Malone et al v. Air & Liquid Systems Corporation et al

Filing 423

REPORT AND RECOMMENDATIONS- recommending that the court grant #353 MOTION for Summary Judgment, #371 MOTION for Summary Judgment, #366 MOTION for Summary Judgment, #369 MOTION for Summary Judgment, #365 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 6/8/2015. Signed by Judge Sherry R. Fallon on 5/22/2015. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHARLES D. MALONE and
ELIZABETH MALONE,
Plaintiffs,
V.

AIR & LIQUID SYSTEMS
CORPORATION, et al.
Defendants.

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Civil Action No. 14-406-SLR-SRF

REPORT AND RECOMMENDATION

I.

INTRODUCTION
Pending before the court in this asbestos related personal injury action are certain

individual defendants' motions for summary judgment. 1 The defendants, as indicated in the chart
below, each move for summary judgment on the basis of a lack of product identification by the
Plaintiffs.

Crane Co.
Ingersoll Rand Company
Velan Valve Corp.
Zurn Industries, Inc.
Pfizer Inc.

Motion & Brief in Support of Motion for
Summar Jud ment
Motion & Brief in Support of Motion for
Summary Jud ment
Motion & Brief in Support of Motion for
Summary Jud ment
Motion & Memorandum in Support of
Motion for Summar Jud ment
Motion & Memorandum in Support of
Motion for Summary Judgement

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366-367
369-370
371-372
353-354
365-368

Also currently pending is a motion to dismiss filed by Defendants Crane Co., Ingersoll Rand
Co., Pfizer, Inc., Velan Valve Corp., and Zurn Industries, LLC (collectively "Defendants"). (D.1.
399) Plaintiffs Charles D. Malone and Elizabeth Malone ("Plaintiffs") have filed Notices (the
"Notices") of non-opposition to certain motions for summary judgment naming each of these
Defendants. (D.I. 400; D.I. 414) Based on Plaintiffs Notices, and in accordance with this report
and recommendation, Defendants' joint motion to dismiss should be terminated as moot.
1

On May 4, 2015 and May 14, 2015, Charles D. Malone and Elizabeth Malone ("Plaintiffs")
filed two separate Notices (the "Notices") of non-opposition to the forenamed defendants' motions
for summary judgment. 2 (D.1. 400; D.I. 414) I recommend that the court grant summary judgment
and dismiss with prejudice each of the forenamed defendants individually, based upon no
opposition to the motions, pursuant to Fed. R. Civ. P. 56(e)(3). In accordance with this
recommendation, I further recommend that defendants' motion to dismiss all claims and cross
claims (D.I. 399) brought by the defendants indicated in the chart above be terminated as moot.

II.

BACKGROUND
Plaintiffs filed this personal injury action against defendants on April 1, 2014. (D.I. 1) The

original complaint alleges Charles D. Malone ("Mr. Malone") experienced exposure to asbestoscontaining products and/or equipment from approximately 1964 to 1982, while working at Ingalls
Shipyard in Pascagoula, MS. Id. at

i-!

45(a). In 1964, for approximately four months, Ingalls

Shipyard employed Mr. Malone as a ship fitter. Id. Furthermore, from approximately 1964 until
1982, Mr. Malone continued working at the Ingalls Shipyard work site for various independent
contractors. Id. at ,-i 45 (a)-(b). Plaintiffs allege that Mr. Malone was exposed to asbestos at Ingalls
Shipyard, which led to his diagnosis of mesothelioma. Id.
Fact discovery relating to product identification closed on March 13, 2015, followed by
deadlines for filing dispositive motions and opening briefs on March 31, 2015. 3 (D.I. 186)

2

The original deadline for Plaintiffs responses to defendants separate motions for summary
judgment was April 17, 2015. The parties agreed to stipulate to extend the time to respond to
May 1, 2015.
3
The original deadline of March 31, 2015 in the scheduling order (D .I. 186), was extended for
certain defendants' pursuant to stipulations of the parties.
2

III.

DISCUSSION
Summary judgment is appropriate when "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., 4 77 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986)). The moving party bears the initial burden of proving the absence of a genuinely
disputed 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 to reasonably find for the nonmoving party on the issue. See Anderson,
477 U.S. at 249.
In this case, defendants have each filed separate motions seeking summary judgment in
their favor. (DJ. 366; 369; 371; 353; 365) Having been given an adequate opportunity to engage
in fact discovery to create a record on product identification, Plaintiffs have noticed their intent
not to oppose the motions of certain defendants as indicated in the preceding chart. (DJ. 400; DJ.

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414) Therefore, Fed. R. Civ. P. 56(e)(3) permits the court to recommend dismissal of each moving
defendant, with prejudice.

IV.

CONCLUSION
I recommend that the court grant summary judgment in favor of the following defendants

and dismiss each defendant with prejudice, as fact discovery is closed and there is no opposition
by the Plaintiffs. In accordance with this recommendation, I further recommend that defendants'
motion to dismiss all claims and cross claims (D.I. 399) brought by the defendants indicated in the
chart below be terminated as moot.

Crane Co.
Ingersoll Rand Company
Velan Valve Corp.
Zurn Industries, Inc.
Pfizer Inc.

Motion & Brief in Support of Motion for
Summary Judgment
Motion & Brief in Support of Motion for
Summar Jud ment
Motion & Brief in Support of Motion for
Summar Jud ment
Motion & Memorandum in Support of
Motion for Summary Judgment
Motion & Memorandum in Support of
Motion for Summar Judgement

366-367
369-370
371-372
353-354
365-368

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. App'x 924, 925 n.l (3d Cir.
2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).

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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: May W,2015

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