Superior Court of Delaware, August 31, 2020
The plaintiff alleged that Raymond Petit, a deceased mesothelioma claimant, was exposed to asbestos from working with AMMCO brake arching and lathe machines during his time working at auto parts and auto body shops from 1981 to 1989. During his deposition, Petit testified that he “used the lathe to turn brake drums ‘several times a day,’ and would turn ‘maybe 20, 30 drums on a weekend.’” He also testified that he would grind brake shoes with sandpaper “occasionally,” which meant “a couple of times a day” or “maybe a couple of times a week.” Notwithstanding this testimony, Petit also testified that grinding the brake shoes was “not a regular occurrence” and “happened once in a blue moon,” though he specifically alleged that he breathed dust from the brake linings.
Defendant Hennessy Industries, LLC (AMMCO) moved for summary judgment on several grounds. First, the defendant argued that Petit misidentified its machines, identifying them as single units on tables, rather than two separate pieces. The defendant also argued that Petit spelled AMMCO incorrectly as “A-A-M-C-O.” The court denied the motion on this ground, finding that Petit sufficiently identified working with the AMMCO machines, and that the AMMCO images and descriptions matched his description.
The defendant also argued the bare metal defense, in that the AMMCO machines themselves did not contain asbestos. The defendant argued that summary judgment was warranted, as Petit failed to identify an asbestos-containing product manufactured by AMMCO. The court denied the motion on this ground as well, holding that Rhode Island law, which applied to the case, rejected the bare metal defense and instead required a fact-specific analysis as to whether the manufacturer had reason to know that its product would be used with an asbestos-containing one.
The defendant next argued that the ruling in Stigliano v. Westinghouse applied to the case, which holds that when a defendant manufactures both an asbestos-containing and non-asbestos-containing product during the time period of alleged exposure, in the absence of evidence linking the plaintiff to the asbestos-containing product, the court cannot draw an inference of exposure and summary judgment should be granted. It is incumbent, in this instance, on the plaintiff to put forth evidence that he or she was exposed to the asbestos-containing version of the product in order to overcome the motion. Here, Petit testified generally that he used Bendix brake products, but did not know, and rather “assumed” that they contained asbestos. The plaintiff submitted Bendix interrogatory responses from 2006 to support the position that the brakes contained asbestos. In response, the defendant submitted Bendix interrogatory responses from 2014, demonstrating that Bendix sold both asbestos and non-asbestos-containing brake during the relevant time period. In light of this, the court found that the plaintiff failed to submit any evidence showing that the specific Bendix products that Petit worked with in conjunction with the AMMCO machines contained asbestos, and as such, the plaintiff failed to meet the standard set forth in Stigliano, and summary judgment was warranted.
Finally, the defendant argued that the plaintiff was unable to satisfy the Lohrmann frequency, regularity, and proximity test, which was adopted by Rhode Island Courts in Sweredoski v. Alfa Laval, Inc., on the issue of causation. The defendant argued that there was no evidence that the dust identified by Mr. Petit as resulting from his work on the AMMCO machines contained asbestos. Rather, the dust was created by a metal-on-metal friction and would have been composed of metal shavings, not asbestos. The plaintiff did not rebut this argument by submitting any evidence or testimony that the dust indeed contained asbestos. As such, the court found that the plaintiff could not satisfy the Sweredoski standard. While the plaintiff submitted evidence of the frequency and regularity of his use of AMMCO machines, that evidence did not extend to the frequency and regularity of his exposure to asbestos in connection with such use. The defendant was thus entitled to summary judgment.