Charbonneau v. Fairbanks Company ( 2017 )


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  •      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    IN RE: ASBESTOS LITIGATION
    DOROTHY              CHARBONNEAU,              )
    individually     and      as     personal      )
    representative of the estate of ROBERT         )
    CHARBONNEAU, deceased,                         )
    )
    Plaintiffs,                             )      C.A. No. N15C-01-045 ASB
    )
    v.                               )
    )
    FAIRBANKS COMPANY, et al.,                     )
    )
    Defendants.                             )
    July 12, 2017
    Upon Defendant Fairbanks Company’s
    Motion for Summary Judgment. GRANTED.
    Plaintiff Dorothy Charbonneau (hereinafter “Plaintiff”) cannot satisfy the
    summary judgment criteria.1
    Plaintiff alleges that her husband, Robert Charbonneau, was exposed to
    asbestos from Defendant Fairbanks Company’s (“Fairbanks” or “Defendant”)
    products while working as a maintenance man and welder for several employers in
    Massachusetts. Plaintiff is the only product identification witness in this action.
    1
    Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 
    2013 WL 6920864
    , at *3 (Del.
    Super. Dec. 30, 2013); see Moore v. Sizemore, 
    405 A.2d 679
    , 680 (Del. 1979); Nutt v. A.C. & S.,
    Inc., 
    517 A.2d 690
    , 692 (Del. Super. Ct. 1986); In re Asbestos Litigation (Helm), 
    2012 WL 3264925
    (Del. Aug. 13, 2012).
    During his deposition he recalled Defendant’s brand of valves as a product he
    worked with at both Greeting Cards and Gordon Chemical. He worked with both
    globe valves and gate valves. At the Oxford Housing Authority he testified that he
    worked with gate valves, globe valves, and a zone valve with a ball valve in both
    ends. He described the valves as brass in color, and stated that these brass colored
    valves were present at all the sites he worked at. He stated that while at Gordon
    Chemical he installed new Fairbanks valves and removed Fairbanks valves. He
    testified that he replaced the packing and external insulation on the valves and
    broken valve handles. He testified that the packing was located at the stem of the
    valve. To access the packing Mr. Charbonneau had to unscrew the packing nut on
    the shaft, and sometimes use a packing remover tool or a pair of pliers to get the
    packing out.     When asked where the external packing came from, Mr.
    Charbonneau stated that the packing came from the supply house. As for the
    external insulation, Mr. Charbonneau described the insulation as white, and the
    insulation was located on the valve itself. Mr. Charbonneau removed the insulation
    in order to remove the valve itself. He stated that the maintenance crew supplied
    the insulation. The new insulation came in powder form and needed to be mixed.
    Mr. Charbonneau applied this mix with his hands. When asked if he believed the
    packing he removed and installed contained asbestos, he stated that he assumed it
    did because of the high heat that was going through the pipes.
    Defendant argues that the record lacks evidence that the valve packing
    contained asbestos, and that Defendant manufactured the asbestos packing.
    Plaintiff argues that Defendant required asbestos for use with its valve products,
    and Plaintiff provided six different catalogues for the proposition that Defendant
    “specifically and regularly called for the use of asbestos gaskets and packing” with
    its products. Plaintiff argues that Mr. Charbonneau testified from personal
    knowledge about removing asbestos on piping, and that Mr. Charbonneau replaced
    Fairbanks valves with other Fairbanks valves. He also testified that the Fairbanks
    valves were externally insulated. Under Massachusetts law:
    To prove causation in an asbestos case, the plaintiff must establish (1)
    that the defendant's product contained asbestos (product
    identification), (2) that the victim was exposed to the asbestos in the
    defendant's product (exposure), and (3) that such exposure was a
    substantial contributing factor in causing harm to the victim
    (substantial factor).2
    Defendant argues that Plaintiff’s claims are barred because Defendant had no duty
    to warn of asbestos parts from another manufacturer. Plaintiff presented evidence
    that Mr. Charbonneau installed and removed Fairbanks valves, and that some of
    Fairbanks valves were sold with asbestos component parts. Plaintiff supplied
    answers to interrogatories stating that some Fairbanks valves contained asbestos
    gaskets and packing between the 1930s and 1980s. Defendant argues that under
    2
    Morin v. AutoZone Ne., Inc., 
    943 N.E.2d 495
    , 499 (Mass. App. Ct. 2011).
    Massachusetts law it is not liable for other manufacturers’ asbestos containing
    products.    Although Plaintiff demonstrated that Fairbanks sold valves that
    contained asbestos gaskets and packing, Plaintiff failed to provide evidence that
    the packing and gaskets were manufactured by Fairbanks.            Mr. Charbonneau
    testified that he installed and removed Fairbanks valves. In Massachusetts to
    “prove causation in an asbestos case, it is plaintiff’s principal burden to show that a
    defendant’s product contained asbestos and that the victim was exposed to the
    asbestos in the defendant’s product.”3          As stated by this Court before,
    “Massachusetts courts have never held a manufacturer liable . . . for failure to warn
    of risks created solely in the use or misuse of the product of another
    manufacturer.”4 There is no evidence in the record that the replacement parts Mr.
    Charbonneau worked with were asbestos parts manufactured or supplied by
    Defendant, Fairbanks. Simply because a Plaintiff worked with a Defendant’s
    product, without evidence beyond speculation that the product contained asbestos,
    and the asbestos containing part was manufactured by Defendant, a reasonable jury
    could not infer exposure. Specifically in this case, external packing, packing inside
    the valves, and gaskets with the valves were replaced numerous times. Without
    any indication that the replacement packing, external insulation, or parts in the
    3
    Whiting v. CBS Corp., 
    2013 WL 530860
    , at *1 (Mass. Ct. App. Feb. 14, 2013)(emphasis
    added).
    4
    In re Asbestos Lit., Cosner, 
    2012 WL 1694442
    (Del. Super. May 14, 2012).
    Fairbanks valve were manufactured by Fairbanks, Plaintiff asks the Court to
    speculate that Defendant is responsible. When viewing the evidence in a light
    most favorable to Plaintiff, a reasonable jury could not infer that Mr. Charbonneau
    was exposed to asbestos from Fairbanks product beyond speculation. Defendant’s
    Motion for Summary Judgment is therefore GRANTED.
    IT IS SO ORDERED.
    /s/ Calvin L. Scott
    The Honorable Calvin L. Scott, Jr.
    

Document Info

Docket Number: N15C-01-045 ASB

Judges: Scott J.

Filed Date: 7/12/2017

Precedential Status: Precedential

Modified Date: 7/13/2017