Craig Charles RICHARDS, and Gloria Jeanne Richards, his wife, Plaintiffs Below, Appellants,
COPES-VULCAN, INC., Ford Motor Company, and The Goodyear Tire & Rubber Company, Defendants Below, Appellees.
June 5, 2019
Below: Superior Court of the State of Delaware, C.A. No
appeal from the Superior Court. AFFIRMED.
Balick, Esquire and Patrick J. Smith, Esquire, Balick &
Balick, LLC, Wilmington, Delaware, Bartholemew J. Dalton,
Esquire (argued), Ipek K. Medord, Esquire, Andrew C. Dalton,
Esquire and Michael C. Dalton, Esquire, Dalton & Associates,
P.A., Wilmington, Delaware, for Plaintiffs Below, Appellants
Craig Charles Richards and Gloria Jeanne Richards, his wife.
A. Cincilla, Esquire (argued), Amaryah K. Bocchino, Esquire,
Ryan W. Browning, Esquire and Tye C. Bell, Esquire, Manning
Gross Massenburg LLP, Wilmington, Delaware, for Defendant
Below, Appellee The Goodyear Tire & Rubber Company.
Bradley, Esquire and Antoinette D. Hubbard, Esquire (argued),
Maron Marvel Bradley Anderson & Tardy LLC, Wilmington,
Delaware, for Defendant Below, Appellee Copes-Vulcan, Inc.
J. Singewald, Esquire and Rochelle L. Gumapac, Esquire, White
and Williams LLP, Wilmington, Delaware, Jessica L. Ellsworth,
Esquire (argued), Hogan Lovells U.S. LLP, Washington, D.C.,
for Defendant Below, Appellee Ford Motor Company.
VAUGHN, SEITZ, and TRAYNOR, Justices.
residents Craig Richards and his wife Gloria Richards filed
suit against the defendants in the Delaware Superior Court
claiming that Mr. Richards exposure to asbestos-containing
products at home and in the workplace caused his
mesothelioma. The parties agree that Ohio law applies to this
case. To make the causal link between Mr. Richards asbestos
exposure and his disease, the Richards served an expert
report relying on a cumulative exposure theory, meaning that
every non-minimal exposure to asbestos attributable to each
defendant combined to cause Mr. Richards injury.
the Richards served their expert report, the Ohio Supreme
Court decided Schwartz v. Honeywell International,
Inc.  In Schwartz, the Ohio Supreme
Court rejected an experts cumulative exposure theory for a
number of reasons, including its inconsistency with an Ohio
asbestos causation statute. The statute requires that
causation be determined on a defendant by defendant basis.
The Richards attorneys became aware of the Schwartz
decision during summary judgment briefing. Instead of asking
for leave to serve a supplemental expert report based on
another theory of causation, the Richards argued in
opposition to summary judgment that the Ohio asbestos
causation statute and the Schwartz decision did not
require any expert report. According to the Richards, as long
as there is factual evidence in the record showing, in the
words of the Ohio statute, the manner, proximity, frequency,
and length of exposure to asbestos, summary judgment should
Superior Court disagreed and held that, to defeat summary
judgment, the Richards must still offer expert medical
evidence of specific causation, meaning that the asbestos
exposure attributable to each defendant caused Mr. Richards
mesothelioma. The Superior Court also denied reargument and
found untimely the Richards later attempt to supplement
their expert report. According to the court, the time to
supplement their expert report was before the court granted
the defendants summary judgment motions. The Richards have
appealed from the Superior Courts dismissal rulings, arguing
that the court misinterpreted Ohio law, and should have
granted them leave to supplement their expert report after
the courts summary judgment rulings.
read the Ohio asbestos causation statute and Ohio Supreme
Court precedent, neither the Ohio General Assembly nor the
Court intended to abrogate the general rule in Ohio in toxic
tort cases that a plaintiff must provide expert medical
evidence "(1) that the toxin is capable of causing the
medical condition or ailment (general causation), and (2)
that the toxic
substance in fact caused the claimants medical condition
(specific causation)." Thus, the Superior Court
concluded correctly that expert medical evidence on specific
causation must be offered by the Richards to avoid summary
judgment. We also find that the Superior Court did not abuse
its discretion in denying reargument and the Richards
request to supplement their expert report after the courts
summary judgment ruling. The Superior Courts judgment is
March 2016, doctors diagnosed Mr. Richards with mesothelioma,
a fatal lung disease associated with exposure to asbestos.
The following month, Mr. Richards and his wife filed suit
against over thirty defendants, alleging that the asbestos
exposure attributed to the defendants caused his disease.
After settlements and dismissals, the remaining defendants
are Ford Motor Company, Goodyear Tire & Rubber Company, and
Copes-Vulcan, Inc. According to the complaint, Mr. Richards
worked as a millwright in a Ford manufacturing facility,
where he was exposed to asbestos while working with gaskets
and valves produced ...