Superior Court of Delaware, March 28, 2022
In this asbestos action, plaintiff Shelley Droz alleged that her husband, Eric Droz, was diagnosed with mesothelioma as a result of his exposure to asbestos while using an arc grinding machine to resurface brake shoes. She alleged that Hennessy’s predecessor-in-interest manufactured the arc grinding machine, and further alleged that Hennessy knew that the grinding process generated asbestos-containing dust, and had a duty under Washington State law to warn Mr. Droz about the potential dangers of exposure to asbestos dust. The Superior Court of Delaware granted Hennessy’s summary judgment motion, holding that once Hennessy showed that the arc grinder could be used with asbestos-containing and asbestos-free brake shoes, the burden shifted to Ms. Droz to show that Mr. Droz used asbestos-containing brake shoes with the arc grinder. The Superior Court agreed with Hennessy that Mr. Droz did not offer sufficient evidence of exposure to brake shoe asbestos dust to counter Hennessy’s summary judgment motion.
The plaintiff appealed, and the issues on appeal are whether the Superior Court misapplied Superior Court Rule 56’s burden-shifting framework, and, once the burden shifted to the plaintiff to raise a genuine issue of material fact, whether Ms. Droz presented evidence demonstrating that Mr. Droz used asbestos-containing brake shoes with arc grinder.
The Appellate Court noted that while in high school between 1971 to 1973, Mr. Droz was employed by a small, full-service auto shop called Larry’s Auto Repair. Mr. Droz serviced car brakes, and used a tool called an “arc grinder.” An arc grinder grinds a brake shoe’s outer surface for a proper fit of the brake shoe against the brake drum. While Mr. Droz used the arc grinder to grind many types of brake shoes, he identified only three specific brands–Bendix, Wagner, and Raybestos. All three companies sold brake shoes in the early 1970s that contained asbestos. Therefore, the court found that it was “overwhelmingly likely” that Mr. Droz used the arc grinder with asbestos-containing brake drum shoes from the three brake shoe manufacturers that he identified.
The Appellate Court further noted that the Superior Court’s decision in Stigliano v. Westinghouse serves as a proper framework to apply Rule 56 to product identification disputes in asbestos exposure cases. In Stigliano, the plaintiff alleged he was exposed to asbestos welding rods manufactured by Westinghouse Electric Corporation. Westinghouse moved for summary judgment. The court had to decide “whether a genuine issue of material fact existed with respect to the plaintiff’s exposure to an asbestos-containing product manufactured, sold, or distributed by Westinghouse. The plaintiff claimed that he was exposed to, and only worked with, Westinghouse welding rods made with asbestos. However, the record showed that the plaintiff also worked with other welding rods and that Westinghouse manufactured both asbestos-containing and non-asbestos containing welding rods when the plaintiff claimed exposure. Summary judgment was granted to Westinghouse and the court noted that when the record reveals that a defendant manufactured both asbestos-containing and non-asbestos containing versions of a product during the time period of alleged exposure, in the absence of evidence directly or circumstantially linking the plaintiff to the asbestos-containing product, the court cannot draw the inference of exposure and summary judgment on product nexus must be granted.
The Appellate Court noted that the Superior Court properly allocated the summary judgment burdens. Under Stigliano, and as required by Rule 56, the defendant has the initial burden. It must show that it manufactured an asbestos-containing and an asbestos-free product at the time of alleged exposure. If the defendant makes this showing, the burden shifts to the plaintiff to show through direct or circumstantial evidence that a genuine issue of material fact exists as to whether the plaintiff was exposed to the defendant’s asbestos containing product. However, the Appellate Court reversed the Superior Court ruling in this case, finding that Ms. Droz met her burden to raise a genuine issue of material fact as to whether Mr. Droz was exposed to asbestos dust from using the arc grinder with asbestos-containing brake drum shoes when she offered evidence that Mr. Droz used Hennessy’s arc grinder on brake shoes sold by two manufacturers who, at the time of exposure, sold only asbestos-containing brake shoes.
Therefore, the Superior Court’s decision granting Hennessy’s motion for summary judgment was reversed and the case remanded.