Harris v. Deere & Co. (In re Asbestos Litigation, 2017)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, May 10, 2017).

Nathanial Harris, who died of lung cancer in June 2015, sued Deere & Company and others in Delaware Superior Court. He said he was exposed to asbestos while working as a farmer and maintenance man at Cobb Farm in North Carolina. His claimed exposure, stipulated as 1955 to 1979, came from repairing John Deere tractors, including scraping and grinding off head and manifold gaskets and doing brake and clutch work. Deere moved for summary judgment. The court first rejected Deere's argument that Harris's testimony about when he worked on Deere tractors was contradictory, saying the inconsistency was for cross-examination and the jury. Applying North Carolina law, however, the court found no evidence beyond speculation that the replacement parts contained asbestos or were made or sold by Deere. Harris did not know the tractors' maintenance history. Other companies sold parts that fit Deere tractors. The 1940 parts list was not tied to his tractor models. The court granted summary judgment to Deere.

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 10, 2017
• Stage: Summary judgment
• State: Delaware

Outcome. 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.

What the court held. Under North Carolina law, a plaintiff must show actual exposure to an asbestos-containing product made, sold or distributed by the defendant; without evidence beyond speculation that the replacement parts were Deere's and contained asbestos, summary judgment is proper.

Issues decided: The Bare-Metal Defense, Choice of Law, Product Identification.

The people and their exposure

• Nathanial Harris: lung cancer; died

Who	Work	Where	When	Products
Nathanial Harris	farmer/maintenance man	Cobb Farm, North Carolina	1955-1979	gaskets and packing, brakes, clutches and friction materials, John Deere tractor head gaskets, manifold gaskets, brakes and clutches (Deere & Company)

The defendants

• Deere & Company (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.
• 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.
• 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.

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.

NATHANIAL HARRIS, Plaintiff,

v.

DEERE & CO., etal., Defendants.

C.A. No. N14C-03-220 ASB.

May 10, 2017.

Superior Court of Delaware.

Upon Defendant Deere & Company's Motion for Summary Judgment. GRANTED.

ORDER

CALVIN L. SCOTT, Jr., Judge.

Plaintiff, Nathanial Harris' (hereinafter "Plaintiff") claims cannot survive the summary judgment criteria.[1] Plaintiff passed away on June 24, 2015 from lung cancer. Plaintiff claims that he was occupationally exposed to Defendant Deere & Company's (hereinafter "Defendant") product when he worked as a farmer/maintenance man between 1949 and 1992 at Cobb Farm in North Carolina. Plaintiff provided his video deposition taken on October 21, 2014, and he is the only product identification witness. While at Cobb Farm, Plaintiff stated that his job included pulling tobacco, shaking peanuts, and picking cotton. He stated that from 1949 to 1953 he did not work on vehicles or equipment, and began engine work in 1955. Plaintiff's counsel stipulated that Plaintiff's claims of asbestos exposure occurred from 1955 through 1979. Beginning in1953, and through 1979, Mr. Harris worked on tractors at Cobb Farm, including John Deere. Mr. Harris performed head gasket work on John Deere Tractors. He stated that he did this type of work on the "old models" which he recalled Cobb Farm owning about three around 1949 to 1950. He recalled the models were Model 1010, 2010, and 3010.

This type of work involved grinding the head gasket and manifold gasket off, which created dust. Mr. Harris did this type of repair once a year or sometimes every other year. He stated that the replacement parts came from the John Deere dealer. Initially Mr. Harris testified that Cobb Farm did not have any John Deere tractors until after 1979. However, Mr. Harris discussed "old model" Deere tractors during his video deposition. Mr. Harris stated that the farm bought two "used" Deere tractors to power Deere cotton pickers, and he believed the models were Model 1010, Model 2010, and Model 3010. He stated that the tractors were on the farm in 1949 when he started working there. Mr. Harris testified that he changed small clutches on the older Deere tractors and did some brake work. He stated that brake work needed to be done every two years or longer, and the brakes came from the John Deere dealer. Mr. Harris did not personally purchase the replacement brakes from the John Deere dealer, but Miller Cobb, the man Mr. Harris worked for, told him. Finally, Mr. Harris testified that he also did head gasket work on the old Deere tractors. He stated that it was not very often that he did this type of work on the old tractors, and he described the gaskets as metal-clad on both the top and bottom. Mr. Harris described how the gasket work was completed on the old tractors. He said that the head gaskets would either just come right off or they needed to be scrapped off. The gaskets needed to be scraped or grinded off with a soft grinder so the cylinder would not get scraped. When asked by his counsel, Mr. Harris stated that the parts had "John Deere" printed on the parts. Defense's main argument is that Mr. Harris affirmed, five different times, that he did not work on John Deere farm equipment until after 1979, which is subsequently outside of the years of exposure stipulated by Plaintiff's attorney. Further, Defendant contends that there is no evidence that Mr. Harris changed the original equipment on the tractors because he did not know the maintenance history of the tractors. Similarly, Defendant argues that Plaintiff did not present evidence of the brand of the "old" Deere tractor replacement parts aside from hearsay. Defendant provided an affidavit from Thomas Hitzhusen, a retired engineer formerly employed by Deere. In his affidavit, Mr. Hitzhusen stated that "there were and are companies other than John Deere who sold and sell aftermarket service parts, such as brakes, clutches, head gaskets, and other gaskets, that would fit the models of tractors described by Mr. Harris regardless of the model year of manufacture of the tractors." On the other hand, Plaintiff submitted Deere & Company's Responses and Objections to Interrogatories from a 2003 Rhode Island

case. The response states that the company did not manufacture asbestos containing products but "purchased asbestos containing components from multiple third party suppliers and either installed them on machinery or sold them through the Deere network of independent dealers as Genuine John Deere parts." Plaintiff also submitted a document titled "Instruction and Parts List for John Deere General Purpose Tractor" from 1940. The instructions state: "Always insist upon getting genuine John Deere parts. Beware of bogus parts which are said to be just as good as the genuine and offered at only slightly lower prices. The use of bogus parts always costs more in the end," and "Always order parts from your John Deere Dealer."

The Court is not persuaded by Defendant's argument that Plaintiff's testimony is contradictory and thus the Court should grant its Motion for Summary Judgment. Counsel, on the record, stipulated that the relevant time period of Plaintiff's exposure is between 1955 and 1979. Plaintiff testified that he did not work with John Deere tractors until after 1979, but then testified that he worked on "older" models of John Deere tractors that were on the farm around 1949 and 1950. However, viewing the facts in a light most favorable to the Plaintiff, it seems that Plaintiff clarified the inconsistency. On page 143 of the video deposition transcript the questioning is as follows:

Q: So if I understand your testimony now, you recall John Deere tractors from the farm in the '40s and '50s? A: Yes.

Q: And so previously when you said that you hadn't encountered a John Deere tractor before 1979, that

wasn't true?

A: No. The big tractor I mean.

Viewing the facts in a light most favorable to the Plaintiff, it seems that Plaintiff made a distinction between two different types of Deere tractors on the farm, the newer models after 1979 and the older models before 1979. The Court "on a motion for summary judgment is not to weigh evidence and to accept that which seems to [it] to have the greater weight. [Its] function is rather to determine whether or not there is any evidence supporting a favorable conclusion to the nonmoving party."[2] Because there is evidence supporting Plaintiff's claim that he worked on Deere tractors before 1979, the Court will not grant Defendant's Motion based on Defendant's argument that the testimony is contradictory. Any inconsistency in Mr. Harris' testimony is ripe for cross examination, and the jury may weigh the evidence.

Defendant's second argument is that it is entitled to summary judgment because Plaintiff cannot satisfy North Carolina's product identification and exposure standards. In North Carolina, a plaintiff is required to establish "actual exposure to an asbestos-containing product manufactured, sold, or distributed by the defendant."[3] Plaintiff must provide evidence demonstrating that Plaintiff was exposed to an "offending" product.[4] The exposure must be more "than a casual or minimum contact with the product containing asbestos in order to the hold the manufacturer of that product liable. Instead, the plaintiff must present `evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.'"[5] "Thus, in any asbestos case, a plaintiff must `(1) identify an asbestos-containing product for which a defendant is responsible, (2) prove that he has suffered damages, an (3) prove that defendant's asbestos-containing product was a substantial factor in causing his damages.'"[6] Defendant argues that Plaintiff's case is analogous to Harris v. Ajax Boiler, Inc., a District Court case that applied North Carolina Law. In Harris, the plaintiff died from mesothelioma and claimed that he was exposed to asbestos while servicing boilers.[7] The plaintiff testified that he worked on 70 to 80 different boilers, and recalled the different brands he worked on.[8] The court ultimately found that the plaintiff did not present evidence, beyond speculation, demonstrating that the mud the plaintiff removed from the boilers contained asbestos.[9] The court noted that the plaintiff's "assertion that the boilers left their manufacturer with asbestos [was] merely conjecture."[10] Beyond the brand name, the plaintiff "could not identify the exact make and model of any American Standard, Cleaver-Brooks, or Crane boilers her repaired."[11] Additionally, there was a lack of evidence such as "repair manuals, specification sheets or engineering drawings relating to the specific type of boilers [the plaintiff] serviced. As a result, the record before the Court lack[ed] any factual basis showing [the plaintiff] repaired boilers that incorporated asbestos-containing cement when they left their respective manufacturers."[12] Further, the court held that even if it assumed the boilers contained asbestos, the plaintiff's argument had a "fatal gap" because there was a lack of evidence to determine whether the mud product in question was incorporated in the boiler by the manufacturer.[13] The

plaintiff had no recollection of the service history, when the boilers were initially installed, or if a boiler he worked on was previously serviced.[14]

Applying North Carolina law, the Court finds that Plaintiff failed to submit evidence that a reasonable juror, beyond speculation, could infer that the "older" tractors had parts that contained asbestos and were manufactured by Deere. Although Plaintiff submitted evidence that Deere encouraged the use of Deere replacement parts, there is no evidence in the record that the parts of the tractors Plaintiff worked on were asbestos containing products manufactured by Deere, or that the parts actually contained asbestos. Mr. Hitzhusen confirmed that other companies sold parts that fit Deere tractors, and Plaintiffs did not submit evidence to infer that the parts Mr. Harris worked with were manufactured or sold by Deere. Like the plaintiff in Harris, Plaintiff did not know the maintenance history of the "older" Deere tractors, whether they were serviced before he worked on them, or if the replacement parts were Deere products beyond his boss telling him that he purchased the parts from the Deere dealer.[15] Furthermore, there is no evidence that the Operator's Manual or the instructions and parts List provided by Plaintiff were related to the tractor models that Mr. Harris worked on. Beyond speculation, a reasonable jury could not determine that the parts Mr. Harris replaced or worked on were in fact manufactured by Deere. For the reasons stated above, pursuant to North Carolina substantive law, Plaintiff's claims fail. Accordingly, Defendant Deere & Company's Motion for Summary Judgment is hereby GRANTED.

IT IS SO ORDERED.

[1] Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at [*3] (Del. Super. Ct. Dec. 30, 2013); see also Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In re Asbestos Litigation (Helm), 2012 WL 3264925 (Del. Aug. 13, 2012).

[2] Hursey Porter & Associates v. Bounds, 1994 WL 762670, at * 6 (Del. Super. Dec. 2, 1994)(internal quotations omitted)(citing Data General Corp. v. Digital Computer Controls Inc., 297 A.2d 437, 439 (Del. Super 1972)).

[3] In re Freeman, 2011 WL 379324 (Del. Super. Jan. 13, 2011) (citing Wilder v. Amatex Corp., 336 S.E.2d at 66, 68 (N.C. 1985)). [4] Wilder, 336 S.E.2d at 68.

[5] Jones v. Owens-Corning Fiberglas Corp. & Amchem Prod., Inc., 69 F.3d 712, 716 (4th Cir. 1995).

[6] Agner v. Daniel Int'l Corp., 2007 WL 57769, at [*4] (W.D.N.C. Jan. 5, 2007).

[7] Harris v. Ajax Boiler, Inc., 2014 WL 3101941, at [*2] (W.D. N.C. July 7, 2014).

[8] Id. at [*2]-3.

[9] Id. at [*4].

[10] Id. at [*4]

[11] Harris, 2014 WL 3101941 at [*4].

[12] Id. at 4.

[13] Id.

[14] Id.

[15] The Court acknowledges that Plaintiff, in his deposition, said that the gaskets had the name "John Deere" on them. However, this was not from his personal knowledge. This was only after Plaintiff's counsel specifically asked if the writing said "John Deere."

Sources

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