On January 17, 2017, the Superior Court of Delaware, New Castle denied RCH Newco II LLC’s (Newco) motion for summary judgment. The plaintiff, Jessie Hastings, alleged that he contracted colon cancer as a result of his exposure to Newco’s asbestos-containing product, Galbestos. Galbestos was a material that protected metal and roofing products. Mr. Hastings was the only product identification witness and testified in two depositions.
In his first deposition, Mr. Hastings testified that he began working at DuPont’s Chestnut Run facility in 1951-52. He testified that he did not recall working with asbestos material at this facility, but was around other trades that may have used asbestos-containing products. He continued that he was later a foreman at Chestnut Run and another DuPont facility known as the Experimental Station. Mr. Hastings also testified that he came into contact with insulated panels at DuPont’s Glasgow Pencader site for six months in the 1980s. At that time, he could not recall the manufacturer of the panels. Last, Mr. Hastings testified that he was an ironworker foreman at Lukens Steel in 1985. Mr. Hasting’s work history sheet listed the presence of Galbestos at Lukens, however, Mr. Hastings did not identify any manufacturers of asbestos-containing material at Lukens.
A month later, Mr. Hastings gave his second deposition. However, when Plaintiff’s Counsel asked if Mr. Hastings associated any products at Chestnut Run, he testified, “”We put aluminum siding on it. I can’t think of the name of it now. I don’t know. It was a, corrugated siding. It had a coating, kind of brownish-red coating on it. Hmm. Fab, Fabestos or something like that.” The plaintiff’s Counsel interjected, and asked if he meant, “Galbestos?” Mr. Hastings affirmed that Galbestos was the name of the product. Mr. Hastings stated the he never personally cut the siding but he supervised other ironworkers doing so. He further testified that the siding work was a small percentage of time compared to his other tasks.
Newco filed for summary judgment contending that: (1) Mr. Hastings’ testimony is internally inconsistent partially as a result of an impermissible leading question from his lawyer and does not create a genuine issue of material fact; and (2) absent his inconsistent testimony on Galbestos exposure, he cannot state a valid claim under Delaware law to survive summary judgment on the issue of product nexus. Under Delaware’s product nexus standard, the plaintiff is required to “proffer some evidence that not only was a particular defendant’s asbestos containing product present at the job site, but also that the plaintiff was in proximity to that product at the time it was being used.” This “time and place standard” requires plaintiff show “some evidence” of both “daily and continuous proximity” to defendant’s product for more than a de minimis period of time.
The court analyzed Mr. Hastings’ testimony using the reasoning of Edmisten v. Greyhound Lines, Inc. In Edmisten, The court held that, where the “plaintiff’s testimony is so inconsistent that no reasonable juror could accept it, that testimony will not be credited as raising a genuine issue of material fact to overcome a defendant’s summary judgment motion.” The court distinguished this matter from Edmisten stating, “Hastings’ testimony does not reach the level that no reasonable juror could accept his recollection of his expo-sure.”
While the testimony is inconsistent, those inconsistencies should be addressed at trial, the plaintiff presented some evidence that Mr. Hastings was exposed to Galbestos at several jobsites. The court found Newco did not meet its burden of proving no genuine issues of material fact existed and accordingly denied Newco’s motion for summary judgment.