Call v. Ford Motor Co. (In re Asbestos Litigation, 2018)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, December 12, 2018).

Marilyn Kay Call sued Ford Motor Company, individually and as personal representative of the estate of her husband, Gerald D. Call. She alleged he was exposed to asbestos-containing Ford products, both on the job and outside work, developed mesothelioma, and died. Ford moved for summary judgment, arguing among other things that causation was not proved. The court found Indiana law governed. Plaintiff's expert, Dr. Mark Ginsberg, gave an opinion that cumulative exposure to asbestos from each company was a substantial contributing factor in causing the disease. Plaintiff conceded this opinion did not meet a "but for" standard but argued Indiana does not require that standard in asbestos cases. The court found no Indiana state case creating an asbestos-specific exception to the general negligence rule that harm would not have occurred but for the defendant's conduct, and cited a Seventh Circuit asbestos decision applying that rule. It held the "but for" test applies and granted summary judgment to Ford.

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 12, 2018
• Stage: Summary judgment
• State: Delaware

Outcome. 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.

What the court held. Indiana's general negligence "but for" causation standard applies to asbestos cases, so a substantial contributing factor opinion that concedes it does not meet that standard cannot defeat summary judgment.

Issues decided: Causation, Choice of Law, Wrongful Death and Survival, Expert Testimony.

The people and their exposure

• Gerald D. Call: mesothelioma; died

The defendants

• Ford Motor 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.
• 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.
• 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.

MARILYN KAY CALL Individually, and as personal Representative of the Estate of GERALD D.

CALL, deceased, Plaintiff,

v.

FORD MOTOR COMPANY, etal., Defendants.

C.A. No. N15C-11-153 ASB.

Submitted: December 6, 2018.

Decided: December 12, 2018.

Superior Court of Delaware.

Upon Ford Motor Company's Motion for Summary Judgment GRANTED.

Bartholomew J. Dalton, Esquire, Ipek K. Medford, Esquire, Andrew C. Dalton, Esquire (argued), 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 Plaintiff Marilyn Kay Call, individually and as personal representative of the Estate of Gerald D. Call, deceased, his wife; Weitz & Luxenberg, P.C., 700 Broadway, New York, New York 10003, of counsel. Christian J. Singewald, Esquire, Rochelle Gumapac, Esquire (argued), Christopher Marques, Esquire, White and Williams LLP, 600 N. King Street, Suite 800, Wilmington, Delaware, Attorneys for Defendant Ford Motor Company.

ORDER

FERRIS W. WHARTON, J.

This 12th day of December, 2018, upon consideration of Defendant Ford Motor Company's Motion for Summary Judgment, Plaintiffs' Memorandum in Opposition, Defendant's Reply, oral argument, and the record in this matter, it appears to the Court that:

1. Following oral argument on December 6, 2018, the Court reserved decision in order to give further consideration to a potentially dispositive issue. Specifically, that issue was whether Indiana, the state whose substantive law governs here, has a "but for" standard for causation in asbestos cases.

2. Plaintiff brings this action individually, and as personal representative of her late husband's estate, against Ford Motor Company ("Ford") alleging that Gerald D. Call was exposed to Ford asbestos containing products occupationally and non-occupationally, and, as a result, developed mesothelioma and died. Ford moves for summary judgment, inter alia, on product identification, and causation grounds.

3. Super. Ct. Civ. R. 56(c) provides that summary judgment is appropriate where there is "no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." When considering a motion for summary judgment, the Court's function is to examine the record to determine whether genuine issues of material fact exist "but not to decide such issues."[1] The moving party bears the initial burden of demonstrating that the undisputed facts support its claims or defenses.[2] If the moving party meets its burden, then the burden shifts to the non-moving party to demonstrate that there are material issues of fact to be resolved by the ultimate fact-finder.[3] Summary judgment will be granted if, after viewing the record in the light most favorable to the non-moving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law.[4] Summary judgment will not be granted if there is a material fact in dispute or if `it seems desirable to inquire more thoroughly into [the facts] in order to clarify the application of the law to the circumstances."[5] The Court should not "indulge in speculation and conjecture; a motion for summary judgment is decided on the record presented and not on evidence potentially possible."[6]

4. On the issue of causation Plaintiff relies upon the expert report of Mark E. Ginsberg, M.D. It is Dr. Ginsberg's opinion that "Mr. Call's cumulative exposure to asbestos was a substantial contributing cause of his malignant mesothelioma" and that "the cumulative exposure to asbestos from each company's asbestos was a substantial contributing factor in the development of Mr. Call's malignant mesothelioma."[7] In other words, Dr. Ginsberg offers a substantial contributing factor causation opinion. Ford argues that, since Indiana has a "but for" causation standard, and since Dr. Ginsberg's causation opinion does not meet that standard, summary judgment in its favor is required. Plaintiff concedes that Dr. Ginsberg's opinion does not meet the "but for" standard, but disputes that Indiana has a "but for" test in asbestos cases. 5. In negligence cases, Indiana recognizes that "An essential element in a cause of action for negligence is the requirement for a reasonable connection between the defendant's conduct and the damages which a plaintiff has suffered."[8] "This element requires, at a minimum, causation in fact — that is, the harm would not have occurred `but for' the defendant's conduct," meaning that "absent the tortious conduct, a plaintiff would have been spared suffering the claimed harm."[9] The Court has searched in vain for any asbestos specific deviation from this general standard of "but for" causation from an Indiana state court. Plaintiff has not identified any such cases either. What the Court did find, however, was federal court authority asbestos interpreting Indiana law in an asbestos case. The court in Harris v. Owens-Corning Fiberglass Corporation, noted in affirming the United States District Court for the Southern District of Indiana's grant of summary judgment, that the plaintiff `must produce some evidence of "but for" causation — evidence that her husband's illness would not have occurred bit for [defendant's] conduct."[10] Accordingly, the Court finds that Indiana's general negligence "but for" test for causation applies to asbestos cases.

THEREFORE, Ford Motor Company's Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.

[1] Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992).

[2] Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).

[3] Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).

[4] Merrill, 606 A.2d at 99-100.

[5] Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1963).

[6] In re Asbestos Litig., 509 A.2d 1116, 1118 (Del. Super. 1986), aff'd sub nom, Nicolet, Inc. v. Nutt, 525 A.2d 146 (Del. 1987). [7] Def.'s Mot Summ. J. Ex. E., D.I. 136.

[8] Crowe v. Forum Group, Inc. 575 N.E.2d 630, 635 (Ind. 1991) citing W. Prosser & W. Keeton, The Law of Torts § 41 at 263-66 (5th ed. 1984).

[9] Id.

[10] 102 F.3d 1429, 1432 (7th Cir. 1996), quoting Buckner v. Sam's Club, Inc. 75 F.3d 290, 294 (7th Cir. 1996).

Sources

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