Dumas v. ABB Group Inc. et al
MEMORANDUM. Signed by Judge Gregory M. Sleet on 1/26/2016. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
ABB GROUP, INC., et al.,
Civil Action No.: 13-229-GMS
Pending before the court is U.S. Magistrate Judge Fallon's Report and Recommendation
("the R&R"), dated September 30, 2015 (D.I. 423), and the Objections. (D.I. 424, 425, 426, 436,
437). Judge Fallon reviewed the motions for summary judgment of 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, "the Defendants"). The plaintiff Arthur Dumas ("the Plaintiff'' or "Dumas"),
opposed Defendants' motions for summary judgment. (D.I. 375; 383; 380; 374; 384; 382; 385;
386; 381; 378; 376; 377).
In the R&R, Judge Fallon recommended that the court grant the Defendants' motions for
summary judgment as to the following defendants: Electrolux, ABB, Velan Valve, GE, CBS,
Foster Wheeler, and Owens-Illinois and deny summary judgment as to the following defendants:
Buffalo, Ingersoll Rand (denied-in-part), Aurora, IMO, and Warren (denied-in-part). 1 For the
reasons below, the court will overrule the parties' objections and adopt Judge Fallon's decision.
STANDARD OF REVIEW
Judge Fallon filed her R&R pursuant to Rule 72(b)(l) of the Federal Rules of Civil
Procedure. The pending objections are therefore dispositive and the court's review is de nova. 28
U.S.C. § 636(b)(l)(B); Fed. R: Civ. P. 72(b)(3). The court may accept, reject, or modify the
recommendations of the magistrate judge. Fed. R. Civ. P. 72(b)(3). The court also may receive
further evidence or return the matter to the magistrate judge with instructions for further
proceedings. Id. Under the statute, an exception occurs and de nova review is not required when
"a party makes general or conclusory objections that do not direct the court to a specific error in
the magistrate judge's proposed findings and recommendations." T. W.T. Distrib., Inc. v. Johnson
Prods. Co., 966 F. Supp. 2d 576, 578 (W.D.N.C. 2013) (Conrad, J.) (internal quotation marks
omitted). "General objections include those that merely restate or reformulate arguments a party
has made previously to a magistrate judge. Examining anew arguments already assessed in the
M & R would waste judicial resources; parties must explain why the M & R is erroneous, rather
than simply rehashing their prior filings." Wiggins v. Colvin, 2014 WL 184414, at *1 (W.D.N.C.
Jan. 15, 2014) (Mullen, J.) (citations, alterations and internal quotation marks omitted).
Summary judgment is appropriate "if the pleadings, depositions, answers to
1 Dumas argues that summary judgment should be denied regarding punitive damages against Ingersoll Rand and
Warren. (D.I. 381at14-17; D.I. 382 at 13-16.) However, Dumas provides no argument in support of these claims.
(Id.) Therefore, the motions for summary judgment oflngersoll Rand and Warren should be granted in part as
unopposed regarding Dumas' punitive damages claims. (See D.I. 423 at 18.)
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a matter
oflaw." Fed. R. Civ. P. 56(c); see also Boyle v. Cnty. ofAllegheny Pa., 139 F.3d 386, 393 (3d Cir.
1998). Thus, summary judgment is appropriate only if the moving party shows there are no
genuine issues of material fact that would permit a reasonable jury to find for the non-moving
party. Boyle, 139 F.3d at 393. A fact is material only if it might affect the outcome of the suit. Id.
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). An issue is genuine if a
reasonable jury could possibly find in favor of the non-moving party with regard to that issue. Id.
In deciding lhe motion; the court must construe all facts 'in the light most favorable to the non- ·
moving party. Id. The court must review the record as a whole and "draw all reasonable inferences
in favor of the nonmoving party, [but] may not make credibility determinations or weigh .the
evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
After having reviewed the record in this case, the R&R, the parties' submissions, and the
applicable law, the court agrees with and affirms Magistrate Judge Fallon's recommendations.
Thus, the court grants summary judgment for Electrolux, ABB, Velan Valve, GE, CBS, Foster
Wheeler, and Owens-Illinois2 and denies it for Buffalo, Ingersoll Rand (denied-in-part), Aurora,
IMO, and Warren (denied-in-part).
Under maritime law, to establish a prima facie case of asbestos-product liability from a
Neither party objects to Judge Fallon's recommendation to grant summary judgment for Electrolux, ABB, Velan
Valve, GE, CBS, Foster Wheeler, and Owens-Illinois. Judge Fallon determined that Dumas failed to show that a
material issue of fact exists as to whether these defendants' products were a substantial factor in causing Dumas'
injuries. (See D.I. 423 at 18-29). The court agrees and will adopt this recommendation without additional
manufacturer, a plaintiff must prove: 1) he was exposed to the defendant's product, and 2) the
product was a substantial factor in causing the injury. Lindstrom v. A-C Product Liability 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 also require proof that (3) the defendant manufactured or
distributed the asbestos-containing product that caused the alleged exposure. Abbay v. Armstrong
Int'l, Inc., 2012 WL 975837, at *1 n.l (E.D. Pa. Feb. 29, 2012). "In establishing causation, a
plaintiff may rely upon direct or circumstantial evidence that supports an inference of exposure to
the defendant's product for some length of time."
However, "minimal exposure" is
, insufficient, and -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).
a. Objections of Buffalo
Buffalo objects to the R&R on three grounds. (D.I. 436). First, Buffalo argues that Dumas
never established that he was exposed to an asbestos-containing product attributable to Buffalo
Pumps. (Id. at 2.) Second, Buffalo contends that it cannot be held liable for external insulation
and flange gaskets it did not manufacture or supply. (Id. at 3.) Third, Buffalo posits that the
conclusions in the R&R improperly rely on speculative testimony unsupported by the facts. (Id.
at 3-5.) Dumas responds that these objections are insufficient to warrant de nova review because
they merely summarize arguments Buffalo made in its initial briefing on the motion for summary
(D.I. 445 at 2-3).
In addition, Dumas argues that it has presented sufficient
circumstantial evidence to create a fact issue for the jury as to whether Buffalo Pumps supplied
the original asbestos-containing gaskets and packing in its pumps, and that Dumas was
substantially exposed to this asbestos. (D.I. 378, Ex. A at 101:10-102:4, 175:25-176:1).
The court agrees that these arguments were previously considered. (See D.I. 367 at 13-14,
10-12, 1-8.) In addition, the court finds that issues of material fact still exist. Dumas testified that
based on Buffalo's manuals, Buffalo produced the asbestos-containing materials that would have
caused Dumas to be exposed to asbestos. (Ex.Bat 175:13-176:2.) Mr. Dutridge also identified
Buffalo products and testified that they were insulated with asbestos. (Id. at 90: 11-91 :2). Mr.
Mauldin also testified that Dumas was exposed to asbestos through Buffalo products for at least
eight hours per day, five to seven.days a week. (Id. at 209:23-224:15.) Viewed in the light most
favorable to Dumas, a fact finder could decide that Buffalo supplied the original, asbestoscontaining products, and that Dumas .experienced substantial exposure, raising a genuine issue of
material fact as to Buffalo's liability.
b. Objections of Aurora Pump
Aurora Pumps objects to the finding that there is a genuine issue of material fact that Aurora
supplied asbestos-containing gaskets· and packing inside its pumps.
(D.I. 424 at 6.) Aurora
contends that there is no evidence that it manufactured or distributed the pumps that harmed
Dumas. (Id. at 9.) Dumas responds that Aurora's objections reassert arguments made in the initial
briefing, (D.I. 439 at 2), and that Mr. Dutridge, Mr. Methner, Mr. Mauldin and Dumas testified that
Dumas was exposed to asbestos through Aurora's products. (Id. at 3-6.)
The-court accepts Judge Fallon's recommendation to deny Aurora's summary judgment
motion and reject Aurora's arguments, which were previously raised. (See D.I. 354 at 5-14).
Dumas has presented circumstantial evidence showing that Aurora supplied the original asbestoscontaining gaskets and packing in its pumps and that Dumas was exposed to this asbestos. (Ex. A
at 101:1-102:4). Dumas 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 and gasket seal work. (Id. at 119:12-122:9). Dumas testified that Aurora
manufactured the various pumps based upon their manuals. (Id. at 175:13-176:2.) Viewed in a
light most favorable to Dumas, the fact finder could decide that Aurora supplied the original,
asbestos-containing products and that Dumas was substantially exposed as a result.
c. Objections of Ingersoll Rand
Ingersoll Rand argues that Judge Fallon erred when she recommended the court deny
Ingersoll Rand's summaiy judgm~nt motion because there is no evidence that Dumas was exposed
to asbestos from any Ingersoll Rand product. (D.I. 425 at 3.) Judge Fallon relied on the testimony
of four witnesses: Mr. Mauldin, Mr. Methner, Mr. Dutridge, and Mr. McWhirter. Ingersoll Rand
argues that none of these witnesses' testimony establishes that Dumas was actually exposed to
asbestos from an Ingersoll Rand pump. (Id.) Dumas responds that these arguments fail to point
to specifie problems in Judge Fallon's analysis and that these objections are insufficient to warrant
de novo review because they repeat arguments that Ingersoll Rand made in its initial briefing on
the motion for summary judgment. (D.I. 438 at 2-3.)
The court must agree with Dumas. Ingersoll Rand raises arguments included in previous
summary judgment briefing.
(D.I. 365 at 4-13, 16-18).
Additionally, Dumas presented
circumstantial evidence that Ingersoll Rand supplied the original asbestos-containing gaskets and
packing in its pumps and that Dumas was substantially exposed to asbestos as a result. (D.I. 381
at 13). Specifically, Mr. Mauldin testified that Ingersoll Rand pumps utilized asbestos containing
insulation, (id. at 1-4, Ex. A at 179:22-184: 14, 269:9-17), and Mr. Methner testified that Ingersoll
Rand pumps utilized asbestos-containing gaskets and packing. (D.I. 381 at 3-5, Ex. B at 311 :20-
312:23, 309:8-310: 19).
Viewed in a light most favorable to Dumas, the fact finder could
determine that Ingersoll Rand supplied the asbestos-containing products, raising a genuine issue
of material fact with respect to Ingersoll Rand's liability.
d. Objections of IMO
IMO argues that the R&R erroneously found that Dumas produced sufficient co-worker
testimony to conclude that he was in the presence of others while they worked o!1 IMO products.
(D.I. 426 at 2.) They also argue that the R&R erroneously concluded that Dumas was exposed to
IMO's original components parts. (Id. at 5.) Finally, they argue that the R&R erred when it
supported Dumas; contention that IMO's pumps were a "substantial factor" in causing Mr. Dumas'
injuries. (Id. at 10.) Dumas responds that these objections are insufficient to warrant de nova
review because they repeat previously rejected arguments. (D.I. 443 at 2-3.) Dumas also argues
that it has alleged sufficient facts to demonstrate exposure to IMO's asbestos-containing gaskets
and packing in IMO pumps through the testimony of Mr. Mauldin, Mr. Methner, Mr. McWhirter,
and Dumas himself. (D.I. 443 at 3-6.)
The court must agree with Dumas and deny IMO's summary judgment motion. IMO
advanced the same arguments in its summary judgment briefings. (D .I. 398 at 1-10.) Additionally,
Dumas developed circumstantial evidence showing that IMO supplied the original, internal
asbestos containing gaskets and packing in its pumps through the testimony of Mr. McWhirter's,
(D.I. 376 at 6, Ex. G at 107:20-108:4, 114:9-115:16, 122:18-25), Mr. Mauldin, (D.1. 376 at 4-7),
and through Dumas' own testimony. (Ex. G at 102:8-11, 103:3-15; 112:18-113:21.) Viewed in a
light most favorable to Dumas, the fact finder could conclude that Dumas' injuries were caused by
asbestos-containing IMO products and that the exposure was a substantial factor in causing Dumas
injuries, thus raising a genuine issue of material fact with respect to IM O's liability for Dumas'
e. Objections of Warren
Warren objects to Magistrate Judge Fallon's conclusion that there was a genuine dispute
as to whether Dumas' alleged injuries were substantially caused by asbestos-containing products
manufactured or supplied by Warren. (D.I. 423). Warren avers that it did not manufacture the
main feed pumps used aboard the USS Forrestal. ·Warren argues that Magistrate Judge Fallon's
conclusion that Dumas' exposure evidence is conjecture and thus insufficient to withstand
summary judgment. (Id. at 19-28.) Dumas responds that these objections are insufficient to
warrant de nova review because they summarize arguments Warren made in its initial briefing on
the motion for summary judgment, which Judge Fallon rejected. (D.I. 393,1-5, 5-8.) Dumas
contends that Warren supplied the main feed pumps on the Forrestal and that this was a substantial
factor in Dumas' asbestos exposure. (D.I. 423 at 14, 34-35.)
The court must agree with Judge Fallon that there is an issue of fact as to whether Dumas
had substantial exposure to a Warren pump containing asbestos components. Mr. Mauldin testified
that Warren manufactured the "main feed" pumps present in a shop where Dumas worked, (D.I.
382 at 2, Ex. A at 143:21-144:13), and that such pumps contained original asbestos infused
components. (Ex. Aat 192:25-195:17, 233:2-234:20, Ex.Fat 90:19-91:13). Dumas also relies on
the Warren Technical Manual regarding product specifications for its pumps, which lists
replacement packing, gaskets, and insulation containing asbestos. (Ex. E). Viewing the facts in
the light most favorable to Dumas, a fact finder could determine that Dumas was exposed to
asbestos as a result of pumps supplied by Warren and that this was a substantial factor in Dumas'
For the foregoing reasons, the court adopts the magistrate judge's R&R. The court grants
the Defendants' motion for summary judgment as to Electrolux, ABB, Velan Valve, GE, CBS,
Foster Wheeler, and Owens-Illinois and denies summary judgment as to Buffalo, Ingersoll Rand
(denied-in-part), Aurora, IMO, and Warren (denied-in-part). The court grants summary judgment
as to Ingersoll Rand and Warren on the issue of punitive damages, which Dumas has failed to
Dated: January !k_, 2016
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