Droz alleges that he used an arc grinding machine to resurface brake drum shoes that contained asbestos. Plaintiff claims that the arc grinder manufacturer, Hennessy, knew that the grinding process generated asbestos dust, and that Hennessy had a duty under Washington state law to warn Mr. Droz about the dangers of asbestos dust exposure. The Superior Court granted Hennessy’s summary judgment motion, on the basis that Stigliano v. Westinghouse, No.05-06-263, 2006 WL 3026171 (Del. Super. Oct. 18, 2006), shifted the burden to plaintiff to show that Mr. Droz was exposed to asbestos dust from asbestos-containing brake drum shoes while using the arc grinder: “although Plaintiff generally identified the manufacturers of brake shoes Mr. Droz encountered (including Bendix, Wagner, and Raybestos), the record is devoid of any testimony linking his work to a particular manufacturer’s brake or even an asbestos containing brake. This is fatal to Plaintiff’s ability to satisfy her burden under Stigliano.”

The Delaware Supreme Court reversed:

“Asbestos exposure cases are beset with evidentiary challenges. The latency period before disease onset is lengthy. Memories fade about the circumstances of exposure. The plaintiff often passes away before litigation is concluded. These challenges are particularly acute when it comes to product identification—proving that the plaintiff was exposed to an asbestos-containing product manufactured by a specific defendant. The difficulties often surface at the summary judgment stage of litigation….

“In Stigliano, the plaintiff alleged he was exposed to asbestos welding rods manufactured by Westinghouse. Westinghouse moved for summary judgment. The court had to decide whether a genuine issue of material fact existed with respect to plaintiff’s exposure to an asbestos-containing product manufactured, sold or distributed by Westinghouse. The plaintiff claimed that he was exposed to, and only worked with, Westinghouse welding rods made with asbestos. According to the court, however, the record showed that the plaintiff also worked with other welding rods. And the record also showed that Westinghouse manufactured both asbestos-containing and non-asbestos-containing welding rods when the plaintiff claimed exposure. In granting summary judgment to the defendant, the court held: ‘When the record reveals that a defendant manufactured both asbestos-containing and non asbestos-containing versions of a product during the time period of alleged exposure, in the absence of evidence directly or circumstantially linking the plaintiff to the asbestos-containing product, the Court cannot draw the inference of exposure and summary judgment on product nexus must be granted.’ Stigliano addressed a particular factual situation. The defendant manufactured an asbestos-containing product and an asbestos-free product at the time of alleged exposure, but the plaintiff did not connect his exposure to the asbestos-containing product. In other words, it was essentially an equal likelihood that the plaintiff was exposed to the asbestos-containing product or the asbestos-free product. Since the Stigliano decision, a plaintiff resisting a defendant’s summary judgment motion under similar factual circumstances must show some direct or circumstantial evidence of exposure to the asbestos-containing product.”

In this case, plaintiff argues that “a plaintiff must now show exclusive use of an asbestos-containing product, or direct evidence, as opposed to circumstantial evidence, of exposure to an asbestos-containing product. She asserts that the evidentiary burden is greater than Rule 56 requires, and defendants automatically win at the summary judgment stage if Stigliano applies. According to Ms. Droz, Stigliano should apply only in cases where a plaintiff produces “coin-flip” product identification evidence, meaning the plaintiff’s exposure to an asbestos-containing product is no greater than a toss-up.”

The Supreme Court, however, found that: “As for Ms. Droz’s argument that Stigliano has been expanded and now requires a showing of direct evidence of exposure to an asbestos-containing product, we disagree….

“Mr. Droz testified that he worked with Wagner brake shoes while employed by Larry’s Auto Repair from 1971–73. Wagner has stated that it sold asbestos-containing brake shoes throughout the 1970s, and it was not until 1978 that it determined that brake shoes containing other substances could be used safely for some of the same purposes as asbestos-containing brake pads. Thus, the circumstantial evidence in the record leads to an inference that Wagner produced and sold only asbestos-containing brake drum shoes between 1971 and 1973, and Mr. Droz was exposed to asbestos dust while grinding Wagner brake drum shoes with the arc grinder at that time. Mr. Droz also testified that he used Hennessy’s arc grinder with Bendix brake shoes between 1971 and 1973. While Bendix sold an asbestos-free disc brake shoe in 1969 designed for use in police or taxi vehicles, it did not release an asbestos-free brake drum shoe for other applications until 1983. Thus, the evidence leads to an inference that Mr. Droz was exposed to asbestos dust when he used Hennessy’s arc grinder to resurface Bendix brake drum shoes from 1971–73. Ms. Droz satisfied her burden to raise a genuine issue of material fact regarding exposure to asbestos dust from grinding Wagner and Bendix brake drum shoes.”

 

Droz v. Hennessy Industries, No.211,2021, 2022 WL 896912 (Del. March 28, 2022).