In re Asbestos Litigation (Del. Super. Ct., Apr. 11, 2023)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, April 11, 2023).

Lisa Estrada sued several companies, including Hennessy Industries, after Donald Jordonek died of mesothelioma. Jordonek worked as an automotive mechanic, and he was alleged to have been exposed to asbestos from many sources. Hennessy is the successor to AMMCO Tools, which made brake lathes and grinders. The record showed Jordonek used AMMCO equipment at a Goodyear Tire Service Center in Maple Heights, Ohio, from 1972 to 1999. The equipment had no asbestos in it. The claim was that it ground asbestos brake linings and released asbestos dust. Hennessy argued Ohio law gave it no duty to warn. The court had denied summary judgment in an oral ruling and here explained it in writing while denying Hennessy's motion for reargument. Applying Ohio law, the court found the Ohio asbestos statute did not settle the question. It predicted Ohio would follow a California approach and allow a duty to warn where a product is necessarily used with another product and the danger comes from the two together. Hennessy raised no new arguments, so reargument was denied.

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: April 11, 2023
• Citation: 293 A.3d 154
• Stage: Summary judgment
• State: Delaware

Outcome. 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.

What the court held. Predicting Ohio law, the court held that Ohio would recognize an exception to the bare metal rule. A manufacturer may have a duty to warn where its product is necessarily used with another product and the danger results from the two products used together.

Issues decided: The Bare-Metal Defense, Failure to Warn, Trial Procedure and Discovery.

The people and their exposure

• Donald Jordonek: mesothelioma; died

Who	Work	Where	When	Products
Donald Jordonek	automotive mechanic (auto mechanics and brake work)	Goodyear Tire Service Center, Maple Heights, Ohio	1972-1999	brakes, clutches and friction materials, AMMCO brake lathes and grinders (Hennessy Industries, successor to AMMCO Tools)

The defendants

• Hennessy Industries, 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.
• 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.
• 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 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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Richards v. Copes-Vulcan, Inc. (Delaware Supreme Court, 2019). The Delaware Supreme Court affirmed summary judgment for Copes-Vulcan, Ford and Goodyear and the denial of the Richards' request to supplement their expert report or for reargument.
• O'neil v. Crane Co. (California Supreme Court, 2012). The California Supreme Court reversed the Court of Appeal and remanded for entry of a judgment of nonsuit in favor of pump and valve makers Crane Co. and Warren Pumps, defeating the O'Neil family's strict liability and negligence claims.
• Horton v. Harwick Chem. Corp. (Ohio Supreme Court, 1995). The Ohio Supreme Court reversed the court of appeals, which had upheld summary judgment for the asbestos product defendants, and remanded to the trial court, so the Hortons and Derrick won on the causation standard. It agreed with the appellate court that alternative liability does not apply.
• Lohrmann v. Pittsburgh Corning Corp. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the judgment for the defendants: directed verdicts for Raymark, Celotex and Pittsburgh Corning, a jury verdict for the other four defendants, and the challenged evidentiary rulings and jury instructions, against plaintiff Lohrmann.
• Thomas v. Borg-Warner Morse Tec LLC (U.S. District Court, Eastern District of Arkansas, 2018). The court granted Hennessy Industries' motion for summary judgment and dismissed it from the case, because its brake grinder contained no asbestos and could not have caused Thomas's mesothelioma.

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.

293 A.3d 154 (2023)

IN RE: ASBESTOS LITIGATION.

Lisa Estrada, individually and as Fiduciary for the Estate of Donald Jordonek, deceased, Plaintiff, v.

American Honda Motor Co., Inc., etal., Defendants.

C.A. No.: N19C-01-100 ASB.

Submitted: April 5, 2023.

Decided: April 11, 2023.

Superior Court of Delaware.

OPINION ON DEFENDANT HENNESSY INDUSTRIES, LLC'S MOTION FOR REARGUMENT DENIED

[*155] Michael C. Dalton, Esquire, Dalton & Associates, P.A., Wilmington, Delaware, and Michael Collins Smith, Esquire, Balick & Balick, LLC, Wilmington, Delaware, Attorneys for Plaintiff.

Brian D. Tome, Esquire, Reilly, McDevitt & Henrich, P.C., Wilmington, Delaware, Attorneys for Defendant. [*156] OPINION ON DEFENDANT HENNESSY INDUSTRIES, LLC'S MOTION FOR

REARGUMENT DENIED

Jones, J.

This asbestos case is controlled by Ohio substantive law. It is alleged that Donald Jordonek was exposed to asbestos from a number of sources as a result of his work over a career as an automotive mechanic. It is further alleged that as a result of his asbestos exposure, Jordonek contracted and died from mesothelioma.

One of the defendants sued is Hennessy Industries, LLC ("Hennessy") in its capacity as the predecessor-in-interest to AMMCO Tools, Inc. ("AMMCO"). AMMCO manufactured brake lathes and grinders, among other products. There is record evidence that Jordonek worked with this AMMCO equipment while employed at the Goodyear Tire Service Center in Maple Heights, Ohio from 1972 to 1999.

The AMMCO equipment that Jordonek worked with did not contain asbestos. The theory of liability against AMMCO is that it designed and sold a machine whose function was to grind asbestos containing brake linings, and that the machine released asbestos dust when applied to the linings.

Hennessy moved for summary judgment maintaining, among other things, that under Ohio law there is no duty to warn on the part of Hennessy. In a March 28, 2023 oral ruling, this Court denied Hennessy's motion, finding that Ohio law would impose a duty on the part of Hennessy to warn. This Motion for Reargument follows.

Because the original order of this Court was verbal, I will now take this opportunity to explain, in writing, the March 28, 2023 oral decision.

Hennessy maintains that under Ohio law it cannot be held liable for any asbestos containing component parts or other non-component parts that it did not manufacturer or supply including brakes. The Delaware Supreme Court had recent occasion to give a history of the evolution of Ohio asbestos law in Richards v. Copes-Vulcan, Inc.[1] In Richards, the Supreme Court wrote:

Our starting point to answer the Ohio law question is the Fourth Circuit's decision in Lohrmann v. Pittsburgh Corning Corp. In Lohrmann, the plaintiff argued that a directed verdict in favor of three asbestos product manufacturers was improper when the trial court found there was insufficient evidence that the plaintiff came in contact with their asbestos products. Rather than adopt a rule "that if the plaintiff can present any evidence

that a company's asbestos-containing product was at the workplace while the plaintiff was at the workplace, a jury question has been established as to whether that product contributed as a proximate cause to the plaintiff's disease," the Fourth Circuit created the now often-cited "manner-frequency-proximity" test for causation in asbestos cases:

To support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked. Such a rule is in keeping with the opinion of the plaintiff's medical expert who testified that even thirty days exposure, more or less, was insignificant as a causal factor in producing the plaintiff's disease.

[*157] As the court held, the manner-frequency-proximity test was useful to assess "the sufficiency of evidence for exposure" because it operated as "a de minimis rule since a plaintiff must prove more than a casual or minimum contact with the product." The appeals court affirmed the district court's directed verdict in favor of the three manufacturers because of the lack of evidence of exposure to their products.

The Ohio Supreme Court, like many courts, had to decide what causation standard to adopt in the evolving area of toxic tort litigation. The causation issue presents unique challenges because of multiple defendants, multiple sources of exposure, and the long latency period of asbestos exposure diseases. In Horton v. Harwick Chem. Corp. [73 Ohio St.3d 679, 653 N.E.2d 1196 (1995)], the Ohio Supreme Court declined to adopt the Lohrmann manner-frequency-proximity test because it "cast[] judges in an inappropriate role" of making scientific and medical exposure assessments, was "overly burdensome" for plaintiffs, and was "unnecessary." Instead, the Court adopted the "substantial factor" test of the Restatement. The plaintiff must show that they were exposed to asbestos from each defendant's product, and the asbestos from each

defendant's product was a "substantial factor" in causing the injury.

After the Horton decision, the Ohio General Assembly in 2004 saw things differently and enacted Ohio Rev. Code Ann. § 2307.96, which essentially adopted the Lohrmann causation standard in asbestos cases:

(A) If a plaintiff in a tort action alleges any injury or loss to person resulting from exposure to asbestos as a result of the tortious act of one or more defendants, in order to maintain a cause of action against any of those defendants based on that injury or loss, the plaintiff must prove that the conduct of that particular defendant was a substantial factor in causing the injury or loss on which the cause of action is based. (B) A plaintiff in a tort action who alleges any injury or loss to person resulting from exposure to asbestos has the burden of proving that the plaintiff was exposed to asbestos that was manufactured, supplied, installed, or used by the defendant in the action and that the plaintiff's exposure to the defendant's asbestos was a substantial factor in causing the plaintiff's injury or loss. In determining whether exposure to a particular defendant's asbestos was a substantial factor in causing the plaintiff's injury or loss, the trier of fact in the action shall consider, without limitation, all of the following:

(1) The manner in which the plaintiff was exposed to the defendant's asbestos.

(2) The proximity of the defendant's asbestos to the plaintiff when the exposure to the defendant's asbestos occurred.

(3) The frequency and length of the plaintiff's exposure to the defendant's asbestos.

(4) Any factors that mitigated or enhanced the plaintiff's exposure to asbestos.[2]

Here, Hennessy points to § 2307.96 and maintains it had no duty to warn the plaintiff. Hennessy reads this statute as defining a cause of action, and since Hennessy did not manufacture, supply, or install the product, and the product was not used by the defendant in the action, no cause of action against Hennessy lies. In short, Hennessy argues the plain words of the [*158] statute require the entry of summary judgment because it owes no duty under the statute.

Plaintiff responds that the language in the statute "used by" the defendant applies to the instant case. Plaintiff also points the Court to § 2307.91(C), which defines asbestos claims as "any claim means any claim for damages, losses, indemnification, contribution or other relief arising out, based on, or in any way related to asbestos."[3] According to the

plaintiff, this definition would include the claims against Hennessy, and to adopt a contrary meaning would make the words of this definition meaningless.

The first question to be addressed is whether the plain words of the statute resolve the issue. I find that the clear terms of the statute do not address the question posed. Section 2307.98(b) is entitled "Burden of Proof in a Tort Action/Factors Considered." The section does not define the nature and scope of the duties owed by a manufacturer. But what the statute does say, as evidenced by its words and the history of the statute, is that the plaintiff must show the exposure to a particular product was a substantial factor in bringing about plaintiff's asbestos-related disease. As explained in Richards, the underlying purpose of this section was to address the Lohrmann[4] issue of the required burden of proof in Ohio on the issue of causation. Plaintiff is also correct that the definition of "claims" is much broader than that outlined in § 2307.96, and encompasses the claims against Hennessy. To adopt the reading of the defendant would be inconsistent with the definition of claims as defined by the Act. In short, the statutory words do not resolve the issue.

Finding that the Ohio statute does not directly address the issue, I must look for other indications of what an Ohio court would decide. The parties have not provided any Ohio case directly addressing the issue before this Court; in fact, the parties have agreed that there is no Ohio decision addressing the issue. In the absence of such authority, I must predict Ohio law.[5]

Like a number of other jurisdictions, Ohio follows the general rule that a manufacturer does not have a duty to warn of adjacent parts supplied by a third party, the so-called bare metal defense.[6] But there are well recognized exceptions to this rule.[7] The question is whether Ohio would adopt an exception to the rule under the circumstances of this case. In In re: Fitzgerald, our Superior Court had an opportunity to summarize Ohio law in this area. The Fitzgerald Court concluded that "a plaintiff creates a triable issue as to liability on a design defect theory where he can show that the defendant explicitly specified or at least recommended that a particular product to which the plaintiff attributes his exposure be utilized with asbestos, such that it is evident that the defendant's product was manufactured with the explicit purpose and intent of use with asbestos."[8] The Fitzgerald Court then cited to the Ohio case of Fischer v. Armstrong Int'l, Inc.,[9] where the Ohio Court of Common Pleas recognized a [*159] duty exists for a replacement part by a third party when the defendant in question "explicitly specified the product for use with asbestos". Fischer, in turn, quoted the Ohio decision in Perry v. Allis Chalmers Products Liability Trust,[10] in which the Ohio Court of Common Pleas once again recognized a duty on the part of a third party. And, in a recent Rhode Island decision interpreting Ohio law,[11] Judge Gibney of the Rhode Island Superior Court wrote:

... Ohio Courts have addressed the issue of liability for after-applied, third party asbestos-containing products. Generally, such courts have "acknowledged that certain factual scenarios may arise under Ohio law where liability may attach to manufacturers of products for injuries caused by a plaintiff's exposure to a different manufacturer's asbestos-containing products." For instance, in Perry v. Allis-Chalmers Corp. Prods. Liab. Trust, the court denied summary judgment because the defendant specified replacement parts must contain asbestos. Nevertheless, the courts have held that a plaintiff must produce some evidence indicating that the original manufacturer recommended or required the use of asbestos insulation upon its products. Put another way, the fact that the defendant manufacturer may have foreseen that asbestos products could later have been used in conjunction with the original product, standing alone, is not sufficient to impose liability.[12] I recognize that, in some of these cases, summary judgment was granted. But the grant of summary judgment was because the facts did not meet the exception. The upshot of these cases is that Ohio law recognizes there are exceptions to its general rule. The question then becomes whether Ohio law should recognize an exception in this circumstance. I believe that it should, and the rationale for why it should can be gleamed from the California law cited by the plaintiff. California follows the general rule of no duty to warn, but recognizes exceptions to that doctrine.[13] In Sherman v. Hennessy Industries, Inc.,[14] the California Court of Appeals for the Second Circuit had an opportunity to directly address the exact issue present in this case. The question in Sherman was whether California law recognized an exception to the general no duty rule where the AMMCO machine was the product in question. In Sherman, the Court had an opportunity to lay out the exceptions to the general rule and the public policy arguments behind it:

In O'Neil, our Supreme Court examined the extent to which a manufacturer may be liable for injuries arising from "adjacent" products, that is, products made and sold by others, but used in conjunction with the manufacturer's own product. There, the family of a deceased United States Navy seaman asserted claims for negligence and strict liability against manufacturers of pumps and valves used on warships, alleging that the serviceman's exposure to asbestos dust from asbestos-containing materials used in connection with the pumps and valves caused his fatal mesothelioma. The court rejected the claims, concluding that "a product manufacturer may [*160] not be held liable in strict liability or negligence for harm caused by another manufacturer's product unless the defendant's own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products." The O'Neil court distinguished three decisions in which liability had been imposed on a manufacturer, one of which is pertinent here, namely, Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger [Co., 129 Cal.App.4th 577, 28 Cal.Rptr.3d 744 (2004)] There, the plaintiff asserted strict liability claims based on defective warnings and design defects against manufacturers of grinding, sanding, and cutting tools the plaintiff had used. The plaintiff's complaint alleged that the defendants' tools released toxic dust from other manufacturers' products, and that the dust caused his injuries. The defendants successfully demurred to the complaint on the basis of the component parts doctrine. In reversing, the appellate court concluded that the component parts doctrine was

inapplicable: "The facts before us are not that respondents manufactured component parts to be used in a variety of finished products, outside their control, but instead that respondents manufactured tools which were specifically designed to be used with the abrasive wheels or discs they were used with, for the intended purpose of grinding and sanding metals, that the tools necessarily operated with those wheels or discs, that the wheels and discs were harmless without the power supplied by the tools, and that when the tools were used for the purpose intended by respondents, harmful respirable metallic dust was released into the air." The O'Neil court concluded that Tellez-Cordova marked an exception to the general rule barring imposition of strict liability on a manufacturer for harm caused by another manufacturer's product. That exception is applicable when "the defendant's own product contributed substantially to the harm....." In expounding the exception, the court rejected the notion that imposition of strict liability on manufacturers is appropriate when it is merely foreseeable that their products will be used in conjunction with products made or sold by others. The O'Neil court further explained: "Recognizing a duty to warn was appropriate in Tellez-Cordova because there the defendant's product was intended to be used with another product for the very activity that created a hazardous situation. Where the intended use of a product inevitably creates a hazardous situation, it is reasonable to expect the manufacturer to give warnings. Conversely, where the hazard arises entirely from another product, and the defendant's product does not create or contribute to that hazard, liability is not appropriate. We have not required manufacturers to warn about all foreseeable harms that might occur in the vicinity of their products."

The O'Neil court further concluded that the facts in Tellez-Cordova differed from the situation before it in two key respects. As the "sole purpose" of the power tools in Tellez-Cordova was to grind metals, they could only be used in a potentially injury-producing manner, unlike the defendant manufacturers' pumps and valves, whose "normal operation... did not inevitably cause the release of asbestos dust." Moreover, unlike the pumps and valves, "it was the action of the power tools ... that caused the release of harmful dust, even though the dust itself emanated from another substance." In view of those differences, the pumps and valves did not satisfy two requirements identified by the underlying [*161] appellate court for the imposition of strict liability under Tellez-Cordova, namely, that the manufacturer's product "`is necessarily used in conjunction with another product,'" and that "`the danger results from the use of the two products together.'" The O'Neil court determined that "[the] pumps and valves were not `necessarily' used with asbestos components, and danger did not result from the use of [the] products `together.'"[15]

The public policy rationale for imposing a duty on Hennessy, as articulated in O'Neil, is persuasive, as it places the burden on the party who increased the risk and profited from it. I believe that an Ohio court would be persuaded by the O'Neil analysis, as well. If an Ohio court is prepared to impose liability on a manufacturer where its products require the incorporation of another manufacturer's product, it surely would impose liability when a combination of the two products increases the risk of injury. To be clear, the reason for imposing liability is not based on the concept of foreseeability; as Sherman makes clear, that is not enough. The reason for imposing liability is because defendant's product was intended to be used with another product for the very activity that created a hazardous situation. Where the intended use of a product

inevitably creates a hazardous situation, it is reasonable to expect the manufacturer to give warnings, so long as there is proof that the intended use of the product inevitably created a hazardous situation. Conversely, where the hazard arises entirely from another product and the defendants' product does not create or contribute to that hazard, liability is inappropriate. The factual requirements that must be established to trigger the Tellez-Cordova exception are: (1) the manufacturer's product is necessarily used in conjunction with another product; and (2) the danger results from the two products together. It is my prediction that Ohio would adopt this exception.

Against this background, I now turn to Hennessy's Motion for Reargument. This Court's standard for considering Motions for Reargument is well settled. The Court will only grant reargument when it has overlooked controlling precedent or legal principles, or misapprehend the law or facts in a way that would have changed the outcome of the underlying decision.[16] Reargument is not an opportunity for a party to revisit arguments already decided by the Court.[17] Hennessy, in its Motion for Reargument, presents no new arguments. While Hennessy has cited to one additional case from Arkansas,[18] this case does not change the Court's conclusion. In short, I am satisfied that I did not overlook a controlling precedent or legal principle or misapprehend the law or facts in a manner affecting the outcome of the decision. The original March 29, 2023 verbal decision was correct and should not be changed or amended.

For the above reasons, Defendant's Motion for Reargument is DENIED.

IT IS SO ORDERED.

[1] 213 A.3d 1196 (Del. 2019).

[2] Id. at 1197-2000.

[3] Ohio Rev. Code Ann. § 2307.91(C).

[4] Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986)

[5] See generally Richards, 213 A.3d 1196.

[6] Jacobs v. E.I. du Pont de Nemours & Co., 67 F.3d 1219, 1236 (6th Cir. 1995).

[7] See id.

[8] In re Fitzgerald, N10C-06-179, at 9 (Del. Super. Aug. 16, 2011) (Ableman, J.).

[9] No. CV 07-615514 (Ohio Ct. Com. Pl. Jan. 2, 2008) (Sweeney, J.) (ORDER).

[10] No. CV 06-608652 (Ohio Ct. Com. Pl. Nov. 30, 2006) (Sheehan, J.).

[11] Baumgartner v. American Standard, Inc., 2015 WL 4523476 (R.I. Super. July 22, 2015).

[12] Id. at [*6] (internal citations omitted).

[13] O'Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987, 998 (2012).

[14] 237 Cal. App. 4th 1133, 188 Cal.Rptr.3d 769 (2015), as modified on denial of reh'g (July 8, 2015). [15] Id. at 1140-43, 188 Cal.Rptr.3d 769 (emphasis in original) (internal citations omitted).

[16] See Peters ex rel. Peters v. Texas Instruments, Inc., 2012 WL 1622396, at [*1] (Del. Super. May 7, 2012), aff'd, 58 A.3d 414 (Del. 2013), as revised (Jan. 9, 2013).

[17] See id.

[18] Thomas v. Borg-Warner Morse TEC, LLC, 340 F.Supp.3d 800 (E.D. Ark. 2018). Thomas is an Arkansas case that cites Arkansas law.

Sources

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