James v. Albany Int'l (In re Asbestos Litigation, 2011)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, February 16, 2011).

Charlene James sued on behalf of her husband Robert James, who she says died of mesothelioma from occupational and non-occupational asbestos exposure. Her claims against Albany International concerned dryer felts, which are fabrics wrapped around drums on paper machines, at the Gray's Harbor paper mill in Washington, where he worked from 1946 to 1988. A coworker said James worked on the paper machines for about a year near 1976 and later used salvaged dryer felts as a windbreak at his carport. The coworker did not name the maker of the felts or say they contained asbestos. Albany said it sold some asbestos-containing felts and shipped a style of them to the mill in 1973 and 1976. An Albany employee stated that the felts the coworker described did not match Albany's asbestos felts. The Delaware Superior Court, applying Washington law, held that nothing linked those shipments to James, and that finding exposure to an Albany asbestos product would be speculation. It granted Albany summary judgment.

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 16, 2011
• Stage: Summary judgment
• State: Delaware

Outcome. 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.

What the court held. Under Washington law, the Lockwood and Berry approach to inferring exposure from a product's presence at a worksite presupposes that the product contained asbestos; where there is no evidence the product the worker used contained asbestos, an inference of exposure to the defendant's asbestos product is speculative and cannot survive summary judgment.

Issues decided: Choice of Law, Product Identification.

The people and their exposure

• Robert James: mesothelioma; died

The defendants

• Albany International Inc. (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.
• 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.
• 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:

• Lockwood v. AC & S, Inc. (Washington Supreme Court, 1987). The Washington Supreme Court affirmed the Court of Appeals and the trial court, leaving in place the $183,372 jury verdict for Albert Lockwood against Raymark Industries.

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,

JAMES, ROBERT.

C.A. No. 08C-11-215 ASB.

February 16, 2011.

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge.

1. Plaintiff Charlene James alleges that her husband Robert James ("James") died of mesothelioma caused by occupational and non-occupational exposure to asbestos-containing products. Plaintiff's claims against Defendant Albany International Inc. ("Albany") relate to James's work with dryer felts at the ITT Rayonier Pulp and Paper Mills ("Gray's Harbor Mill") in Washington state, where he was employed from 1946 to 1988.

2. Plaintiff's product identification witness, Merle Boettcher, worked at the mill with James beginning in the early 1970s.[1] Boettcher testified that he and James both worked with dryer felts that were wrapped around dryer drums on two paper machines in the mill. He described the dryer felts as "kind of like a wool blanket."[2] Boettcher recounted that James worked on the machines on a daily basis for approximately one year "close to 1976,"[3] when James served as a troubleshooter in the paper machine department. Boettcher associated a "small amount of dust" with the used dryer felts.[4] In addition, Boettcher explained that a salvage program at the mill distributed dryer felts to workers free of charge. Boettcher recollected that James used the salvaged dryer felts as a windbreak or rainbreak "on the front of his carport" to protect his car and firewood.[5] Boettcher did not identify the manufacturer of the dryer felts he described or suggest that they contained asbestos.

3. Albany has moved for summary judgment on the basis that Plaintiff has offered no evidence establishing that James was exposed to an asbestos-containing Albany product. In response, Plaintiff presents responses to discovery in which Albany states that it sold asbestos-containing dryer felts from approximately 1967 to 1976, and that it supplied a particular style of asbestos-containing dryer felt to the Gray's Harbor Mill on April 13, 1973, and January 1, 1976. Plaintiff contends that this evidence supports an inference that James was exposed to asbestos fibers by working with Albany dryer felts. 4. When considering a motion for summary judgment, the Court examines the record to ascertain whether genuine issues of material fact exist and to determine whether the moving party is entitled to judgment as a matter of law.[6] Initially, the burden is placed upon the moving party to demonstrate that his legal claims are supported by the undisputed facts.[7] If the proponent properly supports his claims, the burden "shifts to the non-moving party to demonstrate that there are material issues of fact for resolution by the ultimate fact-finder."[8] Summary judgment will only be granted if, after viewing the evidence in the light most favorable to the non-moving party, there are no material facts in dispute and judgment as a matter of law is appropriate.[9]

4. Upon reviewing the record and Washington law, the Court finds that Albany is entitled to summary judgment. Washington's Supreme Court has taken a flexible approach to evaluating the sufficiency of a plaintiff's evidence of exposure to asbestos-containing products, but that flexibility is of little assistance to Plaintiff in this case. Plaintiff relies upon the fact-sensitive analysis set forth in Lockwood v. AC & S, Inc., which held that "instead of personally identifying the manufacturers of asbestos products to which he was exposed, a plaintiff may rely on the testimony of witnesses who identify manufacturers of asbestos products which were then present at his workplace."[10] For present purposes, the key phrase in this quoted language is "asbestos products"; as this wording suggests, Lockwood involved a defendant's challenge to the sufficiency of the plaintiff's evidence of exposure to a product that was undisputedly asbestos-containing. Berry v. Crown Cork & Seal Co., another Washington Supreme Court case cited by Plaintiff, addressed whether a plaintiff had provided adequate evidence identifying the defendant as a distributor of asbestos-containing products used at the decedent's worksite to survive summary judgment. In addition to challenging the sufficiency of Plaintiff's product identification and exposure evidence, Albany's motion raises the separate issue of whether Plaintiff has offered sufficient evidence that the dryer felts to which Robert James was exposed contained any asbestos.

5. In Hautala v. Cutler Hammer, Inc., the Washington Court of Appeals held that Lockwood and Berry would not apply to salvage a claim where the plaintiff provided no evidence that the product to which he was exposed contained asbestos.[11] The plaintiff in Hautala provided testimony clearly establishing that he worked with electrical starters and other products manufactured by defendant Cutler, but offered no proof that the products contained asbestos. Cutler starters contained asbestos for a portion of the period during which the plaintiff recalled using Cutler products, but he could not name specific products or attribute them to particular time-frames.[12] The Hautala court found that plaintiff failed to "provide a basis for an inference that he was exposed to asbestos in products manufactured by Cutler, because he does not show that such products were ever present at his worksite," and the available circumstantial evidence would "not point to Cutler."[13] Thus, " [a] fact finder could only arrive at such a conclusion through speculation."[14]

6. Although Hautala was a non-precedential opinion, this Court finds it on-point and persuasive. In essence, the Lockwood analysis—which weighs the sufficiency of a plaintiff's exposure evidence in view of factors such as the plaintiff's "proximity to the asbestos product" during exposures, the length of the exposure, and "types of asbestos products to which the plaintiff was exposed"[15]— presupposes that the product at issue contained asbestos. Hautala provides guidance where it is not clear that a product in fact contained asbestos.

7. The Court recognizes that Plaintiff has presented slightly more evidence here than did the plaintiff in Hautala: the discovery responses provided by Plaintiff reflect two shipments of Albany asbestos-containing dryer felts to the mill where James worked. However, without any evidence even circumstantially linking those particular asbestos-containing Albany dryer felts to James, the record is simply insufficient to survive summary judgment. One of the shipments occurred three years prior to the approximate time period during which James worked with the dryer felts as a machine troubleshooter. The second shipment, in January 1976, took place near or during the time James worked with the machine dryer felts—but that shipment also took place near or during the time that Albany discontinued production of asbestos-containing dryer felts.[16] According to its discovery responses, asbestos-containing products constituted "only a small portion of the dryer fabrics that [were] being made by Albany International during the relevant period."[17]

8. Boettcher did not identify the dryer fabrics he discussed during his deposition as Albany products or asbestos-containing products. Albany has presented an affidavit from William Luciano, an Albany employee since the late 1970s, who asserts that Boettcher's descriptions did not match the qualities of Albany asbestos-containing dryer felts, which were "a course, open mesh fabric, . . . like a screen door" and would not be suitable for use as a windbreak or rainbreak.[18] Luciano further states that "Albany did manufacture papermachine clothing that resembled woolen blankets," consistent with Boettcher's testimony about the dryer felts to which James was exposed, but those items did not contain asbestos.

9. While Lockwood supports that the presence of an asbestos-containing product at a worksite may, under certain circumstances, present a reasonable inference of workers' exposure to asbestos from that product, the Lockwood opinion followed a trial during which the plaintiff provided evidence that the defendant's product would have generated friable asbestos dust to which the plaintiff could have been exposed by drifting.[19] Here, Plaintiff offers no evidence relating to the use of the asbestos-containing dryer felts shipped to James's worksite. Boettcher associated some dust with the dryer felts, but the only evidence before the Court suggests that the felts described in his testimony did not contain asbestos. Thus, even viewed in the light most favorable to Plaintiff, the record does not support a non-speculative inference that James was exposed to asbestos from any Albany product.

10. For the foregoing reasons, Albany's Motion for Summary Judgment is hereby GRANTED.

IT IS SO ORDERED.

[1] Boettcher was deposed prior to Plaintiff's naming Albany as a defendant. Although Albany has raised a question regarding the admissibility of Boettcher's testimony against it on this basis, Albany also points to Boettcher's description of dryer felts used at the mill to argue that Plaintiff has not identified an asbestos-containing product.

[2] Merle Boettcher Dep., July 16, 2009, at 64:21-65:1.

[3] Id. at 66:15.

[4] Id. at 66:24.

[5] Id. at 66:7-15.

[6] Super. Ct. Civ. R. 56(c).

[7] E.g., Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879 (Del. Super. 2005).

[8] Id. at 880.

[9] Id. at 879-80.

[10] 744 P.2d 605, 612 (Wash. 1987).

[11] 2006 WL 2590020 (Wash. Ct. App. 2006).

[12] Id.

[13] Id. at [*2].

[14] Id.

[15] Lockwood, 744 P.2d at 613.

[16] Albany's Answers and Objections to Pls.' Standard Interrogatories, C.A. No. 77C-ASB-2, at 3 (Del. Super. Oct. 22, 2010) ("Upon information and belief, Albany International discontinued making asbestos containing dryer felts around 1976."). [17] Id.

[18] William Luciano Aff. ¶¶ 10-11.

[19] Lockwood, 744 P.2d at 612-13.

Sources

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