IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION
DANIELLE TETTEH, lndividually
and as Administrator of the Estate
of DANIEL L. JONES, deceased,
Plaintiff,

v. C.A. No. Nl4C-08-023 ASB

ALCATEL-LUCENT USA, INC.,
et al.,

Defendants.

Submitted: September 15, 2016
Decided: October 25, 2016

QLDB
Upon Plaintijj"s Rule 59(€) Motion for Reargument and/or Reconsideration of
August 31, 2016 Ora'er Granting Defendant AT&T Corp. ’s
Motionfor Summary Judgment. DENIED.

AND NOW this 25th day of October, 2016, upon consideration of Plaintist
Motion for Reargument and/or Reconsideration of this Court’s August 3l, 2016
Order Granting Defendant AT&T Corp.’s Motion for Summary Judgment and the
response thereto, IT IS HEREBY ORDERED that the Motion for Reargument
and/or Reconsideration is DENIED for the following reasons:

l. A motion for reargument under Delaware Superior Court Civil Rule

59(e) permits the Court to reconsider “its findings of fact, conclusions of law, or

judgment.”l “Delaware law places a heavy burden on a [party] seeking relief
pursuant to Rule 59.”2 To prevail on a motion for reargument, the movant must
demonstrate that “the Court has overlooked a controlling precedent or legal
principles, or the Court has misapprehended the law or facts such as Would have
changed the outcome of the underlying decision.”3 Further, “[a] motion for
reargument is not a device for raising new arguments,”4 nor is it “intended to

»»5

rehash the arguments already decided by the court. Such tactics frustrate the

interests of judicial efficiency and the orderly process of reaching closure on the
issue.6 The moving party has the burden of demonstrating “newly discovered
evidence, a change of law, or manifest injustice.”7

2. Plaintiff argues in her Motion that this Court “misapprehended the law

and/or facts” and this misapprehension Would have changed the outcome of the

 

l Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969). See also Ba'. ofManagers ofthe Del.
Criminal Justice lnfo. Sys. v. Gannett Co., 2003 WL 1579170, at *1 (Del. Super. Jan. 17, 2003),
aj'd in part, Gannett Co. v. Bd. of Managers of the Del. Criminal Justice Info. Sys., 840 A.2d
1232 (Del. 2003); Cummings v. Jimmy’s Grille, Inc., 2000 WL 1211167, at *2 (Del. Super. Aug.

9, 2000).

2 Kostyshyn v. Comm ’rs of Bellefonte, 2007 WL 1241875, at *1 (Del. Super. Apr. 27, 2007).
3 Ba'. of Managers of the Delaware Criminal Justice Info, 2003 WL 1579170, at *1.

4 ld.

5 Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).

6 See Plummer v. Sherman, 2004 WL 63414, at *2 (Del. Super. Jan. 14, 2004).

7 E.I. du Pom‘ de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. 1995).

Court’s ruling on Defendant AT&T Corp.’s Motion for Summary Judgment.

Speciflcally, Plaintiff contends that, “[W]here mixed questions of law and fact

8 Therefore, Plaintiff argues the Court

exist, the Court must defer to the jury.”
misapprehended the law when the Court found that Plaintiff failed to present
evidence of genuine issues of material fact as to whether Defendant negligently
undertook to render workplace health and safety services under § 324A of the
Restatement (Second) of Torts and Georgia law.9 Furthermore, Plaintiff raises a
new argument in her l\/Iotion regarding subsequent remedial measures.10 This
argument posits that Defendant’s subsequent remedial efforts (e.g., abating
asbestos-containing products in what Plaintiff’s refer to as the “The Bell System”)

manifest Defendant’s control over “The Bell System” and_impliedly_over

Western Electric Company (WECO), l\/lr. Jones’ employer.

 

8 Plaintiff’s Rule 59(e) Motion for Reargument and/or Reconsideration of August 31, 2006 Order
Granting Defendant AT&T Corp.’s Motion for Summary Judgment [hereinafter “Pl. Motion”] at
2, N14C-08-023 ASB (Sept. 8, 2016) (citing Cea’e & Co. v. Technicolor, Inc., 636 A.2d 956, 957
(Del. 1994)).

9 See RESTATEMENT (SECOND) OF TORTS § 324A (1965) (“One who undertakes, gratuitously or
for consideration, to render services to another which he should recognize as necessary for the
protection of a third person or his things, is subject to liability to the third person for physical
harm resulting from his failure to exercise reasonable care to protect his undertaking . . .”). See
also Huggins v. Aema Cas. & Sur. Co., 264 S.E.2d 191, 192 (Ga. 1980) (adopting § 324A).

10 See Pl. Motion at 5-6.

3. Defendant argues that Plaintiffs Motion rehashes the same arguments
presented to the Court on Defendant’s Motion for Summary Judgment.ll
Moreover, Defendant argues that Plaintiff failed to raise her argument on
subsequent remedial measures in her opposition to Defendant’s Motion for
Summary Judgment.12 Thus, Defendant contends that this argument is barred from
consideration on a Rule 59(e) motion.13 Alternatively, Defendant maintains that
Plaintiff s new argument does not change the outcome of this Court’s ruling in
favor of summary judgment

4. Here, Plaintiff has failed to meet her burden of demonstrating the
Court either misapprehended the law or facts presented previously on Defendant’s
Motion for Summary Judgment, much less overlook any controlling precedent
Plaintiff’ s Motion reargues facts that were presented to the Court in the parties’
briefs and at oral argument Consequently, Plaintiff remains unable to demonstrate
how AT&T assumed a legal obligation otherwise owed by Mr. Jones’ employer to

survive summary judgment

 

ll See Defendant AT&T Corp.’s Opposition to Plaintiff` s Rule 59(e) Motion for Reargument
and/or Reconsideration at 1, Nl4C-08-023 ASB (Sept. 15, 2016).

12 See id. at 5-6.

13 See id. at 6 (citing In re Asbestos (Taylor), N14C-04-009 ASB, at 7-8 (Del. Super. June 28,
2016) (Order); In re Asbestos (Hudson), 2015 WL 5016493, at *1 (Del. Super. Aug. 25, 2015)
(Order)).

5. In the Court’s August 31, 2016 Order, this Court explained that the
existence of a legal duty is a question of law.14 Relying on Georgia case law that
determined whether a legal duty existed at the summary judgment stage, this Court
held that Plaintiff failed to offer evidence of a genuine issue of material fact as to
whether Defendant “undertook to render services” pursuant to § 324A.15

6. Notwithstanding the above determination, this Court engaged in a
thorough review of § 324A’s subparts. As to subsection (a), this Court noted that
Plaintiff conceded that subsection (a) did not apply to Plaintiff’s claim. Even
without conceding this argument, there is no evidence that Defendant
“affirmatively increased the risk of harm” to Plaintiff"s decedent Next, as to
subsection (b), this Court found that the record was void as to any facts that could
raise a genuine issue on whether Defendant “completely undertook to perform”
workplace health and safety duties that WECO owed to its employees, including
Plaintiff s decedent Finally, as to subsection (c), this Court held that Plaintiff
failed to demonstrate any evidence of “actual reliance” by WECO on Defendant’s

alleged undertaking through Defendant’s safety recommendations to WECO.

 

14 See Garner & Glover C0. v. Barrett, 738 S.E.2d 721, 723 (Ga. Ct. App. 2013)).

15 See Rasnick v. Krishna Hospitalily, Inc., 713 S.E.2d 835, 837 (Ga. 2011) (summary
judgment); Barrett, 738 S.E.2d 721 (same); Hyde v. Schlotzsky’s, Inc., 561 S.E.2d 876 (Ga. Ct.
App. 2002) (same)).

7. Plaintiff’ s Motion reargues the same facts that formed the basis of this
Court’s analysis above. This is precisely prohibited under Rule 59(e).16 Moreover,
Plaintiff cites no new Georgia authority that would support why this Court should
reconsider its earlier analysis.

8. lnstead, Plaintiff relies on Cea'e & Co. v. Techm'color, Inc.17 for the
proposition that, where there exist mixed questions of fact and law, summary
judgment is not appropriate.18 However, unlike here, the Cede Court was not faced
with the question of whether a legal duty existed. Additionally, Cea’e did not
involve the determination of a legal obligation applying another forum’s
interpretation of the Restatement (Second) of Torts. Instead, Cede dealt narrowly

with a determination of whether the Court of Chancery’s finding on a mixed

19

question of fact and law was erroneous as a matter of law. The Supreme Court

deferred to the Court of Chancery on its finding of materiality in the breach of the

board of directors’ fiduciary duty to disclose one director’s self-interest in a

 

16 See, e.g., Hupan v. Alliance One Im"l Inc., 2016 WL 4502304, at *4 (Del. Super. Aug. 25,
2016) (quoting Kennedy v. lnvacare Corp., 2006 WL 488590, at *l (Del. Super. Jan. 31, 2006);
Bd. OfManagers of the Del. Crimz`nal Justice Info. Sys. v. Gannett Co., 2003 WL 1579170, at *l
(Del. Super. Jan. 17, 2003)).

17 636 A.2d 956 (De1. 1994).
18 See Pl. Motion at 2-3.

19 See Cede, 636 A.2d at 957 (“We must defer to the factfinder on a mixed question of fact and
law, as to which reasonable minds may differ on the question of materiality.”)

corporate transaction.20 Cherry-picking the Cea’e Court’s deference to the Court of
Chancery’s factual findings, Plaintiff argues_in essence-_that mixed questions of
fact and law are impervious to summary judgment.21 Yet, Cea’e did not alter the
principle that the existence of a legal duty is for the Court to decide as a matter of
law, even where there is a mixed question of fact and law.22 Thus, Cea’e does not
support Plaintiff’s Motion for Reargument and/or Reconsideration.

9. Finally, Plaintiff’s new argument regarding subsequent remedial
measures was not raised previously and will not be considered on this Rule 59(e)

motion.23

 

20 see id. at 956-57.
21 See Pl. Motion at 2-3.

22 See, e.g., Cash v. East Coast Prop. Mgmt., Inc., 2010 WL 4272935, at *3 (Del. Supr. Oct. 29,
2010) (citing Pipher v. Parsell, 930 A.2d 890, 892 (Del. 2007); Hana'ler Corp. v. Tlapechco, 901
A.2d 737, 748-49 (Del. 2006)) (“Cash misunderstands the role of judge and jury. Whether a
defendant has a legal duty is a question of law, not fact, and is for the court to decide.”); Riea'el v.
ICIAmericas Inc., 968 A.2d 17, 20 (Del. 2009) (“Whether lCl owed Mrs. Riedel a legal duty is a
question of law for the Court to determine.”); Naidu v. Laira', 539 A.2d 1064, 1070 (Del. 1988)
(citations omitted) (“The determination of the existence and scope of a legal duty presents mixed
questions of law and fact. The ultimate question of Whether ‘such a relationship exists between
the parties that the community will impose a legal obligation upon one for the benefit of the
other’ is an issue for the court.”). See also Rasnick v. Krishna Hospitality, Inc., 713 S.E.2d 835,
837 (Ga. 2011) (“The existence of a legal duty is a question of law for the court.”).

23 See Ba'. of Managers of the Del. Criminal Justice Info. Sys. v. Gannett Co., 2003 WL 1579170,
at *l (Del. Super. Jan. 17, 2003).

IT IS SO ORDERED that Plaintiff s Rule 59(e) Motion for Reargument
and/or Reconsideration of this Court’s August 31, 2016 Order Granting Defendant

AT&T Corp.’s Motion for Summary Judgment is DENIED.

W\._/

Judge Vivian L. M

  

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