Dumas v. ABB Group Inc. et al

Filing 423

REPORT AND RECOMMENDATIONS- recommending that the court: grant 359 MOTION for Summary Judgment, grant 352 MOTION for Summary Judgment, grant 356 MOTION for Summary Judgment, deny 366 MOTION for Summary Judgment, deny 354 MO TION for Summary Judgment, grant 349 MOTION for Summary Judgment, deny-in-part 363 MOTION for Summary Judgment, deny-in-part 358 MOTION for Summary Judgment, deny 368 MOTION for Summary Judgment, grant 370 MOTION for Summary Judgment, grant 362 MOTION for Summary Judgment, grant 347 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 tha n 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 10/19/2015. Signed by Judge Sherry R. Fallon on 9/30/2015. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
ARTHUR DUMAS,
Plaintiff,
v.

ABB GROUP, INC., et al.,
Defendants.

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Civil Action No. 13-229-SLR-SRF

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REPORT AND RECOMMENDATION
I.

INTRODUCTION
Presently before the court in this asbestos-related personal injury action are the motions for

summary judgment of Defendants Foster Wheeler LLC ("Foster Wheeler") (D.I. 347), General
Electric Company ("GE") (D.I. 349), Owens-Illinois Inc. ("Owens-Illinois") (D.I. 352), Aurora
Pump Company ("Aurora") (D.I. 354), Velan Valve Corporation ("Velan Valve") (D.I. 356),
Warren Pumps LLC .("Warren") (D.I. 358), Electrolux Home Products Inc., individually and as
successor to Copes-Vulcan ("Electrolux" or "Copes-Vulcan") (D.I. 359), CBS Corporation
("CBS") (D.I. 362), Ingersoll Rand Company ("Ingersoll Rand") (D.I. 363), Air & Liquid Systems
Corporation, as successor by merger to Buffalo Pumps Inc. ("Buffalo") (D.I. 366), IMO Industries
Inc. ("IMO" also referred to as "DeLaval") (D.I. 368), and ABB Inc., as successor in interest to
Bailey Meter Co. ("ABB") (D.I. 370) (collectively, "Defendants"). Plaintiff Arthur Dumas
("Plaintiff' or "Mr. Dumas"), opposes Defendants' motions for summary judgment. (D.I. 375;
383; 380; 374; 384; 382; 385; 386; 381; 378; 376; 377) As indicated in the chart infra and for the
reasons that follow, I recommend that the court GRANT summary judgment as to the following
Defendants: Electrolux, ABB, Velan Valve, GE, CBS, Foster Wheeler, and Owens-Illinois. I

recommend that the court DENY summary judgment as to the following Defendants: Buffalo,
Ingersoll Rand (denied-in-part), Aurora, IMO, and Warren (denied-in-part).

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GRANT
GRANT
GRANT
GRANT
GRANT
GRANT
GRANT
DENY
DENY-IN-PART
DENY
DENY
DENY-IN-PART

Electrolux Home Products Inc.
ABB Inc.
V elan Valve Corporation
General Electric Company
CBS Corporation
Foster Wheeler LLC
Owens-Illinois Inc.
Buffalo Pumps Inc.
Ingersoll Rand Company
Aurora Pump Company
IMO Industries Inc.
Warren Pumps LLC

II.

JC

......·.

··················•···

BACKGROUND
A. Procedural History
Plaintiff filed this personal injury action against Defendants on December 14, 2012, in the

Superior Court of Delaware. (D .I. 1, Ex. 1) The complaint asserts that Plaintiff developed
asbestosis through his work in the United States Navy from approximately 1954 to 1974. (Id.) On
February 13, 2013, the case was removed to this court by Defendant Yarway Corporation pursuant
to 28 U.S.C. §§ 1442(a)(l) 1 and 1446. (Id.) Foster Wheeler, GE, Owens-Illinois, Aurora, Velan
Valve, Warren, Electrolux, CBS, Ingersoll Rand, Buffalo, IMO, and ABB individually filed the

1

The federal officer removal statute permits removal of a state court action to federal court
when, inter alia, such action is brought against "[t]he United States or an agency thereof or any
officer (or any person acting under that officer) of the United States or of any agency thereof,
sued in an official or individual capacity for any act under color of such office." 28 U.S.C. §
1442(a)(l ).
2

pending motions for summary judgment. (D.I. 347; 349; 352; 354; 356; 358; 359; 362; 363; 366;
368; 370) The motions were fully briefed by September 2014. (D.I. 408; 390; 396; 397; 392; 393;
395; 389; 391; 394; 398;_388) On November 13, 2014, the court held oral argument on the motions.

B. Facts
Plaintiff alleges that he was exposed to asbestos while serving in the U.S. Navy throughout
his career, which lasted approximately twenty years, starting in 1954. (D.I. 348, Ex. A) In 1956,
Plaintiff was assigned to the pre-commissioning of the USS Franklin D. Roosevelt (the "FDR").

(Id. at 76:21-77:3) Plaintiff described his duties while aboard the FDR as "damage control." (Id.
at 77: 10-78: 15) Plaintiff could not recall working on any specific equipment aboard the FDR. (Id. at
90: 16-18) Plaintiff had no duties in the boiler room or the engine room of the FDR, but believed
he was exposed to asbestos through the ventilation system on the ship. (Id. at 90:1-93:3)
In June of 1957, Plaintiff left the FDR and was assigned to the reserve fleet in Green Cover
Springs, Florida. (Id. at 93 :4-95 :7) Plaintiff believed that he was exposed to asbestos at this time
while he was assigned to security detail. (Id.)
In September 1958, Plaintiff was assigned to the USS Forrestal (the "Forrestal"), an aircraft
carrier. (Id. at 81 :2-24) While aboard the F orrestal, Plaintiff served for approximately two years at
the rank of damage controlman third class. (Id) Plaintiff testified to working on pumps and valves
associated with hotel services (hot water, cold water, plumbing, and sewage). (Id. at 96: 16-102:7)
Plaintiff identified possible asbestos exposure from repacking of the valves associated with hotel
services and removing insulation from pumps. (Id.)
From approximately 1960 to 1963, Plaintiff served aboard the USS Enterprise (the
"Enterprise") and was assigned to "precom detail." (Id. at 81:25-83:8) Plaintiff could not identify

3

any specific equipment where he could have been exposed to asbestos while aboard the Enterprise.
(Id. at 102:8-106:5)

From 1963 to 1967, Plaintiff was on shore duty, in various positions, before being assigned
to the USS Ogden (the "Ogden"), as a warrant officer. (Id. at 83:9-85:24) While assigned to Harbor
Defense, Plaintiff believed he may have been exposed to asbestos from old buildings and floor tile
but again could not name any specific product or manufacturer. (Id. at 106:6-108:2) Plaintiff
served on the Ogden until 1969 and testified to having no hands-on responsibilities for any
equipment but was responsible for coordinating repairs to equipment such as pumps and valves.
(Id. at 110:1-115:15)

Plaintiff next served aboard the USS Tidewater (the "Tidewater") until 1971. (Id. at 87:723) Plaintiff testified that he possibly could have been exposed to asbestos from others working
on pumps, valves, and insulation in his vicinity. (Id. at 110: 1-115: 15)
Plaintiff next served aboard the Vulcan for approximately six months before being
reassigned to the Forrestal. (Id. at 87:24-89:16) Plaintiffs duties aboard the Vulcan were similar
to those while aboard the Tidewater. (Id. at 123:5-124:10)
In 1971, Plaintiff was reassigned to the Forrestal for a second tour before being transferred
to Port Services and later retiring from the Navy. (Id. at 124:11-130:4) Plaintiff, again, identified
general exposure while aboard the Forrestal from pumps and valves. (Id.)
C. Testimony of Product Identification Witnesses

Plaintiff relies heavily on the testimony of product identification witnesses to support his
claims that he was exposed to asbestos directly from Defendants' products and equipment during
his time in the Navy while working with insulation, gaskets, and packing.

4

1. Edsel Mauldin
Mr. Edsel Mauldin is Plaintiffs principal witness regarding his time serving aboard the

Forrestal between 1971 and 1972. (D.I. 375, Ex. A at 42:4-11) Mr. Mauldin had no specific
recollection of Plaintiff ever being present while Mr. Mauldin performed maintenance and repair
work on any piece of equipment aboard the Forrestal, including the oil shacks or engine room No.
2 where Mr. Mauldin was principally assigned. (Id at 51:23-52:12; 122:6-19) Mr. Mauldin also
worked in the Main Machinery Room ("MMR") and testified that Plaintiff, as a duty engineer
aboard the Forrestal, would have made rounds in the MMR. (Id at 54:3-9) Mr. Mauldin testified
that he personally diagrammed and memorized every system in the engine room which gave him
personal knowledge of the equipment aboard the Forrestal. (Id at 217:5-218:1) Mr. Mauldin
testified there was a 99% probability that Plaintiff was present when asbestos-containing
equipment was worked on because Mr. Dumas, as a duty engineer, was responsible for supervising
the areas where Mr. Mauldin worked. (Id at 178:15-184:14)
Mr. Mauldin further testified that the equipment he worked on while aboard the Forrestal
utilized asbestos insulation because "nothing else in the world has got those little fibers in it like
that .... " (Id at 216:5-8) Mr. Mauldin believed that the Navy followed the manufacturers'
specifications which, in some instances, required external asbestos insulation to be applied to the
machinery on the Forrestal. (Id at 296:17-297:24) In addition to repairs, Plaintiff points to Mr.
Mauldin' s testimony that the insulation was removed based on a preventative maintenance
schedule. (D.I. 386 at 3-4) When removing and replacing gaskets and packing, Mr. Mauldin
testified that asbestos would go "everywhere" as a result of using flanges and wire-brushes as well
as dusting every piece of equipment with an air-hose. (D.I. 375, Ex. A at 221:2-222:19, 223:1824, 235:24-236:2)

5

2. Michael Dutridge
Mr. Michael Dutridge served aboard the Forrestal at the same time as Mr. Dumas. (D.I.
355, Ex. F at 21 :23-22:15) Plaintiff relies on Mr. Dutridge's testimony that 90% of the gaskets
used on the Forrestal were original. (Id. at 114:7-11)
3. Douglas McWhirter
Mr. Douglas McWhirter testified to his personal knowledge of the repair division aboard
the FDR in the engineering space and the insulation that covered piping throughout the ship. (D.I.
380, Ex. D at 40:24-43:25) Mr. McWhirter was aboard the FDR at the same time as Mr. Dumas,
however, he never met Plaintiff. (Id. at 19:25-20:6, 21:6-13)
4. Don Andrews
Mr. Don Andrews served alongside Plaintiff aboard the Enterprise from 1962-1963. (D.I.
386, Ex.Fat 17:11-18:22) Mr. Andrews personally witnessed lid removal of the turbines aboard
the Enterprise. (Id. at 75:14-77:11) Mr. Andrews testified that removal of these lids would cause
asbestos dust to become airborne and that there was no way that anyone in the engine rooms could
have avoided the dust. (Id. at 83:16-22)
5. Floyd Methner
Mr. Floyd Methner testified regarding his time working aboard the Forrestal with major

generators. (D.I. 383, Ex. Cat 322:19-330:11) Mr. Methner recalled the valves of the generators
being insulated in asbestos and that the steam end of the generators was also insulated with
asbestos. (Id.) Mr. Methner further testified that he would remove the asbestos-containing packing
from the generators in a process that would take up to two hours and that generated dust. (Id.) Mr.
Methner believed that Plaintiff would have breathed that dust if he was in the area. (Id.)

6

6. Roger Smiley
Mr. Roger Smiley served in the engineering log room aboard the Forrestal from September
1959 to March 1969, and as a machinist mate from March 1960 to June 1962. (D.I. 382, Ex.Cat
11 :25-14:8) Mr. Smiley's duties as a machinist mate were to keep track of all repairs of all the
machinery on the ship. (Id. at 13 :23-14:3) Mr. Smiley testified that the Forrestal ran on superheated
steam at 1200 degrees Fahrenheit, and, thus, required asbestos insulation to enable the men to work
on the equipment and to prevent them from being burned. (Id. at 67:11-68:6) Mr. Smiley further
testified that Plaintiff could not have avoided exposure to asbestos while working on the ship. (Id.)

D. Plaintiff's Alleged Exposure from Each Defendant's Products
1. Defendant ABB
Plaintiff claims exposure to Bailey boiler combustion and feed water controls while
working'in the MRR aboard the Forrestal. (D.I. 377 at 3, Ex. A at 240:8-241 :19) Plaintiff relies on
Mr. Mauldin's testimony that the Bailey boiler combustion and feed water controls were insulated
with asbestos-containing insulation. (Id. at 178:15-187:4) Mr. Methner was mentioned in
Plaintiffs briefs as a product identification witness of Bailey products, however Mr. Methner has
not offered testimony regarding a Bailey product. (D.I. 377 at 3-4, Ex.Cat 41 :7-16, 140:2-141 :6)
Rather, Mr. Methner's testimony provides general references to insulation aboard the Forrestal.

(Id.)
2. Defendant Aurora Pump
Plaintiff claims exposure to Aurora pumps during his first and second tours aboard the
Forrestal. (D.I. 374 at 1, Ex. A at 101 :10-102:4) Plaintiff testified to supervising and participating
in packing work and shipyard insulation tearouts on Aurora pumps aboard the Forrestal. (Id.)
Plaintiff also alleges he was exposed to Aurora pumps aboard the Tidewater where he oversaw the

7

maintenance and repair of machinery in engine rooms. (Id at 119:12-122:9) Plaintiff testified to
exposure to asbestos-containing products from Aurora pump insulation tearouts and gasket seal
work. (Id)
In addition, Plaintiff relies on his knowledge of exposure to Aurora's alleged asbestoscontaining products during his time on the Forrestal during his first and second tour, when he
worked on and witnessed work done on Aurora pumps. (D.I. 374, Ex. A at 101:10-102:4,126:23127:5.) Plaintiff testified that while serving on the Tidewater he conducted repairs on 20 to 25
ships working on machinery in engine rooms and that he was exposed to asbestos from Aurora
pump insulation tearouts as well as gasket seal work. (Id at 119:12-122:9) Plaintiff testified that
he knew Aurora manufactured the various pumps because he reviewed their manuals. (Id at
175:13-176:2) With regard to Aurora pump insulation, Plaintiff testified:
Q.

Okay, and we talked about you being around men who were sawing insulation off
Aurora Pump's. That was original insulation, right?

A.

When they were installing insulation on pumps, they would more - it was - I
would say they pulled the original insulation off and replaced with - new.

(Id at 272: 13-23) Mr. Dutridge also testified to this topic:
Q..

Okay. Same questions for Aurora. The packing and insulation was asbestos?

A.

Correct.

Q.

And 90 percent of it was original to the pumps?

A.

Correct.

(D.I. 374,

Ex.Ba~

91:4-10)

Plaintiff also relies on the general testimony of Mr. Mauldin and Mr. Methner regarding
the exposure to Aurora's alleged asbestos-containing pumps while aboard the Forrestal as
discussed supra in section II(c). (Id at 1-6)

8

3. Defendant Buffalo Pumps
Plaintiff claims exposure to Buffalo pumps while conducting packing and original
insulation work during his first tour aboard the Forrestal. (D.I. 379 at 1, Ex. A at 101:10-102:4,
175:20-176:3) Plaintiff alleges exposure throughout his entire career and on every ship on which
he served (not including the Tidewater and Vulcan), he claims exposure as a result of sweeping up
after Buffalo pump insulation tearouts causing him to breathe in asbestos dust. (Id. at 274:3-17,
276:4-278:11) Plaintiff also relies on the general testimony of Mr. Mauldin and Mr. Dutridge as
discussed supra in section Il(C). (Id., Ex. C at 216:7-8, 218:7-224:15, Ex. B at 90:11-91:2)
Specifically, Mr. Dutridge identified Buffalo pumps and testified that they were insulated with
asbestos. (Id., Ex. B at 90: 11-91 :2)

4. Defendant CBS
CBS Corporation (a Delaware corporation f/k/a Viacom Inc.) is a successor by merger to
CBS Corporation (A Pennsylvania corporation f/k/a Westinghouse Electric Corporation)
("Westinghouse"). (D.I. 389 at 1 n. 1)
Plaintiff alleges that he was exposed to Westinghouse pumps and turbines .in the MMR
aboard the Forrestal. (D.I. 386 at 2, Ex. D) Plaintiff relies on the general testimony of Mr. Mauldin
and Mr. Dutridge as discussed supra in section II(C). (Id. at 1-4) Specifically, Mr. Mauldin testified
that Westinghouse pumps were insulated with asbestos and used asbestos gaskets and packing. (Id.
at 3-5, Ex. A at 192:25-195:17, 233:2-234:20, 218:7-224:15, 272:24-273:12) Mr. Dutridge
testified that Westinghouse turbines used asbestos-containing insulation, packing, and gaskets
aboard the Forrestal. (Id. at 5, Ex. Cat 93:4-23)

9

5. Defendant Electrolux
Plaintiffs claims against defendant Electrolux relate to alleged exposure to asbestos
components relating to Copes-Vulcan desuperheaters. (D.I. 385 at 1, Ex. A at 20:14-21:9) The
alleged exposure occurred when Plaintiff was aboard the Forrestal. (Id. at 20:14-21 :9, 54:3-9,
99:19-100:7, Ex. D) Plaintiff relies on the general testimony of Mr. Mauldin and Mr. Methner as
discussed supra in section II(C). (Id. at 1-4) Mr. Mauldin testified that Copes-Vulcan
desuperheaters utilized asbestos-containing insulation, gaskets, and packing. (Id. at 2-5, Ex. A at
111:14-112:9, 101:16-101:22, 278:11-280:9) Although Mr. Methner was mentioned in Plaintiffs
briefs as a product identification witness of Copes-Vulcan products, Mr. Methner has not offered
testimony regarding a Copes-Vulcan desuperheater. (Id. at 2-3, Ex.Bat 45:23-46:13) Rather, Mr.
Methner' s testimony describes his opinion of the duration of time Plaintiff spent in the MMR
aboard the Forrestal. (Id.)

6. Defendant Foster Wheeler
Plaintiff alleges he was exposed to asbestos components relating to Foster Wheeler pumps
aboard the Forrestal. (D.I. 375 at 1-2, Ex. A at 54:3-9, 166:18-167:13, 178:9-186:1) Plaintiff relies
on the general testimony of Mr. Mauldin and Mr. Dutridge discussed supra in section II(C). (Id.
at 1-4) Specifically, Mr. Mauldin testified that Foster Wheeler pumps utilized asbestos-containing
insulation, gaskets, and packing. (Id. at 3-6, Ex. A at 179:22-184:14, 233:14-15, 220:9-224:15,
235:14-236:16) Foster Wheeler asserts that there were no Foster Wheeler products aboard the
Forrestal, as there is no evidence of a contract to furnish equipment, including Foster Wheeler
pumps, for use on the Forrestal. (D.I. 408 at 3-4, Ex. D)

10

7. Defendant General Electric

Plaintiff alleges he was exposed to asbestos components relating to GE turbines in the
MMR aboard the Forrestal. (D.I. 383 at 2, Ex. A at 157:12-159:16) Plaintiff relies on the general
testimony of Mr. Mauldin and Mr. Dutridge discussed supra in section Il(C). (Id at 1-4)
Specifically, Mr. Mauldin testified that GE turbines utilized asbestos-containing insulation,
gaskets, and packing. (Id at 2-4, Ex. A at 179:22-184: 14, 259: 10-264:6, 259: 10-264:6) Plaintiff
also relies on Mr. Methner's testimony that GE 1500 Kilowatt generators had valves that were
insulated with asbestos. (Id at 4, Ex. Cat 322:19-330:11) Mr. Methner would remove asbestoscontaining packing on GE generators and he believed the process would have caused Plaintiff to
breathe asbestos-containing dust ifhe was in proximity to the area at the time Mr. Methner worked
on GE generators. (Id)
8. Defendant IMO

Plaintiff alleges that he was exposed to IMO ("DeLaval") pumps while aboard several
different ships throughout his career. (D .I. 376 at 1-3) Plaintiff alleges exposure to DeLaval pumps
while serving aboard the FDR in 1956. (Id., Ex. A at 89:24-90: 15) Plaintiff relies on Mr.
McWhirter's testimony that DeLaval pumps aboard the FDR utilized asbestos packing. (D.I. 376
at 6, Ex. G at 107:20-108:4, 114:9-115:16, 122:18-25) Plaintiff alleges exposure to DeLavalpumps
aboard the Forrestal during his first tour from 1958 to 1960. (D.I. 376, Ex. A at 101:10-102:4)
However, Plaintiff testified to only tightening "a packing gland" on a DeLaval fire main pump.
(Id at 98:8-12, 214:4-7) Plaintiff alleges exposure to DeLaval pumps while serving aboard the

Enterprise from 1960 to 1963. (Id. at 102:8-11, 103:3-15) However, Plaintiff testified to entering
the engine rooms, where DeLaval pumps were located, on only one occasion. (Id at 103:3-25)
Plaintiff alleges exposure to DeLaval pumps through external asbestos-containing insulation while

11

serving aboard the Ogden from 1967 to 1969. (Id. at 112:18-113:21) Plaintiff was present during
the removal and reinstallation of the insulation applied to DeLaval pumps aboard the Ogden. (Id.)
Plaintiff alleges exposure to DeLaval pumps while serving aboard the Tidewater from 1969 to
1971. (Id. at 119:12-122:9) Plaintiff testified to conducting and supervising repair work on 20-25
other ships based out of the repair shop on the Tidewater. (Id.) During the repair work, Plaintiff
testified to being exposed to asbestos from DeLaval pump insulation tearouts and gasket seal work.
(Id.) Finally, Plaintiff alleges exposure to DeLaval pumps' asbestos-containing components while

serving aboard the Forrestal during his second tour from 1971 to 1974. (Id. at 175:13-176:3)
Plaintiff also relies on the general testimony of Mr. Mauldin as discussed supra in section
II(C). (Id. at 2-7) Specifically, Mr. Mauldin testified that DeLaval pumps utilized asbestos
insulation, gaskets, and packing aboard the Forrestal. (D.I. 376 at 4-7, Ex. Cat 179:22-184:14,
218:7-224:15, 255:7-256:22, 271:22-273:12)

9. Defendant Ingersoll Rand
Plaintiffs claims against Ingersoll Rand relate to reciprocating emergency feed pumps in
the MMR aboard the Forrestal. (D.I. 381 at 1, Ex. A at 268:12-270:12, 178:15-184:4) Plaintiff
relies on the general testimony of Mr. Mauldin and Mr. Methner discussed supra in section II(C).
(D.I. 381 at 1-4) Specifically, Mr. Mauldin testified that Ingersoll Rand pumps utilized asbestoscontaining insulation. (Id., Ex. A at 179:22-184: 14, 269:9-17) Mr. Methner testified that Ingersoll
Rand pumps utilized asbestos-containing gaskets and packing. (D.I. 381 at 3-5, Ex.Bat 311 :20312:23, 309:8-310: 19)

10.

Defendant Owens-Illinois

Plaintiff alleges that he was exposed to Owens-Illinois asbestos-containing insulation while
serving on the FDR in 1956 and part of 1957. (D.I. 380 at 1-2, Ex.Cat 89:24-90:15, Ex. D 40:24-

12

43:25) Owens-Illinois began a limited pilot plan operation in 1943 to manufacture Kaylo, an
asbestos-containing pipe covering. (D.I. 380, Ex. A) It began commercial production and sale of
its Kaylo product in 1948. (Id.) The entire Kaylo division, including inventory, was sold to Owens
Coming Fiberglas Corporation ("Owens Corning") on April 30, 1958. (D.I. 380, Ex.Bat 1-4)
Plaintiff relies solely on the testimony of Mr. Mc Whirter who testified that there were miles
of insulated piping running throughout the FDR. (D.I. 380 at 2, Ex. D at 40:24-43:25) Mr.
Mc Whirter testified that this insulation was manufactured by Owens-Illinois. (Id.) Mr. Mc Whirter
and his shipmates would have to remove this insulation in order to work on the machinery aboard
the ship as well as reinstall it. (Id.) Mr. Mc Whirter testified that the operation of the ship alone
would make asbestos dust from Owens-Illinois insulation go airborne. (Id.) Plaintiff argues that
based on Mr. McWhirter's testimony, it is highly likely that Plaintiff would have breathed a
substantial amount of asbestos dust from original Owens-Illinois insulation during the yard period,
as heavy maintenance was conducted. (D.I. 380 at 5, Ex. D at 123:6-23)

11.

Defendant Velan Valve

Plaintiff alleges that he was exposed to asbestos-containing components relating to Velan
valves in the MMR aboard the Forrestal. (D.I. 384 at 1-2, Ex. A at 177:22-178:16) Plaintiffrelies
on the general testimony of Mr. Mauldin as discussed supra in section II(C). (D.I. 384 at 1-5)
Specifically, Mr. Mauldin testified that Velan valves utilized asbestos-containing insulation on the
flange shields, flange gaskets, and packing. (Id., Ex. A at 311 :5-312:9) Plaintiff also relies on Mr.
Methner' s testimony that manufacture specification sheets required external asbestos insulation on
equipment aboard the Forrestal. (D.I. 384 at 3-4, Ex.Eat 194:15-195:9) However, Mr. Methner'_s
testimony is not specific to V elan valves. (Id.)

13

12.

Defendant Warren Pumps

Plaintiff alleges that he was exposed to asbestos-containing components relating to Warren
main feed pumps in the MRR aboard the Forrestal. (D.I. 382 at 1-2, Ex. A at 177:22-178:16)
Plaintiff relies on the general testimony of Mr. Mauldin as discussed supra in section II(C). (D.I.
382 at 1-6) Specifically, Mr. Mauldin testified that Warren pumps utilized asbestos-containing
insulation, gaskets, and packing. (Id., Ex. A at 143:21-144:13, 233:2-234:20, 270:13-273:20)
Plaintiff also relies on Mr. Methner's testimony regarding manufacture specification sheets,
however there is no identification of Warren pumps. (D.I. 382, Ex. D at 194:15-195:9)

III.

LEGAL STANDARD
"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). Material facts are those that could affect the outcome of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)). Pursuant to Rule 56(c)(l), a party asserting that a fact is genuinely
disputed must support its contention either by citing to "particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for the purposes of the motion only), admissions, interrogatory
answers, or other materials," or by "showing that the materials cited do not establish the absence
or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact." Fed. R. Civ. P. 56(c)(l)(A) & (B).
The moving party bears the initial burden of proving the absence of a genuinely disputed

14

material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to
demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891F.2d458, 46061 (3d Cir. 1989). When determining whether a genuine issue of material fact exists, the court
must view the evidence in the light most favorable to the nonmoving party and draw all reasonable
inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter,
476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some evidence in support of the
nonmoving party may not be sufficient to deny a motion for summary judgment. Rather, there
must be enough evidence to enable a jury reasonably to find for the nonmoving party on the issue.

See Anderson, 477 U.S. at 249. If the nonmoving party fails to make a sufficient showing on an
essential element of its case on which it bears the burden of proof, the moving party is entitled to
judgment as a matter oflaw. See Celotex, 477 U.S. at 322.

IV.

DISCUSSION
A. Applicable Law
After considering the parties' choice of law arguments (D.I. 322; 323), the court concluded

that maritime law should apply to Plaintiffs claims relating to his asbestos exposure that allegedly
occurred while he served in the U.S. Navy. 2 (D.I. 345)

2

In order for maritime law to apply, a plaintiffs exposure underlying a products liability claim
must meet both a locality test and a connection test. In Jerome B. Grubart v. Great Lakes Dredge
& Dock Co., 513 U.S. 527 (1995), the Supreme Court defined these tests as follows:
A court applying the location test must determine whether the tort occurred on
navigable water or whether injury suffered on land was caused by a vessel on ·
navigable water. The connection test raises two issues. A court, first, must "assess
the general features of the type of incident involved," to determine whether the
incident has "a potentially disruptive impact on maritime commerce[.]" Second, a
court must determine whether "the general character" of the "activity giving rise
to the incident" shows a "substantial relationship to traditional maritime activity."

15

In each of the pending summary judgment motions, Defendants contend that summary
judgment should be granted because Plaintiff has not shown that Defendants' products were a
substantial factor in causing his injuries and Defendants did not manufacture or distribute the
allegedly asbestos-containing products. (D.I. 348; 350; 353; 355; 357; 361; 360; 364; 365; 367;
369; 374)
To establish causation in an asbestos claim under maritime law, a plaintiff must show, for
each defendant, that "(1) he was exposed to the defendant's product, and (2) the product was a
substantial factor 3 in causing the injury he suffered." Lindstrom v. A-C Prod Liab. Trust, 424 F .3d
488, 492 (6th Cir. 2005) (citing Stark v. Armstrong World Indus., Inc., 21 F. Appx. 371, 375 (6th
Cir. 2001)). Other courts in this Circuit recognize a third element and require a plaintiff to "show
that (3) the defendant manufactured or distributed the asbestos-containing product to which
exposure is alleged."4 Abbay v. Armstrong Int'!, Inc., 2012 WL 975837, at *1 n.1 (E.D. Pa. Feb.
29, 2012).
"In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of

Grubart, 513 U.S. at 534 (internal citations omitted); see also Gibbs ex rel. Gibbs v. Carnival
Cruise Lines, 314 F.3d 125, 131-32 (3d Cir. 2002).
3

"Maritime law incorporates traditional 'substantial factor' causation principles, and courts often
look to the Restatement (Second) of Torts for a more helpful definition." Delatte v. A. W.
Chesterton Co., 2011WL11439126, at *1 n.1 (E.D. Pa. Feb. 28, 2011). The comments to the
Restatement indicate that the word "substantial," in this context, "denote[s] the fact that the
defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard
it as a cause, using that word in the popular sense, in which there always lurks the idea of
responsibility." Restatement (Second) of Torts§ 431 cmt. a (1965).
4

The majority of federal courts have held that, under maritime law, a manufacturer has no
liability for harms caused by, and no duty to warn about hazards associated with, a product it did
not manufacture or distribute. This is also referred to as the "bare metal" defense. See Dalton v.
3M Co., 2013 WL 4886658, at *7 (D. Del. Sept. 12, 2013) (citing cases); Conner v. Alfa Laval,
Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012).
16

the plaintiff or decedent who experienced the exposure, co-worker testimony, or eye-witness
testimony) or circumstantial evidence that will support an inference that there was exposure to the
defendant's product for some length of time." 5 Abbay, 2012 WL 975837, at *1 n.1 (citing Stark,
21 F. Appx. at 376).
On the other hand, "'[m]inimal exposure' to a defendant's product is insufficient to
establish causation. Likewise, a mere showing that defendant's product was present somewhere at
plaintiffs place of work is insufficient." Lindstrom, 424 F.3d at 492 (quoting Stark, 21 F. Appx.
at 376). "Rather, the plaintiff must show 'a high enough level of exposure that an inference that
the asbestos was a substantial factor in the injury is more than conjectural.'" Abbay, 2012 WL
975837, at *1 n.1 (quoting Lindstrom, 424 F.3d at 492). "Total failure to show that the defect
caused or contributed to the accident will foreclose as a matter of law a finding of strict product[]
liability." Stark, 21 F. Appx. at 376 (citations omitted).
Should the court decide that causation has been established, Defendants rely upon the "bare
metal" defense to avoid liability on the basis that they have no duty to Plaintiff relating to asbestoscontaining replacement parts they did not manufacture or distribute. Conner v. Alfa Laval, Inc.,
842 F. Supp. 2d 791, 801-802 (E.D. Pa. 2012) (explaining the policy rationale for holding only
those who make or sell the injurious product liable for the injuries alleged). "The so-called 'bare
metal defense' is recognized by maritime law, such that a manufacturer has no liability for harms
caused by-and no duty to warn about hazards associated with-a product it did not manufacture
or distribute." Carper v. Gen. Elec. Co., 2014 WL 6736205, at *1 (E.D. Pa. Sept. 4, 2014) (citing

5

However, "'substantial exposure is necessary to draw an inference from circumstantial
evidence that the exposure was a substantial factor in causing the injury.'" Stark, 21 F. Appx. at
376 (quoting Harbour v. Armstrong World Indus., Inc., 1991WL65201, at *4 (6th Cir. April 25,
1991)).
17

Conner, 842 F.Supp.2d at 801).
B. Analysis of Defendants' Summary Judgment Motions
Plaintiff puts forth three main arguments as to why summary judgment should be denied
with respect to each moving Defendant: ( 1) there is a genuine issue of material fact as to whether
Defendants' asbestos-containing products were a substantial factor in causing Plaintiffs
asbestosis; (2) there is a genuine issue of material fact as to whether each Defendant had a duty of
care to warn Plaintiff of foreseeable asbestos exposure resulting from asbestos-containing products
it or another manufacturer supplied; and (3) there is a genuine issue of material fact as to whether
there existed a design defect in each Defendant's product, and Defendants failed to warn Plaintiff
of the foreseeable harms resulting from its asbestos-containing products and the asbestos products
ofothermanufacturers. 6 (D.I. 375; 383; 380; 374; 384; 382; 385; 386; 381; 378; 376; 377)

1. Defendant Electrolux
The court should grant Electrolux's motion for summary judgment because Plaintiff has
failed to show that a material issue of fact exists as to whether Electrolux's product was a
substantial factor in causing Plaintiffs injuries. See Lindstrom, 424 F.3d at 492.
Plaintiff alleges that he was exposed to asbestos-containing products used in connection
with Copes-Vulcan desuperheaters while serving aboard the Forrestal. (D.I. 385 at 1) Namely,

6

Against Ingersoll Rand and Warren Pumps, Plaintiff alleges a fourth argument that summary
judgment should be denied regarding Plaintiffs punitive damages claim. (D.I. 381 at 14-17; D.I.
3 82 at 13-16) However, Plaintiff provides no argument or legal theory in support of this
argument. (Id) Rather, Plaintiff generically cites the expert report of David Rosner attached to
his answering brief. (D.I. 381, Ex. H; D.I. 382, Ex. H) Viewing the facts in the light most
favorable to Plaintiff, Plaintiff has not made a sufficient showing on an essential element of his
case on which Plaintiff bears the burden of proof. I recommend that the motions for summary
judgment of Ingersoll Rand and Warren Pumps be granted in part regarding Plaintiffs punitive
damages claims.
18

Plaintiff relies on Mr. Mauldin's testimony that Copes-Vulcan desuperheaters utilized asbestos
insulation on pipes connected to the machinery and from desuperheater gaskets. (Id at 2-5) Mr.
Mauldin believed Plaintiff would have been exposed to asbestos through unspecified work on
Copes-Vulcan products based on his Navy occupation rating. (Id) Mr. Mauldin never worked on
desuperheaters while aboard the F orrestal and never saw Plaintiff working on or in the proximity
to anyone working on a Copes-Vulcan product. 7 (Id) Mr. Mauldin testified to seeing work on
desuperheaters only once during his entire service aboard the Forrestal. (Id) Even assuming that
the evidence from Plaintiffs product identification witness is sufficient to meet the threshold for
exposure to Copes-Vulcan's product, there is no evidence which places Plaintiff in the vicinity of
any Copes-Vulcan product while it was worked on during his service on the Forrestal. (D.I. 385)
Plaintiff further argues that Electrolux is responsible for the effects of any exposure relating
to its products, whether original or replacement parts, regardless of the manufacturer. The "bare
metal" defense supports the recommendation that Electrolux should not be liable for any product
it did not manufacture or distribute. See Conner, 842 F. Supp. 2d at 801; see also Cabasug v. Crane
Co., 989 F. Supp. 2d 1027 (D. Haw. 2013) (following Conner line of reasoning, holding "a

manufacturer is not liable for replacement parts that it did not place into the stream of commerce,
whether the manufacturer's product originally contained asbestos components or was designed to
include asbestos components."). 8

7

Mr. Mauldin had no specific recollection of Plaintiff ever being present while he or anyone else
performed maintenance or repair work on any piece of equipment aboard the Forrestal. (D.I. 348,
Ex. A at 51:23-52:12, 122:6-19)
8

There is an internal inconsistency in Plaintiffs argument wherein Plaintiff contends
Defendants' products contained original asbestos insulation aboard the Forrestal fifteen years
after it was commissioned to active service, while also asserting that all equipment aboard the
Forrestal was regularly repaired and replaced as a matter of the routine preventative maintenance
schedule. (D.I. 350 at 4) The trouble with Plaintiffs arguments is the inability to reconcile
19

Plaintiffs contention that Electrolux supplied asbestos-containing equipment or specified
use of asbestos with its product is not supported by the record. Plaintiffs claim is based
substantially on selected responses to general questions taken from the deposition testimony of
Mr. Methner. (D.I. 385 at 12) However, Mr. Methner offered no testimony regarding CopesVulcan or the desuperheaters which Plaintiff alleges are the source of his alleged exposure. (D.I.
395 at 9) "It is entirely possible that the dust to which Plaintiff was exposed was from replacement
insulation that did not contain asbestos and/or that was not manufactured or supplied by
[Electrolux]." Carper, 2014 WL 6736205, at *1. Plai;ntiff has done nothing more than show the
presence of Electrolux desuperheaters aboard the Forrestal. Moreover, the desuperheaters were
located in the boiler room, whereas the allegations place Plaintiff in the MRR space as the duty
engmeer.
While all reasonable inferences must be drawn in favor of the non-movant, the nonmoving
party cannot create a genuine issue of material fact through mere speculation or the building of
inference upon inference. Instead, inferences must be supported by facts in the record, not by
speculation or conjecture. See Leonard v. Stemtech Health Scis., Inc., 2011 WL 6046701, at *8
(D. Del. Dec. 5, 2011) (citations omitted). Consequently, I recommend granting Electrolux's
motion for summary judgment dismissing all claims. See Lindstrom, 424 F.3d at 492 ("[A] mere
showing that defendant's product was present somewhere at plaintiffs place of work is insufficient
[to establish causation]).

whether the original asbestos-containing components remained on the ship for fifteen years or
the components were routinely repaired and replaced at regular intervals.
20

2. Defendant ABB
I recommend that the court grant ABB' s motion for summary judgment because Plaintiff
has failed to show that a material issue of fact exists as to whether ABB' s product was a substantial
factor in causing Plaintiffs injuries. See Lindstrom, 424 F .3d at 492.
Plaintiff alleges that exposure to asbestos through boiler combustion and feedwater
controls manufactured or sold by ABB (Bailey Meter Co.) while aboard the Forrestal was a
substantial factor in his asbestosis. (D.I. 377) However, ABB asserts that Bailey never
manufactured boilers or insulation. (D .I. 38 8 at 1) Plaintiffs reliance on the testimony of Mr.
Mauldin, Mr. Smiley, and Mr. Methner is unpersuasive. There is no testimony about Bailey boiler
combustion controls from Mr. Smiley or Mr. Methner. (D.I. 377, Ex.Bat 32:21-71:1, Ex.Cat
40:13-41:16, 45:20-46:13, 78:14-80:11, 139:19-140:6) There is no evidence that Bailey ever
"manufactured and/or supplied" any insulation in regards to boilers and combustion and feedwater
controls as alleged by the testimony of Plaintiffs product identification witnesses.
Plaintiffs exposure claim arising from Bailey controls is based upon general allegations of
Mr. Mauldin that three quarters of the insulation installed on machinery on the Forrestal was

original, thus, work performed on Bailey controls made asbestos dust go airborne. (Id at 3, Ex. A
at 195:25-196:9) The Plaintiff relies on an inference that if it is assumed that the Plaintiff was
present during the time dust was released due to work performed on Bailey controls, then ABB
may be liable. (Id at 12, Ex. A at 195:25-196:9, 179:22-187:4) Plaintiffs assertion is insufficient
for purposes of summary judgment. See Lindstrom, 424 F .3d at 492.
As discussed supra in section IV(B)(l), Plaintiff has failed to show beyond mere
speculation and conjecture that he was exposed to asbestos from products manufactured or

21

supplied by ABB. Consequently, the recommendation herein is to grant ABB's motion for
summary judgment. See id

3.Defendant Velan Valve
The court should grant Velan Valve's motion for summary judgment because Plaintiff has
failed to show that a material issue of fact exists as to whether Velan Valve's product was a
substantial factor in causing Plaintiffs injuries. See Lindstrom, 424 F .3d at 492.
Plaintiff relies primarily on the testimony of Mr. Mauldin and Mr. Dutridge regarding
Velan Valve products aboard the Forrestal. (D.I. 384 at 1-4) However, no witness could testify
that Plaintiff ever worked in the vicinity of any Velan Valve product during Plaintiffs time aboard
the Forrestal. Plaintiff submits evidence that there were about 396 Velan Valves in the MMR
aboard the Forrestal (two transfer valves for each of 198 fuel tanks). (D.1. 357, Ex. G at 116:1315) Plaintiff primarily relies on Mr. Mauldin's testimony that the valves utilized asbestos packing.
(11/13/14 Tr. at 26:24-29:3) Removal of the packing caused asbestos dust to become airborne as
it came out in pieces and the rest was blown out with an air hose. (Id) However, Mr. Mauldin
testified that the ship had been through overhauls several times in the number of years it was in
service. (Mauldin Dep. Tr. at 62:1-63:20) Thus, there is no evidence of record to support whether
any packing removed from Velan valves was the original asbestos-containing component applied
by the manufacturer.
Plaintiff relies on the testimony of Mr. Dutridge for the factual support that ninety percent
of the asbestos-containing components were original to the equipment aboard the Forrestal. (D.I.
3 84, Ex. F at 90: 11-91: 13) However, Mr. Dutridge' s ninety percent reference relates to insulation,
not packing. (Id at 88:4-89:6) Therefore, viewing the evidence most favorably to Plaintiff, there
is only a "mere showing that defendant's product was present somewhere at plaintiffs place of

22

work." Walkup v. Air & Liquid Sys. Corp., 2014 WL 4447568, at *1 (D. Del. Sept. 8, 2014)
(quoting Lindstrom, 424 F.3d at 492).
As discussed supra in section IV(B)(l), Plaintiff has failed to show beyond mere
speculation and conjecture that he was exposed to asbestos from products manufactured or
supplied by Velan Valve. Consequently, the court should grant Velan Valve's motion for summary
judgment. See Lindstrom, 424 F .3d at 492.
4. Defendant GE

The court should grant GE's motion for summary judgment because Plaintiff has failed to
show that a material issue of fact exists as to whether GE's product was a substantial factor in
causing Plaintiffs injuries. See Lindstrom, 424 F.3d at 492.
Plaintiff relies primarily on the testimony of Mr. Mauldin for product identification and
causation. (D.I. 383 at 1-5) It is undisputed that there were GE turbines and generators on board
the Forrestal. (D.I. 390 at 2-4) However, none of Plaintiffs product identification witnesses
observed Plaintiff near a GE product or observed any work being performed on GE Products. Mr.
Mauldin offers testimony about dust created when insulation on the generators were replaced. (D.I.
383 at 2-3, Ex. A at 179:22-184:14, 259:10-264:6) From such testimony, Plaintiff argues that the
issue of Plaintiffs exposure to asbestos from GE products should be decided by the jury. (Id at 79) However, Plaintiff presents no evidence as to whether GE specified the use of asbestoscontaining insulation on its turbines. Thus, the presence of GE products on board the ship is not
sufficient to create a material issue of fact.
As discussed supra in section IV(B)(l), Plaintiff has failed to show beyond mere
speculation and conjecture that he was exposed to asbestos from products manufactured or

23

supplied by GE. Consequently, the court should grant GE's motion for summary judgment. See
Lindstrom, 424 F .3d at 492.

5. Defendant CBS
The court should grant CBS' motion for summary judgment because Plaintiff has failed to
show that a material issue of fact exists as to whether CBS' product was a substantial factor in
causing Plaintiffs injuries. See Lindstrom, 424 F.3d at 492.
Plaintiff relies primarily on the testimony of Mr. Mauldin and Mr. Dutridge regarding his
alleged exposure to original CBS (Westinghouse) pumps and turbines. (D.I. 386 at 2-6) Mr.
Mauldin recalls Westinghouse pumps aboard the F orrestal in both the MMR and the pump rooms.
He has no specific recollection of whether Plaintiff was ever present during work on Westinghouse
fire pumps. (Id at 2, Ex. A at 67:9-70:21) Mr. Mauldin concludes that because of Plaintiffs
responsibilities as a duty engineer, Plaintiff would have been around Westinghouse fire pumps
while others worked on them. (Id) Mr. Dutridge remembers work being done on Westinghouse
equipment on only one occasion. (D.I. 364, Ex.Fat 70:6-25; 85:13-86:3) Mr. Dutridge offers no
testimony that places Plaintiff in the vicinity of Westinghouse propulsion turbines (not fire pumps)
on the one instance when he recalls work was performed on the turbines. (Id.)
Assuming W esting~ouse machinery, whether turbines or fire pumps, was present aboard
the Forrestal, Plaintiff has not produced evidence sufficient to create a genuine issue of fact as to
whether he was substantially exposed to respirable asbestos dust from any insulation installed,
manufactured, or supplied by Westinghouse.
Plaintiff has offered no evidence as to whether any Westinghouse equipment aboard the
Forrestal contained any asbestos insulation or packing original to the equipment. Mr. Maudlin's
testimony that several overhauls of the ship took place during the time it was in service conflicts

24

with Mr. Dutridge's testimony that ninety percent of the asbestos-containing insulation was
original to the pumps. (D .I. 386, Ex. A at 62: 1-63 :20; Ex. C at 90: 11-91 :13) Methner testified that
he read specification sheets requiring asbestos insulation on pumps, but could not confirm with
certainty that he reviewed a Westinghouse specification sheet. (D.I. 386, Ex.Fat 302:12-303:9)
Although Westinghouse product identification aboard the Forrestal is established, the evidence in
the record fails to create a material issue of fact concerning the substantial exposure requirement.
As discussed supra in section IV(B)(l), Plaintiff has failed to show beyond mere
speculation and conjecture that he was exposed to asbestos from products manufactured or
supplied by CBS. Consequently, the court should grant CBS' motion for summary judgment. See
Lindstrom, 424 F .3d at 492.
6. Defendant Foster Wheeler

The court should grant Foster Wheeler's motion for summary judgment because Plaintiff
has failed to show that a material issue of fact exists as to whether Foster Wheeler's product was
a substantial factor in causing Plaintiffs injuries. See Lindstrom, 424 F .3d at 492.
Plaintiff relies on the testimony of Mi. Mauldin, as discussed above. Plaintiff further argues
that documents produced by Foster Wheeler show that they knew Foster Wheeler pumps would
be used in high heat applications and that the pumps needed asbestos-containing components. (D.I.
375, Ex. F) However, the Foster Wheeler documents produced do not pertain to the Forrestal,
where Plaintiff alleges exposure, and therefore they cannot be used to support claims pertaining to .
Foster Wheeler pumps aboard the Forrestal. 9 (D.I. 408 at 7)

9

Foster Wheeler contends that there were no Foster Wheeler pumps present aboard the Forrestal.
(D.I. 408 at 7)
25

Mr. Mauldin's testimony does not demonstrate that a genuine issue of material fact exists
concerning Plaintiffs alleged exposure to a Foster Wheeler product. (D.I: 375, Ex. A at 28:2430: 17) Although Mr. Mauldin testified that he worked with machinery, which could have included
Foster Wheeler boilers and products manufactured by any named Defendant, Mr. Mauldin failed
to identify an instance in which Plaintiff was exposed to asbestos as a result of a Foster Wheeler
product. (Id. at 177:1-179-17, 176:3-179:14) Plaintiff was not responsible for making repairs while
he and Mr. Mauldin were aboard the Forrestal together. (Id. at 176:1-17)
Mr. Mauldin also testified that he is almost certain Plaintiff would have been in the room
while someone was working on machinery, but he does not identify a time when he or Plaintiff
worked on a Foster Wheeler boiler or pump in particular. (Id. at 177:22-178:7) Mr. Mauldin has
no specific recollection as to witnessing Plaintiff oversee work on a Foster Wheeler boiler, stating
that he never personally saw Plaintiff working with or supervising maintenance to Foster Wheeler
products. (Id. at 70:9-21) Mr. Mauldin admitted that it was not his job to keep track of Plaintiff.
(Id. at 175:25-176:2) Furthermore, although Mr. Mauldin testified that servicemen could have

worked on machinery at port different from that which they had originally been assigned, Mr.
Mauldin testified that Plaintiff would not have been around during those repairs. (Id. at 293 :2-19)
Mr. Mauldin did testify as to personally working on pumps containing insulation; however
Mr. Mauldin did not specifically identify any pump as manufactured by Foster Wheeler, nor did
he testify as to personal knowledge of Plaintiff working on a Foster Wheeler product containing
asbestos. Mr. Mauldin was ninety-nine percent sure Plaintiff breathed asbestos dust while on tlie
Forrestal, but at no time did he identify Foster Wheeler as the manufacturer of a product that caused
such exposure. Mr. Mauldin made generalized affirmations of Plaintiffs exposure to products of
all named Defendants when prompted by Plaintiffs counsel.

26

Moreover, Plaintiff could not identify Foster Wheeler as the manufacturer of any boiler on
any of the ships on which he served. (D.I. 348, Ex. A 198:9-13) Plaintiff did not testify that he
personally worked with any Foster Wheeler boiler while aboard the Forrestal. (Id. at 198:18-21)
This court should grant Foster Wheeler's motion for summary judgment on the threshold
issue of lack of product identification. The evidence presented by Plaintiff in opposition to the
motion fails to show that a material issue of fact exists as to the presence of any Foster Wheeler
product that would have exposed Plaintiff to asbestos aboard the Forrestal.
Under Rule 56(c)(l)-(4), the opposing motion for summary judgment must offer evidence
that a genuine issue of material fact exists. In the instant case, Plaintiff relies exclusively on Mr.
Mauldin's testimony to establish product identification. Mr. Mauldin's testimony consists of an
affirmative response to Plaintiff's counsel's question identifying the name of Foster Wheeler
among numerous other Defendants listed in the question:
Q:

All right. So if we were to summarize what we just talked about, there's a 99percent chance that Mr. Dumas breathed the asbestos dust from these products?

A:

I would say yes.

(D.I. 375, Ex. A at 185:712)
This question was posed following lengthy questioning of Mr. Mauldin wherein he made no
identification on his own of the presence of a Foster Wheeler product aboard the Forrestal. (D.I.
375, Ex. A at 183:7-185:5) In the absence of any other evidence of product identification in the
record, Plaintiff fails to satisfy his obligation under Rule 56(c).
As discussed supra in section IV(B)(l), Plaintiff has failed to show beyond mere
speculation and conjecture that he was exposed to asbestos from products manufactured or
supplied by Foster Wheeler. The "mere showing that [Foster Wheeler's] product was present

27

somewhere at plaintiff's work is insufficient." Lindstrom, 424 F.3d at 492. Consequently, the
court should grant Foster Wheeler's motion for summary judgment. See id.
7. Defendant Owens-Illinois

The court should grant Owens-Illinois' motion for summary judgment because Plaintiff
has failed to show that a material issue of fact exists as to whether Owens-Illinois' product was a
substantial factor in causing Plaintiff's injuries. See Lindstrom, 424 F.3d at 492.
Plaintiff relies solely on the testimony of Mr. Mc Whirter regarding his personal knowledge
of the Owens-Illinois (Owens-Coming) alleged asbestos-containing insulation running throughout
the FDR piping systems. (D.I. 380, Ex. D 40:24-43:25) Mr. McWhirter also testified that Plaintiff
was likely to breathe in respirable dust from original Owens-Illinois (Owens-Corning) insulation
during the yard period. (Id at 40: 1-43 :25) However, Mr. Mc Whirter did not know Plaintiff or what
Plaintiff's duties were aboard the FDR. (Id at 25:6-14) There is no evidence that Plaintiff ever
worked with, or was present when someone else worked on Owens-Illinois (Kaylo) products
aboard the FDR.
Construing the evidence in the light most favorable to Plaintiff, the record demonstrates
that pipe insulation on the FDR included the Owens-Illinois brand supplied by Owens Coming.
(Id at 2, Ex. D at 40:24-43:25) Furthermore, removal and replacement of the insulation created

dust in all areas of the ship, according to Mr. McWhirter. (Id) However, no evidence exists that
Plaintiff was exposed to asbestos dust from any insulation manufactured or supplied by OwensIllinois. No evidence places Plaintiff in the vicinity of respirable dust from pipe insulation.
These facts are similar to the facts set forth in Lenig v. Cleaver Brooks Co. In that case,
witness testimony and documentary evidence revealed that asbestos pipe insulation removal,
replacement, and installation work was performed during the relevant time period, creating dust

28

throughout the whole ship, but no witness personally knew the plaintiff. Lenig v. Cleaver Brooks

Co., 2015 WL 5683137, at *2 n.1 (E.D. Pa. March 4, 2015). In granting summary judgment, the
court observed that there was no evidence the plaintiff was exposed to respirable asbestos dust
from any insulation manufactured or supplied by the defendant, because no evidence placed the
plaintiff in the vicinity of respirable asbestos from the pipe insulation, and no 'evidence showed
that the old insulation being removed was manufactured or supplied by the defendant. Id As a
result, the court declined to find that Owens-Illinois insulation was a substantial factor in the
development of the plaintiffs illness, because such a finding would be based on conjecture. Id
As discussed supra in section IV(B)(l), Plaintiff has failed to show beyond mere
speculation and conjecture that he was exposed to asbestos from products manufactured or
supplied by Owens-Illinois. Consequently, the court should grant Owens-Illinois' motion for
summary judgment. See Lindstrom, 424 F .3d at 492.
8. Defendant Buffalo
The court should deny Buffalo's summary judgment motion because Plaintiff is able to
demonstrate that there is a material issue of fact as to whether Plaintiffs injuries were caused by
asbestos-containing gaskets and packing in Buffalo pumps. See Lindstrom, 424 F .3d at 492.
Plaintiff has presented sufficient circumstantial evidence to create a fact issue for the jury as to
whether Buffalo supplied the original asbestos-containing gaskets and packing in its pumps, and
· that Plaintiff was substantially exposed to this asbestos.
Plaintiff identified Buffalo pumps being used on the Forrestal during both ofhis tours. (D.I.
378, Ex. A at 101:10-102:4, 175:25-176:1) Plaintiff testified to his knowledge of Buffalo pumps
because he reviewed their manuals. (Id at 175:13-176:2) Mr. Mauldin also testified that he
personally memorized and diagrammed every system in the engine room aboard the Forrestal so

29

he could accurately describe Buffalo products. (D.I. 378, Ex. C at 216:21-218:1) He also
remembers Buffalo pumps because the pumps had metal nametags attached to them. (Id. at 135:1925) Mr. Mauldin was present during the pump repair process, and testified to working on Buffalo
pumps in each section of the MMR. (Id. at 209:23-224:15) Mr. Mauldin also testified that Plaintiff
would have been exposed in the machinery space where work was done with asbestos parts for at
least eight hours per day, five to seven days a week, creating a fact issue regarding substantial
exposure. (Id. at 209:23-224: 15)
The testimony of Mr. Methner and Mr. Smiley supports Plaintiffs claim of substantial .
exposure to Buffalo pumps. Specifically, Plaintiff relies on testimony that specification sheets used
aboard the Forrestal required external asbestos insulation to be applied to the machinery because
the Forrestal ran on superheated steam at 1200 degrees Fahrenheit. (D.I. 378, Ex. F at 194:15195:9, 281:12-282:2; Ex.Eat 67:11-68:6) Moreover, a genuine issue of material fact exists as to
whether Plaintiffs alleged exposure was a substantial factor in causing his injuries based on the
testimony of Mr. Dumas, Mr. Dutridge, Mr. Mauldin, and Mr. Methner. Mr. Dumas testified that
the pumps were original to the Forrestal, and Mr. Dutridge reviewed the manuals and determined
that the insulation, packing, and gaskets were original to the Buffalo pumps. (D.I. 378, Ex. A at
271:11-272:4; Ex. B at 90:11-91:2, 112:21-24) Mr. Mauldin and Mr. Methner estimated that
between seventy-five and eighty percent of the insulation was original from the time ofinstallation.
(D.I. 378, Ex.Cat 192:25-196:19; Ex.Fat 41:7-16)
Viewed in the light most favorable to Plaintiff, the jury or fact finder could decide that
Buffalo supplied the original, asbestos-containing gaskets and packing inside its pumps, and that
Plaintiff experienced substantial exposure to Buffalo's asbestos-containing products, raising a
genuine issue of material fact with respect to Buffalo's liability for Plaintiffs injuries. Therefore,

30

the court should deny Buffalo's summary judgment motion with respect to Plaintiffs injuries
allegedly caused by exposure to asbestos-containing gaskets and packing in Buffalo's pumps.
9.Defendant Aurora

The court should deny Aurora's summary judgment motion with respect to whether
Plaintiff was exposed to asbestos-containing gaskets and packing in Aurora pumps such that it was
a substantial factor in causing his injuries. See Lindstrom, 424 F. 3d at 492. Plaintiff has presented
circumstantial evidence showing that Aurora supplied the original, internal asbestos-containing
gaskets and packing in its pumps, and that Plaintiff was exposed to this asbestos.
Plaintiff testified specifically that from 1958-1960, he was exposed to asbestos on the
Forrestal when he had to replace the packing and insulation on Aurora pumps. (D.I. 374, Ex. A at
101 :1-102:4) Although he could not remember which pump was which, he specifically identified
and remembered working with Aurora pumps; he knew they were on the ship. (Id. at 300:3-9,
101:10-102:7) Plaintiff testified that he oversaw repairs and maintenance to these pumps. (Id at
111 :13-112:22) He recalled that the insulation that had to be sawed off Aurora pumps was original
asbestos insulation. (Id at 272:13-21) He testified that he supervised workers who would "pull the
pump out, take it to the shop, rebuild [to] specifications, and then get it back into the shop and
line ... and then re-cover it." (Id. at 112:23-113:6) There were times when he was there while
workers were taking the insulation off, and other times he was there when they were putting the
pump back together. (Id at 113:8-10). He testified that he oversaw work on Aurora pumps that
included pulling insulation, relining pumps, or replacing seals on pumps. (Id at 121 :3-122:9) He
testified that after those work events, asbestos "was all over." (Id) Moreover, he identified Aurora
when he recalled looking at their manuals dealing with pumps that he was responsible for on the
Forrestal. (Id. at 175:13-176:2)

31

Viewed in a light most favorable to the Plaintiff, the jury or fact finder could decide that
Aurora supplied the original, asbestos-containing gaskets and packing inside its pumps, which
raises a genuine issue of material fact with respect to Aurora's liability for Plaintiffs injuries.
Therefore the court should deny Aurora's summary judgment motion with respect to Plaintiffs
injuries allegedly caused by exposure to asbestos-containing gaskets and packing in Buffalo
pumps.

10.

Defendant Ingersoll Rand

The court should deny Ingersoll Rand's summary judgment motion 10 because Plaintiff is
able to demonstrate that there is a material issue of fact as to whether Plaintiffs injuries were
caused by asbestos-containing gaskets and packing in Ingersoll Rand's pumps such that the
exposure was a substantial factor in causing Plaintiffs injuries. See Lindstrom, 424 F. 3d at 492.
Plaintiff has presented circumstantial evidence showing that Ingersoll Rand supplied the original,
internal asbestos-containing gaskets and packing in its pumps, and that Plaintiff was substantially
exposed to this asbestos.
Plaintiff relies on the testimony as discussed supra in section II(C) as well as the specific
testimony of Mr. Mauldin, who recalled working with Ingersoll.Rand reciprocating emergency
feed pumps in the MMR; Mr. Methner, who recalled eight steam driven Ingersoll Rand pumps in
the main spaces and additional ones in the auxiliary spaces; and Mr. Dutridge, who worked on
Ingersoll Rand pumps while Plaintiff was on board the Forrestal. (D.I. 381 at 8-12) Mr. Methner
testified that Ingersoll Rand pumps originally came with asbestos packing in them; the packing
was a lead foil type with asbestos and cloth that was specifically used because it did not damage

10

However, see n.6, supra, granting Ingersoll Rand's motion in part as to Plaintiffs punitive
damages claim.
32

the rotating shaft. (D.I. 381, Ex. B at 320:12-23, 321 :6-322:18) Additionally, Mr. McWhirter
testified that Plaintiff would have breathed substantial amounts of asbestos dust from original
Ingersoll Rand booster pump packing during the Bremerton yard period in 1956, as heavy
maintenance was conducted aboard the FDR. (D.I. 380, Ex. D at 107:10-108:9, 131:19-132:6,
142:3-25)
Plaintiff argues that Ingersoll Rand supplied equipment for high heat application. (Id.)
Plaintiff alleges that the bare metal' defense does not apply because based on Mr. McWhirter's
testimony, Ingersoll Rand shipped its pumps with asbestos packing in them-packing which was
comprised of a lead foil type with asbestos and cloth material. (D.I. 380, Ex.Bat 220: 12-23, 321 :6322: 18) Plaintiff alleges Ingersoll Rand knew that asbestos-containing products would be used in
conjunction with its products. (D.I. 381 at 13).
Viewed in a light most favorable to Plaintiff, the jury or fact finder could decide that
Ingersoll Rand supplied the original, asbestos-containing gaskets and packing inside its pumps,
raising a genuine issue of material fact with respect to Ingersoll Rand's liability for Plaintiffs
injuries.

11.

Defendant IMO

The court should deny IMO's summary judgment motion because Plaintiff is able to
demonstrate that there is a material issue of fact as to whether Plaintiffs injuries were caused by
asbestos-containing gaskets and packing in IMO (DeLaval) pumps such that the exposure was a
substantial factor in causing Plaintiffs injuries. See Lindstrom, 424 F. 3d at 492. Plaintiff has
presented circumstantial evidence showing that IMO supplied the original, internal asbestoscontaining gaskets and packing in its pumps, and that Plaintiff was exposed to this asbestos.

33

Plaintiff relies on the testimony as discussed supra in section II(C) as well as his own
testimony that every ship he served on (not including the Tidewater and Vulcan), he worked on or
was in the presence of someone else working on IMO (DeLaval) pump insulation tearouts, causing
him to breathe in asbestos dust. (D.I. 376, Ex. A at 126:23-127:5, 216:15-217:3, 274:3-17, 276:4278:11); see also supra section II(D)(l l). Plaintiff knew that these were IMO (DeLaval) pumps
because he reviewed their manuals and worked on IMO (DeLaval) pumps. Id. at 175:13-176:3. In
addition, Plaintiff again relies on Mr. Mauldin, who testified that he personally diagrammed and
memorized every system in the engine room, including IMO (DeLaval) pumps, and recalled
DeLaval nametags on a screw-type oil pump. (D.I. 378, Ex.Cat 216:21-218:1)
Plaintiff also relies on the testimony of Mr. McWhirter, who worked with IMO (DeLaval)
pumps on the FDR. (D.I. 380, Ex. D at 119:1-121:19). Mr. McWhirtertestified that IMO (DeLaval)
pumps utilized braided carbon ring compressible asbestos graphite packing which would send
asbestos dust airborne any time it was removed, repaired, or serviced. (Id.)
Viewed in the light most favorable to Plaintiff, the jury or fact finder could decide that
IMO supplied the original, asbestos-containing product, which raises a genuine issue of material
fact with respect to IMO's liability for Plaintiffs injuries. A reasonable jury could conclude from
the evidence that Plaintiff was exposed to asbestos from a product manufactured or supplied by
IMO such that it was a substantial factor in the development of his illness.
12.

Defendant Warren Pumps

I recommend that Warren's motion for summary judgment be denied 11 because a genuine
issue of material fact exists as to whether Plaintiffs exposure to Warren's product was a substantial
factor in causing his alleged injuries.

11

However, see n.6, supra, granting Warren's motion as to Plaintiffs punitive damages claim.
34

Plaintiff had two tours of duty on the Forrestal. Plaintiff does not offer any evidence of
exposure to a Warren Pump product during his first tour from 1958-1960. Plaintiff relies primarily
on the testimony of Mr. Mauldin relating to Plaintiffs second tour on the Forrestal when their
service overlapped.
The first dispute of fact between the parties concerns the identification of the particular
pump manufactured by Warren and installed aboard the Forrestal. Warren avers that the only
pumps it supplied were "JP-5 fuel oil" pumps, which had no asbestos containing compounds. (D.I.
393 at 2) Plaintiff offers contrary evidence through Mr. Mauldin's testimony that Warren
manufactured the "main feed" pumps present in the MMR on board the Forrestal. (D.I. 382 at 2,
Ex. A at 143:21-144:13) Moreover, such pumps contained original asbestos containing
components. (Id at 192:25-195:17, 233:2-234:20, Ex.Fat 90:19-91:13) Furthermore, Plaintiff
cites to the Warren Technical Manual regarding product specifications for its pumps, which lists
replacement packing, gaskets, and insulation containing asbestos. (Id at 4, Ex. E)
Viewing the facts in the light most favorable to Plaintiff, a jury could determine that Warren
supplied the main feed pumps on the F orrestal. Absent direct evidence of exposure to Warren's
products, such as testimony of an eye..;witness, "'substantial exposure is necessary to allow an
inference from circumstantial evidence that the exposure was a substantial factor in causing the
injury."' Walkup v. Air & Liquid Systems, Civ. No. 12-1635, 2014 WL 4447568, at *1 (D. Del.
Sept. 8, 2014) (Mem.) (quoting Harbour v. Armstrong World Indus., Inc., Civ. No. 90-1414, 1991
WL 65201, at *4 (6th Cir. April 25, 1991)) (emphasis in original).
Circumstantial evidence is sufficient in the instant case to create an issue of fact for the
jury to resolve concerning whether Plaintiff had substantial exposure to a Warren pump containing
asbestos components. In addition to identifying original insulation on the pumps, Mr. Mauldin

35

described the removal of large gaskets that distributed packing material, which contained asbestos,
and created dust in the MMR sufficient to cover every man working in the MMR from head to toe.
(D. I. 382, Ex. A at 223:18-24, 224:12-15, 235:24-236:2) Plaintiff, as a duty engineer, was
frequently present in the MMR during pump overhauls. (Id. at 178:15-184:4) I recommend that
the jury should determine whether such circumstantial evidence proves substantial exposure.
V.

CONCLUSION

As indicated in the chart infra and for the foregoing reasons, I recommend that the court
GRANT Electrolux's motion for summary judgment, GRANT ABB's motion for summary
judgment, GRANT Velan Valve's motion for summary judgment, GRANT GE's motion for
summary judgment, GRANT CBS' motion for summary judgment, GRANT Foster Wheeler's
motion for summary judgment, GRANT Owens-Illinois' motion for summary judgment, DENY
Buffalo Pumps' motion for summary judgment, DENY-IN-PART Ingersoll Rand's motion for
summary judgment, DENY Aurora's motion for summary judgment, DENY IMO's motion for
summary judgment, and DENY-IN-PART Warren's motion for summary judgment.
··....·.

··.
.•..

.:

·.·.···

w ..

Motion fqr $ii.U1Piacy JqJl.gm~11:t

·:·:

Defendant
·.

... :

·.:..

·:·:···

Electrolux Home Products Inc.
ABB Inc.
Velan Valve Corporation
General Electric Company
CBS Corporation
Foster Wheeler LLC
Owens-Illinois Inc.
Buffalo Pumps Inc.
Ingersoll Rand Company
Aurora Pump Company
IMO Industries Inc.
Warren Pumps LLC

·.. ·.

: .

.

GRANT
GRANT
GRANT
GRANT
GRANT
GRANT
GRANT
DENY
DENY-IN-PART
DENY
DENY
DENY-IN-PART

36

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. 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.1 (3 d Cir.
2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.

Dated: September

30 , 2015

37