Money v. Manville Corp. Asbestos Disease Compensation Trust Fund

• Decision Date: 19 April 1991
• Citation: 596 A.2d 1372
• Parties: Prod.Liab.Rep. (CCH) P 12,942 Howard B. MONEY, Foster Trader, William Quinn, Joseph Merkel, Charles Perrin, and Clifton Biddle, Plaintiffs Below, Appellants, v. MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION TRUST FUND, and Celotex Corporation, Defendants Below, Appellees. . Submitted:
• Court: Supreme Court of Delaware

Page 1372

596 A.2d 1372

Prod.Liab.Rep. (CCH) P 12,942

Howard B. MONEY, Foster Trader, William Quinn, Joseph Merkel, Charles Perrin, and Clifton Biddle Plaintiffs Below, Appellants, v. MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION TRUST FUND, and Celotex Corporation, Defendants Below, Appellees.

Supreme Court of Delaware.

Submitted: April 19, 1991.

Decided: Aug. 7, 1991.

Upon appeal from the Superior Court. AFFIRMED.

John M. Bader, Tomar, Simonoff, Adourian & O'Brien, Wilmington, for appellants.

John C. Phillips, Jr. (argued), and Carmella P. Keener, Phillips, Goldman, Spence & Nolte, Wilmington, for Manville Corp. Asbestos Disease Compensation Trust Fund.

Before MOORE, WALSH and HOLLAND, JJ.

HOLLAND, Justice:

This is an appeal from a Superior Court order granting the defendant-appellees' motion for a directed verdict. The plaintiff-appellants are Howard B. Money, Jr., Foster D. Trader, Charles Perrin, Joseph H. Merkel, Sr., and Clifton C. Biddle (collectively the "plaintiffs"). Each of them filed a law suit in the Superior Court against numerous entities, including inter alia the defendant-appellees, Manville Corporation Asbestos Disease Compensation Trust Fund and Celotex Corporation ¹ (collectively the "defendants"). Each action alleged that exposure to the asbestos products of the defendants had caused the plaintiffs' asbestos-related physical injuries.

After extensive discovery and pretrial proceedings, the separate actions were consolidated for a trial commencing on April 10, 1990. ² The plaintiffs presented two types of evidence: first, that each plaintiff had a disease related to asbestos exposure; and second, that the defendants were the manufacturers of various asbestos products which each plaintiff had used during the course of their employment. After the close of the plaintiffs' evidence, the defendants moved for a directed verdict, contending that the plaintiffs had failed to present a prima facie case on the issue of causation.

The Superior Court granted the defendants' motion for a directed verdict holding that, in the absence of expert medical testimony providing a direct nexus between the defendants' asbestos products and plaintiffs' asbestos-related injuries, the plaintiffs had failed to establish a prima facie case on the issue of causation. In this appeal, the plaintiffs argue that the Superior Court's holding was erroneous because the jury should have been permitted to infer from the evidence which was presented that each defendant's product was a proximate cause of each plaintiff's injuries. We have concluded that the Superior Court's decision should be affirmed.

Facts

The facts in this case are undisputed. Each plaintiff filed an action in Superior Court alleging negligence, misrepresentation and intentional tort. According to each complaint, each plaintiff had suffered serious and permanent injury as a consequence of exposure to the defendants' asbestos products during their employment with Delmarva Power and Light ("DP & L").

At trial, the plaintiffs each testified as to their respective employment responsibilities while working for DP & L. According to that testimony, those responsibilities involved either the direct or indirect manipulation of products containing asbestos. The plaintiffs testified that the asbestos products which they worked with were manufactured by the defendants.

The plaintiffs also presented testimony at trial from other employees of DP & L. Those witnesses testified that each of the plaintiffs had worked for DP & L and were exposed to products which contained asbestos. These witnesses identified the defendants as the manufacturers of those products.

Dr. Donald Auerbach ("Dr. Auerbach") was called by the plaintiffs as an expert witness in pulmonary medicine. ³ According to Dr. Auerbach, the criteria for diagnosing asbestos-related diseases includes a history of exposure to asbestos, a suitable latency period which can be from 10 to 40 years, physical examinations, chest x-rays and pulmonary examinations, such as breathing tests. Dr. Auerbach testified that he examined each of the plaintiffs in 1986 and 1989, using the above criteria.

Dr. Auerbach then testified with respect to his findings as to each of the plaintiffs. ⁴ Specifically, he found that each of the plaintiffs had a history of exposure to asbestos-related products and suffered from an asbestos-related disease. However, Dr. Auerbach did not opine that the plaintiffs' exposure to the defendants' products was the cause of their asbestos-related diseases.

The plaintiffs concluded the presentation of their cases at trial by reading the defendants' answers to certain interrogatories into the record. Those interrogatory answers described the products mined, produced, or manufactured by each of the defendants respectively which contained asbestos. The defendants' interrogatory answers also included a description of the methods by which the products were manufactured and how asbestos was incorporated into them.

The Parties' Contentions

The parties are in agreement that the liability of a defendant depends upon a plaintiff proving that the defendant's negligent conduct proximately caused the plaintiff's injury. Culver v. Bennett, Del.Supr., 588 A.2d 1094 (1991). The parties are in agreement that, under Delaware law, establishing proximate cause requires a plaintiff to prove that but for the tortious conduct of the defendant, the injury which the plaintiff has suffered would not have occurred. Id. at 1097. The parties also agree that there may be more than one proximate cause of a plaintiff's injury. Id. (citing McKeon v. Goldstein, Del.Supr., 164 A.2d 260, 262 (1960)).

However, the parties disagree about the nature of the evidence which the plaintiffs were required to introduce in this case to meet their burden of proof on the issue of proximate cause. According to the defendants, the plaintiffs were required to introduce direct expert medical testimony which established that the plaintiffs' exposure to each defendant's asbestos product was a proximate cause of each plaintiff's asbestos-related disease. Conversely, the plaintiffs argue that they presented a prima facie case on the issue of causation by establishing that they were exposed to the asbestos products of each of the defendants and that each of them had a disease caused by exposure to asbestos. According to the plaintiffs, a directed verdict in favor of the defendants was improper because the jury was entitled to infer from the evidence which had been presented that exposure to each of the defendants' products was a proximate cause of their asbestos-related diseases. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1094 (5th Cir.1973).

Proximate Cause Generally

Delaware's common law has traditionally recognized that there may be more than one proximate cause of an injury. Culver v. Bennett, 588 A.2d at 1097. Thus, in an action based upon negligence against multiple defendants, the liability of a particular defendant is not dependent upon a showing that the defendant's conduct was the exclusive cause of the plaintiff's injuries. Id. ⁵ Nevertheless, in a negligence action involving numerous defendants, the plaintiff is required to establish that the negligence of each defendant was a proximate cause of the injury which the plaintiff has suffered. Id.

The issue of proximate cause is ordinarily a question of fact to be submitted to the jury. Culver v. Bennett, 588 A.2d at 1098. However, before the question of proximate cause may be submitted to the jury, the plaintiff is required to establish a prima facie case on that issue. It is permissible for a plaintiff to make a prima facie case that a defendant's conduct was a proximate cause of the plaintiff's injuries, based upon an inference from the plaintiff's competent evidence, if such a finding relates to a matter which is within a lay person's scope of knowledge. Compare Chudnofsky v. Edwards, Del.Supr., 208 A.2d 516, 518 (1965). However, "[i]f the matter in issue is one within the knowledge of experts only and not within the common knowledge of laymen, it is necessary for the plaintiff to introduce expert testimony in order to establish a prima facie case." M.S. Madden, Products Liability 533 (2nd ed. 1988). See Mountaire of Delmarva, Inc. v. Glacken, Del Supr., 487 A.2d 1137, 1141 (1984); Weiner v. Wisniewski, Del.Supr., 213 A.2d 857, 858 (1965); Laskowski v. Wallis, Del.Supr., 205 A.2d 825, 826 (1964).

Establishing Proximate Cause When Direct Expert Testimony is Required

In this case, the plaintiffs introduced evidence that each of them had been exposed to products containing asbestos which had been manufactured by each of the defendants. In addition, the plaintiffs introduced medical testimony that each of them suffered from an asbestos-related disease. Thus, the plaintiffs contend that the jury was entitled to draw an inference that exposure to each defendant's asbestos product was a proximate cause of their asbestos-related diseases.

The plaintiffs' argument fails to recognize the distinction between matters which are within the common knowledge of lay persons and matters which depend on expert skill and training. When the issue of proximate cause is presented in a context which is not a matter of common knowledge, expert testimony may provide a sufficient basis for a finding of causation, but in the absence of such expert testimony it may not be made. W. Keeton, Prosser and Keeton on the Law of Torts 269 (5th ed. 1984). The Delaware Medical Malpractice statute, for example, usually requires direct expert medical testimony to support a jury's finding of negligence and causation. Russell v. Kanaga, Del.Supr., 571 A.2d 724, 734 (1990) (citing 18 Del.C. § 6853). See Wahle v. Medical Center of Delaware, Inc., Del.Supr., 559 A.2d 1228, 1231 (1989); Strauss v. Biggs, Del.Supr., 525 A.2d 992, 997 (1987). Just as the General Assembly has recognized that the...