MacQueen v. Union Carbide Corporation et al

Filing 646

REPORT AND RECOMMENDATIONS granting D.I. 630 MOTION for Summary Judgment as to Plaintiff's conspiracy claim filed by Crane Co.. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), brief ing 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 6/20/2018. Signed by Judge Christopher J. Burke on 6/6/2018. (dlb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARGUERITE MACQUEEN,
Individually and as the Surviving Spouse
of David MacQueen, Deceased,
Plaintif~,
V.

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UNION CARBIDE CORPORATION,
et al.,
Defendants.

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Civil Action No. 13-831-LPS-CJB
Consolidated

REPORT AND RECOMMENDATION
Presently before the Court ill'this asbestos-related personal injury action is Defendant
Crane Co. 's ("Crane") motion for summary judgment, filed pursuant to Federal Rule of Civil
Procedure 56 (the "Motion"). (D.I. 630) For the reasons that follow, the Court recommends that
Crane's Motion be GRANTED.

I.

BACKGROUND
On March 28, 2013, Plaintiff Marguerite MacQueen filed this lawsuit in the Superior

Court of Delaware, in and for New Castle County. (D.I. 1, ex. 1 ("Complaint")) In the
Complaint, Plaintiff asserted state law causes of action against 54 different Defendants based on
her husband David MacQueen's ("Mr. MacQueen") alleged exposure to asbestos and asbestoscontaining products while Mr. Mac Queen was employed: ( 1) by the United States Navy aboard
the U.S.S. Randolph and the U.S.S. Independence from 1956 to 1960; and (2) as a salesman by
Union Carbide Corporation from approximately 1963 to 1980. (Id at ,r 11)
On May 10, 2013, Crane and Defendant Elliott Company filed separate notices of

removal in this Court. (See, e.g., D.I. 1) This consolidated case was later referred to the Court
by District Judge Sue L. Robinson, for the Court to "conduct all proceedings ... [and] hear and
determine all motions, through and including the pretrial conference." (D.I. 152) Subsequent to
Judge Robinson's later retirement, the case was first re-assigned to visiting District Judge
Eduardo C. Robreno, and has since been re-assigned to Chief Judge Leonard P. Stark. The
substance of the Court's referral, however, has remained the same through these re-assignments.

(See, e.g., D.I. 627)
On February 8, 2017, the Court issued a Report and Recommendation (the "Feb. 8, 2017
R&R") on product identification/nexus summary judgment motions filed by Crane, Defendant
Warren Pumps LLC ("Warren") and Defendant Air & Liquid Systems Corporation ("Buffalo"). 1
(D.I. 612) The Court ultimately recommended that Warren's motion be granted in its entirety
(such that Warren should be dismissed as a Defendant in the case), and that Crane's and
Buffalo's respective motions be granted-in-part and denied-in-part. (Id. at 30) More specifically,
the Court ruled that the three Defendants had demonstrated the absence of a genuine issue of
material fact as to the issue of causation-that is, that Plaintiff could not show that there was a
nexus between: (1) Mr. MacQueen's prior work on the two United States Navy ships, and (2)
any exposure to an asbestos-containing product for which the remaining Defendants could be
held responsible. (Id at 6, 25) From there, the Court determined that this finding necessitated a
grant of summary judgment as to four of the five currently operative counts of the operative

At that point in the case, Crane, Warren and Buffalo were the only remaining
Defendants. The other 51 Defendants had all claims/cross-claims against them dismissed by
stipulation or otherwise, prior to the filing of the product identification/nexus summary judgment
motions. (See D.I. 612 at 2)
2

Fourth Amended Complaint (the "FAC" or the "Amended Complaint"). (Id. at 26) As to the
remaining count-Count VII's allegation that Defendants participated in a civil conspiracy in
order to suppress and misrepresent the hazards of exposure to asbestos, (D.L 380 at ,r,r 4856)-Plaintiff did not contest that the count should be dismissed as to Warren, (D.I. 612 at 26).
But Plaintiff argued that the Court's recommendation, if adopted, would not eliminate any
possibility of liability as to Buffalo and Crane regarding Coµnt VII. (Id at 27) The Court
ultimately found that it could not recommend dismissal of Count VII as to Buffalo and Crane,
largely because Buffalo and Crane had not addressed Count VII in their briefing on the product
identification/nexus summary judgment motions. (Id at 28-30)
Plaintiff subsequently agreed to the dismissal of Buffalo from the case. (D .I. 619) This
left Crane as the only remaining Defendant. After Judge Robinson affirmed the Feb. 8, 2017
R&R, (D.I. 620), Plaintiff indicated that it wished to proceed as to its conspiracy claim against
Crane, (D.I. 621 at 2).
On April 21, 2017, the Court ordered that, pursuant to the terms of the Scheduling Order,
expert discovery should commence on Plaintiffs conspiracy claim against Crane. Plaintiff then
served expert reports. Crane later filed a motion to strike those reports ("motion to strike expert
reports"), arguing that the reports violated Federal Rules of Evidence 402 and 702. (D.I. 624)2
On March 14, 2018, the Court ultimately issued a Memorandum Order denying Crane's motion
to strike expert reports. (D.I. 643)
Crane also filed the instant Motion on October 18, 2017. (D.I. 630) This, in turn, led

On September 25, 2017, the Court granted Crane's unopposed motion to stay
further expert discovery until the Court ruled on the motion to strike expert reports. (D.I. 628;
D.I. 629)
2

3

Plaintiff to file a motion to strike the Motion as untimely ("motion to strike the summary
judgment motion") on October 27, 2017. (D.I. 632)3 On December 15, 2017, the Court issued a
Memorandum Order denying Plaintiffs motion to strike the summary judgment motion, finding
that the Motion was not untimely under the operative Scheduling Order. (D.I. 636)
Briefing on the Motion completed on February 5, 2018. (D.I. 640) At the parties'
request, the Court held oral argument on the Motion on April 11, 2018. (D.I. 645 (hereinafter,
"Tr."))

II.

STANDARDOFREVIEW
A grant of summary judgment is appropriate where "the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw."
Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a
genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574,585 n.10 (1986), If the moving party has sufficiently demonstrated the absence of a genuine
dispute of material fact, the nonmovant must then "come forward with specific facts showing
that there is a genuine issue for trial." Id at 587 (internal quotation marks, citation and emphasis
omitted).

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 oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). During this process, the
Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make

The Court granted Plaintiffs unopposed motion to stay the remaining briefing on
the Motion pending the Court's decision on Plaintiffs motion to strike the summary judgment
motion. (D.I. 633; D.I. 634)
3

4

credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000).
However, in order to defeat a motion for summary judgment, the nonmoving party must
"do more than simply show that there is some metaphysical doubt as to the material facts."

Matsushita Elec. Indus. Co., 475 U.S. at 586-87; see also Podobnikv. US. Postal Serv., 409
F.3d 584,594 (3d Cir. 2005) (party opposing summary judgment "must present more than just
bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue")
(internal quotation marks and citation omitted). The "mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for s·ummary
judgment; the requirement is that there be no genuine issue of material fact." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Facts that could alter
the outcome are "material," and a factual dispute is "genuine" only where "the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "If the
evidence is merely colorable ... or is not significantly probative ... summary judgment may be
granted." Id. at 249-50 (internal citations omitted).
A party asserting that a fact cannot be-or, alternatively, is-genuinely disputed must
support the assertion 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).
5

III.

DISCUSSION
As noted above, the sole remaining count against Crane is Count VII. With that Count,

Plaintiff is pursuing a claim of civil conspiracy under Delaware law. (D.I. 380 at ,r,r 48-56; D.I.
638 at 1 n.1, 7, 10-11) The elements of such a claim are: (1) a confederation or combination of
two or more persons; (2) an unlawful act done in furtherance of the conspiracy; and (3) damages
resulting from the action of the parties to the conspiracy. See AeroGlobal Capital Mgmt., LLC v.
Cirrus Indus., Inc., 871 A.2d 428,437 n.8 (Del. 2005); Nicolet, Inc. v. Nutt, 525 A.2d 146, 14950 (Del. 1987); Wayman Fire Prot., Inc. v. Premium Fire & Sec., LLC, C.A. No. 7866-VCP,
2014 WL 897223, at *24 (Del. Ch. Mar. 5, 2014).
Plaintiff is asserting that the "unlawful act" said to have been done in furtherance of the
conspiracy is the tort of intentional misrepresentation. (D.I. 638 at 11 (citing Nicolet, Inc., 525
A.2d at 150)) Under Delaware law, intentional misrepresentation (also referred to as "fraudulent
concealment") has five elements: (1) deliberate concealment by the defendant of a material past
or present fact, or silence in the face of a duty to speak; (2) the defendant acted with scienter; (3)
the defendant had an intent to induce plaintiffs reliance upon the concealment; (4) causation;
and (5) damages resulting from the concealment. Nicolet Inc., 525 A.2d at 149; Johnson v.
Preferred Prof'/ Ins. Co., 91 A.3d 994, 1017 (Del. Sup. Ct. 2014).
In Nicolet, Inc. v. Nutt, 525 A.2d 146 (Del. 1987), an asbestos litigation matter, the
Delaware Supreme Court explained how a defendant might be found liable for participating in a
civil conspiracy somewhat similar to the type alleged here. The Nicolet Court noted that under
Delaware law, a conspirator is jointly and severally liable for the acts of co-conspirators
committed in furtherance of the conspiracy. 525 A.2d at 150. It then explained that the

6

defendant there was subject to liability if the plaintiffs could establish that:
( 1) [Defendant] was a member of a conspiracy consisting of
asbestos manufacturers; (2) a member of the conspiracy, acting in
furtherance of the conspiracy, actively suppressed data on the
harmful effects of asbestos with the intent to hide such information
from plaintiffs in order to induce them to continue their exposure
(i.e., committed the tort of intentional misrepresentation); and, (3)
plaintiffs were injured as a result of the unlawful acts of
[defendant]'s co-conspirator(s).

Id
With the relevant law now set out, the Court turns to the substance of Crane's Motion. In
its accompanying briefing, Crane has advanced many arguments as to why the Court should grant
it summary judgment on Plaintiffs civil conspiracy claim. The Court need not address all of
those arguments. Instead, below the Court will explain why at least two of Crane's arguments
entitle it to the relief it seeks. 4

A.

Count VII Does Not Encompass the Conspiracy that Plaintiff is Now
Asserting

Before doing so,. the Court pauses to address Plaintiffs claim that Crane failed to
satisfy its initial burden to demonstrate the absence of a genuine issue of material fact. (D .I. 63 8
at 9-10) With regard to a summary judgment motion, as was previously noted, "the moving party
bears the initial burden of showing the absence of a genuine issue of material fact[.]" Haskins v.
Christiana Care Health Servs., 701 F. Supp. 2d 623,627 (D. Del. 2010). A movant may satisfy
that burden by "'showing'-that is, pointing out to the district court-that there is an absence of
evidence to support the nonmoving party's case when the nonmoving party bears the ultimate
burden of proof." Singletary v. Pa. Dep't. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)
(quoting Celotex Corp., 477 U.S. at 325) (certain quotation marks omitted). Here, Crane, in its
opening brief, pointed out an absence of evidence as to each element of Plaintiffs civil
conspiracy claim, (D.I. 631 at 2), and then proceeded to cite to the content of Plaintiffs expert
witness reports to demonstrate that lack of evidence, (id at 3). This shows that Crane did enough
to "inform[] the district court of the basis for its motion" and to "identify[]" the portions of the
record that demonstrate the absence of a genuine issue of fact. Celotex Corp., 477 U.S. at 323.
The burden thus has shifted to Plaintiff to demonstrate why a genuine issue of material fact
exists.
4

7

Defendant's first winning argument relates to what Plaintiff did (and did not) plead in
Count VII. In the F AC, Count VII is styled as a claim for "Conspiracy Against Metropolitan Life
Insurance Company ["Metropolitan"]." (D.I. 380 at 31) The Count also includes the following
allegations:
•

"Defendant Metropolitan Life Insurance Company agreed
and conspired with the Defendants named herein and with
other miners, manufacturers, sellers, distributors, and
installers of asbestos-containing products to suppress and
misrepresent the hazards of exposure to asbestos." (D.I. 380
at 149)

•

"Defendant Metropolitan Life Insurance Company, as well
as other members of the asbestos industry, including but not
limited to [D]efendants listed herein, engaged in
investigations and research as to the hazards of asbestos ...
Furthermore, Metropolitan [] financially aided the asbestos
industry in its endeavors to mislead and obfuscate." (Id. at 1
50)

•

"The Defendants knowingly and willfully conspired among
themselves to perpetuate the actions and omissions referred
to herein as well as aided and abetted their co-[D]efendants
and manufacturers of asbestos-containing products in
keeping [Mr. MacQueen and others] ignorant of the risks
they faced when exposed to asbestos and asbestos containing ·
products ... " (Id at 1 51)

•

"The Defendants directly and indirectly materially
misrepresented that asbestos was not hazardous and/or could
be used safely ... " (Id at 152)

•

"Defendants had reason to expect that as a result of such
representation, [Mr. MacQueen and others] would be
exposed to asbestos." (Id at 1 53)

•

"[D]efendants continued to act wrongfully both individually
and together in a conspiracy to mislead and misrepresent the
extent of the past wrongful actions and omissions ... " (Id
at 154)
8

•

"Similarly, Defendants aided and abetted the manufacturers,
miners, suppliers, and users of asbestos and asbestos
products in keeping these true dangers of asbestos exposure
secret and/or misrepresented ... " (Id. at~ 55)

•

"As a direct and proximate result of the above wrongful
conspiracy of the Defendants, [Mr. Mac Queen] was exposed
to asbestos and ... developed the asbestos-related disease
discussed and sustained the injuries described herein ... "
(Id. at~ 56)

On its face, then, Count VII addresses an alleged conspiracy between Metropolitan and
some or all of the other 53 listed Defendants, as well as, perhaps, "other miners, manufacturers,
sellers, distributors, and installers of asbestos-containing products" and/or "other members of the
asbestos industry." The purpose of the conspiracy was said to be to suppress and misrepresent
the hazards of exposure to asbestos to persons, including people like Mr. MacQueen. 5

In its answering brief, however, Plaintiff more fully explains the nature of the civil
conspiracy that it now seeks to prove at trial. The record, Plaintiff argues, contains evidence that
Crane was actually "in affirmative and active agreement with the United States Navy[] to decline
to warn end users [like Mr. MacQueen] about the hazards of human asbestos exposure[.]" (D.I.
638 at 12 (certain emphasis added, certain emphasis omitted) (citations omitted)) Plaintiffs
assertion, then, is that to the extent that "Crane did not include warnings to end-users about the
potential hazards of asbestos regarding its products [i.e., valve or pump products] installed on the
relevant Navy ships [the U.S.S. Randolph and the U.S.S. Independence] it has presented

Though the title of the Count suggests that the claim is brought only against
Metropolitan, in its Feb. 8, 2017 R&R, the Court found that the body of Count VII (with its
repeated references to "Defendants") fairly asserts liability not just on the part of Metropolitan,
but also at least as to other named Defendants. (D.I. 612 at 29-30)
5

9

evidence that ... could establish that the absence of asbestos-related warnings was accomplished
at the Navy's direction." (Id. (internal quotation marks and citation omitted))6 The problem for
Plaintiff, as Crane notes, is that such a conspiracy is nowhere alleged.in Count VII. (D.I. 640 at
2-3 (Crane referring to this allegation as an "entirely new and extraordinary theory" and an
attempt by Plaintiff to "impermissibl[y] amend her operative pleading at the summary judgment
phase of litigation"); id. at 1 (referring to the claim as "an entirely new claim that Plaintiff did not
plead-that Crane Co. conspired with the United States Navy, who is not a party to this action");

see also Tr. at 7-8, 58)
"A plaintiff cannot raise a claim for the first time at the summary judgment stage if it was
not included in the complaint." Shahin v. Del. Fed. Credit Union, CONSOLIDATED Civ. No.
10:-475-LPS, 2013 WL 5304104, at *5 (D. Del. Sept. 19, 2013) (citing Bell v. City of Phi/a., 275
F. App'x 157, 160 (3d Cir. 2008)); see also Trenton v. Scott Paper Co., 832 F.2d 806, 810 (3d
Cir. 1987). If a plaintiff does assert such a claim (i.e., one not included in the operative
complaint) for the first time in her summary judgment briefing, a district court will not consider
it. See McMahon v. Salmond, 573 F. App'x 128, 135 (3d Cir. 2014) (affirming a district court's
decision not to consider the plaintiff's retaliation claim, in a case where the district court
concluded that the plaintiff had not pleaded such a claim in the operative complaint); Bell, 275 F.
App'x at 160 (finding that where the plaintiff had raised First Amendment speech and
association claims in his complaint, but had not included reference therein to a First Amendment

Plaintiff argues that although the United States Navy is statutorily immune from
suit in this litigation, a defendant like Crane can be found to have engaged in a conspiracy with
such an immune-from-suit party. (D.I. 638 at 4, 16) The Court need not address this issue herein
in light of its ultimate decision on the Motion, and so it will assume (without deciding) that
Plaintiff is right, solely for purposes of resolving the Motion.
6

10

retaliation claim, the plaintiff could not raise the retaliation claim for the first time in his
response to the defendant's motion for summary judgment); Garnett v. Bank ofAm., 243 F.
Supp. 3d 499,507 n.2 (D. Del. 2017) (noting that the Court would not consider the plaintiffs
assertion that the defendant engaged in religious discrimination, since that claim was raised for
the first time in plaintiffs responsive brief to defendant's motion for summary judgment, and
because the operative complaint contained only allegations of racial discrimination). 7
For at least two reasons, the Court concludes that Count VII's allegations do not fairly
encompass the conspiracy that Plaintiff now seeks to litigate.
First, any fair reading of Count VII indicates that it was describing a conspiracy that in
some way involves Metropolitan. The title of the Count states that the claim therein is
"[a]gainst" Metropolitan. (D.I. 380 at 31) And the first two substantive paragraphs of the Count
explain that the conspiracy described in the Count involves Metropolitan's efforts to conspire
with others (including certain Defendants). (Id. at 'i['i[ 49-50) Yet now, Plaintiff asserts that the
conspiracy at issue does not involve Metropolitan at all, and that Crane is "mistaken[]" to
presume otherwise. (D.I. 638 at 9; see also D.I. 625 at 1, 4) For the reasons set out above, the
Court disagrees.
Second, the United States Navy (hereinafter, "the Navy") is never mentioned by name in
any of Count VII's allegations. And the Court cannot see how it is reasonable to infer that a
branch of the armed forces like the Navy was one of the "miners, manufacturers, sellers,

See also Abuelyaman v. lll. State Univ., 667 F.3d 800, 813-14 (7th Cir. 2011)
(affirming the district court's refusal to consider the plaintiffs participation in an investigation of
a co-worker's discrimination complaint as facts that could be used to bolster the plaintiffs
retaliation claim, because "the record [was] entirely devoid of any mention ofth[at] argument
before the summary judgment stage of the proceedings").
7

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distributors, and installers of asbestos-containing products" or "members of the asbestos
industry" that were possibly being referred to in that Count.
For these reasons, Plaintiffs assertion that Count VII's conspiracy involved Crane
conspiring with the Navy has been improperly raised for the first time at the summary judgment
stage. 8 This is a sufficient reason to grant summary judgment in favor of Crane. 9
Indeed, at oral argument, Plaintiffs counsel seemed to acknowledge that the
instant-asserted conspiracy was not fairly found within the contours of Count VII. Instead,
counsel appeared to assert that Plaintiff should nevertheless be able to press such a claim in light
of certain of Crane's later acts or admissions. (Tr. at 53-54) If something Crane did or said in
discovery plausibly gave rise to a new claim not addressed in the original Complaint, then the
appropriate response would have been to seek to amend the complaint to include such a claim.
8

9

Some circuits have held that when a plaintiff opposes summary judgment based
on issues that are outside the scope of the pleadings, the district court must construe the
opposition as a request to amend the operative complaint. See, e.g., Goulatte v. CitiMortgage,
Inc., Case No. EDCV 12-391 PSG (SPx), 2014 WL 12561620, at *5 (C.D. Cal. June 5, 2014)
(citing Apache Survival Coalition v. United States, 21 F.3d 895,910 (9th Cir. 1994)); see also
Martinez v. Potter, 347 F.3d 1208, 1211 (10th Cir. 2003) (indicating that circuit precedent
"interpret[s] the inclusion of new allegations in a response to a motion for summary judgment[]
as a potential request to amend the complaint"). Even were the Court required to construe
Plaintiffs answering brief this way (and it does not understand Third Circuit precedent, cited
above, to impose such a requirement), the deadline for amendment of pleadings passed many
years ago. (See D.I. 126 at ,r 2 (indicating that amended pleadings were due to be filed by
November 18, 2013); see also D.I. 364 (Plaintiffs unopposed Fourth Motion to Amend/Correct
Complaint, which was granted by the Court on September 30, 2014)) Thus, Plaintiff would need
to demonstrate that "good cause" exists to amend the Scheduling Order at this stage, in order to
allow amendment of the FAC. See Fed. R. Civ. P. 16(b)(4). In order to show good cause, in
turn, "the party moving to amend a pleading must demonstrate that, despite diligence, the
proposed claims could not have been reasonably sought in a timely manner." Glaxosmithkline
LLC v. Glenmark Pharm. Inc., Civil Action No. 14-877-LPS-CJB, 2016 WL 7319670, at *1 (D.
Del. Dec. 15, 2016) (citations omitted).
Plaintiff could not show good cause here. Plaintiff asserts that certain Crane documents,
produced along with Crane's Notice of Removal at the beginning of the case, are what support
the asserted conspiracy that Plaintiff now describes in her answering brief. (D.I. 638 at 11-12;
see also id. at 1; Tr. at33-35) Since the case was removed to this Court, Plaintiff has had years
to raise this type of claim and has not done so. This is despite the fact that Plaintiff has amended
her complaint multiple times. Thus, even were the Court required to treat Plaintiffs reference to
12

B.

Plaintiff Has Not Demonstrated the Existence of a Genuine Issue of
Material Fact in Support of Her Claim That a Conspiracy Existed

Crane also argues, inter alia, that Plaintiff fails to present any facts supporting the first
element of a civil conspiracy claim-that there was a conspiracy or confederation between Crane
and the Navy to commit a wrong against Mr. MacQueen. (D.I. 640 at 4-5) The Court agrees.
In Delaware, this first element of a civil conspiracy claim "requires a plaintiff to establish
that two or more persons combined or agreed with the intent to do an unlawful act or to do an
otherwise lawful act by unlawful means." Am. Capital Acquisition Partners, LLC v. LPL
Holdings, Inc., Civil Action No. 8490-VCG, 2014 WL 354496, at *12 (Del. Ch. Feb. 3, 2014)
(citation omitted); see also Anderson v. Airco, Inc., No. Civ.A. 02C-12-091HDR, 2004 WL
2827887, at *4 (Del. Super. Ct. Nov. 30, 2004) (explaining that a civil conspiracy "requires an
agreement or understanding to commit a wrong against another ... [which] necessarily involves
some mutual mental action coupled with an intent to commit the act which results in the injury")
(internal quotation marks and citations omitted). Plaintiff, as noted above, contends that the
Navy and Crane had an "affirmative and active agreement ... to decline to warn end users about
the hazards of human asbestos exposure[.]" (D.I. 638 at 12) But Plaintiff has not identified
sufficient record evidence to create a genuine issue of material fact as to whether such a mutual
agreement or understanding actually existed.
In her briefing, Plaintiff argued to the contrary, and did so solely by pointing to "the
1,639-pages of documentation associated with [Crane's] Petition for Removal" in this case. (D.I.
638 at 12; see also id at 2) Some background explanation is needed in order to understand the

this new conspiracy claim involving the Navy as a request to amend the FAC, the Court would
decline such a request.
13

argument Plaintiff is making.
Plaintiffs citation to the "1,639 pages" of documents is a reference to the various exhibits
that Crane attached to its Notice of Removal in this case. Crane used those exhibits to help it
establish that there was federal jurisdiction for the matter, pursuant to 28 U.S.C. § 1442(a)(l)
("Section 1442(a)(l)"). Under Section 1442(a)(l), an action may be removed to district court if
it is "against or directed to" the "United States or any agency thereof or any officer (or any person
acting under that officer) of the United States or of any agency thereof, in an official or

individual capacity, for or relating to any act under color ofsuch office[.]" 28 U.S.C. §
1442(a)(l) (emphasis added). In order to remove a matter pursuant to Section 1442(a)(l), a
defendant such as Crane has to establish that: "(1) it is a 'person' within the meaning of the
statute; (2) the plaintiffs claims are based upon the defendant's conduct 'acting under' a federal
office; (3) it raises a colorable federal defense; and (4) there is a causal nexus between the claims
and the conduct performed under color of a federal office." Feidt v. Owens Corning Fiberglas
Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citations omitted).

The "colorable federal defense" that Crane asserted here was the "government contractor
defense," which can shield a defendant from liability for failure to warn claims. That defense, as
it has been applied in a failure to warn case, requires the defendant to establish that: "(1) the
United States exercised its discretion and approved the warnings [on a product], if any; (2) the
contractor provided warnings that conformed to the approved warnings; and (3) the contractor
warned the United States of the dangers in the equipment's use about which the contractor knew,
but the United States did not." Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 783 (E.D.
Pa. 2010) (citation omitted); see also (D.I. 191 at 6-7).
14

The Court ultimately issued a Report and Recommendation regarding the removal issue,
in which the Court denied Plaintiffs motion to remand the case back to state court ("the motion
to remand R&R"). (D.I. 191) In doing so, the Court determined that Cr~e had sufficiently
raised a colorable federal defense. (Id. at 15, 20)
, Plaintiff, in now opposing Crane's Motion here, cites for support to portions of the
motion to remand R&R. Specifically, Plaintiff cites to excerpts from the motion to remand R&R
where the Court found that there was sufficient evidence to demonstrate that Crane could satisfy
one of the elements of the government contractor defense (the element requiring that "the United
States exercised its discretion and approved the warnings, if any"). In those portions of the
motion to remand R&R, the Court, in turn, was primarily citing to an affidavit that Crane
submitted from retired U.S. Navy Rear Admiral David P. Sargent, Jr. (the "Sargent Affidavit").
The Court found that the contents of the Sargent Affidavit, when viewed in the light most
favorable to Crane, demonstrated that "the Navy was intimately involved in determining what
warnings would be (or would not be) provided as to products located on Navy ships, including
asbestos-containing products." (D.1. 191 at 17) The Court also found that the Sargent Affidavit
could be used to show that "to the extent ... that Crane did not include warnings to end-users
about the potential hazards of asbestos regarding its products installed on the relevant Navy ships
... [this was] accomplished at the Navy's discretion." (Id. at 17-18) In citing to both of these
conclusions in the motion to remand R&R, Plaintiff is now suggesting that the portions of the
Sargent Affidavit relied upon by the Court could also sufficiently support her claim that a
wrongful conspiracy existed between, inter alia, Crane and the Navy; (D.I. 638 at 12; see also
id. at 2) The Court disagrees.
15

The Sargent Affidavit primarily focused on the Navy's control over the process of
procuring parts, equipment, and systems for the construction of its ships. Specifically, the
Sargent Affidavit discussed the Navy's development of specifications that contained "very
detailed descriptions of what the government required when procuring the items covered by the
[specifications], including requirements such as chemical composition, dimensions, required
testing and performance demonstrations, required labeling, packaging and shipping requirements,
and similar content." (D.I. 1, ex. 3 (hereinafter, "Sargent Affidavit") at~ 26) The purpose of
these detailed requirements was "to ensure complete and common understanding between the
government and vendors of what it is the government[] requires and is committing to pay for, to
ensure commonality across systems with similar components, and ensure that replacement parts,
equipment and consumable materials, some provided by different manufacturers, will all perform
as desired." (Id. at~ 30) The technical specifications developed by the Navy also included
"precise specifications as to the nature of any markings, communication or directions affixed to
or made a part of any equipment supplied by [the manufacturers] for ultimate use aboard Navy
ships." (Id. at~ 58) The manufacturers would not be allowed "to deviate in any respect from the
Navy specifications in supplying equipment, including affixing any type of warning or caution
statement to equipment intended for installation in a Navy ship, beyond those specifically
required by the Navy without prior discussion and express approval by the Navy." (Id.; see also

id. at~ 60)
According to information contained in the Sargent Affidavit, any supplier of parts for
installation aboard a Navy ship (e.g., a company like Crane), would not have been permitted "to
include any type of warning or caution statement in [its] instruction books or technical manuals,

16

beyond those required and approved by the Navy without prior discussion and approval by the
Navy." (Id. at 160) As to what warnings would be allowed, the Sargent Affidavit advised that
warnings "concerning immediate hazards unique to the operation and maintenance of specific
equipment were included in equipment and system specific technical documents[,] such as
equipment technical manuals[,] ... which were aimed and available to only limited audiences of
personnel directly involved in work on the specific systems or equipment covered by the
manuals." (Id. at 156) However, the Sargent Affidavit specifically noted that "[w]arnings and
cautions concerning Navy-wide/all-hands subjects[,] such as general shipboard safety, safe
driving awareness, hearing loss prevention and later asbestos health warnings[,] were included in
readily available and broadly used training documents, some in technical documentation such as
Navy rate training manuals, and some in non-technical documentation such as General Military
Training syllabuses." (Id. (emphasis added)) Therefore, equipment technical manuals "were not
... appropriate locations for warnings and cautions relating to general or widespread shipboard
health issues." (Id.)
What can be gleaned from the Sargent Affidavit is that: (1) the Navy provided detailed
specifications to equipment manufacturers and suppliers that included what warnings could and
could not be put on their products or in related instruction books and manuals; (2) those
manufacturers and suppliers could not deviate from the specifications; and (3) asbestos exposure
was considered a shipboard health issue, such that the Navy did not consider warnings
concerning asbestos exposure to be appropriate for inclusion in individual equipment technical
manuals. But what is not present is any statement that suggests evidence of a conspiracy between
Crane and the Navy to suppress information on the hazards of asbestos. For one thing, there is

17

no evidence in the Sargent Affidavit of bad intent on the Navy's part-i.e., that the Navy actively
suppressed data on the harmful effects of asbestos (such as by not including that information on
products or in related books/manuals) with the intent to hide such information from crew
members like Mr. MacQueen. Rather, according to the Sargent Affidavit, to the extent that the
Navy knew of the dangers of asbestos exposure, it sought to warn Navy members about those
hazards by including warnings and cautions in particular types of training documents, manuals,
and syllabuses. (Id. at ~ 56) And to the extent that such warnings were not included on products
or in equipment-specific documents, according to the Sargent Affidavit, that was not the product
of the Navy's nefarious intent. Instead, it was a byproduct of the need to have uniform processes
in place to allow the timely and successful design and construction of large numbers of ships
around the globe. (Id. at~~ 30, 44) Lastly, the Sargent Affidavit fails to provide any evidence
specific to Crane; there is nothing in the affidavit about Crane's particular actions or inactions, or
about what Crane did and did not do in mutual agreement or understanding with the Navy.
Just as Plaintiffs reference to these portions of the motion to remand R&R (and, ·
relatedly, to the Sargent Affidavit) cannot suffice to meet her burden here, nor can her vague
reference to the "1,639 pages" of exhibits attached to Crane's Notice of Removal. (Tr. at 33-35
(Court asking Plaintiffs counsel what Plaintiff was "pointing to by way of record evidence that
demonstrates communications leading to an agreement between Crane and the Navy to suppress
information about asbestos[,]" and Plaintiffs counsel responding by referencing the "1,600 pages
of evidence that basically discuss and flesh out the contours of the nature of the relationship that
Crane purports to have had with the Navy"); see also D.I. 638 at 2, 12) Rule 56 requires that if
Plaintiff is asserting that a fact "is genuinely disputed[,]" then she must "support the assertion by
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... citing to particular parts of materials in the record[.]" Fed. R. Civ. P. 56(c)(l)(A) (emphasis
added). If there is some portion of those "1,639 pages" of exhibits that creates a genuine issue of
fact here, Plaintiff was required to point that out. She is not permitted simply to refer to all 1,639
pages as a whole and say, in essence, "Somewhere in these documents there is evidence of a
conspiracy." Cf Garay v. Liriano, 943 F. Supp. 2d 1, 20 (D.D.C. 2013) (explaining that it is not
the "[c]ourt' s obligation to dig through hundreds of pages of evidence in search of factual
support for [p]laintiffs' assertions, where they fail to direct the [c]ourt to specific facts in the
record"); NJ. Auto. Ins. Plan v. Sciarra, 103 F. Supp. 2d 388,408 (D.N.J. 1998) ("It is not the
court's responsibility to comb through the thousands of pages of exhibits annexed to the motions
at hand in order to find support for a party's arguments. Rather, it is the responsibility of each
party to support its own contentions with a proper basis in the record of the case .... [by
identifying] specific facts showing that there is a genuine issue for trial.").
At oral argument, the Court pressed Plaintiffs counsel as to whether there is any other
document of record that would support the existence of the claimed conspiracy. (Tr. at 36-37)
There, Plaintiffs counsel responded by citing to paragraph 9 of Crane's Notice of Removal
("paragraph 9"). (Tr. at 39-40) But that citation too is not helpful to Plaintiff.
In paragraph 9, Crane was making reference to Section 1442(a)(l)'s requirement that, in
order to remove this case to federal court, Crane was required to have been acting under the
direction of a federal officer in designing, manufacturing or selling asbestos-containing
equipment to the Navy. (D.I. 1 at ,i 9) In general, paragraph 9 (which cites, inter alia, to the
Sargent Affidavit) went on to detail the process by which a company like Crane could provide
equipment to the Navy. (Id) As did the Sargent Affidavit, paragraph 9 explained that since the
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1950s, the Navy had issued certain specifications for the equipment it purchased, including that
manufactured by Crane. (Id.) It explained that the Navy would provide "precise contracts and
specifications" that companies like Crane must comply with before the Navy would have that
company's equipment installed on a Navy ship. (Id.) Paragraph 9 noted that such specifications
also required certain "product warning langua~e" for use on products. (Id.) And it also
emphasized that the Navy retained the authority to "review[] the proposed product literature and
labeling that accompanied equipment and, at its discretion, edit[] the wording of instructional
material and warning, approv[e] certain warning language[,] and disapprov[e] other language."

(Id.)
Nothing in paragraph 9 provides evidence of the proffered conspiracy between the Navy
and Crane. (Tr. at 12-14) Certainly nothing in that paragraph speaks to any specific
communications (or other evidence of mutual agreement) between the Navy and Crane--e.g.,
actual communications between the two parties about whether or not to include any particular
warnings about asbestos, or about how to conceal any particular dangers of asbestos-·in order to
commit a wrong against another. See Matsushita Elec. Indus. Co., 475 U.S. at587 (explaining
that once the burden has shifted from the movant, the nonmovant must "come forward with

specific facts showing that there is a genuine issue for trial") (internal quotation marks and
citation omitted) (certain emphasis added, certain emphasis omitted)). Rather, at most, the
paragraph generally shows that: ( 1} companies like Crane were given a list of specifications
from the Navy, and they were required to comply with those specifications if they wanted the
Navy to buy their equipment; and (2) the Navy could review, edit, and approve warnings on
products it was purchasing from companies like Crane, or decide to exclude warnings from those
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products entirely. From this evidence, it is not reasonable to infer that Crane agreed with the
Navy to intentionally misrepresent the dangers of asbestos or had the intent to do so.
For this reason too, then, summary judgment on the sole remaining claim is appropriate. 10

IV.

CONCLUSION
For the reasons set out above, the Court recommends that Crane's Motion be GRANTED

and that the sole remaining count against Crane be dismissed. As this is the final remaining
claim, if the District Court agrees that summary judgment should be entered on behalf of Crane,
the Court recommends that this case be closed.
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.

It is also doubtful that Plaintiff could satisfy the third element of a civil conspiracy
claim-that the conspiracy caused Plaintiff harm. Here, the alleged goal of the conspiracy was to
"suppress and misrepresent the hazards of exposure to asbestos." (D.I. 380 at ,I 49) Yet as the
Court noted in its Feb. 8, 2017 R&R, Plaintiff failed to provide evidence that would allow an
inference "that Mr. MacQueen worked on or was exposed to [Crane's] products" on the two
Navy ships he served on, nor "that any asbestos-containing products that Mr. MacQueen may
have been exposed to were manufactured by [Crane]." (D.I. 612 at 25) At oral argument, the
Court asked Plaintiffs counsel how Plaintiff intended to prove damages resulting from the
alleged conspiracy (i.e., damages resulting from insufficient or non-existent warnings on, inter
alia, Crane products), if Plaintiff could not demonstrate that •Plaintiff actually worked on or was
exposed to Crane products in the first place. (Tr. at 50-51) In response, Plaintiffs counsel stated
that because the Navy was the center of the alleged conspiracy involving Crane and other
equipment manufacturers, then "all that's required is that there needs to be evidence of [Mr.
MacQueen's] exposure in the aggregate." (Id at 51) Even if that statement were true, the
problem is that Plaintiff has failed to provide evidence that demonstrates that Mr. MacQueen was
actually exposed to any particular asbestos-containing product on the Navy ships. (See D.I. 612
at 20) Plaintiffs expert has only opined that, "based on what Mr. MacQueen's job titles and
duties were, he 'would have worked with and been in close proximity to"' certain pieces of
equipment containing asbestos. (Id (emphasis in original) (citing D.I. 624, ex.Cat ilil 27, 30
(Report of Francis J. Burger))) In light of that, the Court does not fully understand how Plaintiff
would prove damages, even based on an "exposure in the aggregate" theory. (Tr. at 48-51)
10

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Fed. R. Civ. P. 72(b). 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. App'x 924,
925 n.1 (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 for Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the District Court's website,
located at http://www.ded.uscourts.gov.

Dated: June 6, 2018
Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE

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