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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.

          OPINION

         SEITZ, Justice:

Page 1197

          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

Page 1198

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 ...


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