Muse v. Honeywell Int'l (In re Asbestos Litigation, 2014)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, December 31, 2014).

James Muse and his wife Clarice Roberts-Muse sued Honeywell International Inc. and others in Delaware. Mr. Muse's claim is a mesothelioma claim, and the court applied New Jersey law. The claimed exposure was to asbestos-containing Bendix brakes, a Honeywell product, during personal car repair work between about 1980 and 1985. The court had already granted summary judgment to Honeywell, finding the evidence of frequent and regular exposure insufficient. The plaintiffs asked the court to reconsider. They argued Mr. Muse helped a neighbor with brake jobs almost daily after school and that this should support an inference of regular Bendix use. They also offered new testimony from a Honeywell engineer that Bendix drum brake shoes made before 1985 contained asbestos. The court denied the motion. Mr. Muse could identify only a handful of specific brake jobs using Bendix brakes, and the court would not draw unreasonable inferences. The new evidence did not address the lack of frequent and regular contact, and the plaintiffs gave no reason for not presenting it before the hearing.

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: December 31, 2014
• Stage: Post-trial motions
• State: Delaware

Outcome. The court denied the plaintiffs' motion for reargument, leaving in place summary judgment for Honeywell International Inc. against James Muse and Clarice Roberts-Muse.

What the court held. Under New Jersey law a plaintiff must show frequent and regular exposure in close proximity to friable asbestos from the named defendant's product, and a handful of brake jobs over several years does not support that inference even for mesothelioma. Reargument requires a misapprehended law or fact that would change the outcome.

Issues decided: Choice of Law, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• James Muse: mesothelioma

Who	Work	Where	When	Products
James Muse	personal automotive brake work helping neighbor and relatives		1980-1985	brakes, clutches and friction materials, Bendix brakes (Honeywell)

The defendants

• Honeywell 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.
• 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.
• 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:

• Buttitta v. Allied Signal, Inc. (New Jersey Superior Court, Appellate Division, 2010). The Appellate Division affirmed the jury verdict and judgment for plaintiff Susan Buttitta against Borg-Warner and Asbestos Corporation Ltd., rejecting all of their challenges.
• Kurak v. AP Green Refractories Co. (New Jersey Superior Court, Appellate Division, 1997). The Appellate Division reversed the judgment against Owens-Illinois, holding it was entitled to judgment in its favor. It affirmed the finding of liability against Owens-Corning Fiberglas, but ordered a new trial on damages, or on liability and damages at the Kuraks' choice, because of an error in the jury instruction.
• Sholtis v. American Cyanamid Co. (New Jersey Superior Court, Appellate Division, 1989). The Appellate Division held the trial judge erred in refusing the plaintiffs' supplemental proofs, reinstated the claims against Porter Hayden, remanded the claims against the other Wellington defendants for reconsideration under new exposure standards, and affirmed summary judgment for John Crane.

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.

JAMES MUSE and CLARICE ROBERTS-MUSE, Plaintiffs,

v.

HONEYWELL INTERNATIONAL INC., etal., Defendants.

C.A. No. N13C-06-232ASB.

Submitted: December 5, 2014.

Decided: December 31, 2014.

Superior Court of Delaware, New Castle County.

ORDER ON PLAINTIFFS' MOTION FOR REARGUMENT OF THE ORDER

GRANTING SUMMARY JUDGMENT TO DEFENDANT HONEYWELL

INTERNATIONAL INC.

PAUL R. WALLACE, Judge.

AND NOW this 31st day of December, 2014, having read and considered Plaintiffs' Motion for Reargument of the Order Granting Summary Judgment to Defendant Honeywell International Inc. ("Honeywell") (D.I. #198; Trans. I.D. # 56317363),[1] the response thereto, and any supplements thereto, IT IS HEREBY ORDERED that the Motion for Reargument is DENIED

for the following reasons:

Superior Court Civil Rule 59(e) permits the Court to reconsider its findings of fact, conclusions of law, or judgments.[2] It is not a device for raising new arguments or rehashing those already presented.[3] And a motion for reargument will be denied unless the Court has "overlooked controlling precedent or legal principles," or "misapprehended the law or facts such as would have changed the outcome of the underlying decision."[4] The party seeking reargument has the burden to show newly discovered evidence, a change in the law, or manifest injustice.[5] Upon a Rule 59(e) reargument motion, the Court "will determine from the motion and answer whether reargument will be granted."[6]

Plaintiffs contend the Court misapprehended certain salient facts when it granted Honeywell summary judgment. Applying New Jersey precedent, this Court found Plaintiffs' evidence of Plaintiff, James Muse's, exposure to asbestos-containing Bendix brakes insufficient as a matter of law.

To survive a motion for summary judgment under New Jersey law in an asbestos case, a plaintiff must demonstrate frequent and regular exposure in close proximity to friable asbestos that the named defendant manufactured or distributed.[7] Further, a plaintiff alleging mesothelioma from exposure in New Jersey may establish causation through "sufficient direct or circumstantial evidence" that "sometime during [the Plaintiff's] work history," he or she "came in close proximity and was exposed to [defendant's asbestos-containing products] frequently and on a regular basis."[8] Even in light of this standard for mesothelioma cases, the Court could not find sufficient evidence here to support an inference that Mr. Muse worked with asbestos-containing Bendix brakes on the required frequent and regular basis.

Plaintiffs argue the Court was guided by a misimpression that Mr. Muse's exposure to Bendix brakes stemmed only from his personal automotive work on four cars in 1984 or 1985. Plaintiffs argue that the Court should instead deduce that Mr. Muse went to a neighbor's house almost every day after school between 1980 and 1984, and that those occasioned almost daily brake jobs, presumably with Bendix products.[9] Mr. Muse did say he used Bendix brake products when he helped his relatives[10] and neighbor, Mr. Nelson, with brake work.[11] But of his activities between 1980 and 1984, Mr. Muse identified only six vehicles he worked on with Mr. Nelson,[12] and he could only specifically testify to replacing the rear brakes of a 1975 Grand Prix twice.[13] He stated he and his neighbor installed Bendix brakes in the 1975 Grand Prix, but he did not

know which brand of brakes they removed.[14] As to the brake jobs he helped his father, uncle, and cousin perform, he did not identify using Bendix products.[15]

Plaintiffs recognize that Mr. Muse could only recall using Bendix brakes on the 1975 Grand Prix and three other vehicles in his personal automotive work over a five or six year span.[16] Still, they argue, his rather vague testimony about using Bendix brakes, in addition to his specific testimony about those four vehicles, should be deemed sufficient to meet the New Jersey standard.

Plaintiffs cite In re Asbestos Litigation (Bowser) as an example where this Court has not required an asbestos Plaintiff to identify every time he or she worked with a defendant's asbestos-containing product.[17] Yet, in Bowser, the plaintiff, an aircraft mechanic by trade, testified, inter alia, that he had performed at least 75 brake jobs during one six-year period of work.[18] He further testified specifically that that defendant's airplane brake products were "one of the four major brands he used on a regular basis" in his work.[19] This Court found, under the totality of the (testifying he observed his uncle and helped take rear drums off a vehicle twice, but he did not recall the brake manufacturer); id. at 215:20-217 (testifying he helped his cousin with valve covers once). facts presented, that that plaintiff had "frequent and regular exposures to asbestos from [the defendant's] airplane brakes over an extended period of time."[20]

The Court cannot do so here under these very different facts. While the Court may draw reasonable inferences from the evidence in the light most favorable to the non-moving Plaintiff, it will not draw unreasonable inferences.[21] Summary judgment may be granted if the evidence is "merely colorable, or is not significantly probative."[22] Even when viewing the evidence in the light most favorable to him, Mr. Muse, unlike the plaintiff in Bowser, presents only some colorable evidence that he used Bendix brakes—or that he even performed brake work—on a regular basis. Mr. Muse's testimony of a handful of brake jobs between 1980 and 1985 is insufficient to support a reasonable inference that he was exposed to friable asbestos from Bendix brakes on a frequent and regular basis.

Plaintiffs also claim they have newly discovered evidence supporting denial of summary judgment. They now provide a Honeywell mechanical engineering expert Richard Radlinski's testimony from September 23, 2014 in a separate South Carolina case. There Mr. Radlinski stated that, to his knowledge, prior to 1985, all of Bendix brake shoes associated with drum brake systems were asbestos-containing.[23] Plaintiffs argue this is "newly discovered evidence" that counters the Court's observation that the record failed to demonstrate that Mr. Muse had been exposed—on the occasions he was—only to asbestos-containing Bendix products, as opposed to its non-asbestos products. The hearing in this matter was held on October 23, 2014—one month after the Radlinski's deposition. Plaintiffs make no attempt to explain their failure to provide this evidence pre-hearing. Regardless, Plaintiffs' "new evidence" does not impact the Court's ruling that there was insufficient evidence of frequent and regular enough contact with Bendix products.[24] As a result, this "newly discovered" evidence does not warrant reargument of Honeywell's motion.

The Plaintiffs have not demonstrated that the Court has misapprehended the law or facts such that the outcome of the Court's summary judgment ruling would have been different. Consequently, Plaintiffs' motion for reargument is DENIED. IT IS SO ORDERED.

[1] This Court heard and granted Honeywell's summary judgment motion in a bench ruling that was reflected in the Prothonotary's notes docketed that same day. The Court thereafter signed parties' agreed-upon formal form of order granting summary judgment to Honeywell. Plaintiffs then moved for reargument. Honeywell raised a timeliness issue in its response to the reargument motion. Having reviewed the record in this matter, the Court, in this specific instance, deems the reargument motion timely filed.

[2] Bd. of Managers of the Delaware Criminal Justice Info. Sys. v. Gannett Co., 2003 WL 1579170, at [*1] (Del. Super. Ct. Jan. 17, 2003), aff'd in part, 840 A.2d 1232 (Del. 2003) (internal citation omitted).

[3] Citimortgage, Inc. v. Bishop, 2011 WL 1205149, at [*1] (Del. Super. Ct. Mar. 29, 2011); Reid v. Hindt, 2008 WL 2943373, at [*1] (Del. Super. Ct. July 31, 2008).

[4] Gannett Co., 2003 WL 1579170, at [*1]; Brenner v. Village Green, Inc., 2000 WL 972649, at [*1] (Del. Super. Ct. May 23, 2000) (only issue on motion for reargument is whether Court "overlooked something that would have changed the outcome of the underlying decision"). [5] Reid, 2008 WL 2943373, at [*1].

[6] Super. Ct. Civ. R. 59(e).

[7] Sholtis v. American Cyanamid Co., 568 A.2d 1196, 1207-08 (N.J. Super. Ct. App. Div. 1989) (plaintiff must "produce evidence from which a fact-finder, after assessing the proof of frequency and intensity of plaintiff's contacts with a particular manufacturer's friable asbestos, could reasonably infer toxic exposure").

[8] Buttitta v. Allied Signal, Inc., 2010 WL 1427273, at [*9] (N.J. Super. Ct. App. Div. Apr. 5, 2010) (noting "rather brief work history must be considered in light of the nature of mesothelioma and the experts' testimony that the disease can be contracted after infrequent exposure to asbestos"). See also Kurak v. A.P. Green Refractories Co., 689 A.2d 757, 766 (N.J. Super. Ct. App. Div. 1997) (finding sufficient evidence "particularly in light of the nature of mesothelioma and the ease with which it can be contracted," of plaintiff's exposure to friable asbestos "for a number of years in close proximity, with regularity, and frequency").

[9] See Deposition of James Bernard Muse, at 15:17-23 ("From 1980 to about '84 I would help somebody work on their car just about every day after school."). See also id. at 16:18; 29:14-19 (testifying he would help with brake jobs).

[10] Id. at 39:1-4.

[11] Id. at 190:12-13 (testifying they "messed around with a lot of. . . Bendix").

[12] Id. at 188:6-9.

[13] Id. at 188:10-25; 189:1-2; 189:10-15.

[14] Id. at 190:23-25; 191:1-4.

[15] See id. at 209:8-10 (testifying he might have used Wagner brakes while helping his father repair brakes on a 1976 Lincoln Continental in 1986 and 1987). See also id. at 211:16-215:18

[16] See Plfs.' Mot. for Reargument, at 3 (D.I. # 198; Trans. I.D. # 56317363).

[17] 2011 WL 2239803, at [*4] (Del. Super. Ct. June 3, 2011) (finding the Lohrmann standard does not require "evidence of specific instances or numbers of exposures, and the absence of such precise evidence is often understandable in mesothelioma cases due to the lengthy latency period of that disease").

[18] Id. at 3.

[19] Id. at 4.

[20] Id. at 4 ("Taken in the context of [plaintiff's] full testimony, the presence of [defendant's] boxes at his workplace offers reasonable support for his assertions that he knew he used [those] brakes despite being unable to remember particular jobs. . . that utilized [defendant's] products; however, it was clearly not the sole basis for [plaintiff's] product identification.").

[21] Smith v. Delaware State Univ., 47 A.3d 472, 477 (Del. 2012) ("This Court will not draw unreasonable inferences in favor of the non-moving party.")

[22] Health Solutions Network, LLC v. Grigorov, 2011 WL 443996, at [*2] (Del. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986) (emphasis in original)).

[23] See Deposition of Richard Radlinski, September 23, 2014, in Muldoon v. Am. Honda Motor Co., Ex. A to Plfs.' Mot. for Reargument, at 21:2-11.

[24] Cf. State v. Brooks, 2008 WL 435085, at [*2] (Del. Super. Ct. Feb. 12, 2008) (denying reargument/new trial on grounds plaintiffs could now show newly discovered evidence would change the result if the new trial were granted, or that the evidence was not merely cumulative).

Sources

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