In Re: Asbestos Litigation. Kenneth Carlton. Limited to Crane Co.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
IN RE ASBESTOS LITIGATION:
Limited to: Crane Co.
C.A. No. N10C-08-216 ASB
Joseph J. Rhoades, Esquire
Stephen T. Morrow, Esquire
Law Office of Joseph J. Rhoades
Counsel for Plaintiff Kenneth Carlton
Francis C. Gondek, Esquire
Nicholas E. Skiles, Esquire
Swartz Campbell LLC
Counsel for Defendant Crane Co.
JOHN A. PARKINS, JR., JUDGE
Plaintiff, Kenneth Carlton, served in the US Navy and worked at a
Schenley Distillery as a boiler tender. Plaintiff alleges asbestos exposure from
Defendant’s, Crane Co. (“Crane”), valves, pumps, and steam traps. Defendant
moves for summary judgment for product nexus, replacement parts, and
Based on the reasoning below summary judgment is
GRANTED as to product nexus with original asbestos-containing parts,
DENIED IN PART and GRANTED IN PART as to replacement parts not
supplied by Crane, and DENIED as to punitive damages.
The relevant work history for this motion is that Plaintiff worked as a
boiler tender in the US Navy from 1955-1958 and at the Schenley Distillery in
Delano, California from 1959-1968. He served on board the USS Princeton,
USS Neches, and USS Mattaponi. While in the navy Plaintiff recalled working
on Crane pumps, valves, and steam traps which had been installed on these
ships prior to Plaintiff’s arrival. Plaintiff worked on the insulation, gaskets, and
the packing of the valves which he contends exposed him to asbestos dust.
The valves were installed on the ships before Plaintiff began working on them.
He did not know the prior maintenance history of the valves or whether he ever
worked on original Crane parts. He also did not know the manufacturer of the
packing, gaskets, or insulation he removed and replaced except that he recalled
John Crane as a manufacturer of replacement packing. Plaintiffs’ expert, Capt.
Moore, testified he would not expect any of the pertinent gaskets and packing
to be original at the time Plaintiff worked on them.
Plaintiff testified his work at the Schenley Distillery that was similar to
that he did with the navy. Much of his testimony regarding the distillery was
Initially in his discovery deposition Plaintiff testified he could not
recall the manufacturer of any of the pumps or valves at the distillery. 1 Three
months later when asked whether he had specific recollection of working on
Crane valves at the distillery, he replied in the affirmative. 2 The plaintiff has
provided no evidence, however, that those Crane valves contained asbestos or
that he was exposed to asbestos dust from Crane products at the distillery.
STANDARD OF REVIEW
In considering a motion for summary judgment the court views the facts
in the light most favorable to the nonmoving party and will only grant summary
judgment when “the moving party has demonstrated that there are no material
issues of fact in dispute and that the moving party is entitled to judgment as a
matter of law.” 3
The question of whether a legal duty exists “is always a
question of law and never one for the jury.” 4
Judge Slights examined the burden issue for Asbestos cases in In re
Asbestos Litigation: Helm. 5 The moving party bears the initial burden that the
Discovery Deposition Sept. 15, 2010, at 103:18-23.
Discovery Deposition Dec. 15, 2012, at 713:1-5.
Bantum v. New Castle County Co-Tech Educ. Ass’n, 21 A.3d 44, 48 (Del. 2011) (citations omitted).
Yanmar Co. Ltd. v. Slater, __ S.W.3d __, 2012 WL 309599, at *16 (Ark. 2012) (citations omitted).
Helm, 2007 WL 1651968 (Del. Super).
undisputed facts support its motion. 6
In a properly supported motion, the
burden then shifts to the non-moving party to show genuine issues of material
fact. 7 This court later opined in a case similar to the one at bar:
Where, as here, a motion for summary judgment is premised on an
assumption that the plaintiff did not work on original asbestoscontaining parts, the moving party must offer evidence supporting
a reasonable inference that the original asbestos parts were no
longer on the valve at the time the plaintiff worked on it. The mere
age of the device, without more, is insufficient to support such an
inference for purposes of summary judgment. 8
PRODUCT NEXUS ANALYSIS
The parties stipulated that Arkansas substantive law applies to this case.
The Arkansas Supreme Court has laid out the state’s product nexus standard:
We conclude that the “frequency, regularity, and proximity” test is
the correct test to apply in this case, and we adopt it. Under this
test, to survive a motion for summary judgment, [Plaintiff] was
required to prove the following elements: (1) [Plaintiff] was exposed
to a particular asbestos-containing product made by [Defendant],
(2) with sufficient frequency and regularity, (3) in proximity to
where he actually worked, (4) such that it is probable that the
exposure to [Defendant’s] products caused [Plaintiff’s] injuries. 9
Viewing the evidence in the light most favorable to Plaintiffs, a
reasonable jury could infer that Plaintiff worked on Crane products while with
the navy, which contained asbestos-containing parts when sold to the navy.
The first issue is whether those were original parts. Plaintiff has the burden at
Id. at *16 (citing Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979); Ebersole v. Lowengrub, 180 A.2d 467, 470
Helm, 2007 WL 1651968, at *16 (citing Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995)).
In re Asbestos: Howton, C.A. No. N11C-03-218 ASB, at 7-8 (Del. Super Apr. 2, 2012) (Parkins, J.).
Chavers v. Gen. Motors Corp., 70 S.W.3d 361, 369 (Ark. 2002) (citing Jackson v. Anchor Packing Co., 994 F.2d
1295 (8th Cir. 1993)).
trial of establishing that Plaintiff worked with original asbestos-containing
products manufactured by Defendant and was thus exposed to asbestos.
However, at this stage the initial burden rests with Defendant to show the
undisputed facts support a finding in its favor as a matter of law. 10 The court
finds for purposes of this motion that at least some of Defendant’s products
originally contained asbestos and while in the navy Plaintiff came in contact
with those products years later. Plaintiff’s own expert witness testified that he
would not expect original asbestos-containing parts to still be in the Crane
products by the time Plaintiff worked on them.
Accordingly, Defendant has
met its burden of showing that the original asbestos-containing parts were
removed prior to Plaintiff’s exposure to the valves and a reasonable jury could
not find otherwise without speculating.
The evidence is less clear as to whether Plaintiff actually worked on
Crane products at the distillery. He testified initially that he could not recall.
Three months later he responded yes when counsel asked if he worked on any
Crane products at the distillery. Assuming for the purposes of this motion that
he may have worked on Crane products at the distillery, there is no evidence in
the record to establish that he was exposed to asbestos from those products as
required under Arkansas law. The court is not aware of any specific evidence
that the Crane products on which Plaintiff may have worked at the distillery
contained asbestos. In order to find that was the case, the court would have to
rely on general testimony that Plaintiff’s work at the distillery was similar to his
Helm, 2007 WL 1651968 at *16 (citing Moore, 405 A.2d at 680; Ebersole, 180 A.2d at 470).
work with the navy. This would require the court to speculate that the Crane
products at the distillery contained asbestos and Plaintiff was exposed to Crane
original asbestos-containing products, which is not permitted to do.
A reasonable jury could not find by a preponderance of the evidence
without speculating that Plaintiff came in contact with an original “asbestoscontaining product made by [Defendant]” in the navy or at the distillery and
certainly could not find it happened “with sufficient frequency and regularity”
to meet the Arkansas product nexus standard. 11
judgment is GRANTED as to product nexus with original parts.
Arkansas courts have not addressed the specific issue before the court—
namely, whether Crane owes a duty to Plaintiff for asbestos-containing
replacement parts added to its products after sale. Therefore, the court must
predict how the Arkansas Supreme Court would rule on this issue.
A. STRICT LIABILITY
Plaintiffs bring claims sounding in negligence and strict liability.
Arkansas legislature adopted strict liability in products liability cases. 12
adopting the Restatement, the legislature “broadened the scope of strict liability
in two important respects: by substituting ‘supplier’ for ‘seller’ and injury to
Chavers, 70 S.W.3d at 369.
See Berkeley Pump Co. v. Reed-Joseph Land Co., 653 S.W.2d 128, 131 (Ark. 1983).
‘persons and property’ for ‘users’ or ‘consumers.’” 13 However, the issue at bar
does not fall under the strict liability statute for suppliers. The statute requires
“[t]he supplier is engaged in the business of manufacturing, assembling,
selling, leasing, or otherwise disrupting the product,” 14 but Defendant here did
not supply the asbestos-containing product at issue which was added to its
product after sale. Accordingly, under Arkansas law Defendant cannot be held
strictly liable for company’s replacement parts added to its products after sale
and summary judgment is GRANTED IN PART.
Turning to the negligence claim Defendants direct the court to several
cases in other jurisdictions regarding this issue, but as to Arkansas law
Defendant relies completely on the product nexus standard in Chavers. The
Chavers court required a showing that “[Plaintiff] was exposed to a particular
asbestos-containing product made by [Defendant].” 15 However, the court was
considering product nexus and not duty. This court would have to take that
statement out of context to find it stood for the proposition that no duty was
owed in this case. Plaintiffs direct the court to two Arkansas Supreme Court
cases 16 for the proposition that Arkansas depends solely on a foreseeability
analysis in determining whether a duty is owed and thus Defendant owed a
A.C.A. § 4-86-102(a)(1).
Chavers v. Gen. Motors Corp., 70 S.W.3d 361, 369 (Ark. 2002) (citing Jackson v. Anchor Packing Co., 994 F.2d
1295 (8th Cir. 1993)).
Coca-Cola Bottling Co. of Memphis, Tenn. v. Gill, 100 S.W.3d 715 (Ark. 2003); Jordan v. Adams, 533 S.W. 2d
210 (Ark. 1976).
duty in this case for the asbestos-containing products added to its product
The Arkansas Supreme Court considered duty in Jordan v. Adams. In
that case Defendant threw a purse containing a loaded gun which discharged
injuring the plaintiff. The court relied on foreseeability analysis in considering
duty. In considering foreseeability the court looked at whether the defendant
could “foresee an appreciable risk of harm to others.” 17 The court found the
jury could have inferred Defendant should have known the gun may have been
in the purse and therefore the resulting injury was foreseeable. 18
upheld the verdict. 19
Plaintiffs also direct the court to the Supreme Court’s decision in CocaCola Bottling Co. of Memphis, Tennessee v. Gill which is a product liability case.
The Gill court discussed the Jordan decision and applied some of its reasoning
to the defendant who had delivered one of its concession trailers for a school
event. 20 The plaintiff was injured by an electrical shock from the trailer. 21 The
court engaged in foreseeability analysis in its determination of duty. 22 Based
on the cases presented by the parties and the court’s independent research,
the court finds when considering duty under a traditional negligence claim
Arkansas law relies on foreseeability analysis and not public policy grounds as
many other jurisdictions do. The court cannot find as a matter of law based on
Jordan, 533 S.W.2d. at 213 (quoting Cobb v. Indian Springs, Inc., 522 S.W.2d 383, 388 (Ark. 1975)).
Id. at 215.
Gill, 100 S.W.3d at 718.
Id. at 724-25.
the current record that Defendant did not “foresee an appreciable risk of harm
to others” 23 from other manufacturers’ replacement parts.
summary judgment is DENIED IN PART as to the negligent failure to warn
claim for replacement parts.
Defendant moved for summary judgment on punitive damages asserting
Plaintiffs have not made a sufficient showing as to willful and wanton conduct.
dangerousness of asbestos at the relevant time and continued to sell products
without warnings in reckless disregard of the consequences.
Supreme Court has explained, “The failure to cite any authority in support of a
legal argument constitutes a waiver of the issue on appeal.” 24 This court has
These principles apply with equal force to papers filed in this
Court . . . [I]n all but the simples motions, counsel is required to
develop a reasoned argument supported by pertinent authorities
. . . Counsel are on notice that henceforth this Judge will
summarily deny any motion filed by a represented party involving
a question of law or the application of law to fact in which the
party does not meet this standard. 25
Defendant did not offer any authority to support its argument. Accordingly,
Defendant’s motion for summary judgment for punitive damages is hereby,
Jordan, 533 S.W.2d at 213 (quoting Cobb, 522 S.W.2d at 388).
Flamer v. State, 953 A.2d 130, 134 (Del. 2008) (emphasis in original).
Gonzalez v. Caraballo, 2008 WL 4902686, at *3 (Del. Super.) (Parkins, J.).
Based on the reasoning above summary judgment is GRANTED as to
product nexus for original asbestos-containing parts, DENIED IN PART AND
GRANTED IN PART as to the replacement parts supplied by other
manufacturers, and DENIED as to punitive damages.
IT IS SO ORDERED.
Dated: June 1, 2012
Judge John A. Parkins, Jr.