IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN RE: ASBESTOS LITIGATION
CONSTANCE L. AVENI, individually )
and as Executor of the Estate of )
VINCENZO J. Aveni, deceased, )
)
Plaintiff, )
) C.A. No. N14C-06-037 ASB
v. )
)
FORD MOTOR COMPANY, et al., )
)
Defendants. )
)
Decided: November 8, 2017
ORDER
Upon Defendant Ford Motor Company’s
Motion for Summary Judgment. GRANTED.
Plaintiff, Constance L. Aveni, individually and as Personal Representative of
the Estate of Vincenzo J. Aveni, deceased, (“Plaintiff”) cannot satisfy the summary
judgment criteria on the issues of product identification.1 Plaintiff alleges that
Vincenzo Aveni (“Mr. Aveni”) developed lung cancer from using Defendant Ford
Motor Company’s (“Ford”) products. Plaintiff offered Mr. Aveni’s son, Joseph
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).
Aveni, as the product identification witness. Ford filed a Motion for Summary
Judgment arguing that it is entitled to summary judgment because Plaintiff cannot
show sufficient product identification. Ford argues that under Ohio law, Plaintiff has
not established that Ford’s product was a substantial factor in causing Mr. Aveni’s
injury. Ford argues that Joseph Aveni testified to his father’s non-occupational work
on vehicles, and he stated that he did not know the manufacturer of the brakes his
father removed. Additionally, Ford argues that Plaintiff failed to demonstrate
causation because the expert report is too generic.
Plaintiff offered evidence that all of Ford’s drum brake shoes for consumer
applications prior to the 1980s were asbestos containing. Plaintiff argues that she
presented sufficient evidence under Ohio substantive law to meet the standard.
Joseph Aveni testified that he helped his father with automobile work around 1974
and 1975. Joseph Aveni recalled that his father worked on Ford Ecoline vans, a Ford
F-150, three Pintos, a Ford Granada, and a 1971 Comet. Joseph Aveni testified that
the Ford vans were purchased new, and his father changed the oil, brakes, and
muffler on the vans. Joseph Aveni could not identify the manufacture of the brakes.
Additionally, Plaintiff argues that the Ford Pintos were purchased new and Mr.
Aveni performed maintenance and work on the brakes, shocks, and springs. Finally,
Plaintiff argues that Joseph Aveni testified that the Ford Comet was purchased new
and that his father performed work on the springs and brakes. Plaintiff rationalizes
2
that this scenario is similar to the plaintiff in an Ohio case, Schwartz.2 Ford argues
that Mr. Aveni’s case is dissimilar to Schwartz because unlike the plaintiff in
Schwartz who identified always using Bendix brakes, the product identification
witness in Mr. Aveni’s case, his son, cannot testify to the manufacturer of the brakes
he removed.
Ohio substantive law applies to the present Motion. Ohio adopted the
“substantial factor” test.3 Thus, “for each defendant in a multidefendant asbestos
case, the plaintiff has the burden of proving exposure to the defendant’s product and
that the product was a substantial factor in causing the plaintiff’s injury.” 4 This
“modified Lohrmann standard”5 permits a claim to survive summary judgment if the
plaintiff was exposed to asbestos from a defendant’s product on a frequent and
regular basis. The Court agrees with Ford, and summary judgment is appropriate.
The only product identification witness in this case is Joseph Aveni. Although his
testimony is clear that some of the Ford vehicles his father worked on were
purchased new, that is not enough to demonstrate that his father was exposed to
asbestos from Ford’s products. Although Plaintiff submitted evidence demonstrating
that all of Ford’s drum brakes contained asbestos prior to 1980, it is pure speculation
2
Schwartz v. Honeywell Int’l. Inc., 66 N.E.3d 118 (Oh. Ct. App. 2016).
3
Fisher v. Alliance Machine Co., 947 N.E.2d 1308, 1310-11 (Oh. Ct. App. 2011).
4
Id.
5
Lohrmann v. Pittsburgh Corning Corp, 782 F.2d 1156 (4th Cir. 1986)(adopting the
“frequency, regularity, and proximity” test of causation).
3
that Mr. Aveni replaced Ford products that contained asbestos. Joseph Aveni
testified that he did not recall the manufactures of brakes and gaskets for the cars,
except for Bendix. The only Ford product he identified were Ford hoses for the 1981
Ford Pinto. A reasonable jury could not infer that Ford’s asbestos products were a
substantial factor in causing Mr. Aveni’s injuries. Therefore, Defendant Ford Motor
Company’s Motion for Summary Judgment is hereby GRANTED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
The Honorable Calvin L. Scott, Jr.
4