Schoepke v. E.I. Du Pont De Nemours and Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JANET SCHOEPKE, as Special )
Administrator of the Estate of EUGENE )
SCHOEPKE on behalf of the Estate of )
EUGENE SCHOEPKE, et al., )
)
Plaintiffs, )
)
v. ) Case No. N23C-09-059 ASB
)
E.I. DU PONT DE NEMOURS AND )
COMPANY, et al., )
)
Defendants. )
Submitted: November 14, 2025
Decided: February 27, 2026
Upon Defendants’ Motion for Judgment as a Matter of Law Under Rule 50(b),
or, in the Alternative, for a New Trial, DENIED.
Upon Plaintiffs’ Motion to Alter or Amend Judgment to Include Pre-Judgment
Interest, GRANTED.
ORDER
Defendants have filed a “Motion for Judgment as a Matter of Law Under Rule

50(b), or, in the Alternative, for a New Trial;” Plaintiffs oppose the motion.

Plaintiffs, for their part, have filed a “Motion to Alter or Amend Judgment to Include

Pre-Judgment Interest,” which Defendants oppose. After briefing closed, the Court

heard oral argument from the parties. For the reasons set forth below, Defendants’

“Motion for Judgment as a Matter of Law Under Rule 50(b), or, in the Alternative,

for a New Trial” is DENIED, and Plaintiffs “Motion to Alter or Amend Judgment to

Include Pre-Judgment Interest” is GRANTED.
BACKGROUND

On September 3, 2023, Plaintiffs filed their complaint in this Court alleging

Defendants, E.I. Du Pont Nemours & Company (“DuPont”) and Sporting Goods

Properties, Inc., individually and as successor-in-interest to Remington Arms

Company (“Remington”) (together, “Defendants”), alleging that the Defendants’

negligence caused Eugene Schoepke’s death.1 Prior to trial, the parties each moved

to exclude expert testimony proffered by their adversary.2 In addition to substantial

written briefing, over two days in November 2024, the parties presented evidence

and argument in support of their positions.3 The Court denied the parties’ motions,4

and the case moved to trial.

Trial commenced on July 8, 2025, and concluded on July 23, 2025.5 The

evidence established that Eugene Schoepke died on March 27, 2022, at the age of

846 following his February 22, 2022, mesothelioma diagnosis.7 The parties did not

dispute Mr. Schoepke’s mesothelioma diagnosis or that exposure to asbestos can

1
D.I. 1; D.I. 251.
2
D.I. 43, 47, 94, 95, 168, 183, 192.
3
D.I. 194, 195.
4
D.I. 246.
5
D.I. 341.
6
Trial Tr., 07/22/25 at 12:18-10, 13:8.
7
Trial Tr., 07/16/25 at 260:13-15.
2
cause that disease.8 Rather, the evidence and argument at trial focused on whether

one, the other, or both Defendants were a “legal cause” and “cause in fact” of Mr.

Schoepke’s illness.9 The parties disputed whether Mr. Schoepke’s use of asbestos-

containing Remington shotgun shells exposed him to respirable asbestos and,

ultimately, caused his death.10 Further, the parties disputed whether the Defendants

knew, or should have known, of the dangers that the asbestos-containing shotgun

shells created for consumers.11 This dispute persists and forms the basis of

Defendants’ motion.

On July 19, 2025, prior to submission of the case to the jury, Defendants filed

a “Motion for Judgment as a Matter of Law on the Issue of Causation.”12 Defendants

argued that Plaintiffs presented insufficient evidence for a jury to reasonably find

that Defendants’ conduct was a cause of Eugene Schoepke’s injury.13 Plaintiffs

responded,14 and on July 21, 2025, the Court denied the motion.15 On July 22, 2025,

8
Trial Tr., 07/09/25 at 68:17-21.
9
See id. at 8:9-10, 68:22-69:4.
10
Id. at 68:22-69:4.
11
See e.g., Trial Tr., 07/22/25, at 110:2-13.
12
D.I. 335.
13
Id. at 1.
14
D.I. 337.
15
Trial Tr., 07/21/25 at 263:3-71:13.
3
after closing arguments and instructions, the jury received the case and began its

deliberations.

While the jury deliberated, Defendants presented an oral motion for judgment

as a matter of law “on six separate issues.”16 Defendants asserted: (1) “Plaintiff has

not established that either of the defendants’ conduct was the legal cause of Mr.

Schoepke’s injuries;”17 (2) “Dr. Compton’s fiber release study results do not show

more than de minimis potential exposure [which] is required to prove causation

under Illinois law;”18 (3) “Plaintiff has no evidence of exposure to asbestos from gun

cleaning;”19 (4) “Plaintiff has no evidence that Mr. Schoepke was more susceptible

to developing mesothelioma than the average person, including no evidence of

genetic testing;”20 (5) “Plaintiff has no evidence to support a finding of punitive

damages as to either defendant;”21 and (6) “Plaintiff has offered no evidence to prove

liability as to DuPont.”22 Plaintiffs opposed the motion “on all grounds.”23 The

Court did not immediately rule on the motion; rather, citing to Superior Court Civil

16
Trial Tr., 07/22/25 (afternoon) at 4:12-14.
17
Id. at 4:15-17.
18
Id. at 6:13-18.
19
Id. at 7:23-8:3.
20
Id. at 8:5-10.
21
Id. at 8:11-14.
22
Id. at 9:8-11.
23
Id. at 11:12-13.
4
Rule 50(b) the Court directed the parties to submit their position in writing in the

event a judgment was returned in Plaintiffs’ favor.24

On July 23, 2025, the jury returned its verdict, finding:

- Eugene Schoepke’s mesothelioma was caused by exposure to asbestos,25
- Eugene Schoepke was exposed to asbestos from his use of a Defendant’s
shotgun shells,26

- Eugene Schoepke’s exposure to asbestos from his use of a Defendant’s
shotgun shells was a proximate cause of his mesothelioma,27
- Remington was negligent and 40% responsible for proximately causing
Eugene Schoepke’s injury,28

- DuPont was negligent and 60% responsible for proximately causing Eugene
Schoepke’s injury,29

- Damages in favor of plaintiffs totaling $9,000,000.30
The jury did not find clear and convincing evidence that the conduct of Remington

or DuPont constituted willful and wanton disregard for the rights or safety of Eugene

Schoepke.31

24
Id. at 12:1-19.
25
D.I. 340; Trial Tr., 07/23/25 at 10:16-19.
26
D.I. 340; Trial Tr., 07/23/25 at 10:20-23.
27
D.I. 340; Trial Tr., 07/23/25 at 11:1-5.
28
D.I. 340; Trial Tr., 07/23/25 at 11:6-9, 11:14-20.
29
D.I. 340; Trial Tr., 07/23/25 at 11:10-13, 11:14-22.
30
D.I. 340; Trial Tr., 07/23/25 at 11:23-12:7.
31
D.I. 340; Trial Tr., 07/23/25 at 12:8-13.
5
After entry of the judgment, Plaintiffs filed a “Motion to Alter or Amend

Judgment to Include Pre-Judgment Interest,”32 and a “Motion for Costs.”33

Defendants filed a “Motion for Judgment as a Matter of Law under Rule 50(b) or, in

the Alternative, for a New Trial,”34 and a “Motion to Stay Execution of Judgment

Pending Disposition of Post-Trial Motion.”35 The Court heard oral argument and

took the motions under advisement.36 The parties informed the Court that the

“Motion to Stay” was withdrawn and the “Motion for Costs” was resolved.37 This

Order addresses the remaining motions. The parties agree that Delaware procedural

law and Illinois substantive law guide the Court’s assessment of the matters before

it.

32
D.I. 348 (“Motion for Pre-judgment Interest”).
33
D.I. 350.
34
D.I. 352 (“Def. Mot.”).
35
D.I. 353.
36
D.I. 385.
37
D.I. 385, 388.
6
DISCUSSION

I. DEFENDANTS’ JUDGMENT AS A MATTER OF LAW OR,
ALTERNATIVELY, FOR A NEW TRIAL

A. LEGAL STANDARDS

Defendants have moved for judgment as a matter of law and, alternatively, for

a new trial. Superior Court Civil Rule 50(b) provides:

Whenever a motion for a judgment as a matter of law made at the close
of all the evidence is denied or for any reason is not granted, the Court
is deemed to have submitted the action to the jury subject to a later
determination of the legal questions raised by the motion. Such a
motion may be renewed by service and filing not later than 10 days
after entry of judgment. A motion for a new trial under Rule 59 may be
joined with a renewal of the motion for judgment as a matter of law, or
a new trial may be requested in the alternative. If a verdict was
returned, the Court may, in disposing of the renewed motion, allow the
judgment to stand or may reopen the judgment and either order a new
trial or direct the entry of judgment as a matter of law. If no verdict was
returned, the Court may, in disposing of the renewed motion, direct the
entry of judgment as a matter of law or may order a new trial.38

And, Superior Court Civil Rule 59 provides, “[a] new trial may be granted as to all

or any of the parties and on all or part of the issues in an action in which there has

been a trial for any of the reasons for which new trials have heretofore been granted

in the Superior Court.”39 This Court’s rules permit these motions to be presented

together; however, two separate standards apply.

38
Super. Ct. Civ. R. 50(b).
39
Super. Ct. Civ. R. 59(a).
7
In deciding a motion for judgment as a matter of law, the Delaware Supreme

Court instructs:

Judgment as a matter of law is appropriate if there is no legally
sufficient evidentiary basis for a reasonable jury to find for the non-
moving party. When considering a motion for judgment as a matter of
law, the Court must view the evidence and draw all reasonable
inferences in a light most favorable to the non-moving party. The
moving party bears the burden of demonstrating both the absence of a
material fact and entitlement to judgment as a matter of law.40

“When considering a motion for a new trial, the Superior Court must give

enormous deference to the jury’s verdict, and should not set aside the jury’s verdict

unless a reasonable jury could not have reached the result.”41 The moving party

“must show the need to correct clear error of law or to prevent manifest injustice.”42

“Historically, this State’s courts have exercised their power to grant a new trial with

caution and extreme deference to the findings of a jury. A court will not set aside a

jury’s verdict unless the evidence preponderates so heavily against the jury verdict

that a reasonable jury could not have reached the result.”43

40
LCT Capital, LLC v. NGL Energy Partners LP, 249 A.3d 77, 89-90 (Del. 2021)
(cleaned up) (internal citations omitted).
41
Id. at 90 (cleaned up) (internal citations omitted).
42
Conduent State Healthcare, LLC v. AIG Specialty Insurance Co., 2023 WL
2256052, at *1 (Del. Super. Ct. Feb. 14, 2023) (cleaned up) (quoting Monzo v.
Nationwide Prop. & Cas. Ins. Co., 2020 WL 2467074, at *2 (Del. Super. Ct. May
13, 2020)).
43
Amalfitano v. Baker, 794 A.2d 575, 577 (Del. 2001) (cleaned up) (quoting Storey
v. Camper, 401 A.2d 458, 465 (Del. 1979).
8
B. ANALYSIS

Defendants contend that the Court should grant judgment as a matter of law

because Plaintiff “failed to meet her burden of proving that either Defendant’s

conduct was the legal cause of Mr. Schoepke’s injury,”44 “failed to prove that

Defendants’ conduct was the ‘cause in fact’ of Mr. Schoepke’s injury,”45 and “failed

to meet her burden of proof as to a basis for DuPont’s liability for Remmington

shells.”46 Defendants alternatively assert that a new trial should be granted because

Plaintiff improperly invited the jury to speculate,47 inappropriately elicited

additional exposure testimony,48 and invited the jury to “impose liability for failure

to recall though Defendants had no duty.”49 Plaintiffs respond that they presented

sufficient evidence as to both “legal cause” and “cause in fact,” 50 and “presented

evidence sufficient to hold DuPont liable.”51 Plaintiffs further contend Defendant’s

motion for a new trial lacks merit.52

44
Def. Mot. at 5.
45
Id. at 11.
46
Id. at 22.
47
Id. at 25.
48
Id. at 28.
49
Id. at 29.
50
D.I. 374 (“Pl. Resp.”) at 3-18.
51
Id. at 18.
52
Id. at 27.
9
1. JUDGMENT AS A MATTER OF LAW

In an asbestos products liability case such as this, a necessary element of proof

“is that the defendant’s asbestos was a ‘cause’ of the decedent’s injuries.”53

“[C]ausation requires proof of both ‘cause in fact’ and ‘legal cause.’”54 Defendants

challenge the jury’s findings on both aspects of causation.

a. Legal Cause

Under Illinois law, in a failure to warn case, a plaintiff must prove that

“knowledge existed in the industry of the dangerous propensity of the

manufacturer’s product.”55 The Illinois Supreme Court, in Woodill v. Parke Davis

& Co.,56 explained that for liability to attach, a plaintiff must prove that “the

defendant manufacturer knew or should have known of the danger that caused the

injury.”57 The question for the Court, then, is whether Defendants knew or should

have known of the danger posed by their asbestos-containing shotgun shells.

Defendants argue that “Illinois law required that Plaintiff come forward with

specific evidence that knowledge that Remington’s shotgun shells—containing an

53
Thacker v. UNR Industries, Inc., 603 N.E.2d 449, 455 (Ill. 1992).
54
Id.
McKinney v. Hobart Brothers Co., 127 N.E.3d 176, 187 (Ill. App. 2018) (quoting
55

Woodill v. Parke Davis & Co., 402 N.E.2d 194, 198 (Ill. 1980)).
56
402 N.E.2d 194 (Ill. 1980).
57
Id. at 198 (emphasis added).
10
encapsulated component—could release asbestos fibers sufficient to pose a risk of

mesothelioma to hunters like Mr. Schoepke was available in the scientific

community during the timeframe in which Remington manufactured and sold the

shells.”58 They contend that “there is a ‘crucial distinction’ between knowledge that

raw asbestos fibers could cause mesothelioma and knowing that encapsulated

asbestos fibers in the defendant’s product posed a risk of disease.”59

Plaintiffs respond that they presented “ample evidence that both Defendants

knew about the hazards of asbestos dust and knew that the shotgun shells created

dust when used as intended.”60 Thus, they contend that there was sufficient evidence

establishing Defendants’ duty to warn.61

As is often the case, the parties’ arguments drive the positions to the poles,

when the answer lies somewhere in between. A manufacturer has a duty to warn of

known dangers and dangers of which it should be aware.62 And, of course,

encapsulation of an asbestos containing product is not “irrelevant.”63 Viewing the

record, and all reasonable inferences that may be drawn from the record, in the light

58
Def. Mot. at 7.
59
D.I. 352 at 7 (citing McKinney, 127 N.E.3d at 190).
60
Pl. Resp. at 9.
61
Id.
62
McLaughlin v. Dover Downs, Inc., 2008 WL 2493392, at *14 (Del. Super. Ct. July
17, 2008) (citations omitted).
63
Pl. Resp. at 8.
11
most favorable to the plaintiffs, the Court concludes that plaintiffs presented

sufficient evidence to find, as a matter of law, that Defendants knew, or should have

known, that its inclusion of asbestos within the basewad of a shotgun shell presented

a risk to consumers.

In McKinney v. Hobart Brothers Company,64 the Illinois Appellate Court

found that a manufacturer’s liability hinged on “whether [at the time the product was

manufactured] ‘knowledge existed in the industry of the dangerous propensity of the

manufacturer’s product – which, in this case, was not raw asbestos but defendant’s

welding rods, in which asbestos was encapsulated.”65 In the early 1960s, when the

welding rods were manufactured, the dangers of raw asbestos were known in the

industry.66 But the trial record offered “no evidence of contemporaneous knowledge

in the industry that welding rods with asbestos encapsulated in the flux were

hazardous.”67 The McKinney court concluded:

[I]n 1962 and 1963, defendant could not have owed plaintiff a duty to
warn plaintiff of a hazard that, at that time, was unknown to the industry
to which defendant belonged, namely, the ability of its welding rods to
release encapsulated asbestos fibers if the welding rods were simply
rubbed together or stepped on.68

64
127 N.E.3d 176 (Ill. App. 2018).
65
Id. at 188. (citing Woodill, 402 N.E.2d at 198).
66
Id. at 190.
67
Id. (citing Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1145 (5th Cir.
1985)).
68
Id. at 190.
12
Defendants posit that McKinney controls and, thus, the jury’s verdict here

must not stand.69 At trial, Defendant’s elicited state-of-the-art expert testimony as it

pertained to asbestos-containing shotgun shells in the 1960s to 1980s.70 The

evidence, Defendants claim, revealed:

(1) that there was no scientific article or study suggesting an asbestos-
related health risk to hunters in the relevant time period; and, more
broadly, (2) that scientific literature published in the relevant time
period considered products containing asbestos fibers “bound with
some sort of binder” to pose an insignificant risk of asbestos exposure.71

Much like the encapsulated asbestos welding rods considered in McKinney,

plaintiffs offered no state-of-the-art evidence revealing the hazards of embedding

asbestos within a shotgun shell.

Plaintiffs contend that “Illinois Courts have increasingly distanced from the

standards in McKinney by both clarifying and distinguishing McKinney over the

years.”72 Plaintiffs cite to Daniels v. ArvinMeritor73 and Johnson v. Edward Orton

Jr. Ceramic Fund,74 as examples of this distancing.75 Defendants assert that these

69
Def. Mot. at 6.
70
Trial Tr., 07/15/25, at 7:5-8, 20:13-21.
71
D.I. 376 (“Def. Reply”) at 1.
72
Id. at 4.
73
146 N.E. 3d 655 (Ill. App. 2019)
74
71 F.4th 601 (2023).
75
Pl. Resp. at 5-7.
13
cases merely reflect the application of the principles set forth in McKinney.76 While

this may be so, the Illinois Courts’ application of the principles announced in

McKinney assist this Court in resolving the motion.

In Daniels, the Illinois Appellate Court “considered McKinney and Woodill”

and concluded that “state of the art evidence is not wholly necessary where there is

evidence that the defendant knew or should have known that the injury may occur

if no warning is provided.”77 In Daniels, plaintiffs established that defendant “was

aware that end users used paint scrapers, wire brushes, and cutters to fit the gaskets

and remove packaging.”78 Testimony established that defendant “was aware of the

dangers of asbestos dust and that pipefitters manipulated John Crane’s encapsulated

asbestos in a manner that produced dust.”79 Here, too, the evidence established that

Defendants were aware of the dangers of asbestos when it included the substance

in its shotgun shells and were aware that the firing of the asbestos-containing

product produced dust.

In Johnson, the Seventh Circuit Court of Appeals commented that in

McKinney “the animating policy concern is to ensure that where the product

76
Def. Reply at n. 1.
77
Daniels, 146 N.E. 3d at 676.
78
Id. at 677
79
Id. (cleaned up).
14
possesses dangerous propensities and there is unequal knowledge with respect to

the risk of harm, the manufacturer, possessed of such knowledge, must warn of the

danger.”80 Further, “what a manufacturer knew of should have known is determined

by the present state of human knowledge at the time.”81 The defendant packaged

and delivered its product in vermiculite contaminated with asbestos.82 The Court

found “Orton should be held to an expert standard of knowledge with respect to the

packaging that it used to ship its pyrometric cones and to which it exposed

consumers such as Mr. Johnson.”83 Liability was imposed because “it was possible,

based on the present state of human knowledge, for Orton to know that the W.R.

Grace vermiculite was contaminated with asbestos.”84 “Orton should have known

of the contamination.”85

The Court has dedicated considerable time to evaluating the distinctions

between the cases cited by the parties. Of course, it is not difficult to assess what

is known within an industry at a particular time. There is no dispute here that, as

early as 1960, it was known that “raw” asbestos posed a danger to consumers. The

80
Johnson, 71 F.4th at 614 (cleaned up) (quoting Sollami v. Eaton, 772 N.E.2d 215,
219 (Ill. 2002)).
81
Id. (internal citations omitted).
82
Id. at 606.
83
Id. at 615.
84
Id.
85
Id.
15
challenge, of course, is determining what a manufacturer should have known. The

Court concludes that, under Illinois law, this is an intensely fact-specific question.

An application of the principles set forth in the cited cases applying Illinois law

supports the conclusion that Defendants should have known of the danger of their

asbestos-containing product.

First, it is important to understand the composition and dynamics of the

Remington shotgun shell. To formulate a basewad, a quantity of asbestos was

mixed with other materials and bound together by subjecting the mixture to intense

pressure.86 This bonding encapsulated the asbestos, creating a product that is

“distinctly different from . . . friable products in that you can’t crush it by hand.” 87

That encapsulated product is then subjected to a controlled explosion when fired

from a shotgun.88 When the shotgun’s trigger is pulled, the firing pin “hits the

bottom of the shotgun shell [and] ignites the gunpowder below” causing the

gunpowder to explode.89 The basewad prevents the shell from exploding; “it forces

the explosion up and out of the shell. And when that happens, you’re shooting

particulates and gases out of the nozzle of that gun and out of the chamber on the

86
Trial Tr., 07/15/25 at 31:8-13.
87
Id. at 31:15-17.
88
Id. at 34:2-7.
89
Id. at 34:9-17.
16
side of the gun over a thousand feet per minute.”90 The asbestos basewad was

manufactured to sit in the midst of this explosion to ensure projectiles were forced

down the barrel of the firearm at near supersonic speed.91 While a manufacturer

might not recognize that asbestos could be released from dropping or stepping on a

an asbestos-encapsulated welding rod, it is not surprising that this designed

explosion released asbestos to be breathed by a shooter.

At the time the asbestos-containing shotgun shells were manufactured, the

danger of airborne asbestos fibers was well understood. While Defendant’s might

not have known that their shells could release asbestos, they should have known.92

The trial record established that Defendants were the only ammunition

manufacturer to include asbestos within its basewads.93 It is, therefore, unsurprising

that there was no data demonstrating the safety – or danger – of this manufacturing

decision. But the Court does not read the Illinois cases on legal causation to allow

a Defendant to disregard readily foreseeable risks. Because Defendants have failed

to meet their burden by “show[ing] that there is no competent evidence upon which

90
Id. at 34:23-35:5.
91
Id. at 34:18-35:6.
92
Woodill, 402 N.E.2d at 198.
93
Trial Tr., 07/18/25, 61:4-8.
17
the verdict could reasonably be based,”94 their motion for a new trial on the basis of

“legal causation” is DENIED.

b. Cause in Fact

Defendants next argue that Plaintiff failed to produce evidence establishing

the frequency, regularity, and proximity of Mr. Schoepke’s exposure to asbestos

released from their shotgun shells.95 They assert:

Plaintiff only presented evidence that the shotgun shells were capable
of releasing asbestos fibers, without the requisite evidence that the
shells in fact released respirable fibers under circumstances such that
they would be “actually inhaled” by Mr. Schoepke outdoors, or that any
fibers potentially inhaled by Mr. Schoepke were any more than de
minimis.96

In response, Plaintiffs contend that the evidence adduced at trial satisfies the

“‘frequency, regularity, and proximity’ test which was adopted by the Illinois

Supreme Court in Thacker v. UNR Industries, Inc.”97 They argue,

the jury heard evidence that the normal and foreseeable use of
Defendants’ asbestos-containing shotgun shells causes respirable
asbestos fibers to be released, which fibers are released directly into the
breathing zones of shooters, in concentrations that are orders of
magnitude greater than what the shooters would have otherwise been
exposed to.98

94
Broughton v. Wong, 2018 WL 1867185, at *6 (Del. Super. Ct. Feb. 15, 2018).
95
Def. Mot. at 13.
96
Id. at 12-13.
97
Pl. Resp. at 9.
98
Id. at 17.
18
The parties’ written arguments99 mirror those made during trial, which the Court

denied.100 Nothing in the most recent briefing or argument compels the Court to

reach a different result; thus, the Court now reduces to writing the decision it issued

on the record at trial.

Plaintiffs chose to prove “cause in fact” under the “substantial factor” test. In

Thacker v. UNR Industries, Inc., the Illinois Supreme Court “rejected the argument

… that so long as there is any evidence that the injured [party] was exposed to a

defendant’s asbestos-containing product, there is sufficient evidence of cause in fact

to allow the issue of legal causation to go to the jury.”101 Instead, the Illinois

Supreme Court adopted the “‘frequency, regularity and proximity’ test as a means

by which an asbestos plaintiff can prove more than minimum contact to establish

that a specific defendant’s product was a substantial factor in being a cause in fact

of a plaintiff’s injury.”102

Under the Thacker test, Plaintiffs must show that Mr. Schoepke was exposed

to Defendants’ asbestos through proof that (1) he was regularly in an area where the

Defendants’ asbestos was presented and (2) he was, in fact, sufficiently close to this

99
D.I. 335, 337.
100
Trial Tr., 07/21/25 at 263:3-71:13.
101
Nolan v. Weil-McLain, 910 N.E.2d 549, 559 (Ill. 2009).
102
Id. at 558 (citing Thacker, 603 N.E.2d 449).
19
area so as to come into contact with the Defendants’ product.103 Under the frequency,

regularity, and proximity test, Illinois law does not require a plaintiff to prove “the

exact quantity of asbestos fibers a decedent was exposed to.”104

Defendants cite to Krumwiede v. Tremco, Inc.,105 a case decided by the

Appellate Court of Illinois, and a case in which Dr. Frank also testified, in support

of their position. In Krumwiede, “Dr. Frank offered almost no testimony or opinions

regarding decedent’s exposure to asbestos fibers from [the Defendant’s]

products.”106 Instead, relying on his own experience, Dr. Frank testified that “similar

products ‘can’ release fibers under some unknown set of circumstances and in some

unknown quantity or concentration.”107 And, as the Appellate Court of Illinois put

it, “noticeably absent from his testimony was any opinion that exposure to asbestos

from [Defendant’s] products was a ‘substantial’ factor in decedent’s development of

his disease.”108

103
Thacker, 603 N.3.2d at 457.
104
Zickuhr v. Ericsson, Inc., 962 N.E.2d 974, 987 (Ill. App. Ct. 2011).
105
148 N.E.3d 764 (Ill. App. Ct. 2020).
106
Krumwiede v. Tremco, Inc., 148 N.E.3d 764, 785 (Ill. App. Ct. 2020).
107
Id.
108
Id.
20
Such is not the case here. First, Dr. Frank relied on Dr. Compton’s work to

establish that Mr. Schoepke was exposed to asbestos.109 He testified, based on his

review of Dr. Compton’s study, that “the levels from the shotgun shells are many,

several orders of magnitude greater than background. They were short-term,

intermittent high-level exposures.”110 Unlike Krumwiede, here Dr. Frank’s opinion

was not based on his experience that certain products “can” release asbestos fibers

but grounded on the release of fibers revealed through Dr. Compton’s experiment.

Second, Dr. Frank opined that Mr. Schoepke’s exposure to asbestos from

Defendants’ shotgun shells was “the substantial factor in giving [Mr. Schoepke] th[e]

disease, which caused his death.”111 He did not, as Illinois law cautions against,

solely opine that every exposure to asbestos was the substantial causative factor in

Mr. Schoepke’s development of mesothelioma. And so, neither of the Krumwiede

Court’s concerns—concerns that necessitated judgment as a matter of law in favor

of those defendants—are present here.

Dr. Frank further based his “substantial factor” opinion on his understanding

of the frequency and regularity of Mr. Schoepke’s shooting. To do so, he reviewed

the depositions of Mr. Schoepke’s family members and concluded that Mr. Schoepke

109
Trial Tr., 07/14/25 (afternoon) at 7:18-8:18.
110
Id. at 54:13-16.
111
Id. at 15:12-14.
21
was “an avid hunter.”112 Dr. Frank understood that “at least 8 times a year [Mr.

Schoepke] would go out and hunt,” he “regularly used shotguns,” and that

“depending on what [Mr. Schoepke] was hunting … he might go through 8 or 10

shells, or he might go through a box or two, which would be 25 in a box.”113

Testimony also established that Mr. Schoepke would, for lack of a better term, target

shoot using field load shotgun shells.114

Viewing the evidence, and all reasonable inferences that may be drawn from

the evidence, in the light most favorable to the Plaintiffs, the Court finds there exists

a legally sufficient evidentiary basis for a reasonable jury to find for the Plaintiffs.115

Defendant’s motion for judgment as a matter of law on the issue of “cause in fact”

is DENIED.

c. DuPont Liability Established

Defendants next contend that “Plaintiff failed to introduce any evidence to

impose liability on DuPont for a product designed, manufactured, and sold by

Remington.”116 Plaintiffs respond that Defendants waived any challenge to

112
Id. at 13:5-12.
113
Id. at 13:12-14:2.
114
Id. at 14:3-8.
115
See LCT Capital, LLC, 249 A.3d at 88-90.
116
Def. Mot. at 22.
22
DuPont’s individual liability,117 and in any event, sufficient evidence was offered

supporting the jury’s finding of liability for both DuPont and Remington.118

Defendants, citing Jones v. McCook Drum & Barrell Co.,119 assert that a

“cause of action in products liability can only be directed against the manufacturer

of the [product] or some party in the distributive chain[.]”120 More recently, the

Illinois Supreme Court explained, “all manufacturers, wholesalers, and retailers in

the chain of distribution play an integral role in the overall producing and marketing

of the defective product, uniquely justifying the imposition of strict liability even if

they do not have a hand in its development or manufacture.”121

Here, the asbestos-containing shotgun shells used by Mr. Schoepke were

marketed and sold with Remington and DuPont markings.122 In fact, the two

companies were closely aligned in management and production.123 DuPont’s Oval

Trademark Product Seal of Approval was placed on, and remained on, the packaging

117
Pl. Resp. at 18.
118
Id. at 20.
119
595 N.E. 2d 670 (Ill. App. 1992).
120
Def. Mot. at 22 (quoting McCook Drum, 595 N.E. 2d at 674).
121
Cassidy v. China Vitamins, LLC, 120 N.E.3d 959, 968 (Ill. 2018) (cleaned up)
(internal citations omitted).
122
Trial Tr., 07/18/25, at 153: 3-6.
123
Trial Tr., 07/21/25 at 38:6-20.
23
of Remington asbestos-containing shotgun shells.124 That logo, with DuPont’s

permission, was located above the door at the Remington Bridgeport manufacturing

plant.125 DuPont engineer resource forces were stationed at the Bridgeport

manufacturing plant.126 The plastics and gunpowder used to make the Remington

shells came from DuPont.127 And a 1960 DuPont magazine advertised Remington

shotgun shells.128 The trial evidence revealed the operations of DuPont and

Remington to be inextricably intertwined, and a reasonable basis existed for a jury

to find DuPont was a manufacturer of the asbestos-containing shells.

Barbara Dawson testified as the corporate witness for DuPont, Remington,

and SPGI.129 She explained that DuPont acquired “a majority interest of

[Remington] in 1933. But the Remington identification was much more prominent

that the DuPont one on every package.”130 DuPont was founded in 1902 “as a

manufacturer of black powder, gun powder explosives.”131 Remington was founded

124
Trial Tr., 07/18/25, at 153:3-6.
125
Id. at 77: 4-15, 149:16-19.
126
Trial Tr., 07/18/25, at 77:16-18.
127
Trial Tr., 07/21/25, at 60:16-21, 60:22-23.
128
Trial Tr., 7/18/25, at 73:3-23.
129
Trial Tr., 07/21/25 at 14:7-8.
130
Id. at 32:10-13.
131
Id. at 34:6-7.
24
fourteen years later,132 and in 1933 DuPont acquired a controlling interest in

Remington.133 DuPont maintained a position of “management and control” of

Remington through the 1980s.134

Viewing the evidence, and all reasonable inferences that may be drawn from

the evidence, in the light most favorable to the Plaintiffs, the Court finds there exists

a legally sufficient evidentiary basis for a reasonable jury to find, based on DuPont’s

“co-branding” the shotgun shells with its distinctive logo, its ongoing management

and control of Remington, its advertising of the Remington shells in its annual

magazine, and its display of the DuPont logo on the exterior of the manufacturing

plant, DuPont liable, independent of Remington, for Mr. Schoepke’s injury.

Defendant’s motion for judgment as a matter of law on the issue of DuPont’s liability

is DENIED.

2. NEW TRIAL

As an alternative to judgment as a matter of law, Defendants assert that a new

trial should be granted because the Plaintiffs “invited the jury to speculate as to

whether shotgun shell use caused Mr. Schoepke’s mesothelioma,”135 and “invited

132
Id. at 34:20-22.
133
Id. at 35:1-3.
134
Id. at 38:6-20.
135
Def. Mot. at 25.
25
the jury to impose liability for failure to recall though defendants had no duty.”136

Plaintiffs contend these arguments lack merit.137

“Every analysis of a motion for a new trial must begin with the presumption

that the jury verdict is correct.”138 The jury verdict is entitled to “enormous

deference,” and should only be set aside if: the verdict “contradicts the great weight

of the evidence,” “the jury disregarded the applicable rules of law,” or “the jury’s

verdict is tainted by legal error committed by the trial court before or during the

trial.”139 Defendants’ contentions do not support granting a new trial.

a. Measurement of Asbestos Released by Shotgun Shells

Defendants challenge the methodology employed by Plaintiff to detect

asbestos fibers in the air following shotgun discharge.140 Defendants contend “the

AHERA/ISO-sized structures Plaintiff repeatedly referenced during trial are not

probative of the critical medical causation issue in this case.”141 But Dr. Compton

136
Id. at 29.
137
Pl. Resp. at 27, 29.
138
Envolve Pharmacy Solutions, Inc. v. Rite Aid Hdqtrs. Corp., 2023 WL 5604201,
at *10 (Del. Super. Ct. Aug. 30, 2023) (internal citations omitted).
139
Id. at *9 (internal citations omitted).
140
Def. Mot. at 25-28.
141
Def. Mot. at 28.
26
explained that the OSHA method proposed by the Defendants detects “only the tip

of the iceberg.”142 Further, he explained:

[T]he AHERA method is designed to use TEM to evaluate the presence
of asbestos in air. . . . It provides a useful tool to look at an air sample
and somewhat rapidly determine wither or not there are any asbestos
fibers there but at a level that’s higher magnification than PCM.

[W]ith PCM, you are counting only those fibers that are longer than
five micrometers, but with TEM and the AHERA method, you are
counting anything that’s longer than 0.5 micrometers in length. So it’s
a more total count in that respect. . . .143

And the fibers detected through Plaintiff’s methodology are “probative of the critical

medical causation issue in this case;”144 Dr. Frank testified that short fibers, not

visible under a light microscope, “are capable of producing disease.”145

To be sure, the parties disagreed on the methodology used by each to measure

airborne asbestos fibers generated by the firing of Defendants’ asbestos-containing

shotgun shells. Plaintiffs posited that Defendants employed a methodology which

underreported extant fibers and structures, while Defendants asserted Plaintiff’s

methodology generated results “untethered to any medical causation opinion.”146

But each party was afforded the opportunity to advance their respective theory

142
Trial Tr., 07/10/25 (morning) at 88:18-19.
143
Id. at 85:17-86:5.
144
Def. Mot. at 28.
145
Trial Tr., 07/14/25 (morning) at 82:3-4.
146
Def. Mot. at 25.
27
within the bounds of the law and each proffered relevant expert testimony to explain

the science behind the testing they performed.

b. Shotgun Cleaning

Defendants also contend that, by eliciting evidence of Mr. Schoepke’s gun

cleaning, Plaintiff “invited the jury to speculate that Mr. Schoepke was exposed to

asbestos from gun cleaning.”147 The Court allowed this evidence “to the extent that

there are personal observations they can testify to.”148 But the Court also clarified

with counsel that the evidence was of limited relevance and confirmed that there

would not be “any argument that somehow gun cleaning has any impact on this

particular individual’s development of mesothelioma.”149

The Court does not find Plaintiff’s evidence of Mr. Schoepke’s gun cleaning

warrants a new trial. To the extent the Court erred in admitting this evidence, Rule

61 squarely applies:

No error in either the admission or exclusion of evidence and no error
or defect in any ruling or order in anything done or omitted by the Court
or by any of the parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise disturbing a
judgment or order, unless refusal to take action appears to the Court
inconsistent with substantial justice.150

147
Id. at 28.
148
Trial Tr., 07/16/25 at 274:17-18.
149
Id. at 274:23-275:3.
150
Super. Ct. Civ. R. 61.
28
The Court finds Defendants suffered no prejudice from the admission of gun

cleaning evidence. The evidence, if improperly admitted, was harmless.151

c. “Recall”

Defendants contend Plaintiff’s argument that Defendant’s failed to “recall”

the shotgun shells “improperly invited the jury to impose liability on Defendants for

failing to recall the shotgun shells when there was no legal duty to do so (an essential

prerequisite for negligence liability).”152 Plaintiff responds that “recall” evidence

was properly offered to the jury and, to the extent it presented confusion, the Court’s

limiting instruction properly guided the jury’s use of the evidence.153

Defendants’ objected throughout trial to Plaintiff’s use of the word “recall” as

that word invokes a “regulatory process initiated by the CPSC” and “[t]here is no

such thing as a voluntary recall.”154 Recognizing the word “recall” has an industry-

specific meaning, and a more general meaning, the Court invited counsel to prepare

an instruction to properly guide the jury if the term was mentioned during trial.155

See Cohen-Thomas v. Lewullis, 2016 WL 721009, at *4 (Del. Super. Ct. Jan. 29,
151

2016).
152
Def. Mot. at 29.
153
Pl. Resp. at 32.
154
Trial Tr., 07/16/25 at 270:9-10.
155
Def. Mot., Ex. M; see Trial Tr., 07/16/25 at 271.
29
Each party provided the Court with a draft limiting instruction.156 From these

submissions, and based on extant law, the Court crafted an instruction informing the

jury that: “Under the law applicable to this case, there is no duty to recall a product

unless a statute or regulation requires the product to be recalled. In the absence of a

statutory or regulatory requirement, the term ‘recall’ must be assigned its commonly

understood meaning, ‘to call back.’”157

“A party is not entitled to a particular jury instruction but does have the

unqualified right to have the jury instructed on a correct statement of the substance

of the law.”158 To the extent Plaintiff may have sought to inject a duty upon

Defendants beyond that required by law, the Court’s instruction informed the jury

that, in the absence of a statute or regulation, Defendants owed no such duty. A new

trial is not warranted.

II. PREJUDGMENT INTEREST

Following the jury verdict, the Court entered judgment in favor of Plaintiffs

for $9,000,000.159 Plaintiffs then filed a “Motion to Alter or Amend Judgment to

156
Def. Mot., Ex. M.
157
Trial Tr., 07/22/25 (morning) at 135:7-12.
158
Express Scripts, Inc. v. Bracket Holdings Corp., 248 A.3d 824, 838 (Del. 2021)
(cleaned up).
159
D.I. 347
30
Include Pre-Judgment Interest.”160 Defendants oppose, arguing that Plaintiffs did not

request interest in their first filed complaint and that interest is not allowed under

Illinois law for survival actions.161

A. LEGAL STANDARD

“The recovery of prejudgment interest in Delaware is a matter of substantive

law.”162 And, the parties have agreed that Illinois substantive law applies.

Illinois law, 735 ILCS 5/2-1303(c), provides that “[i]n all actions brought to

recover damages for personal injury or wrongful death . . . the plaintiff shall recover

prejudgment interest on all damages, except punitive damages, sanctions, statutory

attorney’s fees, and statutory costs, set forth in the judgment.”163 Under Illinois law,

“[p]rejudgment interest . . . begin[s] to accrue on the date the action is filed. If the

plaintiff voluntarily dismisses the action and refiles, the accrual of prejudgment

interest shall be tolled from the date the action is voluntarily dismissed to the date

the action is refiled.”164 “[I]nterest is calculated at the rate of 6% per annum on the

amount of the judgment, minus punitive damages, sanctions, statutory attorney’s

160
Motion for Prejudgment Interest.
161
D.I. 377 (“Def. Resp.”) at 1-2
162
Cooper v. Ross & Roberts, Inc., 505 A.2d 1305, 1307 (Del. Super. Ct. 1986).
163
735 ILCS 5/2-1303(c).
164
Id.
31
fees, and statutory costs.”165 Where the language of a statute is clear, as is the case

with the Illinois’ statute providing for prejudgment interest, Courts have an

obligation to apply the statute.166

B. ANALYSIS

Defendants argue that, because Plaintiffs did not request prejudgment interest

in their original complaint, they are barred from seeking interest from the date of

that filing under 735 ILCS 5/2-604.2.167 Subsection (a) of that statute provides,

“[e]xcept in personal injury actions, every count in every complaint and

counterclaim must request specific remedies the party believes it should receive

from the court.”168 But subsection (c) states “[e]xcept in the case of default, the

remedies requested from the court do not limit the remedies available.”169 “Putting

these sections together suggests that the remedies requested in the complaint do not

limit the remedies available when a case is adjudicated on the merits.”170 It follows,

under 5/2-604.2, that Plaintiffs failure to request prejudgment interest in their

165
Id.
166
Cotton v. Coccaro, 236 N.E.3d 517, 537 (Ill. App. Ct. 2023).
167
Def. Resp. at 2.
168
735 ILCS 5/2-604.2(a).
169
735 ILCS 5/2-604.2(c).
See Schwartz v. Illinois Human Rights Commission, 256 N.E.3d 431, 456 (Ill.
170

App. Ct. 2024).
32
original complaint is not fatal, and “[p]rejudgment interest shall begin to accrue on

the date the action is filed.”171

Defendants next argue that Plaintiffs are not entitled to prejudgment interest

for survival actions.172 “The language of the statute is the best indication of

legislative intent, and courts give that language its plain and ordinary meaning.”173

Under the ordinary meaning of 5/2-1303(c), the statute applies to personal injury

actions.174 Personal injury actions that survive the decedent are actions to recover

damages, except actions to recover for slander and libel.175 Plaintiffs survival action

falls squarely within the class of actions subject to prejudgment interest.

Plaintiffs originally filed their complaint in Cook County Illinois on August

9, 2022.176 Plaintiffs filed a complaint in the Delaware Superior Court on September

7, 2023,177 and voluntarily dismissed the Illinois complaint on September 18,

171
735 ILCS 5/2-1303(c).
172
Def. Resp. at 3.
Kroft v. Viper Trans, Inc., 263 N.E.3d 1245, 1268 (Ill. App. Ct. 2025) (citing
173

Mosby v. Ingalls Memorial Hospital, 234 N.E.3d 110, 118 (Ill. 2023)).
174
735 ILCS 5/2-1303(c).
175
755 ILCS 5/27-6.
176
Motion for Prejudgment Interest, Ex. A (The Motion for Prejudgment Interest
states the Illinois complaint was filed on August 9, 2022. The attached Exhibit A
shows the Complaint was filed on May 16, 2023. Plaintiffs attached a copy of the
Revised Exhibit A showing the Original Complaint filed on August 9, 2022. See D.I.
387).
177
D.I. 1.
33
2023.178 Because the Delaware complaint was filed before the dismissal of the

Illinois case, interest is not tolled.179 And under 5/2-1303(c) interest begins to accrue

at 6% per annum on the date of filing – August 9, 2022 – and runs through entry of

judgment – August 1, 2025.180 Plaintiffs’ “Motion to Alter or Amend Judgment to

Include Pre-judgment Interest,” is GRANTED. The parties shall prepare a form of

final order of judgment consistent with this decision.

178
Id., Ex. B.
179
See 735 ILCS 5/2-1303(c).
180
735 Ill. Comp. Stat. Ann. 5/2-1303(c); Motion for Prejudgment Interest, Ex. A,
B; D.I. 1, D.I. 347.
34
CONCLUSION

The parties vigorously litigated the novel issue of whether exposure to an

asbestos-containing shotgun shell, through its firing, may serve as the cause for a

shooter’s mesothelioma. In the end, based on the facts presented, a jury of this Court

found that it could and found Remington and DuPont liable for the shooter’s – Mr.

Schoepke’s – injury and death. Defendants’ request for additional review under Rule

50 is understandable. But, having reviewed the evidence and arguments, the Court

finds the request must be denied. Similarly, to the extent Defendants wish to revisit

certain rulings in their motion for a new trial, applying the lens of Rule 59, that too

must fail. Finally, under Illinois law, the Court finds that Plaintiffs are entitled to

prejudgment interest as of the date of the original filing.

For the foregoing reasons, Defendants’ Motion for Judgment as a Matter of

Law Under Rule 50(b), or, in the Alternative, for a New Trial, is DENIED, and

Plaintiffs’ Motion to Alter or Amend Judgment to Include Pre-Judgment Interest is

GRANTED.

IT IS SO ORDERED.

_______________________
Sean P. Lugg, Judge

35