             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                       IN AND FOR NEW CASTLE COUNTY
RONALD SHIMKO and CAROL                        )
SHIMKO,                                        ) ASBESTOS
                                               )
                   Plaintiffs,                 ) C.A. No.: N10C-12-238 ASB
                                               )
             v.                                ) JURY TRIAL DEMANDED
                                               )
HONEYWELL INTERNATIONAL INC.,                  )
et al.,                                        )
                                               )
                   Defendants.                 )




                                 Submitted:   June 2, 2014
                                 Decided:     September 30, 2014

                       Upon Defendant’s Motion for Summary Judgment
                                        GRANTED

Raeann Warner, Esquire, Jacobs & Crumplar, P.A., Wilmington, Delaware, Attorney for
Plaintiffs.

Joelle Florax, Esquire, Rawle & Henderson, LLP, Wilmington, Delaware, Attorney for
Defendant.

DAVIS, J.

                                          INTRODUCTION

       This is a civil asbestos tort action. In this action, Plaintiffs Ronald Shimko and Carol

Shimko allege that, due to Defendant Honeywell International Inc.’s wrongful conduct, Mr.

Shimko was exposed to asbestos and, as a result of that exposure, developed pleural disease and

asbestosis. Upon review of the Complaint and the Amended Complaint filed is this civil action,

the Court is unclear what are Ms. Shimko’s claims for recovery. For purposes of this decision,

the Court will assume Ms. Shimko’s claims arise out of loss of consortium.
        Unrelated to the claims against Honeywell International Inc., as the successor-in-interest

to Bendix Corporation (“Honeywell”), the Complaint also alleges occupational exposure to

roofing, siding, and dry-wall while Mr. Shimko was performing home renovations. The Court is

not addressing those unrelated claims in this Opinion.

        For the reasons stated in this Opinion, Defendant Honeywell International Inc.’s Motion

for Summary Judgment is GRANTED.

                                        PROCEDURAL BACKGROUND

        The Shimkos filed the Complaint on December 28, 2010. Honeywell answered the

Complaint and asserted various affirmative defenses and crossclaims on February 22, 2011. On

April 4, 2011, the Shimkos filed an amended Complaint. Honeywell answered the amended

Complaint on April 8, 2011. On February 19, 2014, this Court determined that Delaware

substantive law governed this case.

        Honeywell filed its Defendant Honeywell International Inc.’s Motion for Summary

Judgment (the “Motion”) on March 13, 2014. The Shimkos filed a Plaintiff’s Response to,

Honeywell International Successor in Interest to Bendix Corporation’s Motion for Summary

Judgment (the “Response”) 1 on April 10, 2014.

        On April 21, 2014, the Shimkos also filed the Affidavit of Ronald Shimko (the “Shimko

Affidavit”). The Response does not reference the existence of the Shimko Affidavit or that the

Shimkos would be filing the Shimko Affidavit in support of the Response. Honeywell filed its

Honeywell International Inc.’s Reply in Support of Its Motion for Summary Judgment (the

“Reply”) and Honeywell International Inc.’s Motion to Strike Plaintiffs’ Sham Affidavit (the

“Motion to Strike”) on April 23, 2014.


1
 The Court has used the title of the Response in the form it was submitted to the Court without making any editorial
corrections for typos or alike.

                                                         2
        The Court held a hearing on the Motion, the Response, the Reply and the Motion to

Strike on May 8, 2014. After the hearing, the Court took the matters under advisement.

        After the hearing, the parties continued to submit papers with the Court. All dealt with

the validity of the Shimko Affidavit. On May 13, 2014, Honeywell submitted a letter in

response to the Shimko Affidavit. Honeywell also submitted an affidavit from the court reporter

(the “Court Reporter Affidavit”) who recorded the deposition of Mr. Shimko. The Court

Reporter Affidavit stated that the court reporter reviewed the deposition transcript and corrected

a question that was asked of Mr. Shimko. Honeywell contended that this correction resolved an

open issue as to the clarity of a question asked by Honeywell during Mr. Shimko’s deposition.

Thereafter, the Shimkos’ counsel contacted the Court and asked for time to review the Court

Reporter Affidavit and clarify the Shimkos’ position on the Shimko Affidavit. On May 29,

2014, the Shimkos submitted another letter to the court and an additional affidavit of Mr. Shimko

(the “Shimko Affidavit 2”). Honeywell responded to the Shimko Affidavit 2 on June 2, 2014.

At this point, the Court, once again, took the matter under advisement.

                                    FACTUAL BACKGROUND

        In a deposition taken on September 24, 2013, Mr. Shimko testified regarding his

occupational exposure to asbestos-containing brakes, clutches and gaskets. Mr. Shimko also

discussed work he did as a “shade tree” mechanic, working on his vehicles and his friends’

vehicles. Mr. Shimko did not identify any Honeywell products – in this instance Bendix brand

parts – in his occupational work. With respect to his “shade tree” mechanic work, Mr. Shimko

initially testified:

        Q. All right. Do you have any recollection regarding the name, brand or
        manufacturer of brakes shoes or pads that you would have put on your own
        personal vehicles?



                                                 3
        A. I know I put a Bendix on once, a Raybestos on, Raybestos. That’s all I can
        think of. Oh, Pennsylvania, Pennsylvania brakes, I know I put them on. I
        couldn’t tell you what years or anything like that.

        Q. Can you tell me the name, brand or manufacturer of any of the brakes that you
        ever removed from your personal vehicles?

        A. No. 2

        The Court has reviewed the transcript and is satisfied that Mr. Shimko did not testify with

any specificity about more than one brake job installation involving Bendix brakes. Mr. Shimko

recalled that it occurred sometime in the late 1960s and that he installed drum brakes. 3 Mr.

Shimko did not remember whether the Bendix packaging identified that the Bendix products

contained asbestos and could not otherwise describe the packaging. 4 Mr. Shimko did state that

he probably used Bendix brakes on other occasions, but he could not recall those occasions and

he was unable to provide any additional details about his work with Bendix brakes. 5 Mr. Shimko

did not testify at all about removing Bendix brakes. In addition, Mr. Shimko did not state that he

cut, sanded or otherwise altered any Bendix brakes that he installed on a vehicle.

        Mr. Shimko did testify about removing old brake shoes. Mr. Shimko, however, did not

identify the manufacturer of any of the brakes he removed. 6 Mr. Shimko stated that when

removing old brake shoes that he had to clean the drum with an air hose. 7

        Mr. Shimko was represented at his deposition by his counsel. The deposition transcript

shows that Mr. Shimko’s attorney did ask Mr. Shimko two questions regarding the use of Bendix

brakes, but did not ask specific questions regarding installation or removal of Bendix brakes. 8.


2
  Shimko depo. at 128:3-15.
3
  Shimko depo. at 172-173.
4
  Shimko depo. at 174.
5
  Shimko depo. at 175; 186-187.
6
  Mr. Shimko did state that he removed OEM brakes during his work as a mechanic but did not identify any
manufacturers with respect to his work as a “shade tree” mechanic. Shimko Depo at 79; 104.
7
  Shimko depo at 70, 161-163.
8
  Shimko depo. at 184.

                                                       4
In response, Mr. Shimko stated that he knew he used Bendix brakes because he liked them but

could not provide anymore facts regarding their use.           Upon follow-up questioning by

Honeywell, Mr. Shimko stated that he could not remember the “amount of times” that he

recalled working on Bendix brakes or the last time he worked with Bendix brakes. 9 The Court

notes that the deposition does not present any testimony from Mr. Shimko that when he worked

with Bendix products that the work was dusty or otherwise provided any friable exposure.

        Subsequent to filing the Response but before the May 8, 2014 hearing, Mr. Shimko

sought to supplement the factual record through the Shimko Affidavit. In the Shimko Affidavit,

Mr. Shimko avers that he “performed over fifty (50) brake jobs using Bendix brakes, which [Mr.

Shimko] recalls were the dustiest brakes I ever used. 10” No other facts are provided regarding

Bendix brakes. The Response did not reference or otherwise rely on the Shimko Affidavit. In

the Shimko Affidavit 2, Mr. Shimko again addresses Bendix brakes. There Mr. Shimko states

that he “does not know the exact number of brake jobs I did with Bendix brakes, because I did

not keep a record. However, I can say in good faith that I estimate that I did at least 50 brake

jobs with Bendix brakes over that 50 year span.” 11 Mr. Shimko does not explain why in his

deposition he only specifically remembered one installation involving Bendix brakes but now

remembers installing Bendix brakes over 50 times during a 50 year period.

                                          PARTIES’ CONTENTIONS

        Honeywell contends that the Shimkos have failed to establish that Mr. Shimko was

exposed to asbestos from a product sold by Honeywell that meets the requirements under

Delaware law. Honeywell argues that Delaware law requires that Mr. Shimko establish a

9
  Shimko depo at 186-187. The question corrected by the Court Reporter is the question contained on page 187 of
the Shimko depo. See Letter from Joelle Florax to the Honorable Eric M. Davis dated May 13, 2014, Court
Reporter affidavit.
10
   The Shimko Affidavit at ¶5.
11
   The Shimko Affidavit 2 at ¶4.

                                                        5
threshold “product nexus,” which entails evidence of Mr. Shimko being exposed to asbestos

fibers from Bendix brakes. Honeywell also claims that Mr. Shimko cannot satisfy the “but for”

causation standard. In this argument, Honeywell contends that Mr. Shimko’s work with Bendix

products on one occasion in the 1960s is so de minimus that the Shimkos cannot show that “but

for that purported work, Mr. Shimko would not have developed pleural disease and pulmonary

asbestosis.” 12

             The Shimkos argue that summary judgment is not appropriate here. The Shimkos note

that Honeywell admits that Mr. Shimko worked with and was “exposed” to Bendix products but

that Honeywell only disputes the amount of exposure. The Shimkos note that Honeywell admits

in interrogatories that Bendix brakes contained asbestos. Finally, the Shimkos argue that they

can meet the Delaware “but for” causation standard, contending that the Shimkos’ expert will

provide the necessary testimony on causation.

           Importantly, the Response states that Mr. Shimko used Bendix brakes once. The

Response notes that Mr. Shimko testified to putting Bendix brakes on an automobile. The

Response does not rely on any specific testimony that Mr. Shimko removed any Bendix

products. The Response does not argue that Mr. Shimko performed over fifty (50) brake shoe

replacements with Bendix products or that Bendix products were the dustiest brakes he ever

used. The Shimkos first raised those facts when they filed the Shimko Affidavit and the Shimko

Affidavit 2.

                                       STANDARD OF REVIEW

           The standard of review on a motion for summary judgment is well-settled. The Court’s

principal function when considering a motion for summary judgment is to examine the record to



12
     Motion at 6.

                                                 6
determine whether genuine issues of material fact exist, “but not to decide such issues.” 13

Summary judgment will be granted if, after viewing the record in a light most favorable to a non-

moving party, no genuine issues of material fact exist and the moving party is entitled to

judgment as a matter of law. 14 If, however, the record reveals that material facts are in dispute,

or if the factual record has not been developed thoroughly enough to allow the Court to apply the

law to the factual record, then summary judgment will not be granted. 15 The moving party bears

the initial burden of demonstrating that the undisputed facts support his claims or defenses. 16 If

the motion is properly supported, then the burden shifts to the non-moving party to demonstrate

that there are material issues of fact for resolution by the ultimate fact-finder. 17

         However, to survive summary judgment, a plaintiff’s claim must be based on more than

mere speculation. “The Court must decline to draw an inference for the non-moving party if the

record is devoid of facts upon which the inference reasonably can be based.” 18 An inference

cannot be based on “surmise, speculation, conjecture, or guess, or on imagination or

supposition.” 19

         To survive a motion for summary judgment in an asbestos action where Delaware law

applies, the plaintiff must be able to demonstrate that “a particular defendant’s asbestos-

containing product was used at the job site and that the plaintiff was in proximity to that product



13
    Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del .1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. 1973).
14
    Merrill, 606 A.2d at 99-100; Dorr-Oliver, 312 A.2d at 325.
15
    Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del.1962). See also Cook v. City of Harrington, 1990 WL 35244, at
*3 (Del. Super. Feb. 22, 1990)(citing Ebersole, 180 A.2d at 467)(“Summary judgment will not be granted under any
circumstances when the record indicates ... that it is desirable to inquire more thoroughly into the facts in order to
clarify the application of law to the circumstances.”).
16
    Moore v. Sizemore, 405 A.2d 679, 680 (Del.1979)(citing Ebersole, 180 A.2d at 470).
17
    See Brzoska v. Olson, 668 A.2d 1355, 1364 (Del.1995).
18
   In re Asbestos Litig., C.A. No. N10C-12-011 ASB, 2012 WL 1408982 at *2 (Del. Super. Apr. 2, 2012) (quoting
In re Asbestos Litig., CIV.A. 01C-11-239, 2007 WL 1651968 at *16 (Del. Super. May 31, 2007)).
19
   Id.

                                                          7
at the time it was being used.” 20 Delaware’s standard implicitly requires “that the particular

defendant’s product to which the plaintiff alleges exposure must be friable, that is, the product

must be susceptible to releasing fibers which are capable of ingestion or respiration.” 21

         The Court should not “sustain a claim which rests upon speculation or conjecture or on

testimony which could not meet the ‘time and place’ standard.” 22 “Measuring the accumulation

of time a plaintiff needs to be in proximity to a product in order to overcome summary judgment

is not a hard science and need not require specificity.” 23 To establish asbestos exposure, a

plaintiff must present evidence that would allow an inference that he was in close proximity to

specific locations at which a defendant’s asbestos product was present and was friable. 24

                                                   DISCUSSION

         The Court holds that the Shimkos’ claims against Honeywell are too speculative to

survive summary judgment. In his deposition, Mr. Shimko mentions specifically using Bendix

products only one time. Mr. Shimko testified that he installed Bendix brakes on one occasion

but that he “probably used” Bendix products on other occasions. Mr. Shimko really does not

remember much with respect to Bendix products. Mr. Shimko did not state that he was exposed

to any dust or fibers when installing Bendix products.

         Mr. Shimko only mentions dirt and dust with respect to those times he removed and

replaced old brake shoes. However, Mr. Shimko does not identify that any of those old brake

shoes were Bendix brakes. Finally, Mr. Shimko could not identify any Bendix products with any

degree of certainty.

20
   In re Asbestos Litig., 509 A.2d 1116, 1117 (Del. Super. 1986) (“the plaintiff ‘must proffer evidence that at the
time [the defendant's asbestos product] was present on the site he was in the area where [the product] was used, near
that area, walked past that area, or was in a building adjacent to where [the product] was used if open windows or
doors would allow asbestos fibers to be carried to the area where the plaintiff was working’”).
21
   Mergenthaler v. Asbestos Corp. of Am., Inc., 1988 WL 16284, at *3 (Del. Super. July 13, 1988).
22
   In re Asbestos Litigation, 509 A.2d at 1117-18.
23
   Collins v. Ashland, Inc., N06C-03-339, 2009 WL 81297, *4 (Del. Super. Jan. 6, 2009).
24
   In re Asbestos Litigation (Helm), 2007 WL 1651968, *20-22 (Del. Super. June 25, 2007).

                                                          8
        To survive summary judgment, the Shimkos must base their claims against Honeywell on

more than mere speculation. As stated above, the Court must decline to draw an inference for

the Shimkos if the record does not contain facts upon which the inference reasonably can be

based. Moreover, the Court cannot base an inference on surmise, speculation, conjecture, or

guess, or on imagination or supposition.

        Based on the record, the Court holds that it cannot reasonably infer that Mr. Shimko was

exposed to asbestos fibers from a Bendix product to satisfy the standards under Delaware law

relating to product nexus. Mr. Shimko indicated he specifically remembered using Bendix

products only one time. There is no evidence that Mr. Shimko was exposed to any fibers,

asbestos or otherwise, when using Bendix products on that one installation. Moreover, Mr.

Shimko’s memory of this one installation is vague – unsure of how many brakes were worked

on, what the particular Bendix product was or even what the packaging looked like. While Mr.

Shimko did testify that he probably did use Bendix products on other occasions, Mr. Shimko

cannot provide any reliable facts for this Court to find that the Honeywell product to which Mr.

Shimko alleges exposure was friable as to him, that is, the Bendix product released fibers which

Mr. Shimko could have ingested or inhaled.

        The Court holds that it would be entirely speculative to infer that Mr. Shimko used a

Bendix product in a manner that indicated that he was exposed to friable asbestos from that

product. Therefore the Shimkos claims against Honeywell cannot satisfy the Delaware product

nexus standard. 25

        The Court did not consider the Shimko Affidavit or the Shimko Affidavit 2 in arriving at

this decision. The Court is troubled by the timing of the introduction of the Shimko Affidavit


25
  As the Court holds in favor of Honeywell with respect to Delaware law on product nexus, the Court is not
addressing whether the Shimkos can meet the “but for” causation standard.

                                                        9
and the Shimko Affidavit 2, their conclusory nature and that these were not mentioned or relied

upon by the Shimkos in the Response. The Court concludes that the Shimko Affidavit and the

Shimko Affidavit 2 are sham affidavits.

        Delaware law does not allow sham affidavits. A sham affidavit is an affidavit submitted

by a party opposing summary judgment that creates a fact issue by contradicting earlier sworn

deposition testimony without adequate explanation. 26 The reason for the sham affidavit rule is

clear

        On predicate issues, like product nexus, it is not too much to expect of a plaintiff
        that he will be prepared to offer definitive testimony in interrogatories or at a
        deposition regarding the factual basis for his claims against specific defendants.
        Absent extraordinary circumstances, a plaintiff should be bound by his sworn
        testimony. To allow otherwise would cause product nexus to become a “moving
        target” and would, by consequence, turn the asbestos docket on its head. 27

        The Court must find the following elements before striking an affidavit as a sham: (i)

prior sworn testimony; (ii) given in response to unambiguous questions; (iii) yielding clear

answers; (iv) later contradicted by sworn affidavit; (v) without adequate explanation; and (vi)

submitted in order to defeat a properly supported summary judgment motion. 28 In evaluating

these factors, the Court should also consider whether the affiant was cross-examined about the

earlier testimony, had access to pertinent evidence, or the evidence is newly discovered, at the

time of the testimony, and the earlier testimony reflects confusion which the affidavit attempts to

explain. 29

        Here, the Court finds that the Shimko Affidavit and the Shimko Affidavit 2 are affidavits

that contradict sworn deposition testimony involving unambiguous questions and clear answers.

Moreover, Mr. Shimko was represented by counsel at his deposition and his counsel did not find

26
   See In re Asb. Litigation (Tisdel), 2006 WL 3492370 (Del. Super.Ct. Nov. 28, 2006)
27
   Id. at *4.
28
   Id. at *5.
29
   Id.

                                                       10
it necessary to clarify the forms of the questions or clarify Mr. Shimko’s answers with further

questioning. There is no explanation that Mr. Shimko suffered a lapse of memory during his

deposition or otherwise suffered from a mental defect.

           The form and timing of the Shimko Affidavit and the Shimko Affidavit 2 also support a

finding that these are sham affidavits. The Response was filed on April 10, 2014. The Response

argues points from the deposition and makes no reference to the imminent filing of the Shimko

Affidavit – dated April 16, 2014 and filed on April 21, 2014. This is strange considering Mr.

Shimko’s reference in these affidavits to over fifty (50) Bendix brake jobs and that Bendix

brakes were the dustiest brakes he ever worked with. These are strong facts -- facts that if

testified to at a deposition would likely create genuine issues as to material facts. Instead, the

Response bases its opposition to summary judgment on the one instillation and the fact that Mr.

Shimko may have worked with Bendix products on other occasions. 30

           Mr. Shimko must be bound by his deposition testimony. To allow otherwise would cause

product nexus to become a “moving target.” In addition, if the Court were to consider the

Shimko Affidavit and the Shimko Affidavit 2 in response to the Motion, it would turn the

discovery process on its head. The Shimko Affidavit and the Shimko Affidavit 2 present entirely

new facts. Honeywell built its case on written discovery and deposition testimony leading up to

the filing of the Motion. With these new affidavits and their radically different facts, Honeywell

would necessarily have to re-engage and re-do all of its discovery with respect to Mr. Shimko

and product nexus.

           Under the circumstances here, the Court strikes the Shimko Affidavit and the Shimko

Affidavit 2 as sham affidavits.



30
     Response at 1-2.

                                                 11
                                         CONCLUSION

       Based on the above arguments, viewing the evidence in the light most favorable to the

non-moving party, the Shimkos have failed to present sufficient evidence to permit a jury finding

that Mr. Shimko was exposed to an asbestos-containing product attributable to Honeywell.

Therefore, Defendant Honeywell International Inc.’s Motion for Summary Judgment and the

Honeywell International Inc.’s Motion to Strike Plaintiffs’ Sham Affidavit are hereby

GRANTED.

       IT IS SO ORDERED.

                                            /s/ Eric M. Davis
                                            Eric M. Davis
                                            Judge




                                               12
