     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION

DOROTHY              CHARBONNEAU,              )
individually     and      as     personal      )
representative of the estate of ROBERT         )
CHARBONNEAU, deceased,                         )
                                               )
       Plaintiffs,                             )      C.A. No. N15C-01-045 ASB
                                               )
              v.                               )
                                               )
CLEAVER-BROOKS INC., et al.,                   )
                                               )
       Defendants.                             )

                                       July 11, 2017


                           Upon Defendant Cleaver Brooks
                     Motion for Summary Judgment. GRANTED.


       Plaintiff Dorothy Charbonneau cannot satisfy the summary judgment

criteria.1 Plaintiff Dorothy Charbonneau (hereinafter “Plaintiff”) alleges that her

husband, Robert Charbonneau, was exposed to asbestos from Defendant Cleaver-

Brooks boilers working as a maintenance man in Massachusetts. Mr. Charbonneau

worked as a maintenance man for Greeting Cards in Webster, Massachusetts from

1957 to 1960.        He stated that he believes he was exposed to asbestos from

1
  Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del.
Super. Dec. 30, 2013); see Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S.,
Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In re Asbestos Litigation (Helm), 2012 WL
3264925 (Del. Aug. 13, 2012).
replacing gaskets and refractory on the boilers. Mr. Charbonneau was responsible

for maintaining the boilers and testified that he worked on two Cleaver-Brooks

boilers. Following his work at Greeting Cards, Mr. Charbonneau worked at

Hammond Plastics (a/k/a Gordon Chemical). He testified that he worked on two

Cleaver-Brooks boilers at the Oxford location. Mr. Charbonneau referred to an

“older boiler” and a “new boiler” in his testimony. As to the “new boiler,” Mr.

Charbonneau testified that he did not install the boiler, but he installed the pipes

after the boiler was installed. Mr. Charbonneau also testified that he removed a

sectional boiler at Sacred Heart Church during employment with Smith

Mechanical. He testified that the boiler may have been Cleaver-Brooks but stated

that he believed this because “they had a lot of Cleaver-Brooks in the area.”

Plaintiff presented evidence that Cleaver-Brooks sold boilers that incorporated

asbestos-gaskets and rope through the 1970s.

      Defendant contends that Plaintiff‟s claims fail under Massachusetts law

because a manufacturer does not owe a duty to warn for asbestos dangers from

other manufacturers‟ parts. Further, Defendant argues that Plaintiff failed to prove

a strict liability claim because Massachusetts does not recognize strict liability in

tort. Rather, Massachusetts adopted the Restatement (Second) of Torts § 402A

limiting liability to “one who sells” a defective product. Defendant also argues

that because Plaintiff failed to prove a wrongful death claim under Massachusetts
law, Plaintiff‟s punitive damages claim also fails because punitive damages are

only recoverable in a wrongful death claim. Under Massachusetts law:


         To prove causation in an asbestos case, the plaintiff must establish (1)
         that the defendant's product contained asbestos (product
         identification), (2) that the victim was exposed to the asbestos in the
         defendant's product (exposure), and (3) that such exposure was a
         substantial contributing factor in causing harm to the victim
         (substantial factor).2

Plaintiff argues that under Morin, the court announced a “adjusted” and lessened

standard of exposure necessary in asbestos cases. Specifically, Plaintiff cites to the

following portion of the opinion:

         Because the resulting injury may not emerge for years or decades after
         exposure, the law does not require the plaintiff or his or her witnesses
         to establish the precise brand names of the asbestos-bearing products,
         the particular occasions of exposure, or the specific allocation of
         causation among multiple defendants' products. Evidence will be
         sufficient to reach the fact finder if it permits the reasonable inference
         of the presence at a work site of both the plaintiff and the defendant's
         asbestos-containing product for an appreciable period of exposure.3


Plaintiff avers that she is able to meet this standard under Morin and thus summary

judgment is not appropriate. However, Plaintiff neglects to discuss that under

Massachusetts law, also analyzed in Morin, Massachusetts does not hold a

manufacturer liable “for failure to warn of risks created solely in the use or misuse



2
    Morin v. AutoZone Ne., Inc., 943 N.E.2d 495, 499 (Mass. App. Ct. 2011).
3
    Id.
of the product of another manufacturer.”4 In Morin, the plaintiff asked the court to

impose a duty to warn on a defendant because it was foreseeable to the defendant

that “owners might repair its trailers with asbestos brakes from other

manufacturers.”5 The Morin court stated that “[n]o Massachusetts precedent

directly addresses [this] proposition,”6 and that the court knew of three other

jurisdictions “which had held that a manufacturer will not be liable for the risk

caused solely by a third party‟s replacement asbestos product even if the use of the

third party‟s product was reasonably foreseeable to the manufacturer.”7 The Morin

court did not reach a decision on this issue because the court had “a ground for

decision short of the proposed choice between adoption or rejection of a

categorical rule or corollary.”8 Other Massachusetts cases have made it clear that

to “prove causation in an asbestos case, it is plaintiff‟s principal burden to show

that a defendant‟s product contained asbestos and that the victim was exposed to

the asbestos in the defendant’s product.”9 The issue here is that Plaintiff has not


4
   See In re Asbestos Litig. (Cosner), 2012 WL 1694442, at *1 (Del. Super. Ct. May 14,
2012)(citing Dombrowski v. Alfa Laval, Inc., 2010 WL 4168848 (Mass. Super. Ct. July 1,
2010)). “Under Massachusetts law, a manufacturer has a duty to warn purchasers of dangers
involved in the use of the product for which the manufacturer knows or should know.
Accordingly, a manufacturer has „no duty . . . to set forth . . . a warning of a possible risk created
solely by an act of another that would not be associated with a foreseeable use or misuse of the
manufacturer‟s own product.” Morin, 943 N.E.2d at 505.
5
  Morin, 943 N.E.2d at 505.
6
  Id.
7
  Id. at 505, n. 10.
8
  Id. at 505.
9
   Whiting v. CBS Corp., 2013 WL 530860, at *1 (Mass. Ct. App. Feb. 14, 2013)(emphasis
added).
shown that her husband was exposed to asbestos from a product manufactured by

Defendant.     Under Morin, Plaintiff “must produce evidence of a degree of

exposure greater than insignificant or de minimis.”10 Plaintiff‟s husband cleaned

Defendant‟s boilers and described the process. His job involved replacing ripped

gaskets and work with refractory cement. He believed that the parts contained

asbestos because of the high-heat application, and he could not recall the name of

the replacement parts. Thus, the main issue is whether Mr. Charbonneau was

exposed to asbestos from Defendant’s product. Plaintiff‟s brief did not address the

issue of Defendant‟s liability for other manufactured products. However, the Court

is reluctant to follow a foreseeability argument. Massachusetts has not held that

this is the law of the State, and this Court will not find otherwise. Plaintiff‟s brief

focuses on the parts of Defendant‟s boilers that contained asbestos. The list of

asbestos parts includes gaskets, refractories, rope, and Plaintiff argues that Cleaver-

Brooks sold asbestos-containing replacement gaskets, cement, and rope. Again,

the only asbestos containing parts at issue in Mr. Charbonneau‟s case are gaskets

and cement. The record indicates that Mr. Charbonneau‟s job was to replace these

parts.   The Court emphasizes that “Massachusetts courts have never held a

manufacturer liable . . . for failure to warn of risks created solely in the use or



10
  In re Asbestos Litig. (Bruce), 2012 WL 1405714, at *2 (Del. Super. Feb. 21, 2012)(citing
Morin, 943 N.E.2d at 499-500)).
misuse of the product of another manufacturer.”11 There is no evidence in the

record that the replacement parts Mr. Charbonneau worked with were asbestos

parts manufactured or supplied by Defendant, Cleaver-Brooks. As stated above,

under Morin, it is Plaintiff‟s burden to show that Defendant‟s product contained

asbestos and that the victim was exposed to the asbestos in the defendant’s

product.   Plaintiff has not met this burden.       Additionally, Mr. Charbonneau

removed one boiler during the course of his employment and he was not sure

whether the boiler was Cleaver-Brooks. Accordingly, for the reasons stated above,

Defendant‟s Motion for Summary Judgment is hereby GRANTED.

IT IS SO ORDERED.

                                         /s/ Calvin L. Scott
                                         The Honorable Calvin L. Scott, Jr.




11
  In re Asbestos Litig. (Cosner), 2012 WL 1694442 (Del. Super. May 14, 2012)(citations
omitted).
