FILE NO. 05C-11-257 ASB




December 13, 2006

Table Of Contents


During the course of his lifelong career as a mechanic, Mr. Grenier was exposed to asbestos-containing products, particularly asbestos-containing brakes manufactured by Defendants. As a result of this exposure, Mr. Grenier developed mesothelioma, a fatal cancer caused by asbestos exposure. Contrary to Defendants’ claims, the evidence is more than sufficient to create a genuine issue of material fact. Defendants have moved for summary judgment, contending that Mr. Grenier has failed to establish sufficient facts to support his allegations.

As set forth below, the uncontradicted evidence establishes that Mr. Grenier personally worked with Defendants’ asbestos-containing products and that, in doing so, he was exposed to asbestos. During the course of his employment, he worked in close proximity to asbestos released from Defendants’ products during their installation, removal, and replacement from automobiles. Plaintiff’s allegations are supported by: (1) Mr. Grenier’s testimony, (2) corroborative testimony of Mr. Grenier’s co-worker, Peter Iacavone, and (3) documentary evidence of the dangers of asbestos, Defendants’ knowledge, and Defendants’ negligence.

Mr.Grenier worked at the Frank Crook Oldsmobile Dealership in Pawtucket, Rhode Island from 1944 to 1951. See Deposition of Roland Grenier, February 28, 2006, Part 1 (“Grenier Dep. Part 1″), 13:1-13:18, attached as Ex. 1. While at Frank Crook, he worked on “all sorts” of vehicles, including Fords, GMs and Chryslers, in addition to Chrysler, Oldsmobile and Sisco vehicles – the brands the dealership sold. See Deposition of Roland Grenier, February 28, 2006, Part 2 (“Grenier Dep. Part 2″), 39:17-40:6; 43:7-18, attached as Ex. 2. Following his time at Frank Crook, Mr. Grenier next spent a short amount of time working as a mechanic at an SO station. Grenier Dep. Part 1 at 31:17-18; 45:16-46:19 (Ex. 1). He then went to work for Lumb Motors from 1951 to 1979 as a mechanic and 1979 to 1980 as a service manager. Id., 31:21-32:2 (Ex. 1); Grenier Dep. Part 2, 69:19-70:7, (Ex. 2). In addition to mechanical work for his employers, Mr. Grenier performed mechanical work on vehicles for personal use from the 1950’s to the 1980’s. Grenier Dep. Part 2 at 64:11-64:16 (Ex. 2).

Mr. Grenier was certified as a GM mechanic during the mid 1940’s while attending a GM training school in Framingham, Massachusetts. Grenier Dep. Part 1, 14:10-14:22 (Ex. 1); Grenier Dep. Part 2, 53:19-57:7 (Ex. 2). After completing his initial GM training, he continued to attend annual training classes at the Framingham location throughout his long career as a mechanic. Grenier Dep. Part 2, 56:5-56:25 (Ex. 2). Mr. Grenier was never warned by GM in any way about the use of asbestos in brakes, even though GM taught him how to grind brakes and continued to train him at the Framingham workshops each year. Deposition of Roland Grenier, March 1, 2006, Part 3 (“Grenier Dep. Part 3″), 197:5-198:25, attached as Ex. 3. Although both dealerships where Mr. Grenier worked were GM dealers, because both dealerships also sold and serviced used cars, Mr. Grenier was also exposed to the brands of the other Defendants. Id. at 175:14-176:1; 176:15-176:24. At both dealerships, Mr. Grenier was required to grind brakes and clutches using an arcing machine prior to installation. Id. at 178:10-18.

Mr. Grenier was exposed to asbestos while working with Defendants’ friction products, including brakes, clutches and gaskets. While at the Frank Crook Oldsmobile Dealership from 1944-1951, Mr. Grenier used brakes of various manufacturers, including Big Red, Brakeblok, Delco (GM), Ford, Chrysler-Mopar, Wagner, and Bendix. Grenier Dep. Part 1 at 23:11-17; 26:1-14 (Ex. 1). While at Lumb from 1952-1979, Mr. Grenier used American Brakeblok, Bendix, Wagner, Ford, Mopar, Delco (GM), Borg-Warner brakes and Grizzly brakes. Id. at 35:15-41:25. At Lumb Motors, Mr. Grenier performed brake jobs “everyday” some weeks, performing anywhere from one to ten brake jobs a day. Id. at 33:20-24. He was required to grind each type of brake, creating dust which he inhaled. Id.

As for clutches, while working for Frank Crook Oldsmobile, Mr. Grenier used Delco (GM), Wagner and Borg-Warner clutches. Id. at 29:6-33:16. Without any respiratory protection, he was required to “reface” all of the new clutch linings by sanding them with sandpaper, creating dust which he then breathed. Id. at 29:6-33:16. Mr. Grenier repeated this process while working for Lumb Motors, sanding Delco, Ford, Mopar, and Borg-Warner clutches and breathing in the dust the grinding created. Id. at 42:1-43:18.

Mr. Grenier also used gaskets while working for both dealerships. While working for Frank Crook Oldsmobile Dealership, he used gaskets made by Victor, GM, Mopar and Ford. Grenier Dep. Part 1, 26:24-27:3 (Ex. 1). At Lumb Motors he worked with Victor gaskets and also worked with GM, Ford and Mopar gaskets. Id. at 43:19-45:3.

Mr. Grenier’s testimony about his exposure to asbestos through working with Defendants’ asbestos-containing friction products was corroborated by his coworker at Lumb Motors, Peter Iacavone. Mr. Iacavone worked with Mr. Grenier at Lumb Motors in Mantunuck, Rhode Island beginning in the early 1970s. (Deposition of Peter Iacavone, Oct. 26, 200, attached as Ex. 4, 19:3-8, 17-18; 21:24-22:2). Mr. Iacavone had specific recollections of seeing Mr. Grenier use every brand of product that he named. Id. at 33:22-34:22; 42:4-43:2; 31:11-12. In addition to Oldsmobiles, Mr. Iacavone and Mr. Grenier worked on a mix of brands of used cars, including Fords and Chryslers. Id. at 57:9-58:20.

According to Mr. Iacavone, there were two buildings at Lumb Motors, the service building and the used car building. Id. at 20:6-21:23. Mr. Iacavone and Mr. Grenier first worked in the used car building, then moved over to the service building in approximately the mid-1970s. Id. at 21:24-22:2. In the used car building, there were two mechanics – Mr. Iacavone and Mr. Grenier. Id. at 22:24-23:16. There were four single car bays with single car garage doors. Id. There was one lift and no pits. Id. Mr. Iacavone provided a clear picture of the way he and Mr. Grenier were working within the confines of the four walls of the used car building, as the windows were kept locked, and the bay doors were closed most of the year, except during the summer. Id. at 23:23-25. Likewise, Mr. Iacavone testified that the doors in the service building were only raised during the summer, and that there were no windows at all in that location. Iacavone Dep. at 24:7-9; 26:8-13 (Ex. 4).

Throughout his time at Lumb Motors, Mr. Iacavone observed the work of Mr. Grenier and saw Mr. Grenier doing the same types of general auto work he did. Id. at 30:24-31:21. Moreover, for approximately five of the years that they worked together, Mr. Grenier trained him as they worked side by side. Id.

Mr. Iacavone corroborated Mr. Grenier’s testimony regarding Mr. Grenier’s exposure to asbestos from using Defendants’ friction products. Regarding brake products, Mr. Iacavone identified exposure to asbestos-containing dust via the procedure used to remove and install brakes. When he first began working at Lumb Motors, brake shoes were not taken off and thrown away but were instead re-lined where new lining was put on the old brake shoe. Id. at 97:16-98:16; 99:1-7, 25-100:7. In order for the new lining to be put on and re-riveted, he and Mr. Grenier were required to make a perfect arc by grinding them down, breathing in the dust that the process created. Id.

  1. You talked about — first I want to talk about changing the brakes. You talked about when you first started there, there was a method for changing out brakes where the brakes were relined?
    1. Right.
  2. When — I guess with regard to this procedure you said new lining was put on and it was re-riveted; is that right?
    1. Right. You drilled out old rivets. You removed the old lining, threw that away, put on new lining, riveted that back to the steel brake shoe and then they were ground on — this was all special equipment to do this. It was like a machine that you actually
  3. Was it a grinder?
      1. There were a grinder in it and you ground the brakes to make a perfect circle.
  4. Did this process create dust?
    1. A: Yes, it did.
  5. Would you breathe in that dust?
    1. Yeah.


The new procedure for brake installation was not any better for the health of the men performing the work. When Lumb Motors instituted new procedures and full part brakes were installed, Mr. Iacavone and Mr. Grenier were required each time they changed brakes to blow the brakes off with an air hose, again creating dust which the men breathed in. Iacavone Dep. at 106:15-107:25 (Ex. 4). Mr. Iacavone testified to using the brake products of GM/Delco, Raybestos and Bendix, Ford, and Chrysler. Id. at 38:24-39:22; 103:12-104:3.

When questioned about he process used when working on clutches, Mr. Iacavone testified that the mechanics and Lumb Motors would put the cars being worked on up on the lift and remove the transmissions, pressure plates and clutch discs, sometimes removing the fly wheel and using sandpaper to clean it out, creating dust. Id. at 37:21-38:4. Mr. Iacavone identified Borg-Warner, GM, Chrysler and Ford clutches as products he and Mr. Grenier used and removed. Iacavone Dep. at 110:13-14; 111:4-9; 104:4-105:7l, 41:24-42:3 (Ex. 4). Mr. Iacavone testified that he believed the clutch disks had asbestos in them because when he would put in a clutch disk there were “loads of dust,” and all the materials were covered in dust. Id. at 50:18-51:4.

Q:And when you put in that clutch disk, was there dust involved in that process?

    1. Loads of dust.
  1. And how was that generated?
    1. It was all in bell housing, transmission, everything that was in there was all loaded with clutch dust material. I would leave there and come home black after changing one of those things. You were black, just the dust on you.

Q:Is that from removing the old clutch or installing the new clutch?

  1. Removing the old one.

Id. Some of the clutches used at Lumb Motors during this time period were stamped with the name Borg-Warner. Id. at 51:21-52:3.

Defendant Borg-Warner has previously admitted that it manufactured and sold disk brake pads for vehicle model years 1971 through 1975. See Borg-Warner Interrogatory Responses, as read into the trial record in Flores v. Borg-Warner, Case No. 98-4954-G, Texas District Court, Nueces County, 319th District, (“Borg-Warner Interrogatories/Trial Transcript”), excerpts attached as Ex.5, 22:10-11. Borg-Warner does not dispute that its brakes contained asbestos fibers. See id. at 22:12-13. Depending on the type of brake pad, the amount of asbestos in Borg-Warner’s brake pads, by weight percentage, varied from 7% to 28%. See id. at 14-16.

Defendant GM does not dispute that it manufactured asbestos-containing disc brake pads from the 1960s up until the mid-1980s, as well as drum brake linings from 1939-1998. See General Motors Corporation’s Responses to Plaintiffs’ Master Set of Interrogatories, Newman v. Owens Corning Corp., Docket No. 98-1680, State of Louisiana, Tangipahoa Parish, 21st Judicial District Court, (“GM Interrogatory Responses”), excerpts attached as Ex. 6, 5-6. “Delco” was one of the trade names under which GM marketed asbestos-containing brake products. See id. at 5-6. Delco drum brake linings contained 50% to 75% asbestos by weight, and Delco disk brake linings contain 30% to 60% asbestos by weight. See id.

Defendant Chrysler also admits that it manufactured asbestos-containing products, admitting that “Chrysler understands brake linings and clutch facings have contained asbestos,” and that “[f]rom 1959 to 1988 Chrysler Corporation manufactured brake linings at a Chrysler plant in addition to purchasing brake linings from other suppliers.” See Notice of Service of Defendant’s, Chrysler Corporation, Responses To Master Preliminary Interrogatories, Tinker, et al. v. Chrysler Corp., 95-10261 CA 42, In the Circuit Court of the 11th Judicial Circuit in and for Dade County, Florida (“Chrysler Interrogatory Responses”), excerpts attached as Ex. 7, 4.

Likewise, Defendant Maremont does not dispute that it purchased the assets of Grizzly Manufacturing Company in December 1953. See Response of Maremont Corporation To Plaintiffs’ Master Set of Interrogatories and Request For Production Of Documents To Defendants (“Maremont Interrogatories”), In Re: All Asbestos-Related Personal Injury or Death Cases Filed By Baron & Budd, P.C. in Fulton county, GA, 3, excerpts attached as Ex. 8, 3. When asked to “identify by name each product containing asbestos fibers that Defendant or any of its predecessor subsidiary companies at any time manufactured, distributed, installed or sold,” Maremont responded that “Grizzly manufactured, sold, labeled, distributed and supplied friction products, including disc pads, brake shoes, brake blocks, wound clutch facings, and brake linings and brake lining products for automobiles, vans and trucks.” Id. at 8. Maremont admits that “Grizzly produced such products from 1953 onward and continued to produce them after Defendant Maremont sold the division in 1977,” and that “Maremont continued to distribute such products until 1980.” Id. at 9.

Defendant Ford also admits to selling and distributing “cars and trucks which contain friction products which contain asbestos.” Defendant Ford Motor Company’s Responses To San Francisco General Order No. 29 Interrogatories, In Re: Complex Asbestos Litigation, No. 828-684 In the Superior Court of the State of California In and For the City and County of San Francisco (“Ford Interrogatory Responses”), 8, attached as Ex. 9. Ford further admits that during the time period from 1930 and 1985, it “sold vehicles containing brakes and clutches and replacement parts” containing asbestos. Id. at 17. Ford states that “[m]any vehicles manufactured by Ford have incorporated brake linings and clutch facings which are composed, in part, of asbestos,” and that “[t]he type of asbestos fibers in the clutch facings and brake linings is understood to be chrysotile.” Id. at 20. These brake linings are generally “thought to be between 40% and 60% asbestos by weight…” Id.

The Defendants knew that these asbestos-containing products posed significant health hazards. Since the beginning of the past century, automotive brake linings, brake shoes and clutch facings have contained asbestos. Affidavit of Dr. Richard A. Lemen dated March 1, 2005 (“Lemen Affidavit”), at 3, attached as Exhibit FP 60. Disc brakes came into being in 1965 and by 1975 virtually all U. S. cars had such front brakes, though rear wheel brakes remained mainly of the drum variety. Id. Either type contained asbestos. See, e.g., Defendant, General Motors Corporation’s Answers to Middlesex County Form B Interrogatories, filed in Coates v. Raymark Indus., Inc, No. L-095651-85 (Superior Court of New Jersey, Middlesex County – January 20, 1987), at 7-9, attached as Exhibit FP 107. Chrysotile asbestos was used in the composition of the brakes, constituting from 40 to 50 percent of the brake lining. Lemen Affidavit, at 4.

As has been chronicled many times in asbestos litigation, the river of knowledge of the dangers of asbestos runs long, wide and deep. See, e.g., Borel v. Fibreboard Paper Prods. Corp. , 493 F. 2d 1076, 1083-86 (5th Cir. 1973). Very early on in the modern history of this knowledge, exposures to asbestos from the machining of asbestos friction materials were recognized. Over 70 years ago, after the first large scale asbestos epidemiological study had been completed, investigators reported asbestos exposure from the sawing and grinding of finished asbestos brake and clutch linings. E.R.A. Merewether & C.W. Price, Report on the Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry, His Majesty’s Stationery Office 28-29 (1930), attached as Exhibit FP 113.

(d) Brake and Clutch Linings. . .The amount [of dust] is considerable at sawing and grinding machines and localised exhaust draught, to remove it, has been applied-in some cases with much success-and is always necessary.

As early as 1940, articles reporting asbestos disease in grinders and drillers of asbestos brakes began appearing in the medical literature. See Brachmann, Arbeitschutz, Abstract of Asbestosis in Grinders and Drillers of Brake Bands, Digest of Industrial Hyg. 172-4 (1940), attached as Exhibit FP 114. In 1948, the Assistant Head of the GM Industrial Hygiene Department published an article noting that “[A]sbestos used in the formulation of brake lining is a potentially harmful compound . . . [and that] [D]ust exposures to asbestos . . . exist when the dry materials are handled and emptied into the mixers and in the subsequent operations of slitting, grinding or surfacing.” V.J. Castrop, Recognition and Control of Fume and Dust Exposure, 57 National Safety News 20 (February 1948), attached as Exhibit FP 71.

In 1968, a United States Public Health Service researcher noted that the dust produced by the abrading operations in asbestos friction product factories contained airborne asbestos fibers similar to those in industries where cancer rates were known to be in excess of the norm. Lemen Affidavit, supra, at 5, citing Jeremiah R. Lynch, Brake Lining Decomposition Products, 18 J. of the Air Pollution Control Ass’n 824 (December 1968).

Two years later, at a major friction materials conference in England, Ford Industrial Hygiene Specialists reported that they had specifically analyzed the dust produced by sanding asbestos brake linings and found 28% of the dust was asbestos fibers. D.E. Hickish & K.L. Knight, Exposure to Asbestos During Brake Maintenance, 13 Ann. Occup. Hyg. 17-21 (1970) (“Hickish & Knight, Exposure to Asbestos”), attached as Exhibit FP 93. In concluding their presentation, these Ford specialists noted: “[O]ur environmental studies have not included maintenance procedures which involve the filing and grinding of brake lining material, and we would envisage that these would give rise to considerably increased air contamination by chrysotile asbestos, with the attendant need for strict precautions to prevent the inhalation of fibers.” Id. at 21.

In the early to mid -1970’s, Dr. Arthur Rohl, and his colleagues at the Mt. Sinai School of Medicine, measured asbestos dust levels for various brake repair activities on trucks. Fiber concentrations were all above the current threshold levels. Lemen Affidavit, supra, at 5, citing A. N. Rohl, A.M. Langer, M.S. Wolff, & I. Weisman, Asbestos Exposure During Brake Lining Maintenance and Repair, 12 Env’l Research 110, 122 (1976). The same year, significant fiber levels were similarly reported in the literature concerning brake lining service. W. V. Lorimer, A.N. Rohl, A. Miller, W.J. Nicholson, I.J. Selikoff, Asbestos Exposure or Brake Repair Workers in the United States, 43 Mount Sinai J. of Med. 207-217 (May-June 1976) (“Lorimer, et al., Asbestos Exposure”), attached as Exhibit FP 94.

By 1986, the EPA released its own publication outlining the asbestos hazards associated with friction products, the way in which asbestos exposure occurs, its deleterious health effects, and, how to avoid exposure. Asbestos Action Program, U.S. EPA, Guidance for Preventing Asbestos Disease Among Auto Mechanics, at 1, 5 (June 1986), attached as Exhibit FP 61. The EPA reported that brake workers are exposed to significant quantities of asbestos in every brake repair operation, including unpackaging, sanding, filing, beveling, drilling, grinding and blow out. Id.

In addition to the extensive published medical and scientific literature on the subject, Defendants’ own corporate records and trade association documents demonstrate their awareness that machining friction materials creates significant levels of exposure to asbestos and concomitant health risks.


GM began manufacturing asbestos friction products in the 1930’s at its Inland Manufacturing Division, Dayton, Ohio. See L.B. Case, Air Hygiene Studies, Inland Manufacturing Division, Dayton, Ohio (October 31 and November 1, 1939) (“Case, 1939 GM Inland Mfg. Dust Studies”), attached as Exhibit FP 95. During this time, GM’s own medical consultant, Dr. A. J. Lanza, authored a book discussing the potential for asbestos exposure related to friction products. A. J. Lanza, Silicosis & Asbestosis (Oxford University Press 1938), at vi, 22-23, 386-391, 419, attached as Exhibit FP 70. In 1948, the company’s industrial hygienist, V. J. Castrop, published a paper on the danger of releasing asbestos fibers during the process of grinding brake material, and cautioned that exhaust systems should be used to reduce the dust associated with the procedure. V.J. Castrop, supra, attached as Exhibit FP 71.

No doubt as a result of the involvement of Dr. Lanza and Dr. Castrop, GM apparently was aware very early on that the grinding of asbestos friction products generated significant asbestos exposure; indeed, Defendant provided exhaust ventilation at the grinding machines in its asbestos friction product plant and monitored asbestos dust levels in the operations as far back as the 1930’s. See Case, 1939 GM Inland Mfg. Dust Studies, supra. Despite these measures, in March 1960, dust samples at the forming and brake press equaled the TLV in effect at the time, or 5 million particles per cubic foot. Dust samples at the salvage grinding station, however, were far greater – 11 million particles per cubic foot. Industrial Hygiene Report, Inland Manufacturing Division, Dayton, Ohio, at 4 (March 16-18, 1960)(“1960 GM Inland Mfg. Dust Studies”), attached as Exhibit FP 104.

In February of 1969, GM managers received a confidential memorandum in which GM’s Medical Director of the Inland Manufacturing Division, Dr. M.E. Gibson, was criticized for his adherence to the view of Dr. Selikoff, that any one fiber of asbestos was sufficient to cause mesothelioma. February 4, 1969 Confidential Minutes of January 28, 1969 meeting, attached as Exhibit FP 6.

Later the same year, Dr. Gibson presented a paper at the GM Medical Conference in Houston in which he stressed the need to reduce the concentration of asbestos in an effort to prevent cancer of the lung. M.E. Gibson, Asbestos in Industry (1969 General Motors Medical Conference – April 21, 1969 in Houston, Texas), attached as Exhibit FP 7.

An internal memorandum of a meeting between Johns Manville’s and General Motor’s scientists in 1970 over a year later reflects that Dr. Gibson remained convinced, despite the condemnation of his corporate colleagues, that “asbestos is the main cause of lung cancer and object[ed] to any additional input into the atmosphere no matter how slight.” September 8, 1970 Memo for File by S. Spiel, attached as FP 4.

Despite the company’s long-held knowledge of the hazards of asbestos, in January of 1973 – after OSHA published regulations concerning the substance – Mr. Jim Miller and Dr. Bill Krebs of GM conferred with Mr. T.P. Norris, of Union Carbide Corporation, a supplier of raw asbestos to GM for use in its brake linings. January 4, 1973 Union Carbide Memorandum by T.P. Norris, attached as Exhibit FP 8. Union Carbide was relieved to learn that, although GM was working with asbestos alternatives for its friction products, such efforts were not being made due to any internal ban on asbestos in reaction to OSHA requirements. Id. Rather, the evaluation of substitutes was being conducted to improve braking distances. Id. Later that year, in August, 1973, Dr. Krebs again assured Union Carbide that GM’s plants could “use asbestos where they need to use it.” August 10, 1973 Union Carbide Memorandum by H. B. Rhodes, attached as Exhibit FP 9.

In December 1975, GM was once again reminded that stringent measures would be critical to maintaining safe levels of exposure for those working with its asbestos brake products. At that time, GM conducted asbestos monitoring during brake repair at a Buick dealership in New York City. Although the mechanics took care not to use compressed air to clean brake assemblies, levels as high as 4.5 f/cc were measured, or 45 times the current limit. September 28, 1976 Letter from W.H. Krebs, GM Industrial Hygiene Department, to W. McCrocklin, Manager, Circle K Buick, attached as Exhibit FP 81.

In fact, by December of 1979, GM confirmed its knowledge that brake work creates asbestos exposure in an article in Business Week: The Growing Need For Asbestos Substitutes, Business Week, December 3, 1979, at 98D, attached as Exhibit FP 79. The article discussed the brake repair worker’s practice of sanding asbestos brake linings, and quoted a GM engineer’s response: “[T]his puts all sorts of harmful fibers in the air.” Id.


Chrysler also knew the dangers of its products. In 1946, Dr. Dart, Chrysler’s Director of Industrial Hygiene, instructed that asbestos fiber was among several substances that “must be considered as potential systematic poisons.” April 23, 1946 Memorandum by E.E. Dart, M.D., attached as Exhibit FP 39. Over ten years later, Chrysler commenced asbestos brake manufacturing operations at its Trenton, New Jersey plant in 1959. Deposition Testimony of Chrysler’s Supervisor for Product Development in the Trenton Plant, James M. Knoll, in Coates v. Raymark Industries, No. L-095651-85 (Superior Court of New Jersey, Middlesex County – September 16, 1988) (“Knoll Testimony”), at 21, attached as Exhibit FP 96.

As early as 1960, Chrysler began to monitor the asbestos dust levels generated in its asbestos brake lining manufacturing facilities. See May 17, 1960 letter from Michigan Dept. of Health to Cycleweld Cement Products, attached as Exhibit FP 40; May 27, 1963 Memorandum by Louis Redmond, attached as Exhibit FP 41. Just four years after starting production, Chrysler was measuring airborne asbestos concentrations in its plant and finding measurements that exceeded the current PEL/TLV. Dust Study Performed At Chrysler Plant In Trenton, New Jersey (May 27, 1963) (“Chrysler Trenton Dust Studies”), attached as Exhibit FP 97. When asbestos dust levels were found in excess of the standard, Chrysler’s industrial hygienists stressed the importance of improved ventilation and the use of respirators. February 1965 Chrysler Periodic Industrial Hygiene Survey, attached as Exhibit FP 42. Over the years, however, ventilation continued to be inadequate in the Friction Materials Plant. See February 3, 1969 Chrysler File Memo, attached as Exhibit FP 47. During one inspection by the Michigan Department of Public Health, it was discovered that one of two areas in the brake lining operations where air samples exceeded the maximum allowable concentration was in the vicinity of the brake lining grinder. March 17, 1969 Letter from Michigan Dept. of Public Health to Chrysler Chemical Division, attached as Exhibit FP 48. Thus, it could come as no secret to Chrysler that workers in the field engaged in the grinding of brakes would similarly be exposed to excessive levels of asbestos fibers.

In fact, Chrysler studied exposures to garage mechanics brushing dust out of brake drums on vehicles. In a November 1972 test, Chrysler found 0.2 fibers/cc during that operation. In addition, in dynamometer testing at its plant where disk brake pads were made, Chrysler found 1.0 fibers/cc in the air. Deposition Testimony of Gerald A. Sattelmeier, in Coates v. Raymark Industries, No. L-095651-85 (Superior Court of New Jersey, Middlesex County – March 9, 1989), at 106, attached as Exhibit FP 89; Chrysler Trenton Dust Studies (November 1972), supra. Samples from the Chrysler Trenton plant in the 1980’s all showed fiber levels exceeding the 0.1 fiber/cc limit in factory operations that mirrored those that brake workers perform in the field, even though state-of-the-art dust collection was used in the plant and workers there wore masks. Knoll Testimony, supra, at 51-52.

In the midst of its manufacturing and internal monitoring operations, Chrysler was notified in January of 1970 by one of its asbestos suppliers that the bags of raw asbestos delivered to the Chrysler plant would be required, from that point forward, to contain a warning. January 13, 1970 Letter from P.E. LeClerc, Asbestos Corporation Limited, to Jim Potter, Chrysler Corporation, attached as Exhibit FP 50. It was not until nearly three years later, in late November, 1972, however, that Chrysler was finally instituting its own procedures for posting warnings in its facilities. November 27, 1972 Chrysler Inter Company Correspondence from N. McCallum, Safety Director, attached as Exhibit FP 53.


Defendant Ford, too, was fully aware of the dangers created by mechanics’ work with asbestos-containing friction products. In an unpublished paper in 1968, Dr. Hickish, who was with Ford’s Medical Services Division in Great Britain, examined asbestos brake “blow out” exposures. He reported that the “generation of a dust cloud by blowing off dust from commercial vehicle brakes results in increased background contamination of 3 to 4 times the background level at any point within a radius of 20-25ft.” D.E. Hickish, Report 52/68, Exposure to Asbestos Dust During Brake Maintenance Operations on Commercial Vehicles, Fleet Repair Garage, Dagenham (October 1968), attached as Exhibit FP 80. He further noted that, not only was the asbestos exposure of the mechanic engaged in “the blowing off task” nearly four times the threshold limit value, but also the asbestos measured in the breathing zone of a different mechanic in an adjacent work bay, during the blow off period, exceeded permissible limits. Id. at 3.

In 1970, Mr. Roy L. Gealer proposed a program by which Ford could determine the nature of the hazard posed by asbestos released from the wearing down of brake linings. April 14, 1970 Memorandum by Roy L. Gealer entitled Program to Establish the Nature of Particulate Emissions from Brake Lining Wear, attached as Exhibit FP 15. In particular, Mr. Gealer was concerned that “[t]he fibrous asbestos particles in wear dust could be particularly hazardous as a carcinogen.” Id.

In 1973, Mr. J.D. Woods forwarded a memo to L.D. Gray and others at Ford, expressing his view that in light of OSHA’s interest in the issue of asbestos exposure, the company’s “best course of action would be to eliminate the use of asbestos entirely and I believe maximum effort should be directed toward that end.” January 3, 1973 Ford Intra Company Memorandum from Mr. J.D. Woods to L.D. Gray, attached as Exhibit FP 24.

In the early 1970’s, the Ford Industrial Hygiene Section began monitoring asbestos dust levels internally, at test tracks and other locations, during brake repair operations. In a May 29, 1973 letter from Ford Industrial Hygienist Harry Lick to Ford’s J.A. Keller, Mr. Lick discussed air samples taken during blow off of truck brake drums and assemblies, and stated: “results of the air sample . . . indicated an over exposure to the 10 fibers greater than five microns in length per millimeter of air ceiling concentration limit prescribed by OSHA.” Letter from Harry Lick, Ford Industrial Hygienist, to J.A. Keller, Ford Personnel Services Supervisor (May 29, 1973), attached as Exhibit FP 82. In August 1973, Mr. Toth, the Supervisor of Ford’s Industrial Hygiene Section, circulated a memorandum reporting that “[R]ecent industrial hygiene studies have demonstrated overexposure to asbestos fiber in air during certain vehicle brake rebuilding and inspection operations. Overexposure occurred when brakes and brake drums were cleaned using compressed air blowoff.” Paul E. Toth, Supervisor of Ford’s Industrial Hygiene Section, Memorandum Re: Vehicle Brake Rebuilding (August 3, 1973), attached as Exhibit FP 83.

Shortly thereafter, Ford internally banned the use of compressed air to clean brakes and brake linings during servicing of any automobile, truck, trailer or other unit having asbestos brake linings. See J.B. Williams, Memorandum Re: Vehicle Brake Rebuilding (August 23, 1973), attached as Exhibit FP 36. In that same month, Ford issued Maintenance Bulletin No. 137, warning Ford employees that “[o]verexposure to asbestos fiber in the air can occur during inspection and repair operations on brakes, brake drums, clutches, and associated components of these units when compressed air is used to blow off asbestos laden dust.” Ford Plant Engineering Office Manufacturing Staff, Maintenance Bulletin, No. 137 (August 1973), attached as Exhibit FP 83.

In place of compressed air blow out, Ford ordered its employees to use specially designed vacuums, which its Rotunda Equipment Division later marketed to Ford dealerships. See J.R. Knauss, Memorandum Re: Controlling Asbestos Exposure (November 16, 1973), attached as Exhibit FP 84; see also Rotunda Ford, Product Engineering Evaluation (July 1975), attached as Exhibit FP 85 (describing product as “a brake service vacuum cleaner designed for recovery of dry dust containing asbestos fibers”); Ford Parts and Service Division, General Field Bulletin No. 1469, Re: Rotunda Shop Safety Equipment Promotion (July 8, 1976), attached as FP 86 (“Rotunda has just added a special vacuum cleaner to its equipment line, which is designed to remove hazardous asbestos dust fibers which result from certain brake and clutch operations.”); Ford Rotunda 1977 Dealer Catalog, attached as Exhibit FP 87. Until those vacuums were available, Ford ordered its employees to wear approved dust respirators should it become necessary to “dust” or clean brakes, “regardless of length of exposure to asbestos dust.” Id.

By late 1975, Ford issued a technical service bulletin which contained a section entitled, “Brake Asbestos Dust Fiber Removal.” The Bulletin read: “CAUTION: Dust and dirt conditions present on wheel brake assemblies and rotors and drums, may contain asbestos fibers that can represent a potential health hazard when made airborne by cleaning with compressed air.” Ford, Technical Service Bulletin No. 99 (1975), attached as Exhibit FP 88. Ford reaffirmed its position on blow out exposure in an April 23, 1975 internal letter, which stated, “for the most part, whenever air hoses were used to clean dust out of brake drums, we found exposures in excess of limits established in OSHA standards on asbestos dust.” Letter from Paul E. Toth, Supervisor, Ford Industrial Hygiene Section, to T. Cole, Ford Chemistry Department, Re: Exposure of Garage Mechanics to Brake Dust (April 23, 1975), attached as Exhibit FP 11.

In May 1980, Ford’s Carcinogens in the Workplace Task Force Report was issued. Ford Engineering and Manufacturing Staff, Engineering and Research Subcommittee, Manufacturing and Supply Subcommittee, Carcinogens in the Workplace Task Force Report (May 27, 1980), attached as Exhibit FP 55. The section on asbestos concluded that “[A]sbestos is found in a variety of automotive components, and thus many occupational exposures are possible. The most critical exposure occurs during brake and clutch repair.” Id. at 6.

In August 1983, Ford issued its Industrial Relations Bulletin No. 4 on Asbestos. Ford Employee Health Service, Industrial Relations Bulletin, No. 4, Industrial Hygiene (August 22, 1983), attached as Exhibit FP 57. Ford noted that asbestos exposures “can cause asbestosis, cancer of the lungs and digestive tract, and mesothelioma.” Id at 1. Under a section entitled “Employee Exposure,” Ford’s Employee Health Services Department wrote: “[E]mployee exposure can generally occur during material handling and maintenance of asbestos-containing friction materials. Exposure can occur during grinding, sawing, sanding, drilling or otherwise disturbing or finishing asbestos-containing products.” Id. at 2.


Borg-Warner manufactured asbestos-containing disc brake pads from 1971 to 1975 and sold asbestos-containing clutch assemblies from 1928 through at least 1988. Further Responses and Objections of the Defendant Borg-Warner, Corporation to the Plaintiffs Interrogatories, filed in Lloyd Turner v. Armstrong World Industries, Inc., No. 87-2779-H (W. D. Tenn. 9-6-88), at No 5, attached as Exhibit FP 111. This was in spite of the fact that Borg-Warner had been notified by OSHA of the dangers their products posed to their employees. 1974 Notice of Violation from OSHA, attached as Exhibit FP 59. But Borg-Warner chose not to place warnings on its clutch assembly packaging until 1986, (Id. at 10) and it never conducted any testing to determine the potential health hazards associated with using its asbestos friction products. Id. at No. 8.

Despite the knowledge in the scientific and medical communities concerning the hazards of asbestos, and despite their own awareness of those dangers, Defendants did virtually nothing to protect those they knew would be exposed to and injured by the asbestos friction products they manufactured and sold. They did not disclose what they had discovered in their own operations; they did not share with product users the necessity for the very precautions recommended by their own manufacturers’ association; and instead, Defendants simply elected to tell their customers nothing – or next to it.

Defendant GM has admitted that it has sold and/or manufactured asbestos-containing brake and/or clutch products from 1929 through at least 1995. Defendant’s General Motors Corporation, Responses to Plaintiffs’ Master Request for Production, filed in In re: Asbestos Litigation, No. 94-CI-10078 (Bexar County, Texas 285th Jud. Dist. December 2, 1995)(“GM’s Bexar County Responses”), at 7-13, attached as Exhibit FP 107; see also Defendant, General Motors Corporation’s Answers to Middlesex County Form B Interrogatories, filed in Coates v. Raymark Indus., Inc, No. L-095651-85 (Superior Court of New Jersey Middlesex County January 20, 1987), at 29, attached as Exhibit FP 108. Yet it failed to place any kind of cautionary statement on such products until 1975, and then the label’s language did not convey to workers the magnitude of the risk to which they were exposed or the means by which such risk might be minimized, though such information had been in GM’s possession for decades. Not until 1989 did GM begin to place warnings on packaging that even began to convey GM’s knowledge that exposure to its products could cause cancer or GM’s experience with methods by which to minimize exposure to the asbestos dust created by its products. GM’s Bexar County Responses, at 20.

Although Ford has admitted that it sold asbestos-containing brake and clutch products between 1930 and 1985, it never conducted any testing (other than that done on its own workers, of course) to determine whether such products would be harmful when used in a vehicle repair or maintenance facility. Defendant Ford Motor Company’s Responses to San Francisco General Order No. 29 Interrogatories, filed in In re: Complex Asbestos Litigation, No. 828-684 (Superior Court for the City and County of San Francisco August 28, 1986), at 30-32, attached as Exhibit FP 109. Further, Ford apparently has never placed a warning on the clutch products it sells, and did not place a warning on packaging of brake linings until 1980. Id at 22, 26-27.

Chrysler has conceded that from 1959 to 1988, it manufactured asbestos-containing brake linings, in addition to supplying asbestos-containing brake linings from other manufacturers.

Defendant’s, Chrysler Corporation, Responses to Master Preliminary Interrogatories, filed in Tinker v. Chrysler Corporation, No. 95-10261CA42 (Dade County Florida 11th Jud. Cir. June 29, 1995), at No. 5(a) attached as Exhibit FP 110. During that time, Chrysler conducted no testing of its own to determine the asbestos exposure levels generated by use of its products. Id. at No. 24. Nor did it provide funding for such testing to be conducted by any other entity. Id. at No. 25. It did not undertake or finance any studies of the scientific or medical literature to determine the dangers of its products. Id. at No. 26. And, though Chrysler’s supplier of raw asbestos included a caution label on its product in 1970, see discussion supra, Exhibit FP 50, Chrysler chose never to place a warning of any kind on or inside a carton or package of its asbestos-containing brake products. Id. at Nos. 33 & 34.

Borg-Warner has admitted that it manufactured asbestos-containing disc brake pads from 1971 to 1975, as well as sold asbestos-containing clutch assemblies from 1928 through at least 1988. Further Responses and Objections of the Defendant Borg-Warner, Corporation to the Plaintiffs Interrogatories, filed in Lloyd Turner v. Armstrong World Industries, Inc., No. 87-2779-H (W. D. Tenn. 9-6-88), at No 5, attached as Exhibit FP 111. During that time, Defendant was acutely aware of the need to protect workers from the dangers of asbestos, as Borg-Warner itself received in 1974 a Notice of Violation from OSHA, for Defendant’s violation of Standard 19101001 D03 (Asbestos Tremolite, Anthophyllite & Actinolite). Notice of Violation from OSHA, attached as Exhibit FP 59. Despite such knowledge, however, Borg-Warner never conducted any testing to determine the potential health hazards associated with using its asbestos friction products. Id. at No. 8. It never placed a warning on its asbestos-containing brake products or their packaging, and it elected not to include a warning on the packaging of the clutch assemblies it sold until 1986. Id. at No. 10.

Defendants’ decisions not to warn workers of the hazards of asbestos exposure caused by working with their friction products were particularly wilful in view of the fact that many of the operations conducted at Defendants’ own manufacturing plants were similar to those that a mechanic would perform if he ground asbestos brake parts before putting them on a car. Knoll Testimony, supra, at 30-31. Thus, the levels detected in Defendants’ plants were plainly applicable to workers’ exposure in the field. See also Trial Testimony of Dr. John M. Dement, Bertoline v. AlliedSignal, No. 6829 (Philadelphia Court of Common Pleas, 2d Jud. Dist. of Pa. – September 7, 2000)(“Dement Bertoline Trial Testimony”), at 40-56, attached as Exhibit FP 98 (Where the processes are similar to those in the plant, e.g., in any process where energy is applied to the finished product, airborne asbestos is liberated the same as in the plant. Id. at 51, 52. Similarly, where dust remains when the friction products are placed in boxes, that asbestos remains in the boxes when they are opened. Id. at 53-54.).

Defendants were well aware of the similarity between their plant conditions and workers’ exposure in the field. Indeed, as discussed above, some Defendants even conducted field tests of their own. See, e.g., September 28, 1976 Letter from W.H. Krebs, GM Industrial Hygiene Department, to W. McCrocklin, Manager, Circle K Buick, attached as Exhibit FP 81. In fact, it was the similarity in conditions that prompted one Defendant, Chrysler – for a very brief time – to place a caution in its service manual in 1973. Deposition Testimony of Jack Koblin, in Coates v. Raymark Industries, No. L-095651-85 (Superior Court of New Jersey, Middlesex County – June 14, 1988) (“Koblin Testimony”), at 90-91, attached as Exhibit FP 99. Interestingly though, Chrysler removed that warning from its service manual after the 1973 version. Its excuse for omitting the warning in subsequent versions of the manual was that perhaps Chrysler was the only company to include such a warning in the manual and that it may have affected sales. Id. at 90-92.

The evidence available to Defendants and the evidence they in fact possessed was overwhelming. In the face of that evidence, they did virtually nothing – decade after decade after decade. Their wilful refusal to act when action was called for was unconscionable. Tragically, Defendants’ conduct affected more than just sales.



A.All Defendants Have Failed to Meet Their Burden to Show That No Issue of Material Fact Exists.

Although this case is governed by the substantive law of another state, the summary judgment standard is a procedural issue governed by Delaware law. See Travelers Indem. Co. v. Lake, 594 A.2d 38, 45 (Del. 1991); Whiteside v. New Castle Mut. Ins. Co., 595 F. Supp. 1096, 1099-1100 (D. Del. 1984); see also Reid v. Sears, Roebuck and Co., 790 F.2d 453, 459 (6th Cir.1986) (explaining that summary judgment is a “procedural device” governed by the applicable rules of the forum). Section 135 of the Restatement (Second) of Conflict of Laws specifies that the “local law of the forum” governs issues involving sufficiency of the evidence. Citations to Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) or other cases adopting different summary judgment standards are therefore misplaced.

Under Superior Court Rule 56, summary judgment is proper only when “there are no material issues of fact, and the moving party initially bears the burden of showing that none are present.” Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (cit. om.). Only after the movant makes such a showing does the burden shift to the non-moving party to demonstrate that there are material issues of fact. Id. Summary judgment “‘should be cautiously invoked to the end that parties may always be afforded a trial where there is a bona fide dispute of facts between them.’” H. & S. Mfg. Co. v. Benjamin F. Rich Co., 164 A.2d 447, 448 (Del. Ch. 1960) (quoting Associated Press v. United States, 326 U.S. 1, 65 S. Ct. 1416, 1418 (1945)).

Each Defendant, as the movant in this case, bears the burden “to demonstrate to a reasonable certitude that there is no issue of fact which, if resolved in favor of the plaintiff, would hold the defendant liable.” Davis v. Univ. of Del., 240 A.2d 583, 584 (Del. 1968).In considering the motion, “[a]ll facts and reasonable inferences must be considered in a light most favorable to the non-moving party.” Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986). To withstand a motion for summary judgment regarding sufficient product identification nexus, a plaintiff need only “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.” In re Asbestos Litig., 509 A.2d 1116, 1117 (Del. Super. Ct. 1986) (internal quotation omitted). Further, proximity may be shown in a number of ways, such as showing that the plaintiffs “was in the area where [the product] was used, 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.” Id. (cit. om.).

  1. GM Has Specifically Failed to Meet Its Burden to Show that No Issue of Material Fact Exists On Its Motion For Partial Summary Judgment On Mr. Grenier’s Negligence Claim.

GM has moved for partial summary judgment on Mr. Grenier’s negligence claim. GM does not argue, however, that Plaintiff’s negligence claim is unfounded or even that Plaintiff was not exposed to Defendant’s products – just that Plaintiff was not exposed everywhere to GM’s products. See GM MSJ at 7-9, (seeking summary judgment on Plaintiff’s claims of exposure at Lumb Motors and through personal use of Defendant’s products). But the jury will not be required to decide whether Plaintiff was exposed to each Defendant’s product at each of the job sites on which he worked as well as through his personal use.

The jury will simply have to determine whether Plaintiff was exposed at any location and if so, whether such exposure was a proximate cause of Plaintiff’s injuries. See, e.g., DEL. P.J.I. CIV. § 21.1 (2000) (“Proximate cause is a cause that directly produces the harm, and but for which the harm would not have occurred. A proximate cause brings about, or helps to bring about, the [injury], and it must have been necessary to the result. There may be more than one proximate cause of an [injury.]”); Money v. Manville Corp. Asbestos Disease Compensation Trust Fund, 596 A.2d 1372, 1375 (Del. 1991)(“[T]he plaintiff is required to establish that the negligence of each defendant was a proximate cause of the injury which the plaintiff has suffered.”).[1] Thus, a determination by the Court now of each of the places in Plaintiff’s life where he was not exposed to GM’s product, would not eliminate a single question to be submitted to the jury and it would not resolve any legal issue in the case. It would simply take up the court’s time without limiting in any way the issues for resolution at trial. GM’s motion for partial summary judgment on Plaintiffs’ negligence claim should be denied.

GM makes the argument that Mr. Grenier has not met his burden of proof to show that he was exposed to asbestos contained in GM’s products while at Lumb Motors or during his work on his personal automobile. See GM MSJ at 7-8. GM has not moved for summary judgment on Mr. Grenier’s negligence claim with respect to his exposure at Frank Crook Oldsmobile Dealership in Pawtucket, Rhode Island. GM’s attempted use of Rule 56 in such manner is the proverbial exercise in futility. Were the Court to invest the time and resources to decide the motion, such expenditure would not reduce the number of facts to be determined by the jury or eliminate a single legal issue to be resolved by the Court.

It is true that Del. Sup. Ct. R. Civ. P. 56(d) permits a party to seek summary judgment regarding a “claim, counterclaim or crossclaim.” But there is no authority whatsoever that requires a trial court, on summary judgment, to consider a motion that would not dispose of a claim, resolve a legal issue or determine an issue of fact that would otherwise be submitted to the jury. Rather, Rule 56(d) is used to narrow the issues at trial. “An interlocutory order for partial summary judgment under 56(d) would operate to the same extent as a pretrial order under Rule 16 and would only have value as expediting the trial by limitation of the matter involved.” New Hampshire Fire Ins. Co. v. Perkins, 30 F.R.D. 382, 384 (D.Del. 1962). Such motions are used most frequently to fix known damages amounts prior to trial, and to eliminate unfounded claims. See, e.g., Money Store/Delaware, Inc. v. Kamara, 704 A.2d 282, 282 (Del. Super. 1997)(motion to determine amount due on a balloon note); and In re McKelvey v. Manley, 1997 WL 528001 (Del. Super. Feb. 20, 1997)(ruling as a matter of law that defendant was an independent contractor rather than employee).

For purposes of summary judgment, the only question before the Court is whether an issue of fact exists with respect to Mr. Grenier’s exposure to products manufactured by the Defendants. Since reasonable and fair-minded people could certainly conclude that Mr. Grenier was exposed to asbestos-containing products manufactured by each of the Defendants, all of the motions for summary judgment should be denied.

As set forth in the Statement of the Case, supra, Plaintiff has produced evidence demonstrating that Roland Grenier suffered significant occupational exposure to asbestos from the Defendants’ products. Moreover, this testimony is consistent with expert evidence presented before Delaware courts that asbestos from friction products, such as those manufactured by Defendants, can cause mesothelioma. For example, in In Re Asbestos Litig., 2006 WL 1231123 (Del. Super. May 9, 2006), the court upheld that admissibility and reliability of plaintiff’s expert testimony, including that of Dr. Dodson: “From this peer-reviewed evidence, Dr. Dodson was able to opine that work with friction products in the garage setting would release sufficient chrysotile fibers to create a dose response for asbestosis and lung cancer. Since mesothelioma is less dependent upon a dose response, it follows that sufficient fibers would be released to increase the risk for contracting that disease as well.” Id. at *25. The court further noted that “[e]ven Dr. Goodman [defendant’s expert] agrees that friction products can release respirable asbestos fibers.” Id. at *25 n.165. The court further noted that “[i]n 1986, EPA [issued] a bulletin warning mechanics that working on friction products can release ‘millions of asbestos fibers’ and noted the risk of contracting mesothelioma from exposure.” Id. at *25 n.166.

In this case, the uncontroverted evidence shows that Mr. Grenier worked in close proximity to Defendants’ asbestos-containing products when they were used in such a manner as to release respirable asbestos fibers. Thus, Plaintiff has supplied ample evidence from which it can be reasonably inferred that Mr. Grenier was exposed to asbestos fibers from Defendants’ friction products.

  1. Mr. Grenier’s References to Maremont’s Products (Grizzly Brakes) In His Deposition Were Not The Product of Improper Questioning.

According to Delaware Rules, “[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of Delaware Uniform Rules of Evidence . . .” Del. Super. Ct. R. Civ. Pro. 30(c). At trial, “any part or all of the deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition.” Del. Super. Ct. R. Civ. Pro. 32(a). Here, Mr. Grenier’s deposition did not include any statements which, under the Delaware Uniform Rules of Evidence, would be inadmissible. Defendant’s contention that questions posed by Plaintiff’s counsel were “leading” is inaccurate and ultimately irrelevant.

1. Counsel’s questions were not leading, compound, or vague.

As an initial matter, Plaintiff’s counsel’s statements were not in any way leading. A leading question is one in which the answer is suggested by the question. Moreover, such questions are not prohibited, but rather “should not be used on the direct examination of a witness except as may be necessary to develop his testimony.” D.R.E. 611(c) (emph. supp.).

In the instant case, Plaintiff’s counsel asked specific follow-up questions concerning Mr. Grenier’s recollection of several brands and manufacturers of brakes Mr. Grenier remembered using during his years at Lumb Motors. The initial inquiry, which Maremont finds objectionable, is as follows:

Q:What brand names of brake lining materials do you remember using during your years at Lumb Motors?

A:Well, Delco, Fort Motor Company, Mopar, Bendix. I’m slow. I can’t remember. I can’t remember.

Q:Fair enough.

  1. I can’t remember all of them.
  2. Could you be using one brand name of brake on one given day and another brand name on another given day?
    1. Yeah.
    2. Could it vary from job to job?
      1. Oh, Yeah.

Grenier Dep. Part 1, 35:19-36:5. The deposition continued, and Mr. Grenier testified as to how he recalled the identity of various brake manufacturers, and described the process used to grind brakes while he worked at Lumb Motors. Id. at 36:6-39:17. Then, having laid a proper foundation for the question, counsel asked and Mr. Grenier responded, without any improper prompting, as follows:

  1. Are you familiar with the name Grizzly?
    1. Yeah, I am.
  2. What do you associate with that name?
    1. With brakes.
  3. Did you ever use any Grizzly brakes at Lumb Motors?
    1. Yes.
  4. And how did you know you were using Grizzly brakes?
    1. Your box labels.

Id. at 39:18-40:2.

Importantly for this Court’s analysis, the deposition continued, and counsel asked about whether Mr. Grenier recalled working with other brands of brakes at Lumb Motors, including Big Red and American Brakeblok, and Mr. Grenier testified that he recalled working with Big Red Brakes at Frank Crook but not at Lumb Motors, thus bolstering Mr. Grenier’s correct recall of his work with Grizzly brakes, but not Big Red, at the Lumb Motors location:

  1. Okay. Do you recall if you used any Big Red brake linings at this location?
    1. Not at Lumb but Frank Crook, yes.

Id. at 39:39:17-25.

Moreover, Maremont’s argument that Mr. Grenier’s testimony is somehow questionable because the company did not begin making Grizzly brakes until 1953, one year after Mr. Grenier began his almost thirty-year stint as a mechanic at Lumb Motors is nonsensical. See Maremont MSJ at 3. Mr. Grentier’s deposition demonstrates knowledge and understanding of his work history and exposure to various asbestos-containing products manufactured by the Defendants.

2. Counsel Established An Appropriate Foundation Prior To Inquiring About The Brakes Mr. Grenier Repaired And Installed.

Delaware Uniform Rule of Evidence 602 requires that a “witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.” Mr. Grenier’s testimony demonstrates that he had personal knowledge regarding the brakes he repaired and installed throughout his career as a mechanic. As discussed previously, this foundation was laid before counsel asked about Grizzly Brakes.

3.Any Possible Prejudice Arising From Mr. Grenier’s Testimony Regarding Grizzly Brakes Is Greatly Outweighed By The Probative Value.

Finally, even if there were leading questions, which is denied, there was no unfair prejudice to Defendant Maremont. Rule 403 of the Delaware Uniform Rules of Evidence provides that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.” The questions posed did not entail a substantial danger of unfair prejudice or a potential for jury confusion. Mr. Grenier’s testimony, coupled with the other evidence to be presented at trial, is unlikely to confuse the jury.


Defendants Chrysler, GM and Ford have each moved for summary judgment on Plaintiff’s claims against them for strict liability. See, e.g., Ford MSJ at 10-11; GM MSJ at 10. In Thomas v. Amway Corp., 488 A.2d 716, 722 (R.I. 1985), the Rhode Island Supreme Court held that a plaintiff seeking to hold a defendant strictly liability has the burden of proving a defect in either design or manufacture of each Defendant’s product that “makes the product unsafe for its intended use,” and also has the burden of demonstrating that Plaintiff’s injuries were proximately caused by Defendants’ products. Id. Defendants Ford and GM argue that Plaintiff has not met the burden set forth in Thomas. See Ford MSJ at 10-11; GM MSJ at 10.Defendants’ reliance upon Thomas to support their arguments, however, is misplaced. In Thomas, the Rhode Island Supreme Court specifically authorized the use of the type of evidence produced by Mr. Grenier, stating:

Introducing probative circumstantial evidence that may create inferences of fact not otherwise subject to direct proof, and which could prove the defect and causal connection is entirely consonant with the theory of strict liability. The inferences drawn from the evidence, however, may not rely upon mere conjecture or speculation to establish essential elements of this case.

Id. (emphasis supp.).

The Thomas Court explained that in under a theory of strict liability:

a seller need only warn of those dangers that are reasonably foreseeable. If he does not provide such a warning, then the product is rendered defective.

Id. Defendants would have the Court believe that Plaintiff’s injuries were not “reasonably foreseeable,” and thus required no duty to warn. The facts of Thomas, which the court found did not meet the punitive standard, are totally distinguishable from the instant case. In Thomas, a the plaintiff complained that a soap manufactured by the defendant caused a rash and the court held that there was not sufficient evidence of causation. Id. at 722. But Mr. Grenier has produced more than sufficient evidence that it was reasonably foreseeable that the defect in Defendants’ asbestos-containing products could have caused Mr. Grenier’s injuries, and the motions of Defendants Chrysler, GM and Ford for summary judgment on Plaintiff’s strict liability claim should be denied.[2] See Statement of the Case, supra.

The application of Rhode Island’s law on strict liability does not violate Delaware public policy. This argument rests on a fundamental misunderstanding of the Delaware Supreme Court’s analysis in Cline v. Prowler Industries of Maryland, 418 A.2d 968 (Del. 1980). The Court in no way suggested that the application of a statutory liability scheme adopted by another state would violate public policy goals of the state of Delaware. Id. To the contrary, in that case, the Court was called upon to determine whether, applying Delaware law, common law strict liability was available as a remedy to plaintiffs injured by defective products. Id. at 971. The issue in Cline was whether the General Assembly , in adopting the Uniform Commercial Code, intended to preempt the doctrine of strict products liability in sales transactions in Delaware. Id. at 974.

In its analysis, the Court acknowledged that the law of sales warranties had historically been “viewed as wholly inadequate to deal with the scope and extent of injuries to an ever-growing consuming public caused by ever-increasing types of products.” Id. at 973 (citing Prosser, The Assault Upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960)). The Court, however, also observed that the General Assembly had increased protections available to consumers in its promulgation of the U.C.C. in Delaware. Id. at 976. For example, the Court recognized that, in large measure, the version of the U.C.C. adopted in Delaware rendered the defenses of privity, notice, and disclaimer ineffective. Id. Based on such analysis, the Court determined that the Delaware legislature intended that the U.C.C. rather than common law would provide the remedy for consumers injured by defective products. Id. at 980.

Any public policy concerns expressed by the Court in Cline involved deference to legislative prerogatives. Id. There was no indication in the Court’s decision that it would be in accord with Delaware public policy to leave plaintiffs such as those presently before the court without the remedy provided by state whose law governs the action. Id. Indeed, the Court has expressly noted that “‘[i]t may well be desirable as a matter of public policy to impose absolute liability upon a manufacturer for injuries caused by defects in his product.’” Id. at 979 (quoting Ciociola v. Delaware Coca Cola Bottling Co., 172 A.2d 252, 257 (Del. 1961). Rhode Island’s adoption of strict liability does not offend the public policy of Delaware or any other jurisdiction.


Defendants GM, Chrysler, Ford and Borg-Warner have each moved for summary judgment on Plaintiff’s claims for punitive damages. Contrary to Defendants’ assertion, Plaintiff has introduced sufficient evidence to show that these Defendants acted “willfully and wantonly for their own economic gain and with reckless indifference to the health and safety of the Plaintiff” and that “[a]s a direct and proximate result” of Defendants’ “actions and omissions,” Plaintiff was injured as previously described. (First Am. Complaint, p. 12, ¶ 16).

Under Rhode Island law, “punitive damages serve two purposes: punishing tortfeasors who commit intentional or malicious wrongful conduct and deterring such conduct in the future.” Soares v. Ann & Hope of Rhode Island, Inc., 637 A.2d 339, 351 (R.I.. 1994). A plaintiff seeking punitive damages must produce evidence “‘that the defendant acted with malice or in bad faith.’” Id. The trial court should submit the issue of punitive damages to the jury if “adequate facts exist to support such an award.” Id.

As demonstrated in great detail in Plaintiff’s Statement of the Case, supra, each of the moving Defendants acted with great recklessness and willfulness in light of their knowledge of the dangers of asbestos, and more specifically the dangers to those working with asbestos-containing friction products.


For the foregoing reasons, Plaintiff respectfully requests that this Court deny Defendants BORG-WARNER CORPORATION, DAIMLERCHRYSLER CORPORATION, FORD MOTOR COMPANY, GENERAL MOTORS CORPORATION, and MAREMONT CORPORATION’s motion for summary judgment.

Respectfully submitted,

Date: December 13, 2006

  1. Plaintiffs refer to the Delaware proximate cause instruction for illustration only. Because this case is governed by Rhode Island substantive law, the wording of the instruction on proximate cause may differ.
  2. Moreover, Defendants Ford and GM improperly rely upon Thomas for the proposition that Mr. Grenier “must provide expert testimony to explain how the alleged defect could have caused harm.” Ford MSJ at 11 (citing Thomas, 488 A.2d at 722). There is no such holding in Thomas. As set forth in Plaintiff’s Statement of the Case, supra, Plaintiff has produced more than sufficient evidence, including expert testimony, that it was reasonably foreseeable that the defect in Defendants’ asbestos-containing products could have caused Mr. Grenier’s injuries.