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In re Asbestos Litigation

Superior Court of Delaware, New Castle

August 30, 2013

IN RE ASBESTOS LITIGATION Dorothy Phillips Limited to: Hoffman/New Yorker Inc.

Kara Hager, Esquire Napoli Bern Ripka Shkolnick LLP Wilmington, DE Counsel for Plaintiff Dorothy Phillips.

Jonathan L. Parshall, Esquire Murphy & Landon Wilmington, Delaware Counsel for Defendant Hoffman/New Yorker.

MEMORANDUM OPINION

JOHN A. PARKINS, JR., JUDGE

Plaintiff Dorothy Phillips worked at the Crewe Garment Factory in Crewe, Virginia, first as a secretary and then as a garment presser. She died from mesothelioma in October 2012. Defendant Hoffman/New Yorker manufactured machines for steaming and pressing fabric. The presses used pads for smoothing fabric. Phillips alleges asbestos exposure from these pads, which the garment pressers had to change often, and asserts that Hoffman is responsible for any exposure which resulted from replacement pads containing asbestos. Plaintiff further alleges Hoffman is liable for failure to warn of the dangers posed by using replacement pads containing asbestos.

For its part Hoffman argues that it is entitled to summary judgment because Virginia law does not impose a duty on the original manufacturer to protect users from exposure to asbestos from replacement parts sold by a third part. Alternatively Hoffman argues there is no evidence that Mrs. Phillips was exposed to asbestos from replacement pads.

The court agrees with Plaintiff that Virginia law imposes liability for exposure to asbestos from replacement parts. The record is unclear as to whether Mrs. Phillips was exposed to asbestos from replacement parts. In the exercise of its discretion the court will therefore deny Hoffman's motion.

FACTS

Dorothy Phillips worked as a secretary at the Crewe Garment Factory from 1959-1967 and then as a garment presser from 1968 until 1992, when the factory closed. Crewe is a small town in southern central Virginia, and the factory there made children's dresses.[1]

When working as a garment presser, Mrs. Phillips ran completed clothing through a steam press in order to remove wrinkles from the garments. At least one, and perhaps more, of the steam pressers at the Crewe facility was manufactured by Hoffman. All steam presses are equipped with a device known as a pressing pad, which came in contact with the clothing. New Hoffman presses are equipped with a starter press pad which is not manufactured by Hoffman.

Press pads need to be changed frequently, usually every two to four weeks. The Hoffman manual recommended changing the pad needed to be replaced when it became "hard, burned, powdery, worn or uneven" and that it should be replaced "us[ing] identical padding to the original factory installation." As mentioned Hoffman does not manufacture pads and rarely sells replacement pads to customers. Several entities apparently make press pads which fit Hoffman presses, and typically owners purchase replacement pads from one of these manufacturers.

Changing a press pad can be dirty business. The evidence in the record indicates that the process is dusty and that press pad fibers fill the air. There is no evidence in the record that Mrs. Phillips ever changed a starter pad supplied by Hoffman. However there is evidence that she changed replacement pads manufactured by others and presumably was exposed to dust and fibers as a result. Plaintiff contends that Mrs. Phillips was exposed to asbestos while changing these pads and that this exposure was a proximate cause of her fatal mesothelioma.

Two issues lie at the core of Hoffman's motion. First, under Virginia law does Hoffman have a duty of care extending to replacement pads it did not sell? If the answer is affirmative, then the court must resolve Hoffman's contention that there is no evidence that the replacement pads to which Mrs. Phillips was exposed contained asbestos.

Plaintiff bases this recommendation of using the same padding as the original used by Hoffman as the basis of a claim for liability for foreseeable injury. Edward Phillips identified the pads most often used on the Hoffman press as being tan, and recalled the name "ALLIANZ" brand on the pads. Plaintiff contends that Defendant's statement that it most often used Resillo pads, which were tan and contained asbestos until 1976, confirms Dorothy Phillips' asbestos exposure from garment press pads. Plaintiff identified the area ...


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