Galliher v. R. T. Vanderbilt (In re Asbestos Litigation, 2012)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, May 9, 2012).

Darcel Galliher, widow and administratrix of Michael Galliher, sued R. T. Vanderbilt. She claimed her husband got mesothelioma from talc the company mined and processed in New York, to which he was exposed at his Ohio workplace. The company argued its talc lacks minerals known to cause mesothelioma and that there was no proof he was exposed to its talc rather than another maker's. The dispute concerned the late report of plaintiff's geologist, Sean Fitzgerald, who found that the minerals in the company's mine matched those in Mr. Galliher's lung tissue. The defendant had agreed to the late report but first objected to its timing on the eve of trial, after the jury was sworn. The court barred a second late expert, Dr. Rigler, but allowed Fitzgerald to testify. It postponed the trial to July 16, 2012 so the defendant could develop rebuttal evidence. It sanctioned the defendant's out-of-state lawyer $5000 for holding back the objection, and said this was a rare exception to the rule against late experts.

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: May 9, 2012
• Stage: Discovery or evidence ruling
• State: Delaware

Outcome. 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.

What the court held. A late-identified expert's testimony may be allowed, with a trial continuance to cure prejudice, where the opposing party consented to the late report and did not timely object. The court called this a rare exception to the rule that late-identified experts are precluded.

Issues decided: Expert Testimony, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Michael Galliher: mesothelioma; died

Who	Work	Where	When	Products
Michael Galliher		Ohio		talc and vermiculite, R. T. Vanderbilt talc

The defendants

• R. T. Vanderbilt (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.
• 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.
• 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

• $5000 (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.

Michael Galliher and his wife, Darcel Galliher

C.A. No. 10C-10-315 ASB.

May 9, 2012.

Superior Court of Delaware, New Castle County.

Ian Connor Bifferato, Esquire, David W. deBruin, Esquire, Kevin G. Collins, Esquire, Bifferato, LLC, 800 North King Street, Plaza Level, Wilmington, Delaware 19801.

Nicholas Skiles, Esquire, Joseph S. Naylor, Esquire, Swartz Campbell LLC, 300 Delaware Avenue, Suite 1130, P.O. Box 330, Wilmington, Delaware 19899.

JOHN A. PARKINS, JR., JUDGE.

Dear Counsel:

The court believes it might be useful to summarize some of the rulings made on May 7, 2012.

A. Background

Plaintiff is the widow and administratrix of the late Michael Galliher. She claims her husband was exposed at his place of employment in Ohio to toxins contained in talc mined and processed by defendant R. T. Vanderbilt in upstate New York. According to Plaintiff, her late husband contracted mesothelioma as a result. Defendant raises a number of defenses. Most notably, it contends that the talc in its New York mine does not contain minerals known to cause mesothelioma or, if so, they are well below acceptable levels. It also contends, among other things, that there is insufficient evidence that Mr. Galliher was exposed to its talc, as opposed to talc from some other manufacturer.

B. The experts

The dispute here arises from Plaintiff's late identification of an expert and Defendant's response. In order to understand the dispute, it is necessary to go back in time to June 19, 2011 when Plaintiffs timely submitted the report of a pathologist, Jerrold Abraham, M.D., who identified certain minerals in Mr. Galliher's lung tissue. Defendant deposed Dr. Abraham on January 10, 2012.

In the meantime, on December 5, 2011, the parties reached an agreement to extend the expert report deadline. In this agreement, Plaintiff agreed to withdraw her opposition to two commissions sought by Defendant and also agreed to the late submission of a case-specific report by Defendant's pathology and causation expert, Dr. Victor Roggli. In exchange, Defendant agreed to a late submission of an expert report by Mr. Sean Fitzgerald, a geologist retained by Plaintiff. Mr. Fitzgerald's report lies at the center of this controversy.

Before considering Mr. Fitzgerald's report, it is necessary to peel yet another layer off the onion. Prior to obtaining a report from Mr. Fitzgerald, Plaintiff obtained a report from Mark Rigler, Ph.D., a senior consultant at MAS. Dr. Rigler used a sophisticated technique to examine Mr. Galliher's lung tissue and found additional minerals not revealed in Dr. Abraham's test. Specifically, Dr. Rigler found anthophyllite asbestos, tremolite asbestos, transitional anthophyllite/talc fibers and fibrous talc in Mr. Galliher's lung tissue. Dr. Rigler's report was forwarded to Mr. Fitzgerald and presumably reviewed by him. Notably, Dr. Rigler was never mentioned in the December 5 email agreement to mutually extend the expert deadline. Mr. Fitzgerald performed an analysis of Mr. Galliher's lung tissue similar to that undertaken by Dr. Rigler. Importantly, Mr. Fitzgerald found that the mineral assemblage in Defendant's New York mine "well matches that seen in Mr. Galliher's lung tissue." If believed by the jury, Mr. Fitzgerald's testimony could rebut Defendant's product identification defense as well as its contention its talc does not contain minerals capable of causing mesothelioma.

C. Defendant's lack of objection to the timing of the Fitzgerald report

Initially, Defendant had no objection to the timing of the Fitzgerald report. Indeed, Defendant deposed Mr. Fitzgerald on January 17, 2012, and its only objection to Mr. Fitzgerald in the Pretrial Order was a Daubert objection. Importantly, Defendant never filed a motion in limine seeking to exclude Mr. Fitzgerald because of timing issues. Rather, the Rigler report was the focus of Defendant's attention. Defendant filed a motion in limine to exclude Dr. Rigler's testimony and also objected in the Pretrial Order to Plaintiff's listing of Dr. Rigler as a witness.

D. The pretrial conference

The pretrial conference was scheduled for Wednesday, May 2 with the trial scheduled to begin the following Monday. Unfortunately, the proposed pretrial order listed hundreds of exhibits with objections to virtually all of them. The court told counsel they needed to reduce the number of exhibits to a reasonable number, and rescheduled the pretrial conference for Friday, May 4 — the last business day before the trial.

Defendant raised for the first time its objection to the timing of the Fitzgerald report by way of an oral motion, at the May 4 conference. After much back-and-forth, the court ruled that Dr. Rigler could not render any opinion testimony because his report was untimely. However, it declined to exclude Mr. Fitzgerald's report on the basis of timeliness. On Monday morning the jury was selected and sworn. In order to allow the court and counsel time to resolve the remaining pretrial issues, the jury was sent home and told it to report the next day. After the jury departed, the court heard additional oral arguments on the Fitzgerald issue and, following a lunch break, it advised the parties that trial was continued until July 16, 2012 and that Defendant's out-of-state counsel was sanctioned $5000. The court stated the reasons for its decision on the record. This letter is to repeat, and perhaps expand upon, those reasons.

E. The court's ruling

The Fitzgerald testimony is central to this case. Prior to his report, Plaintiff had little evidence linking decedent's injury to Defendant's talc. Her evidence in this regard primarily consisted of testimony that bags of R. T. Vanderbilt talc were seen at Mr. Galliher's work place. The testimony of Mr. Fitzgerald that the minerals found in Mr. Galliher's lungs match those at Defendant's talc mine, if believed, could turn a relatively weak case into a strong one.

Defendant tacitly acknowledges the importance of the Fitzgerald testimony and argues, with considerable fervor and logic, that it will be unfairly prejudiced if Mr. Fitzgerald is permitted to testify because it does not have time to develop rebuttal expert testimony. It is not difficult to envision the likely result if Plaintiff introduces testimony that minerals found inside Mr. Galliher's lung came from Defendant's mine and Defendant has nothing to rebut that.

In short, the court is faced with the following dilemma: if it grants Defendant's motion, it is almost assuring a defense verdict; on the other hand, if it denies the motion, it is almost assuring a Plaintiff's verdict. Neither is a desirable result. The court, therefore, opted to delay the trial so as to allow the admission of this critical testimony and also allow Defendant an opportunity to develop evidence to rebut it.

The necessity of granting a continuance after the jury was impaneled and the resultant unnecessary costs leads to the question of sanctions. Plaintiff has some culpability in this matter because she did not provide Mr. Fitzgerald's report until after the expert deadline, albeit with Defendant's consent. The court notes that plaintiff, her son and grandson travelled from out of state to attend trial, presumably at significant personal expense. Moreover, Plaintiff may incur additional unnecessary expense in the form of fees for late cancellation from her experts. The court concluded, in light of Plaintiff's lesser culpability, that the delay in Plaintiff's day in court and the expenses attendant to that delay were a sufficient sanction. Defendant, however, is another story. It knew, or should have known, no later than Mr. Fitzgerald's deposition on January 17, 2012 that his testimony could cause problems for it at trial. Yet, Defendant's out-of-state counsel elected to do nothing to bring this to the court's attention until literally the eve of trial. Even then, counsel did not present a written motion, but rather made an oral application with little or no notice to Plaintiff. When asked why this occurred, out-of-state defense counsel explained he was limited to five motions in limine. The court has examined the motions in limine filed by Defendant and finds

that, with one possible exception, their importance pales in comparison with the central dispute about the Fitzgerald testimony. The court therefore does not accept the explanation offered by counsel.

The court finds that the decision to withhold the timeliness objection to Fitzgerald's decision was a strategic one most likely made by Thomas Radcliffe, Defendant's out-of-state counsel. Mr. Radcliffe is therefore sanctioned $5000, which sanction is not to be recouped from Defendant or its insurance carrier. No sanction is imposed on Mssrs. Skiles or Naylor or on Swartz Campbell, LLC.

Finally, a word to any member of the Asbestos Bar who may read this is appropriate. The scope of this ruling is limited to the peculiar facts now before the court. Practitioners should not assume that late identification of experts will be routinely excused in future cases. Indeed, the court views this case as a rare exception to the rule that late-identified experts will be precluded.

Sources

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