IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN RE: ASBESTOS LITIGATION )

)

LISA ESTRADA, individually and as )

Fiduciary for the Estate of DONALD )

JORDONEK, deceased, )

)

Plaintiff, )

)

v. ) C.A. No.: N19C-01-100 ASB

)

AMERICAN HONDA MOTOR CO., )

INC., et al., )

)

Defendants. )

Submitted: April 5, 2023

Decided: April 11, 2023

OPINION ON DEFENDANT HENNESSY INDUSTRIES, LLC’S 

MOTION FOR REARGUMENT

DENIED

Michael C. Dalton, Esquire, Dalton & Associates, P.A., Wilmington, Delaware, and 

Michael Collins Smith, Esquire, Balick & Balick, LLC, Wilmington, Delaware, 

Attorneys for Plaintiff.

Brian D. Tome, Esquire, Reilly, McDevitt & Henrich, P.C., Wilmington, Delaware, 

Attorneys for Defendant

Jones, J.
2

This asbestos case is controlled by Ohio substantive law. It is alleged that Donald 

Jordonek was exposed to asbestos from a number of sources as a result of his work 

over a career as an automotive mechanic. It is further alleged that as a result of his 

asbestos exposure, Jordonek contracted and died from mesothelioma. 

One of the defendants sued is Hennessy Industries, LLC (“Hennessy”) in its 

capacity as the predecessor-in-interest to AMMCO Tools, Inc. (“AMMCO”). 

AMMCO manufactured brake lathes and grinders, among other products. There is 

record evidence that Jordonek worked with this AMMCO equipment while 

employed at the Goodyear Tire Service Center in Maple Heights, Ohio from 1972 

to 1999. 

The AMMCO equipment that Jordonek worked with did not contain asbestos. 

The theory of liability against AMMCO is that it designed and sold a machine whose 

function was to grind asbestos containing brake linings, and that the machine 

released asbestos dust when applied to the linings.

Hennessey moved for summary judgment maintaining, among other things, that 

under Ohio law there is no duty to warn on the part of Hennessey. In a March 28, 

2023 oral ruling, this Court denied Hennessy’s motion, finding that Ohio law would 

impose a duty on the part of Hennessy to warn. This Motion for Reargument 

follows.

Because the original order of this Court was verbal, I will now take this 

opportunity to explain, in writing, the March 28, 2023 oral decision.

Hennessey maintains that under Ohio law it cannot be held liable for any 

asbestos containing component parts or other non-component parts that it did not 
3

manufacturer or supply including brakes. The Delaware Supreme Court had recent 

occasion to give a history of the evolution of Ohio asbestos law in Richards v CopesVulcan, Inc.

1

In Richards, the Supreme Court wrote: 

Our starting point to answer the Ohio law question is the Fourth 

Circuit's decision in Lohrmann v. Pittsburgh Corning Corp. In

Lohrmann, the plaintiff argued that a directed verdict in favor 

of three asbestos product manufacturers was improper when 

the trial court found there was insufficient evidence that the 

plaintiff came in contact with their asbestos products. Rather 

than adopt a rule “that if the plaintiff can present any evidence 

that a company's asbestos-containing product was at the 

workplace while the plaintiff was at the workplace, a jury 

question has been established as to whether that product 

contributed as a proximate cause to the plaintiff's disease,” the 

Fourth Circuit created the now often-cited “manner-frequencyproximity” test for causation in asbestos cases:

To support a reasonable inference of substantial causation from 

circumstantial evidence, there must be evidence of exposure to 

a specific product on a regular basis over some extended period 

of time in proximity to where the plaintiff actually worked. 

Such a rule is in keeping with the opinion of the plaintiff's 

medical expert who testified that even thirty days exposure, 

more or less, was insignificant as a causal factor in producing 

the plaintiff's disease. 

As the court held, the manner-frequency-proximity test was 

useful to assess “the sufficiency of evidence for exposure” 

because it operated as “a de minimis rule since a plaintiff must 

prove more than a casual or minimum contact with the 

product.” The appeals court affirmed the district court's 

directed verdict in favor of the three manufacturers because of 

the lack of evidence of exposure to their products.

The Ohio Supreme Court, like many courts, had to decide what 

causation standard to adopt in the evolving area of toxic tort 

litigation. The causation issue presents unique challenges 

because of multiple defendants, multiple sources of exposure, 

and the long latency period of asbestos exposure diseases. In

Horton v. Harwick Chem. Corp., the Ohio Supreme Court 

11 213 A.3d 1196 (Del. 2019).
4

declined to adopt the Lohrmann manner-frequency-proximity 

test because it “cast[ ] judges in an inappropriate role” of 

making scientific and medical exposure assessments, was 

“overly burdensome” for plaintiffs, and was “unnecessary.” 

Instead, the Court adopted the “substantial factor” test of the 

Restatement. The plaintiff must show that they were exposed 

to asbestos from each defendant's product, and the asbestos 

from each defendant's product was a “substantial factor” in 

causing the injury. 

After the Horton decision, the Ohio General Assembly in 2004 

saw things differently and enacted Ohio Rev. Code Ann. 

§2307.96, which essentially adopted the Lohrmann causation 

standard in asbestos cases:

(A) If a plaintiff in a tort action alleges any injury or loss to 

person resulting from exposure to asbestos as a result of the 

tortious act of one or more defendants, in order to maintain a 

cause of action against any of those defendants based on that 

injury or loss, the plaintiff must prove that the conduct of that 

particular defendant was a substantial factor in causing the 

injury or loss on which the cause of action is based.

(B) A plaintiff in a tort action who alleges any injury or loss to 

person resulting from exposure to asbestos has the burden of 

proving that the plaintiff was exposed to asbestos that was 

manufactured, supplied, installed, or used by the defendant in 

the action and that the plaintiff's exposure to the defendant's 

asbestos was a substantial factor in causing the plaintiff's injury 

or loss. In determining whether exposure to a particular 

defendant's asbestos was a substantial factor in causing the 

plaintiff's injury or loss, the trier of fact in the action shall 

consider, without limitation, all of the following:

(1) The manner in which the plaintiff was exposed to the 

defendant's asbestos.

(2) The proximity of the defendant's asbestos to the plaintiff 

when the exposure to the defendant's asbestos occurred.

(3) The frequency and length of the plaintiff's exposure to the 

defendant's asbestos.

(4) Any factors that mitigated or enhanced the plaintiff's 

exposure to asbestos.2

2

Id. at 1197-2000.
5

Here, Hennessy points to § 2307.96 and maintains it had no duty to warn the 

plaintiff. Hennessy reads this statute as defining a cause of action, and since 

Hennessy did not manufacture, supply, or install the product, and the product was 

not used by the defendant in the action, no cause of action against Hennessy lies. In 

short, Hennessy argues the plain words of the statute require the entry of summary 

judgment because it owes no duty under the statute.

Plaintiff responds that the language in the statute “used by” the defendant applies 

to the instant case. Plaintiff also points the Court to § 2307.91(C), which defines 

asbestos claims as “any claim means any claim for damages, losses, 

indemnification, contribution or other relief arising out, based on, or in any way 

related to asbestos.”3 According to the plaintiff, this definition would include the 

claims against Hennessy, and to adopt a contrary meaning would make the words 

of this definition meaningless.

The first question to be addressed is whether the plain words of the statute 

resolve the issue. I find that the clear terms of the statute do not address the question 

posed. Section 2307.98(b) is entitled “Burden of Proof in a Tort Action/ Factors 

Considered.” The section does not define the nature and scope of the duties owed 

by a manufacturer. But what the statute does say, as evidenced by its words and the 

history of the statute, is that the plaintiff must show the exposure to a particular 

product was a substantial factor in bringing about plaintiff’s asbestos-related 

disease. As explained in Richards, the underlying purpose of this section was to 

3 Ohio Rev. Code Ann. § 2307.91(C).
6

address the Lohrmann4issue of the required burden of proof in Ohio on the issue of 

causation. Plaintiff is also correct that the definition of “claims” is much broader 

than that outlined in § 2307.96, and encompasses the claims against Hennessey. To 

adopt the reading of the defendant would be inconsistent with the definition of 

claims as defined by the Act. In short, the statutory words do not resolve the issue.

Finding that the Ohio statute does not directly address the issue, I must look for 

other indications of what an Ohio court would decide. The parties have not provided 

any Ohio case directly addressing the issue before this Court; in fact, the parties 

have agreed that there is no Ohio decision addressing the issue. In the absence of 

such authority, I must predict Ohio law.5

Like a number of other jurisdictions, Ohio follows the general rule that a 

manufacturer does not have a duty to warn of adjacent parts supplied by a third 

party, the so-called bare metal defense.6 But there are well recognized exceptions 

to this rule.7 The question is whether Ohio would adopt an exception to the rule 

under the circumstances of this case.

In In re: Fitzgerald, our Superior Court had an opportunity to summarize Ohio 

law in this area. The Fitzgerald Court concluded that “a plaintiff creates a triable 

issue as to liability on a design defect theory where he can show that the defendant 

explicitly specified or at least recommended that a particular product to which the 

plaintiff attributes his exposure be utilized with asbestos, such that it is evident that 

4 Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986)

5 See generally Richards, 213 A.3d.

6

Jacobs v. E.I. du Pont de Nemours & Co., 67 F.3d 1219, 1236 (6th Cir. 1995).

7 See id.
7

the defendant’s product was manufactured with the explicit purpose and intent of 

use with asbestos.”8 The Fitzgerald Court then cited to the Ohio case of Fischer v.

Armstrong Int’l, Inc.,

9 where the Ohio Court of Common Pleas recognized a duty 

exists for a replacement part by a third party when the defendant in question 

“explicitly specified the product for use with asbestos”. Fischer, in turn, quoted the 

Ohio decision in Perry v. Allis Chalmers Products Liability Trust,

10 in which the 

Ohio Court of Common Pleas once again recognized a duty on the part of a third 

party. And, in a recent Rhode Island decision interpreting Ohio law,

11 Judge Gibney

of the Rhode Island Superior Court wrote:

. . . Ohio Courts have addressed the issue of liability for afterapplied, third party asbestos-containing products. Generally, 

such courts have "acknowledged that certain factual scenarios 

may arise under Ohio law where liability may attach to 

manufacturers of products for injuries caused by a plaintiff's 

exposure to a different manufacturer's asbestos-containing 

products." For instance, in Perry v. Allis-Chalmers Corp. 

Prods. Liab. Trust, the court denied summary judgment 

because the defendant specified replacement parts must 

contain asbestos. Nevertheless, the courts have held that a 

plaintiff must produce some evidence indicating that the 

original manufacturer recommended or required the use of 

asbestos insulation upon its products. Put another way, the fact 

that the defendant manufacturer may have foreseen that 

asbestos products could later have been used in conjunction 

with the original product, standing alone, is not sufficient to 

impose liability.12

I recognize that, in some of these cases, summary judgment was granted. But the 

grant of summary judgment was because the facts did not meet the exception. The 

8

In re Fitzgerald, N10C-06-179, at 9 (Del. Super. Aug. 16, 2011) (Ableman, J.).

9 No. CV 07-615514 (Ohio Ct. Com. Pl. Jan. 2, 2008) (Sweeney, J.) (ORDER).

10 No. CV 06-608652 (Ohio Ct. Com. Pl. Nov. 30, 2006) (Sheehan, J.).

11 Baumgartner v. American Standard, Inc., 2015 WL 4523476 (R.I. Super. July 22, 2015).

12 Id. at *6 (internal citations omitted).
8

upshot of these cases is that Ohio law recognizes there are exceptions to its general 

rule. The question then becomes whether Ohio law should recognize an exception 

in this circumstance. I believe that it should, and the rationale for why it should can 

be gleamed from the California law cited by the plaintiff.

California follows the general rule of no duty to warn, but recognizes exceptions 

to that doctrine.

13 In Sherman v. Hennessy,14 the California Court of Appeals for the 

Second Circuit had an opportunity to directly address the exact issue present in this 

case. The question in Sherman was whether California law recognized an exception 

to the general no duty rule where the AMMCO machine was the product in question.

In Sherman, the Court had an opportunity to lay out the exceptions to the general 

rule and the public policy arguments behind it:

In O'Neil, our Supreme Court examined the extent to which a 

manufacturer may be liable for injuries arising from “adjacent” 

products, that is, products made and sold by others, but used in 

conjunction with the manufacturer's own product. There, the 

family of a deceased United States Navy seaman asserted 

claims for negligence and strict liability against manufacturers 

of pumps and valves used on warships, alleging that the 

serviceman's exposure to asbestos dust from asbestoscontaining materials used in connection with the pumps and 

valves caused his fatal mesothelioma. The court rejected the 

claims, concluding that “a product manufacturer may not be 

held liable in strict liability or negligence for harm caused by 

another manufacturer's product unless the defendant's own 

product contributed substantially to the harm, or the defendant 

participated substantially in creating a harmful combined use 

of the products.” 

The O'Neil court distinguished three decisions in which 

liability had been imposed on a manufacturer, one of which is 

pertinent here, namely, Tellez–Cordova v. Campbell–

13 O’Neil v. Crane Co., 266 P.3d 987, 998 (Cal. 2012).

14 237 Cal. App. 4th 1133 (2015), as modified on denial of reh’g (July 8, 2015).
9

Hausfeld/Scott Fetzger There, the plaintiff asserted strict 

liability claims based on defective warnings and design defects 

against manufacturers of grinding, sanding, and cutting tools 

the plaintiff had used. The plaintiff's complaint alleged that the 

defendants' tools released toxic dust from other manufacturers' 

products, and that the dust caused his injuries. The defendants 

successfully demurred to the complaint on the basis of the 

component parts doctrine. In reversing, the appellate court 

concluded that the component parts doctrine was inapplicable: 

“The facts before us are not that respondents manufactured 

component parts to be used in a variety of finished products, 

outside their control, but instead that respondents 

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, that the 

tools necessarily operated with those wheels or discs, that the 

wheels and discs were harmless without the power supplied by 

the tools, and that when the tools were used for the purpose 

intended by respondents, harmful respirable metallic dust was 

released into the air.” 

The O'Neil court concluded that Tellez–Cordova marked an 

exception to the general rule barring imposition of strict 

liability on a manufacturer for harm caused by another 

manufacturer's product. That exception is applicable when “the 

defendant's own product contributed substantially to the 

harm... .” In expounding the exception, the court rejected the 

notion that imposition of strict liability on manufacturers is 

appropriate when it is merely foreseeable that their products 

will be used in conjunction with products made or sold by 

others. The O'Neil court further explained: “Recognizing a 

duty to warn was appropriate in Tellez–Cordova because there 

the defendant's product was intended to be used with another 

product for the very activity that created a hazardous situation. 

Where the intended use of a product inevitably creates a 

hazardous situation, it is reasonable to expect the manufacturer 

to give warnings. Conversely, where the hazard arises entirely 

from another product, and the defendant's product does not 

create or contribute to that hazard, liability is not appropriate. 

We have not required manufacturers to warn about all 

foreseeable harms that might occur in the vicinity of their 

products.” 

The O'Neil court further concluded that the facts in Tellez–

Cordova differed from the situation before it in two key 
10

respects. As the “sole purpose” of the power tools in Tellez–

Cordova was to grind metals, they could only be used in a 

potentially injury-producing manner, unlike the defendant 

manufacturers' pumps and valves, whose “normal operation ... 

did not inevitably cause the release of asbestos dust.” 

Moreover, unlike the pumps and valves, “it was the action of 

the power tools ... that caused the release of harmful dust, even 

though the dust itself emanated from another substance.” In 

view of those differences, the pumps and valves did not satisfy 

two requirements identified by the underlying appellate court 

for the imposition of strict liability under Tellez–Cordova,

namely, that the manufacturer's product “ ‘is necessarily used 

in conjunction with another product,’ ” and that “ ‘the danger 

results from the use of the two products together.’ ” The O'Neil

court determined that “[the] pumps and valves were not 

‘necessarily’ used with asbestos components, and danger did 

not result from the use of [the] products ‘together.’ ”15

The public policy rationale for imposing a duty on Hennessy, as articulated in 

O’Neil, is persuasive, as it places the burden on the party who increased the risk and 

profited from it. I believe that an Ohio court would be persuaded by the O’Neil

analysis, as well. If an Ohio court is prepared to impose liability on a manufacturer 

where its products require the incorporation of another manufacturer’s product, it 

surely would impose liability when a combination of the two products increases the 

risk of injury. To be clear, the reason for imposing liability is not based on the 

concept of foreseeability; as Sherman makes clear, that is not enough. The reason 

for imposing liability is because defendant’s product was intended to be used with 

another product for the very activity that created a hazardous situation. Where the 

intended use of a product inevitably creates a hazardous situation, it is reasonable 

to expect the manufacturer to give warnings, so long as there is proof that the 

15 Id. at 1140-43 (emphasis in original) (internal citations omitted).
11

intended use of the product inevitably created a hazardous situation. Conversely,

where the hazard arises entirely from another product and the defendants’ product 

does not create or contribute to that hazard, liability is inappropriate. The factual 

requirements that must be established to trigger the Tellez-Cordova exception are:

(1) the manufacturer’s product is necessarily used in conjunction with another 

product; and (2) the danger results from the two products together. It is my 

prediction that Ohio would adopt this exception.

Against this background, I now turn to Hennessy’s Motion for Reargument.

This Court’s standard for considering Motions for Reargument is well settled. The 

Court will only grant reargument when it has overlooked controlling precedent or 

legal principles, or misapprehend the law or facts in a way that would have changed 

the outcome of the underlying decision.16 Reargument is not an opportunity for a 

party to revisit arguments already decided by the Court.17

Hennessy, in its Motion for Reargument, presents no new arguments. While 

Hennessy has cited to one additional case from Arkansas,

18 this case does not change 

the Court’s conclusion. In short, I am satisfied that I did not overlook a controlling 

precedent or legal principle or misapprehend the law or facts in a manner affecting 

the outcome of the decision. The original March 29, 2023 verbal decision was 

correct and should not be changed or amended.

16 See Peters ex rel. Peters v. Texas Instruments, Inc., 2012 WL 1622396, at *1 (Del. Super. May 7, 2012), aff’d, 58 

A.3d 414 (Del. 2013), as revised (Jan. 9, 2013).

17 See id.

18 Thomas v. Borg-Wagner Mores TEC, LLC, 340 F.Supp 3.d 800 (E.D. Ark. 2018). Thomas is an Arkansas case that 

cites Arkansas law.
12

For the above reasons, Defendant’s Motion for Reargument is DENIED. 

IT IS SO ORDERED.

/s/ Francis J. Jones, Jr.

Francis J. Jones, Jr., Judge

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