IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN RE: ASBESTOS LITIGATION:
Limited to.'

MARCHIE DOLLY, JR., and

SANDRA L. DOLLY, individually and as
Co-Executors of the

ESTATE OF MARCHIE DOLLY, SR.,

Plaintiffs,
V.

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) C.A. NO. N16C-01-086 ASB
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PACCAR, INC., )
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Defendant.

Submitted: April 5, 2018
Decided: June 28, 2018
ORDER

Upon Defendant PACCAR Inc. ’s Motion for Surnrnary Judgment,
GRANTED.

Bartholomew J. Dalton, Esquire, Ipek K. l\/ledford, Esquire, AndreW C. Dalton,
Esquire, Michael C. Dalton, Esquire, Dalton & Associates, C001 Spring Meeting
House, 1106 West Tenth Street, Wilrnington, DelaWare 19086; Adarn Balick,
Esquire, Michael Collins Smith, Esquire (argued), Patrick Srnith, Esquire, Balick &
Balick, LLC, 711 King Street, Wilming,ton, DelaWare 19801, Attorneys for Plaintiffs
Marchie Dolly, Jr. and Sandra L. Dolly, individually and as CO-EXecutorS Of the
Estate Marchie Dolly, Sr.; Weitz & Luxenberg, P.C., 700 BroadWay, NeW York,
NeW York 10003, of counsel.

Sorners S. Price, Jr., Esquire, Jarnes M. Kron, Esquire (argued), 1313 North Market

Street _ 6th Floor, Wilmington, Delaware 19801, Attorneys for Defendant PACCAR
Inc.

WHARTON, J.

This 28th day of June, 2018, upon consideration of Defendant PACCAR
Inc.’s Motion for Summary Judgment,l Plaintiffs’ Memorandum in Opposition,2
Defendant’s Reply,3 oral argument, and the record in this matter, it appears to the
Court that:

1. Plaintiffs claim that Marchie Dolly, Sr. (“Mr. Dolly”), a non-smoker,
Was exposed to, inter alia, PACCAR Inc.’s (“PACCAR”) asbestos containing
products over the course of his career as a truck mechanic, and, as a result, developed
asbestos-related lung cancer and died. Mr. Dolly died before his deposition could
be taken. His son Marchie “Ringo” Dolly, Jr. (“Ringo”) serves as the Plaintiffs’
product identification Witness. Plaintiffs claim that Mr. Dolly Was exposed to
asbestos-containing brakes, clutches, and gaskets While Working on Peterbilt and
KenWorth trucks at Ryder Truck Rental (“Ryder”) from 1969 to 1985 and General
Delivery Trucl<ing (“General Delivery”) from 1979 to the late-1980s Plaintiffs’
claims against PACCAR are for negligence, strict product liability, and Wrongful
death.4

2. Defendant PACCAR Inc. is a manufacturer of custom built heavy-duty,

over-the-road tractor-trailer trucks. Kenworth Truck and Peterbilt are

 

lD.I. 112.
2D.I. 120.
3D.I. 127.
4D.I. 1,40.

unincorporated divisions of PACCAR. PACCAR claims it is entitled to summary
judgment for four reasons. First, under West Virginia substantive law applicable to
this case, Plaintiffs cannot show that Mr. Dolly Was frequently and regularly in
proximity to asbestos-containing products manufactured, distributed, or sold by
PACCAR in a sufficient amount or dose to have caused his asbestos-related lung
cancer. PACCAR next argues that summary judgment is appropriate because
PACCAR had no duty to Warn about hazardous replacement parts it did not
manufacture or distribute. Third, PACCAR asserts that Plaintiffs cannot show that
Mr. Dolly’s exposure to PACCAR’s asbestos containing products Was the proximate
cause of his lung cancer. Finally, PACCAR says it is entitled to summary judgment
because Plaintiffs cannot establish that the PACCAR products to Which Mr. Dolly
allegedly Was exposed contained asbestos.

3. In opposition, Plaintiffs maintain that during his career as a truck
mechanic Mr. Dolly Worked on Peterbilt and Kenworth trucks at Ryder from 1969
to 1991 and part-time at General Delivery from about 1979 to the 1ate-1980s, and
that PACCAR’s trucks incorporated asbestos-containing brakes, clutches, and
gaskets. As a result, Mr. Dolly’s exposure to PACCAR’s asbestos-containing
products Was a substantial factor causing his illness. Plaintiffs also argue that
PACCAR should be held liable for the asbestos-containing replacement parts of

other manufacturers

4. Super. Ct. Civ. R. 56(c) provides that summary judgment is appropriate
Where there is “no genuine issue as to any material fact” and “the moving party is
entitled to a judgment as a matter of laW.” When considering a motion for summary
judgment, the Court’s function is to examine the record to determine Whether
genuine issues of material fact exist “but not to decide such issues.”5 The moving
party bears the initial burden of demonstrating that the undisputed facts support its
claims or defenses.6 If the moving party meets its burden, then the burden shifts to
the non-moving party to demonstrate that there are material issues of fact to be
resolved by the ultimate fact-finder.7 Summary judgment Will be granted if, after
viewing the record in the light most favorable to the non-moving party, no genuine
issues of material fact exist and the moving party is entitled to judgment as a matter
of law.8 Summary judgment Will not be granted if there is a material fact in dispute
or if ‘it seems desirable to inquire more thoroughly into [the facts] in order to clarify
the application of the law to the circumstances.”9 The Court should not “indulge in
speculation and conj ecture; a motion for summary judgment is decided on the record

presented and not on evidence potentially possible.”10

 

5 Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992).

6 Moore v. Sizemore, 405 A.2d 679, 681 (Del. 1979).

7Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).

8 Merrill, 606 A.2d at 99-100.

9Ebers01e v. Lowengrub, 180 A.2d 467, 470 (Del. 1963).

1011/z re Asbestos Litz'g., 509 A.2d 1116, 1118 (Del. Super. 1986), af’d sub nom,
Nicolet, Inc. v. Nuz‘t, 525 A.2d 146 (Del. 1987).

4

5. The first controverted issue the Court considers is whether Ringo, as
the only product nexus witness, has provided sufficient evidence so as to raise a
genuine issue of material fact as to whether Mr. Dolly worked with sufficient
frequency and regularity in proximity to asbestos-containing products
manufactured, distributed, or sold by PACCAR. The Court has carefully reviewed
Ringo’s discovery deposition. Ringo, who became a mechanic himself, testified that
over a period of 10 ~ 12 years, from approximately the ages of 6 or 7 until he was
17 or 18, he would visit his father regularly at Ryder.ll On those visits, he observed
Mr. Dolly doing brake and clutch work, as well as other mechanic work, on the
trucks at Ryder, as well as brake work on trailers. He identified the tractors on which
Mr. Dolly would have worked as Ford, GMC, Volvo, Kenworth, and Peterbilt, and
the trailers as Great Dane, Fruehauf, and 'l`railmobile.12 lt likely is true that Ringo’s
ability at 6 or 7 years of age to accurately describe what Mr. Dolly did at work and
on what types of trucks is questionable Still, Ringo was a self-described
“motorhead since [he] was little” and “started in the mechanic business before [he]
left the family home.”13 Thus, it seems reasonable to conclude that once Ringo
determined to follow in his father’s professional footsteps, his ability to make

observations improved. Nonetheless, Ringo’s knowledge of his father’s work at

 

11D.I. 112, Ex. A at 38,39.
12 Id. at 43,44.
13Id. at 151,47.

Ryder has its limits. He has no knowledge of how many trucks Ryder owned.14 He
does not know when any of the trucks Ryder owned was purchased.15 He does not
know how many of any particular brand of truck Ryder owned.16 He does not know
whether his father performed the first brake job, clutch job, or engine work on any
particular truck.17 He does not know whether his father removed original equipment
or replacement equipment from any truck.18 He does not know where Ryder
obtained the replacement parts his father installed.19 At no point does Ringo testify
that he actually saw Mr. Dolly working on a Peterbilt or Kenworth truck. lt appears
that a fair summary of the state of the record with respect to Mr. Dolly’s employment
at Ryder is that he worked on an unknown number of trucks, some of which may
have been Peterbilts and Kenworths, an unknown number of times, replacing parts
of unknown origin with other parts of unknown origin.

6. Ringo is better positioned to describe Mr. Dolly’s work as a mechanic
at General Delivery because he worked there himself with his father from 1979 to
1985.20 Mr. Dolly’s part-time employment dates at General Delivery are a bit

unclear, but the lack of clarity is of no particular significance since it is not in dispute

 

11Ia’. at 113.
151a'.

161d. at 113-14.
17Id. at 114-15.
11‘Id. at 115.
191a’. at 117.
2°Icz’. at 108.

that he worked there part-time for a period of years. General Delivery was a trucking
company that employed drivers to drive its trucks but also leased trucks to
independent owner operators who did not work for General Delivery.21 The
manufacturers of trucks serviced at General Delivery were International, Ford,
Kenworth, Peterbilt, GMC, and Volvo.22 Trailmobile, Great Dane, and Fruehauf
were the manufacturers of trailers serviced there.23 The company kept maintenance
logs for its trucks, but not for the ones they leased to owner operators.24 As to
General Delivery’s own trucks, Ringo testified that, based on the company’s
maintenance records, his father removed the original equipment component parts
when he serviced those trucks.25 Consistent with his testimony about his father’s
work at Ryder, Ringo did not offer any information about how many trucks General
Delivery owned itself or leased to owner operators, how many of those trucks were
Peterbilt or Kenworth, how many first brake, clutch, or engine jobs his father
performed on any of the trucks General Delivery either owned and operated itself or
leased to owner operators, or how many first brake, clutch, or engine jobs his father

may have performed on Peterbilt or Kenworth trucks.26 Again, Ringo did not testify

 

21Ia’. at 51.

22Icl’. at 57.

23 [d_

24161. at 64.

25 ]d_

26 See generally, Ia'.

that he actually saw his father work on a Peterbilt or Kenworth truck. In sum, Ringo
offers little more in the way of product identification with respect to Mr. Dolly’s
work at General Delivery than he did at Ryder, except perhaps to the extent Mr.
Dolly may have worked on Peterbilt or Kenworth trucks that General Delivery
bought new and continued to operate itself, it can be inferred that he would have
removed original equipment component parts.

7. West Virginia Substantive law applies. Unfortunately, it appears that
the Supreme Court of Appeals of West Virginia has not spoken authoritatively on
the issue of causation in the asbestos context, and the parties do not agree on what it
would say if and when it does. PACCAR takes the position that under West Virginia

C¢é

law the proximate cause of an injury is the last negligent act contributing to the

injury and without which the injury would not have occurred.”’27 Additionally, it

GG¢

must be the superior’ or ‘controlling’ event or conduct, ‘distinguished from those
cases which are merely incidental or subsidiary. . .”’28 PACCAR further argues that
in the toxic tort context, West Virginia has a dose requirement to establish causation,
“‘[A] mere possibility of causation is not sufficient to allow a reasonable juror to

find causation. . .Critical to establishing exposure to a toxic chemical is knowledge

of the dose or exposure amount and the duration of the exposure.”’29 PACCR points

 

27D.I. 112 at 9 (quoting Spencer v. McClure, 618 S.E.2d 451, 455 (W.Va. 2005)).
28Ia'. (quoting Yates v. Mancari, 168 S.E.2d 746 (W.Va. 1969)).
29Id. at 10 (quoting Tolley v. ACR Ina’uszries, Inc., 575 S.E.2d 158, 169 (W.Va.

8

out that this Court followed that interpretation of West Virginia law when it granted

¢¢¢

a defense motion for summary judgment saying, [p]roof of causation must be such
as to suggest probability rather than mere possibility. Precisely to guard against raw
speculation by the factfinder . .. Critical to establishing exposure to a toxic chemical
is knowledge of the dose or exposure amount and duration of the exposure.”’30 With
respect to replacement parts, PACCAR cites Baughman v. General Motors Corp.,31
for the proposition that truck manufacturers have no duty to warn about replacement
parts they did not design, manufacture or supply.32 PACCAR points out that this
Court adopted Baughman as controlling West Virginia law.33 Based on its
interpretation of West Virginia law PACCAR urges this Court to conclude that
Plaintiffs cannot show that Mr. Dolly was frequently and regularly in proximity to
asbestos-containing products manufactured, or distributed by PACCAR and that
PACCAR had no duty to warn about the hazards of products it did not manufacture
or distribute.

8. Plaintiffs acknowledge that the Supreme Court of Appeals of West

Virginia has not addressed what evidence a plaintiff must present to survive

 

2002)).

3°Id. (quoting ln re Asbestos Lz`tz`g. (Mills), C.A. No. Nl2C-07-222 ASB (Del.
Super. Ct.)).

31780 F.2d 1131, 1132 (4th Cir. 1986).

32D.I. 112 at 10.

33161'. at 11 (citing In re Asbestos (Mz`lls)).

9

summary judgment in an asbestos case, but suggest that the federal courts’ “best
guess appears to be that West Virginia would apply the Lohrmann standard of
duration, intensity, and frequency.”34 Plaintiffs contend that the requirement of
knowledge of dose or exposure amount has never been strictly applied in the context
of asbestos exposure.35 Citing llosky v. Michelin Tire Corp.,36 a case that did not
involve asbestos, Plaintiffs also suggest that the issue of whether a manufacturer
defendant adequately warned an end user of a product’s dangers is a jury question.37

9. Interestingly, both PACCAR and Plaintiffs cite White v. Dow Chemz`cal
on the issue of causation38 In truth, White has language that supports both
arguments. “‘In a long line of decisions of this Circuit, we have emphasized that
proof of causation must be such as to suggest “probability” rather than mere
“possibility,” precisely to guard against raw speculation by the fact finder.” ’39 Citing
Lohrmann, the court then says, “To meet this burden, a plaintiff must demonstrate

the amount, duration, intensity, and frequency of exposure.”40 But the court also

 

34D.I. 120 at 6, citing Moa’ley v. 20th Century Glove Corp. of T exas, 2010 WL
7746400, at *1 (E.D. Pa. Nov. 19, 2010); White v. Dow Chem. CO., 321 F. App’x.
266, 273-74 (4th Cir. 2009) (citing Lohrmann v. Pittsburgh Corning Corp., 782
F.2d 1156, 1162-63 (4th Cir. 186)).

35D.I. 120 at 7.

36307 S.E.2d 603, 607 (W. Va. 1983).

37D.I. 120 at 9.

38 321 F. App’x. 266 (4th Cir. 2009); D.I. 112 at 10; D.I. 120 at 10 n. 20.

39 White at 273. (quoting Sakaria v. Transworla'Airlines, 8 F.3d 164, 172-73 (4th
Cir. 1993).

4°Ia’.

10

says, “‘Critical to establishing exposure to a toxic chemical is knowledge of the
dose or exposure amount and the duration of the exposure.”’41

10. ln the end though, it does not matter here whether West Virginia
substantive law requires evidence of a dose or exposure amount or whether it
requires only Lohrmann’s evidence of amount, duration, intensity, and frequency.
Plaintiffs fail to meet either test. The record simply does not contain any evidence
of even approximate numbers of Peterbilt or Kenworth trucks on which Mr. Dolly
worked at either Ryder or General Delivery, or how frequently he worked on them.
Similarly, the record does not contain any evidence of how many times or how
frequently Mr. Dolly either removed or replaced original equipment parts
manufactured or distributed by PACCAR.42 When asked these types of quantitative
questions, Ringo demurred. Asking a jury to make those determinations where
Ringo declined, would amount to an improper invitation for the jury to engage in
speculation. There is simply nothing in the record before the Court that would allow

a jury to determine the amount, duration, frequency, and intensity, much less the

dose or exposure amount, of Mr. Dolly’s exposure to Peterbilt or Kenworth trucks

 

41Id. (quoting Tolley v. ACR lndustries, Inc., 575 S.E.2d 158, 169 (W.Va. 2002).
42 lt was only during Mr. Dolly’s part-time work at General Delivery that there is
any evidence in the record that Mr. Dolly performed the first brake, clutch, or
engine work on any truck. However, that work was limited to the unknown
number of trucks General Delivery itself operated and for which it maintained
service records. Of that unknown number, there is no evidence how many, if any,
were Peterbilts or Kenworths.

ll

without indulging in raw speculation. Because of the inadequacy of Plaintiffs’
evidence establishing, even roughly, how many Peterbilt and/or Kenworth trucks
Mr. Dolly worked on, if any, it is unnecessary for the Court to decide whether
PACCAR’s potential liability would have been limited to original equipment
components or whether it would be liable for any replacement parts regardless of
manufacturer.

Therefore, there being no genuine issue of material fact on the issue of Mr.
Dolly’s exposure to PACCAR’s products, Defendant PACCAR Inc.’s l\/lotion for

Summary ludgment is GRANTED.

IT IS SO ORDERED. F%

7|fris W/W_harton, J.

12

