IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

OWENS-ILLINOIS, lNC., et al.,

IN RE: ASBESTOS LITIGATI()N )
)

JESSE HASTINGS and his Wife, )
DlANE HASTINGS, )
)

Plaintiffs, )

)

v. ) C.A. No. Nl 5C-06-0l4 ASB

)

)

)

)

Defendants.

Submitted: December 8, 2016
Decided: January l7, 2017

Upon Defendant RCH Newco ll LLC ’s Motionfor Summary Judgment, DENIED.
Q_RD_E_R

AND NOW this l7th day of January, 2017, upon consideration of Defendant
RCH NeWco ll LLC (“RCH Newco”)’s l\/lotion for Summary Judgment, the
response thereto, and the parties’ oral arguments, IT IS HEREBY ORDERED
that the Motion for Summary Judgment is DENIED for the following reasons:

l. Plaintiffs J esse and Diane Hastings claim that l\/lr. Hastings contracted
colon cancer as a result of his exposure to RCH Newco’s asbestos-containing
product, Galbestos. RCH Newco, a successor to H.H. Robertson Co.,

manufactured Galbetsos, Which Was a protected metal siding and roofing product

l\/Ir. Hastings, the sole product identification Witness, testified in two depositions

that his relevant exposure to Galbestos occurred while he was employed as an
ironworker and foreman at various Dupont sites from 1951-1969 and in the 1980s
2. In Mr. Hastings’ first deposition, he testified that he started working at
DuPont’s Chestnut Run facility in 1951-52. As an ironworker, he participated in
constructing the entire facility.l He initially did not recall working with asbestos
products while at the facility, though he recalls being around other trades that may
have used asbestos-containing products.2 He testified that he was a foreman for
some period of time at Chestnut Run and at another DuPont facility, the
Experirnental Station.3 As foreman, he supervised everything his fellow
ironworkers did at the site.4 “We put in windows. . . . We installed panels for

”5 As foreman, he did not perform hands-on

siding and--we did most everything
worl<.6

3. l\/lr. Hastings testified that he came into contact with asbestos-

containing products at the DuPont Glasgow Pencader site for a period of six

 

l Defendant’s Motion at Ex. B, 48 (first deposition transcript).
2 see id at49-51.

3 S@e zd. ar 51.

4 See id.

5 161

6 See id.

months sometime during the 1980s7 Asked whether he recalled performing hands-
on work as an ironworker, l\/lr. Hastings stated; “[W]e put a building up in
Glasgow. And it had, it had big panels for the outsides of the building, were big
panels that were erected. They were like twelve foot tall and two foot wide. And
they were insulated panels. So I have no idea whether they were asbestos . . .”8
At that time, he couldn’t recall who manufactured these panels.9 He testified that
they had difficulty installing these panels because of their size and the site’s
limitations on their ability to cut the panels.m He stated that they did not drill into
the panels; instead, they used a type of clip to fasten the panels.ll

4. Mr. Hastings testified to working as an ironworker foreman at Lukens

Steel in l985.12 At Lukens, he worked on the construction of a blast-furnace.13

l\/lr. Hastings’ work history lists the presence of Galbestos at Lukens, but l\/lr.

 

7 see id. ar 56-59.
8 la ar 56.

9 See id. at 57. He could not remember the name of any manufacturers of products with which
he came into contact in the first depostion. See id. at 79.

m see id. ar 58-59.
ll See id. at 59.
12 see zd. ar 80-81.

‘3 See id. at 80.

b)

Hastings did not identify the manufacturer of any asbestos-containing products at
the site.14

5. ln l\/Ir. Hastings’ second deposition a month later, he reiterated that his
principal place of employment for l4 years was the Chestnut Run facility starting
in the early 1950s15 When asked by his counsel whether he associated any
products with his time at Chestnut Run, l\/lr. Hastings responded: “We put
aluminum siding on it. I can’t think of the name of it now. l don’t know. lt was a,
corrugated siding. lt had a coating, kind of brownish-red coating on it. Hmm.
Fab, Fabestos or something like that.”16 Counsel interjected, asking:
“Galbestos‘?”17 l\/[r. Hastings affirmed, confirming the product’s name was

”]8 Mr. Hastings then explained that this product was used on

“Galbestos.
temporary storage buildings19 “Well, you had to cut it to fit; had to saw it with a,

with a power saw to fit the size. And then you put it on with screws, with a screw

 

14 See Defendant’s l\/Iotion at 5 (citing Defendant’s Motion at Ex. C; enclosing Plaintiff”s work
history).

15 Defendant’s Motion at Ex. E, 33-34 (second deposition transcript).
"’1¢1_ ar 35.

17 Idl

‘8 1a

19 see 1a ar 35, 78-79.

gun.”ZO Sawing, which took only a “rnatter of seconds” to complete, would create
dust.21 He reiterated that the Galbestos came in sheets of l2 feet long by 2 feet
wide.22 lt was brownish red in color on both sides, rough in texture, and
corrugated23 Mr. Hastings stated that he never personally cut the siding, but
supervised other ironworkers in his role as foreman.24 He testified that this type of
siding work was a “small percentage” when compared to his other tasks.25

6. RCH Newco filed its l\/lotion for Summary Judgment on September 6,
2016, contending that: (l) Mr. Hastings’ testimony is internally inconsistent-
partially as a result of an impermissible leading question from his lawyer_and
does not create a genuine issue of material fact; and (2) absent his inconsistent
testimony on Galbestos exposure, he cannot state a valid claim under Delaware law
to survive summary judgment on the issue of product nexus. Plaintiff filed a
response in opposition to the l\/[otion on October 3, 2016. Defendant filed a reply
brief on October 2l, 20l6. The Court heard oral argument on the l\/lotion on

December 8, 2016, at which time the Court reserved ruling. Having considered the

 

20 1a at 35_36. see also 1a at 79-80.
21
1a at 36, 80.
22 See id. at 77-78.
23 See id. at 78.
24 see 1a at 80-81.

25 rd. ar 85.

parties’ filings and oral arguments, as well as the record in this case, the l\/lotion is
ripe for decision.

7. The burden of proof on a motion for summary judgment falls on the
moving party to demonstrate that “there is no genuine issues as to any material fact
and that the moving party is entitled to judgment as a matter of law.”26 lf the
moving party satisfies its initial burden, the non-moving party must sufficiently
establish the “existence of one or more genuine issues of material fact.”27
Summary judgment will not be granted if there is a material fact in dispute or if “it
seems desirable to inquire thoroughly into [the facts] in order to clarify the

9928

application of the law to the circumstances “All facts and reasonable inferences

must be considered in a light most favorable to the non-moving party.”29
8. Under Delaware’s product nexus standard, the plaintiff is required to

“proffer some evidence that not only was a particular defendant’s asbestos

containing product present at the job site, but also that the plaintiff was in

 

26 DEL. SUPER. CT. C1v. R. 56(c).

27 Qualzzy Elec. ca, ma v. E. Smres Consz. serv., lnc., 663 A.zd 488, 1995 wL 379125, ar *3_4
(Del. 1995) (TABLE). see also Ru1@ 56(@); Moore v. sizemore, 405 A.zd 679, 681 (De1. 1979).

28 Ebersole v. Lowengrub, 180 A.2d 467, 469-70 (Del. 1962).
29 ivan v. A.C. & s. CO., lnc., 517 A.zd 690, 692 (Der super 1986) reitng Mechelz v_ Palmer,

343 A.2d 62(), 62l (Del. 1975); Alls[ate Aulo Leasing Co. v. Cala’well, 394 A.2d 748, 752 (Del.
Super. 1978)).

proximity to that product at the time it was being used.”3’0 This “time and place
standard” requires plaintiff show “some evidence” of both “daily and continuous
proximity” to defendant’s product for more than a de minimis period of time.3 l

9. The Court finds that l\/lr. Hastings’ testimony, though admittedly
inconsistent in several material respects, should not be stricken under the reasoning

2 ln the latter case, the Supreme Court

of Edmisten v. Greyhound Lines, lnc.3
affirmed the grant of summary judgment where two product identification
witnesses contradicted one another about the provenance of a particular product
relevant to the asbestos claim.33 The Court held that, where “‘plaintiff` s testimony
is so inconsistent that no reasonable juror could accept it, that testimony will not be
credited as raising a genuine issue of material fact to overcome a defendant’s
summary judgment motion.”34

10. The Court finds that the case sub judice is distinguishable from

Ea’mz'sten. While in Edmisten the inconsistency in both witnesses’ testimony went

to a crucial and distinct issue, i.e., the origination of certain asbestos-containing

 

30 Nun, 517 A.zd ar 692.

31 See Cc)llz`ns v. Ashlana’, Inc., 2009 WL 81297 (Del. Super. Jan. 6, 2009) (denying summary
judgment on product nexus grounds).

32 49 A.zd 1192, 2012 wL 3264925 (Dei. supr. Aug. 13, 2012) (TABLE).

33 See id. at *2 (“The trial court found that Frank Edmisten’s inconsistent testimony about his
company’s purchases of Greyhound buses and parts suggested he did not truly remember those
facts, and instead was speculating.”).

34 1a ar *2 (quoring smizh v. Del. sure Umv_, 47 A.3d 472, 477 (r)ei. 2012)).
7

parts, l\/lr. Hastings’ testimony simply wavers on his ability to fully recollect
certain salient aspects about his exposure to RCH Newco’s product. Though his
testimony differs in certain significant respects between his first deposition and his
last, l\/lr. l-lastings’ testimony does not reach the level that no reasonable juror
could accept his recollection of his exposure. Rather, any inconsistency in the
testimony should be left to the jury to weigh in its role as ultimate arbiter of the
facts.35

ll. Furthermore, the Court finds that the alleged leading question from
Plaintiff’ s counsel_-supplying the product’s name where Plaintiff recalled
“Fabestos”--was not leading, but rather a clarification offered by counsel “The
rule proscribing leading questions on direct examination is grounded in the
principle that ‘the most important peculiarity of the interrogational system is that it
may be misused by suggestive questions to supply a false memory for the
witness-that is, to suggest desired answers not in truth based upon a real
recollection.”’36 Mr. Hastings appears to have struggled with the precise wording
of the product name, Galbestos. Over the course of a long deposition, particularly

in cases involving asbestos exposure, such mistakes are reasonable and expected

 

55 S@e, e.g., Washmgmn v. smr@, 4 A.zd 375, 381 (Der 2010) (quoring Tyre v. szare, 412 A.2d
326, 330 (Del. 1980)) (“It has long been our law that the jury is the sole judge of the credibility
of the witnesses and responsible for resolving conflicts in the testimony.”).

36 Christiana Care Health Servs., Inc. v. Crist, 956 A.2d 622, 626 (Del. 2008) (quoting
3 W1GM0R1-:, WIGMoRE oN EleENCr-: § 769).

As such, Plaintiff”s counsel’s question in supplying the proper name of the product
was a clarification and not an objectionable leading question. Consequently, the
Court will consider this testimony along with l\/lr. Hastings additional testimony on
his alleged exposure to Galbestos in both depositions

l2. After a review of Mr. Hastings’ testimony, the Court finds that RCH
Newco has not met its burden of proving no genuine issues of material fact exist
regarding Mr. Hastings’ exposure to its product. Plaintiff has presented some
evidence that he was exposed to Galbestos for an appreciable period of time at
several jobsites as an ironworker and foreman. Though there are inconsistencies in
his testimony, those inconsistencies may be addressed at trial since they do not
render his testimony so inconsistent that no reasonable juror would accept his
testimony.

IT IS SO ORDERED that Defendant RCH Newco’s Motion for Summary

Judgment is DENIED.

 

Judg€ Vivian L Med/nil£"\\\

cc: Original - Prothonotary
All Counsel via File&Serve

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