Charbonneau v. Fairbanks Company

• Court: Superior Court of Delaware
• Decided: July 12, 2017
• Docket: N15C-01-045 ASB
• Status: Published

Opinion

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. ) ) FAIRBANKS COMPANY, et al., ) ) Defendants. )

July 12, 2017

Upon Defendant Fairbanks Company’s Motion for Summary Judgment. GRANTED.

Plaintiff Dorothy Charbonneau (hereinafter “Plaintiff”) cannot satisfy the

summary judgment criteria.1

Plaintiff alleges that her husband, Robert Charbonneau, was exposed to

asbestos from Defendant Fairbanks Company’s (“Fairbanks” or “Defendant”)

products while working as a maintenance man and welder for several employers in

Massachusetts. Plaintiff is the only product identification witness in this action.

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). During his deposition he recalled Defendant’s brand of valves as a product he

worked with at both Greeting Cards and Gordon Chemical. He worked with both

globe valves and gate valves. At the Oxford Housing Authority he testified that he

worked with gate valves, globe valves, and a zone valve with a ball valve in both

ends. He described the valves as brass in color, and stated that these brass colored

valves were present at all the sites he worked at. He stated that while at Gordon

Chemical he installed new Fairbanks valves and removed Fairbanks valves. He

testified that he replaced the packing and external insulation on the valves and

broken valve handles. He testified that the packing was located at the stem of the

valve. To access the packing Mr. Charbonneau had to unscrew the packing nut on

the shaft, and sometimes use a packing remover tool or a pair of pliers to get the

packing out. When asked where the external packing came from, Mr.

Charbonneau stated that the packing came from the supply house. As for the

external insulation, Mr. Charbonneau described the insulation as white, and the

insulation was located on the valve itself. Mr. Charbonneau removed the insulation

in order to remove the valve itself. He stated that the maintenance crew supplied

the insulation. The new insulation came in powder form and needed to be mixed.

Mr. Charbonneau applied this mix with his hands. When asked if he believed the

packing he removed and installed contained asbestos, he stated that he assumed it

did because of the high heat that was going through the pipes. Defendant argues that the record lacks evidence that the valve packing

contained asbestos, and that Defendant manufactured the asbestos packing.

Plaintiff argues that Defendant required asbestos for use with its valve products,

and Plaintiff provided six different catalogues for the proposition that Defendant

“specifically and regularly called for the use of asbestos gaskets and packing” with

its products. Plaintiff argues that Mr. Charbonneau testified from personal

knowledge about removing asbestos on piping, and that Mr. Charbonneau replaced

Fairbanks valves with other Fairbanks valves. He also testified that the Fairbanks

valves were externally insulated. 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

Defendant argues that Plaintiff’s claims are barred because Defendant had no duty

to warn of asbestos parts from another manufacturer. Plaintiff presented evidence

that Mr. Charbonneau installed and removed Fairbanks valves, and that some of

Fairbanks valves were sold with asbestos component parts. Plaintiff supplied

answers to interrogatories stating that some Fairbanks valves contained asbestos

gaskets and packing between the 1930s and 1980s. Defendant argues that under

2 Morin v. AutoZone Ne., Inc., 943 N.E.2d 495, 499 (Mass. App. Ct. 2011). Massachusetts law it is not liable for other manufacturers’ asbestos containing

products. Although Plaintiff demonstrated that Fairbanks sold valves that

contained asbestos gaskets and packing, Plaintiff failed to provide evidence that

the packing and gaskets were manufactured by Fairbanks. Mr. Charbonneau

testified that he installed and removed Fairbanks valves. In Massachusetts 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.”3 As stated by this Court before,

“Massachusetts courts have never held a manufacturer liable . . . for failure to warn

of risks created solely in the use or misuse of the product of another

manufacturer.”4 There is no evidence in the record that the replacement parts Mr.

Charbonneau worked with were asbestos parts manufactured or supplied by

Defendant, Fairbanks. Simply because a Plaintiff worked with a Defendant’s

product, without evidence beyond speculation that the product contained asbestos,

and the asbestos containing part was manufactured by Defendant, a reasonable jury

could not infer exposure. Specifically in this case, external packing, packing inside

the valves, and gaskets with the valves were replaced numerous times. Without

any indication that the replacement packing, external insulation, or parts in the

3 Whiting v. CBS Corp., 2013 WL 530860, at *1 (Mass. Ct. App. Feb. 14, 2013)(emphasis added). 4 In re Asbestos Lit., Cosner, 2012 WL 1694442 (Del. Super. May 14, 2012). Fairbanks valve were manufactured by Fairbanks, Plaintiff asks the Court to

speculate that Defendant is responsible. When viewing the evidence in a light

most favorable to Plaintiff, a reasonable jury could not infer that Mr. Charbonneau

was exposed to asbestos from Fairbanks product beyond speculation. Defendant’s

Motion for Summary Judgment is therefore GRANTED.

IT IS SO ORDERED.

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