Plaintiff Robert Lee Winhauer filed an asbestos action in the Delaware Superior Court against multiple defendants, asserting personal injury claims relating to a mesothelioma diagnosis proximately caused by alleged exposure to asbestos. The defendants removed the action to the U.S. District Court for the District of Delaware. After Winhauer’s death, the complaint was amended to substitute a representative of the estate and add a wrongful death claim. The defendants Honeywell (successor in interest to Bendix) and Ingersoll Rand both filed motions for summary judgment, which are the basis for this decision.
The plaintiff alleged that Mr. Winhauer developed mesothelioma as a result of exposure to asbestos-containing products while performing automotive maintenance work during his employment in a shipyard in Mississippi from the 1940s through 1990s. All product identification evidence was elicited from Mr. Winhauer’s deposition prior to his death.
Specific to this decision, Mr. Winhauer testified that he used either Bendix or remanufactured brakes when doing brake work on his twelve personal automobiles. Although he knew some of the brakes he worked with were Bendix brand, he could not provide any details as to the amount, make, or model of the cars on which eh recalled installing Bendix brakes. Honeywell filed for summary judgment asserting that “mere speculation is not enough for Plaintiff to demonstrate frequent, regular, and proximate exposure to asbestos-containing Bendix brakes. Moreover, any exposure that may have occurred is de minimis.” The plaintiff responded that Mr. Winhauer was exposed to significant amounts of asbestos as a result of completing 12 brake jobs on personal automobiles with Bendix Brakes, each requiring four to five hours to complete. Additionally, the frequency, regularity, and proximity analysis is relaxed in mesothelioma cases.
The court ultimately granted Honeywell’s motion for summary judgment, and held there was no precedent based on Mississippi law to support the assertion that the frequency, regularity, and proximity standard should be relaxed in this case. Instead, the plaintiff must show “proof of exposure to the product, on a regular basis, over an extended period of time and in proximity to where Mr. Winhauer actually worked. Additionally, any “inferences must be supported by facts in the record, not by speculation or conjecture.” As such, the court found the evidence in the record was merely colorable and not significantly provable. Accordingly, there was no genuine issue of material fact as to the frequency, regularity, and proximity of Mr. Winhaur’s exposure to Bendix Brakes, and the court granted summary judgment in Honeywell’s favor.
With respect to Ingersoll Rand, Mr. Winhauer testified that he did infrequent maintenance work to air compressors. He could not recall the name of the manufacturer of the compressors but answered affirmatively when counsel asked if they were Ingersoll compressors. Mr. Winhauer later testified that the compressors may have been manufactured by Allis Chalmers. Ingersoll filed for summary judgment asserting that is it speculative to assume that the air compressors at issue were issued by Ingersoll. Further, there was no evidence that Mr. Winhauer was exposed to asbestos from working at the alleged air compressors. The plaintiff responded that the cumulative exposure to Ingersoll’s air compressors, despite Mr. Winhauer’s “mistaken” identification of Allis Chalmers as the compressor manufacturer, is sufficient to satisfy the frequency, regularity, and proximity test under a lessened standard for mesothelioma cases.
The court also granted Ingersoll’s motion for summary judgment. It held that “mere proof that the plaintiff and a certain asbestos product are at the shipyard at the same time, without more, does not prove exposure to that product.” Further, the plaintiff cannot establish that Mr. Winhauer was exposed to an asbestos-containing Ingersoll product with the requisite frequency, regularity, and proximity.