In re Asbestos Litigation (Del. Super. Ct., Apr. 25, 2023)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, April 25, 2023).

Lisa Estrada, suing for herself and for the estate of Donald Jordonek, alleged that Jordonek worked as an automotive mechanic and developed and died from mesothelioma after asbestos exposure from several sources. One defendant, Hennessy Industries, was sued as successor to AMMCO Tools, which made brake lathes and grinders. The AMMCO machines did not contain asbestos, but the claim was that they ground asbestos-containing brake linings and released dust. Jordonek allegedly used this equipment at a Goodyear service center in Maple Heights, Ohio, from 1972 to 1999. The court had earlier denied Hennessy's summary judgment motion, finding that Ohio law imposed a duty to warn, and then denied reargument. Hennessy asked the court to certify an interlocutory appeal to the Delaware Supreme Court. The court denied the request. It found the issue was one of first impression under Ohio law, not Delaware law. Ford would remain in the case regardless, and Hennessy gave no evidence that the issue would affect other cases. The court found no benefit that outweighed the costs of piecemeal litigation.

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 25, 2023
• Stage: Other
• State: Delaware

Outcome. 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.

What the court held. Interlocutory appeal under Supreme Court Rule 42 was not warranted because the benefits of certification did not outweigh the costs of piecemeal litigation, with the first-impression question being one of Ohio rather than Delaware law and other defendants remaining in the case.

Issues decided: Choice of Law, 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 to 1999	brakes, clutches and friction materials, AMMCO brake lathes and grinders

The defendants

• Hennessy Industries, LLC (manufacturer)
• AMMCO Tools, Inc. (manufacturer)
• Ford Motor Company (manufacturer)
• American Honda Motor Co., Inc. (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 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.
• 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.

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 ASBESTOS.

Submitted: April 19, 2023.

Decided: April 25, 2023.

Superior Court of Delaware.

ORDER ON DEFENDANT HENNESSY INDUSTRIES LLC'S REQUEST TO CERTIFY AN INTERLOCUTORY APPEAL

UNDER SUPREME COURT RULE 42 DENIED

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. 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.

Hennessey moved for summary judgment maintaining, among other things, that under Ohio law there is no duty to warn on the part of Hennessey. 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. Hennessy then filed an opposed motion for reargument, which this court denied on April 11, 2023.

Now, Hennessy has filed the instant Motion for Certification of an Interlocutory Appeal to the Delaware Supreme Court which the plaintiff has opposed.

The determination of whether to certify an interlocutory appeal lies within the discretion of the Court and is analyzed under the criteria set forth in Supreme Court Rule 42(b). Rule 42(b)(1) states: "No interlocutory appeal will be certified by the trial court or accepted by this Court unless the order of the trial court decides a substantial issue of material importance that merits appellate review before final judgment." Rule 42(b)(ii) further cautions: "Interlocutory appeals should be exceptions, not routine, because they disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources. Therefore, parties should only ask for the right to seek interlocutory review if they believe in good faith that there are substantial benefits that will outweigh the certain costs that accompany interlocutory appeal." Assuming the gating requirement of Rule 42(b)(i) has been satisfied, an application also must meet one or more of the eight factors set forth in Rule 42(b)(iii).

Rule 42(b)(iii) counsels: "After considering these factors and its own assessment of the most efficient and just schedule to resolve the case, the trial court should identify whether and why the likely benefits of interlocutory review outweigh the probable costs, such that interlocutory review is in the interest of justice. If the balance is uncertain, the trial court should refuse to certify the interlocutory appeal."

The Court finds that its March 28, 2023 and April 11, 2023 decisions decide a substantial issue of material importance, but does not conclude that an appellate review before final judgment is necessary. The Court now turns to the eight criteria under Rule 42(b)(iii).

The Court starts with the three factors cited by Hennessy in support of immediate appellate review, which are Rule 42(b)(iii) (A), (G) and (H).

Hennessy cites Factor (A), maintaining that the interlocutory order involves a question of law to be resolved for the first time in this state. Hennessy is correct that the question presented would resolve a first impression question; however, the question presented is not a question of Delaware law, but a question of Ohio law. While factor (A) does not, on its face, appear to limit the first impression issue to a Delaware issue, the fact that the issue is a first of impression issue of Ohio law, rather than Delaware law, makes this factor less important when factored in with all other factors.

Hennessy next invokes factor (G) and maintains that a decision by the Supreme Court would terminate the litigation. While this may be true as to Hennessy, there is at least one other defendant, Ford Motor Company, that will not be affected by the resolution of the instant decision.

In In Re: Carvana Co. Stockholders Litig., Chancellor McCormick addressed this factor where the litigation would not terminate in its entirety, as in the instant case.[1] In Carvana, the Chancellor opined that factor (G) considers whether a successful interlocutory appeal would terminate the litigation in its entirety.[2] "Where, as here, the litigation against another litigant will continue regardless of the status of interlocutory appeal Factor G weighs against certification (or at best stands neutral on the issue)."[3] Here, as in Carvana, Factor G is, at best, neutral.

Next, Hennessy invokes factor (H). Hennessy maintains that the instant issue "may" well reach beyond the case in controversy. The instant issue would apply only to Hennessy, and only to those cases controlled by Ohio law. This Court has been provided with no evidence on the number of cases in Delaware involving Hennessy and the application of Ohio law and, as such, this argument is not persuasive.

Finally, Hennessy argues that judicial economy and interests of justice are served by certification because a decision in its favor will save the trial expense and an appeal is likely by the losing party. This scenario exists in every case, and in this Court's view, is not a sufficient reason under factor (H) to grant Hennessy's application.

The Court has considered the remaining criteria cited in Rule 42(b)(iii) but not cited directly by Hennessy. Likewise, they do not support certification. After considering Hennessy's arguments, this Court finds no benefit to certification that could outweigh the costs of piecemeal litigation.

Wherefore, Defendant's Application for Certification of an Interlocutory Appeal is DENIED.

[1] In Re: Carvana Co. Stockholders Litig., 2022 WL 4661841 (Del. Ch. Oct. 3, 2022).

[2] Id. at 3.

[3] Id.

Sources

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