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Jason Cincilla is a partner at MG+M and the lead attorney in the firm’s Delaware office. He conducts and supervises a broad litigation practice, and he has extensive experience in all stages of litigation in many areas.

Court RulingOn July 27, 2012, a jury in the matter of Michael Galliher v. American Optical Corp., et al., an asbestos personal injury lawsuit pending in the Superior Court of the State of Delaware, awarded over $2.8 million to the surviving wife and the estate of Michael Galliher.  The jury found the sole defendant at trial, R.T. Vanderbilt (“RTV”), negligent for failing to adequately warn of the hazards of its industrial talc product that was used at Michael Galliher’s workplace.  The $2.8 million verdict is the largest jury award in an asbestos personal injury lawsuit in Delaware in the past decade and well over the $1.7 million in total awarded to the plaintiffs in November 2010 in the consolidated trials of the Elizabeth Henderson and Bruce Henderson matters.

A summary of the Michael Galliher matter is provided below.

Background Facts:

In August of 2010, Michael Galliher was diagnosed with malignant pleural mesothelioma.  He died just a few months later on February 3, 2011 at the age of 62.  He was survived by a wife of nearly 35 years, a son, and a step-son.  From 1966 until the early 2000s, Mr. Galliher worked at a Borg Warner facility in Mansfield, Ohio that manufactured bathroom fixtures, such as toilets and sinks.[1]  The worked at the Borg Warner facility for the majority of his working life and, aside from a few brake changes and some minor home renovation work, all of his known asbestos exposure occurred there.

Mr. Galliher worked at a number of different locations in the Borg Warner facility.  Most important for the purposes of the case was his time in the cast area, where molds were used to form the bathroom fixtures.  Plaintiffs alleged that talc was applied to the molds in the cast area so that mold could be easily removed from the finished bathroom fixture once it had set.  Plaintiffs also alleged that talc was used in an area of the facility where the glaze was applied to the finished products, called the slip area.  Although Mr. Galliher never personally worked in the slip house, the plaintiff alleged that talc dust from the slip area blew into areas of the plant where Mr. Galliher was working.

Plaintiffs’ Case:

Plaintiffs alleged that industrial talc from RTV’s Gouverneur, New York mine was used at the Borg Warner facility and that Mr. Galliher was exposed to asbestos or asbestiform bodies in that talc, which caused his mesothelioma.  Plaintiffs alleged that the talc that RTV mined in New York and supplied to the Borg Warner facility was a fibrous talc, not a “platy” talc as is used in baby powder, and that the fibrous talc was contaminated with other minerals, such as tremolite and anthophyllite.

A number of experts—both medical and mineralogical—testified on behalf of Plaintiffs.  A fiber digestion analysis was performed on Mr. Galliher’s lung tissue after his death and several of Plaintiffs’ experts, including Dr. Jerrold Abraham, Dr. James Millette, and Sean Fitzgerald (a geologist), reviewed the results of
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Much like Judge Robreno, currently in charge of the Federal MDL asbestos docket in the Eastern District of Pennsylvania, Judge Ableman of the Delaware Superior Court has made increasing the efficiency of the Delaware asbestos docket a goal since being put in charge of asbestos litigation in Delaware in May of 2010.  One of the areas most targeted by Judge Ableman is summary judgment motion practice, which has undergone significant changes over the past year.  In particular, in March of this year, Judge Ableman amended the Standing Order that sets forth a number of procedural rules that govern the asbestos docket.  The amendments were directed, in part, to reducing the number of motions for summary judgment filed with the Court.  Judge Ableman made clear that, going forward, she expected to receive only good-faith motions and oppositions from counsel.

The most notable change since the Standing Order was revised in March is the drop in the number of motions submitted to the Court.  For the four monthly hearing dates prior to the March Standing Order amendments, some 45 motions on average were submitted to the Court for consideration.  Since the amendments, the average number of motions submitted has been cut by two-thirds, dropping to approximately 15 per trial group.

However, the changes to the summary judgment motion practice in Delaware have also brought greater efficiency to the asbestos docket and allowed for quicker and cheaper resolutions of cases.  This increased efficiency that Judge Ableman has brought to the process is no more visible than in the most recent round of motions, which were filed in cases scheduled for trial in September of 2011.

For the September trial group, 22 motions were submitted to the Court on July 1.  Of the 22 motions submitted:

  • 9 motions were decided on the papers;
  • 7 motions were mooted by the resolution of the case as to the filing party;
  • 2 motions were withdrawn by defense counsel;
  • 2 oppositions were withdrawn by plaintiff’s counsel; and
  • 2 motions were deferred by the Court pending expert depositions.

In sum, all of the motions filed (with the exception of the two deferred motions) were resolved, in one way or the other, without the need for oral argument.  By contrast, the three previous monthly hearings have all gone forward with at least one motion, but usually much more than that, being argued in front of the Court.

With any luck, this trend will continue.  Increasing the pace at which matters can be resolved and addressed by the Court allows for reduced transactional costs; something that both plaintiffs and defendants alike should embrace.

 
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Brief Summary:

On July 11, 2011, the Delaware Supreme Court issued a 3-to-2 divided opinion in Price v. E. I. du Pont de Nemours & Co. which addresses the issue of a landowner’s duty in a so-called “take-home” asbestos exposure case, in which the injured party is allegedly exposed to asbestos fibers brought home from work by his or her spouse.  The Price opinion is available here.  In its decision, the Price Court concluded that a landowner is merely nonfeasant – not misfeasant – with respect to the injured party in such cases.  In accordance with the Restatement (Second) of Torts, the Court held that a landowner is only liable when it is in a “special relationship” with the injured party.  In its holding, the Delaware Supreme Court resolved questions that were left open in the Court’s 2009 Riedel v. ICI Americas Inc. opinion.

As a practical matter, this decision will not have a significant impact on the Delaware asbestos litigation, given that most of the asbestos cases filed in Delaware are governed by the substantive law of another jurisdiction.  Nonetheless, this case is important in that it contributes to the growing body of case law on the question of duty in take-home asbestos exposure cases.  Consequently, a more detailed analysis of the Price opinion, including the case’s procedural history and a summary of the Riedel decision, is provided after the jump.
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