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In re Asbestos Litigation

Superior Court of Delaware

August 8, 2018

IN RE: ASBESTOS LITIGATION:
v.
COPES-VULCAN, INC., THE FAIRBANKS COMPANY, FORD MOTOR COMPANY, and THE GOODYEAR TIRE & RUBBER COMPANY, et al., Defendants. Limited to: CRAIG CHARLES RICHARDS and GLORIA JEANNE RICHARDS, his wife Plaintiffs,

          Submitted: July 30, 2018

         Upon Plaintiffs' Motion for Leave to Supplement Expert Report Due to Changes in Substantive Law, and/or for Reargument DENIED.

          Bartholomew J. Dalton, Esquire, Ipek K. Medford, Esquire, Andrew C. Dalton, Esquire, Michael C. Dalton, Esquire, Dalton & Associates, Cool Spring Meeting House, Adam Balick, Esquire, Michael Collins Smith, Esquire, Patrick Smith, Esquire, Balick & Balick, LLC, Attorneys for Plaintiffs Craig Charles Richards and Gloria Jeanne Richards, his wife; Weitz & Luxenberg, P.C., of counsel.

          Paul A. Bradley, Esquire, Antoinette D. Hubbard, Esquire, Maron Marvel Bradley Anderson & Tardy LLC, Attorneys for Defendant Copes-Vulcan, Inc.

          Timothy A. Sullivan, III, Esquire, Wilbraham, Lawler & Buba, Attorneys for The Fairbanks Company.

          Christian J. Singewald, Esquire, Rochelle L. Gumapac, Esquire, White and Williams LLP, Attorneys for Ford Motor Company.

          Jason A. Cincilla, Esquire, Amaryah K. Bocchino, Esquire, Ryan Browning, Esquire, Paul S. Seward, Esquire, Manning Gross Massenburg, Attorneys for The Goodyear Tire & Rubber Company.

          ORDER

          Ferris W. Wharton, Judge.

         This 8th day of August, 2018, upon consideration of Plaintiffs Craig Charles Richards and Gloria Jeanne Richards' Motion for Leave to Supplement Expert Report Due to Changes in Substantive Law, and/or for Reargument ("Motion"), [1] the Responses in opposition of defendants Copes-Vulcan, Inc., [2] Ford Motor Company, [3]The Goodyear Tire & Rubber Company, [4] the Defendants' Coordinated Joint Supplemental Response in Opposition to Plaintiffs' Motion for Leave to Supplement Expert Report Due to Changes in Substantive Law, and/or for Reargument, [5] and the record in this matter, [6] it appears to the Court that:

         1. On July 10, 2018, the Court granted summary judgment in favor of all four defendants.[7] In each instance, the Court based its decision on the recent opinion of the Ohio Supreme Court in Schwartz v. Honeywell, [8] in which the Ohio held that the theory of causation predicated on cumulative exposure, such as advanced by Plaintiffs' expert Dr. Mark Ginsberg, was insufficient to establish substantial factor causation under Ohio law.

         2. On June 16, 2017, Plaintiffs served Dr. Ginsberg's initial report on Defendants.[9] Dr. Ginsberg's conclusion, applicable to all defendants, was that:

Mr. Richard's cumulative exposure to asbestos was a substantial contributing cause of his malignant mesothelioma. It is my further opinion, to a reasonable degree of medical certainty, that the cumulative exposure from each company's asbestos product or products was a substantial contributing factor in the development of Mr. Richardson's malignant mesothelioma. Each such product for which exposure can be shown was a cause of said disease.[10]

         3. On February 8, 2018, the Supreme Court of Ohio released its opinion in Schwartz.[11] In Schwartz, the Court held that cumulative exposure causation was incompatible with Ohio statutory law, which requires an individualized determination for each defendant.[12] The Court also found other problems with cumulative exposure causation beyond its incompatibility with Ohio's statutory scheme.[13] Because this Court found that Dr. Ginsberg's cumulative exposure causation opinion would not pass muster under Ohio law, it granted the defendants summary judgment.

         4. Plaintiffs' sought and were granted an opportunity to seek leave for Dr. Ginsberg to submit a supplemental report. In their Motion, Plaintiffs attach a supplemental report from Dr. Ginsberg dated July 18, 2018.[14] In his supplemental report, Dr. Ginsberg concludes that Mr. Richards' exposures to each defendant's products "were sufficient to constitute a substantial factor in causing his mesothelioma."[15]

         5. In asbestos litigation, applications to modify the Master Trial Scheduling Order are reviewed under the "good cause" standard.[16] "Good cause is likely to be found when the moving party has been generally diligent, the need for more time was neither foreseeable nor its fault, and refusing to grant the continuance would create a substantial risk of unfairness to that party."[17] "Properly construed, 'good cause' means ...


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