Ogg v. The Ford Motor Company


BARBARA J. OGG, as Surviving )
Spouse and as Administratrix of THE )
ESTATE OF CHARLES OGG,              )
                                    ) C.A. No.: N15C-07-160 ASB
               Plaintiffs,          )
     v.                             )
al.,                                )
               Defendants.          )


                         Submitted: September 28, 2020
                          Decided: December 31, 2020

           Upon Consideration of Defendants’ Motion for Reargument,


Raeann Warner, Esquire of Jacobs & Cummings, P.A, Attorney for Plaintiff

Loreto P. Rufo, Esquire of Rufo Associates, P.A, Attorney for Defendants

       AND NOW TO WIT, this 31st day of December, 2020, upon consideration

of Defendants’ Motion for Reargument, Plaintiff Barbara Ogg’s Response in

Opposition, the parties’ oral arguments upon hearing of the motion, and the record

in this case, IT IS HEREBY ORDERED that Defendants’ Motion is DENIED for

the following reasons:

       1.      Plaintiff, the surviving spouse and Administratrix of the Estate of

Charles Ogg, asserts claims against Defendants alleging that Mr. Ogg suffered

severe asbestosis from his exposure to asbestos and asbestos-containing products

manufactured by Defendants during approximately forty years of work as a

mechanic for various employers in Houston, Texas.

       2.      In July 2015, Plaintiff initiated this action. Defendants moved for

summary judgment on the issue of product identification and causation. Plaintiff

responded, in part, that statements made by Mr. Ogg established both product

identification and causation sufficient to survive summary judgment.                       These

statements were made through two affidavits.1 In reply and during oral argument,

Defendants claimed Mr. Ogg’s statements were inadmissible hearsay. Plaintiff

    On July 16, 2014, Mr. Ogg executed the first affidavit wherein he provided sworn statements
regarding his work history and potential exposure to asbestos-containing products. He was
hospitalized the next day through July 24, 2014, with severe end-stage pulmonary fibrosis. Within
a month of that hospitalization, he was back in intensive care where he received his prognosis and
treatment options for his terminal disease. Hospice was deemed appropriate upon discharge on
September 4, 2014. On October 8, 2014, Mr. Ogg executed a second affidavit. He was scheduled
for deposition on October 21, 2014, but passed just two days before.

argued his statements were admissible as qualified exceptions to hearsay. At the

parties’ request, the Court granted the parties additional time to brief the issue.2

       3.     Prior to issuing its decision, this Court emailed counsel to confirm the

issue of admissibility was still contested. Counsel asked for time to confer. They

then sent an email requesting the Court’s ruling on the affidavits’ admissibility.

Shortly thereafter, upon full consideration of all submissions and arguments, the

Court rejected Plaintiff’s argument that Mr. Ogg’s statements qualified as dying

declarations but found they were—under the specific facts and circumstances

presented—sufficiently reliable to qualify under the residual exception under D.R.E.

807, and therefore admissible.3

       4.     Defendants then filed this Motion for Reargument, and the Court

granted oral argument thereon.          Defendants also asked the Court to consider

supplemental authority not presented in its briefing of the motion. Notwithstanding

Plaintiff’s objection, the Court accepted the supplemental authorities offered. The

reargument request is now ripe for disposition.

   Briefing deadlines landed during the COVID-19 outbreak and court closures. Due to national
and state emergencies, courtesy copies sent to the Court were not immediately received, and
communications between the Court and counsel between March and June 2020 were handled via
    Ogg v. Ford Motor Co., et al., 

2020 WL 3583586

, at *3-4 (Del. Super. July 1, 2020).
                           THE PARTIES’ CONTENTIONS

        5.      In their written submissions, Defendants argue that the Court

misapprehended material facts, failed to consider relevant case law,4 and that the

Court’s decision “could radically change the way [asbestos] cases proceed.”5 At oral

argument, however, Defendants conceded that the Court did not mistake either the

operable law or salient facts; they said then that the Court’s error was to consider the

issue of the affidavits’ admissibility in the first place.

        6.      Plaintiff maintains that Defendants fail to meet their burden under Rule

59(e),6 particularly as the now-supposed error was merely to rule on Defendants’

request at all.

        7.      Both Defendants’ traditional approach raised in the pleadings and the

rather unorthodox position posited during oral argument are analyzed under Rule 59.

    Defendants’ Motion for Reargument, at 1 [hereinafter Defs’ Rearg. Mot.].

Id. at 6. 6

    Plaintiff’s Opposition to Defendants’ Motion for Reargument, at 1 [hereinafter Pltf’s Opp.].

                                 STANDARD OF REVIEW

           8.   Delaware Superior Court Civil Rule 59(e) permits the Court to

reconsider “its findings of fact, conclusions of law, or judgment . . . .” 7 “Delaware

law places a heavy burden on a [party] seeking relief pursuant to Rule 59.”8 To

prevail on a motion for reargument, the movant must demonstrate that “the Court

overlooked a controlling precedent or legal principle[], or the Court has

misapprehended the law or facts such as would have changed the outcome of the

underlying decision.”9 Further, “[a] motion for reargument is not a device for raising

new arguments,”10 nor is it “intended to rehash [an] argument already decided by the

court.”11 Such tactics frustrate the interests of judicial efficiency and the orderly

process of reaching finality on the issues.12 The moving party has the burden of

demonstrating “newly discovered evidence, a change of law, or manifest injustice.”13

     Hessler, Inc. v. Farrell, 

260 A.2d 701

, 702 (Del. 1969); see also DEL. SUPER. CT. CIV. R. 59(e).
     Kostyshyn v. Comm’rs of Bellefonte, 

2007 WL 1241875

, at *1 (Del. Super. Apr. 27, 2007).
   Bd. of Managers of Del. Criminal Justice Info. Sys. v. Garnett Co., 

2003 WL 1579170

, at *1
(Del. Super. Jan. 17, 2003), aff’d in part, 

840 A.2d 1232

(Del. 2003).

Id. 11

     Kennedy v. Invacare Corp., 

2006 WL 488590

, at *1 (Del. Super. Jan. 31, 2006).
     See Plummer v. Sherman, 

2004 WL 63414

, at *2 (Del. Super. Jan. 14, 2004).
     E.I. du Pont de Nemours & Co. v. Admiral Ins. Co., 

711 A.2d 45

, 55 (Del. Super. 1995).

        9.     Defendants do not argue newly discovered evidence or a change of law.

Instead, Defendants shifted gears at oral argument and engaged a unique, novel, and

rather peculiar theory of manifest injustice. They ask this Court to reconsider its

judgment by arguing that it erred in considering the hearsay issue—an issue they

raised and argued—in the first place. This type of argument is simply impermissible

under Rule 59.

        10.    Again, Rule 59 is not an avenue for relief via some new argument.14

Defendant ArvinMeritor first raised the hearsay issue during summary judgment

proceedings. The remaining Defendants followed. They all then asked for full

briefing on the single evidentiary question posed. And ultimately, when prompted

by the Court, Defendants all expressly requested a ruling on the hearsay issue in

support of their summary judgment motions—motions that they asked to remain

stayed awaiting the affidavit admissibility decision. At reargument now, lead

defense counsel conceded that he only asked for a decision on the hearsay issue

because he believed the Court would rule differently. An unexpected adverse ruling

is no grounds for Rule 59 relief. Such tactics frustrate the interests of judicial

efficiency and the orderly process of reaching finality on the issues.15 While a

     See Bd. of Managers of Del. Criminal Justice Sys., 

2003 WL 1579170

, at *1.
     See Plummer, 

2004 WL 63414

, at *2.
creative argument, it is not appropriate to consider it under Rule 59. And the Court

could deny Defendants’ reargument motion on that basis alone.

           11.    Turning to the Defendants’ more traditional reargument averments, it

is clear they now offer authority never presented when they first sought to have Mr.

Ogg’s statements excluded. Yet even that belated authority does not establish a

misapprehension of law or facts that would alter the outcome of the discreet

admissibility issue decided.

           12.    Defendants first cite Collins v. Ashland.16 As here, the Collins plaintiff

sued on behalf of her deceased husband claiming that her husband’s death was

proximately caused by exposure to defendant’s products.17                At the summary

judgment stage, plaintiff produced her late husband’s affidavit in which he averred

that he was exposed to fourteen different products while working for the defendant

in 1984. But the defendant demonstrated that nine of those products did not exist at

the time.18 This Court held that the decedent’s affidavit there did not fall under the

residual exception to the hearsay rule.19 And the Court there rightly relied heavily

on the fact that the affidavit was shown to be false; nine of the products plaintiff’s

     Collins v. Ashland, 

2008 WL 3321848

(Del. Super. Aug. 28, 2008).

Id. at *1. 18

Id. at *2. 19

Id. 6

husband alleged he was exposed to did not even exist at the time he stated in his

affidavit.20 Despite an opportunity to do so, Defendants here produced no evidence

to suggest that the Ogg affidavits were false in any way.

           13.   Stigliano v. Anchor Packing Co.21 also remains of little assistance to

Defendants. This Court had already considered and distinguished Stigliano. In

Stigliano, prior to executing his affidavit, the plaintiff had been deposed four times22

and had never mentioned exposure to defendant’s product.23 Given the substantial

deposition record in Stigliano, there was certainly far more probative evidence

available than just plaintiff’s affidavit.24 Here, where Mr. Ogg died two days before

his scheduled deposition, his prior affidavits are the most probative evidence


           14.   Defendants have also cited Sternhagen v. Dow Co.25 In Sternhagen, the

plaintiff claimed that a product manufactured by different defendants had caused the

development of his non-Hodgkins lymphoma in the summer of 1948.26 He provided


2008 WL 3321848

, at *2.
     Stigliano v. Anchor Packing Co., 

2006 WL 3026168

(Del. Super. Oct. 18, 2006).

Id. 23

Id. 24

Id. 25

     Sternhagen v. Dow Co., 

108 F. Supp. 2d 1113

(D. Mont. 1990).

Id. at 1114-15. 7

a sworn statement in 1988 wherein he recalled seeing the four defendants’ labels on

those products forty years prior.27 Yet, it had already been proven that one of the

named—and dismissed—defendants had not even begun manufacturing the product

until after the plaintiff’s alleged exposure.28 The Sternhagen court held that the 1988

affidavit was not admissible under the residual exception to the Federal Rules of

Evidence.29 The court acknowledged that while certain factors weighed in the

plaintiff’s favor,30 more weighed against its trustworthiness. The recounted events

occurred forty years earlier; and the affidavit had already been proven incorrect.31

Sternhagen’s forty-year gap is not present here.                 Mr. Ogg’s statements relay

exposure to events as late as 2000 and Defendants have not shown that their products

were not available at the time claimed.

        15.     Defendants’ reliance on Sykes v. Air & Liquid Systems Corp.32 is also

unpersuasive. Sykes analyzed admissibility under D.R.E. 804(b)(1) and Superior


Sternhagem, 108 F. Supp. 2d at 1115


Id. at 1120.


     Id. at 1120-21.

     Id. at 1119-20 
(stating that the statement being under oath went towards its trustworthiness).

    Id. at 1120. 
The court also noted the statement was not subject to cross-examination, was self-
serving, and was not spontaneous.

     Sykes v. Air & Liquid Sys. Corp., 
2018 WL 776019 
(Del. Super. Feb. 7, 2018).

Court Rule 32.33 And Sykes made only a passing mention of D.R.E. 807, noting that

the Special Master did not find that it applied. But Sykes neither discusses why the

Special Master made that decision nor squarely addresses Rule 807’s applicability.34

         16.     In short, none of the case law cited by Defendants resolved the specific

admissibility question raised and litigated to decision here—whether Rule 807

would allow consideration of these specific affidavits under these unique facts

during summary judgment proceedings. The Court, therefore, did not overlook

controlling precedent. The cases cited by Defendants in the first round on this issue

are distinguishable. And the additional cases supplied during oral argument are

equally unavailing.

         17.     Defendants also argued that the Court misapprehended material facts.

But they have failed to identify what facts they believe were misapprehended.35

And, when pressed at oral argument as to what facts they believed were

misapprehended, Defendants conceded that they used the wrong language in their

Motion and did not believe the Court misapprehended any material facts. This

argument, therefore, is deemed to have been withdrawn.

     See generally Sykes, 
2018 WL 776019
 id. at *1.

     See Defs’ Rearg. Mot., at 1.

           18.   Defendants’ final contention is a policy argument. They say the Court’s

decision “could radically change the way [asbestos] cases proceed.”36 They suggest

that this ruling will lead to “incentivize the strategic and purposeful failure by

plaintiff’s counsel to tender plaintiffs for depositions.”37 The argument is as follows:

plaintiffs’ attorneys will now prohibit their clients from participating in depositions

in the hopes that their physical condition will decline such that it will prevent the

client from testifying. This strategy will then ensure that only a sworn statement via

affidavit will be presented to the jury. Even if Defendants were right, this is no basis

for Rule 59 relief.

           19.   The Court’s decision is no game-changer. The narrow evidentiary

ruling on the admissibility of these two specific affidavits for purposes of granting

or denying summary judgment under our Rule 56 is no sweeping decision affecting

the future of all Delaware asbestos litigation. Admissibility questions are always

answered on a case-by-case basis; such answer being the product of the court’s sound

discretion exercised in reaction to the specifics of the proffer and particular

procedural posture in which they are posed.38                Any future plaintiff seeking

     Defs’ Rearg. Mot., at 6.


     See Brown v. Liberty Mutual Ins. Co., 
774 A.2d 232
, 237-38 (Del. 2001).

admissibility of an affidavit under the residual exception either on summary

judgment or trial, will need to satisfy Rule 807’s exacting requirements.

        20.     Further, the Court’s rules of civil procedure safeguard against the

practice Defendants forebode. Rule 26 discovery schedules may include deadlines

for each step in the discovery process, including the taking of depositions.39 Each

party is “under a duty to participate in good faith in the framing of a discovery plan”

when proposed by the other.40 And a party acting in bad faith, does so at its peril.41

        Defendants have not met the burdens normally associated with Superior Court

Rule 59. And Defendants’ policy argument provides no new basis for Rule 59 relief.

The Court’s narrow ruling here on the consideration of certain evidence during

summary judgment proceedings should not be construed as some broader statement

on evidentiary issues for future asbestos trials. It is not.

        Defendants’ Motion for Reargument must be DENIED.


                                                       /s/ Vivian L. Medinilla

     See DEL. SUPER. CT. CIV. R. 26(f).

     Id. (prescribing sanctions for 
failure to engage in good faith discovery).
    See DEL. SUPER. CT. CIV. R. 37(f) (providing for sanctions against a party who fails to attend
a deposition that may include: default judgment against the disobeying party; prohibiting that
party from introducing designated evidence; or an order compelling the resisted deposition).


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