IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNT
January 12, 2007
PLAINTIFFS’ MEMORANDUM IN SUPPORT OF CONSOLIDATED RESPONSE TO MOTIONS IN LIMINE FILED BY DEFENDANTS CRANE CO., BUFFALO PUMPS, INC., WEIL-MCCLAIN AND GOULDS PUMPS, INC.
Plaintiffs submit this Memorandum in Support of Consolidated Response to Motions in Limine filed by Defendants Crane Co., Buffalo Pumps, Inc., Weil-McClain, and Goulds Pumps, Inc. Each of these motions attempts to exclude evidence of asbestos insulation or other products that were incorporated into the Defendants’ products. Plaintiffs hereby adopt and incorporate by reference Plaintiffs’ Consolidated Response to Defendant Crane Co.’s Motions in Limine to Preclude Plaintiffs from Suggesting or Arguing that Crane Co. is Liable for Insulation or Flange Gaskets Supplied or Manufactured by Others, and to Preclude Plaintiffs from Suggesting or Arguing that Crane Co. Supplied the Replacement Packing Material Used in its Valves, and any exhibits thereto, Transaction ID 11601343. Plaintiffs would further show the Court as follows:
DEFENDANTS’ MOTIONS IN LIMINE ARE IN FACT SUMMARY JUDGMENT MOTIONS WHICH SHOULD BE DENIED AS UNTIMELY.
Although Defendants’ motions are labeled motions in limine, they are actually an unauthorized and untimely motions for summary judgment. “A motion in limine typically concerns the admissibility of evidence and is a preliminary motion directed at establishing the ‘ground rules applicable at trial.’” Hercules, Inc. v. AIU Ins. Co., 784 A.2d 481, 500 (Del. 2001). In contrast, a “summary judgment motion is a determination by the court concerning a case or aspect of a case made prior to trial that obviates the need for trial of the matter.” Id. A summary judgment motion does not seek a preliminary ruling on evidence; it seeks to dispose of “a substantive legal issue.” Id. Defendants’ motions seek to dispose of Plaintiffs’ claims of liability; they do not point to evidence that they seek to exclude. Thus, these are not motions in limine as authorized by the scheduling order. Instead, they are motions for summary judgment and should be denied as untimely. See id. (upholding trial court’s ruling that “motion in limine” was actually a motion for summary judgment, untimely filed under the scheduling order).
DEFENDANTS ARE LIABLE FOR THE HARM SUFFERED BY THE PLAINTIFFS BECAUSE IT WAS A FORESEEABLE RESULT OF THEIR PRODUCTS’ DESIGNS.
These motions also fail on the merits. Defendants assert that they did not manufacture or supply the insulation, packing or gaskets to which Plaintiffs were exposed. Even if Defendants had presented evidence in support of this claim, which they did not, the touchstone is whether it was reasonably foreseeable that asbestos would be added to a manufacturer’s products. It has long been established that “a manufacturer, under whatever legal theory, is not liable for injuries following the alteration, destruction, or mutilation of its product, or by its misuse which was not reasonably foreseeable.” Monsanto Co. v. Reed, 950 S.W.2d 811, 815 (Ky. 1997). For those actions, alterations, or modifications which are foreseeable, however, a manufacturer will still be liable. Hicks v. Commercial Union Ins. Co., 652 So.2d 211, 217 (Ala.1994); see also Morgen Indus., Inc. v. Vaughan, 471 S.E.2d 489, 492 (Va. 1996).
The evidence shows that Defendants knew that their products required asbestos, and indeed defendant Crane installed asbestos gaskets, packing, and discs in its valves before placing them into the stream of commerce. See evidence supporting Plaintiff’s Response to Crane’s Motion for Summary Judgment. Crane also offered for individual sale other asbestos-containing products, including gaskets, packing and discs. See id. Based on this evidence, the use of asbestos in Defendants’ products was completely foreseeable. Additionally, any subsequent replacement of asbestos would have conformed to the original design, and was thus certainly foreseeable by Defendants.
Defendants argue that they should not be liable for insulation, packing or gaskets containing asbestos that were attached to their valves and pumps. Defendants argue that these items were manufactured by others, therefore relieving Defendants of any responsibility for the harm caused thereby. A manufacturer, however, is liable for the harm flowing from any foreseeable alterations to its products. Hicks, 652 So.2d at 217. Defendants cannot argue that it would be unforeseeable that these products would be attached to the valves or pumps they manufacture because Defendants attached such items to their own valves and pumps. Further, the very nature of Defendants’ products necessarily involved the use of thermal insulating materials. Defendants fail to explain how the addition of such materials could be unforeseeable, and in the absence of such explanation, their argument must fail.
Defendants also argue that they cannot be liable for the harm caused by components incorporated into their final products because they did not manufacture the components. Such an argument has repeatedly been rejected. Falcon Tankers, Inc. v. Litton Sys., Inc., 380 A.2d 569, 578 (Del. Super. 1977). “[W]hen a component manufacturer participates in designing a defective or unreasonably dangerous final product, the component manufacturer may be held liable for injuries caused by the final product even though the component itself was not defective or unreasonably dangerous.” Davis v. Komatsu Am. Indus. Corp., 42 S.W.3d 34, 38 (Tenn. 2001). Simply because Defendants might not have manufactured the defective component incorporated into their finished products does not mean they are not liable for the harm resulting from their defective designs that necessitated the harmful component.
THE DUTY TO WARN MAY BE SATISFIED BY METHODS OTHER THAN PRODUCT LABELING AND THE DUTY EXTENDS BEYOND THE SALE OF THE PRODUCT.
Defendant Weil-McClain makes the argument that a warning provided by the manufacturer would have been useless because any warning label would have been covered by the asbestos material placed on the product. Such an argument is erroneous in the assumption that a label on the actual product is the only manner in which a manufacturer may fulfill its duty to warn of hazardous materials. Alternative methods of providing warnings might include personal statements of representatives of the manufacturer or seller, advertisements, or instruction booklets or manuals accompanying products, to name a few. See eg., Ragin v. Porter Hayden Co., 133 Md. App. 116, 142, 754 A.2d 503, 517 (Md. App. 2000). Weil-McClain offers no explanation for why these methods were ignored both in its motion and in its product distribution.
Contrary to Weil-McClain’s assertion, the duty to warn is not terminated by the sale of the product. Owens-Illinois v. Zenobia, 601 A.2d 633, 645 (1992) (“Generally, a manufacturer of a defective product has a duty to warn of product defects which the manufacturer discovers after the time of sale.”). The post-sale duty to warn “may continue from the point at which the product was introduced into commerce, or may arise even where the product was reasonably safe for use at the time of manufacture and sale.” U.S. Gypsum Co. v. Mayor and City Council of Baltimore, 647 A.2d 405, 412 (Md. 1994).
A MANUFACTURER OF A PRODUCT MAY BE HELD LIABLE REGARDLESS OF WHETHER IT MANUFACTURED, INSTALLED OR SUPPLIED THE ASBESTOS USED IN ITS PRODUCT.
As stated above, a manufacturer may be held liable even if it did not manufacture, install, or supply the asbestos material used in its product. In Berkowitz v. AC&S, Inc., 733 N.Y.S.2d 410 (N.Y. App. 2001), the court affirmed the denial of the pump manufacturer’s motion for summary judgment and found that defendant may have had a duty to warn concerning the dangers of asbestos, which it had neither manufactured nor installed on its pumps. Id. at 411. Although the pumps could function without insulation, the purchaser had provided specifications involving insulation, and the court found it questionable whether the pumps– transporting steam and hot liquids on board Navy ships–could be operated safely without insulation, which defendant knew would be made of asbestos. Id. Similarly, in Chicano v. Gen. Elec. Co., 03-5126, 2004 WL 2250990 at *6 (E.D. Pa. Oct. 5, 2004), the court found a genuine issue of material fact as to whether GE could reasonably foresee that a failure to include a warning regarding the use of asbestos-containing products to insulate its turbines would lead to asbestos-related illness, even though the asbestos insulation was manufactured by another entity and GE did not control what form of insulation would cover its turbines. Cf. Rauch v. Am. Radiator & Standard Sanitary Corp., 104 NW 2d 607 (Iowa 1960) (holding manufacturer responsible for testing and inspecting replacement parts made by others).
Courts throughout the country have recognized that manufacturers of valves, pumps, turbines, boilers, and other equipment requiring asbestos may be held liable for asbestos exposure from their products. See, e.g., Roberts v. Owens-Corning Fibreglass Corp., 878 So.2d 631, 646-47 (La. App. 1 Cir. 2004) (upholding finding that plaintiff was exposed to asbestos released from boilers); Anderson v. Combustion Eng’g, Inc., 647 N.W.2d 460, 464 (Wis. App. 2002) (affirming judgment against boiler manufacturer for mesothelioma caused by exposure to asbestos insulation from its boilers); Abadie v. Metro. Life Ins. Co., 784 So.2d 46, 92 (La. App. 5 Cir. 2001) (reversing JNOV in favor of manufacturers of boilers that contained asbestos that “could have contributed” to plaintiffs’ exposure); White v. CBS Corp., 996 S.W.2d 920 (Tex. App. – Austin 1999, pet. denied) (finding that genuine issue of material fact existed as to whether turbines containing asbestos were installed at time of worker’s exposure).
Defendants cite a number of interlocutory orders that are readily distinguishable. For example, in LaChapelle v. American Standard (Cal. Superior Ct., No. B.C. 303899 Mar. 25, 2004), the court granted summary judgment in favor of a pump manufacturer and a valve manufacturer, where “no evidence has been presented that asbestos-containing flange gaskets were required, supplied or recommended by Defendant in order for the pumps to function.” Id. at 6 (emph. supp.) (attached to Defendant’s Motion as Ex. A). In Dapp v. AC&S, Inc. (No. 24X03-000353, Cir. Ct. Baltimore Cty., Jan. 12, 2004), the court distinguished cases finding liability where, as here, the assembler had actually incorporated the defective component into its part before shipping. Id. at 239 (Defendant’s Motion Ex. A) (distinguishing Morris v. Am. Motors Corp., 459 A.2d 968 (Md. 1982)). And in Schmidt v. A.W. Chesterton Co., No. 99-6020 Sup. Ct. Middlesex Cty. Mass. (July 1, 2002), the court granted summary judgment in favor of a pipe manufacturer, but noted that the result could have been different if the defendant “knew that asbestos-containing gaskets were being used with its pipe.” Id. at 2 n.1-2 (Defendant’s Motion Ex. A). In contrast, Defendants knew asbestos was used in their products. For instance, the evidence in this case establishes that Crane itself installed asbestos gaskets and packing in its valves before placing them on the market and thus clearly knew that asbestos was used in its valves.
Defendants also rely on non-asbestos cases that hold a manufacturer can not be held liable where its product is associated with a defective product only after the original product has left the manufacturer’s hands. Unlike those cases, here defendant Crane itself, for example, added asbestos components to its valves and thus knew that its product was unreasonably dangerous. Moreover, Defendants inappropriately rely on Garman v. American Clipper Corp., 117 Cal. App. 3d, 173 Cal. Rptr. 20 (Cal. App. 2 Dist. 1981), which has been found to set forth “an inaccurate statement of the law.” Gonzales v. Carmenita Ford Truck Sales, Inc., 192 Cal. App. 3d 1143, 1151, 238 Cal. Rptr. 18, 23 (Cal. App. 2 Dist. 1987).
Defendants further ignore the fact that, although the products may have left their possession, the products were still under their control because the product design necessarily called for the alteration of the products after they left their possession. Although the defendants may not have performed the alteration, and the products may no longer have been in their possession, the products were nonetheless under their control because the defendants dictated the design that called for the offsite alteration. Davis v. Komatsu Am. Indus. Corp., 42 S.W.3d 34, 38 (Tenn. 2001). Even if the modifications had not been absolutely required, they were certainly foreseeable. Hicks, 652 So.2d at 217. Consequently, the defendants are still liable for the asbestos related harm.WHEREFORE, for the reasons stated above, Plaintiffs respectfully request that the Court deny Defendants’ Motions in Limine.
Attorneys for Plaintiffs
Date: January 12, 2007
- ↑ The following motions were filed by Defendants: Defendant Crane Co.’s Motion in Limine to Preclude Plaintiffs from Suggesting or Arguing That Crane Co. Supplied the Packing or Gasket Materials Used in its Valves to Which Plaintiffs Were Allegedly Exposed; Defendant Goulds Pumps, Inc.’s Motion in Limine to Preclude Plaintiffs from Suggesting or Arguing That Goulds Pumps, Inc. is Responsible for Any Gasket And/or Packing Materials Manufactured or Supplied by Other Companies; Defendant Weil-McClain’s Motion in Limine to Exclude Argument or Evidence of Liability for or a Duty Related to Products of Others, Including External Insulation; Defendant Buffalo Pumps, Inc.’s Motion in Limine to Exclude Any References That Attribute External Insulation to Defendant.