Superior Court of Delaware, New Castle
Although this action – In Re: Asbestos Litigation; Ladonna Sue Braxton, Individually and as Independent Executrix of the Estate of Marvin Jerry Braxton Jr., deceased, vs. J-M Manufacturing Company, Inc., et al. – is venued in Delaware, the case is governed by Texas law. The sole defendant is J-M Manufacturing Company, Inc.
In this asbestos action, the plaintiffs allege the decedent, Marvin Jerry Braxton, Jr., had occupational exposure to asbestos, resulting in Mr. Braxton developing mesothelioma. Prior to passing away, Mr. Braxton appeared for a deposition and testified to having had asbestos exposure from, among other things, the installation of asbestos-containing pipe manufactured by Certain Teed and Johns Manville while employed by Excavators & Constructors, Inc. The union Mr. Braxton worked for and the municipalities in which he worked were also the subject of his deposition. Mr. Braxton subsequently passed away from the mesothelioma. A trial of this matter was originally scheduled to begin on December 9, 2024. However, the trial was ultimately moved to February 2025. On October 10, 2024, J-MM filed a Motion for Leave to Designate Responsible Third Parties, including Johns Manville and Certain Teed. The plaintiffs opposed J-MM’s motion.
Texas Law requires a defendant “who seeks to designate a person as a responsible third party to file a motion on or before the 60th day before the trial.” See Tex. Civ. Prac. & Rem. § 33.004(a). Section 33.004 of the Texas Code provides that a defendant may designate a responsible third party that has not been sued by the plaintiff so that the trier of fact, as to each cause of action asserted, may determine the percentage of responsibility that each such person bears for causing the damages sought. Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 864 (Tex. 2009). The responsible third parties are not limited to those who can be made parties in the traditional sense; responsible third parties may be persons or entities outside the court’s jurisdiction, unable to be sued or even unknown. The filing or the granting of a motion for leave to designate a person as a responsible third party or a finding of fault against the person does not by itself impose liability on the person. See Tex. Civ. Prac. & Rem. § 33.004(i). Liability on a designated person still depends on the entity or person designating a third party to prove the essential elements of the claim against the designated party. Russell v. Big V Feeds, Inc., 2024 U.S. Dist. LEXIS 146640, 2024 WL 4397908 (E.D. Tex. 2024).
The plaintiffs’ opposition argued, among other things, that § 33.004 mandates a third-party designation be made within the proper period of time so that, if the plaintiff chooses, the plaintiff can add parties within the applicable statute of limitations. The plaintiffs specifically contend that J-MM motion was not timely because J-MM became aware of Mr. Braxton’s claims on July 11, 2022, and, under Texas’s two-year statute of limitations, it had until July 11, 2024 to file claims against the bankrupt third parties. However, Texas case law makes clear that a designation made after the statute of limitations has run on any claim the plaintiff can make against a designated party is not fatal. See In Re: Dakota Directional Drilling, Inc., 549 S.W.3d 288 (Tex. Ct. App. 2018); see also In Re: YRC d/b/a YRC Freight, 646 S.W.3d 805 (Tex. 2022). In deciding whether a designation is timely, Texas courts look to whether the plaintiff should have been aware of the potential responsibility of the responsible third-party designee. Id.; see also Gespa Nicaragua v. Recom. AG, et. al., 2024 Tex. App. LEXIS 7271, 2024 WL 4455677 (Tex. Ct. of App. 2024). In this case, the court found all of the entities that J-MM sought to designate flow from the plaintiffs’ own discovery, including the deposition testimony of Mr. Braxton. In addition, the bankrupt entities that J-MM sought to designate are the subject of bankruptcy proofs of claim forms completed by Mr. Braxton himself. In view of that, the court concluded that J-MM satisfied its obligations to timely disclose its designated responsible third parties. See Id. The court therefore granted J-MM’s Motion for Leave to Designate Responsible Third Parties.
Read the full decision here.
