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.
Submitted: 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,
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.
A. Bradley, Esquire and Antoinette D. Hubbard, Esquire
(argued), Maron Marvel Bradley Anderson & Tardy
LLC, Wilmington, Delaware, for Defendant Below, Appellee
Christian 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
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.
the Richards served their expert report, the Ohio Supreme
Court decided Schwartz v. Honeywell International,
Inc. In Schwartz, the Ohio Supreme
Court rejected an expert's 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 be denied.
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 Court's
dismissal rulings, arguing that the court misinterpreted Ohio
law, and should have granted them leave to supplement their
expert report after the court's 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 claimant's
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 court's summary judgment ruling.
The Superior Court's judgment is affirmed.
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 by Goodyear and
Copes-Vulcan. While working at gas stations and as a
shade tree mechanic, he alleged exposure to Goodyear and Ford
summary judgment briefing started, the Richards served the
May 16, 2017 expert report of Dr. Mark E. Ginsburg. After
reviewing Mr. Richards' work history, exposure to
asbestos, and the medical literature, Dr. Ginsburg concluded
to a reasonable degree of medical certainty, that Mr.
Richards'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 to asbestos from each
company's asbestos product or products was a substantial
contributing factor in the development of Mr. Richards's
malignant mesothelioma. Each such product for which exposure
can be shown was a cause of said disease.
February 8, 2018, the Supreme Court of Ohio decided
Schwartz v. Honeywell International,
Inc. In Schwartz, the Court ruled
that, under the Ohio asbestos causation statute, "a
theory of causation based only on cumulative exposure to
various asbestos-containing products is insufficient to
demonstrate that exposure to asbestos from a particular
defendant's product was a 'substantial
factor'" in causing the plaintiff's injury.
Richards' attorneys became aware of the Schwartz
decision while briefing the defendants' motions for
summary judgment. The Richards do not dispute that the
Schwartz decision negated Dr. Ginsburg's expert
report. Rather than request leave to serve a
supplemental expert report, the Richards stood their ground,
and argued that they did not need any expert report to defeat
summary judgment. As they argued, as long as the summary
judgment factual record contained sufficient evidence of the
manner, proximity, frequency, and length of Mr. Richards'
exposure to asbestos attributable to each defendant, the Ohio
asbestos causation statute was satisfied and the case should
proceed to trial.
Superior Court disagreed. After recognizing that the Ohio
Supreme Court's Schwartz decision undercut Dr.
Ginsburg's expert report and its cumulative causation
theory, the court held in a bench ruling:
Well, without expert testimony, I'm not sure how any of
those things [the manner, proximity, frequency, and length of
exposure statutory factors] are put into an appropriate
context, and what meaning is to be given to any of those
exposures that Mr. Richards described. They are just sort of
standing alone there without any explanation of how
significant they are without any expert testimony consistent
with what Schwartz says Ohio law requires. So under
that context, I don't find that standalone nonexpert
testimony sufficient to meet the defendant - the
plaintiff's burden here, and I'm going to grant the
motion for summary judgment.
Richards moved for reargument or leave to supplement Dr.
Ginsburg's report to conform to the Schwartz
decision. The Superior Court denied both requests. As the
court held, whether viewed as a request to amend the Master
Trial Scheduling Order in asbestos cases or a request for
relief from judgment, "[t]he real problem for Plaintiffs
is that they never sought leave for Dr. Ginsburg to
supplement his report until after the Court had entered
summary judgment against them."Relevant to the reargument
motion, the court also found that "absent Dr.
Ginsburg's opinion, Plaintiffs are left without any
expert medical opinion on causation. At most, they simply
would be able to present testimony about exposure, which is
insufficient under Ohio law."  Thus, according to the
court, the "[p]laintiffs have not demonstrated good
cause/excusable neglect to warrant granting them leave to
submit Dr. Ginsburg's supplemental report or to grant
Richards have appealed from the Superior Court's July 10,
2018 summary judgment bench ruling and its August 8, 2018
order denying reargument and leave to supplement Dr.
Ginsburg's expert report. The summary judgment standard
of review is de novo. Whether we review the August 8
decision as a substantive pretrial motion or a motion for
reargument, we review for abuse of discretion.
starting point to answer the Ohio law question is the Fourth
Circuit's decision in Lohrmann v. Pittsburgh Corning
Corp. In Lohrmann, the plaintiff
argued that a directed verdict in favor of three asbestos
product manufacturers was improper when the trial court found
there was insufficient evidence that the plaintiff came in
contact with their asbestos products. Rather than adopt a
rule "that if the plaintiff can present any evidence
that a company's asbestos-containing product was at the
workplace while the plaintiff was at the workplace, a jury
question has been established as to whether that product
contributed as a proximate ...