Anderson v. Am. Seaboard Exteriors, C. A. N22A-03-003 FJJ

CourtSuperior Court of Delaware
Writing for the CourtFrancis J. Jones, Jr., Judge
PartiesESTATE OF KIRK ANDERSON, Claimant-Below, Appellant v. AMERICAN SEABOARD EXTERIORS, Employer-Below, Appellee.
Docket NumberC. A. N22A-03-003 FJJ
Decision Date18 October 2022

ESTATE OF KIRK ANDERSON, Claimant-Below, Appellant


C. A. No. N22A-03-003 FJJ

Superior Court of Delaware

October 18, 2022

Submitted: September 30, 2022


Cassandra Roberts, Esquire, Elzufon, Austin & Mondell.

John Ellis, Esquire, Heckler & Fabizzio.

Theodore Segletes, Esquire, Liberty Mutual.

David Crumplar, Esquire, Jacobs & Crumplar.



Francis J. Jones, Jr., Judge



Appellant, the Estate of Mr. Kirk Anderson (the "Estate" or "Mr. Anderson"), appeals a January 31, 2022, decision of the Industrial Accident Board (the "Board" or "IAB"). In its decision, the IAB found the Estate did not meet its burden of proving Mr. Anderson's development of peritoneal mesothelioma was causally related to his employment at American Seaboard Exteriors ("Seaboard").

On appeal to this Court, the Estate presents three (3) arguments. First, it contends the IAB erred in its application of the last injurious injury rule when it determined Mr. Anderson did not suffer a last injurious injury from asbestos exposure at buildings maintained by Seaboard.[1] Second, the Estate argues the Board erred in its application of Delaware Rule of Evidence 803(6) when it did not allow the introduction of shipping records into evidence.[2] Finally, the Estate contends the Board committed reversable error in its application of Delaware Rule of Evidence 804(b)(1) by excluding the prior deposition testimony of insulators who worked in the same buildings as Mr. Anderson.[3]

The Court is satisfied the IAB applied the correct legal standards, and that substantial evidence supports its decision. To the extent the Board erred in its application of the law, the Court finds such errors to be harmless. Accordingly, the


IAB's denial of the Estate's application for additional compensation must be AFFIRMED.


Seaboard employed Mr. Anderson as a window washer[4] from 1999 until 2015.[5] Although Seaboard initially limited Mr. Anderson's duties to "exterior window cleaning and maintenance,"[6] Seaboard eventually promoted him to a crew leader.[7] In that position, Mr. Anderson oversaw and performed exterior window maintenance work and protected drop zones using barricades.[8]

The parties agree the buildings serviced by Seaboard contained asbestos, namely inside the mechanical rooms and penthouses.[9] However, Seaboard's contract with the buildings it serviced was limited to exterior window cleaning.[10]The record does not indicate that Seaboard performed any work inside the mechanical rooms or penthouses.[11] Seaboard stated, and the Board agreed, that although Mr. Anderson used these rooms as "pass-throughs" to access the building roofs, Seaboard required him to walk along designated paths inside the rooms and


"did not [give him] access to [other] areas in the rooms."[12] Nevertheless, Mr. Anderson argued these "pass-through" walks exposed him to friable asbestos.[13]

Mr. Anderson was diagnosed with peritoneal mesothelioma on August 5, 2016[14] and passed away as a result of the condition on January 25, 2017.[15]


On November 29, 2016, Mr. Anderson filed a Petition to Determine Compensation, seeking: (1) compensation for the peritoneal mesothelioma diagnosis; (2) temporary total or partial disability benefits from August 6, 2016, through January 24, 2017; and (3) payment of funeral expenses and death benefits to Donna Anderson, the widow of Mr. Anderson.[16] For purposes of this appeal, the central question posed to the IAB was whether Seaboard injuriously exposed Mr. Anderson to asbestos which caused his peritoneal mesothelioma.[17]

Prior to the commencement of the hearing on the merits, the Board granted two motions in limine filed by Seaboard.[18] First, the Board granted Seaboard's motion to exclude shipping records which indicated that various buildings serviced by Seaboard shipped asbestos-containing material from a warehouse to a loading


dock.[19] Next, the Board granted Seaboard's motion to preclude the presentation of numerous deposition transcripts of employees from the buildings Seaboard serviced.[20]

By stipulation of the parties, the Board held virtual hearings on the Estate's petition on June 7 and June 8, 2021.[21] Thereafter, the IAB heard in-person arguments on August 11, 2021.[22]

At the hearings, the Estate called four witnesses: (1) Dr. Su-Jung Tsai, an industrial hygienist with specialized expertise in airborne particles and toxic chemicals;[23] (2) Dr. James Bruce, a board-certified pathologist;[24] (3) Donna Anderson, the widow of Mr. Anderson;[25] and (4) William Weikle, a former employee of Seaboard.[26] Seaboard, for its part, called three witnesses: (1) Dr. Victor Roggli, an anatomic pathologist;[27] (2) Andy Anderson, the General Manager of Seaboard;[28] and (3) Jerry Creswald, the Vice President of Seaboard.[29]

The parties submitted closing arguments in late August, and the Estate submitted its rebuttal on September 7, 2021.[30] The Board issued its decision denying


the Estate's claims on January 31, 2022.[31] The Estate subsequently filed the instant motion for appeal, which is now ripe for decision.


On appeal from the IAB, the Superior Court limits its review to determining whether the IAB's decision was free from legal error and supported by substantial evidence.[32] "Substantial evidence is that which 'a reasonable mind might accept as adequate to support a conclusion.' It is a low standard to affirm and a high standard to overturn."[33] Consequently, the Court must search the entire record to determine whether, based on all the testimony and exhibits, the Board could fairly and reasonably reach its conclusions.[34] However, the Court "does not sit as trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions."[35] It is solely within the purview of the Board to judge credibility and resolve conflicts in testimony.[36] Where substantial evidence supports the administrative decision, the Court must affirm the ruling unless it identifies an abuse of discretion or clear error of law.[37] Questions of law are reviewed de novo.[38]


When an employee suffers compensable injury, Delaware law requires the employer to pay for reasonable and necessary medical "services, medicine, and supplies" causally connected with that injury.[39] The employee seeking compensation bears the burden of proving, by a preponderance of the evidence, that a work-related accident caused the injury.[40] If medical evidence is in conflict, the IAB is the finder of fact and must resolve that dispute.[41] In resolving the conflict, the Board is "free to choose between conflicting medical expert opinions, which will constitute substantial evidence for purposes of appeal."[42]

Lastly, the Court reviews the Board's decisions to admit or exclude evidence at the hearing under an abuse of discretion standard.[43] The Delaware Supreme Court has held the IAB commits an abuse of discretion when the Board exceeds the bounds of reason in view of the circumstances and has ignored recognize rules of law or practice to as to produce injustice.[44] If the Board abused its discretion, the role of this Court is to determine whether the error rises to the level of significant prejudice which would entitle the appellant to a reversal.[45]



In support of its appeal, the Estate submits three arguments. The Court will take each in turn.

A. The Board's Exclusion of the Shipping Records

This Court has made clear that the rulings of administrative boards "cannot rest alone upon hearsay."[46] Although the Board has great discretion to consider the admission of hearsay evidence, the proffering party must provide "sworn testimony from a witness capable of providing the proper foundation [for the evidence]."[47] If the Board admits hearsay evidence without an accompanying sworn statement as to its authenticity, the Board itself is abusing its discretion.[48]

In the present matter, the Court is satisfied that the IAB's decision to exclude the shipping records did not constitute an abuse of discretion. The shipping records presented by the Estate indicated that asbestos-containing material was transported from a warehouse to a loading dock.[49] However, as the Board concluded, the records did not show that Seaboard received the asbestos-containing material, nor did they identify the products or explain where they would be located.[50]


Irrelevance notwithstanding, the Estate failed to provide any evidence to support the authenticity of the shipping records.[51] The Estate's suggestion that the documents are self-authenticating is incorrect, and it failed to lay the proper foundation required for record admission. Resultantly, the Board properly concluded the Estate failed to authenticate the shipping records and did not abuse its discretion in excluding the documents.[52]

B. The Board's Exclusion of the Deposition Transcripts

Next, the Court looks to the Board's exclusion of the Estate's proposed deposition transcripts. As discussed, the Board granted Seaboard's motion in limine to exclude the deposition testimony of Robert Ryan ("Ryan"), David Perrine ("Perrine"), Robert Ferris ("Ferris"), and Richard Zimny ("Zimny").[53] Each of these deponents were employed as insulators in buildings where Mr. Anderson worked throughout the 1990s.[54] According to the Estate, their deposition testimony would have demonstrated the use of friable asbestos in the buildings and the IAB's decision to exclude them...

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