Pearsons v. Heidelberg USA (In re Asbestos Litigation, 2020)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, December 23, 2020).

Donna Pearsons sued Heidelberg USA, Inc., successor to Mergenthaler Linotype Company, after her husband Thomas Pearsons died of mesothelioma in 2019 at age 72. He worked at the Vermont Standard newspaper's printing shop from 1964 to 1988, maintaining a Mergenthaler Linotype machine. The opinion says he cleaned the mouthpiece with an asbestos tool, replaced asbestos on the mouthpiece, changed asbestos wires in the heaters, and swept the dust. Heidelberg moved for summary judgment, arguing weak causation proof, Vermont's asbestos statute of repose, and product misuse. The Delaware Superior Court applied Vermont law. It found enough evidence of more than minimal exposure from 1964 to 1967, before the repose statute took effect, to show causation and to find that his right to recover had vested before the statute. It found a factual dispute over misuse. It granted judgment to Heidelberg only on the willful and wanton conduct claim, which Mrs. Pearsons did not contest.

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 23, 2020
• Stage: Summary judgment
• State: Delaware

Outcome. 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.

What the court held. Under Vermont law, a plaintiff shows substantial factor causation with evidence of more than de minimis exposure, and a right to recover that vested through exposure before the 1967 enactment of the asbestos-related statute of repose is not barred by it.

Issues decided: Causation, Choice of Law, Wrongful Death and Survival, Design Defect, Expert Testimony, Punitive Damages, Statute of Repose.

The people and their exposure

• Thomas J. Pearsons: mesothelioma; died

Who	Work	Where	When	Products
Thomas J. Pearsons	Linotype operator and maintenance worker in a newspaper printing shop	Vermont Standard printing shop, Vermont	1964-1988	Mergenthaler Model 8 Linotype machine, asbestos cleaning tool, Linotype mouthpiece asbestos, throat heater and crucible heater asbestos wires (Mergenthaler Linotype Company)

The defendants

• Heidelberg USA, Inc. (successor to Mergenthaler Linotype 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.
• 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.
• 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: THOMAS J. PEARSONS and DONNA PEARSONS, his wife.

C.A. No. N19C-07-118 ASB.

Submitted: September 29, 2020.

Decided: December 23, 2020.

Superior Court of Delaware.

Upon Defendant Heidelberg USA Inc.'s Motion for Summary Judgment: DENIED in part; GRANTED in part.

Adam Balick, Esquire, Michael Collins Smith, Esquire (Argued), Patrick J. Smith, Esquire of BALICK & BALICK, LLC, Wilmington, Delaware, Bartholomew J. Dalton, Esquire, Ipek Kurul, Esquire, Andrew C. Dalton, Esquire, Michael C. Dalton, Esquire, DALTON & ASSOCIATES, P.A., Attorneys for Plaintiffs.

Timothy A. Sullivan III, Esquire (Argued), of WILBRAHAM, LAWLER & BUBA, P.C., Wilmington, Delaware, Attorney for Defendant Heidelberg USA, Inc.

MEMORANDUM OPINION

ADAMS, J.

I. INTRODUCTION

Thomas Pearsons spent the majority of his career working in the printing shop of the Vermont Standard, Vermont's oldest weekly newspaper, where he would perform maintenance on the company's Mergenthaler Model 8 Linotype machine. As part of this process, he would regularly clean the Linotype's mouthpiece, clean the area of the printing shop in which the machine was located, and work on other parts of the machine as needed. His widow, Donna Pearsons ("plaintiff" or "Mrs. Pearsons"), alleges that he was exposed to asbestos when he performed these duties. She further alleges that this exposure was a proximate cause of his mesothelioma.

Defendant Heidelberg USA, Inc. ("Heidelberg"), as successor in interest to Mergenthaler Linotype Company, has moved for summary judgment on the grounds that all of Mrs. Pearsons's claims are barred because: (1) she has failed to develop sufficient evidence to prove causation under Vermont law; (2) Vermont's asbestos-related statute of repose acts as a bar to all of her claims; and (3) that Mr. Pearsons misused the Linotype machine. For the reasons that follow, Heidelberg's motion for summary judgment is DENIED on these grounds. Heidelberg also moved for summary judgment specifically on Mrs. Pearsons's claim that it behaved willfully and wantonly. Because she failed to proffer any evidence of such conduct, Heidelberg's motion for summary judgment is GRANTED on this specific claim.

II. BACKGROUND

A. Facts[1]

Thomas Pearsons ("Mr. Pearsons") worked at the Vermont Standard from 1964 until 1988. From 1964-1965, Mr. Pearsons worked part-time, approximately 20 hours a week. Mr. Pearsons worked full-time at the paper from 1965 until 1988, approximately 40-45 hours a week. Mr. Pearsons started as an apprentice, where he learned to operate and maintain a Mergenthaler Model 8 Linotype machine. Mr. Pearsons continued this work throughout his career at the Vermont Standard. During Mr. Pearsons's career, he performed various maintenance duties on the Linotype. One job was cleaning the Linotype mouthpiece by rubbing an asbestos cleaning tool across the mouthpiece. While cleaning, Mr. Pearsons inhaled the asbestos dust that was created as the asbestos end of the tool disintegrated. The tool needed to be replaced periodically.

Mr. Pearsons's maintenance work also included replacing the Linotype's mouthpiece every two to four years. This required Mr. Pearsons to scrape out old asbestos and mix new asbestos with water and pack it on the mouthpiece. This process also caused him to breathe in asbestos dust.[2]

Mr. Pearsons also performed general maintenance on the Linotype and cleaned the room where the machine was located. Mr. Pearsons swept dust and shavings that accumulated under the machine every night, including dust from the disintegrating asbestos-containing cleaning tool. Mr. Pearsons's weekly maintenance duties included pulling the mats out of the machine and brushing dust out of the magazine. He also swept after cleaning or replacing a part on the machine. Mr. Pearsons performed less frequent tasks on the Linotype, including changing the throat heater and changing the crucible heater, which both involved a process similar to replacing asbestos in the mouthpiece. Mr. Pearsons also changed the throat heater on the Linotype "several times" and changed the crucible heater at least once during his career at the Vermont Standard. His work with the throat heater and crucible heater also involved replacing asbestos wires, which were cracked and brittle and had asbestos flaking off. This caused him to inhale asbestos dust.

Mr. Pearsons passed away on October 20, 2019 from mesothelioma at the age of seventy-two.

B. Procedural Background

Thomas and Donna Pearsons filed the Complaint on July 16, 2019 alleging negligence, willful and wanton conduct, strict liability, and loss of consortium.[3] A wrongful death claim was subsequently added after Mr. Pearsons's passing via Amended Complaint, filed on April 15, 2020 by Mrs. Pearsons.[4] Heidelberg filed its Motion for Summary Judgment (the "Motion") on February 12, 2019.[5] The Court held oral argument on the Motion on May 5, 2020.[6] The Court ordered additional briefing on the application of 12 V.S.A. § 518(a), Vermont's asbestos-related statute of repose, as related to the facts of this case and held additional oral argument on September 29, 2020.[7]

III. STANDARD

The standard of review on a motion for summary judgment is well-settled. When considering a motion for summary judgment, the Court's principal function is to examine the record to determine whether genuine issues of material fact exist, "but not to decide such issues."[8] Summary judgment will be granted if, after viewing the record in a light most favorable to a non-moving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. [9] Summary judgment will not be granted, however, if the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record.[10] The moving party bears the initial burden of demonstrating that the undisputed facts support his claims or defenses.[11] "If the motion is properly supported, then the burden shifts to the non-moving party to demonstrate that there are material issues of fact for resolution by the ultimate fact-finder."[12]

IV. ANALYSIS

In her Amended Complaint, plaintiff asserts five causes of action: negligence, willful and wanton conduct, strict product liability, loss of consortium and wrongful death. Heidelberg asserts that it is entitled to summary judgment on all of its claims because: (1) plaintiff has not established causation under Vermont law; (2) all of plaintiff's claims are barred by Vermont's asbestos-related statute of repose; and (3) Mr. Pearsons misused the Mergenthaler Linotype machine. For the reasons stated herein, Heidelberg's motion for summary judgment is denied on all three grounds. Heidelberg also argues that is entitled to summary judgment on plaintiff's claim of willful and wanton conduct because plaintiff has failed to demonstrate any evidence of such conduct. Heidelberg's motion is granted on this claim.

A. Plaintiff Has Submitted Sufficient Evidence to Establish Causation under

Vermont Law

Where an injury is brought about by multiple causes or exposures, a plaintiff must show that the defendant's conduct was a substantial factor in causing the injury.[13] Vermont substantive law requires a plaintiff to "point to the evidence suggesting a probability, rather than a mere possibility" that "(1) he was exposed to the specified chemical at a level that could have caused his physical condition (general causation); and (2) the exposure to that chemical did in fact result in the condition (specific causation)."[14] Specific causation is demonstrated "by submitting evidence concerning the amount, duration, intensity, and frequency of exposure."[15]

Viewing the record in the light most favorable to plaintiff, it shows that Mr. Pearsons was exposed to defendant's products while employed at the Vermont Standard in a greater than de minimis fashion from 1964 until 1967, when § 518(a) was enacted. Mr. Pearsons worked 20 hours per week until 1965, and then worked full time at 40 hours per week for the rest of his career. Mr. Pearsons testified that he used an asbestos-cleaning tool "a couple times a day" and cleaned under the machine nightly from the time he started at the Vermont Standard in 1964 until the enactment of § 518(a) in 1967. Accordingly, plaintiff has submitted sufficient evidence of greater than de minimis exposure to asbestos prior to the enactment of § 518(a) in 1967, satisfying the substantial factor causation standard at the summary judgment stage.[16] B. Plaintiff's Claims Are Not Barred by Vermont's Statute of Repose

Heidelberg argues that 12 V.S.A. § 518(a),[17] Vermont's asbestos-related statute of repose, serves as a bar to all of plaintiff's claims. A statute of repose, unlike a statute of limitations, can serve as an absolute bar to a plaintiff's claim by "prohibit[ing] a cause of action from coming into existence."[18] Under Vermont law, if a plaintiff can show that a defendant's alleged negligent acts or omissions occurred before the enactment of a statute of repose, then the plaintiff's right to recover vested prior to the statute's enactments.[19] A right is vested when it is "complete and consummated, and of such character that it cannot be divested without the consent of the person to whom it belongs, and fixed or established, and no longer open to controversy."[20] Plaintiff's claims are not barred by § 518(a) because Mr. Pearson's right to recovery vested prior to the enactment of the statute.[21]

Because the Court has determined that plaintiff has demonstrated that Mr. Pearsons was exposed to Heidelberg's products in a greater than de minimis fashion from 1964 until 1967, Mr. Pearsons's right to recover vested during this period. In Lillicrap v. Martin, the Supreme Court of Vermont found that the State's medical malpractice statute of repose, enacted in 1978, did not bar plaintiff's claims because plaintiff's injury occurred in 1972.[22] Similarly here, given the timing of Mr. Pearsons's injuries, the repose period does not bar plaintiff's claims and Heidelberg's Motion is denied on this ground. C. A Genuine Issue of Material Fact Exists as to whether Mr. Pearsons

Misused the Mergenthaler Linotype Machine

Heidelberg has not met its initial burden of demonstrating that the undisputed facts support its claim of product misuse. Defendant relies on Greg Timko's expert testimony, which focuses primarily on internally-located pot insulation,[23] to show that Mr. Pearsons misused the Mergenthaler Linotype machine. Timko testified that any asbestos-containing insulation was located internally, within the pot assembly and sealed under steel between the crucible and outer pot jacket.[24] Timko also submitted an affidavit whereby he swore that neither the mouthpiece nor the throat were insulated as manufactured and sold, and insulation "was not specified or required" for either of these parts to properly function.[25]

Mr. Pearsons's testimony surrounding his work, however, shows that there is a material dispute of fact as to whether he misused the Mergenthaler Linotype machine. Mr. Pearsons testified that he learned how to clean, maintain, and operate the Linotype at the Vermont Standard through a four-year, supervised apprenticeship program and then continued this work for the duration of his career.[26] He testified that all of the asbestos-containing materials he used in connection with the Linotype came from Mergenthaler.[27] And, as discussed above, he testified to multiple sources of asbestos exposure from Defendant's products, corroborated by excerpts of the Mergenthaler Special Supplies Catalog, the Linotype Instruction Book, and the Linotype Maintenance Manual.[28] Summary judgment is, therefore, is denied on product misuse grounds.

D. Plaintiff Has Failed to Demonstrate Evidence of Willful and Wanton

Conduct

Mrs. Pearsons failed to contest Heidelberg's Motion with respect to her claim for punitive damages for willful and wanton conduct. As such, Heidelberg's motion for summary judgment is granted with respect to this claim.

V. CONCLUSION

For the foregoing reasons, Heidelberg's Motion for Summary Judgment is DENIED in part and GRANTED in part. IT IS SO ORDERED.

[1] The following facts are set forth in the light most favorable to plaintiff Donna Pearsons, as the non-moving party. [2] Mr. Pearsons knew the material was asbestos because the bag it came in was labeled "asbestos." According to Mr. Pearsons, Mergenthaler supplied the asbestos and other replacement parts and materials associated with the Linotype. [3] Dkt. 1.

[4] Dkt. 36.

[5] Dkt. 27.

[6] See Dkt. 37.

[7] See Dkt. 46.

[8] Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted).

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

[10] In re Asbestos Litig., 2007 WL 2410879, at [*2] (Del. Super. Aug. 27, 2007) (citing Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962)).

[11] Id. (citing Moore v. Sizemore, 405 A.2d 679, 680 (Del.1979)).

[12] Id. at [*2].

[13] See Lorrain v. Ryan, 628 A.2d 543, 547-48 (Vt. 1993) (citing Woodcock's Adm'r v. Hallock, 127 A. 380, 382 (1925); Restatement (Second) of Torts § 434 (Am. L. Inst. 1965).

[14] See Blanchard v. Goodyear Tire and Rubber, 30 A.3d 1271, 1274 (Vt. 2011) (citing Golden v. CH2M Hill Hanford Group, Inc., 528 F.3d 681, 683 (9th Cir. 2008); White v. Dow Chem. Co., 321 Fed. Appx. 266, 273 (4th Cir. 2009); Bland v. Verizon Wireless, (VAW) L.L.C., 538 F.3d 893, 898 (8th Cir. 2008); Sakaria v. Trans World Airlines, 8 F.3d 164, 172-73 (4th Cir. 1993)).

[15] Dakers v. Bartow, 2018 WL 8415310, at [*7] (D. Vt. 2018) (quoting Blanchard, 30 A.3d at 1271)).

[16] See Lorrain, 628 A.2d at 546-48. Heidelberg also argues that Mrs. Pearsons failed to satisfy the causation standard under Vermont law because she did not submit requisite expert evidence of the amount, duration, intensity and frequency of Mr. Pearsons's exposure to Defendant's allegedly asbestos-containing products. Defendant asserts that Dr. Ginsburg's expert report is insufficient and that Mrs. Pearsons must provide a corresponding opinion from an industrial hygienist. Vermont law, however, permits expert testimony to be based on circumstantial evidence of exposure level. See Blanchard v. Goodyear Tire and Rubber, 30 A.3d 1271, 1275 (Vt. 2011). Plaintiff's medical expert report sufficiently provided evidence of both general and specific causation, appropriately founded upon Mr. Pearsons's testimony regarding his work with asbestos-containing products.

[17] Section 518(a) provides:

An action to recover for ionizing radiation injury or injury from other noxious agents medically recognized as having a prolonged latent development shall be commenced within three years after the person suffering the injury has knowledge or ought reasonably to have knowledge of having suffered the injury and of the cause thereof, but in no event more than 20 years from the date of the last occurrence to which the injury is attributed.

12 V.S.A. § 518(a) (emphasis added).

[18] CTS Corporation v. Waldburger, 573 U.S. 1, 16 (2014).

[19] Lillicrap v. Martin, 591 A.2d 41, 48 (Vt. 1989).

[20] Lillicrap, at 49 (Vt. 1989) (quoting Black's Law Dictionary 1402 (5th ed. 1979)).

[21] Because the Court finds that plaintiff's claim vested prior to the enactment of the statute, the Court need not address the issue of constitutionality of Vermont's statute of repose. See Lillicrap v. Martin, 591 A.2d at 48.

[22] Lillicrap v. Martin, 591 A.2d at 48.

[23] See Def.'s Ex. E-F. All exhibit references in this section are to either Heidelberg's Motion for Summary Judgment ("Def.'s Ex. __") or Plaintiff's Memorandum in Opposition to Heidelberg's Motion for Summary Judgment ("Pl.'s Ex. ___").

[24] Def.'s Ex. F at ¶ 12.

[25] Def.'s Ex. F at ¶¶ 13-14.

[26] Pl.'s Ex. A at 52:19-53:12; Pl.'s Ex. B. at 11:18-24.

[27] Pl.'s Ex. A at 68:1-10; Pl.'s Ex. B at 37:19-25.

[28] See Pl.'s Ex. C-E.

Sources

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