Olson v. Crane Co. (In re Asbestos Litigation, 2011)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, January 18, 2011).

Plaintiffs sued several companies, alleging that Arland Olson developed mesothelioma from asbestos exposure. Olson worked at an Amalgamated Sugar Co. processing plant in Idaho from 1958 to 2003. He testified that he replaced gaskets on a Westinghouse generator and on Crane valves, applied insulation to Crane valves, and was near others working on Crane valves. He did not identify asbestos in the generator's internal parts; he said the external flanges and line insulation contained asbestos. Plaintiffs offered no evidence that the asbestos parts were original or replacements supplied by Crane or Westinghouse. Crane and CBS/Westinghouse moved for summary judgment. The parties agreed Idaho law applied and had not settled whether a manufacturer is liable for other makers' asbestos parts. The Delaware Superior Court predicted that Idaho's Supreme Court would follow the majority of courts and not impose a duty on manufacturers for products they did not make, sell or distribute. It granted both motions.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Delaware Superior Court
• Decided: January 18, 2011
• Stage: Summary judgment
• State: Delaware

Outcome. The Delaware Superior Court granted summary judgment to defendants Crane Co. and CBS Corp. (Westinghouse) against plaintiffs, holding Idaho law would not make them liable for other manufacturers' asbestos-containing parts.

What the court held. Applying Idaho law, the court predicted that Idaho would not impose a duty to warn on a manufacturer for hazards arising from asbestos-containing products or replacement parts that it did not manufacture, distribute, or sell, even if its own product incorporated similar components.

Issues decided: The Bare-Metal Defense, Choice of Law, Failure to Warn, Product Identification.

The people and their exposure

• Arland Olson: mesothelioma

The defendants

• Crane Co. (manufacturer)
• CBS Corp., f/k/a Westinghouse Electric Corp. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• In re Asbestos Litigation (May 9, 2006). The court denied DaimlerChrysler's motion in limine to exclude the plaintiffs' experts on general causation, so the plaintiffs' experts may testify that automotive friction products increase the risk of asbestosis, lung cancer and mesothelioma.
• Grenier v. General Motors Corp. (In re Asbestos Litigation) (April 8, 2009). On remand from the Delaware Supreme Court, the Superior Court concluded that, despite factual errors in its earlier opinion, it properly denied General Motors' and Ford's motion to exclude plaintiffs' general causation expert testimony, so Grenier's experts remained admissible.
• Freeman v. Georgia-Pacific (In re Asbestos Litigation) (January 13, 2011). The court denied Georgia-Pacific's motion for summary judgment because plaintiffs raised a genuine dispute of fact about whether Wilburn Freeman was exposed to Georgia-Pacific's asbestos-containing joint compound.
• Cruz v. Georgia-Pacific (In re Asbestos Litigation) (January 19, 2011). The court granted Georgia-Pacific's motion for summary judgment, ruling that plaintiffs could not show under Texas law that exposure to its Ready Mix joint compound was a substantial factor in causing Cruz's mesothelioma.
• Ashworth v. Pneumo Abex (In re Asbestos Litigation) (February 14, 2011). The court granted Pneumo Abex's summary judgment motion on the survival action as time-barred, but denied it on the wrongful death claim, which was timely and had factual disputes on causation and product identification.
• James v. Albany Int'l (In re Asbestos Litigation) (February 16, 2011). The court granted Albany International's motion for summary judgment against plaintiff Charlene James because there was no non-speculative evidence that Robert James was exposed to an asbestos-containing Albany product.
• Newman v. Avocet Enterprises (In re Asbestos Litigation) (March 15, 2011). The court denied Avocet Enterprises' motion for summary judgment on the Newmans' remaining claims, because Newman's testimony about using Ventbestos raised a factual dispute on causation, and found the motion moot as to the withdrawn conspiracy claim.
• Henderson v. Dana Companies (In re Asbestos Litigation) (March 22, 2011). The court granted in part and denied in part the plaintiffs' post-trial motion for costs against Dana and Zoom, awarding $14,597.12 in costs plus pre- and post-judgment interest.
• Foucha v. CertainTeed Corp. (In re Asbestos Litigation) (May 31, 2011). The court granted CertainTeed Corp.'s motion for summary judgment, ruling against plaintiffs Raymond and Sussanah Foucha because they lacked evidence that he was exposed to an asbestos-containing CertainTeed product.
• Foucha v. Georgia-Pacific (In re Asbestos Litigation) (June 3, 2011). The court granted Georgia-Pacific's motion for summary judgment against Raymond and Sussanah Foucha because they could not show without speculation that Foucha was exposed to asbestos from Georgia-Pacific joint compound.
• Bowser v. Parker-Hannifin Corp. (In re Asbestos Litigation) (June 3, 2011). The court granted Parker-Hannifin's summary judgment motion in part (strict liability count and helicopter brake exposures before 1967) and denied it as to the airplane brake claims, so Plaintiff Jenny Bowser's remaining claims proceed.
• Davis v. Crane Co. (In re Asbestos Litigation) (June 7, 2011). The court granted Crane Co.'s motion for summary judgment against plaintiff Wesley Davis, finding he had not shown Crane-supplied asbestos products were a substantial factor in causing his mesothelioma.
• Clineff v. BP Amoco Chemical Co. (In re Asbestos Litigation) (July 8, 2011). The court granted summary judgment to BP Amoco Chemical Company, BP Corporation North America Inc., and Kvaerner U.S. Inc. because the plaintiffs' claims were filed after the two-year limitations period expired.
• Gordon v. Dana Companies (In re Asbestos Litigation) (November 16, 2011). The court granted summary judgment to Dana (Victor gaskets) and UOP, and denied summary judgment to Elliott, Armstrong and Born, so the plaintiffs' claims against those three go forward.
• McCoy v. PolyVision Corp. (In re Asbestos Litigation) (February 21, 2012). The court granted summary judgment to PolyVision Corp. against Janine and Marvin McCoy, predicting Pennsylvania law imposes no duty on an employer or premises owner to an employee's spouse for take-home asbestos exposure.
• Galliher v. R. T. Vanderbilt (In re Asbestos Litigation) (May 9, 2012). The court allowed plaintiff's late-disclosed geologist (Fitzgerald) to testify, excluded plaintiff's other late expert (Dr. Rigler), continued the trial to July 16, 2012 so defendant R. T. Vanderbilt could develop rebuttal evidence, and sanctioned defendant's out-of-state counsel $5000.
• Farrall v. Ford Motor Co. (In re Asbestos Litigation) (August 19, 2013). The court denied the plaintiff's motion for reargument, leaving in place its grant of summary judgment for Ford Motor Company on the failure to warn claim about asbestos-containing replacement parts.
• Muse v. Honeywell Int'l (In re Asbestos Litigation) (December 31, 2014). The court denied the plaintiffs' motion for reargument, leaving in place summary judgment for Honeywell International Inc. against James Muse and Clarice Roberts-Muse.
• Harris v. Deere & Co. (In re Asbestos Litigation) (May 10, 2017). The court granted Deere & Company's motion for summary judgment, ruling for Deere against the plaintiff, because under North Carolina law the plaintiff offered no evidence beyond speculation that the asbestos-containing parts he worked on were made or sold by Deere.
• Kivell v. Air Prods. and Chemicals (In re Asbestos Litigation) (August 30, 2017). The court granted Air Products and Chemicals Inc.'s motion for summary judgment on the negligence, strict liability and wrongful death claims, ruling against plaintiff Sandra Kivell.
• Kivell v. Union Carbide Corp. (In re Asbestos Litigation) (August 30, 2017). The Delaware Superior Court granted Union Carbide's motion for summary judgment on Sandra Kivell's negligence and strict liability claims, so Union Carbide won and the plaintiff lost.
• Kivell v. Murphy Oil USA (In re Asbestos Litigation) (August 30, 2017). The court granted Murphy Oil USA Inc.'s motion for summary judgment on the negligence and strict liability claims brought by Sandra Kivell, so the plaintiff lost.
• Walsh v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (October 27, 2017). The court granted summary judgment to Air & Liquid Systems Corp. (successor to Buffalo Pumps) against plaintiffs Phillip and Naomi Walsh, finding no evidence Mr. Walsh was exposed to asbestos parts the defendant was responsible for.
• Leathers v. Pneumo Abex (In re Asbestos Litigation) (November 8, 2017). The court denied Pneumo Abex LLC's motion for summary judgment, so plaintiff Raymond Leathers' claims against Abex go forward to trial.
• Walsh v. Aurora Pump Co. (In re Asbestos Litigation) (November 29, 2017). The court granted Aurora Pump Company's motion for summary judgment against Phillip and Naomi Walsh because they did not show that Mr. Walsh was exposed to asbestos from Aurora's products.
• Sykes v. Air & Liquid Systems Corp. (In re Asbestos Litigation) (February 7, 2018). The Superior Court affirmed the Special Master's order excluding William Don Sykes's videotaped trial deposition at trial, a ruling for the defendants and against the plaintiff estate.
• Kivell v. Georgia Pacific Consumer Prods. LP (In re Asbestos Litigation) (March 26, 2018). The court granted Georgia Pacific's motion for judgment on the pleadings, holding that Sandra Kivell's wrongful death and survival claims were time barred under Louisiana's one-year limit.
• Richards v. Copes-Vulcan (In re Asbestos Litigation) (August 8, 2018). The court denied the Richards plaintiffs' motion for leave to supplement their expert's report and for reargument, leaving in place summary judgment for Copes-Vulcan, Fairbanks, Ford and Goodyear.
• Call v. Ford Motor Co. (In re Asbestos Litigation) (December 12, 2018). The court granted Ford Motor Company's motion for summary judgment against plaintiff Marilyn Kay Call, holding Indiana's "but for" causation standard applies and her expert's opinion did not meet it.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (January 31, 2019). The Delaware Superior Court denied Ford Motor Company's renewed motion for judgment as a matter of law, its alternative motion for a new trial, and its motion for a new trial or remittitur, leaving the plaintiff's jury verdict in place.
• Rowland v. Union Carbide Corp. (In re Asbestos Litigation) (April 24, 2019). The Delaware Superior Court granted Union Carbide's motion for summary judgment against Jane and Douglas Rowland because they could not show that the joint compound they used contained Union Carbide's asbestos.
• Knecht v. Ford Motor Co. (In re Asbestos Litigation) (March 3, 2020). On remand from the Delaware Supreme Court, the Superior Court denied Ford Motor Company's motion for a new trial or remittitur, leaving the $40.625 million compensatory verdict for Paula Knecht in place.
• Petit v. Hennessy Indus. (In re Asbestos Litigation) (August 31, 2020). The Delaware Superior Court granted Hennessy Industries' motion for summary judgment against the Petit plaintiffs, because plaintiff did not show exposure to asbestos-containing brakes or to friable asbestos with the AMMCO machines.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (December 23, 2020). The court denied Heidelberg USA's summary judgment motion on causation, statute of repose and product misuse, and granted it only on the willful and wanton conduct claim, which Mrs. Pearsons did not contest.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 11, 2023). The court denied Hennessy Industries' motion for reargument, so its earlier oral denial of summary judgment on the duty-to-warn claim stood and the plaintiff, Lisa Estrada, prevailed on this motion.
• Jordonek v. Hennessy Indus. (In re Asbestos Litigation) (April 25, 2023). The Superior Court denied defendant Hennessy Industries' request to certify an interlocutory appeal to the Delaware Supreme Court of the earlier denial of its summary judgment motion, so plaintiff Estrada prevailed on this request.
• Braxton v. J-M Mfg. Co. (In re Asbestos Litigation) (December 17, 2024). The court granted defendant J-M Manufacturing's motion for leave to designate responsible third parties, rejecting plaintiff Braxton's objections on pleading sufficiency, limitations timing and bankruptcy proofs of claim.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Braaten v. Saberhagen Holdings (Washington Supreme Court, 2008). The Washington Supreme Court reversed the Court of Appeals and reinstated the trial court's summary judgment orders in favor of pump and valve manufacturers Buffalo Pumps, IMO, Crane and Yarway, against the Braaten estate.
• Taylor v. Elliott Turbomachinery Co. Inc. (California Court of Appeal, 1st Appellate District, 5th Division, 2009). The Court of Appeal affirmed summary judgment for Crane, IMO, Ingersoll-Rand, Leslie and Elliott, rejecting Mrs. Taylor's failure-to-warn claims in strict liability and negligence.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

IN RE ASBESTOS LITIGATION Limited to: Olson, Arland.

C.A. No. 09C-12-287 ASB.

Decided: January 18, 2011.

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge

This 18th day of January, 2011, it appears to the Court that:

1. Plaintiffs instituted this action alleging that Arland Olson ("Olson") developed mesothelioma as a result of exposure to asbestos-containing products manufactured, sold, or distributed by various defendants. Plaintiffs allege that Olson experienced occupational exposures while he was employed at an Amalgamated Sugar Co. ("Amalgamated Sugar")

processing plant in Idaho. Olson worked in various capacities at the Amalgamated Sugar facility from 1958-2003.

2. Defendants Crane Co. ("Crane") and CBS Corp., f/k/a Westinghouse Electric Corp. ("Westinghouse"), each moved for summary judgment on the grounds that Plaintiff had not offered evidence that he was exposed to asbestos-containing products they had manufactured or distributed, and that Idaho law would not render them responsible for other

manufacturers' asbestos-containing products. According to Olson's deposition testimony, during the course of his

employment, he replaced gaskets on a Westinghouse generator and Crane metal valves, and applied insulation to Crane valves. He also recalled being in proximity to others performing work on Crane valves. Olson testified that he believed all of these activities exposed him to asbestos dust.[1] Although he assisted in occasional inspection, cleaning, and repair of the internal components of the Westinghouse generator, he did not identify any asbestos associated with its internal parts; rather, he testified that the external suction, discharge, flanges, and line insulation contained asbestos.[2] Plaintiffs have offered no evidence to suggest that the asbestos-containing parts and components Olson identified were original parts or replacements supplied by the original manufacturers. Thus, Plaintiffs' claims against Westinghouse and Crane are viable only if they can be deemed liable for products manufactured and supplied by other companies. The parties are in agreement that this question has not been settled under Idaho law, which applies to Plaintiffs' claims.

3. Contrary to Plaintiffs' position, it appears that the majority of courts to address the issue have refused to impose liability upon manufacturers of non-asbestos-containing products for the dangers associated with asbestos-containing components or replacement parts manufactured, sold, and distributed by other entities.[3] Under existing Idaho law, which offers little guidance, the question could be a close one. In Sliman v. Aluminum Co. of America, the Supreme Court of Idaho held that the manufacturer of a bottle-cap that caused a "blow-out" injury was subject to a duty to warn end users of the hazards associated with its product where the distributor of the bottled soda into which the cap was incorporated as a component could not reasonably be relied upon to provide an adequate warning, even though the cap was not inherently defective in design or manufacture and was hazardous only when end users opened the sealed cap with an implement.[4] The Sliman opinion, as Plaintiffs note, includes broad language emphasizing that the manufacturer of a product has a duty to warn of hazards arising from known and foreseeable uses of the product, even if the product poses no risk in its intended use. In addition, the Idaho Products Liability Act supports imposing a duty to warn upon product sellers for dangers arising from reasonably anticipated "alteration or modification" of their products.[5] Nevertheless, the Court concludes that the Idaho Supreme Court would likely follow those jurisdictions that have refused to find defendants liable for other manufacturers' products. Sliman dealt only with the scope of a manufacturer's duty to warn of a danger associated with its own product, and the "alteration or modification" provision of the Idaho Products Liability Act does not specifically address a scenario in which a danger arises from a separate product or component not manufactured by the defendant.[6]

4. As the Supreme Court of Washington observed in Braaten v. Saberhagen Holdings, "[i]t does not comport with principles of strict liability to impose on manufacturers the responsibility and costs of becoming experts in other manufacturers' products."[7] Under Restatement (Second) of Torts § 402A, strict liability is premised in part upon placing the burden of accidental injury upon those who market the injury-causing products and can treat the resulting cost as a production cost

against which liability insurance can be obtained.[8] Similarly, the duty to warn of a hazardous product in negligence actions, as articulated in the Restatement § 388, is generally imposed only upon those in the chain of distribution of the product.[9] 5. Both Restatement § 388 and § 402A have been adopted in Idaho.[10] In Peterson v. Idaho First National Bank,[11] the Idaho Supreme Court discussed strict liability in the context of sellers of used products. Although the Peterson decision minimized cost-spreading or enterprise liability as a basis for Idaho's adoption of strict liability, it limited the imposition of strict liability to those in "the original distribution chain of the product," in part because participants in the distribution chain are best-positioned to serve the policies of strict liability by preventing defects and ensuring that warnings are communicated.[12] Given Idaho's existing case law and the persuasive weight of decisions from other jurisdictions declining to impose a duty, the Court concludes that Idaho would likely find that a defendant is not subject to a duty to warn or protect against hazards arising from a product it did not manufacture, distribute, or sell, even if the defendant's product incorporated component parts that posed similar risks and would require replacement.

6. For the foregoing reasons, the Motions for Summary Judgment filed by Crane Co. and CBS Corp. are hereby GRANTED. [1] Arland Olson Dep. (Apr. 14, 2010), at 22:3-25:16; Arland Olson Discovery Dep. vol. 1 (Apr. 14, 2010), at 129:15-131:6. [2] Arland Olson Discovery Dep. vol. 1, at 286:13-24.

[3] See, e.g., Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir. 2005); Niemann v. McDonnell Douglas Corp., 721 F. Supp. 1019 (S.D. Ill. 1989); Taylor v. Elliott Turbomachinery Co., 90 Cal. Rptr. 3d 414 (Ct. App. 2009); Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wa. 2008).

[4] 731 P.2d 1267 (Idaho 1986).

[5] IDAHO CODE ANN. § 6-1405. The Act provides as follows:

(a) "Alteration or modification" occurs when a person or entity other than the product seller changes the design, construction, or formula of the product, or changes or removes warnings or instructions that accompanied or were displayed on the product. "Alteration or modification" of a product includes the failure to observe routine care and maintenance, but does not include ordinary wear and tear. (b) When the product seller proves, by a preponderance of the evidence, that an alteration or modification of the product by the claimant, or by a party other than the claimant or the product seller has proximately caused the claimant's harm, the claimant's damages shall be subject to reduction or apportionment to the extent that the alteration or modification was a proximate cause of the harm. This subsection shall not be applicable if:

1. The alteration or modification was in accord with the product seller's instructions or specifications;

2. The alteration or modification was made with the express or implied consent of the product seller; or

3. The alteration or modification was reasonably anticipated conduct, and the product was defective because of the product seller's failure to provide adequate warnings or instructions with respect to the alteration or modification.

Id. § 6-1405(4).

[6] Bromley v. Garey, 979 P.2d 1165 (Idaho 1999), was creatively described by Plaintiffs as a case involving bullets as akin to "components added post-sale," which constituted the instrumentalities "actually inflicting the harm" when a shotgun supplied by the defendant discharged after being dropped from a short height. Pls.' Opp'n to Def. Crane Co.'s Mot. for Summ. J. 13. To their credit, Plaintiffs do not stretch this analogy too far; Bromley is of little relevance here because the gun, not the bullet, was the allegedly defective item. [7] 198 P.3d at 502.

[8] Id. at 501.

[9] See Simonetta v. Viad Corp., 197 P.3d 127, 132-33 (Wash. 2008) (discussing and collecting cases).

[10] See Bromley, 979 P.2d at 1171; Shields v. Morton Chem. Co., 518 P.2d 857 (Idaho 1974). Currently, the Idaho Products Liability Act modifies, but does not eliminate, the principles of Restatement § 402A.

[11] 791 P.2d 1303 (Idaho 1990).

[12] Id. at 1305-1307.

Sources

• The opinion on Google Scholar
• Delaware asbestos laws
• Delaware asbestos exposure sites