In Re: Asbestos Litigation. Dorothy A. Phipps

       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY

IN RE: ASBESTOS LITIGATION                          )
                                                    )
DOROTHY A. PHIPPS, Individually                     )
And as Personal Representative of the               )
Estate of RONALD G. PHIPPS,                         )
deceased,                                           )
                 Plaintiffs,                        )
                                                    )
       v.                                           ) C.A. No. N12C-06-069ASB
                                                    )
CARRIER CORPORATION,                                )
et al.,                                             )
            Defendants.                             )

                                 Submitted: March 3, 2015
                                 Decided: March 25, 2015

         ORDER ON DEFENDANTS’ MOTION FOR REARGUMENT
           OF THE ORDER DENYING SUMMARY JUDGMENT

       AND NOW this 25th day of March, 2015, having read and considered

Defendants’ Motion for Reargument of the Order Denying Summary Judgment to

Defendant Carrier Corporation (“Carrier”) (D.I. #222; Trans. I.D. # 56649036),

and the response thereto, IT IS HEREBY ORDERED that the Motion for

Reargument is DENIED for the following reasons:

       A motion for reargument under Superior Court Rule 59(e) permits the Court

to reconsider its findings of fact, conclusions of law, or judgment.1 However, it is


1
       Bd. of Managers of the Delaware Criminal Justice Info. Sys. v. Gannett Co., 2003 WL
1579170, at *1 (Del. Super. Ct. Jan. 17, 2003), aff’d in part, 840 A.2d 1232 (Del. 2003) (internal
not an avenue for the moving party to raise new arguments or rehash arguments

already decided by the Court. 2 The moving party has the burden to demonstrate

newly discovered evidence, a change in the law, or manifest injustice. 3                 The

motion will be denied unless the Court has “overlooked a controlling precedent or

legal principles,” or “has misapprehended the law or facts such as would have

changed the outcome of the underlying decision.” 4 Upon a Rule 59(e) reargument

motion, the Court “will determine from the motion and answer whether reargument

will be granted.”5

       Carrier argues that the Court misapprehended salient facts when it denied its

motion for summary judgment. Applying Delaware precedent, this Court found

that a genuine issue of material fact existed as to Ronald Phipps’s alleged exposure

to asbestos from Carrier’s products.




citation omitted); Cummings v. Jimmy’s Grille, 2000 WL 1211167, at *2 (Del. Super. Ct. Aug. 9,
2000).
2
       CNH America, LLC v. Am. Cas. Co. of Reading, Pa., 2014 WL 1724844, at *1 (Del.
Super. Ct. Apr. 29, 2014); Reid v. Hindt, 2008 WL 2943373, at *1 (Del. Super. Ct. July 31,
2008).
3
       Reid, 2008 WL 2943373, at *1.
4
        Jackson v. Wallo, 2012 WL 6846548, at *2 (Del. Super. Ct. Dec. 26, 2012) (quoting
Lamourine v. Mazda Motor of Am., Inc., 2007 WL 3379048, at *1 (Del. Super. Ct. Sept.24,
2007)).
5
       Super. Ct. Civ. R. 59(e).


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       To survive a motion for summary judgment under Delaware law, the

plaintiff must be able to show that “a particular defendant’s asbestos-containing

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

product at the time it was being used.”6 The plaintiff must present evidence of

being in proximity to the asbestos product at the time it was being used; it is not

sufficient for the plaintiff to merely identify the presence of the defendant’s

products at the work site.7 Delaware law requires that the defendant’s product to

which plaintiff alleges asbestos exposure be friable, or “susceptible to releasing

fibers which are capable of ingestion or respiration into the plaintiff’s body.” 8 The

Court will not sustain a claim based on speculative exposure to the defendant’s

asbestos-containing product.9

       Carrier contends that there is not sufficient evidence to show that Mr. Phipps

was exposed to asbestos from its products during his work at the DuPont Stine-


6
        Edmisten v. Greyhound Lines, Inc., 2012 WL 3264925, at *2 (Del. Aug. 13, 2012)
(citation omitted).
7
        In re Asbestos Litig.. (Truitt), 2011 WL 5429168, at *2 (Del. Super. Ct. Oct. 6, 2011)
(citing In re Asbestos Litig., 509 A.2d 1116, 1117–18 (Del. Super. Ct. 1986)); see also
Mergenthaler v. Asbestos Corp. of Am., Inc., 1988 WL 16284, at *3 (Del. Super. Ct. July 13,
1988) (stating to survive a motion for summary judgment, the plaintiff must provide evidence
that when the defendant’s asbestos-containing product was present at the plaintiff’s work site, the
plaintiff was “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.”).
8
       Mergenthaler, 1988 WL 16284, at *3.
9
       In re Asbestos Litig., 509 A.2d at 1118.

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Haskell Lab. Carrier argues that because Mr. Phipps testified to working on

compressors only in emergency situations and merely witnessed his co-worker,

James Norem, work on Carrier compressors, Mr. Phipps was only potentially

exposed to asbestos. 10 As to working with Mr. Norem, Carrier argues that Mr.

Phipps witnessed Mr. Norem work on external components that were not

manufactured by Carrier. And, Carrier says, even if it were liable for component

products produced by another company, Mr. Phipps’s exposure to asbestos from

those products is still speculative. Not so.

       Mr. Phipps testified there were five or six Carrier compressors at the work

site.11 He stated that new Carrier compressors were installed in the early 1960s,

after he began work in 1952.12 Mr. Phipps identified the Carrier compressors by

their shape, color, and nameplate.13              While Mr. Phipps stated that he only




10
        Mr. Phipps was never deposed in this matter as he passed before Plaintiffs filed suit.
Both parties rely on Mr. Phipps’s deposition from Mr. Norem’s asbestos litigation. Although
just briefly mentioned by Carrier in its Motion for Reargument, the parties previously signed a
stipulation in this case where Plaintiff is only permitted to use witness testimony as stated in their
witness list in their opposing summary judgment motions. Plaintiffs did not originally list Mr.
Phipps’s deposition in the Norem matter on the witness list. However, because both parties rely
on this deposition, the Court will consider it here.
11
        See Deposition of Ronald Phipps, December 12, 2009, in In re Asbestos Litig. (Norem),
at 27:23-24; 28:1; 47:5-9; 54:22-24; 55:1-3.
12
       Id. at 10:12-13; 50:2-15.
13
       Id. at 49:29-22; 50:16-24; 51:1-24; 52:1-2.



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personally took the compressors apart when the others “needed a hand” 14 and that

there was no dust produced when he observed Mr. Norem’s seal replacement

work,15 he also testified that he oversaw Mr. Norem’s dismantling and overhauling

of Carrier compressors “many times.” 16 He further stated that he witnessed Mr.

Norem work on gaskets external to Carrier compressors and he believed those

gaskets contained asbestos.17 In addition, an affidavit from Bruce Temple, who

also worked at Mr. Phipps’s site and alongside Mr. Norem, indicates Mr. Phipps

may have worked on asbestos-containing products. In his affidavit, Mr. Temple

stated that he and Mr. Norem removed old asbestos insulation from inside and

outside Carrier Chiller units and were therefore exposed to asbestos. 18

       Plaintiffs presented enough evidence to survive Carrier’s motion for

summary judgment. Mr. Phipps’s testimony identifies Carrier’s products at the job

site and establishes that he was in proximity to Carrier’s products while they were

being serviced. The credible evidence in this case, at this stage, suggests that the

14
       Id. at 26:9-14.
15
       Id. at 53:9-21.
16
       Id. at 26:19-24; 27:1-4.
17
       Id. at 25:3-10 (stating “I would think where the piping hooked onto them they were—you
know, regular asbestos gaskets . . .”); 78:21-24; 79:1-8.
18
       See Aff. of Bruce Temple, February 12, 2009, Ex. C to Plfs.’ Resp. to Def.’s Mot. For
Reargument, at ¶ 3 (stating he and Mr. Norem “were exposed to the insulations that were inside
and outside of these [Carrier Chillers] units when we maintained them. When we performed
maintenance on these units, we often had to remove old asbestos insulation from these units and
we were exposed to the asbestos from this work”).

                                             -5-
asbestos in Carrier’s compressors was likely friable when those units were being

taken apart, dismantled, or overhauled as Mr. Phipps witnessed. Because the

Carrier compressors were new when installed, the evidence in this case, at this

stage, suggests that Mr. Phipps worked on or in close proximity to Carrier

components. Plaintiffs have set out sufficient facts to show Mr. Phipps’ alleged

exposure is not based on mere speculation, conjecture or surmise.

      Carrier has presented no newly discovered evidence.           Nor has Carrier

demonstrated that the Court misapprehended the law or facts such that the outcome

of the Court’s summary judgment ruling would have been different. Consequently,

Carrier’s motion for reargument is DENIED.

      IT IS SO ORDERED.

                                                /s/ Paul R. Wallace
                                             PAUL R. WALLACE, JUDGE

Original to Prothonotary
Cc: All counsel via File&Serve




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