manufacturer and with
Plaintiff’s description of the machine as a single unit situated on a table, rather than
two separate pieces. Plaintiff provided a physical description of the AMMCO
machines and described his use of the machines throughout his testimony.15 Plaintiff
also submitted an AMMCO image and description of a machine that matches
Plaintiff’s descriptions, corroborating his testimony regarding the single-unit
machines.16 Plaintiff sufficiently identified working with AMMCO arcing and lathe
13
Pl.’s Ex. A at 72:9, 74:11-15.
14
See Oral Arg. Tr. 57:10-16, 74:1-8.
15
See Pl.’s Ex. B at 128:17–220:14.
16
Pl.’s Ex. E.
4
machines. Therefore, Defendants’ Motion on product identification grounds is
denied.
2. Bare Metal Defense
Defendant also argues that Plaintiff’s failure to identify an asbestos-
containing product manufactured by Defendant warrants summary judgment. It is
undisputed that the AMMCO machines, themselves, did not contain asbestos.
Rhode Island jurisprudence, however, rejects the bare metal defense in favor of “a
more fact-specific and nuanced analysis” and “supports recovery against a
manufacturer of a product even where the manufacturer’s original product did not
contain asbestos.”17 A defendant has a duty to warn “if he had reason to know about
the product’s dangerous propensities which caused plaintiff’s injuries.”18
In Lindquist v. Buffalo Pumps, Inc., the court held that there were triable issues
of fact with respect to the defendant’s duty to warn, despite the fact that the
defendant’s product did not contain asbestos.19 The record suggested “that the
manufacturer knew exactly how the pump would be used in relation to the packing
17
See Baumgartner v. American Standard, Inc., 2015 WL 4523476 (citing
Sweredoski v. Alfa Laval, Inc., 2013 WL 3010419, at *5); See also Lindquist v.
Buffalo Pumps, Inc., 2006 WL 3456346 (R.I. Super. Nov. 28, 2006).
18
Thomas v. Amway Corp., 488 A.2d 716, 722 (R.I. 1985) (citing Scittarelli v.
Providence Gas Co., 415 A.2d 1040, 1043 (R.I. 1980)).
19
2006 WL 345346, at *3.
5
and gaskets.”20 The defendant was “not being asked to ‘anticipate every conceivable
design’ in which its pump can be used.”21 The Lindquist court found that the
evidence created a triable issue of fact as to whether the defendant “knew or should
have known of the dangers posed by its pumps when serviced in the manner
intended, and whether it breached a duty when it did not warn of those dangers.”22
Although the present case does not involve replacement parts, the reasoning
of Lindquist is applicable. Plaintiff submitted evidence that AMMCO knew it was
virtually guaranteed that its product would be used on asbestos-containing brake
products, that the use of its machine on asbestos-containing brake products would
result in the release of friable asbestos, and that the bag that was attached to the
machine, for the express purpose of containing the asbestos dust, did not work.23
This evidence is sufficient to create an issue of fact as to whether Defendant had a
duty under Rhode Island law to warn of the dangers of asbestos exposure associated
with the use of its arcing and lathe machines. The Court therefore denies
Defendant’s Motion based on the bare metal defense.
20
Id. at *3.
21
Id. at *3.
22
Id. at *2.
23
See Pl.’s Ex. D at 20:5-12, 62:2-21, 93:11-19, 194:6–195:8.
6
3. Stigliano
Following oral argument on the Motion, the Court requested additional
briefing on the issue of whether Stigliano extends to manufacturers of third party
machines that are used in connection with other users’ products. Unsurprisingly, the
parties differ on Stigliano’s application to such a situation. The Court agrees with
Defendant that Stigliano applies to such a situation, but not for the reasons Defendant
suggests.
In Stigliano v. Westinghouse, this Court ruled:
When the record reveals that a defendant manufactured both asbestos-
containing and non asbestos-containing versions of a product during the
time period of alleged exposure, in the absence of evidence directly or
circumstantially linking the plaintiff to the asbestos-containing product,
the Court cannot draw the inference of exposure and summary
judgment on product nexus must be granted.
Once a defendant puts forth evidence that it manufactured both asbestos-containing
and non asbestos-containing versions of a product, the plaintiff must put forth
evidence that he or she was exposed to the asbestos-containing version of the product
in order to overcome a motion for summary judgment. In other words, in order for
Plaintiff to defeat summary judgment in this action, he must show that he was
exposed to an asbestos-containing brake while using the AMMCO machine.
Contrary to Defendants’ argument, Stigliano does not limit the use of
reasonable inferences by the Court or the trier of fact. Pursuant to Delaware’s
summary judgment standard, the Court must view the record, “including any
7
reasonable inferences to be drawn therefrom,” in the light most favorable to the
nonmoving party.24 Stigliano simply requires “evidence directly or circumstantially
linking the plaintiff to the asbestos-containing product” in cases where the plaintiff
worked with both asbestos-containing and non-asbestos-containing versions of a
product.25 Plaintiff failed to submit such evidence.
Plaintiff submitted Bendix interrogatory responses from 2006 to support his
assertion that he was exposed to asbestos-containing dust from his work with the
AMMCO machines. Plaintiff testified generally that he used Bendix brake products,
but was unable to identify particular brands of drums as he worked because he was
not the person removing the drums from the vehicles.26 Plaintiff did not know, but
“assumed,” that the dust from the drums contained asbestos.27 Defendant submitted
another set of Bendix interrogatory responses from 2014 showing that Bendix also
produced non-asbestos-containing products during the relevant time period.
Plaintiff failed to submit any evidence showing that the specific Bendix products he
worked with in conjunction with the AMMCO machines contained asbestos, or any
evidence that any of the brake products he used with the AMMCO machines released
24
Stayton v. Clariant Corp., 2014 WL 28726, *1 (Del. 2014) (quoting LaPoint v.
AmerisourceBergen Corp., 970 A.2d 185, 191 (Del. 2009)).
25
Stigliano v. Westinghouse, 2006 WL 3026171 (Del. Super. Oct. 18, 2006).
26
Def.’s Ex. A at 227:19–228:5.
27
Def.’s Ex. A at 227:19–228:5.
8
friable asbestos.28 Plaintiff, therefore, fails to meet the standard under Stiglano and
the Court will grant Defendant’s Motion on this basis.
4. Sweredoski Causation
The Rhode Island Superior Court adopted the Lohrmann frequency, regularity
and proximity test in Sweredoski v. Alfa Laval, Inc.29 In order to satisfy the causation
standard under Sweredoski, a plaintiff must present evidence showing exposure to a
particular product on a regular basis, over an extended period of time, in proximity
to where the plaintiff actually worked.30 “[M]ere proof that the plaintiff and a certain
asbestos product are at the same location at the same time, without more, does not
prove exposure to that product.”31 The plaintiff must prove “more than a casual or
minimum connection with the product.”32
28
This lack of evidence is contrasted with In re Asbestos Litig. (Henderson), 2011
WL 684164 (Del. Super. Feb. 2, 2011), cited by Plaintiff, where plaintiffs produced
evidence linking plaintiffs to exposure from asbestos-containing gaskets.
29
2013 WL 3010419 (R.I. Super. June 13, 2013). Delaware courts refer to
Sweredoski when undergoing a causation analysis in an asbestos case under Rhode
Island substantive law. “The Rhode Island Supreme Court has not established a set
standard for causation in the state, and the well analyzed decision in Sweredoski lays
out exactly why the Superior Court of Rhode Island applied the frequency,
regularity, and proximity test.” In re: Asbestos Litigation (Leathers), 2017 WL
5593522, at *1 (Del. Super. Nov. 8, 2017).
30
Leathers, 2017 WL 5593522, at *1 (citing Sweredoski, 2013 WL 3010419, at *5).
31
Id.32
Id.9
In support of his claims of friable asbestos exposure, Plaintiff cites a New York
Times article from 1982 about the ubiquity of asbestos in automotive parts and the
testimony of Craig Mountz, AMMCO’s corporate representative. The New York
Times article highlights the use of asbestos in the industry in general, but does not
aid Plaintiff in satisfying the Sweredoski standard. The Mountz testimony supports
Plaintiff’s arguments regarding AMMCO’s knowledge about the use of its products
generally, but does not provide the necessary connection between Plaintiff’s alleged
exposure to friable asbestos and his actual work with AMMCO machines.
Defendant contends that the dust Plaintiff was exposed to was created by
metal-on-metal friction and there is no evidence supporting Plaintiff’s testimony that
this dust contained asbestos. Plaintiff testified to sanding down the brake drums
prior to using the AMMCO machine.33 Plaintiff did not rebut Defendant’s argument
that the dust created by Plaintiff’s use of the AMMCO lathe would have been
composed of metal shavings and not asbestos. Plaintiff did not submit any evidence
or testimony providing more than a self-described assumption that the dust created
or collected by the AMMCO machines contained asbestos.
The evidence in the record is not sufficient under the Sweredoski standard
because it does not provide a basis for a reasonable inference as to the frequency and
regularity of Plaintiff’s exposure to friable asbestos. Plaintiff submitted evidence of
33
Def.’s Ex. A at 215:21–216:1.
10
the frequency and regularity of his use of the AMMCO machines during his career.
This evidence does not extend, however, to the frequency and regularity of
Plaintiff’s exposure to friable asbestos in connection with his use of the AMMCO
machines.
Conclusion
For the foregoing reasons, Hennessy Industries, LLC’s Motion for Summary
Judgment is GRANTED.
11