Opinion
C.A. No. N15C-11-153 ASB
12-12-2018
IN RE: ASBESTOS LITIGATION: MARILYN KAY CALL Individually, and as personal Representative of the Estate of GERALD D. CALL, deceased, Plaintiff, v. FORD MOTOR COMPANY, et al., Defendants.
Bartholomew J. Dalton, Esquire, Ipek K. Medford, Esquire, Andrew C. Dalton, Esquire (argued), Michael C. Dalton, Esquire, Dalton & Associates, Cool Spring Meeting House, 1106 West Tenth Street, Wilmington, Delaware 19086; Adam Balick, Esquire, Michael Collins Smith, Esquire, Patrick Smith, Esquire, Balick & Balick, LLC, 711 King Street, Wilmington, Delaware 19801, Attorneys for Plaintiff Marilyn Kay Call, individually and as personal representative of the Estate of Gerald D. Call, deceased, his wife; Weitz & Luxenberg, P.C., 700 Broadway, New York, New York 10003, of counsel. Christian J. Singewald, Esquire, Rochelle Gumapac, Esquire (argued), Christopher Marques, Esquire, White and Williams LLP, 600 N. King Street, Suite 800, Wilmington, Delaware, Attorneys for Defendant Ford Motor Company.
ORDER Upon Ford Motor Company's Motion for Summary Judgment
GRANTED Bartholomew J. Dalton, Esquire, Ipek K. Medford, Esquire, Andrew C. Dalton, Esquire (argued), Michael C. Dalton, Esquire, Dalton & Associates, Cool Spring Meeting House, 1106 West Tenth Street, Wilmington, Delaware 19086; Adam Balick, Esquire, Michael Collins Smith, Esquire, Patrick Smith, Esquire, Balick & Balick, LLC, 711 King Street, Wilmington, Delaware 19801, Attorneys for Plaintiff Marilyn Kay Call, individually and as personal representative of the Estate of Gerald D. Call, deceased, his wife; Weitz & Luxenberg, P.C., 700 Broadway, New York, New York 10003, of counsel. Christian J. Singewald, Esquire, Rochelle Gumapac, Esquire (argued), Christopher Marques, Esquire, White and Williams LLP, 600 N. King Street, Suite 800, Wilmington, Delaware, Attorneys for Defendant Ford Motor Company. WHARTON, J.
This 12th day of December, 2018, upon consideration of Defendant Ford Motor Company's Motion for Summary Judgment, Plaintiffs' Memorandum in Opposition, Defendant's Reply, oral argument, and the record in this matter, it appears to the Court that:
1. Following oral argument on December 6, 2018, the Court reserved decision in order to give further consideration to a potentially dispositive issue. Specifically, that issue was whether Indiana, the state whose substantive law governs here, has a "but for" standard for causation in asbestos cases.
2. Plaintiff brings this action individually, and as personal representative of her late husband's estate, against Ford Motor Company ("Ford") alleging that Gerald D. Call was exposed to Ford asbestos containing products occupationally and non-occupationally, and, as a result, developed mesothelioma and died. Ford moves for summary judgment, inter alia, on product identification, and causation grounds.
3. Super. Ct. Civ. R. 56(c) provides that summary judgment is appropriate where there is "no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." When considering a motion for summary judgment, the Court's function is to examine the record to determine whether genuine issues of material fact exist "but not to decide such issues." The moving party bears the initial burden of demonstrating that the undisputed facts support its claims or defenses. If the moving party meets its burden, then the burden shifts to the non-moving party to demonstrate that there are material issues of fact to be resolved by the ultimate fact-finder. Summary judgment will be granted if, after viewing the record in the light most favorable to the non-moving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Summary judgment will not be granted if there is a material fact in dispute or if 'it seems desirable to inquire more thoroughly into [the facts] in order to clarify the application of the law to the circumstances." The Court should not "indulge in speculation and conjecture; a motion for summary judgment is decided on the record presented and not on evidence potentially possible."
Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992).
Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).
Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
Merrill, 606 A.2d at 99-100.
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1963).
In re Asbestos Litig., 509 A.2d 1116, 1118 (Del. Super. 1986), aff'd sub nom, Nicolet, Inc. v. Nutt, 525 A.2d 146 (Del. 1987).
4. On the issue of causation Plaintiff relies upon the expert report of Mark E. Ginsberg, M.D. It is Dr. Ginsberg's opinion that "Mr. Call's cumulative exposure to asbestos was a substantial contributing cause of his malignant mesothelioma" and that "the cumulative exposure to asbestos from each company's asbestos was a substantial contributing factor in the development of Mr. Call's malignant mesothelioma." In other words, Dr. Ginsberg offers a substantial contributing factor causation opinion. Ford argues that, since Indiana has a "but for" causation standard, and since Dr. Ginsberg's causation opinion does not meet that standard, summary judgment in its favor is required. Plaintiff concedes that Dr. Ginsberg's opinion does not meet the "but for" standard, but disputes that Indiana has a "but for" test in asbestos cases.
Def.'s Mot Summ. J. Ex. E., D.I. 136.
5. In negligence cases, Indiana recognizes that "An essential element in a cause of action for negligence is the requirement for a reasonable connection between the defendant's conduct and the damages which a plaintiff has suffered." "This element requires, at a minimum, causation in fact - that is, the harm would not have occurred 'but for' the defendant's conduct," meaning that "absent the tortious conduct, a plaintiff would have been spared suffering the claimed harm." The Court has searched in vain for any asbestos specific deviation from this general standard of "but for" causation from an Indiana state court. Plaintiff has not identified any such cases either. What the Court did find, however, was federal court authority asbestos interpreting Indiana law in an asbestos case. The court in Harris v. Owens-Corning Fiberglass Corporation, noted in affirming the United States District Court for the Southern District of Indiana's grant of summary judgment, that the plaintiff 'must produce some evidence of "but for" causation - evidence that her husband's illness would not have occurred bit for [defendant's] conduct." Accordingly, the Court finds that Indiana's general negligence "but for" test for causation applies to asbestos cases.
Crowe v. Forum Group, Inc. 575 N.E.2d 630, 635 (Ind. 1991) citing W. Prosser & W. Keeton, The Law of Torts § 41 at 263-66 (5th ed. 1984).
Id.
102 F.3d 1429, 1432 (7th Cir. 1996), quoting Buckner v. Sam's Club, Inc. 75 F.3d 290, 294 (7th Cir. 1996). --------
THEREFORE, Ford Motor Company's Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
/s/_________
Ferris W. Wharton, J.