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Smith v. Advanced Auto Parts Inc.

Superior Court of Delaware, New Castle

December 30, 2013

CARLTON L. SMITH and LUCILLE SMITH, Plaintiff,
v.
ADVANCED AUTO PARTS, INC., et al., Defendants.

Submitted: October 29, 2013

Upon Defendants Genuine Parts Company and National Automotive Parts Association's Motion for Summary Judgment GRANTED

Kara Hager, Esquire, Napoli Bern Ripka Shkolnik LLP, Wilmington, Delaware, Attorney for Plaintiffs.

Paul A. Bradley, Esquire, and Stephanie A. Fox, Esquire, Maron Marvel Bradley & Anderson LLC, Wilmington, Delaware, Attorneys for Defendants Genuine Parts Company and National Automotive Parts Association.

Eric M. Davis Judge

Introduction

This is a products liability action brought by Plaintiffs Carlton and Lucille Smith against multiple defendants including Defendants National Automotive Parts Association ("NAPA") and Genuine Parts Company ("GPC").

The Complaint alleges that Mr. Smith contracted lung cancer as a result of exposure to asbestos and asbestos-containing products. The Smiths contend Mr. Smith was exposed to certain asbestos-containing automotive parts he purchased from a NAPA store which were supplied by NAPA and GPC. Specifically, the Smiths claim Mr. Smith was exposed to asbestos-containing automotive parts including engines, gaskets, brakes and/or clutches while performing shadetree automotive work from 1966 to 2006. Also, the Smiths claim occupational exposure to Mr. Smith when he worked as a welder for Bakers Equipment from 1966 to 1968, while working as a laborer for Shipment Rittmen from 1968 to 1970 and while working as a welder for Stanley Smith & Sons from 1970 to 1995. In the complaint, the Smiths explicitly do not allege "any exposure to asbestos on or after December 1986."[1]

On or about June 3, 2013, NAPA and GPC filed a motion for summary judgment (the "Motion"). The Smiths filed an opposition to the Motion on June 24, 2013. NAPA and GPC replied to the Smith's opposition on July 8, 2013. On October 29, 2013, the Court held a hearing on the Motion and took the matter under advisement. For the reasons set forth below, the Motion is GRANTED.

Factual Background[2]

NAPA is a trade association and does not actually own any automotive parts stores.[3]NAPA enters into licensing agreements with individual store owners, allowing the owners to sell NAPA parts and use the NAPA name and logo for advertising.[4] NAPA also allows its member stores to purchase NAPA parts through its distribution center.[5] Although independent retailers may sometimes put the name "NAPA" above their stores, these stores are only members of NAPA's trade association and are independently owned.[6]

GPC is a distributor of automotive parts. GPC buys products from other manufacturers and sells those products to members of NAPA through NAPA's distribution centers.[7] These parts either bear the NAPA name and colors, or the name of the original manufacturer.[8] For instance, brake pads distributed by GPC bore the name Rayloc before eventually switching to the NAPA logo and colors.[9] Likewise, gaskets distributed by GPC bore the name Victor originally, but eventually switched to the name NAPA.[10]

Although the individual stores that are NAPA members can distribute NAPA parts, they do not have exclusive contracts with NAPA and sell non-NAPA/GPC parts as well. [11] Also, some of the brands distributed by NAPA can also be sold through other distributors and manufacturers.[12]

Mr. Smith alleges he was exposed to asbestos from performing an estimated 40-50 brake jobs throughout his lifetime.[13] Further, Mr. Smith alleges that he purchased some of those brake products from a NAPA store. Throughout his deposition, Mr. Smith mentioned a store which he referred to as "NAPA, " "NAPA Standard Parts" and "Standard Parts." [14] In his deposition, Mr. Smith mentioned numerous times that the brakes he would purchase were Bosch and Bendix brand brakes.[15]

Mr. Smith testified he did work with gaskets on a weekly basis.[16] Mr. Smith stated that he purchased gaskets from "Standard Parts, Advance and Auto Zone."[17] Mr. Smith testified that the gaskets he purchased were Mr. Gasket and Victor brand gaskets.[18] Although Mr. Smith said that he could get them at any store, he could not provide which stores he purchased the Victor gaskets from.[19] Further, Mr. Smith could not specifically recall ever purchasing a Victor gasket from the "NAPA" store.[20] Mr. Smith also testified that he did not know what brand of gaskets he purchased at the "NAPA" Store.[21]

Mr. Smith stated that he performed clutch work about once a year.[22] Mr. Smith testified that he purchased clutches at the "NAPA" store. Although Mr. Smith said that Zoom was probably one of the brand names he used, he does not mention any other brands.[23] Mr. Smith had no specific recollection of purchasing clutches at the "NAPA" store.[24] Mr. Smith also could not say what brand name or manufacturer of clutches he purchased at the store.[25]

Mr. Smith also purchased parts from other auto parts stores, only using the "NAPA" store a fraction of the time. Throughout his deposition, Mr. Smith mentioned purchasing parts from numerous automotive part retailers.[26] Mr. Smith testified that he only purchased parts from the "NAPA" store 25% of the time, as opposed to the other retailers.[27]

Parties Contentions

NAPA and GPC contend that they are entitled to summary judgment because the Smiths cannot meet the standard required to establish product nexus – the "frequency, regularity and proximity" test for determining whether exposure is actionable. NAPA and GPC state that although Mr. Smith testified that he performed 40-50 brake jobs in his lifetime, he also testified that the brands of brakes he used were Bosch and Bendix. NAPA and GPC argue that GPC does not distribute brakes under the Bosch or Bendix names. Moreover, NAPA and GPC claim that NAPA does not own automotive parts stores. Therefore, NAPA and GPC argue that the Smiths have not produced any evidence establishing that NAPA and GPC are liable for exposure from Bosch or Bendix brakes.

NAPA and GPC also contend that there is insignificant evidence of exposure from gasket work attributable to their products. NAPA and GPC mention that the Smiths' alleged asbestos exposure was from Mr. Gasket and Victor brand gaskets bought from NAPA stores. NAPA and GPC argue that they are not liable for exposure to Mr. Gasket gaskets as GPC does not distribute Mr. Gasket gaskets and NAPA does not own stores. NAPA and GPC thus argue that these parts must have been purchased from an independent retailer, which may also sell automotive parts attributable to GPC and/or NAPA.

Finally, NAPA and GPC argue that despite the Smiths' assertion otherwise, the Smiths have not produced evidence that Victor gaskets were exclusively distributed by GPC to NAPA stores. NAPA and GPC claim that the evidence indicates that Victor gaskets could have been sold by other companies besides GPC. Further, NAPA and GPC argue that even assuming Mr. Smith used some Victor brand gaskets attributable to GPC, the Smiths fail to show more than a "casual" exposure to GPC's product. Therefore, the Smiths have not presented sufficient evidence to show an asbestos-containing product attributable to GPC or NAPA was a substantial contributing factor to Mr. Smith's lung cancer.

The Smiths argue that Defendants are not entitled to summary judgment because there is sufficient evidence that Mr. Smith was exposed to asbestos from products attributable to either GPC or NAPA. The Smiths claim that the record, viewed in the light most favorable to the Smiths, demonstrates that a genuine issue of fact exists as to whether Mr. Smith was exposed to asbestos-containing automotive parts purchased from a NAPA store that obtained those parts from GPC and NAPA. The Smiths contend that NAPA and GPC have put forth no evidence that Victor Gaskets were supplied by anyone other than GPC. The Smiths further argue that they have produced evidence of GPC's exclusive distribution of Victor gaskets to NAPA stores.

The Smiths also contend that, under South Carolina law, the Smiths do not need to prove exposure to a specific product over some extended time in a direct exposure case. The Smiths argue that, because Mr. Smith testified as to his personal use of NAPA and GPC products, the "frequency, regularity and proximity" test is not applicable in this case.

Standard of Review

The Court may grant a motion for summary judgment made pursuant to Superior Court Civil Rule 56 where the movant can show from the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, that no material issues of fact exist so that the movant is entitled judgment as a matter of law.[28] In considering a motion for summary judgment, the Court views the evidence in the light most favorable to the non-moving party.[29] The Court should deny summary judgment where, "a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint."[30]

However, to survive summary judgment, a plaintiff's claim must be based on more than mere speculation:

The presumption afforded the non-moving party in the summary judgment analysis is not absolute. The Court must decline to draw an inference for the non-moving party if the record is devoid of facts upon which the inference reasonably can be based. Where there is no precedent fact, there can be no inference; an inference cannot flow from the nonexistence of a fact, or from a complete absence of evidence as to the particular fact. Nor can an inference be based on surmise, speculation, conjecture, or guess, or on imagination or supposition.[31]

Therefore any inferences which are to be drawn in favor of the non-moving party must be based upon sufficient facts, such that the inference does not rise to the level of mere speculation.

In an asbestos cause of action, to establish proximate causation, "the plaintiff must introduce evidence which allows the jury to reasonably conclude that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result."[32] In Lohrmann v. Pittsburgh Corning Corp., the court applied a standard for evaluating the sufficiency of evidence of exposure in asbestos litigation. "To support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked."[33]

In Henderson v. Allied Signal, Inc., the South Carolina Supreme Court adopted the Lohrmann "frequency, regularity and proximity" test for determining whether exposure is actionable.[34] As this is a de minimis rule "a plaintiff must prove more than a casual or minimum contact with the product."[35] A plaintiff must meet this standard in order to present the issue of causation to a jury or withstand summary judgment.

Discussion

A. Plaintiffs have not satisfied the "frequency, regularity and proximity" test because they have failed to show frequent and regular exposure to an asbestos-containing product attributable to Defendants.

The Court holds that, on the facts here, the Smiths cannot meet the Lohrmann "frequency, regularity and proximity" test adopted by the South Carolina Supreme Court in Henderson v. Allied Signal, Inc. Based on the facts presented by the parties, particularly the transcripts of Mr. Smith's October 3, 2012 deposition, the Court holds that the Smiths cannot show more than a "casual or minimum contact" with a product that is attributable to either NAPA or GPC.

First, Mr. Smith does not allege any exposure from brake products which could be attributable to NAPA and GPC. Mr. Smith alleges he was exposed to asbestos from performing an estimated 40-50 brake jobs throughout his lifetime.[36] Further, Mr. Smith alleges that he purchased some of those brake products from a "NAPA" store, thereby rendering NAPA and GPC liable.

This store, as explained above, would have been an independently owned auto parts retailer who was a member of the NAPA trade association. This independent retailer would have sold products attributable to NAPA and GPC as well products attributable to other distributors and manufacturers. In his deposition, Mr. Smith mentioned numerous times that the brakes he would purchase were Bosch and Bendix brand brakes.[37] The brakes that came through NAPA and GPC distribution were labeled as either NAPA or Rayloc brand products.[38] The Smiths, however, have failed to present any evidence suggesting that either Bosch or Bendix brand brakes are attributable to NAPA or GPC. Therefore, Mr. Smith's testimony regarding brake jobs does not support his claims against NAPA and GPC for exposure to asbestos containing brakes.

Second, Mr. Smith cannot say that he used an asbestos containing gasket attributable to NAPA and GPC other than by speculation. Mr. Smith testified that the gaskets he purchased were Mr. Gasket and Victor brand gaskets.[39] The Smiths have presented no evidence which suggests that any Mr. Gasket product was ever distributed by NAPA and GPC. Therefore the only gaskets that could be attributable to NAPA and GPC would have been Victor brand gaskets. Further, only those Victor gaskets that were purchased at the independently-owned NAPA store could be attributable to NAPA and GPC. Further still, those gaskets would have had to have been distributed to the store by NAPA and GPC as opposed to another distributor or manufacturer.

Mr. Smith testified that he purchased gaskets from "Standard Parts, Advance and Auto Zone."[40] Mr. Smith also stated he could not recall the stores where he purchased the Victor gaskets.[41] Further, Mr. Smith testified that he could not specifically recall ever purchasing a Victor gasket from the NAPA store.[42] In fact, Mr. Smith testified that he did not know what brand of gaskets he purchased at the NAPA Store.[43] Based on this testimony, the Smiths cannot demonstrate, without speculating, that Mr. Smith ever purchased a Victor gasket from a NAPA store.

Mr. Smith also had no specific recollection of having actually removed a Victor gasket.[44]He explained that it was difficult to tell what kind of gasket was being removed after it had already been used.[45] Therefore, it would again require too much speculation for the Smiths to state that Mr. Smith was exposed to asbestos from a Victor gasket which he purchased at a NAPA store that was distributed by NAPA or GPC.

Third, Mr. Smith's alleged exposure from performing work on clutches cannot be attributed to NAPA and GPC without improper speculation. Mr. Smith stated that he performed clutch work about once a year.[46] Mr. Smith stated that he purchased clutches at the NAPA store. Although he states that Zoom was probably one of the brand names he used, he does not mention any other brands.[47] However, Mr. Smith had no specific recollection of purchasing clutches at the NAPA store.[48] Mr. Smith also could not say what brand name or manufacturer of clutches he purchased at the store.[49] Further, Mr. Smith has not presented any evidence that NAPA and GPC ever distributed Zoom brand clutches. Therefore, the Court finds any assertion that Mr. Smith was exposed to asbestos from a clutch distributed by NAPA and GPC to be speculative.

Fourth, Mr. Smith purchased parts not just from NAPA stores but also from various other auto parts stores. Throughout his depositions, Mr. Smith mentioned purchasing parts from numerous automotive part retailers.[50] Mr. Smith testified that he only purchased parts from the NAPA store 25% of the time, as opposed to the other retailers.[51] Therefore, those purchases from the NAPA store represented only a fraction of Mr. Smith's total automotive part purchases. As Mr. Smith testified he could not identify which products he purchased at what stores with any degree of certainty, Mr. Smith would be unable to say that he purchased Victor gaskets from the NAPA store without speculating.

Based on the arguments above, the Smiths cannot satisfy the requirements of the Lohrmann "frequency, regularity and proximity" test. To do so would require an inferential step resting on speculation rather than fact. The Smiths have identified no exposure from brakes that can be attributed to NAPA or GPC. Regarding exposure from gasket work, only Mr. Smith's work with Victor brand gaskets could be attributable to NAPA and GPC. Of the Victor gaskets that Mr. Smith used, however, only those bought at a NAPA store could potentially be attributable to NAPA and GPC. However, Mr. Smith could not specifically recall ever buying a Victor gasket at the NAPA store.

Mr. Smith also could not specifically recall buying a clutch from the NAPA store. Further, Mr. Smith could not state how many clutches he purchased at the NAPA store, nor could he recall which brands of clutches he purchased. The Smiths have failed to present any evidence which shows that Mr. Smith purchased or used a clutch that was distributed by NAPA or GPC. Furthermore, Mr. Smith testified that he only used this store for 25% of his automotive part purchases. Thus, any alleged exposure that might be attributed to products from NAPA and GPC is extremely speculative in nature and was not shown to have been regular or frequent to the extent necessary under the Lohrmann "frequency, regularity and proximity" test.

"The Court must decline to draw an inference for the non-moving party if the record is devoid of facts upon which the inference reasonably can be based."[52] Therefore, the Smiths do not show that Mr. Smith was exposed to a specific product of NAPA or GPC on a regular and frequent basis, as the Lohrmann test requires. As the Smiths' claim cannot satisfy the Lohrmann test, it cannot survive summary judgment.

B. Plaintiffs' claims for Strict Liability, Punitive Damages, Concealment and Misrepresentation, and Loss of Consortium fail because Plaintiff has not been able to show that Defendant's products caused Mr. Smith's lung cancer.

As illustrated above, the Smiths have not put forth sufficient evidence to satisfy the requisite causation standard to survive summary judgment. The Smiths cannot succeed on their Strict Liability, Punitive Damages, or Concealment and Misrepresentation claims without proving that products from NAPA and GPC caused Mr. Smith's injury. Based on the arguments above, the Smiths have not presented sufficient evidence to be submitted to a jury on the element of causation. Therefore, the Strict Liability, Punitive Damages, or Concealment and Misrepresentation claims must fail. Similarly, as loss of consortium is a derivative claim, it cannot survive without the underlying cause of action. Therefore Ms. Smith's claim for loss of consortium must fail as well.

Conclusion

Viewing the evidence in the light most favorable to the non-moving party, the Smiths have failed to present sufficient evidence to permit a jury finding that exposure to an asbestos-containing product attributable to NAPA and GPC was a substantial cause of Mr. Smith's lung cancer. Therefore, for the reasons stated above, the Motion is hereby GRANTED.

IT IS SO ORDERED.


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