Estrada v. American Honda Motor Co., Inc. ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION )
)
LISA ESTRADA, individually and as )
Fiduciary for the Estate of DONALD )
JORDONEK, deceased, )
)
Plaintiff, )
)
v. ) C.A. No.: N19C-01-100 ASB
)
AMERICAN HONDA MOTOR CO., )
INC., et al., )
)
Defendants. )
Submitted: April 5, 2023
Decided: April 11, 2023
OPINION ON DEFENDANT HENNESSY INDUSTRIES, LLC’S
MOTION FOR REARGUMENT
DENIED
Michael C. Dalton, Esquire, Dalton & Associates, P.A., Wilmington, Delaware, and
Michael Collins Smith, Esquire, Balick & Balick, LLC, Wilmington, Delaware,
Attorneys for Plaintiff.
Brian D. Tome, Esquire, Reilly, McDevitt & Henrich, P.C., Wilmington, Delaware,
Attorneys for Defendant
Jones, J.
This asbestos case is controlled by Ohio substantive law. It is alleged that Donald
Jordonek was exposed to asbestos from a number of sources as a result of his work
over a career as an automotive mechanic. It is further alleged that as a result of his
asbestos exposure, Jordonek contracted and died from mesothelioma.
One of the defendants sued is Hennessy Industries, LLC (“Hennessy”) in its
capacity as the predecessor-in-interest to AMMCO Tools, Inc. (“AMMCO”).
AMMCO manufactured brake lathes and grinders, among other products. There is
record evidence that Jordonek worked with this AMMCO equipment while
employed at the Goodyear Tire Service Center in Maple Heights, Ohio from 1972
to 1999.
The AMMCO equipment that Jordonek worked with did not contain asbestos.
The theory of liability against AMMCO is that it designed and sold a machine whose
function was to grind asbestos containing brake linings, and that the machine
released asbestos dust when applied to the linings.
Hennessey moved for summary judgment maintaining, among other things, that
under Ohio law there is no duty to warn on the part of Hennessey. In a March 28,
2023 oral ruling, this Court denied Hennessy’s motion, finding that Ohio law would
impose a duty on the part of Hennessy to warn. This Motion for Reargument
follows.
Because the original order of this Court was verbal, I will now take this
opportunity to explain, in writing, the March 28, 2023 oral decision.
Hennessey maintains that under Ohio law it cannot be held liable for any
asbestos containing component parts or other non-component parts that it did not
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manufacturer or supply including brakes. The Delaware Supreme Court had recent
occasion to give a history of the evolution of Ohio asbestos law in Richards v Copes-
Vulcan, Inc.1 In Richards, the Supreme Court wrote:
Our starting point to answer the Ohio law question is the Fourth
Circuit's decision in Lohrmann v. Pittsburgh Corning Corp. In
Lohrmann, the plaintiff argued that a directed verdict in favor
of three asbestos product manufacturers was improper when
the trial court found there was insufficient evidence that the
plaintiff came in contact with their asbestos products. Rather
than adopt a rule “that if the plaintiff can present any evidence
that a company's asbestos-containing product was at the
workplace while the plaintiff was at the workplace, a jury
question has been established as to whether that product
contributed as a proximate cause to the plaintiff's disease,” the
Fourth Circuit created the now often-cited “manner-frequency-
proximity” test for causation in asbestos cases:
To support a reasonable inference of substantial causation from
circumstantial evidence, there must be evidence of exposure to
a specific product on a regular basis over some extended period
of time in proximity to where the plaintiff actually worked.
Such a rule is in keeping with the opinion of the plaintiff's
medical expert who testified that even thirty days exposure,
more or less, was insignificant as a causal factor in producing
the plaintiff's disease.
As the court held, the manner-frequency-proximity test was
useful to assess “the sufficiency of evidence for exposure”
because it operated as “a de minimis rule since a plaintiff must
prove more than a casual or minimum contact with the
product.” The appeals court affirmed the district court's
directed verdict in favor of the three manufacturers because of
the lack of evidence of exposure to their products.
The Ohio Supreme Court, like many courts, had to decide what
causation standard to adopt in the evolving area of toxic tort
litigation. The causation issue presents unique challenges
because of multiple defendants, multiple sources of exposure,
and the long latency period of asbestos exposure diseases. In
Horton v. Harwick Chem. Corp., the Ohio Supreme Court
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213 A.3d 1196 (Del. 2019).
3
declined to adopt the Lohrmann manner-frequency-proximity
test because it “cast[ ] judges in an inappropriate role” of
making scientific and medical exposure assessments, was
“overly burdensome” for plaintiffs, and was “unnecessary.”
Instead, the Court adopted the “substantial factor” test of the
Restatement. The plaintiff must show that they were exposed
to asbestos from each defendant's product, and the asbestos
from each defendant's product was a “substantial factor” in
causing the injury.
After the Horton decision, the Ohio General Assembly in 2004
saw things differently and enacted Ohio Rev. Code Ann.
§2307.96, which essentially adopted the Lohrmann causation
standard in asbestos cases:
(A) If a plaintiff in a tort action alleges any injury or loss to
person resulting from exposure to asbestos as a result of the
tortious act of one or more defendants, in order to maintain a
cause of action against any of those defendants based on that
injury or loss, the plaintiff must prove that the conduct of that
particular defendant was a substantial factor in causing the
injury or loss on which the cause of action is based.
(B) A plaintiff in a tort action who alleges any injury or loss to
person resulting from exposure to asbestos has the burden of
proving that the plaintiff was exposed to asbestos that was
manufactured, supplied, installed, or used by the defendant in
the action and that the plaintiff's exposure to the defendant's
asbestos was a substantial factor in causing the plaintiff's injury
or loss. In determining whether exposure to a particular
defendant's asbestos was a substantial factor in causing the
plaintiff's injury or loss, the trier of fact in the action shall
consider, without limitation, all of the following:
(1) The manner in which the plaintiff was exposed to the
defendant's asbestos.
(2) The proximity of the defendant's asbestos to the plaintiff
when the exposure to the defendant's asbestos occurred.
(3) The frequency and length of the plaintiff's exposure to the
defendant's asbestos.
(4) Any factors that mitigated or enhanced the plaintiff's
exposure to asbestos.2
2
Id. at 1197-2000.
4
Here, Hennessy points to § 2307.96 and maintains it had no duty to warn the
plaintiff. Hennessy reads this statute as defining a cause of action, and since
Hennessy did not manufacture, supply, or install the product, and the product was
not used by the defendant in the action, no cause of action against Hennessy lies. In
short, Hennessy argues the plain words of the statute require the entry of summary
judgment because it owes no duty under the statute.
Plaintiff responds that the language in the statute “used by” the defendant applies
to the instant case. Plaintiff also points the Court to § 2307.91(C), which defines
asbestos claims as “any claim means any claim for damages, losses,
indemnification, contribution or other relief arising out, based on, or in any way
related to asbestos.”3 According to the plaintiff, this definition would include the
claims against Hennessy, and to adopt a contrary meaning would make the words
of this definition meaningless.
The first question to be addressed is whether the plain words of the statute
resolve the issue. I find that the clear terms of the statute do not address the question
posed. Section 2307.98(b) is entitled “Burden of Proof in a Tort Action/ Factors
Considered.” The section does not define the nature and scope of the duties owed
by a manufacturer. But what the statute does say, as evidenced by its words and the
history of the statute, is that the plaintiff must show the exposure to a particular
product was a substantial factor in bringing about plaintiff’s asbestos-related
disease. As explained in Richards, the underlying purpose of this section was to
3
Ohio Rev. Code Ann. § 2307.91(C).
5
address the Lohrmann4 issue of the required burden of proof in Ohio on the issue of
causation. Plaintiff is also correct that the definition of “claims” is much broader
than that outlined in § 2307.96, and encompasses the claims against Hennessey. To
adopt the reading of the defendant would be inconsistent with the definition of
claims as defined by the Act. In short, the statutory words do not resolve the issue.
Finding that the Ohio statute does not directly address the issue, I must look for
other indications of what an Ohio court would decide. The parties have not provided
any Ohio case directly addressing the issue before this Court; in fact, the parties
have agreed that there is no Ohio decision addressing the issue. In the absence of
such authority, I must predict Ohio law.5
Like a number of other jurisdictions, Ohio follows the general rule that a
manufacturer does not have a duty to warn of adjacent parts supplied by a third
party, the so-called bare metal defense.6 But there are well recognized exceptions
to this rule.7 The question is whether Ohio would adopt an exception to the rule
under the circumstances of this case.
In In re: Fitzgerald, our Superior Court had an opportunity to summarize Ohio
law in this area. The Fitzgerald Court concluded that “a plaintiff creates a triable
issue as to liability on a design defect theory where he can show that the defendant
explicitly specified or at least recommended that a particular product to which the
plaintiff attributes his exposure be utilized with asbestos, such that it is evident that
4
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986)
5
See generally Richards, 213 A.3d.
6
Jacobs v. E.I. du Pont de Nemours & Co., 67 F.3d 1219, 1236 (6th Cir. 1995).
7
See id.6
the defendant’s product was manufactured with the explicit purpose and intent of
use with asbestos.”8 The Fitzgerald Court then cited to the Ohio case of Fischer v.
Armstrong Int’l, Inc.,9 where the Ohio Court of Common Pleas recognized a duty
exists for a replacement part by a third party when the defendant in question
“explicitly specified the product for use with asbestos”. Fischer, in turn, quoted the
Ohio decision in Perry v. Allis Chalmers Products Liability Trust,10 in which the
Ohio Court of Common Pleas once again recognized a duty on the part of a third
party. And, in a recent Rhode Island decision interpreting Ohio law,11 Judge Gibney
of the Rhode Island Superior Court wrote:
. . . Ohio Courts have addressed the issue of liability for after-
applied, third party asbestos-containing products. Generally,
such courts have "acknowledged that certain factual scenarios
may arise under Ohio law where liability may attach to
manufacturers of products for injuries caused by a plaintiff's
exposure to a different manufacturer's asbestos-containing
products." For instance, in Perry v. Allis-Chalmers Corp.
Prods. Liab. Trust, the court denied summary judgment
because the defendant specified replacement parts must
contain asbestos. Nevertheless, the courts have held that a
plaintiff must produce some evidence indicating that the
original manufacturer recommended or required the use of
asbestos insulation upon its products. Put another way, the fact
that the defendant manufacturer may have foreseen that
asbestos products could later have been used in conjunction
with the original product, standing alone, is not sufficient to
impose liability.12
I recognize that, in some of these cases, summary judgment was granted. But the
grant of summary judgment was because the facts did not meet the exception. The
8
In re Fitzgerald, N10C-06-179, at 9 (Del. Super. Aug. 16, 2011) (Ableman, J.).
9
No. CV 07-615514 (Ohio Ct. Com. Pl. Jan. 2, 2008) (Sweeney, J.) (ORDER).
10
No. CV 06-608652 (Ohio Ct. Com. Pl. Nov. 30, 2006) (Sheehan, J.).
11
Baumgartner v. American Standard, Inc., 2015 WL 4523476 (R.I. Super. July 22, 2015).
12
Id. at *6 (internal citations omitted).
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upshot of these cases is that Ohio law recognizes there are exceptions to its general
rule. The question then becomes whether Ohio law should recognize an exception
in this circumstance. I believe that it should, and the rationale for why it should can
be gleamed from the California law cited by the plaintiff.
California follows the general rule of no duty to warn, but recognizes exceptions
to that doctrine.13 In Sherman v. Hennessy,14 the California Court of Appeals for the
Second Circuit had an opportunity to directly address the exact issue present in this
case. The question in Sherman was whether California law recognized an exception
to the general no duty rule where the AMMCO machine was the product in question.
In Sherman, the Court had an opportunity to lay out the exceptions to the general
rule and the public policy arguments behind it:
In O'Neil, our Supreme Court examined the extent to which a
manufacturer may be liable for injuries arising from “adjacent”
products, that is, products made and sold by others, but used in
conjunction with the manufacturer's own product. There, the
family of a deceased United States Navy seaman asserted
claims for negligence and strict liability against manufacturers
of pumps and valves used on warships, alleging that the
serviceman's exposure to asbestos dust from asbestos-
containing materials used in connection with the pumps and
valves caused his fatal mesothelioma. The court rejected the
claims, concluding that “a product manufacturer may not be
held liable in strict liability or negligence for harm caused by
another manufacturer's product unless the defendant's own
product contributed substantially to the harm, or the defendant
participated substantially in creating a harmful combined use
of the products.”
The O'Neil court distinguished three decisions in which
liability had been imposed on a manufacturer, one of which is
pertinent here, namely, Tellez–Cordova v. Campbell–
13
O’Neil v. Crane Co., 266 P.3d 987, 998 (Cal. 2012).
14
237 Cal. App. 4th 1133 (2015), as modified on denial of reh’g (July 8, 2015).
8
Hausfeld/Scott Fetzger There, the plaintiff asserted strict
liability claims based on defective warnings and design defects
against manufacturers of grinding, sanding, and cutting tools
the plaintiff had used. The plaintiff's complaint alleged that the
defendants' tools released toxic dust from other manufacturers'
products, and that the dust caused his injuries. The defendants
successfully demurred to the complaint on the basis of the
component parts doctrine. In reversing, the appellate court
concluded that the component parts doctrine was inapplicable:
“The facts before us are not that respondents manufactured
component parts to be used in a variety of finished products,
outside their control, but instead that respondents
manufactured tools which were specifically designed to be
used with the abrasive wheels or discs they were used with, for
the intended purpose of grinding and sanding metals, that the
tools necessarily operated with those wheels or discs, that the
wheels and discs were harmless without the power supplied by
the tools, and that when the tools were used for the purpose
intended by respondents, harmful respirable metallic dust was
released into the air.”
The O'Neil court concluded that Tellez–Cordova marked an
exception to the general rule barring imposition of strict
liability on a manufacturer for harm caused by another
manufacturer's product. That exception is applicable when “the
defendant's own product contributed substantially to the
harm... .” In expounding the exception, the court rejected the
notion that imposition of strict liability on manufacturers is
appropriate when it is merely foreseeable that their products
will be used in conjunction with products made or sold by
others. The O'Neil court further explained: “Recognizing a
duty to warn was appropriate in Tellez–Cordova because there
the defendant's product was intended to be used with another
product for the very activity that created a hazardous situation.
Where the intended use of a product inevitably creates a
hazardous situation, it is reasonable to expect the manufacturer
to give warnings. Conversely, where the hazard arises entirely
from another product, and the defendant's product does not
create or contribute to that hazard, liability is not appropriate.
We have not required manufacturers to warn about all
foreseeable harms that might occur in the vicinity of their
products.”
The O'Neil court further concluded that the facts in Tellez–
Cordova differed from the situation before it in two key
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respects. As the “sole purpose” of the power tools in Tellez–
Cordova was to grind metals, they could only be used in a
potentially injury-producing manner, unlike the defendant
manufacturers' pumps and valves, whose “normal operation ...
did not inevitably cause the release of asbestos dust.”
Moreover, unlike the pumps and valves, “it was the action of
the power tools ... that caused the release of harmful dust, even
though the dust itself emanated from another substance.” In
view of those differences, the pumps and valves did not satisfy
two requirements identified by the underlying appellate court
for the imposition of strict liability under Tellez–Cordova,
namely, that the manufacturer's product “ ‘is necessarily used
in conjunction with another product,’ ” and that “ ‘the danger
results from the use of the two products together.’ ” The O'Neil
court determined that “[the] pumps and valves were not
‘necessarily’ used with asbestos components, and danger did
not result from the use of [the] products ‘together.’ ”15
The public policy rationale for imposing a duty on Hennessy, as articulated in
O’Neil, is persuasive, as it places the burden on the party who increased the risk and
profited from it. I believe that an Ohio court would be persuaded by the O’Neil
analysis, as well. If an Ohio court is prepared to impose liability on a manufacturer
where its products require the incorporation of another manufacturer’s product, it
surely would impose liability when a combination of the two products increases the
risk of injury. To be clear, the reason for imposing liability is not based on the
concept of foreseeability; as Sherman makes clear, that is not enough. The reason
for imposing liability is because defendant’s product was intended to be used with
another product for the very activity that created a hazardous situation. Where the
intended use of a product inevitably creates a hazardous situation, it is reasonable
to expect the manufacturer to give warnings, so long as there is proof that the
15
Id. at 1140-43 (emphasis in original) (internal citations omitted).
10
intended use of the product inevitably created a hazardous situation. Conversely,
where the hazard arises entirely from another product and the defendants’ product
does not create or contribute to that hazard, liability is inappropriate. The factual
requirements that must be established to trigger the Tellez-Cordova exception are:
(1) the manufacturer’s product is necessarily used in conjunction with another
product; and (2) the danger results from the two products together. It is my
prediction that Ohio would adopt this exception.
Against this background, I now turn to Hennessy’s Motion for Reargument.
This Court’s standard for considering Motions for Reargument is well settled. The
Court will only grant reargument when it has overlooked controlling precedent or
legal principles, or misapprehend the law or facts in a way that would have changed
the outcome of the underlying decision.16 Reargument is not an opportunity for a
party to revisit arguments already decided by the Court.17
Hennessy, in its Motion for Reargument, presents no new arguments. While
Hennessy has cited to one additional case from Arkansas,18 this case does not change
the Court’s conclusion. In short, I am satisfied that I did not overlook a controlling
precedent or legal principle or misapprehend the law or facts in a manner affecting
the outcome of the decision. The original March 29, 2023 verbal decision was
correct and should not be changed or amended.
16
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).
17
See id.18
Thomas v. Borg-Wagner Mores TEC, LLC, 340 F.Supp 3.d 800 (E.D. Ark. 2018). Thomas is an Arkansas case that
cites Arkansas law.
11
For the above reasons, Defendant’s Motion for Reargument is DENIED.
IT IS SO ORDERED.
/s/ Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
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