Brake Machine Defendant Summary Decision of the judgment reversed on appeal | Goldberg Segalla

In this asbestos action, plaintiff Shelley Droz alleged that her husband, Eric Droz, was diagnosed with mesothelioma as a result of his exposure to asbestos while using an arc grinder to resurface brake shoes. . She alleged that Hennessy’s interested predecessor had manufactured the arc grinding machine and further alleged that Hennessy knew that the grinding process produced dust containing asbestos and was required by law of Washington State, to warn Mr. Droz of the potential dangers of exposure. to asbestos dust. Superior Court of Delaware allowed Hennessy’s motion for summary judgment, finding that once Hennessy showed that the arc grinder could be used with both asbestos-containing and non-asbestos brake shoes, the onus shifted to Ms. Droz to show that Mr. Droz used brake shoes containing asbestos with the arc grinder. The Superior Court agreed with Hennessy that Mr. Droz had failed to provide sufficient evidence of asbestos dust exposure from brake shoes to counter Hennessy’s motion for summary judgment.

The plaintiff appealed and the issues in dispute are whether the Superior Court misapplied the Superior Court Rule 56 burden shifting framework and, once the onus has shifted to the plaintiff to raise a genuine a matter of material fact, whether Ms. Droz presented evidence showing that Mr. Droz used brake shoes containing asbestos with an arc grinder.

The Court of Appeals noted that while in high school between 1971 and 1973, Mr. Droz was employed by a small, full-service auto shop called Larry’s Auto Repair. Mr. Droz serviced car brakes and used a tool called an “arc grinder.” An arc grinder grinds the outer surface of a brake shoe for a proper fit of the brake shoe against the brake drum. While Mr. Droz used the arc grinder to grind many types of brake shoes, he only identified three specific brands: Bendix, Wagner and Raybestos. In the early 1970s, all three companies were selling brake shoes that contained asbestos. Therefore, the court concluded that it was “extremely likely” that Droz operated the arc grinder with asbestos-containing brake drum shoes from the three brake shoe manufacturers he identified.

The Court of Appeal further noted that the Superior Court’s decision in Stigliano vs. Westinghouse serves as an appropriate framework for applying Rule 56 to product identification disputes in cases of asbestos exposure. In Stigliano, the plaintiff alleged exposure to asbestos welding rods manufactured by Westinghouse Electric Corporation. Westinghouse sought summary judgment. The court had to decide “whether there was a genuine question of material fact regarding the plaintiff’s exposure to a product containing asbestos manufactured, sold or distributed by Westinghouse. The plaintiff claimed that he had been exposed to Westinghouse welding rods made with asbestos and only worked with them. However, the record showed that the plaintiff also worked with other welding rods and that Westinghouse manufactured both asbestos-containing and non-asbestos welding rods when the plaintiff claimed exposure. Summary judgment was granted to Westinghouse and the court noted that where the record reveals that a defendant manufactured both asbestos-containing and non-asbestos versions of a product during the period of alleged exposure , in the absence of evidence directly or circumstantially linking the plaintiff to the product containing asbestos, the court cannot draw the conclusion of the exposure and a summary judgment on the link with the product must be rendered.

The Court of Appeal notes that the Superior Court correctly apportioned the charges of the summary judgment. Under Stigliano, and as required by Article 56, the defendant bears the original burden. He must demonstrate that he manufactured a product containing asbestos and a product without asbestos at the time of the alleged exposure. If the defendant makes this showing, the onus is on the plaintiff to prove by direct or circumstantial evidence that there is a genuine question of material fact as to whether the plaintiff was exposed to the defendant’s asbestos-containing product. However, the Court of Appeal overturned the Superior Court’s decision in this case, finding that Ms. Droz had discharged her burden of raising a genuine issue of material fact as to whether Mr. Droz had been exposed to asbestos dust through the use of the grinder with asbestos-containing brake drum shoes when she provided evidence that Mr. Droz used the Hennessy arc grinder on brake shoes sold by two manufacturers who, at the time of the exposure, only sold brake shoes containing asbestos.

Accordingly, the Superior Court’s decision granting Hennessy’s motion for summary judgment was reversed and the matter remitted.

Read the full decision here.

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