Braxton v. J-M Mfg. Co. (In re Asbestos Litigation, 2024)

Our plain-English summary of In re Asbestos Litigation (Delaware Superior Court, December 17, 2024).

LaDonna Sue Braxton, individually and as executrix of the estate of Marvin Jerry Braxton, Jr., sued J-M Manufacturing Company in Delaware Superior Court over his mesothelioma. Texas law governed. Before the trial, now moved to February 2025, J-M Manufacturing asked for leave to name other companies as responsible third parties, so a jury could assign them a share of fault. The plaintiff objected on three grounds: the defendant had not pleaded enough facts on causation, the Texas two-year limitations period had run, and bankruptcy proofs of claim were not enough for bankrupt companies. The court granted the motion. It held that only a factual basis for potential responsibility must be pleaded at this stage, and that the defendant would have to prove its case at trial. It treated Mr. Braxton's own bankruptcy proofs of claim as usable for pleading. It found the designations timely because the companies came from the plaintiff's own discovery. Mr. Braxton had testified that he installed asbestos-containing pipe made by CertainTeed and Johns Manville while working for Excavators & Constructors, Inc.

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 17, 2024
• Stage: Discovery or evidence ruling
• State: Delaware

Outcome. 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.

What the court held. Under Texas Civil Practice and Remedies Code § 33.004, a defendant need only plead a factual basis showing a third party's potential responsibility to designate it. A bankruptcy proof of claim can support that pleading, and a designation after limitations has run is not barred where the defendant timely disclosed the third parties.

Issues decided: Fault, Apportionment and Settlement Credits, Choice of Law, Statute of Limitations, Trial Procedure and Discovery, Asbestos Trust Claims in Court.

The people and their exposure

• Marvin Jerry Braxton, Jr.: mesothelioma; died

Who	Work	Where	When	Products
Marvin Jerry Braxton, Jr.	installed asbestos containing pipe (construction)			asbestos-cement pipe and sheet, asbestos containing pipe manufactured by Certain Teed and Johns Manville

The defendants

• J-M Manufacturing Company, 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.
• 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.

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.

LADONNA SUE BRAXTON, Individually and as Independent Executrix of the Estate of MARVIN

JERRY BRAXTON, JR., deceased.

C.A. No. N23C-02-129 ASB.

Submitted: November 15, 2024.

Decided: December 17, 2024.

Superior Court of Delaware.

ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO DESIGNATE RESPONSIBLE THIRD PARTIES

GRANTED.

Michael C. Smith, Esquire, Balick & Balick, Wilmington, Delaware, Attorney for Plaintiffs.

Paul D. Sunshine, Esquire, Reger Rizzo & Darnall, Wilmington, Delaware, Attorney for Defendant.

FRANCIS J. JONES, JR., Judge.

The instant case is an asbestos action where the sole defendant is J-M Manufacturing Company, Inc ("J-MM"). This case is governed by Texas law. Trial in this matter was originally scheduled to begin on December 9, 2024 and has since been moved to the February 2025 trial setting. On October 10, 2024, J-MM filed a Motion for Leave to Designate Responsible Third Parties. Texas law requires a defendant "who seeks to designate a person as a responsible third party to file a motion on or before the 60th day before the trial."[1]

Section 33.004 of the Texas Code provides that a defendant may designate a responsible third party that has not been sued by the plaintiff so that the trier of fact, as to each cause of action asserted, may determine the percentage of responsibility that each such person bears for causing the damages sought.[2] The responsible third parties are not limited to those who can be made parties in the traditional sense; responsible third parties may be persons or entities outside the court's jurisdiction, unable to be sued or even unknown. The filing or the granting of a motion for leave to designate a person as a responsible third or a finding of fault against the person does not by itself impose liability on the person.[3] Liability on a designated person still depends on the entity or person designating a third party to prove the essential elements of the claim against the designated party.[4]

Plaintiff opposes J-MM's designation on three grounds. First, Plaintiff contends that J-MM has not pled sufficient facts to show that any alleged exposure to Marvin Braxton associated with the third parties was a substantial factor in causing his mesothelioma. Second, Plaintiff maintains that J-MM became aware of Braxton's claims on July 11, 2022, and, under Texas's two-year statute of limitations, it had until July 11, 2024 to file claims against third parties. Third, Plaintiff maintains that the claims against any bankrupt third parties fail because bankruptcy trust proofs of claim alone are insufficient to place a bankrupt entity on the verdict form.

Plaintiffs maintain that J-MM has not pled sufficient facts to meet the requirements of Section 33.004(g)(1). A defendant seeking to designate responsible third parties must only show the factual basis demonstrating the party's potential responsibility for the claimant's damages to satisfy the pleading requirement of Texas law.[5] Texas is a fair notice state.[6] As long as a party is able to ascertain from the pleadings the nature of the basic issues and the type of evidence that might be relevant to the controversy, the pleading satisfies this standard.[7] Having considered J-MM's Motion, this Court concludes that J-MM has pled sufficient facts to satisfy the pleading requirements of the Texas Rules of Civil Procedure.[8] Plaintiff maintains that Defendant has not met its burden of showing that the exposure to each of the designated third parties doubled Mr. Braxton's risk of injury as a result of his exposure to satisfy Texas' substantial factor test. That is not the question that is presently before the Court. The question presently before the Court is whether Defendant's designation comports with Texas's pleading requirements. While I agree with Plaintiff that J-MM will eventually have to prove its case

against the third parties it seeks to designate,[9] that is an issue that will be decided after the conclusion of the evidence at trial. I am satisfied that at this stage Defendant has met the pleading requirements of Section 33.004.

In a similar vein, Plaintiff points to Defendant's reliance on certain proofs of claim of bankrupt entities and argues that the Defendant's reliance on these proofs of claim is insufficient to make out a prima facia case against the third party. While I agree with plaintiff that as to the bankrupt entities a proof of claim form is insufficient to meet its burden at trial, that is not what is before me. What is before me is whether the proof of claim form is evidence that J-MM can rely upon to meet its pleading burden under Section 33.004. I find that it is.

Plaintiff argues that Section 33.004 mandates that the third party designation be made within the period of time so that if Plaintiff chooses Plaintiff can add parties within the applicable statute of limitations. Defendant counters that his argument is contrary to the plain terms of the statute and case law interpreting the statute. Section 33.004 (d) provides: (d) A defendant may not designate a person as a responsible third party with respect to a claimant's cause of action after the applicable limitations period on the cause of action has expired with respect to the

responsible third party if the defendant has failed to comply with its obligations, if any, to timely disclose that the person may be designated as a responsible third party under the Texas Rules of Civil Procedure.

Section 33.004(d) clearly provides that a statute of limitations is only relevant "if the defendant has failed to comply with its obligation, if any, to timely disclose that the person may be designated as a responsible third party under Texas Rules of Procedure." The statute is silent as to what obligations mean as to the timing of the designation. While the statute is silent, case law is clear that a designation made after the statute of limitations has run on any claim the plaintiff can make against a designated party is not fatal.[10] In deciding whether the designation is timely, Texas Courts look to whether the plaintiff should have been aware of the potential responsibility of the responsible third party designee.[11] In the instant case, all of the entities that J-MM seek to designate flow from plaintiff's own discovery. Mr. Braxton testified that he installed asbestos containing pipe manufactured by Certain Teed and Johns Manville while he was employed by Excavators & Constructors, Inc. The union that Braxton worked for and the municipalities in which he worked were also the subject of his deposition. The bankrupt entities J-MM seeks to designate are the subject of bankruptcy proofs of claim forms completed by the Mr. Braxton himself. On this record, this Court concludes that J-MM has met is obligations to timely disclose its designated responsible third parties.

J-MM's Motion For Leave to Designate Responsible Third Parties is GRANTED.

IT IS SO ORDERED.

[1] TEX. CIV. PRAC. & REM. § 33.004(a).

[2] Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 864 (Tex. 2009).

[3] TEX. CIV. PRAC. & REM. § 33.004(i).

[4] Russell v. Big V Feeds, Inc., 2024 WL 4397908 (E.D. Tex. 2024).

[5] TEX. CIV. PRAC. & REM. § 33.011.

[6] Tex. R. Civ. P. 47(a)).

[7] In Re: YRC., 646 S.W.3d 805, 809 (Tex. 2022).

[8] Again, this finding does not mean that third parties designated make it the verdict sheet. Moreover, even if the pleading had not been sufficient the remedy, as required by the Texas statute, would be to give JM-M a chance to replead.

[9] In Re: Frank Coppola, 535 S.W.3d 506 (Tex. 2017); Russell v. Big V Fees, Inc., 2024 WL 3497908 (E.D. 2024). [10] In Re: Dakota Directional Drilling, Inc, 549 S.W.3d 288 (Tex. Ct. App. 2018); see also In Re: YRC d/b/a YRC Freight, 646 S.W.2d 805 (Tex. 2022).

[11] Id; Gespa Nicaragua v. Recom. AG, et. al., 2024 WL 4455677 (Tex. Ct. of App. 2024).

Sources

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