Summary
noting that it is "well-settled in Delaware" that a legal issue not raised in an opening brief is generally deemed waived and "[m]oving parties must provide adequate factual and legal support for their positions in their moving papers in order to put the opposing parties and the court on notice of the issues to be decided"
Summary of this case from Mack v. Rev Worldwide, Inc.Opinion
C.A. No. 04C-10-116-ASB.
Submitted: July 9, 2007.
Decided: August 27, 2007.
Upon Consideration of Defendant Marmon Group, Inc.'s Motion for Summary Judgment.
DENIED.Thomas Crumplar, Esquire, JACOBS CRUMPLAR, Wilmington, Delaware. Attorney for Plaintiffs.
Timothy J. Houseal, Esquire, YOUNG CONA WAY STARGA TT TAYLOR, LLP, Wilmington, Delaware; Stephen S. McCloskey, Esquire, SEMMES BOWEN SEMMES, Baltimore, Maryland. Attorneys for Defendant, Marmon Group, Inc.
MEMORANDUM OPINION
I.
Plaintiff, Jerry Lagrone, worked for most of his career in the commercial door business. For much of this time he worked in the machine shop at Walsh Koehler, Inc., a distributor of commercial doors, where he would modify doors to meet the specific needs o f custom ers. As p art of this process, Mr. Lagrone regularly would cut into the doors to install windows, vents or custom door handles. He alleges that he was exposed to asbestos, a component part of some fire-resistant and sound-resistant doors, when he would perform these modifications. He further alleges that this exposure was a proximate cause of his mesothelioma.
Defend ant, the Marmon Group, Inc., individually, and as successor-in-interest to Finestra Corporation, has moved for summary judgment on the ground that plaintiffs have failed to develop competent evidence that exposure to asbestos in Finestra-manufactured doors proximately caused Mr. Lagrone's asbestos related disease. In the course of the briefing and argument of Marmon's motion, various procedural issues surfaced with respect to dispositive motion practice in the asbestos litigation which required the Court's attention before reaching the substantive issue raised. The Court will address the procedural issues before turning to the substantive causation issue. For the reasons that follow, Marmon's motion for summary judgment must be DENIED.
The Court gave its oral ruling on the motion on July 11, 2007. This opinion restates that ruling with more detailed reasoning.
II.
Mr. Lagrone worked for Walsh Koehler from 1966 through 1984. During the first nine years of his employment there he worked in the Walsh Koehler shop modifying doors to fit the needs of particular customers. For instance, Mr. Lagrone might modify a door to accommodate a particular door handle or to make room for a window or vent. According to Mr. Lagrone, some of the doors he modified contained asbestos cores which were utilized for their fire resistant and/or sound proofing qualities. Mr. Lagrone testified that when he would cut into an asbestos-containing door to perform modifications, the process would create dust thereby exposing him to friable asbestos.Marmon contends that any a sbestos c ontained within its fire or sound resistant doors was saturated in a mastic-like substance which would encapsulate the asbestos. Mr. Lagron e wou ld not ha ve inhale d this asbestos when modifying the Finestra doors because the dust created by the modification process would not contain friable asbestos. Marmon contends that Mr. Lagrone has failed to produce any evidence, through expert testimony or otherw ise, that would support a contention that any exposure to Finestra doors could proximately cause asbestos-related disease.
As will be discussed below, Marmon adopted the motion for summary judgment filed by its co-defendant, Mortlell Company. The arguments addressed in support of the motion for summary judgment addressed in this opinion are those raised by Mortell Company and adopted by Marmon. It should be understood, therefore, that references to Mortell and/or Marmon are interchangeable for purposes of this opinion.
Marmon's motion for summary judgment, as filed, challenged Mr. Lagrone's claims of civil conspiracy, strict liability, breach of warranty, and his claim for punitive damages. Marmon also adopted the motion for summary judgment filed by its co-defendant, Mortell Company, the component part manufacturer of the asbestos-containing "sound deadener" with which certain Finestra doors were filled. Mr. Lagrone has since resolved his claims against M ortell.
III.
The standard of review on a motion for summary judgment is well-settled . The Court's principal function when considering a motion for summary judgment is to examine the record to determine whether genuine issues of material fact exist, "but not to decide such issues." Summary judgment will be granted if, after viewing the record in a light most favorable to a non-moving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. If, however, the record reveals that material facts are in dispute, or if the factual record has not been developed thoroughly enough to allow the Court to apply the law to the factual record, th en sum mary ju dgment will not be granted. The moving p arty bears the initial burden of demonstrating that the undisputed facts support his claims or defenses. If the motion is properly supported, then the burden shifts to the non-moving party to d emon strate that there are material issues of fact for resolution by the ultimate fact-finder.
Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del.Super.Ct. 1973).
Merrill, 606 A.2d at 99-100; Dorr-Oliver, 312 A.2d at 325.
Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). See also Cook v. City of Harrington, 1990 WL 35244, at *3 (Del.Super.Ct. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) ("Summary judgment will not be granted under any circumstances when the record indicates . . . that it is desirable to inquire more throughly into the facts in order to clarify the application of law to the circumstances.").
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979) (citing Ebersole, 180 A.2d at 470).
See Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
A. The Procedural Issues
As stated, several procedural issues relating to dispositive motion practice surfaced during the briefing and argument on Mortell's (and later Marmon's) motion for summary judgment. First, a question arose whether it was proper for Marmon to adopt Mortell's motion for summary judgment as it related to the causation issues when Marmon, itself, had not raised these issues in its own briefing. Second, plaintiffs challenged Mortell's motion for summary judgment as it related to the causation issue because the argument as it appeared in the reply brief had evolved substantially from Mortell's opening brief. Plaintiffs alleged that they were sandbagged and that substantial portions of the reply brief should be stricken. Morte ll, in turn, asked the Court to strike certain expert affidavits s ubmitte d on be half of the plaintiffs after briefing had closed. The Court w ill address these issues seriatim before turning to the merits of Marmon's motion.1. The Practice of Incorporating Co-Defendant Motions By Reference.
Over the years in the asbestos litigation, defendants have developed a practice of adopting co-defendant motions in various contexts. For instance, defendants regularly purport to adop t argum ents ma de by co-defend ants in motions for summ ary judgment without identifying the motions or arguments they are adopting. In addition, as cases move closer to trial, defendants regularly purport to adopt co-defendant motions in limine, again without identifying specifically which motions they are adopting. The Court already has addressed this latter practice by prohibiting parties from adopting by reference the undisclosed motions in limine filed by co-parties. According to the Court's October 13, 2006 Standing Order No. 1, and general Scheduling Order No. 1, parties must now identify specifically the motions in limine they intend to prosecute prior to trial in accordance with the deadlines set by the scheduling order. This practice provides both the Court and opposing parties with notice of the evidentiary issues that must be addressed prior to trial.
Similarly, it is reasonable to expec t that a party will spec ifically identify which dispositive motion(s) of other parties, or arguments therein, that party intends to incorporate by reference so that the Court and the opposing parties have notice of the potentially case dispositive issues that must be addressed prior to trial. In the asbestos litigation, it will no longer be permissible simply to incorporate the undisclosed case dispositive motions filed by co-defendants. Doing so in the future will incorporate nothing and preserve nothing.
In this case, Marmon specifically identified the causation argument raised by Mortell and incorporated that argument " by reference," meaning that it identified the argument and put the Court and Mr. Lagrone on notice that Marmon intended to seek summary judgment on the causation issue and that it would be relying upon the arguments advanced by Mortell in order to do so. This was a proper means by which to preserve the issue, and the Court will entertain Marmon's motion for summary judgment on causation by referring to Mortell's motion on this issue.
2. The "Sandbag" Issue
Plaintiffs argue that Mortell (and, by extension, Marmon) failed to preserve the challenge to plaintiffs' causation case in its motion for summary judgment because the argument was advanced for the first time in Mortell's reply brief. Here again, the plaintiffs have identified an issue that is a regular feature of the asbestos litigation. It is not at all uncommon for defendants to file a "bare bones" motion for summary judgm ent, accompanied by an equally sparse opening brief, seeking dispositive relief on the grounds that a plaintiff has not developed record evidence to sustain a prima facie case of exposure (i.e. product nexus) and/or causation. In response, the plaintiff will file an answering brief in which he attempts, in detail, to refute the general assertion that his case is not viable as a matter of law. Defendants then file a more detailed reply brief in which they attempt to explain why the plaintiff has not identified genuine issues of material fact sufficient to defeat summary judgment. The running joke in the asbestos litigation is that the judge need only read the answering and reply briefs to decide the motions; the opening briefs rarely add anything to the mix.
The Court appreciates that, particularly with respect to product nexus motions, defendants usually seek summary judgment based on the plaintiff's alleged failure to develop any proof that he was exposed to the defendant's asbestos-containing product. Under these circumstances, it is understandable that a defendant might be inclined to provide a superficial opening summary judgment submission with the expectation that a more thorough treatment of the issues will await the reply submission. Going forward, however, moving parties will take this approach to dispositive motion practice in the asbestos litigation at their peril.
It is well-settled in Delaware that "the failure to raise a legal issue in the text of the opening brief generally constitutes a waiver of that claim" in connection with a matter under submission to the court. Moving parties must provide adequate factual and legal support for their positions in their moving papers in order to put the opposing parties and the court on notice of the issues to be decided. In the case of a motion for summary judgment on product nexus, for instance, the motion should, at a minimum, be accompanied by a certification of counsel that, after reviewing specifically identified discovery touching the issue (e.g. depositions and interrogatory answers relating to identified product nexus witnesses), the moving party has been unable to discern any facts of record upon which a reasonable inference of exposure to the moving defendant's product might be based. The certification should provide a sufficient enough review of the discovery of record to allow the non moving party to ascertain in what manner the movant contends the record justifies a summary disposition of the plaintiff's claims, and to allow the Court to engage in a meaningful review of the record to determine the bona fides of the movant's legal argument. Neither the Court nor the non moving party should have to wait for the reply brief to understand the alleged bases for dispositive relief.
See Stilwell v. Parsons, 145 A.2d 397, 402 (Del. 1958); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993).
See In Re Asbestos Litig. (Hudson), 2006 Del. Super. LEXIS 525, *19 n. 56 (discussing certification of counsel needed to support motion for summary judgment based on the absence of record evidence supporting the plaintiff's claims); In Re Asbestos Litig. (Keeler), C.A. No. 90C-04-84, Gebelein, J. (Del.Super.Ct. Nov. 2, 1994)(same).
In this case, Mortell's initial motion for summary judgment was a speaking motion comprised of three and a half pages. The focus of the motion was plaintiffs' alleged failure to identify an asbestos-containing product manufactured by Mortell to which he was exposed. This discussion was comprised of one or two paragraphs. Plaintiffs' answering brief took the form of a fourteen page letter memorandum in which they summarized at some length the product nexus testimony they had established during the discovery. Mortell replied with a ten page brief in which it addressed the plaintiffs' proffered product nexus evidence but also raised a much more extensive challenged to plaintiffs' causation case. Plaintiffs then filed various sur reply documents, including expert affidavits in which they attempted to fill the causation holes identified in Mortell's reply brief. Mortell, in turn, filed a motion to strike plaintiffs' new expert affidavits with various supporting memoranda. And on and on. . . .
T. ID 12000173.
T. ID 12396368.
T. ID 12454174
Even giving Mortell the benefit of a broad reading of its initial offering, it cannot be said that the motion for summ ary judgment fairly put the plaintiffs on notice that Mortell would be asking the Court to determine, as a matter of law, that the plaintiffs' experts had not adequately drawn a causal link between Mr. Lagrone's exposure to Mortell's product and his mesothelioma. The challenge was mounted in earnest for the fist time in Mortell's reply brief. Yet, it cannot be said that Mortell's approach to summary judgment briefing was extraordinary in the context of the asbestos litigation. As stated, this Court routinely has allowed the parties to set the summary judgment process in motion by filing a perfunctory initial pleading (taking various forms — letters, speaking motions, briefs, etc.) followed by a much more expansive reply. This case demonstrates the inefficiencies inherent in this approach. Going forward, the Court will be receptive to motions to strike reply briefs that do more than respond to arguments raised in answering briefs. The Court also will be receptive to arguments that moving parties seeking summary judgment have failed to meet their burden of establishing that no genuine issue of material fact exists because they have failed adequately to address the state of the record in their initial summary judgment pleading.
See Moore, 405 A.2d at 680 (discussing the moving party's initial burden on summary judgment).
3. The Timing of Dispositive Motion Practice
A third procedural issue arose in the course of litigating this motion that bears mention here. In accordance with the Court's scheduling order, the motion sub judice was filed before the close of expert discovery. In most instances, this would not pose a problem because most dispositive motions in the asbestos litigation address either fact-driven issues (e.g. product nexus), or discreet legal issues (e.g. worker's compensation exclusivity) that do not implicate expert testimony. In this instance, however, Mortell's and Marmon's motions for summary judgment attacked the sufficiency of Mr. Lagrone's causation case — a matter directly linked to the content and quality of his expert witnesses' opinions.
Not surprisingly, when the alleged deficiencies in the experts' opinions were identified by the defense motions, the plaintiffs sought to "fill in the gaps" with supplemental opinions. In doing so, Mr. Lagrone argued, inter alia, that supplementation was appropriate because expert discovery was ongoing. The defendants opposed supplementation on several grounds, including that Mr. Lagrone's experts had already made their beds and it was too late to change the bedding. Once again, inefficiency was the order of the day here, this time brought on by the Court's own case scheduling deadlines.
To address this problem going forward, the Court will amend its case management orders to allow case dispositive motions that will implicate expert testimony to be filed after the close of expert discovery. The Court recognizes that these motions will be few and far between. Nevertheless, it is the Court's hope and expectation that all dispositive motions filed in the asbestos litigation will be briefed, argued and decided on a complete and closed factual and, if needed, expert record so that supplem entation of the record will rarely, if ever, be required to decide the issues.
B. The Merits
The essence of Mortell's challenge to plaintiffs' causation case is that Mr. Lagrone cannot establish that his work with Marmon doors (containing Mortell's sound deadener) would have released respirable asbestos fibers, the inhalation of which would have caused his mesothelioma. As the Court stated in its oral ruling on the motion, Drs. Hammar and Frank indicated in their pretrial disclosures that they would testify at trial that Mr. Lagrone's exposure to asbe stos released from Marmon's doors when cut by Mr. Lagrone or others was a medical cause of his mesothelioma. These opinions would be based, in part, upon their assumptions that Mr. Lagrone would have been exposed to friable asbestos when he worked with or around these doors. These assumptions, in turn, would be based upon the opinion of plaintiffs' industrial hygiene expert, Dr. Steven Ellenbecker, that cutting into Marmon doors with Mortell sound deadener would release friable asbestos. Mortell has challenged Dr. Ellenbecker's opinion under Daub ert and its progeny, and the Court already has determined that Marmon may prosecute this motion now that Mortell has settled.
T. ID 12616348. See Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579 (1993).
The Court is satisfied that it is appropriate for a medical expert to rely in part upon the opinion of an industrial hygiene expert when rendering an opinion on medical causation, assuming the information is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Accordingly, to the extent Dr. Ellenbecker's opinions are sufficiently relevant and reliable to pass muster under Daubert, it is proper for Drs. Hammar and Frank to rely upon Dr. Ellenbecker's opinions when reaching their own.
D.R.E. 703 See Lewis v. Rego Co., 757 F.2d 66, 74 (3d Cir. 1985) (testifying expert can rely upon information obtained from other retained experts).
The real controversy here surrounds the admissibility of the Ellenbecker opinions. As this is the subject of a separate motion, and further development of the record is needed to address the matter, including testimony from the expert himself regarding his methodologies, the Court will not address the matter here. For now, the motion as it relates to medical causation is not well founded. If the foundation for the medical experts' opinions is later deemed unreliable, however, there may well be a basis upon which Marmon may seek a summary disposition of the plaintiffs' claims at that time. That determination can be made only after the pending motion in limine is resolved.
V.
Based on the foregoing, Marmon's motion for summary judgment must be DENIED without prejudice. The motion may be renewed after the pending motion in limine to strike Dr. Ellenbecker's testimony is decided.
IT IS SO ORDERED.