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Crawford v. A.O. Smith Corp.

Superior Court of Delaware

April 10, 2019

FRIEDA CRAWFORD, Individually and as Administratrix of the Estate of JIMMY C. CRAWFORD, deceased, Plaintiff,
A.O. SMITH CORPORATION, et al, Defendants.

          Submitted: February 19, 2019

         Upon Defendant Tenneco Automotive Operating Company Inc.'s Motion for Summary Judgment, GRANTED.

          Ipek K. Medford, Esq., Bartholomew J. Dalton, Esq., Andrew C. Dalton, Esq., and Michael C. Dalton, Esq., of Dalton & Associates, P. A., Wilmington, Delaware; Patrick J. Smith, Esq. (argued) and Adam Balick, Esq., of Balick & Balick, LLC, Wilmington, Delaware; Weitz & Luxenberg, P.C., New York, New York (Of Counsel). Attorneys for Plaintiff.

          Robert K. Beste, Esq. (argued) and Clarissa R. Chenoweth, Esq., of Smith Katzenstein & Jenkins LLP, Wilmington, Delaware; Jason A. Cincilla, Esq., Amaryah K. Koccino, Esq., and William B. Larson, Jr., Esq., of Manning Gross Massenburg LLP, Wilmington, Delaware. Attorneys for Defendant.



         AND NOW this 10th day of April, 2019, upon consideration of Defendant Tenneco Automotive Operating Company Inc. ("Tenneco")'s Motion for Summary Judgment, the responses thereto, the parties' oral arguments and supplemental submissions, IT IS HEREBY ORDERED that the Motion for Summary Judgment is GRANTED for the following reasons;

         1. Plaintiff Frieda Crawford, Individually and as Administratrix of the Estate of Jimmy Crawford ("Plaintiff) claims her late husband contracted asbestos-related lung cancer as a result of his exposure to Tenneco's asbestos-containing product, specifically Walker mufflers.

         2. Mr. Crawford, as the product identification witness, was deposed in July and August of 2015. He testified that his exposure to Walker mufflers occurred while he worked as an automotive mechanic at two locations between 1963 and approximately 1965. In Mr. Crawford's first deposition, he testified that he worked about one year at A&W Motors from 1963 to 1964, and for about two years at Sheffield Motor Supply immediately thereafter.[1] While working at these locations, he performed exhaust and muffler work, [2] and testified that the main brand he remembered was Walker "because it was a big brand."[3] He testified that he believed he was exposed to asbestos when he replaced original mufflers or the exhaust system.[4] He was asked at his deposition how he formed this belief. Specifically, "the basis of your saying that it's asbestos is, you may have been told that potentially by your father and because it was a heat application?"[5] Plaintiff responded affirmatively.[6]

         3. He also testified about the composition of the muffler lining. During Mr. Crawford's second deposition, he described that the lining of a Walker muffler was "like a mesh" and "would create dust when.. .removing and replacing [the muffler]."[7] He was unable to identify the color of the lining "after it'd been in a muffler that long."[8] He further explained that the size of the muffler varied by the model of the car.[9]

         4. Tenneco filed its Motion for Summary Judgment on July 20, 2018, contending that: (1) "Plaintiff cannot show a 'significant probability' that any asbestos-containing product manufactured, sold, or distributed by Tenneco caused Mr. Crawford's injury"[10] and (2) only some Walker mufflers contained asbestos during certain periods of time and Plaintiff fails to satisfy Delaware's summary judgment standard under Stigliano v. Westinghouse.[11] Plaintiff filed a response in opposition to the Motion on December 14, 2018. Tenneco filed a reply in support of its Motion on January 7, 2019. The Court heard oral argument on the Motion on February 4, 2019. During oral argument, Plaintiff raised for the first time the two post-Stigliano decisions of In re Asbestos Litig. (Morrell)[12] and In re Asbestos Litig. 112010 JR Trial Group (Henderson) to question the applicability and strength of Stigliano[13] Both sides were given an opportunity to present their respective positions in writing and supplemental submissions were by received by February 19, 2019. The Motion is ripe for decision.

         5. Delaware Superior Court Civil Rule 56 mandates the granting of summary judgment where the moving party demonstrates that "there is no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law."[14] "Once the movant meets its burden, then the burden shifts to the non-movant to demonstrate sufficiently an existence of one or more genuine issues of material fact."[15] Summary judgment will not be granted if there is a material fact in dispute or if it "seems desirable to inquire thoroughly into [the facts] in order to clarify the application of the law to the circumstances."[16] In considering the motion, "[a] 11 facts and reasonable inferences must be considered in a light most favorable to the non-moving party."[17] However, the Court shall not "indulge in speculation and conjecture; a motion for summary judgment is decided on the record presented and not on evidence potentially possible."[18]

         6. Oklahoma substantive law applies in this case. Under Oklahoma law, a plaintiff must establish the causative link between a specific defendant's asbestos-containing product and the plaintiffs injuries.[19] "This causative link must be established through circumstances which would insure that there was a significant probability that [the defendant's] acts were related to the [plaintiffs] injury."[20] The plaintiff "must prove that the product was the cause of the injury; the mere possibility that it might have caused the injury is not enough."[21] The Tenth Circuit explained that while the District Court approved of the Lohrman standard of frequency, regularity, and proximity, the significant probability standard applies under Oklahoma law.[22] Tenneco argues under Stigliano that Plaintiff has failed to meet the requisite summary judgment standard.

         7. In opposition to summary judgment, Plaintiff argues two points. First, Plaintiff asks the Court to consider the inclusion of the word "some" as it relates to two different sets of Tenneco's standard interrogatory responses found in Delaware asbestos litigation dated June 22, 2015, [23] and standard interrogatory responses from a 2009 asbestos litigation in California.[24] Both sets of interrogatories asked Tenneco to provide information about asbestos-containing products it supplied, sold, or manufactured.

         8. Tenneco's responses to interrogatory number 12 of the 2015 version of the interrogatories provides that "From 1941 to 1977, an internal component of some Walker mufflers contained asbestos."[25] Tenneco's 2009 response instead reads "Walker Manufacturing Company engaged in the supply of asbestos-containing mufflers from approximately 1941 to 1978."[26] Plaintiff suggests that the inclusion of the word "some" in the more recent interrogatory is insufficient to establish that Tenneco produced both asbestos-containing and non-asbestos-containing products to trigger a Stigliano analysis. Plaintiff does not cite any authority for this argument. This Court finds that Tenneco has established a basis for consideration under Stigliano.

         9. Second, Plaintiff argues that Stigliano does not have the same force in light of the two subsequent decisions of Morrell or Henderson[27] This Court disagrees. The cases are distinguishable. In Morrell, the plaintiff was a mechanic who worked at multiple service stations, including one for fourteen years.[28] He was expected to testify at trial. Evidence in Morrell included that the shops where plaintiff worked had used only Walker mufflers and there were repeat customers at these shops.[29] In denying summary judgment, the Court in Morrell explained "there might be further facts developed about the nature of repeat customers from the various shops where Mr. Morrell worked, about who came back, who didn't. He might be able to provide that, which might help."[30] Here, however, Mr. Crawford was deposed twice, has passed away, and the record is closed.

         10. Henderson is also distinguishable. That case dealt with post-trial motions where the Court denied the plaintiffs' motion for judgment notwithstanding the verdict, finding that the plaintiffs "presented testimony that certain types of automotive clutches would have had to include asbestos during the time period the Hendersons operated their garages, regardless of the manufacturer."[31] At trial, one member of the plaintiffs' family identified a particular Zoom clutch disk used by his family that had an organic facing (asbestos-containing) that was "visibly distinguishable from ceramic and semimetallic [sic] facings, which Zoom also manufactured but never contained asbestos."[32] The Court explained that the defendant's motion for summary judgment had previously been denied because the plaintiffs "provided evidence linking" the plaintiffs to Victor asbestos-containing gaskets, after applying Stigliano[33] The facts and procedural posture of both Morrell and Henderson are different from this case. Stigliano is still good law and will be followed, accordingly.

         11. Under Stigliano, "[w]hen the record reveals that a defendant manufactured both asbestos-containing and non asbestos-containing versions of a product during the time period of alleged exposure, in the absence of evidence directly or circumstantially linking the plaintiff to the asbestos-containing product, the Court cannot draw the inference of exposure.. ."[34] and summary judgment must be granted on product nexus.[35] Tenneco has established it produced both asbestos- containing and non-asbestos-containing Walker mufflers that requires this Court to consider whether there is evidence linking Mr. Crawford to the asbestos containing version of the Walker mufflers.

         12. Notably in Henderson and Morrell, the testimony of the plaintiffs or their families were critical to the denial of summary judgment. In Henderson, the Court found that the plaintiffs had testified and identified the asbestos-containing product, distinguishable in characteristic and description from the non-asbestos-containing product. At the summary judgment stage, they provided evidence linking the plaintiffs to an asbestos-containing product.[36] In Morrell, the plaintiff was expected to testify and there was evidence that plaintiff worked exclusively on Walker mufflers for fourteen years; facts from which a jury could infer that he worked repeatedly with asbestos-containing mufflers.[37] Here, Plaintiff does not and cannot rely on Mr. Crawford's testimony to establish the direct or circumstantial evidence that links him to the asbestos-containing product.

         13. Before his death, Mr. Crawford testified that he worked for a limited time on two locations doing engine overhaul and muffler work as a mechanic. During both depositions, he was unable to identify the product other than to say he believed he worked mainly on Walker mufflers, and that he only believed they contained asbestos through what his father may have told him. Not only is it based on assumption and speculation, this is ...

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