     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION

RAYMOND K. LEATHERS,                        )
                                            )
       Plaintiff,                           )
                                            )
              v.                            )
                                            )     C.A. No. N15C-11-224 ASB
BORGWARNER MORSE TEC, et al.,               )
                                            )
       Defendants.                          )
                                            )
                                            )
                                            )

                            Decided: November 8, 2017
                                     ORDER

                      Upon Defendant Pneumo Abex LLC’s
                     Motion for Summary Judgment. DENIED.

      Plaintiff, Raymond Leathers (“Plaintiff”), claims that he was exposed to

asbestos from Defendant Pneumo Abex’s (“Abex”) products. Plaintiff worked as an

automotive mechanic from 1963 through the late 1960s. He performed a minimum

of four brake jobs per week, and he testified that he used Abex brake parts. Plaintiff

testified that in 1963 he worked as an automotive mechanic at Oak Lawn in

Cranston, Rhode Island until 1965. At this job he performed both brake and clutch

work. He stated that he did about four brake jobs per week. From 1965 through 1967

he served a two-year enlistment in the army. He returned to Rhode Island in 1967

and worked part time at Oak Lawn performing both brake and clutch jobs. Plaintiff
stopped working at Oak Lawn at some point in the 1960s and began working in

construction. Plaintiff testified that he worked with Bendix, Grizzly, and Abex

products while at Oak Lawn. Plaintiff contends that the process of removing and

installing Abex’s asbestos products caused him to develop mesothelioma. Plaintiff

provided evidence demonstrating that Abex manufactured asbestos-containing

automotive friction products from 1927 through 1987. Additionally, prior to the

1980s, “the vast majority of brake linings that Abex sold for passenger car, light and

heavy truck were asbestos-containing.”

      Abex contends that throughout its manufacturing history, some, but not all, of

its friction products contained asbestos. Abex also contends that it did not

manufacture fully assembled brake shoes which could be installed directly onto

vehicles, and Plaintiff testified that all the replacement brakes he used during his

career were fully assembled brakes. Additionally, Abex argues that Plaintiff’s only

identification of their product was through “an impermissible leading question,” as

Plaintiff did not identify Abex as a product he recalled using initially. Finally, Abex

argues that even assuming Plaintiff worked with an asbestos containing product

manufactured by Abex, Plaintiff is unable to prove causation under Rhode Island

substantive law.

      There seems to be some contention between the parties about the causation

standard in the state of Rhode Island. In Sweredoski the Rhode Island Superior Court

                                          2
discussed the different standards of causation. The Sweredoski court determined that

the “frequency, regularity, proximity test is the proper standard of proving causation

in asbestos cases” in Rhode Island.1 The Court noted that “this test comports with

[their] Supreme Court’s general causation jurisprudence and fairly balances the

interests of plaintiffs and defendants.”2 The Sweredoski decision is a 2013 decision

that does not seem to have any negative treatment by other Rhode Island courts. The

Rhode Island Supreme Court has not established a set standard for causation in the

state, and the well analyzed decision in Sweredoski lays out exactly why the Superior

Court of Rhode Island applied the frequency, regularity, and proximity test. Based

on these reasons this Court will apply the test proffered in Sweredoski. As part of

this test, the court noted that “[i]n the asbestos context, plaintiffs must present both

product identification and exposure evidence to satisfy the causation element,”3 and

the court decided to “apply the ‘frequency, regularity, proximity test’ as the proper

causation standard for asbestos cases.”4 “To satisfy the ‘frequency, regularity,

proximity’ test, plaintiffs must present evidence showing ‘(1) exposure to a

particular product; (2) on a regular basis; (3) over an extended period of time; and




1
  Sweredoski v. Alfa Laval, Inc., 2013 WL 3010419, at *8 (R.I. Super. June 13,
2013).
2
  Id.
3
  Id. at *2.
4
  Id. at *5.
                                       3
(4) in proximity to where the plaintiff actually worked.”5 Additionally, “mere proof

that the plaintiff and a certain asbestos product are at the same location at the same

time, without more, does not prove exposure to that product.”6 The “plaintiff must

prove more than a casual or minimum connection with the product.”7

      Abex argues that Plaintiff only identifies Abex as a product “through an

impermissible leading question.” Looking at the video and discovery depositions, it

does not seem that the product identification was elicited through a leading question.

The line of questioning is as follows:

             Q: And do you remember me submitting these questions to you
             and you providing answers and signing that, the back page of
             that, as your answers being true?
             A: Yes, I do.
             Q: Do you see – I’ll direct your attention to Exhibit C of that
             document. Do you have that in front of you? That’s the page I
             put-
             A: Right here?
             Q: Yes.
             A: Yes.
             Q: You have that in front of you. Is that information you supplied
             to my office about the products you used?
             A: Yes, it is.
             Q: And does that have a list of any products that you used in the
             automotive field?
             A: Yes, it does.
             Q: And in looking at that list, does that refresh your recollection
             as to any of those other brands of brakes you may have used?
             A: Yes.
             Q: And what are-

5
  Id.
6
  Id. (citing Lohrmann, 782 F.2d at 1162).
7
  Id.
                                         4
               DEFENSE COUNSEL OBJECTION
               Q: What are those other brands?
               DEFENSE COUNSEL OBJECTION
               A: Grizzly and Abex.8


Next, Abex argues that Plaintiff’s testimony was contradictory during questioning

by Abex’s counsel. Whether the testimony is contradictory is an issue of fact to be

decided by the factfinder. Plaintiff submitted evidence that Abex manufactured

asbestos-containing brake products, like brake shoes and linings, from 1927 through

1987. Plaintiff testified that he did four brake jobs per week, and worked as a

mechanic from 1963-1965, and then again in 1967. Under the Rhode Island standard,

the Court finds that Plaintiff’s claims can survive summary judgment as there are

still factual determinations which are more appropriately determined at trial.

Therefore, Defendant Abex’s Motion for Summary Judgment is hereby DENIED.

IT IS SO ORDERED.

                                           /s/ Calvin L. Scott
                                           The Honorable Calvin L. Scott, Jr.




8
    Plaintiff’s Videotaped Deposition, February 17, 2016, at 26:9-27:7.
                                           5
