Defendant Cleaver Brooks Motion for Summary Judgment.
Honorable Calvin L. Scott, Jr. Judge.
Dorothy Charbonneau cannot satisfy the summary judgment
criteria. Plaintiff Dorothy Charbonneau (hereinafter
"Plaintiff") alleges that her husband, Robert
Charbonneau, was exposed to asbestos from Defendant
Cleaver-Brooks boilers working as a maintenance man in
Massachusetts. Mr. Charbonneau worked as a maintenance man
for Greeting Cards in Webster, Massachusetts from 1957 to
1960. He stated that he believes he was exposed to asbestos
from replacing gaskets and refractory on the boilers. Mr.
Charbonneau was responsible for maintaining the boilers and
testified that he worked on two Cleaver-Brooks boilers.
Following his work at Greeting Cards, Mr. Charbonneau worked
at Hammond Plastics (a/k/a Gordon Chemical). He testified
that he worked on two Cleaver-Brooks boilers at the Oxford
location. Mr. Charbonneau referred to an "older
boiler" and a "new boiler" in his testimony.
As to the "new boiler, " Mr. Charbonneau testified
that he did not install the boiler, but he installed the
pipes after the boiler was installed. Mr. Charbonneau also
testified that he removed a sectional boiler at Sacred Heart
Church during employment with Smith Mechanical. He testified
that the boiler may have been Cleaver-Brooks but stated that
he believed this because "they had a lot of
Cleaver-Brooks in the area." Plaintiff presented
evidence that Cleaver-Brooks sold boilers that incorporated
asbestos-gaskets and rope through the 1970s.
contends that Plaintiff's claims fail under Massachusetts
law because a manufacturer does not owe a duty to warn for
asbestos dangers from other manufacturers' parts.
Further, Defendant argues that Plaintiff failed to prove a
strict liability claim because Massachusetts does not
recognize strict liability in tort. Rather, Massachusetts
adopted the Restatement (Second) of Torts § 402A
limiting liability to "one who sells" a defective
product. Defendant also argues that because Plaintiff failed
to prove a wrongful death claim under Massachusetts law,
Plaintiff's punitive damages claim also fails because
punitive damages are only recoverable in a wrongful death
claim. Under Massachusetts law:
To prove causation in an asbestos case, the plaintiff must
establish (1) that the defendant's product contained
asbestos (product identification), (2) that the victim was
exposed to the asbestos in the defendant's product
(exposure), and (3) that such exposure was a substantial
contributing factor in causing harm to the victim
argues that under Morin, the court announced a
"adjusted" and lessened standard of exposure
necessary in asbestos cases. Specifically, Plaintiff cites to
the following portion of the opinion:
Because the resulting injury may not emerge for years or
decades after exposure, the law does not require the
plaintiff or his or her witnesses to establish the precise
brand names of the asbestos-bearing products, the particular
occasions of exposure, or the specific allocation of
causation among multiple defendants' products. Evidence
will be sufficient to reach the fact finder if it permits the
reasonable inference of the presence at a work site of both
the plaintiff and the defendant's asbestos-containing
product for an appreciable period of exposure.
avers that she is able to meet this standard under
Morin and thus summary judgment is not appropriate.
However, Plaintiff neglects to discuss that under
Massachusetts law, also analyzed in Morin,
Massachusetts does not hold a manufacturer liable "for
failure to warn of risks created solely in the use or misuse
of the product of another manufacturer." In
Morin, the plaintiff asked the court to impose a
duty to warn on a defendant because it was foreseeable to the
defendant that "owners might repair its trailers with
asbestos brakes from other manufacturers." The
Morin court stated that "[n]o Massachusetts
precedent directly addresses [this] proposition,
" and that the court knew of three other
jurisdictions "which had held that a manufacturer will
not be liable for the risk caused solely by a third
party's replacement asbestos product even if the use of
the third party's product was reasonably foreseeable to
the manufacturer." The Morin court did not reach
a decision on this issue because the court had "a ground
for decision short of the proposed choice between adoption or
rejection of a categorical rule or
corollary." Other Massachusetts cases have made it
clear that to "prove causation in an asbestos case, it
is plaintiff's principal burden to show that a
defendant's product contained asbestos and that
the victim was exposed to the asbestos in the
defendant's product." The issue here is that
Plaintiff has not shown that her husband was exposed to
asbestos from a product manufactured by Defendant. Under
Morin, Plaintiff "must produce evidence of a
degree of exposure greater than insignificant or de
minimis." Plaintiff's husband cleaned
Defendant's boilers and described the process. His job
involved replacing ripped gaskets and work with refractory
cement. He believed that the parts contained asbestos because
of the high-heat application, and he could not recall the
name of the replacement parts. Thus, the main issue is
whether Mr. Charbonneau was exposed to asbestos from
Defendant's product. Plaintiff's brief did not
address the issue of Defendant's liability for other
manufactured products. However, the Court is reluctant to
follow a foreseeability argument. Massachusetts has not held
that this is the law of the State, and this Court will not
find otherwise. Plaintiff's brief focuses on the parts of
Defendant's boilers that contained asbestos. The list of
asbestos parts includes gaskets, refractories, rope, and
Plaintiff argues that Cleaver-Brooks sold asbestos-containing
replacement gaskets, cement, and rope. Again, the only
asbestos containing parts at issue in Mr. Charbonneau's
case are gaskets and cement. The record indicates that Mr.
Charbonneau's job was to replace these parts. The Court
emphasizes that "Massachusetts courts have never held a
manufacturer liable . . . for failure to warn of risks
created solely in the use or misuse of the product of another
manufacturer." There is no evidence in the record that
the replacement parts Mr. Charbonneau worked with were
asbestos parts manufactured or supplied by Defendant,
Cleaver-Brooks. As stated above, under Morin, it is
Plaintiffs burden to show that Defendant's product
contained asbestos and that the victim was
exposed to the asbestos in the defendant's
product. Plaintiff has not met this burden.
Additionally, Mr. Charbonneau removed one boiler during the
course of his employment and he was not sure whether the
boiler was Cleaver-Brooks. Accordingly, for the reasons
stated above, Defendant's Motion for Summary Judgment is
IS SO ORDERED.
 Super. Ct. Civ. R. 56; Smith v.
Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del.
Super. Dec. 30, 2013); see Moore v. Sizemore, 405
A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S.,
Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In
re Asbestos Litigation (Helm), 2012 WL 3264925 (Del.
Aug. 13, 2012).
Morin v. AutoZone Ne., Inc.,
943 N.E.2d 495, 499 (Mass. App. Ct. ...