IN THE SUPERIOR COUR T OF THE STATE OF DE LAWARE

IN RE: ASBESTOS LITI GATION DOROTHY CHARBONNEAU, individually and as personal representative of the estate of ROBERT CHARBONNEAU, deceased, Plaintiffs,

v. FAIRBANKS COMPANY , et al., Defendants. ) ) ) ) ) ) C.A. No. N15C

- 01

- 045 ASB ) ) ) ) ) ) July 1 2 , 2017
Upon Defendant Fairbanks Company ’s Motion for Summary Judgment

. GRANTED

. Plaintiff Dorothy Charbonneau (hereinafter “Plaintiff”) cannot satisfy the summary judgment criteria. 1
Plaintiff alleges that her husband, Robert Charbonneau, was exposed to
asbestos from Defendant Fairbanks Company’s (“Fairbanks” or “Defendant”) products while working as a maintenance man and welder for several employers in Massachusetts. Plaintiff is the only product identification witness in this action.

1 Super. Ct. Civ. R. 56; Smith v. Advanced Auto Parts, Inc. , 2013 WL 6920864, at *3 (Del. Super. Dec. 30, 2013); see Moore v. Sizemore , 405 A.2d 679, 68 0 (Del. 1979); Nutt v. A.C. & S., Inc. , 517 A.2d 690, 692 (Del. Super. Ct. 1986); In re Asbestos Litigation (Helm) , 2012 WL 3264925 (Del. Aug. 13, 2012).During his deposition he recalled Defendant’s brand of valves as a product he

worked with at both Greeting Cards and Gordon Chemical

. He worked with both globe valves and gate valves. At the Oxford Housing Authority he testified that he worked with gate val v es, globe val v es, and a zone valve with a ball valve in both ends. He describ ed the valves as brass in color, and stated that these brass colored valves were present at all the sites h e worked at. He stated that while at Gordon Chemical he installed new Fairbanks valves and removed Fairbanks valves

. He testified that he replaced the packing and e xternal insulation on the valves and broken valve handles . He testified that the packing wa s located at the stem of the valve. To access the packing Mr. Charbonneau had to unscrew the packing nut on the shaft, and sometimes use a packing remover tool or a pair of pliers to get the packing out

. When asked where the external packing came from, Mr

. Charbonneau stated that the packing came from the supply house. As for the external insulation, Mr. Charbonneau described the insulation as white, and the insulation was located on the valve itself. Mr. Charbonneau removed the insulation
in order to rem ove the valve itself. He stated that the maintenance crew supplied the insulation. The new insulation came in powder form and needed to be mixed. Mr. Charbonneau applied this mix with his hands. When asked if he believed the packing he removed and inst alled contained asbestos , he stated that he assumed it did because of the high hea t that was going through the pipes.Defendant argues that the record lacks evidence that the valve packing

contained asbestos, and that Defendant manufactured the asbestos packing. Plaintiff argues that Defendant required asbestos for use with its valve products, and Plaintiff provided six different catalogues for the proposition that Defendant “specif ically and regularly called for the use of asbestos gaskets and packing” with
its products. Plaintiff argues that Mr. Charbonneau testified from personal knowledge about removing asbestos on piping , and that Mr. Charbonneau replaced Fairbanks valve s with o ther Fairbanks valves. He also testified that the Fairbanks valves were externally insulated. Under Massachusetts law:
To prove causation in an asbestos case, the plaintiff must establish (1) that the defendant's product contained asbestos (product iden tification), (2) that the victim was exposed to the asbestos in the defendant's product (exposure), and (3) that such exposure was a substantial contributing factor in causing harm to the victim (substantial factor). 2 Defendant argues that Plaintiff’s claims are barred because Defendant had no duty to warn of asbestos parts from another manufacturer. Plaintiff presented evidence that Mr. Charbonneau installed and removed Fairbanks valves, and that some of Fairbanks val ves were sold with asbestos component parts. Plaintiff supplied answers to interrogatories stating that some Fairbanks valves contained asbestos gaskets and packing between the 1930s and 1980s. Defendant argues that under

2 Morin v. AutoZone Ne., Inc. , 943 N.E.2d 495, 499 (Mass. App. Ct. 2011).Massachusetts law it is not liabl e for other manufacturers ’ asbestos containing

products. Although Plaintiff demonstrated that Fairbanks sold valves that
contained asbestos gaskets and packing , Plaintiff failed to provide evidence that the packing and gaskets were manufactured by Fairban ks . Mr. Charbonneau testified that he installed and removed Fairbanks valves. In Massachusetts to “prove causation in an asbestos case, it is plaintiff’s principal burden to show that a defendant’s product contained asbestos and that the victim was expos ed to the asbestos in the defendant’s product .” 3 As stated by this Court before, “Massachusetts courts have never held a manufacturer liable . . . for failure to warn of risks created solely in the use or misuse of the product of another manufacturer.” 4 There is no evidence in the record that the replacement parts Mr. Charbonneau worked with were asbestos parts manufactured or supplied by Defendant, Fairbanks

. Simply because a Plaintiff worked with a Defendant’s product, without evidence beyond speculat ion that the product contained asbestos, and the asbestos containing part was manufactured by Defendant, a reasonable jury could not infer exposure. Specifically in this case, external packing, packing inside the valves, and gaskets with the valves were r eplaced numerous times. Without any indication that the replacement packing, external insulation, or parts in the

3 Whiting v. CBS Corp., 2013 WL 530860, at *1 (Mass. Ct. App. Feb. 14, 2013)(emphasis added). 4 In re Asbestos Lit., Cosner, 2012 WL 1694442 (Del. Super. May 14, 2012).Fairbanks valve were manufactured by Fairbanks, Plaintiff asks the Court to

speculate that Defendant is responsible

. W hen viewing the eviden ce in a light most favorable to Plaintiff, a reasonable jury could not infer that Mr. Charbonneau was exposed to asbestos from Fairbanks product beyond speculation

. Defendant’s Motion for Summary Judgment is therefore GRANTED. IT IS SO ORDERED. 

### /s/ Calvin L. Scott The Honorable Calvin L. Scott, Jr.