Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Richards v. Copes-Vulcan, Inc.

Supreme Court of Delaware

July 22, 2019

CRAIG CHARLES RICHARDS, and GLORIA JEANNE RICHARDS, his wife, Plaintiffs Below, Appellants,
v.
COPES-VULCAN, INC., FORD MOTOR COMPANY, and THE GOODYEAR TIRE & RUBBER COMPANY, Defendants Below, Appellees.

          Submitted: June 5, 2019

          Court Below: Superior Court of the State of Delaware C.A. No N16C-04-206

         Upon appeal from the Superior Court. AFFIRMED.

          Adam 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.

          Jason 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.

          Paul A. Bradley, Esquire and Antoinette D. Hubbard, Esquire (argued), Maron Marvel Bradley Anderson & Tardy LLC, Wilmington, Delaware, for Defendant Below, Appellee Copes-Vulcan, Inc.

          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 Motor Company.

          Before VAUGHN, SEITZ, and TRAYNOR, Justices.

          SEITZ, Justice

         Ohio 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.

         After the Richards served their expert report, the Ohio Supreme Court decided Schwartz v. Honeywell International, Inc.[1] 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.

         The 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.[2] 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.

         As we 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)." [3] 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.

         I.

         In 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.[4] While working at gas stations and as a shade tree mechanic, he alleged exposure to Goodyear and Ford asbestos-containing products.

         Before 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.[5]

         On February 8, 2018, the Supreme Court of Ohio decided Schwartz v. Honeywell International, Inc.[6] 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. [7] The 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.[8] 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.[9] 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.

         The 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.[10]

         The 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."[11]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." [12] 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 them reargument."[13]

         The 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.[14] Whether we review the August 8 decision as a substantive pretrial motion or a motion for reargument, we review for abuse of discretion.[15]

         II.

         A.

         Our starting point to answer the Ohio law question is the Fourth Circuit's decision in Lohrmann v. Pittsburgh Corning Corp.[16] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.