Richards v. Copes-Vulcan (In re Asbestos Litigation, 2018)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, August 8, 2018).

Craig Richards and his wife Gloria sued Copes-Vulcan, Fairbanks, Ford and Goodyear, among others, over his malignant mesothelioma. Their expert, Dr. Mark Ginsberg, had opined that Mr. Richards' cumulative asbestos exposure, including exposure from each defendant's products, was a substantial contributing cause of the disease. On July 10, 2018, the court granted summary judgment to all four defendants. It relied on the Ohio Supreme Court's decision in Schwartz v. Honeywell, which held that cumulative exposure causation was not enough under Ohio law. The plaintiffs then asked for leave to file a supplemental expert report, or for reargument. The court denied the motion. It found that the plaintiffs had 22 days after Schwartz to supplement and took only eight days to produce the new report once they tried. They never asked for leave until after summary judgment, though they had addressed Schwartz in earlier filings. They therefore showed no good cause or excusable neglect. The court also rejected their reading of Schwartz as not requiring expert testimony.

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: August 8, 2018
• Stage: Discovery or evidence ruling
• State: Delaware

Outcome. 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.

What the court held. A party seeking to supplement an expert report after summary judgment must show good cause or excusable neglect, and plaintiffs who never sought leave before judgment was entered did not do so.

Issues decided: Causation, Choice of Law, Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Craig Charles Richards: mesothelioma

The defendants

• Copes-Vulcan, Inc. (manufacturer)
• The Fairbanks Company (manufacturer)
• Ford Motor Company (manufacturer)
• The Goodyear Tire & Rubber 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.
• 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.
• 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.

Limited to: CRAIG CHARLES RICHARDS and GLORIA JEANNE RICHARDS, his wife Plaintiffs,

v.

COPES-VULCAN, INC., THE FAIRBANKS COMPANY, FORD MOTOR COMPANY, and THE

GOODYEAR TIRE & RUBBER COMPANY, etal., Defendants.

C.A. No. N16C-04-206 ASB.

Submitted: July 30, 2018.

Decided: August 8, 2018.

Superior Court of Delaware.

Upon Plaintiffs' Motion for Leave to Supplement Expert Report Due to Changes in Substantive Law, and/or for Reargument DENIED.

Bartholomew J. Dalton, Esquire, Ipek K. Medford, Esquire, Andrew C. Dalton, Esquire, Michael C. Dalton, Esquire, Dalton & Associates, Cool Spring Meeting House, 1106 West Tenth Street, Wilmington, Delaware 19086; Adam Balick, Esquire, Michael Collins Smith, Esquire, Patrick Smith, Esquire, Balick & Balick, LLC, 711 King Street, Wilmington, Delaware 19801, Attorneys for Plaintiffs Craig Charles Richards and Gloria Jeanne Richards, his wife; Weitz & Luxenberg, P.C., 700 Broadway, New York, New York 10003, of counsel.

Paul A. Bradley, Esquire, Antoinette D. Hubbard, Esquire, Maron Marvel Bradley Anderson & Tardy LLC, 1201 North Market Street, Suite 900, Wilmington, Delaware 19801, Attorneys for Defendant Copes-Vulcan, Inc.

Timothy A. Sullivan, III, Esquire, Wilbraham, Lawler & Buba, 919 N. Market Street, Suite 980, Wilmington, Delaware 19801, Attorneys for The Fairbanks Company.

Christian J. Singewald, Esquire, Rochelle L. Gumapac, Esquire, White and Williams LLP, Courthouse Square, 600 N. King Street, Suite 800, Wilmington, Delaware 19801, Attorneys for Ford Motor Company.

Jason A. Cincilla, Esquire, Amaryah K. Bocchino, Esquire, Ryan Browning, Esquire, Paul S. Seward, Esquire, Manning Gross + Massenburg, 1007 N. Orange Street, 10th Floor, Wilmington, Delaware 19801, Attorneys for The Goodyear Tire & Rubber Company.

ORDER

FERRIS W. WHARTON, J.

This 8th day of August, 2018, upon consideration of Plaintiffs Craig Charles Richards and Gloria Jeanne Richards' Motion for Leave to Supplement Expert Report Due to Changes in Substantive Law, and/or for Reargument ("Motion"),[1] the Responses in opposition of defendants Copes-Vulcan, Inc.,[2] Ford Motor Company,[3] The Goodyear Tire & Rubber Company,[4] the Defendants' Coordinated Joint Supplemental Response in Opposition to Plaintiffs' Motion for Leave to Supplement Expert Report Due to Changes in Substantive Law, and/or for Reargument,[5] and the record in this matter,[6] it appears to the Court that:

1. On July 10, 2018, the Court granted summary judgment in favor of all four defendants.[7] In each instance, the Court based its decision on the recent opinion of the Ohio Supreme Court in Schwartz v. Honeywell,[8] in which the Ohio held that the theory of causation predicated on cumulative exposure, such as advanced by Plaintiffs' expert Dr. Mark Ginsberg, was insufficient to establish substantial factor causation under Ohio law.

2. On June 16, 2017, Plaintiffs served Dr. Ginsberg's initial report on Defendants.[9] Dr. Ginsberg's conclusion, applicable to all defendants, was that:

Mr. Richard's cumulative exposure to asbestos was a substantial contributing cause of his malignant

mesothelioma. It is my further opinion, to a reasonable degree of medical certainty, that the cumulative exposure from each company's asbestos product or products was a substantial contributing factor in the

development of Mr. Richardson's malignant mesothelioma. Each such product for which exposure can be

shown was a cause of said disease.[10]

3. On February 8, 2018, the Supreme Court of Ohio released its opinion in Schwartz.[11] In Schwartz, the Court held that cumulative exposure causation was incompatible with Ohio statutory law, which requires an individualized determination for each defendant.[12] The Court also found other problems with cumulative exposure causation beyond its incompatibility with Ohio's statutory scheme.[13] Because this Court found that Dr. Ginsberg's cumulative exposure causation opinion would not pass muster under Ohio law, it granted the defendants summary judgment.

4. Plaintiffs' sought and were granted an opportunity to seek leave for Dr. Ginsberg to submit a supplemental report. In their Motion, Plaintiffs attach a supplemental report from Dr. Ginsberg dated July 18, 2018.[14] In his supplemental report, Dr. Ginsberg concludes that Mr. Richards' exposures to each defendant's products "were sufficient to constitute a substantial factor in causing his mesothelioma."[15]

5. In asbestos litigation, applications to modify the Master Trial Scheduling Order are reviewed under the "good cause" standard.[16] "Good cause is likely to be found when the moving party has been generally diligent, the need for more time was neither foreseeable nor its fault, and refusing to grant the continuance would create a substantial risk of unfairness to that party."[17] "Properly construed, `good cause' means that the scheduling deadlines cannot be met despite a party's diligent efforts."[18]

6. Super. Ct. Civ. R. 60(b) provides that relief from a judgment or order may be granted under certain limited circumstances, including where there is "excusable neglect." As a general proposition, the party seeking relief under Rule 60(b) must establish that: 1) it acted in a reasonably prudent fashion; 2) it has the possibility of a meritorious claim; and 3) there is a lack of substantial prejudice to the non-moving party.[19] In addressing motions under Rule 60(b), the Court must consider whether a moving party acted in a reasonably prudent fashion, in other words whether there is excusable neglect, first.[20] The Court will only consider whether there is the possibility of a meritorious claim and whether the non-moving party would suffer substantial prejudice if a moving party acted in a reasonably prudent fashion.[21] Further, it is a moving party's burden to prove that it acted in a reasonably prudent fashion.[22]

7. In support of its excusable good cause/excusable neglect argument, Plaintiffs argue that: 1) they submitted their expert report eight months before Schwartz was decided; 2) there were only 22 days between the issuance of Schwartz and the due date for expert reports; and 3) the substantive law of Ohio had not been ordered as controlling on the date Plaintiffs' expert reports were due.[23] Plaintiffs appear to attach particular significance to this last consideration because it appears in bold in their Motion and is preceded by an introductory "importantly."[24] There is less to these arguments than meets the eye. The fact that Plaintiffs produced their expert report eight months before the due date is of no particular significance. What is significant is how much time they had to produce a supplemental report after the decision in Schwartz. It is true that there were only 22 days between the issuance of Schwartz and the deadline for the submission of expert reports. But, it took Plaintiffs only eight days to produce a supplemental report from Dr. Ginsberg. Obviously, Plaintiffs could have produced a supplemental report before the expiration of the expert report deadline if they had undertaken to do so immediately following the release of Schwartz.

8. The real problem for Plaintiffs is that they never sought leave for Dr. Ginsberg to supplement his report until after the Court had entered summary judgment against them. They did not seek leave to submit a supplemental report in the 81 days between the expiration of the expert report deadline and the service of the summary judgment motions of Ford Motor Company and Copes-Vulcan, Inc., both of which cited Schwartz.[25] Nor did they seek leave in the 105 days between the publication of Schwartz and their filing of their oppositions to the summary judgment motions of Ford Motor Company and Copes-Vulcan, Inc., despite addressing Schwartz in both responses, or in the 153 days until oral argument on the motions. [26] Further, the fact that Ohio substantive law was not ordered controlling until after the expert deadline is of no significance. Plaintiffs designated Ohio law as controlling in their complaint, and they have not suggested that there was any other state whose substantive law realistically might apply.[27] In short, Plaintiffs always knew Ohio substantive law would apply. The

date of the Court's Order confirming that fact is of no help to them. By failing to seek leave to supplement their expert report until after summary judgment was entered against them, the Court finds that Plaintiffs have not demonstrated good cause/excusable neglect to warrant granting them leave to submit Dr. Ginsberg's supplemental report or to grant them reargument.[28]

THEREFORE, good cause and/or excusable neglect having not been established, Plaintiffs' Motion for Leave to Supplement Expert Report Due to Changes in Substantive Law, and/or for Reargument DENIED.

IT IS SO ORDERED.

[1] D.I. 231.

[2] D.I. 239.

[3] D.I. 240.

[4] D.I. 241.

[5] D.I. 242.

[6] It appears that The Fairbanks Company did not submit a response, but in light of the Court's decision, it does not deem The Fairbanks Company's opposition waived. To hold otherwise would produce an anomalous result.

[7] D.I. 224 (Copes-Vulcan, Inc.), 225 (The Fairbanks Company), 226 (Ford Motor Company), 227 (Goodyear Tire & Rubber Company). [8] 2018 WL 793606 (Ohio 2018).

[9] D.I. 110.

[10] D.I. 231 at Ex. B.

[11] Schwartz, supra.

[12] Id. at [*3].

[13] Id. at [*4].

[14] D.I. 231 at Ex. A.

[15] Id.

[16] In re: Asbestos Litig. (Vala), 2012 WL 2389898 at [*1] (Del. Super.).

[17] Incyte Corp. v. Flexus Biosciences, Inc., 2017 WL 7803923 at [*3] (Del. Super.)(quoting Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1107 (Del. 2006).

[18] Rogers v. Bushey, 2018 WL 818374 at *& (Del. Super.) (quoting Candlewood Tiber Group LLC v. Pan American Energy LLC, 2006 WL 258305 (Del. Super.)).

[19] PNC Bank v. Sills, 2006 WL 3587247 (Del. Super. Ct.) at [*5].

[20] Perry v. Wilson, 2009 WL 1964787 at [*1] (Del. Super. Ct.).

[21] Id.

[22] Id.

[23] D.I. 231 at ¶ 6.

[24] Id.

[25] D.I. 169 at 3 (Ford Motor Company), 176 at 11 (Copes-Vulcan, Inc.).

[26] See D.I. 191 (Ford Motor Company), 193 (Copes-Vulcan, Inc.).

[27] D.I. 1 at ¶ 16.

[28] In their Motion, Plaintiffs seek reargument as to Defendants Ford Motor Company and Goodyear Tire & Rubber Company on the theory that Schwartz makes clear that an expert opinion is not a mandatory component of a plaintiff's prima facie case. Motion at ¶ 2, n. 1. The Court finds that interpretation of Schwartz to be too broad. Further, absent Dr. Ginsberg's opinion, Plaintiffs are left without any expert

medical opinion as to causation. At most, they simply would be able to present testimony about exposure, which is insufficient under Ohio law. See, Terry v. Caputo, 875 N.E. 2d 351 (Ohio 2007).

Sources

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