FILE NO. 06C-02-281 ASB




December 13, 2006

Table Of Contents



James Collins worked in auto mechanics all of his adult life from 1967 to 2005, first as a mechanic, and then as a teacher of auto mechanics. Videotaped Deposition of James Daniel Collins taken in Collins v. Metropolitan Life Ins. Co., C.A. No. 06C-02-281 ASB (Sup. Ct. Delaware, New Castle County – August 10, 2006)(“Collins Videotaped Depo.”), at 12-13, 18-19, 32-35, attached as Exhibit 1. Beginning in 1967, Mr. Collins attended Clover Hill Vocational School for two years to learn the trade of auto-mechanics. Id. at 18-19. After finishing school and serving in Viet Nam as a combat medic, Mr. Collins returned home in 1971 and went to work at Brewington Motors (later Hanson Motors) as a mechanic, where he worked until 1985. Id. at 32. In 1985, Mr. Collins went to work at South Puget Sound Community College, where he taught auto mechanics until his health forced him to leave in 2005. Id. at 11-12. During all this time, he was exposed to asbestos fibers as a result of his work with Defendants’ products. Collins Videotaped Depo. at 23-27, 45-48, 50, (AMMCO); and 43, 51-53, 60 (Borg-Warner); Discovery Deposition of James Daniel Collins taken in Collins v. Metropolitan Life Ins. Co., C.A. No. 06C-02-281 ASB (Sup. Ct. Delaware, New Castle County – August 10, 2006)(“Collins Discovery Depo.”), at 89-99 (AMMCO); 102, 108-09 (Borg-Warner), attached as Exhibit 2.

Mr. Collins specifically recalled working with asbestos containing friction products manufactured by Defendant Borg-Warner Corporation (“Borg-Warner”). Borg-Warner has admitted that it 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 3. Mr. Collins himself testified that he worked many times with Borg-Warner asbestos containing clutches, and that he was exposed to the dust generated from that process. Collins Videotaped Depo. at 51-53. He particularly recalled using them while at Brewington/Hanson Motors and remembered seeing the Borg-Warner name on the boxes in which the clutch products were packaged. Id. at 51. He remembered having to hit them with a hammer on occasion, a process that generated dust, to which he was exposed. Id. at 52-53. In addition, Mr. Collins testified that he used and was exposed to the dust from Borg-Warner clutches in 1974 in his own personal auto mechanic business – Collins Automotive. Id. at 55-56, 59-61.

Mr. Harold Foshaug was Mr. Collins’ instructor for two years at Clover Park Vocational School in the late 1960’s. Deposition of Harold Foshaug taken in Collins v. Metropolitan Life Ins. Co., C.A. No. 06C-02-281 ASB (Sup. Ct. Delaware, New Castle County – November 7, 2006)(“Foshaug Depo.”), at 10, attached as Exhibit 4. Mr. Foshaug has testified that Borg-Warner clutches were used at Clover Park while the two men were together there. Id. at 81-82.

Among the tools in the shop at Clover Park Vocational School were a grinding machine and a drum lathe, which were used grind brake shoes and drums so that they would fit properly. Collins Videotaped Depo. at 23-25. The brand name on the grinder and lathe used at Clover Park was stenciled into the machines: AMMCO. Id. at 23. When Mr. Collins used those machines to grind the shoes and linings, the machines generated dust that Mr. Collins inhaled. Id. at 24-25. Indeed, it would be difficult not to breathe in the dust, given that it was necessary to work just 8 to 24 inches from the machine. Id. at 25. The grinder had a cloth bag attached to catch the dust, but the bag was not airtight, and every time the machine was turned on, even more dust was released form the bag. Id. The dust collection bag was also an AMMCO product. Collins Discovery Depo. at 92. Mr. Collins was also exposed to the dust from the grinder and lathe when he was in the vicinity of other workers using those machines. Collins Videotaped Depo. at 26. He never saw any manuals or instruction booklets for the machines at Clover Park. Collins Discovery Depo. at 94.

While working at Brewington/Hanson Motors, Mr. Collins worked mostly with asbestos brake and clutch products. Id. at 38. Like the shop at Clover Park, the shop at Hanson Motors also used an AMMCO grinder and lathe, which Mr. Collins used many times. Id. at 45-46. The grinder had the same type of cloth bag collection system that released a cloud of dust every time the machine was turned on – dust, again, to which Mr. Collins was exposed. Id. at 47-48. In addition to using the grinder to arc the brake shoes, the mechanics also used it grind chamfers on the edges of new disc brake pads. Id. at 50-51.

At the time Mr. Collins was working with Defendants’ products, however, they knew something he did not – that exposure to asbestos fibers from the machining of asbestos friction materials could be deadly. In fact, Mr. Collins did not begin to learn of the hazards of asbestos until the late 1970’s when he read about it in automotive magazines. Collins Videotaped Depo. at 38-40; Collins Discovery Depo. at 66-68. After that time, he never knowingly exposed himself to asbestos and took precautions to wear masks when working near it. Collins Videotaped Depo. at 39. In addition, Mr. Collins requested a transfer away from the brake department to the electrical and fuel injection section, in an effort to avoid the dust. Id. at 40. Despite his efforts to protect his health, Mr. Collins was diagnosed with mesothelioma in November of 2005, when he was just 58 years old. Id. at 67.

As has been chronicled many times in asbestos litigation, the river of knowledge of the dangers of asbestos runs long, wide and deep. 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 localized 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. Affidavit of Dr. Richard Lemen, dated March 1, 2005, at 5, attached as Exhibit FP 60, 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 particular, the Defendant manufacturer of the AMMCO grinders used by Mr. Collins at Clover Park and Brewington/Hanson Motors was aware of the hazards associated with the use of its products to machine and grind asbestos friction products. By 1973, AMMCO grinders began to include some sort of caution, though plainly not one seen by Mr. Collins. Defendant Hennessy Industries, Inc.’s Answers to Plaintiff’s Special Interrogatories, Set One, filed in Collins v. A.P. Green, No. 318312 (Cal. Super. Ct., San Francisco County – June 16, 2003), at 12, attached as Exhibit 5. Indeed, Defendant even conducted testing to determine the levels of asbestos dust to which its grinders exposed those working with them. In 1973, the test results themselves revealed significantly high levels of exposure, though Defendant’s environmental consultant described the results as within OSHA limits. January 30, 1973 Asbestos Study for AMMCO Tools, Inc., at H00068-74, attached as Exhibit 6. In 1978, AMMCO’s consultant made recommendations that the product contain better warnings, not only to protect workers but also to “serve as evidence of AMMCO’s efforts to fulfill their ‘duty to warn’ of the proper installation, use, and maintenance of the products, as well as the consequences of misuse of the products.” July 7, 1978 Product Safety Survey for AMMCO Tools, Inc., at H00108, H00112, H00120, attached as Exhibit 7. AMMCO was plainly aware of the dangers of its product and of its responsibility to minimize them.



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)).

Defendants, as the movants in this case, bear the burden “to demonstrate to a reasonable certitude that there is no issue of fact which, if resolved in favor of the Plaintiffs, 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 plaintiff “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.).


GM “does not contest Mr. Collins’ negligence claim with respect to his exposure at Clover Park, Brewington Motors or Hanson Motors. . . .” GM’s Opening Brief at 3 n.1. Curiously, GM nevertheless proceeds to seek summary judgment concerning Mr. Collins’ exposure at five other sites. Id. at 7-9. 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).

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. 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.


As set forth in the Statement of the Case, supra, Plaintiffs have produced evidence demonstrating that James Collins suffered significant occupational exposure to asbestos from Defendant Borg-Warner’s 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., 900 A.2d 120 (Del. Super. 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.” 900 A.2d at 148. The court further noted that “[e]ven Dr. Goodman [defendant’s expert] agrees that friction products can release respirable asbestos fibers.” Id. at 148 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 148 n.166.

In this case, the uncontroverted evidence shows that Mr. Collins worked in close proximity to Defendant’s 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. Collins was exposed to asbestos fibers from Defendant’s friction products.


Defendant Hennessy Industries, Inc. suggests that it cannot be liable to Plaintiffs for the harm caused to Mr. Collins’ by his use of Defendant’s “brake shoe grinder” in combination with the asbestos containing brake shoes the product was made to grind. Hennessy’s Opening Brief, at 5-8. Defendant’s argument, however, is without basis in law or in fact and its motion should be denied.

Though Defendant fails to mention it, the precise argument raised in its motion has been considered and rejected in California. In Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co., 129 Cal.App.4th 577, 28 Cal.Rptr.3d 744 (Cal.App. 2004), the plaintiff was a lamp maker who worked for many years cutting, sanding and grinding metal parts with various power tools, including different types of grinders, that required the use of various abrasive wheels and discs. 28 Cal. Rptr.3d at 745. After developing pulmonary fibrosis as a result of exposure to the toxic particles released during his work, the plaintiff sued the manufacturers of the grinders he had used as well as the makers of the various wheels, discs, and substances he had been exposed to while operating the grinders. Id. at 745 n.3.

The manufacturers moved to dismiss the plaintiff’s complaint, arguing that his injury was not caused by their grinders, but by the substances on and with which the plaintiff used the grinders. 28 Cal. Rptr.3d at 581. In addition, the tool manufacturers argued that their duty to warn was limited to their own products. Id.

The California Court of Appeals flatly rejected such arguments. The court considered the component parts doctrine under which “the manufacturer of a product component or ingredient is not liable for injuries caused by the finished product unless it appears that the component itself was ‘defective’ when it left the manufacturer.” Id. at 747. The doctrine was, however, inapplicable, noted the court, where the facts were “not that [the defendants] manufactured component parts to be used in a variety of finished products, outside their control, but instead that [the defendants] manufactured tools which were specifically designed to be used with the abrasive wheels or discs they were used with, for the intended purpose of grinding and sanding metals . . . .” Id. (emphasis added). The court observed that the defendants were not required “to warn of defects in a final product over which they had no control, but of defects which occur when their products are used as intended – indeed, . . . as they must be used.” Id. at 748. Because the grinders were specifically made to be used with the abrasive wheels and discs that in fact were used, the defendants could not complain “that it was impossible for them to foresee what attachment would be used and to what surface it would be applied.” Id. at 749. Finally, the court reasoned that because a manufacturer has a duty to warn of a foreseeable misuse of its product, it cannot logically “be exempt from liability for the consequences of the intended use.” Id.

The Tellez-Cordova case is indistinguishable from this one. Here, Defendant manufactured a tool to be used for the specific purpose of grinding brake linings. See supra Exhibits 6 & 7. Defendant knew that those brake linings would contain asbestos. Id. Defendant knew that when its product was used for the single function for which it was intended, deadly asbestos fiber would be released into the air. Id.

This is simply not an instance, as Defendant suggests, of suggesting that the manufacturer of a saw or of sandpaper should be liable whenever its products are used on a dangerous substance. Defendant’s Opening Brief, at 8. A saw might be used to cut insulation, chop down a tree, or sever a limb. But there is no secret or surprise as to the ultimate use for a power tool called by its own manufacturer a “brake shoe grinder.” Nor is this a case where Plaintiff’s harm was not caused by Defendant’s product itself. It was the use of this very product, Defendant’s brake shoe grinder, that sent millions of asbestos fibers spiraling into the air every time it was used – that caused the greatest danger to mechanics working with brake shoes. It was Defendant’s product used in combination with the very products for which it was intended that was dangerous. And Defendant bore the responsibility to protect Plaintiff from and warn him of the “consequences of its intended use.” Tellez-Cordova, 28 Cal.Rptr.3d at 749.

The result is the same under Washington law, which is applicable to this case. In Bich v. General Electric Co., 27 Wash. App. 25, 614 P.2d 1323 (1980), the plaintiff was injured in an explosion that occurred while he was changing a fuse to a transformer manufactured by the defendant. 614 P.2d at 1325. The transformer could be safely operated only with factory fuses, though it would accept fuses made by another maker. Id. When the plaintiff replaced the transformer fuses with those from another company, an explosion occurred. Id. 614 P.2d at 1325-26. While the Washington Court of Appeals agreed with the defendant manufacturer that it had no duty to warn of any defect in the other company’s fuses, the court held that the defendant nevertheless had a duty to warn not to substitute fuses: “It would have been a simple and inexpensive matter for GE to have included on its fuses a warning not to substitute fuses or to have given information regarding the time-delay characteristics of its fuses.”614 P.2d at 1328. (emphasis added). Id. In Bich, as here, the plaintiff was injured by and while working with the defendant’s product, in combination with another product. There is nothing startling or unfair about subjecting a manufacturer to liability for foreseeable harm caused by its own product!

The identical rationale has been applied in other jurisdictions as well. In Ilosky v. Michelin Tire Corp., 307 S.E.2d 603 (W. Va. 1983)(which was distinguished in the Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222, 226 (N.Y. 1992) opinion upon which Defendant relies), the plaintiff was injured in an accident following her loss of control of the car she was driving, caused by the use of both conventional and radial tires on the vehicle. 307 S.E.2d at 607. The plaintiff sued the manufacturer of the radial tires for its failure to warn adequately of the known risks caused by the combination of the two types of tires. The evidence demonstrated that even though the radial tires were not dangerous when used alone, they did pose a risk when combined with conventional tires, and this risk was well known in the industry. Id. at 610. On appeal, the West Virginia Supreme Court affirmed the jury’s verdict and reached the completely unremarkable decision that a manufacturer has a duty to warn of hazards posed by its own product when used in a foreseeable manner. Id.

None of the cases cited by Defendant compels a different result. Indeed, the fundamental difference between this case and every case upon which Defendant relies is that here, the Defendant’s product itself contributed to cause the injury and was intended to be used solely for an activity that was known to pose an unreasonable risk of harm to those working with or around the product. In Rastelli v. Goodyear Tire & Rubber Co., 591 N.E.2d 222 (N.Y. 1992), for example, the court held only that a tire manufacturer had no duty to warn about the risk of harm associated with potentially dangerous multi-piece rims. In particular, the court noted: “Nothing in the record suggests that Goodyear created the dangerous condition in this case. Thus, we conclude that Goodyear had no duty to warn about the use of its tire with potentially dangerous multipiece rims produced by another where Goodyear did not contribute to the alleged defect in a product, had no control over it, and did not produce it.” 591 N.E.2d 222, 226 (citations omitted). In Spencer v. Ford Motor Co., 367 N.W.2d 393, 395-96 (Mich. App. 1985), the court refused to hold an auto manufacturer liable simply because its vehicle could accommodate a defective wheel rim that was added after the car had been sold. But the purpose for which the car was intended obviously was not to be driven with an explosive wheel rim. Further, in Spencer, the plaintiff had admitted that he knew the cause of the explosion, and that if he had read a warning in advance, he would have followed precisely the same repair procedures that resulted in the accident. 367 N.W. 2d at 396. Thus, the vehicle manufacturer’s failure to warn of the danger of using after-market wheel rims could not have been a cause of the plaintiff’s injury. Id. The evidence here, as discussed supra, is completely the opposite.

In Mitchell v. Sky Climber, Inc, 487 N.E.2d 1374 (Mass. 1986), the plaintiff alleged that the failure of the manufacturer of an electric lift motor to warn of the dangers posed by improper rigging of scaffolding used with the lift was a cause of the decedent’s electrocution. The court found that a manufacturer has no duty to warn of “a possible risk created solely by an act of another that would not be associated with a foreseeable use or misuse of the manufacturer’s own product.” Id. at 1376 (emphasis added). In Kaloz by Kaloz v. Risco, 466 N.Y.S.2d 218 (N.Y.Sup. 1983), the primary issue, again, was foreseeability. An infant plaintiff sued a pool manufacturer after, while leaving the pool, the child fell from a defective ladder onto a bucket the plaintiff placed at the foot of the ladder. 466 N.Y.S.2d at 221. The court predictably held that the pool manufacturer had no duty to warn of this unforeseen circumstance. Id. Further, even if events might have been foreseen, the pool manufacturer could not be held liable for harm caused by the ladder and bucket over which it had no control. Id.

Other cases also turned on the issue of the defendant manufacturer’s lack of control over the product that caused the plaintiff’s injuries. In Fricke v. Owens-Corning Fiberglas Corp., 618 So.2d 473, 475 (La. App. 1993), the injured plaintiff was an employee who worked in a vinegar manufacturing facility. The court held that the previous owner of the facility owed no duty to the employee of the subsequent owner to warn about the dangers of vinegar the previous owner no longer manufactured and did not sell. Ford Motor Co. v. Wood, 703 A.2d 1315, 1331 (Md. App. 1998), abrogated on other grounds by John Crane, Inc. v. Scribner, 800 A.2d 727 (Md. 2002), is another component parts case in which the court held that a vehicle manufacturer had no duty to warn about a defective replacement component installed many years after the car had been sold over which the manufacturer had no control.

Finally, Lindstrom v. AC Products Liability Trust, 264 F.Supp.2d 583 (N.D.Ohio 2003) was an asbestos case dealing with straightforward issues of product exposure. The court fails even to mention the words “duty” or “warning.” The issue was simply whether the plaintiff had shown sufficient exposure to the defendants’ products. 264 F.Supp.2d at 591, 595. Similarly, in Niemann v. McDonnell Douglas Corp., 721 F.Supp. 1019, 1029 (S.D.Ill. 1989), the court refused to hold an aircraft manufacturer liable where it had “sufficiently established that the asbestos which allegedly caused [plaintiff’s decedent’s] death was not the asbestos which was placed in the aircraft” by the manufacturer.

None of these circumstances is present here. Here, Defendant manufactured a tool to be used for the specific purpose of grinding brake linings that it knew contained asbestos when it knew that the single intended use of its product would release deadly asbestos fiber into the air.

Here, as contrasted with the facts of the cases cited by Defendant, it was Defendant’s own product used in combination with the very products for which it was intended that was dangerous. Defendant has shown no cause for escape from the consequences of its own conduct.


Defendants Hennessy, GM and Borg-Warner all move for summary judgment on Plaintiffs’ claim for punitive damages. Though Plaintiffs do not agree that Defendants’ conduct was not wilful and wanton, Plaintiffs concede that punitive damages are unavailable under Washington law. Dailey v. North Coast Life Ins. Co., 919 P.2d 589 (Wash. 1996).


Defendant GM has moved for summary judgment on Plaintiffs’ claim against it for strict liability. The application of Washington’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). Washington’s adoption of strict liability does not offend the public policy of Delaware or any other jurisdiction.


Borg-Warner’s and Hennessy’s contention that Mary Collins is not entitled to loss of consortium damages is premised on its argument that it is entitled to summary judgment on James Collins’ claims. Given that Plaintiffs have put forth sufficient evidence to raise a genuine issue of material fact as to James Collins’ claims, Mary Collins’ loss of consortium claim is likewise shown to be meritorious


For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendants’ BORG-WARNER CORPORATION; GENERAL MOTORS CORPORATION; and HENNESSY INDUSTRIES, INC.’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 Washington law, the proper standard for proximate cause is whether the defendant’s conduct was a substantial factor in causing the plaintiff’s injury. Mavroudis v. Pittsburgh-Corning Corp., 86 Wash. App. 22, 935 P.2d 684, 689 (Wash. App. 1997). Under either standard, the question to the jury would be identical regarding the plaintiff’s exposure to the defendant’s product.