Henderson v. Dana Companies (In re Asbestos Litigation, 2011)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, March 22, 2011).

Family members of Elizabeth Henderson and her son Bruce Henderson sued makers and suppliers of asbestos-containing products. They alleged that both died of mesothelioma caused by asbestos exposure. The case went to a two-week jury trial against two automotive parts makers, Dana Companies and Zoom Performance Products. The jury found both liable and awarded a total of $1.74 million. This opinion decides only the plaintiffs' later motion for costs and interest. The plaintiffs asked for $18,188.00 in costs. The defendants objected to the experts' travel fees and expenses and to one deposition transcript fee. The court agreed that the travel charges were too high. It noted that travel time is not paid at an expert's full testimony rate and that the party seeking costs must itemize them. It reduced the travel awards for the four experts. It also denied the $729.00 transcript fee for Bruce Henderson's deposition, because the deposition was shown to the jury by video. The court awarded $14,597.12 in costs, pre-judgment interest from each defendant, and 5.75% post-judgment interest.

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 22, 2011
• Stage: Post-trial motions
• State: Delaware

Outcome. 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.

What the court held. A prevailing party may recover expert witness fees for testifying time and reasonable travel expenses, but travel time is not paid at the expert's testimonial rate and the party must itemize its claimed costs. A transcript fee is not recoverable when the deposition was played by video at trial.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Elizabeth Henderson: mesothelioma; died

• Bruce Henderson: mesothelioma; died

The defendants

• Dana Companies, LLC (manufacturer)
• Zoom Performance Products (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.
• 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.
• 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.

Amounts in the opinion

• $1.74 million (total)
• $14,597.12 (other)
• $38,052.35 against Dana, and $28,279.23 against Zoom (other)

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:

HENDERSON, BRUCE, HENDERSON, ELIZABETH.

C.A. Nos. 09C-07-188 ASB, 09C-04-293 ASB

Submitted: March 1, 2011.

Decided: March 22, 2011.

Filing and Trial Fees $538.00

Dr. Barry Castleman Trial Testimony Fee $1,400.00

Dr. Barry Castleman Travel and Expenses $2,390.00

Dr. Laura Welch Trial Testimony Fee $3,400.00

Dr. Laura Welch Travel and Expenses $1,065.00

William Ewing Trial Testimony Fee $1,640.00

William Ewing Travel and Expenses $2,723.00

Mary Hessdorffer Trial Testimony Fee $375.00

Mary Hessdorffer Travel and Expenses $951.00

Bruce Henderson Video Deposition Conference Room Fee $295.00

Bruce Henderson Video Deposition Transcript $729.00

Bruce Henderson Video Deposition Videographer Fee $1,380.00

Bruce Henderson Discovery Dep. Conference Room Fee $187.00

Bruce Henderson Discovery Deposition Transcripts $1,115.00

Superior Court of Delaware, New Castle County.

PEGGY L. ABLEMAN, Judge.

This 23rd day of March, 2011, it appears to the Court that:

1. Plaintiffs, the family members of Elizabeth Henderson and her son Bruce Henderson, filed suit against various manufacturers and suppliers of asbestos-containing products, alleging that Elizabeth and Bruce each died of mesothelioma contracted as a result of asbestos exposure. Plaintiffs proceeded to trial against two automotive parts manufacturers, Defendants Dana Companies, LLC ("Dana") and Zoom Performance Products ("Zoom"). Following a two-week jury trial, both defendants were found liable, and the plaintiffs were awarded a total of $1.74 million in damages.

2. Plaintiffs filed the instant motion for costs pursuant to Superior Court Civil Rule 54(d) on February 16, 2011. Plaintiffs' motion requests the following costs, which total $18,188.00:

Plaintiffs also seek pre-judgment interest in the amounts of $38,052.35 from Dana and $28,279.23 from Zoom, as well as post-judgment interest at the legal rate of 5.75%.

3. Dana and Zoom oppose Plaintiffs' request for a total of $7,129.00 in expert witness travel fees and expenses, arguing that the amount sought is excessive in view of the travel time required. Defendants further argue that the $729.00 transcript fee associated with Bruce Henderson's video deposition is not recoverable because the deposition video was played for the jury at trial, rendering the transcript duplicative. Dana and Zoom do not oppose the remaining costs, and do not object to Plaintiffs' demands for pre- and post-judgment interest.

4. Under Superior Court Civil Rule 54(d) and 10 Del. C. § 5101, the prevailing party in a civil action may recover costs against adverse parties.[1] In addition, 10 Del. C. § 8906 permits the prevailing party to recover expert witness fees in an amount fixed by the Court. Generally, the prevailing party may only recover those expert witness fees associated with time spent testifying or waiting to testify, along with reasonable travel expenses.[2] The amount to be awarded for expert witness testimony is a matter of the trial court's discretion.[3]

5. The Court agrees with Defendants that adjustments must be made to Plaintiffs' requests for their experts' travel fees and expenses, although it declines to reduce Plaintiffs' award as dramatically as Defendants urge. Plaintiffs' use of out-of-state

Filing and Trial Fees $538.00

Dr. Barry Castleman Trial Testimony Fee $1,400.00

Dr. Barry Castleman Travel and Expenses $650.00

Dr. Laura Welch Trial Testimony Fee $3,400.00

Dr. Laura Welch Travel and Expenses $750.00

William Ewing Trial Testimony Fee $1,640.00

William Ewing Travel and Expenses $2,067.12

Mary Hessdorffer Trial Testimony Fee $375.00

Mary Hessdorffer Travel and Expenses $800.00

experts was entirely appropriate given the specialized testimony needed in an asbestos-exposure case. Accordingly, the Court finds nothing objectionable in the fact that certain of Plaintiffs' experts may have spent more time traveling than testifying. The Court also cannot conclude that an expert's traveling fees and expenses are unreasonable simply because they exceed the witness's testimonial fee. Nevertheless, reimbursement for an expert's travel time will not be awarded at the same rate charged for the expert's testimonial time.[4] Furthermore, the party seeking costs is expected to provide some itemization or accounting from which the Court and opposing counsel can assess the basis for and appropriateness of the request.[5]

6. Dr. Castleman's invoice to Plaintiffs included $1800.00 for "travel" (presumably for travel time) and $590.00 for "expenses," including his hotel room. The invoice does not record the duration of Dr. Castleman's trip or offer any further itemization of his expenses. Dr. Castleman traveled from the Baltimore area. His testimony lasted less than half a day. Even accepting the necessity of a hotel stay and an estimated three to four hours of travel time, the Court considers $2,390.00 to be an unreasonably excessive amount for his travel time and expenses. Defendants have highlighted cases in which expert physicians' travel fees and expenses have been reduced to $250.00 for four or five hours of travel time.[6] Taking into account increases in the price index for travel, a single night's hotel stay, as well as Dr. Castleman's normal hourly rate, which justifiably exceeds that of some physicians, and making conservative estimates due to the lack of information supporting Plaintiffs' request, the Court will adjust the award for Dr. Castleman's travel fees and expenses to $650.00. 7. Plaintiffs' request of $1,065.00 for Dr. Laura Welch's travel time and expenses includes $215.00 for non-itemized travel expenses. Dr. Welch further invoiced Plaintiffs for twenty-six hours of "preparation and trial testimony" at $425.00 per hour. Dr. Welch traveled from the Maryland-D.C. area to testify. Although her "preparation" time is non-recoverable and no detail is given as to her travel expenses, Dr. Welch would have spent approximately four to five hours of time traveling to and from the courthouse. The Court considers $750.00 an appropriate amount for Dr. Welch's travel time and expenses. 8. Plaintiffs seek reimbursement of $951.00 for Mary Hesdorffer's travel time and expenses, reflecting invoiced amounts of $201.00 for transportation and $750.00 for travel time. Hesdorffer traveled from northern Virginia. The transportation charge would appear to be high for either a round-trip train ticket or gasoline and tolls, and the invoice does not describe Hesdorffer's means of transportation. Because nothing in the invoice or record indicates that Hesdorffer stayed at a hotel, the Court will presume that she traveled by train to minimize her travel time, and will award a total of $800.00 for her travel time and expenses.

7. William Ewing provided a far more detailed invoice of the expenses associated with his travel from Georgia than did Plaintiffs' other experts. Nevertheless, some adjustment is still required to Plaintiffs' request of $2,723.00 for his travel and expenses. Ewing's invoice includes $1067.12 in recoverable expenses for his airfare, car rental, mileage, and parking. However, Ewing also invoiced his travel time at his full testimonial rate of $205.00 per hour. He spent approximately 10 hours traveling, for which the Court considers $1,000.00 to be an appropriate award in view of his full testimonial rate. Thus, Plaintiffs' recovery for Ewing's travel and expenses will be reduced to $2,067.12.

8. Finally, Defendants correctly point out that Plaintiffs' request for reimbursement of $729.00 for the transcription of Bruce Henderson's videotaped deposition is duplicative of the videographer's fees. Because the deposition was introduced via video at trial, the written transcript fee is non-recoverable.[7]

9. For the foregoing reasons, Plaintiffs' Motion for Costs and Interest is GRANTED IN PART and DENIED IN PART in accordance with the above adjustments to Plaintiffs' claimed costs. Plaintiffs are entitled to recover $14,597.12 in total costs, reflecting the following items:

Bruce Henderson Video Deposition Conference Room Fee $295.00

Bruce Henderson Video Deposition Videographer Fee $1,380.00

Bruce Henderson Discovery Dep. Conference Room Fee $187.00

Bruce Henderson Discovery Deposition Transcripts $1,115.00

Plaintiffs are entitled to pre-judgment interest in the amounts of $38,052.35 against Dana, and $28,279.23 against Zoom. Post-judgment interest shall accrue on Plaintiffs' awards at the legal rate of 5.75% per annum, running from the entry of the verdicts on November 23, 2010.

IT IS SO ORDERED.

[1] 10 Del. C. § 5101("Generally a party for whom final judgment in any civil action, or on a writ of error upon a judgment is given in such action, shall recover, against the adverse party, costs of suit, to be awarded by the court."); Super. Ct. Civ. R. 54(d) ("Except when express provision therefor is made either in a statute or in these Rules or in the Rules of the Supreme Court, costs shall be allowed as of course to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the Court otherwise directs."). [2] Spencer v. Wal-Mart Stores East, LP, 2007 WL 4577579, at [*1] (Del. Super. Dec. 5, 2007).

[3] Taveras v. Mesa, 2008 WL 5244880, at [*1] (Del. Super. Dec. 15, 2008) (citing Donovan v. Del. Water & Air Res. Comm'n, 358 A.2d 717, 722-23 (Del. 1976)).

[4] E.g., Dunning v. Barnes, 2002 WL 31814525, at [*4] (Del. Super. Nov. 4, 2002) ("[A]n expert's reasonable and ordinary traveling expenses may be reimbursed. However, costs should not be [assessed] at the expert's hourly testifying rate.").

[5] Wilson v. James, 2010 WL 2683023, at [*4] (Del. Super. June 11, 2010); Barnett v. Braxton, 2003 WL 21976411, at [*3] (Del. Super. Aug. 15, 2003) (where requested costs are not identified or itemized, thereby "precluding any meaningful review by the Court of the amounts claimed," recovery may be denied).

[6] See Lang v. Morant, 2005 WL 1952930, at [*1]-2 (Del. Super. Apr. 19, 2005) (collecting and applying cases). [7] Kerr v. Onusko, 2004 WL 2744607, at [*1] (Del. Super. Oct. 20, 2004) ("[C]osts for the preparation of a transcript for a trial deposition will not be awarded when the deposition is introduced at trial via videotape.").

Sources

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