Tracy v. American Honda Motor Co.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STEVE L. TRACY, )
)
Plaintiff, )
) C.A. No.: N22C-02-179 ASB
v. )
)
AMERICAN HONDA )
MOTOR CO., ET AL., )
)
Defendant. )
ORDER
This 15th day of February 2024, upon consideration of Plaintiff’s Motion for
Reargument and Tenneco Automotive Operating Company’s (“Tenneco”)
Response, it appears to the Court that:
1) On January 26, 2024, this Court entered an order in this asbestos case
granting Summary Judgment to Tenneco on the basis of product nexus. This Court
found that Tenneco had produced evidence demonstrating that, during the period
of Plaintiff’s alleged exposure to Walker mufflers (which are the responsibility of
Tenneco), Walker mufflers were both asbestos-free and asbestos-containing. On
this basis, the Court applied the standard in Droz v. Hennessy LLC,1 which required
that plaintiffs produce evidence that the Walker mufflers, to which plaintiff was
exposed, contained asbestos. To meet its burden in Droz, Plaintiff presented
1
275 A.3d 257 (Del. 2022)
evidence from which it argued that any Walker muffler that contained a lining
prior to 1977 contained asbestos, and since Mr. Walker testified that he worked
with Walker mufflers that were lined, Plaintiff had met its burden under Droz.
After carefully looking at the evidence Plaintiff relied on to support the proposition
that all Walker mufflers that contained a lining contained asbestos, this Court
determined that the evidence relied upon by Plaintiff did not establish, as a factual
matter, that all lined Walker mufflers prior to 1977 contained asbestos.
2) The Court will only grant reargument when it has overlooked
controlling precedent or legal principles, or misapprehended the law or facts in a
way that would have changed the outcome of the underlying decision.2
Reargument is not an opportunity for a party to revisit arguments already decided
by the Court.3 When seeking reargument based on newly discovered evidence, the
movant must demonstrate that the evidence came to his or her knowledge since
the motion and could, in the exercise of reasonable diligence, have been discovered
for use at the time of the motion.4
3) First, Plaintiff maintains that it has discovered new evidence which
the Court should consider. Plaintiff relies on two deposition transcripts of Mr.
2
See Peters, ex rel. Peters v. Texas Instruments, Inc., 2012 WL 1622396, at *1 (Del. Super.
May 7, 2012), aff’d, 58 A.3d 414 (Del. 2013), as revised (Jan. 9, 2013).
3
See Id.4
In Re: Asbestos Litig., 2019 WL 6033949 (Del. Super. 2019).
Riska taken in 2016 and 2019 and a deposition of Mr. Haynes in May 2018.5
Plaintiff argues that this information is “new” because Tenneco did not raise the
Droz argument until its reply brief and this is its first opportunity to raise this
evidence. Giving the Plaintiff the benefit of the doubt that the Droz argument was
not raised until the reply brief, a Motion for Reargument, after the issuance of a
Court decision on the motion, is not the time to raise “new” evidence. There was
oral argument in this case on the summary judgment motions, as there always is
in the Delaware asbestos litigation. If the Plaintiff had an issue with the record
presented, the time to raise that issue was at oral argument and certainly before a
decision was rendered by the Court. This Court, when faced with this fact scenario
in the past, has allowed additional submissions prior to the issuance of any
decision. The attempt to use this evidence at this point is too late. The evidence
relied upon has been in existence since at least 2018. It is not new and it was not
raised until after this Court rendered its decision.
4) Plaintiffs next maintain that the Court has misapprehended the facts
and misinterpreted the application of Droz. This Court has reviewed the entirety
of the record on this motion and disagrees. This Court is satisfied that Tenneco
has met the burden shifting of Droz and that Plaintiff has not carried the burden of
5
Both Riska and Haynes are Rule 30(b)(6) witnesses of Tenneco.
demonstrating that the Walker mufflers he worked with contained asbestos as
opposed to non-asbestos lined mufflers.
For the stated reasons Plaintiff’s Motion for Reargument be and hereby is
DENIED.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
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