The plaintiffs filed suit in the Superior Court of Delaware claiming that Amanda Dullinger was secondarily exposed to Defendant Abex LLC’s asbestos containing brakes while she was a child causing her to develop mesothelioma. The plaintiff’s mother, Tammy Allen, was the plaintiffs’ primary product identification witness. Ms. Allen testified that Ms. Dullinger was present when automotive work was done between 1982 and 1986. Specifically, Ms. Dullinger testified that “Apex” brakes were one of the top three brands of brakes used around Ms. Dullinger. Further, she believed the “Apex” brakes were fully assembled brake shoes and the box said the brakes contained asbestos.
Abex argued that it was entitled to summary judgment based on Ms. Allen’s testimony. The core of Abex’s argument was that the plaintiff lacked product identification evidence because the product identification witness, Ms. Allen, identified the brakes as “Apex” and not “Abex.” The defendant also argued that Abex never manufactured fully assembled passenger vehicle brake shoes like Ms. Allen identified.
The court applied New Hampshire substantive law to this matter. Abex argued that under New Hampshire law, the substantial factor test applies, and the plaintiffs were unable to show that the defendant’s actions were a “substantial factor in bringing about the harm.” The court granted Abex summary judgment, stating, “At no point did Ms. Allen ever use the word “Abex,” and this product identification is insufficient. Even if this Court determines that “Apex” was sufficient product identification, viewing the evidence in a light most favorable to Plaintiffs, the Court finds that there are no genuine issues of material fact. Defendant’s offered testimony from a 2014 Abex trial stating that Abex sold brake linings, and not fully manufactured brakes.”