IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION
ELIZABETH RAMSEY,

Administrator of the Estate of
DOROTHY RAMSEY, deceased,

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Plaintiff, )
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v. ) C.A. No. Nl4C-01-287 ASB
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ATLAS TURNER LTD., et al., )
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Defendants. )

Submitted: May 8, 2017
Decided: May ll, 2017

QRM
Upon Plaintijj"$ Rule 5 9(e) Motion for Reargument and/or Reconsideration of
February 2, 201 7 Order Granting Defendant Herty ’S
Motionfor Summary Judgment. DENIED.

AND NOW TO WIT, this llth day of May, 2017, upon consideration of
Plaintifl’ s Motion for Reargument and/or Reconsideration of this Court’s
February 2, 2017 Order granting Defendant Georgia Southern University
Advanced Developrnent Center (“Herty”)’s Motion for Summary Judgment, the
response thereto, and the parties’ positions at oral argument, IT IS HEREBY

ORDERED that the Motion for Reargument and/or Reconsideration is DENIED

for the following reasons:

l. Dorothy Ramsey (“Plaintiff’), through her estate, alleges that
Defendant Herty, a manufacturer of asbestos paper product, negligently failed to
warn her of the risks of take-home asbestos exposure due to the use of Herty’s
product at her husband’s workplace from 1976-1980. Specifically, she claims
Herty owed her a duty of care because she was a “foreseeable plaintiff’ who would
be exposed to Herty’s asbestos product when her husband transported the asbestos
debris home on his work uniform. She argues that Herty’s alleged failure to warn
her of this danger was a proximate cause of her lung cancer.

2. On February 2, 2017, this Court granted Herty’s Motion for Summary
Judgment.l The Court found that Plaintiff alleged claims of nonfeasance consistent
with the allegations in Price v. E.I. DuPont de Nemours & C0.2 and Riedel v. ICI
Americas lnc.3 Further, Plaintiff conceded that no legally-significant “special
relationship” existed between the parties. Without a special relationship, therefore,
the Court held that Herty did not owe a duty of care to Plaintiff as a matter of law.
This Rule 5 9(e) motion followed the grant of summary judgment to Herty.

3. 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

 

1 See ln re Asbestos Litig., 2017 WL 465301 (Del. Super. Feb. 2, 2017) [hereinafter Ramsey].
2 26 A.3d162(Del.2011).

3 968 A.2d 17 (Del. 2009).

judgment . . .”4 “Delaware law places a heavy burden on a [party] seeking relief
pursuant to Rule 59.”5 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.”6 Further, “[a] motion for
reargument is not a device for raising new arguments,”7 nor is it “intended to
rehash the arguments already decided by the court.”8 Such tactics frustrate the
interests of judicial efficiency and the orderly process of reaching finality on the
issues.9 The moving party has the burden of demonstrating “newly discovered
evidence, a change of law, or manifest injustice.”10

4. Plaintiff does not argue “newly discovered evidence” or a “change of
law.” Instead, she contends that this Court misapprehended the law and facts

relevant to Herty’s summary judgment motion. Plaintiff admits that there is no

new or supplemental authority that was not already considered in the Court’s prior

 

4 Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969). See DEL. SUPER. CT. CIV. R. 59(e).
5 Kostyshyn v. Comm ’rs of Bellefom‘e, 2007 WL 1241875, at *1 (Del. Super. Apr. 27, 2007).

6 Bd. of Managers ofDel. Criminal Justice lnfo. Sys. v. Gannett Co., 2003 WL 1579170, at *1
(Del. Super. Jan. 17, 2003), ajj”’d in part, 840 A.2d 1232 (Del. 2003).

7 ld.
8 Kennea’y v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).
9 See Plummer v. Sherman, 2004 WL 63414, at *2 (Del. Super. Jan. 14, 2004).

10 E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. 1995).
-3

ruling. Rather, she reasserts that this Court should have found that Herty owed a
duty of care to her as a foreseeable plaintiff of its alleged negligence Plaintiff
points to the Restatement (Second) of Torts §§ 388 and 395 in her Motion and
argues that this Court should have followed the general duty of care for
manufacturers as recognized in cases such as In re Asbestos Litigation (Colgain).ll
Moreover, Plaintiff contends that the Court misapprehended the facts by
mischaracterizing her claims: she continues to characterize Herty’s alleged
negligence as affirmative acts (i.e., misfeasance), rather than failures to act (i.e.,
nonfeasance). Without exception, all of Plaintiff s arguments in her Motion were
considered in this Court’s ruling on summary judgment

5. First, Plaintiff rehashes the same argument regarding duty of care.
Plaintiff has consistently argued that a general duty of care should apply to the
facts of this case.12 This duty of care would extend to Plaintiff, the employee’s

spouse, as a “foreseeable plaintiff’ of Herty’s alleged negligence Plaintiff

 

ll In re Asbestos Litig., 799 A.2d 1151 (Del. 2002) (affirming grant of summary judgment on
claims that Finnish asbestos mining company’s successor-in-interest negligently failed to warn
workers at plant that purchased defendant’s asbestos-containing product; record was devoid of
“at least a prima facie case establishing” defendant had knowledge of hazards of its product
between 1938 and 1941). See also In re Asbestos Litig. (Mergenthaler), 542 A.2d 1205 (Del.
Super. 1986) (denying motion for summary judgment; holding issue of material fact existed
about whether defendant-supplier knew or should have known that employees at worksite would
not receive adequate warnings from their employer regarding dangerousness of supplier’s
asbestos-containing product). Cf. In re Asbestos Litig. (Walls), 2017 WL 1422626 (Del. Supr.
Apr. 21, 2017) (TABLE) (affirming trial verdict to defendant on claim that Ford failed to warn
about its asbestos-containing automotive products).

‘2 Se@ Ramsey, 2017 wL 465301, at *3.

attempted to distinguish the case sub judice to the situations in Price and Riea’el; in
both of these cases, Plaintiff argued, the Court’s holding was limited to the
situation where the employer fails to act to protect the employee’S spouse»-not
where the manufacturer fails to protect a foreseeable plaintiff of its alleged
negligence13 Nevertheless, the Court rejected this position, finding Price and
Riea'el controlling on duty of care in the take-home asbestos context.14 Plaintiff
disagrees with this conclusion, but she does not supplement her argument or claim
that the Court overlooked controlling precedent The Court will not reconsider its
decision on duty of care where the Motion rehashes the same arguments
considered in this Court’s earlier opinion.

6. Second, Plaintiff’s citation to §§ 388 and 395 of the Restatement and

suggestion that the Court misapprehended these sections is unpersuasive15 The

 

13 See id. at *3-4.
14 Id.

15 The Court noted in its earlier decision that Plaintiff provided a cursory citation to § 388 in her
original response to the motion for summary judgment See id. at *5. This citation received no
attention during oral argument on the motion for summary judgment See generally Hearing
Transcript (Dec. 8, 2016) [hereinafter Tr.]. Moreover, at the hearing on the motion for
reconsideration, Plaintiff merely cited § 388 without elaborating on how the Court
misapprehended the law with respect to this section of the Restatement

Similarly, § 395 was addressed briefly during oral argument on the motion for summary
judgment_by Herty. See Tr. at 7:20-9:22. Plaintiff s present motion cites § 395 once, stating:
“Plaintiff also cited to [§ 395], which provides a manufacturer must exercise due care in the
manufacture of products, which would include warning if the product Was dangerous Defendant
conceded that Plaintiff cited [§§ 388, 395].” Plaintiff’s Rule 59(e) Motion for Reargument
and/or Reconsideration at 2 (emphasis added) (footnotes omitted). However, § 395 was never
mentioned at oral argument on the motion for reconsideration As such, the Court places little

5

Court set out in detail § 388 and its general applicability to failure-to-warn asbestos
cases in its earlier decision.16 While noting that § 388 is the traditionally-
propounded theory of duty in such cases,17 the Court distinguished Plaintiff’s case
from those cases where a manufacturer supplies an asbestos-containing product to
a worksite and fails to warn a third-party user of the product’s dangerous
propensities.18 lnstead, the Court held that Price and Riea'el augment this analysis
in the context of take-home asbestos cases. Thus, where nonfeasance is alleged,
the plaintiff must identify a special relationship before liability for nonfeasance
may attach.19 Plaintiffs arguments to the contrary were considered and rejected in
this Court’s earlier decision.

7. Finally, Plaintiff reiterates that her failure-to-warn claims should be
characterized as misfeasance rather than nonfeasance. This argument was
fundamental to Plaintiff’s contentions on summary judgment20 As such, this

Court has already exhaustively considered this argument Plaintiff`s Motion

 

weight on an argument that is merely “cited,” incompletely briefed, and not mentioned at oral
argument

16 See Ramsey, 2017 WL 465301, at *4-5.
17 See, e.g., In re Asbestos Litig. (Mergerithaler), 542 A.2d 1205 (Del. Super. 1986).
18 S@e Ramsey, 2017 wL 465301, at *7.

19 See id. The lack of a special relationship was conceded in the original motion and at the
hearing for the present motion for reconsideration

20 Seeid.at*3,7-8;Tr.at13:6-14;18,15:7-12.

disagrees with that conclusion, but this does not entitle her to reconsideration of

that decision, particularly in the absence of any new or supplemental authority on

this issue.

For the foregoing reasons, Plaintiff’s Rule 59(e) Motion for Reargument
and/or Reconsideration of this Court’s February 2, 2017 Order granting Defendant

Herty’s Motion for Summary Judgment is DENIED.

IT IS SO ORDERED. &/

Judge Vivian L. Med` ' a

cc: Original - Prothonotary
All Counsel via File&Serve

 

