Wilson v. Air & Liquid Systems

• Court: Superior Court of Delaware
• Decided: May 14, 2025
• Docket: N24C-04-159 FJJ
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN RE: ASBESTOS LITIGATION:

JAMES WILSON and MARCIA, ) JOHNSON, his wife, ) ) Plaintiffs, ) ) C.A. No.: N24C-04-159 ASB v. ) ) AIR & LIQUID SYSTEMS, et al., ) ) Defendants. )

Submitted: May 2, 2025 Decided: May 14, 2025

OPINION AND ORDER On Plaintiffs’ Motion for Reconsideration

GRANTED

Brian Tome, Esquire, Fisher Broyles, LLP, Wilmington, Delaware, Attorney for Plaintiff.

Michael Collins Smith, Esquire, Balick & Balick, LLC, Wilmington, Delaware, Attorney for Defendant.

Jones, J. On April 17, 2025, this Court entered an Order in this asbestos case granting

summary judgment to Meritor Inc. on the basis of product nexus. This Court found

that during the period of Plaintiff’s exposure to Rockwell brakes, for which

Meritor is responsible, Rockwell supplied both asbestos containing and

nonasbestos containing brakes. On this basis the Court applied the standard in

Droz v. Hennessy LLC,1 which required that Plaintiff produce evidence that the

Rockwell brakes, to which Plaintiff was exposed, contained asbestos. To meet

this burden, Plaintiff maintained that he was exposed to Rockwell brakes at SCI

beginning in 1983 and continuing through 2020. Plaintiff was unable to say that

the Rockwell brakes he worked with contained asbestos. To meet the Droz

standard, Plaintiff relied on a letter from Rockwell to the EPA in which Rockwell

represented that nearly all Rockwell on-highway brakes contained asbestos until

1985 and that all off-road Rockwell brakes contained asbestos until at least 1986.

The Court found that this evidence was insufficient for Plaintiff to meet the Droz

standard.

The Court will only grant reargument when it has overlooked controlling

precedent or legal principles, or misapprehended the law or facts in a way that

1 275 A.3d 257 (Del 2022).

2 would have changed the outcome of the underlying decision.2 Reargument is not

an opportunity for a party to revisit arguments already decided by the Court.3

The Court is persuaded that, in its initial decision, it misapprehended the

facts in a way that changes the outcome. In short, the Court did not adequately

appreciate the significance of the EPA letter as it relates to Plaintiff’s burden under

Droz.

In Droz v Hennessy Industries,4 the Delaware Supreme Court addressed the

plaintiff’s burden to establish product nexus where a defendant supplied both an

asbestos containing and a nonasbestos containing product at the same time. The

Court held that a plaintiff could meet his burden by both direct and circumstantial

evidence. The question in the instant case is whether Plaintiff has met his burden

by circumstantial evidence, namely Plaintiff’s work history and its reliance on

Rockwell’s July 3, 1986 letter to the EPA.

The evidence, when viewed in a light most favorable to the Plaintiff, leads

to a conclusion that Rockwell did not sell nonasbestos containing on-road tractors

or trailer brakes until 1983. In 1983, Rockwell began transitioning to nonasbestos

containing brakes. In a July 1986 letter to the EPA, Rockwell represented that, as

of June 1985, 15% to 20% of On-Highway Truck brakes were nonasbestos

2 See Peters, ex rel. Peters v. Texas Instruments, Inc., 2012 WL 1622396, at *1 (Del. Super. May 7, 2012), aff’d, 58 A.3d 414 (Del. 2013), as revised (Jan. 9, 2013). 3 See Id. 4 274 A.3d 257 (Del. 2022).

3 containing and, by July 1986, that percentage increased to 30% to 35%. The letter

also represented that, as of June 1985, 15% to 20% of On-Highway Trailer brakes

had nonasbestos containing brakes and, by June 1986, that percentage had grown

to 55% to 60%. Finally, the letter also reflects, as of 1986, all the Rockwell brakes

for off road vehicles contained asbestos.

This evidence constitutes sufficient circumstantial evidence under the Droz

standard to create an issue of fact that Plaintiff was exposed to asbestos containing

Rockwell brakes rather than Rockwell nonasbestos containing brakes. The

question is whether Plaintiff has produced sufficient evidence that he was exposed

to these types of Rockwell brakes during the time period of 1983 to 1986 in his

work at SCI to such an extent that meets the Lohrman standard.5 When the record

is viewed in a light most favorable to Plaintiff it leads to a conclusion that Plaintiff

was doing brake work from the time he began working in the SCI maintenance

shop, a month after he started at SCI in April 1983. His brake work involved

working with Rockwell brakes 50% of the time between the 1983 and 1986 time

period. This record satisfied the required frequency, regularity, and proximity to

Rockwell asbestos containing brakes during the period of 1983 through 1986,

which is the only period for which he can meet the Droz burden.

5 Gorman-Rupp Co. v. Hall, 908 So.2d 749, 754-57 (Miss. 2005).

4 Under the unique facts of this case, Plaintiff has met his burden under Droz

and has established that he worked with Rockwell asbestos containing brakes

during the time period described above to meet the required frequency, regularity

and proximity standard. On this record, Plaintiff has met his product nexus burden

and the Court’s prior Order Granting Summary Judgment in favor of Meritor must

be, and hereby is, vacated. Meritor’s Motion for Summary Judgment is DENIED.

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr. Francis J. Jones, Jr., Judge

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