IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN RE: ASBESTOS LITIGATION
NATHANIAL HARRIS, ) ) Plaintiff, ) ) v. ) ) C.A. No. N14C-03-220 ASB DEERE & CO., et al., ) ) Defendants. ) ) ) )
May 10, 2017
Upon Defendant Deere & Company’s Motion for Summary Judgment. GRANTED.
ORDER
Plaintiff, Nathanial Harris‟ (hereinafter “Plaintiff”) claims cannot survive the
summary judgment criteria.1
Plaintiff passed away on June 24, 2015 from lung cancer. Plaintiff claims
that he was occupationally exposed to Defendant Deere & Company‟s (hereinafter
“Defendant”) product when he worked as a farmer/maintenance man between 1949
and 1992 at Cobb Farm in North Carolina. Plaintiff provided his video deposition
1 Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del. Super. Ct. Dec. 30, 2013); see also 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). taken on October 21, 2014, and he is the only product identification witness. While
at Cobb Farm, Plaintiff stated that his job included pulling tobacco, shaking
peanuts, and picking cotton. He stated that from 1949 to 1953 he did not work on
vehicles or equipment, and began engine work in 1955. Plaintiff‟s counsel
stipulated that Plaintiff‟s claims of asbestos exposure occurred from 1955 through
1979. Beginning in1953, and through 1979, Mr. Harris worked on tractors at Cobb
Farm, including John Deere. Mr. Harris performed head gasket work on John
Deere Tractors. He stated that he did this type of work on the “old models” which
he recalled Cobb Farm owning about three around 1949 to 1950. He recalled the
models were Model 1010, 2010, and 3010.
This type of work involved grinding the head gasket and manifold gasket
off, which created dust. Mr. Harris did this type of repair once a year or sometimes
every other year. He stated that the replacement parts came from the John Deere
dealer. Initially Mr. Harris testified that Cobb Farm did not have any John Deere
tractors until after 1979. However, Mr. Harris discussed “old model” Deere
tractors during his video deposition. Mr. Harris stated that the farm bought two
“used” Deere tractors to power Deere cotton pickers, and he believed the models
were Model 1010, Model 2010, and Model 3010. He stated that the tractors were
on the farm in 1949 when he started working there. Mr. Harris testified that he
changed small clutches on the older Deere tractors and did some brake work. He stated that brake work needed to be done every two years or longer, and the brakes
came from the John Deere dealer. Mr. Harris did not personally purchase the
replacement brakes from the John Deere dealer, but Miller Cobb, the man Mr.
Harris worked for, told him. Finally, Mr. Harris testified that he also did head
gasket work on the old Deere tractors. He stated that it was not very often that he
did this type of work on the old tractors, and he described the gaskets as metal-clad
on both the top and bottom. Mr. Harris described how the gasket work was
completed on the old tractors. He said that the head gaskets would either just come
right off or they needed to be scrapped off. The gaskets needed to be scraped or
grinded off with a soft grinder so the cylinder would not get scraped. When asked
by his counsel, Mr. Harris stated that the parts had “John Deere” printed on the
parts.
Defense‟s main argument is that Mr. Harris affirmed, five different times,
that he did not work on John Deere farm equipment until after1979, which is
subsequently outside of the years of exposure stipulated by Plaintiff‟s attorney.
Further, Defendant contends that there is no evidence that Mr. Harris changed the
original equipment on the tractors because he did not know the maintenance
history of the tractors. Similarly, Defendant argues that Plaintiff did not present
evidence of the brand of the “old” Deere tractor replacement parts aside from
hearsay. Defendant provided an affidavit from Thomas Hitzhusen, a retired engineer formerly employed by Deere. In his affidavit, Mr. Hitzhusen stated that
“there were and are companies other than John Deere who sold and sell
aftermarket service parts, such as brakes, clutches, head gaskets, and other gaskets,
that would fit the models of tractors described by Mr. Harris regardless of the
model year of manufacture of the tractors.” On the other hand, Plaintiff submitted
Deere & Company‟s Responses and Objections to Interrogatories from a 2003
Rhode Island case. The response states that the company did not manufacture
asbestos containing products but “purchased asbestos containing components from
multiple third party suppliers and either installed them on machinery or sold them
through the Deere network of independent dealers as Genuine John Deere parts.”
Plaintiff also submitted a document titled “Instruction and Parts List for John
Deere General Purpose Tractor” from 1940. The instructions state: “Always insist
upon getting genuine John Deere parts. Beware of bogus parts which are said to be
just as good as the genuine and offered at only slightly lower prices. The use of
bogus parts always costs more in the end,” and “Always order parts from your
John Deere Dealer.”
The Court is not persuaded by Defendant‟s argument that Plaintiff‟s
testimony is contradictory and thus the Court should grant its Motion for Summary
Judgment. Counsel, on the record, stipulated that the relevant time period of
Plaintiff‟s exposure is between 1955 and 1979. Plaintiff testified that he did not work with John Deere tractors until after 1979, but then testified that he worked on
“older” models of John Deere tractors that were on the farm around 1949 and
1950. However, viewing the facts in a light most favorable to the Plaintiff, it
seems that Plaintiff clarified the inconsistency. On page 143 of the video
deposition transcript the questioning is as follows:
Q: So if I understand your testimony now, you recall John Deere tractors from the farm in the „40s and „50s?
A: Yes.
Q: And so previously when you said that you hadn‟t encountered a John Deere tractor before 1979, that wasn‟t true?
A: No. The big tractor I mean.
Viewing the facts in a light most favorable to the Plaintiff, it seems that Plaintiff
made a distinction between two different types of Deere tractors on the farm, the
newer models after 1979 and the older models before 1979. The Court “on a
motion for summary judgment is not to weigh evidence and to accept that which
seems to [it] to have the greater weight. [Its] function is rather to determine
whether or not there is any evidence supporting a favorable conclusion to the
nonmoving party.”2 Because there is evidence supporting Plaintiff‟s claim that he
worked on Deere tractors before 1979, the Court will not grant Defendant‟s Motion
2 Hursey Porter & Associates v. Bounds, 1994 WL 762670, at * 6 (Del. Super. Dec. 2, 1994)(internal quotations omitted)(citing Data General Corp. v. Digital Computer Controls Inc., 297 A.2d 437, 439 (Del. Super 1972)).
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN RE: ASBESTOS LITIGATION
NATHANIAL HARRIS, ) ) Plaintiff, ) ) v. ) ) C.A. No. N14C-03-220 ASB DEERE & CO., et al., ) ) Defendants. ) ) ) )
May 10, 2017
Upon Defendant Deere & Company’s Motion for Summary Judgment. GRANTED.
ORDER
Plaintiff, Nathanial Harris‟ (hereinafter “Plaintiff”) claims cannot survive the
summary judgment criteria.1
Plaintiff passed away on June 24, 2015 from lung cancer. Plaintiff claims
that he was occupationally exposed to Defendant Deere & Company‟s (hereinafter
“Defendant”) product when he worked as a farmer/maintenance man between 1949
and 1992 at Cobb Farm in North Carolina. Plaintiff provided his video deposition
1 Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del. Super. Ct. Dec. 30, 2013); see also 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). taken on October 21, 2014, and he is the only product identification witness. While
at Cobb Farm, Plaintiff stated that his job included pulling tobacco, shaking
peanuts, and picking cotton. He stated that from 1949 to 1953 he did not work on
vehicles or equipment, and began engine work in 1955. Plaintiff‟s counsel
stipulated that Plaintiff‟s claims of asbestos exposure occurred from 1955 through
1979. Beginning in1953, and through 1979, Mr. Harris worked on tractors at Cobb
Farm, including John Deere. Mr. Harris performed head gasket work on John
Deere Tractors. He stated that he did this type of work on the “old models” which
he recalled Cobb Farm owning about three around 1949 to 1950. He recalled the
models were Model 1010, 2010, and 3010.
This type of work involved grinding the head gasket and manifold gasket
off, which created dust. Mr. Harris did this type of repair once a year or sometimes
every other year. He stated that the replacement parts came from the John Deere
dealer. Initially Mr. Harris testified that Cobb Farm did not have any John Deere
tractors until after 1979. However, Mr. Harris discussed “old model” Deere
tractors during his video deposition. Mr. Harris stated that the farm bought two
“used” Deere tractors to power Deere cotton pickers, and he believed the models
were Model 1010, Model 2010, and Model 3010. He stated that the tractors were
on the farm in 1949 when he started working there. Mr. Harris testified that he
changed small clutches on the older Deere tractors and did some brake work. He stated that brake work needed to be done every two years or longer, and the brakes
came from the John Deere dealer. Mr. Harris did not personally purchase the
replacement brakes from the John Deere dealer, but Miller Cobb, the man Mr.
Harris worked for, told him. Finally, Mr. Harris testified that he also did head
gasket work on the old Deere tractors. He stated that it was not very often that he
did this type of work on the old tractors, and he described the gaskets as metal-clad
on both the top and bottom. Mr. Harris described how the gasket work was
completed on the old tractors. He said that the head gaskets would either just come
right off or they needed to be scrapped off. The gaskets needed to be scraped or
grinded off with a soft grinder so the cylinder would not get scraped. When asked
by his counsel, Mr. Harris stated that the parts had “John Deere” printed on the
parts.
Defense‟s main argument is that Mr. Harris affirmed, five different times,
that he did not work on John Deere farm equipment until after1979, which is
subsequently outside of the years of exposure stipulated by Plaintiff‟s attorney.
Further, Defendant contends that there is no evidence that Mr. Harris changed the
original equipment on the tractors because he did not know the maintenance
history of the tractors. Similarly, Defendant argues that Plaintiff did not present
evidence of the brand of the “old” Deere tractor replacement parts aside from
hearsay. Defendant provided an affidavit from Thomas Hitzhusen, a retired engineer formerly employed by Deere. In his affidavit, Mr. Hitzhusen stated that
“there were and are companies other than John Deere who sold and sell
aftermarket service parts, such as brakes, clutches, head gaskets, and other gaskets,
that would fit the models of tractors described by Mr. Harris regardless of the
model year of manufacture of the tractors.” On the other hand, Plaintiff submitted
Deere & Company‟s Responses and Objections to Interrogatories from a 2003
Rhode Island case. The response states that the company did not manufacture
asbestos containing products but “purchased asbestos containing components from
multiple third party suppliers and either installed them on machinery or sold them
through the Deere network of independent dealers as Genuine John Deere parts.”
Plaintiff also submitted a document titled “Instruction and Parts List for John
Deere General Purpose Tractor” from 1940. The instructions state: “Always insist
upon getting genuine John Deere parts. Beware of bogus parts which are said to be
just as good as the genuine and offered at only slightly lower prices. The use of
bogus parts always costs more in the end,” and “Always order parts from your
John Deere Dealer.”
The Court is not persuaded by Defendant‟s argument that Plaintiff‟s
testimony is contradictory and thus the Court should grant its Motion for Summary
Judgment. Counsel, on the record, stipulated that the relevant time period of
Plaintiff‟s exposure is between 1955 and 1979. Plaintiff testified that he did not work with John Deere tractors until after 1979, but then testified that he worked on
“older” models of John Deere tractors that were on the farm around 1949 and
1950. However, viewing the facts in a light most favorable to the Plaintiff, it
seems that Plaintiff clarified the inconsistency. On page 143 of the video
deposition transcript the questioning is as follows:
Q: So if I understand your testimony now, you recall John Deere tractors from the farm in the „40s and „50s?
A: Yes.
Q: And so previously when you said that you hadn‟t encountered a John Deere tractor before 1979, that wasn‟t true?
A: No. The big tractor I mean.
Viewing the facts in a light most favorable to the Plaintiff, it seems that Plaintiff
made a distinction between two different types of Deere tractors on the farm, the
newer models after 1979 and the older models before 1979. The Court “on a
motion for summary judgment is not to weigh evidence and to accept that which
seems to [it] to have the greater weight. [Its] function is rather to determine
whether or not there is any evidence supporting a favorable conclusion to the
nonmoving party.”2 Because there is evidence supporting Plaintiff‟s claim that he
worked on Deere tractors before 1979, the Court will not grant Defendant‟s Motion
2 Hursey Porter & Associates v. Bounds, 1994 WL 762670, at * 6 (Del. Super. Dec. 2, 1994)(internal quotations omitted)(citing Data General Corp. v. Digital Computer Controls Inc., 297 A.2d 437, 439 (Del. Super 1972)). based on Defendant‟s argument that the testimony is contradictory. Any
inconsistency in Mr. Harris‟ testimony is ripe for cross examination, and the jury
may weigh the evidence.
Defendant‟s second argument is that it is entitled to summary judgment
because Plaintiff cannot satisfy North Carolina‟s product identification and
exposure standards. In North Carolina, a plaintiff is required to establish “actual
exposure to an asbestos-containing product manufactured, sold, or distributed by
the defendant.”3 Plaintiff must provide evidence demonstrating that Plaintiff was
exposed to an “offending” product.4 The exposure must be more “than a casual or
minimum contact with the product containing asbestos in order to the hold the
manufacturer of that product liable. Instead, the plaintiff must present „evidence of
exposure to a specific product on a regular basis over some extended period of
time in proximity to where the plaintiff actually worked.‟” 5 “Thus, in any asbestos
case, a plaintiff must „(1) identify an asbestos-containing product for which a
defendant is responsible, (2) prove that he has suffered damages, an (3) prove that
defendant‟s asbestos-containing product was a substantial factor in causing his
damages.‟”6 Defendant argues that Plaintiff‟s case is analogous to Harris v. Ajax
3 In re Freeman, 2011 WL 379324 (Del. Super. Jan. 13, 2011) (citing Wilder v. Amatex Corp., 336 S.E.2d at 66, 68 (N.C. 1985)). 4 Wilder, 336 S.E.2d at 68. 5 Jones v. Owens-Corning Fiberglas Corp. & Amchem Prod., Inc., 69 F.3d 712, 716 (4th Cir. 1995). 6 Agner v. Daniel Int’l Corp., 2007 WL 57769, at *4 (W.D.N.C. Jan. 5, 2007). Boiler, Inc., a District Court case that applied North Carolina Law. In Harris, the
plaintiff died from mesothelioma and claimed that he was exposed to asbestos
while servicing boilers.7 The plaintiff testified that he worked on 70 to 80 different
boilers, and recalled the different brands he worked on.8 The court ultimately
found that the plaintiff did not present evidence, beyond speculation,
demonstrating that the mud the plaintiff removed from the boilers contained
asbestos.9 The court noted that the plaintiff‟s “assertion that the boilers left their
manufacturer with asbestos [was] merely conjecture.”10 Beyond the brand name,
the plaintiff “could not identify the exact make and model of any American
Standard, Cleaver-Brooks, or Crane boilers her repaired.”11 Additionally, there
was a lack of evidence such as “repair manuals, specification sheets or engineering
drawings relating to the specific type of boilers [the plaintiff] serviced. As a result,
the record before the Court lack[ed] any factual basis showing [the plaintiff]
repaired boilers that incorporated asbestos-containing cement when they left their
respective manufacturers.”12 Further, the court held that even if it assumed the
boilers contained asbestos, the plaintiff‟s argument had a “fatal gap” because there
was a lack of evidence to determine whether the mud product in question was
7 Harris v. Ajax Boiler, Inc., 2014 WL 3101941, at *2 (W.D. N.C. July 7, 2014). 8 Id. at *2-3. 9 Id. at *4. 10 Id. at *4 11 Harris, 2014 WL 3101941 at *4. 12 Id. at 4. incorporated in the boiler by the manufacturer.13 The plaintiff had no recollection
of the service history, when the boilers were initially installed, or if a boiler he
worked on was previously serviced.14
Applying North Carolina law, the Court finds that Plaintiff failed to submit
evidence that a reasonable juror, beyond speculation, could infer that the “older”
tractors had parts that contained asbestos and were manufactured by Deere.
Although Plaintiff submitted evidence that Deere encouraged the use of Deere
replacement parts, there is no evidence in the record that the parts of the tractors
Plaintiff worked on were asbestos containing products manufactured by Deere, or
that the parts actually contained asbestos. Mr. Hitzhusen confirmed that other
companies sold parts that fit Deere tractors, and Plaintiffs did not submit evidence
to infer that the parts Mr. Harris worked with were manufactured or sold by Deere.
Like the plaintiff in Harris, Plaintiff did not know the maintenance history of the
“older” Deere tractors, whether they were serviced before he worked on them, or if
the replacement parts were Deere products beyond his boss telling him that he
purchased the parts from the Deere dealer.15 Furthermore, there is no evidence that
the Operator‟s Manual or the instructions and parts List provided by Plaintiff were
related to the tractor models that Mr. Harris worked on. Beyond speculation, a 13 Id. 14 Id. 15 The Court acknowledges that Plaintiff, in his deposition, said that the gaskets had the name “John Deere” on them. However, this was not from his personal knowledge. This was only after Plaintiff‟s counsel specifically asked if the writing said “John Deere.” reasonable jury could not determine that the parts Mr. Harris replaced or worked
on were in fact manufactured by Deere. For the reasons stated above, pursuant to
North Carolina substantive law, Plaintiff‟s claims fail.
Accordingly, Defendant Deere & Company‟s Motion for Summary
Judgment is hereby GRANTED.
IT IS SO ORDERED.
/s/ Calvin L. Scott
Judge Calvin L. Scott, Jr.