Newman v. Avocet Enterprises (In re Asbestos Litigation, 2011)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, March 15, 2011).

Aaron Newman and his wife Nancy sued several makers and suppliers of allegedly asbestos-containing products, claiming his mesothelioma was caused by their products. One defendant, Avocet Enterprises, moved for summary judgment, arguing the Newmans could not show a causal link between its products and his disease. The Delaware Superior Court denied the motion on the remaining claims. Newman testified that he worked directly with Avocet's Ventbestos product "all the time" and "all through the years" from age seventeen until the early 1980s, that he remembered it as containing asbestos, and that he used it where he thought asbestos was appropriate. The court held this created a genuine factual dispute under Georgia law, which requires proof that the product was a contributing factor and that the plaintiff was near its use, but not recall of a specific job or incident. The court also faulted Avocet for relying on another jurisdiction's standards and ignoring Georgia authority. The conspiracy claim was withdrawn, so that part of the motion was moot.

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: March 15, 2011
• Stage: Summary judgment
• State: Delaware

Outcome. 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Newman's testimony about using Ventbestos raised a factual dispute on causation, and found the motion moot as to the withdrawn conspiracy claim.

What the court held. Under Georgia law, a plaintiff must show a defendant's asbestos-containing product was a contributing factor to the injury, which requires proof of proximity to its use; he need not recall a specific time, job, or incident if he offers product identification, proximity, and supporting expert testimony. A movant that ignores the controlling jurisdiction's authority cannot show it is entitled to judgment as a matter of law.

Issues decided: Causation, Choice of Law, Product Identification.

The people and their exposure

• Aaron Newman: mesothelioma

The defendants

• Avocet Enterprises, 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.
• 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.
• 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:

• John Crane, Inc. v. Jones (Georgia Supreme Court, 2004). The Georgia Supreme Court affirmed the Court of Appeals, upholding the $1,975,000 verdict for Laila Jones against John Crane, Inc. and the trial court's refusal to give a "substantial contributing factor" jury charge.

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:

Newman, Aaron.

C.A. No. 10C-03-173 ASB.

March 15, 2011.

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge.

Plaintiffs Aaron and Nancy Newman brought this personal injury action against various manufacturers and suppliers of allegedly asbestos-containing products, claiming that the defendants' products caused Aaron Newman ("Newman") to contract mesothelioma. Defendant Avocet Enterprises, Inc. ("Avocet") has moved for summary judgment. By its motion, Avocet claims that Plaintiffs cannot establish any causal nexus between its products and Newman's mesothelioma. Upon review of the parties' filings and the record, the Court concludes that summary judgment in Avocet's favor would be inappropriate based upon Newman's deposition testimony regarding his use of Avocet's Ventbestos product. Newman's testimony that he worked directly with Ventbestos "all the time" and "[a]ll through the years" from the time he was seventeen until the early 1980s, that he recalled the Ventbestos product as asbestos-containing, and that he used Ventbestos in applications for which he considered asbestos appropriate,[1] suffices to create a genuine factual dispute as to causation. Under Georgia law, the plaintiff in an asbestos-exposure action must show that a particular defendant's product was "a contributing factor in bringing about the plaintiff's damages," which requires the plaintiff to establish that he was in proximity to the use of the defendant's asbestos-containing product.[2] Where a plaintiff offers evidence of product identification and proximity, as well as expert testimony supporting that his exposure to a particular defendant's product was a contributing factor to his injury, Georgia's causation standard does not require the plaintiff to recall a specific time, job, or incident during which he used the defendant's product.[3]

Furthermore, Avocet's failure to state in its motion that Georgia substantive law applied to this case, and its concomitant omission of Georgia authority from its opening brief, would provide an independent basis for denial of summary judgment. Causation is an element of the plaintiffs' claims, and thus a substantive issue. Delaware procedural law, which Avocet correctly relied upon, places a burden upon the party seeking summary judgment to demonstrate that it is "entitled to a judgment as a matter of law."[4] That burden cannot be met where the moving party entirely ignores relevant authorities from the jurisdiction whose substantive law controls in favor of another jurisdiction's more favorable standards.

Because Plaintiffs have withdrawn their claim of conspiracy against Avocet, the motion for summary judgment is MOOT IN PART as to the conspiracy allegation. For the foregoing reasons, summary judgment is DENIED IN PART as to Plaintiffs' remaining claims.

IT IS SO ORDERED.

[1] Aaron K. Newman, Jr., Dep. Tr., May 4, 2010, at 25:22-24; 17:5-8. Avocet has disputed the admissibility of additional testimony from product identification witness Thomas Cooler, on the basis that Cooler's testimony about Avocet products was elicited by leading questions. Because Newman's testimony is admissible and more than adequate to raise a genuine factual dispute, the Court will not address the admissibility of Cooler's statements at this time.

[2] John Crane, Inc. v. Jones, 604 S.E.2d 822, 824-26 (Ga. 2004).

[3] Avocet also states in its motion that Plaintiffs have failed to produce evidence as to strict liability, negligent and/or intentional conduct, and willful and wanton conduct. This "argument" is offered in a wholly conclusory fashion, and will not be considered at this stage in the case, particularly in view of Avocet's production of asbestos-containing products during the time period relevant to Plaintiffs' claims. [4] Def. Avocet's Mot. for Summ. J. 3 (quoting Del. Super. Ct. Civ. R. 56(c)).

Sources

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