Ashworth v. Pneumo Abex (In re Asbestos Litigation, 2011)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, February 14, 2011).

The widow of Sherman Ashworth sued Pneumo Abex, LLC in Delaware Superior Court after her husband died of mesothelioma. She brought a survival action and a wrongful death claim. Abex moved for summary judgment, arguing that both claims were time-barred and that she could not prove causation or that her husband was exposed to its products. The court applied Delaware's borrowing statute, which requires the shorter of the Delaware and Utah limitations periods. That made the survival claim's period two years, and it expired days before the September 2009 complaint, so the survival claim was dismissed. The wrongful death claim accrued at Ashworth's death in September 2007 and had a two-year period, so it was timely. The court rejected Abex's but-for causation argument as unsuited to multi-defendant asbestos cases. A witness's testimony about regularly using Rayloc Stopper brake products sold by NAPA, together with other deposition testimony about whether Abex supplied their asbestos materials, created a jury question. The motion was granted in part and denied in part.

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: February 14, 2011
• Stage: Summary judgment
• State: Delaware

Outcome. 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.

What the court held. Under Delaware's borrowing statute the shorter Delaware limitations period applied to the survival claim. A wrongful death claim accrues no earlier than the decedent's death. In a multi-defendant asbestos case, but-for causation does not apply, and the Utah Supreme Court was not expected to apply it.

Issues decided: Causation, Choice of Law, Wrongful Death and Survival, Statute of Limitations, Product Identification.

The people and their exposure

• Sherman Ashworth: mesothelioma; died

The defendants

• Pneumo Abex, LLC (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.
• Olson v. Crane Co. (In re Asbestos Litigation) (January 18, 2011). 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.
• 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.
• 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.

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:

Ashworth, Sherman.

C.A. No. 09C-09-123 ASB.

February 14, 2011.

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge.

1. Upon review of the parties' filings and the record, the Court concludes that Plaintiff's wrongful death claim, arising from her husband Sherman Ashworth's death of mesothelioma, was timely filed, and that genuine factual disputes exist which preclude summary judgment in favor of Defendant Pneumo Abex, LLC ("Abex") on the issue of liability. Pursuant to

Delaware's borrowing statute, Plaintiff cannot maintain her survival action, as the governing statute of limitations expired before she instituted this suit.

2. With regard to Abex's argument that Plaintiff's claims are time-barred, the parties have both urged misapplications of the relevant law. Plaintiff filed her Complaint on September 27, 2009. Abex submits for purposes of its motion that "the very latest Plaintiff's decedent could have been aware that asbestos exposure caused his disease was September 6, 2007." Plaintiff's survival action, which derives from the underlying personal injury action that accrued to Ashworth during his lifetime, would be subject to either a two-year limitations period under Delaware's statute of limitations for personal injury actions or a four-year limitations period under Utah law.[1] Section 78-B-105 of the Utah Code, which provides that "[i]f a person entitled to bring an action dies before the expiration of the statute of limitations and the cause of action survives, an action may be brought by his representatives after the expiration of the time and within one year from his death" is not implicated, as the Utah limitations period on the underlying claim did not expire prior to the filing of Plaintiff's Complaint. Nevertheless, the Court must apply Delaware's shorter limitations period, as required by Delaware's borrowing statute.[2] Accordingly, the limitation period applicable to Plaintiff's survival claim expired, at the latest, on September 6, 2009, five days before her Complaint was filed.

3. By contrast, Plaintiff's wrongful death claim was timely under Delaware and Utah law. As Abex correctly points out, Delaware and Utah both require, as a condition precedent to the accrual of a wrongful death claim, that the decedent possessed a viable cause of action at the time of his death.[3] Abex appears to interpret this condition precedent to mean that a qualifying survivor's wrongful death claim accrues at the time of the underlying wrong to the decedent. To the contrary, under Delaware and Utah law, the earliest that a wrongful death claim can accrue (if at all) is upon the death of the decedent.[4] At the time of his death on September 27, 2007, Ashworth's personal injury claim was viable, assuming as previously discussed that it accrued on September 6, 2007. There is no issue of tolling under the discovery rule, and Plaintiff's wrongful death claim therefore accrued immediately upon Ashworth's death. Both Utah and Delaware apply a two-year limitations period to wrongful death claims,[5] such that the statute of limitations expired on September 27, 2009. Thus, Plaintiff's wrongful death claim was instituted more than two weeks before the running of the limitations period under either state's law.

4. Abex also contends that it is entitled to summary judgment on the issues of causation and product nexus. Abex's reliance upon Holmstrom v. C.R. England, Inc. for the proposition that an actor's conduct does not constitute a substantial factor in bringing about harm "if the harm would have been sustained even if the actor had not been negligent"[6] is misplaced in the context of a multi-defendant, multi-exposure asbestos case, where the logic underpinning but-for causation does not apply. While Utah case law offers little guidance on the issue of causation in asbestos-exposure cases, the Court does not expect that the Utah Supreme Court would apply but-for causation to such claims if it were to address the issue.[7]

5. Considering the product nexus evidence in the light most favorable to Plaintiff, the Court finds that genuine issues of material fact preclude summary judgment in Abex's favor on the issue of liability, for the reasons set forth in Plaintiff's cogent responsive brief. The product identification testimony of Lee Ericksen suffices to create a jury question as to whether Ashworth was exposed to Abex asbestos-containing products incorporated into Rayloc brake products sold by NAPA.

Eriksen specifically recalled using Rayloc's Stopper product line at his garages on a regular basis, thereby distinguishing this case from the situation addressed by the Philadelphia Court of Common Pleas in Weitz v. Pneumo Abex, LLC, which involved less precise testimony describing "NAPA brakes."[8] While Abex has presented evidence that it was not the exclusive supplier of the friction materials used in Rayloc's ES and Stopper 2 products, the deposition testimony of Paul LeCour and Charles Allen gives rise to a factual dispute regarding whether Abex was an exclusive supplier of asbestos-containing materials used in the Stopper line identified by Ericksen.[9]

6. For the foregoing reasons, Abex's Motion for Summary Judgment is hereby GRANTED IN PART as to Plaintiff's survival action, and DENIED IN PART as to her wrongful death claim.

IT IS SO ORDERED.

[1] 10 Del. C. § 8119; UTAH CODE ANN. § 78B-2-307 (2008). The parties have each suggested that Utah's three-year limitations period for actions arising out of asbestos exposure would apply to this case; however, the statute upon which they rely is limited to claims against "any manufacturer of any construction materials containing asbestos and arising out of the manufacturer's providing of the materials, directly or through other persons, for use in construction of any building within the state." UTAH CODE ANN. § 78B-2-117 (2008) (emphasis added). Plaintiff's claims against Abex do not pertain to construction materials.

[2] 10 Del. C. § 8121 ("Where a cause of action arises outside of this State, an action cannot be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state or country where the cause of action arose, for bringing an action upon such cause of action."); see also Burrell v. Astrazeneca LP, 2010 WL 3106584, at [*3]-4 (Del. Super. Sept. 20, 2010).

[3] Jensen v. IHC Hosps., Inc., 944 P.2d 327, 332-33 (Utah 1997); Drake v. St. Francis Hosp., 560 A.2d 1059, 1060-61 (Del. 1989). [4] See Jensen, 944 P.2d at 332 ("We have held that an action for wrongful death is an independent action accruing in the heirs of the deceased[.]"); Milford Memorial Hosp., Inc. v. Elliott, 210 A.2d 858, 860-61 (Del. 1965); In re Asbestos Litig. (West Trial Group), 622 A.2d 1090, 1092 (Del. Super. 1992) ("[A] cause of action for wrongful death accrues when a qualifying survivor is chargeable with knowledge of a potential cause of action[.]" (emphasis added)).

[5] 10 Del. C. § 8107; UTAH CODE ANN. § 78B-2-304(2) (2008).

[6] 8 P.3d 281, 292 (Utah Ct. App. 2000).

[7] See Robinson v. All-Star Delivery, Inc., 992 P.2d 969, 972-73 (Utah 1999) (discussing with approval Restatement (Second) of torts § 433A cmt. i, which recognizes the possibility that multiple causes may combine to produce an injury with "each. . . a substantial factor in bringing about the harm"); McCorvey v. Utah State Dep't of Transp., 868 P.2d 41, 45 (Utah 1993) ("[T]here can be more than one proximate cause or, more specifically, substantial causative factor, of an injury.").

[8] Super. Ct. Docket No. 268 EDA 2008 (Phila. County Ct. C.P. 2008).

[9] See In re: Asbestos Litig. (Stevens), C.A. No. 05C-05-272 ASB (Del. Super. Sept. 22, 2006) (TRANSCRIPT).

Sources

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