West Virginia Law Applied in Granting Summary Judgment Due to Speculative Testimony” Delaware Superior Court, June 28, 2018
DELAWARE — The plaintiff’s decedent, Marchie Dolley, a lifetime non-smoker, passed from lung cancer. The sole product identification witness was his son, Ringo, who testified about his father’s work as a truck mechanic at Ryder Truck Rental and General Truck Delivery. Ringo visited his father at the former job and later worked with him at the latter. He could not offer any specific testimony about how many times he worked on certain manufacturer’s trucks at either job, or whether original or replacement parts were used.
PACCAR moved for summary judgment. The court applied West Virginia law due to the location of the exposure. No West Virginia court has addressed the issue of causation in an asbestos context. After addressing each party’s arguments as to which standard would be applied, the court ruled that such a determination was inconsequential because the plaintiff failed to meet either test. The court stated that “the record does not contain any evidence of even approximate numbers of Peterbilt or Kenworth trucks on which Mr. Dolly worked at either Ryder or General Delivery, or how frequently he worked on them.” Accordingly, the court found the evidence presented was speculative at best, and granted PACCAR’s motion for summary judgment.