Reed v. Nosroc Corp. (In re Asbestos Litigation, 2017)

Our plain-English summary of In re Asbestos Litigation (Delaware Supreme Court, February 6, 2017).

Barbara Reed and her husband Wayne sued several companies in Delaware, claiming she was exposed to asbestos through take-home exposure from her father and her former husband. After the suit began, she died of pleural mesothelioma, and her daughters joined as plaintiffs. The Superior Court granted summary judgment to all five remaining defendants. On appeal, the Delaware Supreme Court asked whether the plaintiffs had enough evidence to go to a jury. For four defendants, the Superior Court had relied partly on friability (whether the asbestos could crumble and release fibers), an issue those defendants had not fairly raised. The Supreme Court held that did not matter, because the plaintiffs had not shown evidence from which a jury could reasonably infer, without speculation, that her father and former husband were in specific proximity to the products when they were being used. For Bayer CropScience, which did raise friability, the plaintiffs also failed to show her father was near its products when they were friable. The court affirmed the July 6, 2016 judgment.

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 Supreme Court
• Decided: February 6, 2017
• Docket: No. 387, 2016
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Delaware

Outcome. The Delaware Supreme Court affirmed the Superior Court's summary judgment for Nosroc, County Insulation, Asbestos Corporation Limited, Charles Wagner Co. and Bayer CropScience, against the Reed plaintiffs.

What the court held. To survive summary judgment in a take-home asbestos case, plaintiffs must produce evidence from which a jury could infer, without speculation, that the worker was in specific proximity to the defendant's product while it was being used (and, where friability is properly raised, while it was friable).

Issues decided: Product Identification, Take-Home Exposure.

The people and their exposure

• Barbara Reed (family member): pleural mesothelioma; died

The defendants

• Nosroc Corporation
• County Insulation Company
• Asbestos Corporation Limited
• Charles A. Wagner Co., Inc.
• Bayer CropScience, Inc.

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.

WAYNE R. REED, INDIVIDUALLY and AS THE EXECUTOR OF THE ESTATE OF BARBARA REED,

DECEASED, and AMY RHODES and COURTNEY REED, AS SURVIVING CHILDREN, Plaintiffs

Below Appellants,

v.

ASBESTOS CORPORATION LIMITED, BAYER CROPSCIENCE, INC., CHARLES A. WAGNER CO.,

INC., NOSROC CORPORATION, and COUNTY INSULATION COMPANY, Defendants Below,

Appellees.

No. 387, 2016.

Submitted: January 25, 2017.

Decided: February 6, 2017.

Supreme Court of Delaware.

Court Below: Superior Court of the State of Delaware, C.A. No. 13C-11-188.

Before STRINE, Chief Justice; VALIHURA and SEITZ, Justices.

ORDER

LEO E. STRINE, Jr., Chief Justice.

(1) This is an appeal from the Superior Court's orders granting summary judgment in favor of the five remaining defendants in a take-home asbestos exposure action. As to Nosroc Corporation, County Insulation Company, Asbestos Corporation

Limited, and Charles Wagner Company, Inc., although the Superior Court relied in part on an issue that those defendants did not fairly put in contest— whether there was evidence of friability—the plaintiffs[1] did not produce evidence from which a jury could reasonably infer, without speculation,[2] that Barbara Reed's father and former husband were in specific proximity to the products at issue at the time they were being used. Thus, the Superior Court was correct to grant summary judgment. [3] (2) The final defendant, Bayer Cropscience, Inc., properly raised the issue of friability. The plaintiffs failed to produce evidence from which a jury could reasonably infer, without speculation, that Barbara Reed's father was in specific proximity to the products distributed by Bayer at a time when they were friable, and thus, the Superior Court's ruling was proper. Therefore, we affirm its judgment of July 6, 2016.[4]

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is hereby AFFIRMED.

[1] Barbara Reed and her husband, Wayne Reed, were the original plaintiffs in this case. After this suit was filed, Barbara Reed died of pleural mesothelioma. Reed's daughters were then added as plaintiffs to this litigation.

[2] "The presumption afforded the non-moving party in the summary judgment analysis is not absolute. The Court must decline to draw an inference for the non-moving party if the record is devoid of facts upon which the inference reasonably can be based. Where there is no precedent fact, there can be no inference; an inference cannot flow from the nonexistence of a fact, or from a complete absence of evidence as to the particular fact. Nor can an inference be based on surmise, speculation, conjecture, or guess, or on imagination or supposition." In re Asbestos Litig., 2012 WL 1408982, at [*2] (Del. Super. Apr. 2, 2012) (quoting In re Asbestos Litig., 2007 WL 1651968, at [*17] (Del. Super. May 31, 2007)); see also Gannett Co. v. Kanaga, 750 A.2d 1174, 1188 (Del. 2000) ("While the plaintiff is entitled to the benefit of reasonable inferences from established facts, the jury cannot supply any omission by speculation or conjecture."); Timblin v. Kent Gen. Hosp. (Inc.), 640 A.2d 1021, 1026 (Del. 1994) ("While a jury may draw inferences from the facts of a case, those inferences may not be based upon speculation.").

[3] "To defeat summary judgment in a case where the plaintiff himself is not able to establish exposure, a co-worker must be able to place the plaintiff in the vicinity of a specific location on the defendant's property, at a specific time, where friable asbestos is present." 2007 WL 1651968, at [*20].

[4] Reed v. Nosroc Corp., etal., C.A. No. N13C-11-188 (Del. Super. July 6, 2016) (ORDER) (granting summary judgment in four separate orders).

Sources

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