On March 28, 2022, the Supreme Court of Delaware settled a 15-year battle between asbestos plaintiffs and defendants by affirming the burden-shifting framework provided in a 2006 Superior Court decision. This decision affirms once and for all that where a company manufactured separate lines of products with and without asbestos, it is the plaintiff’s burden to offer evidence that he was exposed to the asbestos-containing line rather than the company’s burden to prove the opposite. This affirmation is a significant win for asbestos defendants that can establish that they manufactured or sold both asbestos-containing and asbestos-free products at the same time, as many companies did. Droz v. Hennessy Industries, LLC, No. 211, 2021, 2022 WL 896912 (Sup. Ct. Del. Mar. 28, 2022).
Eric Droz (“Decedent”) was diagnosed with mesothelioma in 2018. Decedent sued Hennessy Industries, LLC, as successor-in-interest to AMMCO, asserting that his mesothelioma was caused by exposure to asbestos dust created through his use of an AMMCO brake grinder on asbestos-containing brake drums. Decedent testified that he performed brake work while working in an automotive shop from 1971 through 1973. During that time, Decedent used an arc grinder manufactured by AMMCO to grind brake shoes so they fit properly against brake drums. Decedent alleged that this process, when used in conjunction with an asbestos-containing brake, released dust in the air and exposed Decedent to asbestos. Decedent passed away in 2020 and his wife, Ms. Droz, was substituted in the action as executor of Decedent’s estate.
Hennessy moved for summary judgment, arguing that because its arc grinder could be used with both asbestos-containing brakes and asbestos-free brakes, Ms. Droz did not meet her Rule 56 burden under Stigliano v. Westinghouse. 2006 WL 3026171 (Del. Super. Oct. 18, 2006). Applying the burden-shifting framework provided by Stigliano, the Superior Court granted Hennessy’s motion for summary judgment. First, the Superior Court held that Hennessy met its initial burden by showing that its arc grinder could be used with both asbestos-containing and asbestos-free brakes. Next, the Superior Court held that the burden shifted to Ms. Droz to show that Decedent was exposed to asbestos-containing brakes while using an AMMCO brake grinder. The Superior Court held that Ms. Droz failed to meet this burden as she did not provide sufficient evidence that Decedent was exposed to an asbestos-containing brake while using an AMMCO brake grinder.
The Supreme Court addressed two issues on appeal: 1) whether the Superior Court properly applied the burden-shifting framework, and 2) whether Ms. Droz presented evidence showing that Decedent used an AMMCO brake grinder with an asbestos-containing brake, thus raising a genuine issue of material fact.
The Supreme Court held that the Superior Court properly applied the burden-shifting framework for summary judgment motions involving product identification defenses. Ms. Droz argued that this application would result in an “automatic win” for defendants at the summary judgment stage by requiring a plaintiff to show “exclusive use” or direct evidence in order to meet its burden. The Court disagreed, explaining that summary judgment will only be granted if a plaintiff fails to show any circumstantial or direct evidence of exposure. The Court further disagreed with Ms. Droz’s argument that Stigliano creates a greater evidentiary burden than required by Rule 56, holding that the decision is consistent with the rule’s “focus.”
Additionally, the Supreme Court disagreed with Ms. Droz’s argument that Stigliano should not apply in cases addressing non-asbestos products: “While this case does not involve identification of a particular defendant’s asbestos-containing product, it does require identification of an asbestos-containing product used with the defendant’s arc grinder. To trigger the duty to warn, Ms. Droz must show by direct or circumstantial evidence that Decedent was exposed to asbestos dust when using the arc grinder, and the dust came from grinding asbestos-containing brake drum shoes.”
Despite disagreeing with a majority of Ms. Droz’s arguments, the Court ultimately reversed the grant of summary judgment, finding that Ms. Droz raised a genuine issue of material fact by presenting Decedent’s testimony that he used the arc grinder on brakes from two manufacturers that sold only asbestos-containing brakes for passenger vehicles during the applicable time period.
Even though the Court reversed summary judgment, this decision affirms that plaintiffs have the burden, at the summary judgment stage, to show that they worked with asbestos-containing products. Practically, this may mean that defendants in asbestos cases, specifically those with some or all asbestos-free products, may find greater success in the summary judgment stage in Delaware courts.