           IN THE SUPREME COURT OF THE STATE OF DELAWARE


IN RE: ASEBESTOS LITIGATION                   §
DONNA F. WALLS, individually and              §       No. 389, 2016
as the Executrix of the Estate of             §
JOHN W. WALLS, JR., deceased, and             §
COLLIN WALLS, as surviving child,             §       Court Below: Superior Court
                                              §       of the State of Delaware
      Plaintiffs Below, Appellants,           §
                                              §
      v.                                      §
                                              §       C.A. No. 14C-01-057
FORD MOTOR COMPANY,                           §
                                              §
      Defendants Below, Appellees.            §

                          Submitted: April 5, 2017
                          Decided:   April 21, 2017

Before VALIHURA, VAUGHN, and SEITZ, Justices.

                                      ORDER

      This 21st day of April, 2017, upon consideration of oral argument, the briefs,

and the record below, it appears to the Court that:

      (1)    Donna F. Walls and Collin Walls (“Plaintiffs”) filed a complaint in

Superior Court against Ford Motor Company (“Ford”) alleging that Ford was

negligent in failing to warn John W. Walls, Jr. (“Mr. Walls”) of the dangers posed

by servicing asbestos brake parts in Ford vehicles. The complaint alleged that Mr.

Walls, the husband and father of the Plaintiffs who worked on Ford and other

makes of vehicles for a living, died from exposure to asbestos due to Ford’s
negligence. Before trial, Ford moved for summary judgment on liability, claiming

that Ford had no duty to warn Mr. Walls about asbestos replacement brake parts

manufactured by third party parts suppliers, and that Plaintiffs had failed to

produce evidence that Mr. Walls had been exposed to any Ford asbestos brake

parts. The Superior Court granted the motion in part, ruling that Ford had no duty

to warn Mr. Walls about the dangers associated with third party replacement brake

parts. The court denied the remainder of the motion. The case then went to trial

limited to negligence claims directed at Ford’s original and replacement asbestos

brake parts. The jury determined that Ford was not negligent for failing to warn

Mr. Walls about the dangers associated with Ford’s original or replacement

asbestos brake parts.

      (2)    The Plaintiffs have not appealed the jury’s verdict. Instead, they have

appealed the Superior Court’s partial summary judgment decision relating to

asbestos replacement brake parts made by third party suppliers. They argue that

the Superior Court erred when it granted partial summary judgment because Ford

had a duty to warn Mr. Walls about the hazards associated with servicing

replacement asbestos brake parts manufactured by third parties and installed in

Ford vehicles.

      (3)    We need not reach the central question presented in this appeal—

whether an automobile manufacturer such as Ford has a duty to warn about the



                                         2
dangers associated with replacement brake parts manufactured by third parties for

use in its vehicles—because the jury has determined that Ford was not negligent in

failing to warn Mr. Walls about the dangers posed by Ford original and

replacement asbestos brake parts. If Ford was not negligent for failing to warn

about the dangers associated with its original and replacement asbestos brake parts,

it could not have been negligent in failing to warn about the dangers of third party

asbestos replacement brake parts.      Thus, any error in the summary judgment

decision would be harmless error. We therefore affirm the decision of the Superior

Court.

         (4)   Mr. Walls spent the majority of his career as an automotive mechanic

at his family’s service station. From the late 1960s, the service station serviced

brakes on Chevrolet and Ford vehicles. Mr. Walls worked at the service station

full-time after he graduated high school in 1971. When his father retired in 1986,

Mr. Walls and another relative bought the service center.

         (5)   Mr. Walls regularly completed brake work on Ford vehicles,

including removing and installing original Ford and aftermarket brake parts.

Plaintiffs alleged that during this time, all brands of replacement brake parts for

Ford vehicles contained asbestos, and that Ford was aware that there was no

alternative to asbestos-containing brake parts.




                                          3
       (6)    Mr. Walls contracted mesothelioma and died on July 26, 2012.

Plaintiffs filed suit in the Superior Court in January 2014 alleging Ford was

negligent for failing to warn about the dangers of removing and replacing asbestos-

containing brake parts from its vehicles.1 On July 29, 2015, after a lengthy period

of discovery, Ford moved for summary judgment. Ford argued that Plaintiffs had

failed to produce evidence that Mr. Walls had been exposed to any Ford asbestos-

containing brake parts, and that it had no duty to warn when third party

replacement brake parts were used. The Superior Court granted Ford’s motion in

part. Relying on its earlier ruling in Bernhardt v. Ford Motor Company,2 the court

held that:

       Ford would not be obligated to warn [about] the risk of asbestos
       exposure from replacement parts that it did not manufacture, even
       though the plaintiff has argued that Ford vehicles were sold with
       asbestos components installed and the use of . . . asbestos-containing
       replacement parts might be foreseeable. The [c]ourt, therefore, will
       grant in part the [motion] . . . on the failure to warn claim as to any
       liability for third-party parts. [The court does] believe there’s . . . [a]
       genuine issue [of] material fact as to whether or not those replacement
       parts . . . were also provided by Ford and, therefore, [summary
       judgment as to the] failure to warn [claim] is denied.3

       (7)    The Superior Court conducted a jury trial from June 13, 2016 to June

29, 2016. The jury returned a defense verdict, determining in the special verdict


1
   The complaint also alleged claims of strict liability, willful and wanton liability, and
conspiracy, and included various other defendants.
2
  2010 WL 3005580, at *1 (Del. Super. July 30, 2010).
3
  Opening Br. Ex. A. at 27.

                                            4
form that Ford was not negligent.4 Because Ford was not found negligent, the jury

did not determine whether exposure to Ford asbestos brake parts caused Mr. Walls’

death.

         (8)   Plaintiffs appealed only the Superior Court’s grant of partial summary

judgment to Ford, where the Superior Court found as a matter of law that Ford had

no duty to warn of the dangers posed by brake parts supplied by third parties. “We

review the Superior Court’s grant of summary judgment de novo to determine

whether, viewing the facts in the light most favorable to the nonmoving party, the

moving party has demonstrated that there are no material issues of fact in dispute

and that the moving party is entitled to judgment as a matter of law.”5

         (9)   “Among the essential elements that a plaintiff must prove in a

negligence-based products liability case is that the defendant had a duty to warn of

dangers associated with its product.”6          “The manufacturer’s duty to warn is

dependent on whether it had knowledge of the hazards associated with its

product.”7 This Court has not addressed whether an automobile manufacturer such

as Ford has a duty to warn about the dangers associated with replacement brake



4
  App. to Opening Br. at 677 (Special Verdict Form).
5
   Bantum v. New Castle Cty. Vo-Tech Educ. Ass’n, 21 A.3d 44, 48 (Del. 2011) (internal
quotation omitted).
6
  In re Asbestos Litig. (Colgain), 799 A.2d 1151, 1152 (Del. 2002).
7
   Id.; see also Nicolet, Inc. v. Nutt, 525 A.2d 146, 150 (Del. 1987) (noting in dicta that
manufacturer of asbestos products has no duty to warn customers of other asbestos
manufacturers regarding hazards of exposure to asbestos).

                                            5
parts manufactured by third parties for use in its vehicles. The Superior Court has

answered this question in the negative.8

       (10) Plaintiffs argue that the Superior Court erred by granting summary

judgment to Ford because Ford has a legal duty to warn about the hazards

associated not just with a vehicle’s component parts, but the vehicle as a whole

because it was designed to work with asbestos-containing component parts.

According to Plaintiffs, because Ford (1) designed its vehicles to use asbestos

brake parts, (2) knew that only asbestos brake parts could be used as a

replacements, and (3) knew the dangers of exposure during the replacement

process, Ford “had knowledge of the hazards associated with its product,” and thus

had a duty to warn.9


8
  See, e.g., Bernhardt, 2010 WL 3005580, at *2 (“Because Ford did not manufacture asbestos-
containing brakes or clutches, the Court did not hold Ford to an understanding of another
manufacturer’s asbestos-containing products.”); Wilkerson v. Am. Honda Motor Co., Inc., 2008
WL 162522, at *2 (Del. Super. Jan. 17, 2008) (quoting Powell v. Standard Brands Paint Co.,
166 Cal.App.3d 357, 364 (1985)) (“The duty to warn does not ‘require a manufacturer to study
and analyze the products of others and to warn users of risks of products.’”); Angelini v. Abell-
Howe Co., 1991 WL 215720, at *5 (Del. Super. Oct. 4, 1991) (“[A] manufacturer has no duty to
warn about dangers associated with the use of another manufacturer’s products, even when those
products may be used in conjunction with the manufacturer’s own [products].”).
9
  See, e.g., In re Asbestos Products Liab. Litig. (No. VI), 2011 WL 5881008, at *1 (E.D. Pa. July
29, 2011) (“Because Plaintiffs raised a genuine issue of material fact as to whether Mr. Hoffeditz
was exposed to replacement brakes between 1968 and 1993, Mr. Hoffeditz suffers from
mesothelioma, and Ford knew of the asbestos-containing replacement brakes, this Court
concludes that Ford had a duty to warn Mr. Hoffeditz of the known dangers of using replacement
brakes.”); McKenzie v. A.W. Chesterson Co., 373 P.3d 150, 162 (Or. Ct. App. 2016) (“A jury
could find that defendant knew that the Navy required the placement of asbestos-containing parts
in and on the exterior of some pumps by defendant's design and pursuant to the Navy’s
specifications. A jury could also find it was foreseeable to defendant that the Navy would
continue to use such parts in and on the pumps on which McKenzie worked and that McKenzie
would be exposed to asbestos as a result.”); May v. Air & Liquid Sys. Corp., 129 A.3d 984, 990,

                                                6
       (11) Ford argues in response that the “bare metal” defense bars Plaintiffs’

claim. The bare metal defense is an affirmative defense recognized by some

jurisdictions which “provides that a manufacturer has no duty to warn about

potential dangers from exposure to a part of its product if the manufacturer did not

make or distribute the part.”10 The theory is that the makers of the specific

component part are in a better position to warn of its dangers.11

       (12) We need not decide the central issue presented on appeal, however,

because Ford has raised a preliminary issue we find dispositive—any error by the

Superior Court is harmless in light of the jury’s finding that Ford was not

negligent. Error is harmless if it would not substantively affect the outcome of the

proceedings or a party’s substantive rights.12 Here, the trial judge instructed the



992 (Md. 2015) (“[W]here a manufacturer’s product contains asbestos components and those
components must be replaced periodically with new asbestos components, the risk of harm to a
machinist removing the old and installing the new is highly foreseeable” and “when the noxious
component of the product is essential to its intended operation, the connection factor is
strengthened, and strongly favors finding a duty to warn.”).
10
   Marjorie A. Shields, Application of the “Bare Metal” Defense in Asbestos Products Liability
Cases, 9 A.L.R.7th Art. 2 (Originally published in 2015). E.g., In re Asbestos Litig. (Anita
Cosner), 2012 WL 1694442, at *1 (Del. Super. May 14, 2012) (holding that under Massachusetts
law, a manufacturer is only liable for failure to warn of risks created solely by its own product);
Harris v. Ajax Boiler, Inc., 2014 WL 3101941, at *5-6 (W.D.N.C. July 7, 2014) (no duty to warn
under North Carolina law of other manufacturers’ replacement parts); Morgan v. Bill Vann Co.,
Inc., 969 F. Supp. 2d 1358, 1366-67 (S.D. Ala. 2013) (finding that “the prevailing majority rule
in other jurisdictions is to recognize the ‘bare metal defense’”); Hughes v. A.W. Chesterton Co.,
89 A.3d 179, 190 (N.J. Super. Ct. App. Div. 2014) (“We do not agree that plaintiffs may prove
causation by showing exposure to a product without also showing exposure to an injury-
producing element in the product that was manufactured or sold by defendant.”).
11
   See Filer v. Foster Wheeler LLC, 994 F. Supp. 2d 679, 690 (E.D. Pa. 2014).
12
   See Czech v. State, 945 A.2d 1088, 1095 (Del. 2008); Whittaker v. Houston, 888 A.2d 219,
223-24 (Del. 2005).

                                                7
jury to determine whether Ford had a duty to warn Mr. Walls about the risks

associated with its asbestos brake parts.13 In the Special Verdict Form, the jury

found that Ford was not negligent for failing to warn Mr. Walls about the dangers

associated with using Ford original and replacement asbestos brake parts. If there

was no duty to warn about the dangers associated with Ford asbestos replacement

brake parts, then there would be no duty to warn about the danger associated with

third party asbestos replacement brake parts.

       (13) To avoid this outcome, Plaintiffs argue that offering evidence of third

party asbestos replacement brake parts would have improved their chances of

success because the jury could then determine whether such additional exposure


13
   The instruction entitled “Manufacturer/Seller of Consumer Goods – Duty to Warn” stated as
follows:
               A manufacturer / seller must warn about the risks of its product when it
       knows, or should know, that the product involves a risk of harm when used for the
       purpose supplied. The standard for determining the manufacturer’s duty to warn
       is whatever a reasonably prudent manufacturer engaged in the same activity
       would have done. The duty extends not only to the immediate purchaser but also
       to anyone else who might ordinarily have a risk of harm.

                This duty to warn exists only when the manufacturer / seller has reason to
       believe that the product’s users are not aware of the risk of harm. There is no
       duty to warn when the user has actual knowledge of the danger. A manufacturer
       is not required to warn of obvious risks that are generally known and recognized.

The trial judge also instructed the jury on the “Sophisticated Purchaser” defense:

                The duty to warn does not apply when the manufacturer supplies a product
       to a “sophisticated purchaser.” A sophisticated purchaser is one who the
       manufacturer knows or reasonably believes is aware of the risk of danger. There
       is no duty to warn the purchaser or its employees about the risks of harm unless
       the manufacturer knows or has reason to believe that the required warning will
       fail to reach the employees, the eventual users of the product.

                                                8
increased the harm to Mr. Walls. But Plaintiffs confuse two separate elements of

the negligence equation—duty and causation. The jury found that Ford did not

owe a duty to warn about the dangers associated with Ford asbestos replacement

brake parts. Once the jury determined that no duty to warn existed, it did not reach

the issue of causation. Adding additional asbestos replacement parts might have

improved Plaintiffs’ case on causation, but it was irrelevant to whether Ford in the

first instance had a duty to warn of the danger associated with asbestos

replacement brake parts.

       NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                             BY THE COURT:

                                             /s/ Collins J. Seitz, Jr.
                                                    Justice




                                         9
