Circumstantial Evidence of Decedent’s Exposure to Asbestos Gaskets During Compressor Overhauls Held Not Speculative
In this Delaware case, it is claimed that the plaintiff’s decedent, Ronald Phipps, was exposed to asbestos from assisting and working with others repairing Carrier compressors. Carrier moved for summary judgment arguing that there was insufficient evidence to show that the decedent was exposed to asbestos from its product. In order to survive summary judgment under Delaware law, a plaintiff must show that the exposed individual was in proximity to a defendant’s friable asbestos-containing product at the time it was being used. The court found there to be an issue of fact on decedent’s exposure and Carrier moved to reargue alleging that the court misapprehended salient facts in denying the motion. The court subsequently denied Carrier’s reargument, finding that Carrier had not presented any newly discovered evidence or made a demonstration that the court misapprehended the law or facts to effect a different ruling.
In support of its ruling the court stated: “Plaintiffs presented enough evidence to survive Carrier’s motion for summary judgment. Mr. Phipps’s testimony identifies Carrier’s products at the job site and establishes that he was in proximity to Carrier’s products while they were being serviced. The credible evidence in this case, at this stage, suggests that the asbestos in Carrier’s compressors was likely friable when those units were being taken apart, dismantled, or overhauled as Mr. Phipps witnessed. Because the Carrier compressors were new when installed, the evidence in this case, at this stage, suggests that Mr. Phipps worked on or in close proximity to Carrier components. Plaintiffs have set out sufficient facts to show Mr. Phipps’ alleged exposure is not based on mere speculation, conjecture or surmise.”
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