Leathers v. Pneumo Abex (In re Asbestos Litigation, 2017)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, November 8, 2017).

Raymond Leathers sued Pneumo Abex LLC and other defendants, claiming he developed mesothelioma from asbestos in brake products. He worked as an automotive mechanic at Oak Lawn in Cranston, Rhode Island, from 1963 to 1965 and again part time from 1967. He did at least four brake jobs a week and said he used Abex, Bendix and Grizzly parts. Abex asked for summary judgment. It argued that it did not make fully assembled brake shoes, that not all of its friction products contained asbestos, that Leathers identified its product only in response to a leading question, and that he could not prove causation under Rhode Island law. The Delaware Superior Court applied the Rhode Island frequency, regularity and proximity test. It found the identification was not elicited by a leading question. It also held that whether his testimony was contradictory was for the factfinder. Because factual questions remained for trial, it denied Abex's motion.

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: November 8, 2017
• Stage: Summary judgment
• State: Delaware

Outcome. The court denied Pneumo Abex LLC's motion for summary judgment, so plaintiff Raymond Leathers' claims against Abex go forward to trial.

What the court held. Applying Rhode Island law, the court used the frequency, regularity, proximity test for asbestos causation. It held that disputed facts about product identification and exposure, including whether the testimony was contradictory, are for the factfinder.

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

The people and their exposure

• Raymond Leathers: mesothelioma

Who	Work	Where	When	Products
Raymond Leathers	automotive mechanic (auto mechanics and brake work)	Oak Lawn, Cranston, Rhode Island	1963-1965; 1967 to late 1960s	brakes, clutches and friction materials, Abex, Bendix, Grizzly

The defendants

• Pneumo Abex LLC (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.
• 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.
• 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.

RAYMOND K. LEATHERS, Plaintiff,

v.

BORGWARNER MORSE TEC, etal., Defendants.

C.A. No. N15C-11-224 ASB.

Decided: November 8, 2017.

Superior Court of Delaware.

Upon Defendant Pneumo Abex LLC's Motion for Summary Judgment. DENIED.

ORDER

CALVIN L. SCOTT, Jr., Judge.

Plaintiff, Raymond Leathers ("Plaintiff"), claims that he was exposed to asbestos from Defendant Pneumo Abex's ("Abex") products. Plaintiff worked as an automotive mechanic from 1963 through the late 1960s. He performed a minimum of four brake jobs per week, and he testified that he used Abex brake parts. Plaintiff testified that in 1963 he worked as an automotive mechanic at Oak Lawn in Cranston, Rhode Island until 1965. At this job he performed both brake and clutch work. He stated that he did about four brake jobs per week. From 1965 through 1967 he served a two-year enlistment in the army. He returned to Rhode Island in 1967 and worked part time at Oak Lawn performing both brake and clutch jobs. Plaintiff stopped working at Oak Lawn at some point in the 1960s and began working in construction. Plaintiff testified that he worked with Bendix, Grizzly, and Abex products while at Oak Lawn. Plaintiff contends that the process of removing and installing Abex's asbestos products caused him to develop mesothelioma. Plaintiff provided evidence demonstrating that Abex manufactured asbestos-containing automotive friction products from 1927 through 1987. Additionally, prior to the 1980s, "the vast majority of brake linings that Abex sold for passenger car, light and heavy truck were asbestos-containing." Abex contends that throughout its manufacturing history, some, but not all, of its friction products contained asbestos. Abex also contends that it did not manufacture fully assembled brake shoes which could be installed directly onto vehicles, and Plaintiff testified that all the replacement brakes he used during his career were fully assembled brakes. Additionally, Abex argues that Plaintiff's only identification of their product was through "an impermissible leading question," as Plaintiff did not identify Abex as a product he recalled using initially. Finally, Abex argues that even assuming Plaintiff worked with an asbestos containing product manufactured by Abex, Plaintiff is unable to prove causation under Rhode Island substantive law.

There seems to be some contention between the parties about the causation standard in the state of Rhode Island. In Sweredoski the Rhode Island Superior Court discussed the different standards of causation. The Sweredoski court determined that the "frequency, regularity, proximity test is the proper standard of proving causation in asbestos cases" in Rhode Island.[1] The Court noted that "this test comports with [their] Supreme Court's general causation jurisprudence and fairly balances the interests of plaintiffs and defendants."[2] The Sweredoski decision is a 2013 decision that does not seem to have any negative treatment by other Rhode Island courts. The Rhode Island Supreme Court has not established a set standard for causation in the state, and the well analyzed decision in Sweredoski lays out exactly why the Superior Court of Rhode Island applied the frequency, regularity, and proximity test. Based on these reasons this Court will apply the test proffered in Sweredoski. As part of this test, the court noted that "[i]n the asbestos context, plaintiffs must present both product identification and exposure evidence to satisfy the causation element,"[3] and the court decided to "apply the `frequency, regularity, proximity test' as the proper causation standard for asbestos cases."[4] "To satisfy the `frequency, regularity, proximity' test, plaintiffs must present evidence showing `(1) exposure to a particular product; (2) on a regular basis; (3) over an extended period of time; and (4) in proximity to where the plaintiff actually worked."[5] Additionally, "mere proof that the plaintiff and a certain asbestos product are at the same location at the same time, without more, does not prove exposure to that product."[6] The "plaintiff must prove more than a casual or minimum connection with the product."[7]

Abex argues that Plaintiff only identifies Abex as a product "through an impermissible leading question." Looking at the video and discovery depositions, it does not seem that the product identification was elicited through a leading question. The line of questioning is as follows:

Q: And do you remember me submitting these questions to you and you providing answers and signing that, the back page of that, as your answers being true?

A: Yes, I do.

Q: Do you see — I'll direct your attention to Exhibit C of that document. Do you have that in front of you? That's the page I put—

A: Right here?

Q: Yes.

A: Yes.

Q: You have that in front of you. Is that information you supplied to my office about the products you used? A: Yes, it is.

Q: And does that have a list of any products that you used in the automotive field?

A: Yes, it does.

Q: And in looking at that list, does that refresh your recollection as to any of those other brands of brakes you may have used?

A: Yes.

Q: And what are—

DEFENSE COUNSEL OBJECTION

Q: What are those other brands?

DEFENSE COUNSEL OBJECTION

A: Grizzly and Abex.[8]

Next, Abex argues that Plaintiff's testimony was contradictory during questioning by Abex's counsel. Whether the testimony is contradictory is an issue of fact to be decided by the factfinder. Plaintiff submitted evidence that Abex manufactured asbestos-containing brake products, like brake shoes and linings, from 1927 through 1987. Plaintiff testified that he did four brake jobs per week, and worked as a mechanic from 1963-1965, and then again in 1967. Under the Rhode Island standard, the Court finds that Plaintiff's claims can survive summary judgment as there are still factual determinations which are more appropriately determined at trial. Therefore, Defendant Abex's Motion for Summary Judgment is hereby DENIED. IT IS SO ORDERED.

[1] Sweredoski v. Alfa Laval, Inc., 2013 WL 3010419, at [*8] (R.I. Super. June 13, 2013).

[2] Id.

[3] Id. at [*2].

[4] Id. at [*5].

[5] Id.

[6] Id. (citing Lohrmann, 782 F.2d at 1162).

[7] Id.

[8] Plaintiff's Videotaped Deposition, February 17, 2016, at 26:9-27:7.

Sources

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