Dalton et al v. Buffalo Pumps Inc. et al

Filing 82

REPORT AND RECOMMENDATIONS- GRANTING 38 MOTION for Summary Judgment, GRANTING IN PART & DENYING IN PART 44 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court.( Objections to R&R due by 9/30/2013). Motions terminated as moot: 36 MOTION for Summary Judgment,, 37 MOTION for Summary Judgment, 40 MOTION for Summary Judgment. Signed by Judge Sherry R. Fallon on 9/12/2013. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

TOMMY CARROLL DALTON and,
SHIRLEY JEAN DALTON,
Plaintiffs,
v.

3M COMPANY, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Civil Action No. 10-113-SLR-SRF

REPORT AND RECOMMENDATION

I.

INTRODUCTION

Presently before the court in this diversity action are the motions for summary judgment
of Defendants Crane Co. ("Crane") (D.I. 44), and Foster Wheeler Energy Corporation ("Foster
Wheeler") (D.I. 38) (collectively, "Defendants"). 1 Tommy Carroll Dalton and Shirley Jean
Dalton (the "Plaintiffs") oppose Defendants' Motions. (D.I. 53) For the reasons which follow, I
recommend that the court GRANT Foster Wheeler's motion for summary judgment, and
GRANT IN PART and DENY IN PART Crane's motion for summary judgment.
II.

BACKGROUND

A. Procedural History

The Plaintiffs filed this action in the Superior Court of the State of Delaware on October
1, 2009. (D.I. 1, Ex. 1) On February 12,2010, the case was removed to the United States District
Court for the District of Delaware. (D.I. 1) The matter subsequently was transferred to the United
1

Defendants CBS Corporation ("Westinghouse"), Ingersoll-Rand Company, and Warren Pumps
LLC also filed motions for summary judgment. (D.I. 36, 40, 37) However, the court was advised
verbally that those parties subsequently settled with the Plaintiffs. (See 11127112 Tr. at 2, 26; D.I.
80) Therefore, their respective motions are moot.

States District Court for the Eastern District of Pennsylvania (the "MDL Court"), which oversees
the federal Multi-District Litigation Asbestos Docket. (D.I. 23) Following the close of discovery,
the Defendants filed motions for summary judgment.
The MDL Court found that there were issues of material fact in dispute concerning
product identification, and therefore, denied the Defendants' summary judgment motions. See
Dalton v. 3M Co. (Crane), 2011 WL 5881011, at *1 (E.D. Pa. July 29, 2011); Dalton v. 3M Co.
(Foster Wheeler), 2011 WL 5881178, at *I (E.D. Pa. July 29, 2011). In addition to denying the
motions, the MDL Court held that Mississippi law, rather than maritime law, governs this matter.
The MDL Court explained, "[m]aritime law does not apply in this case since Mr. Dalton did not
work on navigable waters and because the potential of any alleged exposures, which occurred on
land, to disrupt maritime commerce is too tenuous." Dalton v. 3M Co. (Crane), 2011 WL
5881011, at *1 n.l (citing Conner v. A/fa Laval, Inc., 799 F. Supp. 2d 455, 459 (E.D. Pa.
2011)). 2 "The alleged exposures which are relevant to this [case] occurred in Mississippi.
Therefore, this Court will apply Mississippi law .... " /d. Thereafter, Crane filed a motion for
reconsideration, arguing that maritime law should apply. The MDL Court denied Crane's
motion. (D.I. 77, Ex. B)
The MDL Court remanded the case back to this court, with the recommendation that the
matter be transferred to Mississippi, pursuant to 28 U.S.C. § 1404(a), because the Defendants
raised a particular defense that "is an unsettled issue of Mississippi law." See Dalton v. 3M Co.
(Crane), 2011 WL 5881011, at *1 n.l; Dalton v. 3M Co. (Foster Wheeler), 2011 WL 5881178,
at* 1 n.l.

2

See also Dalton v. 3M Co. (Foster Wheeler), 2011 WL 5881178, at * 1 n.l (citing Conner, 799
F. Supp. 2d at 459).

2

Foster Wheeler and Crane filed the pending motions for summary judgment on March 19,
2012, and March 29, 2012, respectively. (D.I. 38, 44) On May 1, 2012, United States District
Court Judge Sue L. Robinson referred this case to the undersigned, pursuant to 28 U.S.C. § 636,
to manage all pretrial proceedings up to and including the pretrial conference. (D.I. 62)
On November 27, 2012 this court held oral argument, and subsequently ordered the
parties to submit supplemental legal memoranda addressing: (1) the legal authority supporting
and opposing this court's reconsideration of the MDL Court's choice of law ruling, and (2) the
parties' respective positions on transferring venue in this case to Mississippi. (D.I. 74) The
parties filed their submissions with the court on December 12, 2012. (D.I. 75, 76, 77)

B. Facts
The Plaintiffs filed this personal injury action against Defendants Crane and Foster
Wheeler3 alleging that Tommy Carroll Dalton ("Mr. Dalton") developed mesothelioma as a
result of exposure to asbestos-containing products during his career at Ingalls Shipyard in
Pascagoula, Mississippi, from 1958 to 2000. (D.I. 1, Ex. 1 at 5) The Plaintiffs assert that the
Defendants manufactured, sold or distributed the products at issue, which were designed to
incorporate asbestos-containing gaskets, packing, and insulation. (Id, Ex. I at II-I2)
Mr. Dalton was deposed on January I3 and I4, 2012 in order to preserve his testimony
for trial, and for discovery purposes. (D.I. 53 at 2) Mr. Dalton testified that his asbestos exposure
occurred over a ten year period, from 1959 to I969, while employed at Ingalls Shipyard in the
Quality Assurance Department. (D.I. I, Ex. 3-I at 17-18) Mr. Dalton started as a Quality
Assurance ("QA") trainee before becoming a QA inspector in late I959. (Id, Ex. 3-2 at 39-41)
He worked as a QA inspector for approximately four years, where he inspected the installation,
3

The Plaintiffs named in the Complaint a number of additional defendants that have since been
terminated from this action. (D .I. 1, Ex. 1)

3

testing and maintenance ofpiping and machinery for submarines. (Id, Ex. 3-2 at 39-41; Jd, Ex.
3-1 at 18-21) The machinery equipment included turbines, steam generators, pumps and valves.
(Id, Ex. 3-1 at 23) Later, from 1964 to 1969, Mr. Dalton was a QA manager. (Id, Ex. 3-2 at 61)

As a QA manager, Mr. Dalton oversaw the Quality Assurance program on submarines being
built and supervised the QA inspectors. (!d., Ex. 3-2 at 60-62)
1. Defendant Foster Wheeler

Mr. Dalton identified Foster Wheeler as a brand of steam generators (or "boilers") that
were present at Ingalls Shipyard. (!d., Ex. 3-3 at 220-21; !d., Ex. 3-1 at 48) Foster Wheeler's
steam generators arrived at the shipyard "bare metal," with nothing attached to them and no
insulation. (!d., Ex. 3-3 at 194, 223-26) External asbestos insulation was applied to the steam
generators after they were installed upon ships. (!d., Ex. 3-3 at 223; !d., Ex. 3-1 at 41-45) Mr.
Dalton was present during the insulation process, which generated asbestos dust. (!d., Ex. 3-1 at
42-43)
2. Defendant Crane

Mr. Dalton identified Crane as a brand of pumps and valves that were present at Ingalls
Shipyard. (!d., Ex. 3-1 at 39, 59) He testified about the products, individually.

i.

Crane Valves

Crane valves arrived at Ingalls Shipyard bare metal, with nothing attached to them and no
insulation. (Id, Ex. 3-2 at 138) External asbestos insulation was added to Crane valves after they
were installed upon vessels, and Mr. Dalton was exposed to this insulation. (!d., Ex. 3-1 at 49-53;
!d., Ex. 3-2 at 145) The Plaintiffs admit that Crane did not supply the external asbestos insulation

applied to its valves. (See 11127112 Tr. at 38) Apart from the outer insulation on Crane valves,
there was nothing in the valves that Mr. Dalton associated with asbestos. (D.I. I, Ex. 3-2 at 146)

4

The body of the valve was made of metal, and only the insulation, not the inner packing or
gaskets, caused Mr. Dalton to be exposed to asbestos. (!d., Ex. 3-2 at 156-57)
ii.

Crane Pumps

Crane pumps, like Crane valves, arrived at the shipyard bare metal, without external
insulation. (!d., Ex. 3-2 at 161) External asbestos insulation was added to Crane pumps after they
were installed upon vessels. (!d., Ex. 3-1 at 26-30, 39; !d., Ex. 3-2 at 161) The Plaintiffs admit
that Crane did not supply the external asbestos insulation. (See 11127112 Tr. at 38) Mr. Dalton
was present during the insulation process, which created asbestos dust. (D.I. 1, Ex. 3-1 at 27-28)
Mr. Dalton testified that Crane pumps were installed upon "all of [the ships]" on which
he worked. (!d., Ex. 3-2 at 159, 161-62; !d., Ex. 3-1 at 19-20, 23-24, 39) When pumps failed
inspection, they required removal and replacement of their internal gaskets and/or packing. (!d.,
Ex. 3-1 at 28-29; !d., Ex. 3-2 at 161-62) According to Mr. Dalton, the internal gaskets and
packing were made out of asbestos. (!d., Ex. 3-1 at 36-37). Mr. Dalton was present during the
pump repair process, and testified that the removal and replacement of gaskets and packing from
failed pumps generated asbestos dust. (!d., Ex. 3-1 at 30-33) Mr. Dalton remembered having
repaired Crane pumps specifically, but did not recall whether he had worked with the packing
inside Crane pumps. (!d., Ex. 3-2 at 159, 161-62)

III.

LEGALSTANDARD
"The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine
issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.IO
(1986). "Facts that could alter the outcome are 'material,' and disputes are 'genuine' if evidence

5

exists from which a rational person could conclude that the position of the person with the
burden of proof on the disputed issue is correct." Horowitz v. Fed Kemper Life Assurance Co.,
57 F .3d 300, 302 n.l (3d Cir. 1995) (citations omitted). In determining whether a genuine issue
of material fact exists, "the court must draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or weigh the evidence." Reeves v.

Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000) (citing Lytle v. Household Mfg., Inc., 494
U.S. 545, 554-55 (1990)).
If the moving party has demonstrated an absence of material fact, the nonmoving party
then "must come forward with 'specific facts showing that there is a genuine issue for trial."'

Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e)). The court will "view the underlying
facts and all reasonable inferences therefrom in the light most favorable to the party opposing the
motion." Pa. Coal Ass 'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The mere existence of some
evidence in support of the nonmoving party, however, will not be sufficient for denial of a
motion for summary judgment; there must be enough evidence to enable a jury reasonably to
find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of
its case with respect to which it has the burden of proof, the moving party is entitled to judgment
as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
IV.

DISCUSSION
A. Preliminary Issues

The court must resolve the preliminary issues of transfer of venue and choice of law
before addressing the substantive merits of Defendants' motions for summary judgment. The

6

court, through its November 28, 2012 Order, provided the parties with an opportunity to assert
their respective positions on these matters. (D.I. 74)
1. Transfer of Venue

The transfer of venue issue stems from a recommendation by the MDL Court that this
court transfer the present case to Mississippi, on the ground that Mississippi courts have not yet
addressed a particular defense raised by the Defendants in the context of asbestos litigation. 4 The
Plaintiffs oppose transfer of venue to Mississippi and insist that this matter remain in the District
of Delaware. (D.I. 77 at 4-5) Foster Wheeler similarly maintains that "this case is properly before
the Court." (D.I. 75 at 5) In addition, the Plaintiffs and Foster Wheeler note that, notwithstanding
the MDL Court's transfer recommendation, the parties to this litigation have neither contested
federal jurisdiction nor requested transfer of venue. (/d.; D.I. 77 at 4) Crane takes no position on
transfer of venue and defers to the court's discretion. (D.I. 76 at 3)
Transfer of venue is governed by 28 U.S.C. § 1404. Section 1404(a) provides: "For the
convenience of parties and witnesses, in the interest of justice, a district court may transfer any
civil action to any other district or division where it might have been brought or to any district or
division to which all parties have consented." 28 U.S.C. § 1404(a). This provision "was intended
to vest district courts with broad discretion to determine, on an individualized, case-by-case
basis, whether convenience and fairness considerations weigh in favor of transfer." Jumara v.
State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir. 1995) (citing Stewart Org. v. Ricoh Corp., 487
U.S. 22, 30-31 (1988)).

4

See Dalton v. 3M Co. (Crane), 2011 WL 5881011, at *1 ("As Mississippi courts have not
addressed the bare metal defense in the asbestos context, this Court will remand that issue to the
transferor court with the suggestion that the case be transferred to Mississippi .... ").

7

In the present case, transfer of venue would not meaningfully advance the litigation. The
parties have expressed that they disfavor or hold no firm position on transferring this case to
Mississippi, notwithstanding the MDL Court's suggestion. Therefore, I recommend that this
matter remain in the District of Delaware.
2. The MDL Court's Choice of Law Ruling
The MDL Court determined that Mississippi law, rather than maritime law, applies in this
matter because "[t]he alleged exposures which are relevant to this [case] occurred in
Mississippi." Dalton v. 3M Co. (Crane), 2011 WL 5881011, at *1 n.l. Foster Wheeler does not
contest the MDL Court's determination. 5 (D.I. 75 at 1) However, Crane argues the choice of law
ruling is erroneous because "subsequent opinions demonstrate that the MDL [] Court would now
reach a different result and apply maritime law to Plaintiffs' claims." (D.I. 76 at 3) The Plaintiffs
counter that Crane's argument "is an improper attempt to rehear an issue settled by the MDL
court." (D.I. 53 at 18) The Plaintiffs cite the MDL Court's order denying Crane's motion for
reconsideration and emphasize the MDL Court's rationale that its choice of law ruling "was
based on 'the facts of this case."' (D.I. 77 at 3; Id, Ex. B)
I recommend that the court decline to reconsider the MDL Court's decision and follow
its choice of law ruling, pursuant to the law of the case doctrine. "As most commonly defined,
the doctrine posits that when a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case." 6 Arizona v. California, 460 U.S.
5

Foster Wheeler notes that it "did not move for summary judgment under maritime law, nor
argue that the MDL Court erred in determining that federal maritime law was inapplicable." (D.I.
75 at 1) According to Foster Wheeler, the principles of maritime law and Mississippi law, as
applied to Plaintiffs' claims, are identical, and neither body of law subjects Foster Wheeler to
liability. (!d.)
6

This court similarly has held that "'judges of coordinate jurisdiction sitting [in] the same court
and in the same case should not overrule the decisions of each other.'" Coca-Cola Bottling Co. v.
8

605, 816 (1983) (citation omitted). "The '[l]aw of the case rules have developed to maintain
consistency and avoid reconsideration of matters once decided during the course of a single
continuing lawsuit."' In re Pharm. Benefit Managers Antitrust Litig., 582 F.3d 432, 439 (3d Cir.
2009) (alteration in original) (quoting Casey v. Planned Parenthood ofSe. Pa., 14 F.3d 848, 856
(3d Cir. 1994)). The Third Circuit has observed that the law of the case doctrine '"is particularly
applicable to multidistrict litigation in which the presence of a large number of diverse parties
might otherwise result in constant relitigation of the same legal issue. "' 7 In re Pharm. Benefit
Managers, 582 F.3d at 443 (citation omitted). "[A] 'Return to Go' card [should not] be dealt to
parties involved in MDL transfers." 8 !d. at 441.
Importantly, the law of the case doctrine "does not restrict a court's power but rather
governs its exercise of discretion."' !d. (quoting Pub. Interest Research Grp. v. Magnesium
Elektron, 123 F.3d 111, 116 (3d Cir. 1997)). The Supreme Court has explained, in this regard,
[a] court has the power to revisit prior decisions of its own or of a coordinate
court in any circumstance, although as a rule courts should be loathe to do so in
the absence of extraordinary circumstances such as where the initial decision was
clearly erroneous and would make a manifest injustice.
Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816 (1988) (citing Arizona, 460 U.S.
at 618 n.8). The Third Circuit has "recognized several [additional] 'extraordinary circumstances'
that warrant a court's reconsideration of an issue decided earlier in the course of litigation." Pub.

Coca-Cola Co., 769 F. Supp. 671, 703 (D. Del. 1991) (quoting TCF Film Corp. v. Gourley, 240
F.2d 711,713 (3dCir. 1957)).
7

See also Hayman Cash Register Co. v. Sarokin, 669 F.2d 162, 169 (3d Cir. 1982) ("A
disappointed litigant should not be given a second opportunity to litigate a matter that has been
fully considered by a court of coordinate jurisdiction, absent unusual circumstances.").
8

The Third Circuit in In re Pharm. Benefit Managers found "nothing in the text of 28 U.S. C. §
1407, the Multidistrict litigation transfer statute, that authorizes a transferee judge to vacate or
modify an Order of a transferor judge." In re Pharm. Benefit Managers, 582 F.3d at 440.

9

Interest Research Grp., 123 F.3d at 116-17. Specifically, the law of the case doctrine "does not
preclude a court from revisiting its own decisions or one of a coordinate court where (1) new
evidence is available or (2) a supervening new law has been announced." 9 In re Pharm. Benefit

Managers, 582 F.3d at 439 (citing Pub. Interest Research Grp., 123 F.3d at 117).
In the present case, Crane does not assert an extraordinary circumstance that warrants
reconsideration of the MDL Court's choice of law ruling and, therefore, the court should apply
Mississippi law. According to Crane, the MDL Court's ruling is "clear error" (D.I. 76 at 1)
because "subsequent opinions demonstrate that the MDL [] Court would now reach a different
result and apply maritime law to Plaintiffs' claims." (Id at 3) Crane's argument is not
persuasive, for several reasons.
Crane fails "to persuade [the court] not only that [the MDL Court's] prior decision (is]
wrong, but that it [is] clearly wrong." In re City of Phila. Litig., 158 F.3d 711, 720-21 (3d Cir.
1998). Crane relies erroneously upon Deuber v. Asbestos Corp. Ltd, 2011 WL 6415339 (E.D.
Pa. Dec. 2, 2011 ), among other cases, to convince this court "that the MDL [] Court would now
reach a different result" and find that maritime law applies. (D.I. 76 at 3) In Deuber, the MDL
Court held that maritime law applied to the plaintiff's claims of asbestos exposure from
insulation on ships docked at a shipyard. See Deuber, 2011 WL 6415339, at *1. According to
Crane, "Mr. Dalton's alleged exposures are factually indistinguishable from those in Deuber,"
and "[a]s such, under established precedent, maritime law applies." (D.I. 44 at 6) Notably,
however, the MDL Court entered an Order denying Crane's motion for reconsideration, which
9

The Third Circuit has been "careful to caution that if a 'trial judge decides to change or explain
an earlier ruling, he should state his reasons on the record' and also 'take appropriate steps so
that the parties are not prejudiced by reliance on the prior ruling.'" In re Pharm. Benefit
Managers Antitrust Litig., 582 F.3d at 439 (quoting Swietlowich v. County of Bucks, 610 F.2d
1157, 1164 (3d Cir. 1979)).

10

argued that maritime law should apply in this case, more than one month after issuing Deuber. 10
(See D.I. 77, Ex. B) Therefore, no compelling reasons favor disturbing the MDL Court's ruling
on the choice of law issue.
Furthermore, even assuming, arguendo, that the MDL Court's ruling is erroneous, Crane
fails to explain why or even assert that "adherence to [the MDL Court's] decision would create
manifest injustice."" In re City ofPhila. Litig., 158 F.3d at 720-21.
As the Supreme Court has explained, reconsideration of a prior decision is warranted
only where the decision is both erroneous and creates manifest injustice. See Christianson, 486
U.S. at 816. In the present case, Crane has not established either element. Moreover, the Third
Circuit has held that:
Adherence to law of the case principles is even more important in this
context where the transferor judge and the transferee judge are not members of
the same court. Here, the principles of comity among courts of the same level of
the federal system provide a further reason why the transferee court should not
independently re-examine an issue already decided by a court of equal authority.
Hayman Cash Register Co., 669 F.2d at 169 (emphasis added) (citations omitted). Thus, the
court should decline to reconsider the MDL Court's ruling, and apply Mississippi law.
B. Mississippi Law

A federal court sitting in diversity is "required to apply the substantive law of the state
whose laws govern the action." Robertson v. Allied Signal, 914 F.2d 360, 378 (3d Cir. 1990).

10

The MDL Court issued Deuber on December 2, 2011, and denied Crane's motion for
reconsideration on January 3, 2012 (D.I. 77, Ex. B).
11

In fact, Crane's own assertions undermine the notion that application of Mississippi law in this
case would create manifest injustice. Crane's asserts, albeit with respect to transfer of venue, that
"maritime law should be applied to Plaintiffs' claims, so the issue of whether to transfer venue to
Mississippi should be moot. Regardless, Mississippi law is in accord with maritime law, and this
Court can interpret Mississippi law on the relevant issues the same as a district court sitting in
Mississippi." (D.I. 76 at 3 (emphasis added))

11

Mississippi law governs the pending action, consistent with the MDL Court's determination. "In
the absence of controlling authority by the [Mississippi] Supreme Court, we must predict how it
would rule if faced with the issue." Lomando v. United States, 667 F.3d 363, 385 (3d Cir. 2011)
(citing Spence v. ESAB Grp., Inc., 623 F.3d 212,216 (3d Cir. 2010)).
1. The Bare Metal Defense

In the present case, the Defendants assert that they cannot be held liable for Mr. Dalton's
injuries because they neither manufactured nor supplied the products that allegedly caused Mr.
Dalton to become exposed to asbestos. This proposition is known commonly as the "bare metal
defense." 12 See Conner, 842 F. Supp. 2d at 793. The bare metal defense relates to defendants in
asbestos cases that "manufactured so-called 'bare-metal' products that contained or were later
encapsulated in asbestos." !d. The defense shields manufacturers from liability "for injuries
caused by asbestos components, such as insulation, gaskets, and packing, that were incorporated
into their products or used as replacement parts, but which they did not manufacture or
distribute." !d. at 796.
The majority of courts embrace the principles of the bare metal defense and refuse to
impose liability upon manufacturers for the dangers associated with asbestos-containing products
manufactured and distributed by other entities. See, e.g., Lindstrom v. A -C Prod. Liab. Trust, 424
F.3d 488, 495 (6th Cir. 2005); Conner, 842 F. Supp. 2d at 801; Surre v. Foster Wheeler LLC,
831 F. Supp. 2d 797, 801 (S.D.N.Y. 2011); Niemann v. McDonnell Douglas Corp., 721 F. Supp.
1019, 1030 (S.D. Ill. 1989); O'Neil v. Crane Co., 266 P.3d 987, 997-98 (Cal. 2012); Taylor v.
Elliott Turbomachinery Co., 90 Cal. Rptr. 3d 414, 429 (Cal. Ct. App. 2009); In re Asbestos Litig.
(Howton), 2012 WL 1409011, at *1 (Del. Super. Ct. Apr. 2, 2012); In re Asbestos Litig. (Wolfe),
12

The bare metal defense is also referred to as the "component parts defense." See In re Asbestos
Litig. (Howton), 2012 WL 1409011, at* 1 (Del. Super. Ct. Apr. 2, 2012).

12

2012 WL 1415706, at *3-4 (Del. Super. Ct. Feb. 28, 2012); Rumery v. Garlock Sealing Techs.,
2009 Me. Super. LEXIS 73 (Me. Super. Ct. Apr. 24, 2009); Braaten v. Saberhagen Holdings,
198 P.3d 493, 498-99 (Wash. 2008); Simonetta v. Viad Corp., 197 P.3d 127, 134-135 (Wash.
2008).
Mississippi courts have not addressed the issue of whether manufacturers may be held
liable for injuries caused by asbestos-containing products they did not manufacture or supply.
See, e.g., Dalton v. 3M Co. (Crane), 2011 WL 5881011, at *1 n.l (explaining that the "bare
metal defense is an unsettled issue of Mississippi law"). Therefore, this court must predict how
the Supreme Court of Mississippi would rule on the issue. See Lomando, 667 F.3d at 385.
In making this prediction, we look to "decisions of state intermediate appellate
courts, of federal courts interpreting that state's law, and of other state supreme
courts that have addressed the issue," as well as to "analogous decisions,
considered dicta, scholarly works, and any other reliable data tending
convincingly to show how the highest court in the state would decide the issue at
hand."
Jd. (quoting Spence, 623 F.3d at 216-17). See also Norfolk S. Ry. Co. v. Basel! USA Inc., 512

F.3d 86, 91-92 (3d Cir. 2008). "'[R]elevant state precedents must be scrutinized with an eye
toward the broad policies that informed those adjudications, and to the doctrinal trends which
they evince.'" Holmes v. Kimco Realty Corp., 598 F.3d 115, 118 (3d Cir. 2010) (alteration in
original) (quoting McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662 (3d Cir. 1980)). As set
forth below, there are two areas of Mississippi law that provide guidance in determining whether
the Mississippi Supreme Court would adopt the bare metal defense.
2. Product Identification Under Mississippi Law

In asbestos litigation in Mississippi, the "frequency, regularity, and proximity" standard
is used '"to show product identification of the defendants' actual products, exposure of the
plaintiffs to those products, and proximate causation as to the injuries suffered by the plaintiffs."'

13

Phillips 66 Co. v. Lofton, 94 So. 3d 1051, 1063 (Miss. 2012) (quoting Monsanto Co. v. Hall, 912
So. 2d 134, 137 (Miss. 2005)). In order to survive a motion for summary judgment in asbestos
litigation, the plaintiff must show: ( 1) he was exposed to a particular asbestos-containing product
made by the defendant, (2) with sufficient frequency and regularity, (3) in proximity to where the
plaintiff actually worked, (4) such that it is probable that the exposure to the defendant's product
caused the plaintiff's injuries. Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 757 (Miss. 2005). See
also Monsanto, 912 So. 2d at 136-37. The MDL Court applied this standard and determined
there are genuine issues of material fact in dispute relative to the liability of Crane and Foster
Wheeler. See Dalton v. 3M Co. (Crane), 2011 WL 5881011, at* 1 n.l; Dalton v. 3M Co. (Foster
Wheeler), 2011 WL 5881178, at *I n.l.

3. Product Liability Actions Under Mississippi Law
An analysis of current product liability law in Mississippi serves as a benchmark for
determining whether the principles of the bare metal defense comport with controlling
jurisdictional authority.
Product liability actions in Mississippi are governed by the Mississippi Products Liability
Act ("MPLA"), Miss. Code Ann. § 11-1-63, which provides, in pertinent part:
(a) The manufacturer or seller of the product shall not be liable if the claimant
does not prove by the preponderance of the evidence that at the time the product
left the control of the manufacturer or seller:
(i) 1. The product was defective because it deviated in a material way from the
manufacturer's specifications or from otherwise identical units manufactured to
the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate
warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other
express factual representations upon which the claimant justifiably relied in
electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to
the user or consumer; and

14

(iii) The defective and unreasonably dangerous condition of the product
proximately caused the damages for which recovery is sought.
Miss. Code Ann. § 11-1-63(a). The Supreme Court of Mississippi has summarized this rule as
follows:
A plaintiff has the burden of showing that the defect that allegedly was the
proximate cause of injury existed at the time that the product left the hands of the
manufacturer, and that the defect rendered the product unreasonably dangerous.
Accordingly, the proof must support that no material change in that product
occurred after leaving the manufacturer's control.
Clark v. Brass Eagle, Inc., 866 So. 2d 456, 461 (Miss. 2004). See also 3M Co. v. Johnson, 895
So. 2d 151, 165 (Miss. 2005).
Mississippi follows the strict liability approach for defective products set forth in
Restatement (Second) of Torts § 402A. See, e.g., Scardino v. Hopeman Bros., 662 So. 2d 640,
642 (Miss. 1995); Coca Cola Bottling Co. v. Reeves, 486 So. 2d 374, 377 (Miss. 1986); State
Stove Mfg. Co. v. Hodges, 189 So. 2d 113, 118 (Miss. 1966), cert. denied, 386 U.S. 912 (1967).
Section 402A defines who may be liable for a defective product as follows:
(1) One who sells any product in a defective condition unreasonably
dangerous to the user or consumer or to his property is subject to liability for
physical harm thereby caused to the ultimate user or consumer, or to his property,
if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold.
Restatement (Second) of Torts § 402A. "The statement of the rule makes it obvious that strict
liability for injury caused by a defective product is not to be imposed on one who neither
manufactures nor sells the products." 13 Harmon v. National Auto. Parts Ass'n, 720 F. Supp. 79,
13

This rationale applies equally in the context of negligent design/manufacture claims, where a
product's design or manufacturing defect causes injury. See Harmon, 720 F. Supp. at 80 ("[l]t is
[] clear that liability for the negligent design or manufacture of a product ordinarily cannot be
imposed on one who neither designed nor manufactured the product." (citing State Stove Mfg.
Co., 189 So. 2d at 118)).

15

80 (N.D. Miss. 1989). See also Scardino, 662 So. 2d at 643 ("The applicability of the strict
liability doctrine depends upon, among other things, whether the defendant is a manufacturer 14 or
seller 15 in the business of selling a defective product." (citing Harmon, 720 F. Supp. at 80)). The
rationale underlying strict liability in§ 402A is that:
[T]he seller, by marketing his product for use and consumption, has undertaken
and assumed a special responsibility toward any member of the consuming public
who may be injured by it; that the public has the right to and does expect, in the
case of products which it needs and for which it is forced to rely upon the seller,
that reputable sellers will stand behind their goods; that public policy demands
that the burden of accidental injuries caused by products intended for
consumption be placed upon those who market them, and be treated as a cost of
production against which liability insurance can be obtained; and that the
consumer of such products is entitled to the maximum of protection at the hands
of someone, and the proper persons to afford it are those who market the products.
§ 402A cmt. c.
In the present case, the Plaintiffs assert that the Defendants are liable for Mr. Dalton's
injuries for inadequate warning/failure to warn, under Miss. Code Ann. § 11-1-63(a)(i)(2). (D.I.
1,Ex.1 at 11-12; D.I. 53 at 1-2)
A product may be found defective under Mississippi law if it "fail [s] to contain adequate

14

A manufacturer "is a person or company 'who regularly, and in the course of their principal
business, create[s], assemble[s] and/or prepare[s] goods for sale to the consuming public."'
Scardino, 662 So. 2d at 645 (quoting Olson v. Ulysses Irrigation Pipe Co., 649 F. Supp. 1511
(D. Kan. 1986)). See also Lawson v. Honeywell Int '1, Inc., 75 So. 3d I 024, 1028-29 (Miss.
2011). "In other words a manufacturer produces goods as a principal part of its business and sells
them either directly or for resale to the consuming public." Id
15

A seller is "a person who sells or contracts to sell goods." Scardino, 662 So. 2d at 643 (citing
Volkswagen of America, Inc. v. Novak, 418 So. 2d 801, 804 (Miss. 1982)). The Restatement
"further defines a seller as any person engaged in the business of selling products for use or
consumption. It is not necessary that the seller be engaged solely in the business of selling a
specific product; however, the seller must not be an occasional seller of the product." Id (citing
Restatement (Second) of Torts § 402A cmt. f).

16

warnings." 16 Miss. Code Ann. § 11-1-63(a)(i)(2). Therefore, manufacturers and sellers have "a
duty, as a matter of law, to warn of any known hazards" associated with their products. Scardino,
662 So. 2d at 646 (citing Swan v. !P., Inc., 613 So. 2d 846 (Miss. 1993)).
To establish the existence of a product defect based on inadequate warning, the plaintiff
must show that at the time the product left the control of the manufacturer or seller: (1) "the
manufacturer or seller knew or in light of reasonably available knowledge should have known
about the danger," and (2) "that the ordinary user or consumer would not realize its dangerous
condition." Miss. Code. Ann. § 11-1-63(c)(i). Additionally, the plaintiff in a failure to warn case
"must prove that the alleged defective warnings rendered the product unreasonably dangerous to
the user or consumer; and that this condition proximately caused the damages for which recovery
is sought." 3M Co. v. Johnson, 895 So. 2d at 166 (citing Miss. Code Ann.§ 11-1-63(a)(ii)-(iii)).
A key element of causation for a failure-to-warn claim is proof of a causal link
between the plaintiffs' injuries and the product's allegedly lacking a warning or
having an inadequate warning. In other words, the failure to warn must be the
17
proximate cause of the injuries suffered or it is irrelevant.
/d. (citing Garner v. Santoro, 865 F.2d 629, 641, 642 (5th Cir. 1989)).

A claim for failure to warn may be based on the theory of negligence or strict liability in
tort. 0 'Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526, 535 (Miss. Ct. App. 2000). "The

16

See also Swan v. JP., Inc., 613 So. 2d 846, 852 (Miss. 1993) ("Lack of an adequate warning is
a defect which makes a product unreasonably dangerous for strict liability purposes." (citations
omitted)). The MPLA defines an adequate warning as
one that a reasonably prudent person in the same or similar circumstances would
have provided with respect to the danger and that communicates sufficient
information on the dangers and safe use of the product, taking into account the
characteristics of, and the ordinary knowledge common to an ordinary consumer
who purchases the product[.]
Miss. Code Ann.§ ll-I-63(c)(ii).
17

In 3M Co. v. Johnson, the court rejected the plaintiffs' failure to warn claim because they "did
not demonstrate that any 'missing' warning caused the injury."3M Co. v. Johnson, 895 So. 2d at
166.
17

strict liability in tort theory is derived from State Stove Manufacturing Co. v. Hodges, and
section 402A of the Restatement (Second) of Torts. The negligence theory is derived from
section 388 of the Restatement (Second) of Torts." ld. By proving the required elements in a
failure to warn cause of action,
the plaintiff is in effect proving that the defendant was negligent in its failure to
warn. Hence, even though the cause of action for failure to warn could be based
on negligence or strict liability in tort, the two theories, while conceptually
different, often merge into a single breach of duty.
I d. (citation omitted).

Mississippi courts recognize that a manufacturer's duty to warn is not unlimited.
The Mississippi Product Liability Act speaks only of dangers known as of
the time the product leaves the control of the manufacturer or seller. Creating a
post-sale duty to warn appears to conflict with the language of this statute. The
legislature has not revised the statute in question and in the absence of such
revision, we will not now create a post-sale duty to warn.

Noah v. GMC, 882 So. 2d 235, 239 (Miss. Ct. App.) (citation omitted), cert. denied, 882 So. 2d
772 (Miss. 2004). See also Murray v. GM, L.L.C., 478 Fed. Appx. 175, 182 (5th Cir. 2012)
(explaining that there is "no post-sale duty to warn under Mississippi law").
4. The Bare Metal Defense Under Mississippi Law

Based upon Mississippi's product liability statute, Section 402A, and case authority, it is
reasonably likely that the Supreme Court of Mississippi would follow the majority of
jurisdictions that have refused to find defendants liable for other manufacturers' asbestos
products. 18 See, e.g., Murray, 4 78 Fed. Appx. at 182 (observing that there is "no post-sale duty to
warn under Mississippi law"); Scardino, 662 So. 2d at 643 (explaining that "strict liability []
depends upon[] ... whether the defendant is a manufacturer or seller in the business of selling a

18

It should be noted that Plaintiffs offer no argument as to why Mississippi would not follow the
majority trend.

18

defective product"); Harmon, 720 F. Supp. at 80 (holding that "strict liability for injury caused
by a defective product is not to be imposed on one who neither manufactures nor sells the
products"). Indeed, the Supreme Court of Mississippi has observed that the purpose of imposing
liability for defective products "'is to insure that the costs of injuries resulting from defective
products are borne by the manufacturers that put such products on the market rather than by the
injured persons who are powerless to protect themselves."' State Stove Mfg. Co., 189 So. 2d at
120 (quoting Greenman v. Yuba Power Prods., Inc., 377 P.2d 897, 901 (Cal. 1963)). Given
Mississippi's existing case authority, and the persuasive weight of decisions from other
jurisdictions declining to impose liability, the Supreme Court of Mississippi would likely find
that a manufacturer is not subject to a duty to warn or protect against hazards arising from a
product it did not manufacture, supply, or sell.
C. Analysis of the Defendants' Summary Judgment Motions

1.

Defendant Foster Wheeler

Previously, the MDL Court denied Foster Wheeler's motion for summary judgment,
relative to product identification and causation, on the ground that Plaintiffs had "raised a
genuine issue of material fact as to whether Mr. Dalton was frequently and regularly exposed to
asbestos from Foster Wheeler steam generators." Dalton v. 3M Co. (Foster Wheeler), 2011 WL
5881178, at

*1

n.1. However, the MDL Court remanded to this court the issue of whether

Mississippi would recognize the bare metal defense. Id As it has been determined that the
Mississippi Supreme Court would likely adopt the bare metal defense, the relevant inquiry
becomes whether that defense shields Foster Wheeler from liability. Consequently, in order to
prevail on summary judgment, Foster Wheeler must demonstrate an absence of any material
facts, specifically, that it did not supply the asbestos-containing products to which Mr. Dalton

19

was exposed. To the extent Foster Wheeler is successful, the Plaintiffs must establish specific
facts showing there is a genuine issue for trial. See Matsushita, 475 U.S. at 587.
The Plaintiffs' claims against Foster Wheeler relate to Mr. Dalton's alleged exposure to
external asbestos insulation that was applied to Foster Wheeler's steam generators. Foster
Wheeler contends summary judgment is proper because Plaintiffs fail to show that Mr. Dalton's
injuries were caused by exposure to asbestos-containing products that Foster Wheeler supplied.
(D.I. 38 at 1) The Plaintiffs counter that Foster Wheeler is liable for failing to warn Mr. Dalton
of the hazards of asbestos because Foster Wheeler supplied external asbestos insulation for use
upon its steam generators, and Foster Wheeler produced design manuals that specified the use of
external asbestos insulation on its steam generators. (D.I. 53 at 22; 11/27112 Tr. at 38-40)
I recommend that the court grant Foster Wheeler's motion for summary judgment
because there are no genuine issues of material fact in dispute concerning whether Foster
Wheeler supplied the asbestos insulation to which Mr. Dalton was exposed, even when viewing
the evidence in the light most favorable to the Plaintiffs. The record reflects that Mr. Dalton's
asbestos exposure, as it relates to Foster Wheeler, was limited to the external insulation on Foster
Wheeler's steam generators. 19 (D.I. 1, Ex. 3-3 at 199, 226) However, there is no evidence
demonstrating that Foster Wheeler supplied this external insulation. In contrast, Foster Wheeler
has submitted evidence showing that it supplied only internal insulation, which was installed
between the tubes, bricks, and inner steel plate ofthe steam generator casings. (D.I. 53, Ex. 30 at
27; D.I. 58, Ex. C at 27-28)

19

The external asbestos insulation was applied to Foster Wheeler's steam generators after they
were delivered to Ingalls Shipyard and installed upon ships. (D.I. 1, Ex. 3-1 at 41; !d., Ex. 3-3 at
226)

20

Furthermore, the Plaintiffs' contention that Foster Wheeler supplied asbestos insulation
for external use is not supported by the record. The Plaintiffs' claim is based substantially on
selected responses to general questions taken from the deposition testimony of Thomas
Schroppe 20 ("Mr. Schroppe"), Foster Wheeler's witness. (See D.l. 53 at 22; 11127112 Tr. at 3740) Although Mr. Schroppe confirms that Foster Wheeler purchased and shipped asbestos
materials to shipyards for use with Foster Wheeler steam generators 21 (D.I. 53, Ex. 30 at 38; Jd,
Ex. 33 at 126-29), there is no evidence to show, as the Plaintiffs contend, that this insulation was
applied to the steam generators externally. In contrast, Mr. Schroppe repeatedly emphasized that
the asbestos insulation Foster Wheeler supplied was used only to insulate the steam generators
internally. (See D.l. 58, Ex. C at 27; ld, Ex. D at 145) Therefore, the court should grant Foster
Wheeler's motion because the Plaintiffs have not shown that Foster Wheeler supplied the
external asbestos insulation used on its steam generators, and Foster Wheeler cannot be held
liable for injuries caused by products it did not supply. 22
Similarly without support is the Plaintiffs' contention that Foster Wheeler "produced
design manuals and sheet lists ... which specified the use of asbestos insulation on its [steam

20

Mr. Schroppe agreed that he is "the person most knowledgeable with regard[] to the
relationship between Foster Wheeler and the Navy for marine boilers." (D.I. 53, Ex. 31 at 55)

21

Notably, Mr. Schroppe's testimony regarding Foster Wheeler's purchase and supply of
asbestos insulation was in response to general questioning and did not relate specifically to the
ships on which Mr. Dalton worked. (See D.l. 53, Ex. 30 at 38)

22

Although Mississippi recognizes an exception to this rule, expressed in the Restatement
(Second) Torts § 400, that "one who puts out as his own product a chattel manufactured by
another is subject to the same liability as though he were its manufacturer," Swift & Co. v.
Hawkins, 174 Miss. 253, 164 So. 231 (1935), the exception is inapplicable under the facts
presented in this case.

21

generators] ."23 (D.I. 53 at 22) The Plaintiffs rely upon the testimony of Mr. Schroppe in support
ofthis claim. (D.I. 53 at 10-11, 22) However, Mr. Schroppe's testimony demonstrates that the
purported design manuals and sheet lists were not Foster Wheeler internal specifications. Rather,
the manuals and lists described third-party products that were generally available in the industry
at that time. (D.I. 53, Ex. 31 at 60-61 24 ; Id, Ex. 32) The Plaintiffs' position is further undermined
by Mr. Schroppe's testimony that Foster Wheeler steam generators "were never insulated
externally." 25 (D.I. 58, Ex. D at 145) Moreover, the record indicates that external asbestos
insulation was applied to steam generators at the direction of the lead design shipyard, Electric
Boats, in Groton, Connecticut. (See D.I. 38, Ex. Bat 203-05 26 ; 11127112 Tr. at 20) Therefore, the

23

Some of the deposition testimony that Plaintiffs cite in support of this assertion is not included
in the record. Specifically, "Ex.31, [sic]p. 99-100."(D.I. 53 at 11)

24

Mr. Schroppe testified, in pertinent part:
Q:
But the Navy would put these specifications out, they would tell Foster
Wheeler in the course of the biding [sic] process this is what we are
looking for, the insulation has to meet 2819 [specifications], right?
A:
Q:

I don't believe this represents the entire picture.
And then what Foster Wheeler would do is they would go through and
they would have -- Foster Wheeler had their own internal list about
products in 2819 didn't they?
A:
They had a compilation of what was available in the industry, not their
own internal specifications, if you will.
Q:
They didn't have a technical design manual that listed the manufacturers
of products that met 2819?
A:
But it was not a Foster Wheeler spec. It was just a listing of everything
that was available in the industry.
Q:
Okay, but it's a Foster Wheeler document, they had access to it internally?
It was a book that had FW on it and internally it was everything that came
A:
from the industry.
(D.I. 53, Ex. 31 at 60-61)
25

Mr. Schroppe also testified that the outer casing of a Foster Wheeler steam generator "is never
insulated, it's plain steel." (D.I 58, Ex. Cat 27)

26

Mr. Dalton testified:
22

court should grant Foster Wheeler's motion for summary judgment because the Plaintiffs have
not shown that Foster Wheeler required external asbestos insulation on its steam generators.

2. Defendant Crane
I recommend that the court grant in part and deny in part Crane's motion for summary
judgment.
The Plaintiffs' claims against Crane relate to Mr. Dalton's alleged exposure to asbestos
from valves and pumps that Crane produced. Crane argues that summary judgment is appropriate
because the Plaintiffs fail to show that Mr. Dalton's injuries were caused by exposure to
asbestos-containing products that Crane manufactured or supplied. (D.I. 44 at 1) The Plaintiffs
counter that Crane is liable for failing to warn Mr. Dalton about the hazards of its products,
which were "designed, marketed, and sold ... specifically for use with [asbestos] insulation."
(D .I. 53 at 19) The Plaintiffs further contend that Crane is liable because Mr. Dalton was
exposed to asbestos-containing gaskets and packing supplied by Crane inside its pumps. (!d.)

i.

Crane Valves

The court should grant Crane's motion for summary judgment as to the Plaintiffs' claims
concerning Crane valves because the Plaintiffs have not established that Crane designed its
valves to require external asbestos insulation. The record reflects that that Crane valves arrived at
the shipyard with no external asbestos insulation. (D.I. 1, Ex. 3-2 at 138) The bodies of the

A:
Q:
A:
Q:

We had drawings that required-- called out for insulation to be put on [the
steam generators].
And those drawing were designed by the Navy or by Ingalls Shipyard?
By Boat EB .... That's a submarine shipyard in Groton, Connecticut. That
was the lead yard ....
And they were the ones that stated that those machines needed insulation?

A:
Correct.
(D~I. 38, Ex. B at 204-05)
23

valves were made of metal, and only the external insulation, not the inner packing or gaskets,
caused Mr. Dalton to become exposed to asbestos. 27 (!d., Ex. 3-2 at 156-57) However, there is no
evidence demonstrating that Crane designed its valves to use external asbestos insulation.
The only evidence proffered by Plaintiffs in support of their claim is insufficient to
withstand summary judgment. Specifically, the Plaintiffs submitted catalogs, allegedly produced
by Crane, that depict the use of various asbestos components inside Crane valves. (See D.I. 53,
Exs. 8, 9, 10, 11, 12, 15) The catalogs, however, are undated, and the Plaintiffs do not even
assert that the valves depicted in the catalogs are the same valves with which Mr. Dalton
worked. 28 Moreover, all of the asbestos components depicted in the catalogs relate to Crane
valves internally. The Plaintiffs do not direct the court to any document in which Crane requires
or recommends external insulation. Even when viewing the evidence in the light most favorable
to the Plaintiffs, no reasonable person could conclude that Crane designed its valves to require
external asbestos insulation. Therefore, the court should grant Crane's motion for summary
judgment, limited to the Plaintiffs' claims concerning Crane valves.
ii. Crane Pumps

The court should deny Crane's summary judgment motion with respect to Crane's
liability for Mr. Dalton's injuries allegedly caused by asbestos-containing gaskets and packing in

27

The Plaintiffs do not contend that Crane supplied the external asbestos insulation applied to its
valves. (See 11127112 Tr. at 38)

28

Notably, courts in other asbestos cases have found evidence similar to that which Plaintiffs
present here unpersuasive in the context of summary judgment. See, e.g., In re Asbestos Litig.
(Parente), 2012 WL 1415709 (Del. Super. Ct. Mar. 2, 2012); In re Asbestos Litig. (Davis), 2011
WL 2462569 (Del. Super. Ct. June 7, 2011).

24

Crane pumps. 29 The Plaintiffs have presented circumstantial evidence showing that Crane
supplied the original, internal asbestos-containing gaskets and packing in its pumps, and that Mr.
Dalton was exposed to this asbestos. Mr. Dalton testified that when Crane pumps failed, they
required the removal and replacement of their internal asbestos gaskets and packing. 30 (D.I. I,
Ex. 3-1 at 29, 30-33) Mr. Dalton was present during the pump repair process, and testified that
the removal and replacement of gaskets and packing from failed pumps generated asbestos dust.
(!d., Ex. 3-1 at 30-33) Mr. Dalton further explained that if a failed pump had passed initial

receipt inspection, there would have been no work done to the internal components of that pump
prior to him working on it. (!d., Ex. 3-3 at 373) Viewed in the light most favorable to the
Plaintiffs, the jury or fact finder could decide that Crane supplied the original, asbestoscontaining gaskets and packing inside its pumps, which raises a genuine issue of material fact
with respect to Crane's liability for Mr. Dalton's injuries. Therefore, the court should deny
Crane's summary judgment motion with respect to Mr. Dalton's injuries allegedly caused by
exposure to asbestos gaskets and packing in Crane's pumps.
V.

CONCLUSION
For the foregoing reasons, I recommend that the court grant Foster Wheeler's motion for

summary judgment, and grant in part and deny in part Crane's motion for summary judgment.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
29

Crane cannot be held liable for Mr. Dalton's injuries allegedly caused by external asbestos
insulation applied to its pumps because there is no evidence Crane designed its pumps to require
such insulation. See supra Section IV(C)(2)(i).
30

Mr. Dalton remembered having repaired Crane pumps specifically, but did not recall whether
he had worked with the packing inside Crane pumps. (D.I. 1, Ex. 3-2 at 159, 161-62)

25

Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. Appx. 924, 925 n.l
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order in Non-Pro Se Matters for
Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is
available on the court's website, www.ded.uscourts.gov.

Dated: September 12, 2013

26