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In re Asbestos Litigation

Superior Court of Delaware, New Castle

March 25, 2015

IN RE: ASBESTOS LITIGATION
v.
CARRIER CORPORATION, et al., Defendants. DOROTHY A. PHIPPS, Individually And as Personal Representative of th Estate of RONALD G. PHIPPS, deceased, Plaintiffs,

Submitted: March 3, 2015

ORDER ON DEFENDANTS' MOTION FOR REARGUMENT OF THE ORDER DENYING SUMMARY JUDGMENT

PAUL R. WALLACE, JUDGE

AND NOW this 25th day of March, 2015, having read and considered Defendants' Motion for Reargument of the Order Denying Summary Judgment to Defendant Carrier Corporation ("Carrier") (D.I. #222; Trans. I.D. # 56649036), and the response thereto, IT IS HEREBY ORDERED that the Motion for Reargument is DENIED for the following reasons:

A motion for reargument under Superior Court Rule 59(e) permits the Court to reconsider its findings of fact, conclusions of law, or judgment.[1] However, it is not an avenue for the moving party to raise new arguments or rehash arguments already decided by the Court.[2] The moving party has the burden to demonstrate newly discovered evidence, a change in the law, or manifest injustice.[3] The motion will be denied unless the Court has "overlooked a controlling precedent or legal principles, " or "has misapprehended the law or facts such as would have changed the outcome of the underlying decision."[4] Upon a Rule 59(e) reargument motion, the Court "will determine from the motion and answer whether reargument will be granted."[5]

Carrier argues that the Court misapprehended salient facts when it denied its motion for summary judgment. Applying Delaware precedent, this Court found that a genuine issue of material fact existed as to Ronald Phipps's alleged exposure to asbestos from Carrier's products.

To survive a motion for summary judgment under Delaware law, the plaintiff must be able to show that "a particular defendant's asbestos-containing product was used at the job site and that the plaintiff was in proximity to that product at the time it was being used."[6] The plaintiff must present evidence of being in proximity to the asbestos product at the time it was being used; it is not sufficient for the plaintiff to merely identify the presence of the defendant's products at the work site.[7] Delaware law requires that the defendant's product to which plaintiff alleges asbestos exposure be friable, or "susceptible to releasing fibers which are capable of ingestion or respiration into the plaintiff's body."[8] The Court will not sustain a claim based on speculative exposure to the defendant's asbestos-containing product.[9]

Carrier contends that there is not sufficient evidence to show that Mr. Phipps was exposed to asbestos from its products during his work at the DuPont Stine- Haskell Lab. Carrier argues that because Mr. Phipps testified to working on compressors only in emergency situations and merely witnessed his co-worker, James Norem, work on Carrier compressors, Mr. Phipps was only potentially exposed to asbestos.[10] As to working with Mr. Norem, Carrier argues that Mr. Phipps witnessed Mr. Norem work on external components that were not manufactured by Carrier. And, Carrier says, even if it were liable for component products produced by another company, Mr. Phipps's exposure to asbestos from those products is still speculative. Not so.

Mr. Phipps testified there were five or six Carrier compressors at the work site.[11] He stated that new Carrier compressors were installed in the early 1960s, after he began work in 1952.[12] Mr. Phipps identified the Carrier compressors by their shape, color, and nameplate.[13] While Mr. Phipps stated that he only personally took the compressors apart when the others "needed a hand"[14] and that there was no dust produced when he observed Mr. Norem's seal replacement work, [15] he also testified that he oversaw Mr. Norem's dismantling and overhauling of Carrier compressors "many times."[16] He further stated that he witnessed Mr. Norem work on gaskets external to Carrier compressors and he believed those gaskets contained asbestos.[17] In addition, an affidavit from Bruce Temple, who also worked at Mr. Phipps's site and alongside Mr. Norem, indicates Mr. Phipps may have worked on asbestos-containing products. In his affidavit, Mr. Temple stated that he and Mr. Norem removed old asbestos insulation from inside and outside Carrier Chiller units and were therefore exposed to asbestos.[18]

Plaintiffs presented enough evidence to survive Carrier's motion for summary judgment. Mr. Phipps's testimony identifies Carrier's products at the job site and establishes that he was in proximity to Carrier's products while they were being serviced. The credible evidence in this case, at this stage, suggests that the asbestos in Carrier's compressors was likely friable when those units were being taken apart, dismantled, or overhauled as Mr. Phipps witnessed. Because the Carrier compressors were new when installed, the evidence in this case, at this stage, suggests that Mr. Phipps worked on or in close proximity to Carrier components. Plaintiffs have set out sufficient facts to show Mr. Phipps' alleged exposure is not based on mere speculation, conjecture or surmise.

Carrier has presented no newly discovered evidence. Nor has Carrier demonstrated that the Court misapprehended the law or facts such that the outcome of the Court's summary judgment ruling would have been different. Consequently, Carrier's motion for reargument is DENIED.

IT IS SO ORDERED.


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