IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN RE: ASBESTOS LITIGATION:
Liml'tea' to.'

CRAIG CHARLES RICHARDS and
GLORIA JEANNE RICHARDS, his wife
C.A. No. Nl 6C-04-206 ASB

Plaintiffs,

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V- )
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COPES-VULCAN, INC., )
THE FAIRBANKS COMPANY, )
FORD MOTOR COMPANY, and )
THE GOODYEAR TIRE & RUBBER )
COMPANY, et al., )
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Defendants.

Submitted: July 3 0, 2018
Decided: August 8, 2018

.(M

Upon Plaintiffs’ Motion for Leave to Supplement Expert Report Due to
Changes in Substantive LaW, and/or for Reargument
DENIED.

Bartholornew J. Dalton, Esquire, Ipek K. Medford, Esquire, Andrew C. Dalton,
Esquire, Michael C. Dalton, Esquire, Dalton & Associates, Cool Spring Meeting
House, 1106 West Tenth Street, Wilrnington, Delaware 19086; Adam Balick,
Esquire, Michael Collins Smith, Esquire, Patrick Smith, Esquire, Balick & Balick,
LLC, 711 King Street, Wilmington, Delaware 19801, Attorneys for Plaintiffs Craig
Charles Richards and Gloria Jeanne Richards, his Wife; Weitz & Luxenberg, P.C.,
700 Broadway, New York, New York 10003, of counsel.

Paul A. Bradley, Esquire, Antoinette D. Hubbard, Esquire, Maron Marvel Bradley

Anderson & Tardy LLC, 1201 North Market Street, Suite 900, Wilmington,
Delaware 19801, Attorneys for Defendant CopeS-Vulcan, Inc.

Timothy A. Sullivan, III, Esquire, Wilbraham, Lawler & Buba, 919 N. Market
Street, Suite 980, Wilmington, Delaware 19801, Attorneys for The Fairbanks
Company.

Christian J. Singewald, Esquire, Rochelle L. Gumapac, Esquire, White and Williams
LLP, Courthouse Square, 600 N. King Street, Suite 800, Wilmington, Delaware
19801, Attorneys for Ford Motor Company.

Jason A. Cincilla, Esquire, Amaryah K. Bocchino, Esquire, Ryan Browning,
Esquire, Paul S. Seward, Esquire, Manning Gross + Massenburg, 1007 N. Orange
Street, 10th Floor, Wilmington, Delaware 19801, Attorneys for The Goodyear Tire
& Rubber Company.

WHARTON, J.

This 8th day of August, 2018, upon consideration of Plaintiffs Craig Charles
Richards and Gloria Jeanne Richards’ Motion for Leave to Supplement Expert
Report Due to Changes in Substantive Law, and/or for Reargument (“Motion”),l the
Responses in opposition of defendants Copes-Vulcan, Inc.,2 Ford Motor Company,3
The Goodyear Tire & Rubber Company,4 the Defendants’ Coordinated Joint
Supplemental Response in Opposition to Plaintiffs’ Motion for Leave to Supplement
Expert Report Due to Changes in Substantive Law, and/or for Reargument,5 and the
record in this matter,6 it appears to the Court that:

1. On July 10, 2018, the Court granted summary judgment in favor of all
four defendants7 In each instance, the Court based its decision on the recent opinion
of the Ohio Supreme Court in Schwartz v. Honeywell,8 in Which the Ohio held that
the theory of causation predicated on cumulative exposure, such as advanced by
Plaintiffs’ expert Dr. Mark Ginsberg, Was insufficient to establish substantial factor

causation under Ohio laW.

 

1 D.I. 23 1 .

2 D.I. 239.

3 D.I. 240.

4 D.I. 241.

5 D.I. 242.

6 lt appears that The Fairbanks Company did not submit a response, but in light of
the Court’s decision, it does not deem The Fairbanks Company’s opposition Waived.
To hold otherwise Would produce an anomalous result.

7 D.I. 224 (Copes-Vulcan, Inc.), 225 (The Fairbanks Company), 226 (Ford Motor
Company), 227 (Goodyear Tire & Rubber Company),

8 2018 WL 793606 (Ohio 2018).

3

2. On June 16, 2017, Plaintiffs served Dr. Ginsberg’s initial report on
Defendants.9 Dr. Ginsberg’s conclusion, applicable to all defendants, Was that:
Mr. Richard’s cumulative exposure to asbestos Was a
substantial contributing cause of his malignant
mesothelioma. lt is my further opinion, to a reasonable
degree of medical certainty, that the cumulative exposure
from each company’s asbestos product or products Was a
substantial contributing factor in the development of Mr.
Richardson’s malignant mesothelioma. Each such
product for Which exposure can be shown Was a cause of
said disease.10
3. On February 8, 2018, the Supreme Court of Ohio released its opinion
in Schwartz. 11 In Schwartz, the Court held that cumulative exposure causation Was
incompatible With Ohio statutory law, Which requires an individualized
determination for each defendant.12 The Court also found other problems With
cumulative exposure causation beyond its incompatibility With Ohio’s statutory
scheme.13 Because this Court found that Dr. Ginsberg’s cumulative exposure
causation opinion Would not pass muster under Ohio law, it granted the defendants
summary judgment.

4. Plaintiffs’ sought and Were granted an opportunity to seek leave for Dr.

Ginsberg to submit a supplemental report. ln their Motion, Plaintiffs attach a

 

9D.I. 110.

l°D.I. 231 at Ex. B.
11 Schwartz, supra
121d. at *3.

‘3Ia’. at *4.

supplemental report from Dr. Ginsberg dated July 18, 2018.14 ln his supplemental
report, Dr. Ginsberg concludes that Mr. Richards’ exposures to each defendant’s
products “were sufficient to constitute a substantial factor in causing his
mesothelioma.”15

5 . In asbestos litigation, applications to modify the Master Trial
Scheduling Order are reviewed under the “good cause” standard.16 “Good cause is
likely to be found when the moving party has been generally diligent, the need for
more time was neither foreseeable nor its fault, and refusing to grant the continuance
would create a substantial risk of unfairness to that party.”17 “Properly construed,
‘ good cause’ means that the scheduling deadlines cannot be met despite a party’s
diligent efforts.”18

6. Super. Ct. Civ. R. 60(b) provides that relief from a judgment or order
may be granted under certain limited circumstances, including where there is

“excusable neglect.” As a general proposition, the party seeking relief under Rule

60(b) must establish that: l) it acted in a reasonably prudent fashion; 2) it has the

 

14 D.I. 231 at Ex. A.

15Ia’.

16In re.' Asbestos Litig. (Vala), 2012 WL 2389898 at *l (Del. Super.).

17Incyte Corp. v. Flexus Bioscz'ences, Inc., 2017 WL 7803923 at *3 (Del.
Super.)(quoting Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1107
(Del. 2006).

18R0gers v. Bushey, 2018 WL 818374 at *& (Del. Super.) (quoting Candlewood
Tiber Group LLC v. Pan American Energy LLC, 2006 WL 258305 (Del. Super.)).

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possibility of a meritorious claim; and 3) there is a lack of substantial prejudice to
the non-moving party.19 In addressing motions under Rule 60(b), the Court must
consider whether a moving party acted in a reasonably prudent fashion, in other
words whether there is excusable neglect, first.zo The Court will only consider
whether there is the possibility of a meritorious claim and whether the non-moving
party would suffer substantial prejudice if a moving party acted in a reasonably
prudent fashion,21 Further, it is a moving party’s burden to prove that it acted in a
reasonably prudent fashion.22

7. In support of its excusable good cause/excusable neglect argument,
Plaintiffs argue that: l) they submitted their expert report eight months before
Schwartz was decided; 2) there were only 22 days between the issuance of Schwartz
and the due date for expert reports; and 3) the substantive law of Ohio had not been
ordered as controlling on the date Plaintiffs’ expert reports were due.23 Plaintiffs
appear to attach particular significance to this last consideration because it appears
in bold in their Motion and is preceded by an introductory “importantly.”24 There is

less to these arguments than meets the eye. The fact that Plaintiffs produced their

 

19 PNC Bank v. Sills, 2006 WL 3587247 (Del. Super. Ct.) at *5.
2°Perry v. Wilson, 2009 WL 1964787 at *l (Del. Super. Ct.).
21Ia’.

22Ia’.

23 D.I. 231 at jj 6.

24Id.

expert report eight months before the due date is of no particular significance What
is significant is how much time they had to produce a supplemental report after the
decision in Schwartz. lt is true that there were only 22 days between the issuance of
Schwartz and the deadline for the submission of expert reports. But, it took Plaintiffs
only eight days to produce a supplemental report from Dr. Ginsberg. Obviously,
Plaintiffs could have produced a supplemental report before the expiration of the
expert report deadline if they had undertaken to do so immediately following the
release of Schwartz.

8. The real problem for Plaintiffs is that they never sought leave for Dr.
Ginsberg to supplement his report until after the Court had entered summary
judgment against them. They did not seek leave to submit a supplemental report in
the 81 days between the expiration of the expert report deadline and the service of
the summary judgment motions of Ford Motor Company and Copes-Vulcan, lnc.,
both of which cited Schwartz.25 Nor did they seek leave in the 105 days between the
publication of Schwartz and their filing of their oppositions to the summary
judgment motions of Ford Motor Company and Copes-Vulcan, lnc., despite
addressing Schwartz in both responses, or in the 153 days until oral argument on the

motions.26 Further, the fact that Ohio substantive law was not ordered controlling

 

25D.l. 169 at 3 (Ford Motor Company), 176 at 11 (Copes-Vulcan, lnc.).
26See D.I. 191 (Ford Motor Company), 193 (Copes-Vulcan, lnc.).

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until after the expert deadline is of no significance Plaintiffs designated Ohio law
as controlling in their complaint, and they have not suggested that there was any
other state whose substantive law realistically might apply.27 ln short, Plaintiffs
always knew Ohio substantive law would apply. The date of the Court’s Order
confirming that fact is of no help to them. By failing to seek leave to supplement
their expert report until after summary judgment was entered against them, the Court
finds that Plaintiffs have not demonstrated good cause/excusable neglect to warrant
granting them leave to submit Dr. Ginsberg’s supplemental report or to grant them
reargument28

THEREFORE, good cause and/or excusable neglect having not been
established, Plaintiffs’ Motion for Leave to Supplement Expert Report Due to

Changes in Substantive Law, and/or for Reargument DENIED.

IT IS SO ORDERED. %

Ferr{ s W. W"fiar,ton J.

 

27D.l. 1 at1116.

211ln their Motion, Plaintiffs seek reargument as to Defendants Ford Motor
Company and Goodyear Tire & Rubber Company on the theory that Schwartz
makes clear that an expert opinion is not a mandatory component of a plaintiffs
prima facie case. Motion at 11 2, n. 1. The Court finds that interpretation of
Schwartz to be too broad. Further, absent Dr. Ginsberg’s opinion, Plaintiffs are left
without any expert medical opinion as to causation. At most, they simply would
be able to present testimony about exposure, which is insufficient under Ohio law.
See, Terry v. Caputo, 875 N.E. 2d 351 (Ohio 2007).

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