Avenie v. Ford Motor Company
N14C-06-037 ASB
| Del. Super. Ct. | Nov 8, 2017Background
- Plaintiff Constance L. Aveni, as personal representative of Vincenzo J. Aveni, sued Ford alleging Mr. Aveni developed lung cancer from exposure to asbestos in Ford automotive products.
- Plaintiff offered Joseph Aveni (son) as the sole product-identification witness; Joseph testified about assisting his father with vehicle maintenance in the 1970s on several Ford models purchased new.
- Joseph testified his father worked on brakes, oil, muffler, shocks and springs, but could not recall the manufacturers of the brakes/gaskets except Bendix; he identified only Ford hoses for a 1981 Pinto.
- Plaintiff submitted evidence that Ford drum brake shoes for consumer applications before the 1980s contained asbestos and argued this plus Joseph’s testimony satisfied Ohio’s product-identification/substantial-factor standard.
- Ford moved for summary judgment arguing Plaintiff cannot prove exposure to Ford products or that Ford products were a substantial factor; Ford also contended the expert report was too generic.
- The court applied Ohio law (the modified Lohrmann/“substantial factor” standard) and granted summary judgment for Ford, finding Joseph’s testimony insufficient to show Mr. Aveni was exposed to Ford asbestos products as a substantial factor in causing injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Product identification / exposure to Ford asbestos products | Joseph’s testimony that he helped his father maintain multiple Ford vehicles purchased new plus industry evidence that Ford drum brakes pre-1980 contained asbestos is sufficient to show exposure | Joseph could not identify brake manufacturers for most vehicles; cannot tie asbestos-containing Ford parts to Mr. Aveni | Held for Ford — testimony too uncertain to prove exposure to Ford asbestos products |
| Causation / substantial factor under Ohio law | General evidence that Ford drum brakes contained asbestos and routine maintenance by Mr. Aveni makes Ford a substantial factor | Plaintiff must show exposure to defendant’s product on a frequent/regular basis; mere possibility/speculation insufficient | Held for Ford — no reasonable jury could find Ford products were a substantial factor |
| Sufficiency of expert report | Plaintiff’s expert opinion supports general causation from asbestos exposure | Ford argues expert is too generic and does not tie exposure to Ford products specifically | Held for Ford — expert opinion cannot cure lack of product identification |
| Applicability of Ohio modified-Lohrmann test | Plaintiff argues Ohio law permits survival on showing frequent/regular exposure to a defendant’s product | Ford argues plaintiff fails to meet the modified-Lohrmann frequency/regularity requirement for Ford products | Held for Ford — modified-Lohrmann applied; requirement not met |
Key Cases Cited
- Moore v. Sizemore, 405 A.2d 679 (Del. 1979) (summary judgment standard cited)
- Nutt v. A.C. & S., Inc., 517 A.2d 690 (Del. Super. Ct. 1986) (summary judgment and asbestos litigation precedent)
- Schwartz v. Honeywell Int’l, Inc., 66 N.E.3d 118 (Ohio Ct. App. 2016) (example where plaintiff identified specific brake manufacturer to establish exposure)
- Fisher v. Alliance Machine Co., 947 N.E.2d 1308 (Ohio Ct. App. 2011) (adoption of the substantial-factor test for asbestos cases)
- Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (frequency, regularity, and proximity test referenced)