Malone et al v. Air & Liquid Systems Corporation et al
Filing
437
REPORT AND RECOMMENDATIONS- granting #379 MOTION for Summary Judgment, #377 MOTION for Summary Judgment, #381 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 9/15/2016. Signed by Judge Sherry R. Fallon on 8/29/2016. (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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)
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)
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Civil Action No. 14-406-GMS-SRF
REPORT AND RECOMMENDATION
I.
INTRODUCTION
Presently, there are three motions for summary judgment before the court in this
asbestos-related personal injury action. 1 The motions were filed by Defendants, Cummins, Inc.
("Cummins") (D.I. 377), Foster Wheeler Corporation ("Foster Wheeler") (D.I. 379), and CBS
Corporation ("CBS") 2 (D.I. 381), (collectively "Defendants"). For the reasons set forth below,
and as indicated in the chart infra, the court recommends granting Defendants' .motions for
summary judgment.
Cummins, Inc.
GRANT
CBS Corporation
GRANT
Foster Wheeler Energy Corporation
GRANT
Multiple defendants filed motions for summary judgment in this action. The motions filed by
defendants other than Cummins, Foster Wheeler, and CBS have been terminated, granted, or
withdrawn. (D.I. 411--413, 425, 431; 7/1/15 Tr. at 4-5)
2
CBS is a successor by merger to a Pennsylvania corporation formerly known as Westinghouse
Electric Corporation. (D.I. 382 at 1 n.l)
1
II.
BACKGROUND
A. Procedural History
Charles and Elizabeth Malone {"Plaintiffs") filed this asbestos-related action against
multiple defendants on April 1, 2014, asserting personal injury claims proximately caused by Mr.
Malone's alleged wrongful exposure to asbestos. (D.I. 1) Plaintiffs amended the complaint on
April 8, 2014to add an additional defendant. (D.I. 8)
Cummins filed a ipotion for summary judgment on April 3, 2015.· (D.I. 377) Foster
Wheeler and CBS filed summary judgment motions April 7, 2015. (D.I. 379, 381) Plaintiffs
oppose the motions. (D.I. 401, 407, 408) On July 1, 2015, the court held oral argument to
address Defendants' motions. (7/1115 Tr.)
B. Facts
1. Plaintiffs' alleged exposure history
Plaintiffs allege that Mr. Malone developed mesothelioma as a result of exposure to
asbestos-containing products during his career at Ingalls Shipyard in Pascagoula, Mississippi
from approximately 1964 to 1982. (D.I. 8 at if 45(a)) Plaintiffs contend that Defendants
manufactured, sold, or distributed the products at issue, which were allegedly designed to
incorporate asbestos-containing exterior insulation. (Id. at ,-r 2) Accordingly, Plaintiffs assert
negligence, punitive damages, strict liability, breach of warranty, and loss of consortium claims
against the moving Defendants. 3 (D .I. 8)
3
Plaintiffs also assert claims for conspiracy and premises liability against ·other defendants. (D .I.
8)
2
Mr. Malone testified regarding his alleged asbestos exposure at depositions on December
21, 1981 4 and June 25, 2014. (D.I. 401, Exs. 1-3) While working at Ingalls Shipyard, Mr.
Malone was employed by several different companies, including Ingalls Shipbuilding, Badham
Insulation ("Badham"), and Frigitemp Marine ("Frigitemp"). (Id., Ex. 1 at 16:16-21:16; D.I. 8
at if 45(a)) Mr. Malone started work as an apprentice ship fitter at Ingalls Shipyard in 1964. (D.I.
401, Ex. 1 at 16:5-17:22) From 1965 to 1973, Mr. Malone worked for Badham as an insulator on
approximately twenty ships. (Id., Ex. 1 at 17:24-18:11; D.I. 8 at if 45(a)) He started as an
apprentice, mixing mud and carrying materials to the mechanics. (D.I. 401, Ex. 1 at 18:12-19:6)
He moved to the fabrication shop in 1965, where he made removable insulation pads and cut
fittings. (Id.) Mr. Malone was promoted to supervisor and remained in that position untilleaving
Badham in 1973. (Id., Ex. 1at19:7-15) Subsequently, Mr. Malone worked for Ingalls
Shipbuilding as a subcontract administrator for approximately eight to nine months. (Id., Ex. 1
at 19:19-20:11) From 1975 to 1979, he worked
~s
a subcontractor and general superintendent for
I
Frigitemp. (Id., Ex. 1 at 20: 13-21 :9) Mr. Malone then moved back to Ingalls Shipbuilding. (Id.)
He stayed at Ingalls Shipbuilding until April of 1982, when he moved to Great Barrier Insulation
Company in Greenville, South Carolina. (Id., Ex. 1 at 21: 10-21)
Mr. Malone worked primarily as an insulator during his employm.ent with Ingalls
Shipbuilding, Badham, and Frigitemp. (Id., Ex. 1 at 16:5-9) He insulated several different types
of equipment, including turbines, boilers, and emergency generators. (Id., Ex. 1 at 33: 11-34: 17)
The insulation consisted of removable insulation pads made out of A-Cloth and amosite. (Id.)
Mr. Malone rolled out the amosite on a table and used an electric knife to cut it to fit into A- .
4
Mr. Malone was deposed as a third-party witness on December 21, 1981 in connection with
James L. Jackson v. Johns-Manville Sales Corp., Civ. No. S79-0211 (N), filed in the United States
District Court for the Southern District of Mississippi Southern Division.
3
Cloth pads, which would be applied to various equipment. (Id., Ex. 1 at 32:8-33:10) The
insulation process generated much dust and debris. (Id., Ex. 1 at 49:15-50:14) Mr. Malone never
wore a protective mask or respirator. (Id., Ex. 2 at 132:20-22) He did not see warnings related to
asbestos on insulation products until the last year he worked at Badham. (Id., Ex. 2 at 127:1128:1)
Dr. Eugen J. Mark ("Dr. Mark") and Shafter Dunnam ("Dunnam") testified regarding Mr.
Malone's alleged exposure to Defendants' asbestos-containing products. (Id., Exs. 4, 7) Dr. Mark
. reviewed Mr. Malone's medical records and concluded that general occupational asbestos
exposure caused Mr. Malone's malignant mesothelioma. (Id., Ex. 7 at 4)
Dunnam testified that he worked as an insulator at Ingalls Shipyard during the same time
as Mr. Malone. (Id., Ex. 4 at 22:11-20, 23:1-27:6) However, Dunnam could not recall on what
vessels Mr. Malone worked, whether he and Mr. Malone ever worked on the same vessel at the
same time, or whether Mr. Malone worked around any of Defendants' products. (Id.) However,
. Dunnam testified that he was covered in dust each day while working as an insulator. (Id., Ex. 4
at 21:17-22:3) He assumed that Mr. Malone would have been exposed to similar amounts of
asbestos-containing dust. (Id.)
2. Plaintiffs' product identific~tion evidence
a. Cummins
Mr. Malone identified working with Cummins emergency generators at higalls Shipyard.
(Id., Ex. 2 at 135:15-19) He remembered seeing Cummins'. name printed on the generators. (Id.,
Ex. 2 at 145:19--46:4) Mr. Malone testified that the generators themselves were not insulated.
(Id., Ex. 1 at 59:7-10) Only the exhaust piping attached to the generators was insulated. (Id.)
4
Cummins submits that the exhaust piping arrived at the shipyard ''bare metal." (D.I. 378 at 11)
Plaintiffs do not submit evidence to refute this assertion.
Mr. Malone alleges asbestos exposure from Cummins' generators solely through the
insulation he applied to exhaust piping attached to the outside of the generators. (D.I. 401, Ex. 1
at 59:7-19, Ex. 2 at 136:2-8) However, he did not know who manufactured the exhaust piping or
whether it was in place when the generators were installed. (Id., Ex. 2 at 147:16-23) Mr. Malone
testified thathe insulated the exhaust piping with materials supplied by his employer, Badham.
(Id., Ex. 2 at 149:6-8) The process of insulating the exhaust piping with asbestos materials took
two workers approximately two full days to complete. (Id., Ex. 2 at 149:12-21)
b. CBS
Mr. Malone identified working with Westinghouse turbines at Ingalls Shipyard. (D.I.
408, Ex. 1 at 53:13-21)Westinghouse turbines arrived at the shipyard bare metal with no
insulation attached to them. (Id., Ex. 1 at 51 :10-19) Mr. Malone insulated the tops and bottoms
I
of the turbines with calcium silicate and block insulation. (Id., Ex. 1at51:10-52:13, 23:1324: 1) Mr. Malone recalled that turbine insulation projects required 100 to 150 man hours oflabor
to complete "from the fitting and measuring [to] preparing the cloth_.,, (Id., Ex. 1at51:10-52:20)
c. Foster Wheeler
Mr. Malone identified working with Foster Wheeler boilers at Ingalls Shipyard. (D.I.
401, Ex. 1 at 46:22--47:5) Foster Wheeler boilers arrived at the shipyard "bare metal." (Id., Ex. 2
at.121 :7-22) Mr. Malone identified Foster Wheeler because each boiler was marked with the
name of the manufacturer. (Id., Ex. 2 at 116 :6-1 7 :5) Mr. Malone insulated the exterior' of the
steam drum of Foster Wheeler boilers with calch1m silicate. (Id., Ex. 1 at 46:11-21) He
estimated that the insulation process took four or: five workers one week to complete. (Id., Ex. 1
5
at 49:2-14) Plaintiffs assert that Foster Wheeler specified in an "Insulation Standards Catalog"
that customers use "approved materials" with the boilers, including asbestos cloth, amosite
asbestos insulation blocks, and amosite asbestos pipe covering. (D .I. 407 at 9, Ex. 5 at 6-11)
III.
STANDARD OF REVIEW
A. Summary Judgment
· "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)).
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; 587 (1986); Williams v. Borough of West Chester, Pa., 891F.2d458,
460-61 (3d Cir. 1989). The non-movant must support its contention by citing to particular
documents in the record, by showing that the cited materials do not establish the absence or
presence of a genuine dispute, or by showing that an adverse party cannot produce admissible
evidence to support the fact. Fed. R. Civ. P. 56(c)(l)(A)-(B). The court must view the evidence
in the light most favorable to the non-moving party and draw all reasonable inferences in that
party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wish/dn v. Potter, 476 F.3d 180,
184 (3d Cir. 2007). The existence of some evidence in support of the non-moving party may not
6
be sufficient to deny a motion for summary judgment; rather, there must be enough evidence to
enable a jury to reasonably find for the non-moving party on the issue. See Anderson, 477 U.S.
at 249. If the non-moving 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. Additionally, because a loss of consortium claim is
derivative of the injured spouse's claim for injuries under Mississippi law, a grant of summary
'1
I
judgment applies to both spouses' claims against.a defendant. See Miss. Code Ann.§ 93-3-1
(1968); see also McCoy v. Colonial Baking Co., 572 So. 2d 850, 854 (Miss. 1990).
B. Mississippi Law
!
A federal court sitting in diversity is "reqtiired to apply the substantive law of the state
whose laws govern the action." Robertson v. Allied Signal, 914 F.2d 360, 378 (3d Cir. 1990).
Consequently, the parties agree that Mississippi substantive law applies to this action. (D.I. 305)
1. Product identification and
c~usation
Mississippi courts apply the "frequency, regularity, and proximity" test in evaluating a
plaintiffs asbestos-related claims. Monsanto Co! v. Hall, 912 So. 2d 134, 137 (Miss. 2005)
I
(citing Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 757 (Miss. 2005) (holding that a plaintiff must
show: (1) he worked with or around a particular defendant's product, (2) with sufficient
frequency and regularity, (3) in proximity to where he actually worked, (4) and that it was
probable his alleged exposure to that defendant's product caused his injury)). As such, Plaintiffs
must identify Defendants' products, demonstrate exposure to those products, and establish the
causal connection to Mr. Malone's injuries. Id Summary judgment is appropriate if Plaintiffs
fail to meet the burden of proving product identification, exposure, and causation under the
frequency, regularity, and proximity test. See Gqrman-Rupp, 908 So. 2d at 757 (granting
7
summary judgment where the plaintiff failed establish_ causation); Monsanto, 912 So. 2d at 137
(granting summary judgment where the plaintiff failed to identify exposure to any particular
product).
Plaintiffs argue that these factors are to be applied "less rigidly" in cases involving
mesothelioma. 5 In support of this claim, Plaintiffs rely on a case from the Seventh Circuit and
another from the New Jersey Superior Court: Tragarz v. Keene Corp., 980 F.2d 411, 421 (7th
Cir. 1992) andKurakv. A.P. Green Refractories Co., 689 A.2d 757, 765-66 (N.J. Super. Ct.:.
App. Div. 1997). 6 However, these courts do not apply Mississippi law. See Tragarz, 980 F.2d at
417; Kurak, 689 A.2d at 761-62. Additionally, other courts have expressly declined to follow
these cases, refusing to alter the frequency, regularity, and proximity standard. See, e.g., Guffey
v. A. W. Chesterton Co., E.D. PA Civil Action No. 2:11-67213-ER, 2012 WL 5395035, at *1
(E.D. Pa. Aug. 28, 2012) (declining to follow Tragarz);.Barnes v. Foster Wheeler Corp., Civil
Action No. 13-1285 (JBS/JS), 2014 WL 2965699, at *3-4 (D.N.J. June 30, 2014) (distinguishing
the case from Kurak). Mississippi courts have not distinguished between different asbestosrelated diseases when applying the frequency, regularity, and proximity test. See Gorman-Rupp,
908 So. 2d at 757 (finding that the frequency, regularity, and proximity test is the proper
standard to apply in asbestos cases); see also Monsanto, 912 So. 2d at 136-37 .("[I]n asbestos
litigation cases, the frequency, regularity, and proximity test is the proper standard in
determining exposure and proximate cause."). Moreover, this court has previously used the
5
Plaintiffs argue that "there is no threshold level of exposure required for the development of
mesothelioma" and therefore even a minimal exposure should satisfy the frequency, regularity,
and proximity requirements. (D.I. 401at14-15; D.I. 407 at 5-6; D.I. 408 at 5-6)
6
Plaintiffs also cite to Linster v. Allied Signal, Inc., 21 A.3d 220 (Pa. Super. Ct. 2011 ), GeorgiaPaci.fic Corp. v. Pransky, 800 A.2d 722 (Md. 2002), and Purcell v. Asbestos Corp., Ltd., 959
P.2d 89 (Or. App. Ct. 1998) in passing, none of which apply Mississippi law.
8
frequency, regularity, and proximity standard when applying Mississippi substantive law to a
mesothelioma case. See Dalton v. 3M Co., Civil Action No. 10-113-SLR-SRF, 2013 WL
4886658, at *4-7 (D. Del. Sept. 12, 2013), report and recommendation adopted, 2013 WL
5486813 (D. Del. Oct. 1, 2013). Therefore, the court will address the product identification
analysis based on the frequency, regularity, and proximity standard.
2. Product liability
I
Products liability actions in Mississippi are governed by the Mississippi Products
Liability Act ("MPLA"). The MPLA provides th~t to bring a claim for strict liability, a plaintiff
.
i
must prove that at the time the product left the control of the manufacturer or seller, the product
contained a manufacturing defect, design defect,
i~adequate
warnings, or the product breached
an express warranty. Miss. Code Ann. § 11-1-63(a) (2014). Plaintiffs must also show that the
defect rendered the product unreasonably dangerous, and that the condition of the product
proximately caused the damages for which recov~ry is sought. Id.
Under the MPLA, a product may be founq defective if it "fail[ s] to contain adequate
warnings." 7 § 11-1-63(a)(i)(2). As such, manufacturers and sellers have a duty to warn of
I
known hazards associated with the use of their products. See Dalton, 2013 WL 4886658, at *9
(citing Scordino v. Hapeman Bros., 662 So. 2d 640, 646 (Miss. 1995)). However, manufacturers
and sellers only have a duty to warn of dangers known to them at the time the product leaves his
or her control. See Noah v. GMC, 882 So. 2d 235, 239 (Miss. Ct. App. 2004), cert. denied, 882
7
The MPLA defines an adequate warning as
one that a reasonably prudent person in the same or similar circumstances would
have provided with respect to the danger and that communicates· sufficient
information ori. the dangers and safe use of the product, taking into account the
characteristics of, and the ordinary knowledge common to an ordinary consumer
who purchases the product[.]
Miss. Code Ann. § 11-1-63(c)(ii).
9
So. 2d 772 (Miss. 2004). Plaintiffs must show that at the time the product left the control of the
manufacturer or seller, the manufacturer or seller knew or should have known about the danger,
and "the ordinary user ... would not realize its dangerous condition." § 11-1-63(c)(i). The failure
to warn must be the proximate cause of the injuries suffered. 3M Co. v. Johnson, 895 So. 2d
I
~65
151, 166 (Miss. 2005) (citing Garner v. Santoro,
F.2d 629, 641--42 (5th Cir. 1989)). The
causal link between the alleged injury and the inadequate warning is key to Plaintiffs' claim. Id.
3. Bare metal defense
Although Mississippi courts have not yet addressed the bare metal defense, this· court has
previously found that based on the MPLA, Restatement (Second) of Torts § 402A, and case
authorities that, "it is reasonably likely that the
S~preme
Court of Mississippi would follow the
majority of jurisdictions that have refused to find defendants liable for other manufacturers'
I
I
asbestos products." Dalton, 2013 WL 4886658, at *10 (citing Murray v. General Motors, LLC,
478 Fed. App'x 175, 182 (5th Cir. 2012) (there is no post-sale duty to warn under Mississippi
law); Scordino, 662 So. 2d at 643 (strict liability depends on whether defendant is a
manufacturer or seller of a product); Harmon v. Nat'l Auto Parts Ass 'n, 720 F. Supp. 79, 80
(N.D. Miss. 1989) (strict liability is not imposed on one who neither manufactures nor sells the
products)). Additionally, at least one Mississippi court has found that "Mississippi's products
liability laws 'shield[] companies from liability for products they did not create.'" Truddle v.
Wyeth, LLC, Civil Action No. 2:11-cv-00207-GHD-SAA, 2015 WL 160696, at *4 (N.D. Miss.
Jan. 12, 2015) (quoting Lashley v. Pfizer, Inc., 750 F.3d 470, 476 (5th Cir. 2014)).
The bare metal defense applies to shield defendants from liability for injuries caused by
asbestos c.omponents where the defendant neither manufactured nor supplied the product that
allegedly caused the plaintiff to be exposed to asbestos. Dalton, 2013 WL 4886658, at *6-7
10
(citing Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 793 (E.D. Pa. 2012)). Accordingly,
courts accepting the bare metal defense refuse to impose liability upon manufacturers for dangers
associated with.asbestos-containing products manufactured and distributed by other entities. Id.
at *7 (citing Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 495 (6th Cir. 2005); Conner, 842
F. Supp. 2d at 801; Surre v. Foster Wheeler LLC, 831 F. Supp. 2d 797, 801 (S.D.N.Y. 2011);
Niemann v. McDonnell Douglas Corp., 721 F. Supp. 1019, 1030 {S.D. Ill. 1989); O'Neil v.
Crane Co., 266 P.3d 987, 997-98 (Cal. 2012); Taylor v. Elliott Turbomachinery Co., 90 Cal.
Rptr. 3d 414, 429 (Cal. Ct. App. 2009); In re Asbestos Litig. (Howton), C.A. No. Nl lC-03218
ASB, 2012 WL 1409011, at *1 (Del. Super. Ct. Apr. 2, 2012); Jn re Asbestos Litig. (Wolfe), C.A.
No. NlOC-08-258 ASB, 2012 WL 1415706, at *3-4 (Del. Super. Ct. Feb. 28, 2012); Braaten v.
Saberhagen Holdings, 198 P.3d 493, 498-99 (Wash. 2008); Simonetta v. Viad Corp., 197 P.3d
127, 134-35 (Wash. 2008)). Therefore, a manufacturer is not subject to a duty to warn or protect
against hazards arising from a product it did not manufacture, supply, or sell. Id. at *10.
Plaintiffs argue that Dalton is inapplicable because there is some evidence that
Defendants required asbestos insulation for their products and knew that the asbestos-containing
insulation used by their customers was hazardous. (D.I. 401 at 18; D.I. 407 at 8-9; D.I. 408 at 810) Plaintiffs cite to two cases where summary judgment was denied because the defendant's
product could not be operated safely without additional insulation, and the use of asbestoscontaining insulation was foreseeable: Berkowitz v. AC&S, Inc., 733 N.Y.S.2d 410·(N.Y. App.
2001) and Chicano v. Gen. Elec. Co., No. Civ.A. 03-5126, 2004 WL 2250990 (E.D. Pa. Oct. 5,
2004). (D.I. 401 at 18) However, these cases do not apply Mississippi law, and they have not
been adopted by any Mississippi court. In fact, other courts have declined to follow those cases.
See, e.g., Surre, 831 F. Supp. 2d 797 (S.D.N.Y 2011); Schwartz v. Abex Corp., Civil Action No.
11
2:05-CV-02511-ER, 2015 WL 3387824 (E.D. Pa. May 27, 2015). The United States District
Court for the District of New York, had this to say about Berkowitz-a New York state law case:
Berkowitz is a one-paragraph opinion with no clear holding .... The plaintiff alleged,
· inter alia, that the defendant had a duty to warn him against the hazards of asbestos
insulation "on top of and around [the] pumps." Defendant maintained that it did not
manufacture or install the asbestos to which plaintiff was exposed. The court found
that defendant might have a duty to warn because defendant's "own witness
indicated that the government provided certain specifications involving [pump]
insulation ... which [defendant] knew would be made out of asbestos." Thus,
Berkowitz involved more than a mere possibility that asbestos might be used, and
the case hardly stands for the broad proposition that a manufacturer has a duty to
warn whenever it is foreseeable that its product will be used in conjunction with a
defective one.
Surre, 831 F. Supp. 2d at 802-03 (internal citations omitted). Accordingly, the court will not
extend Berkowitz to find that "a manufacturer has a duty to warn whenever it is foreseeable that
its product will be used in conjunction with a defective one." Id.
Additionally, the holding of Chicano, which applied Pennsylvania law, was clarified in a
more recent case in that district. See Schwartz, 2015 WL 3387824. In Schwartz, the court
I
conducted a thorough analysis of the evolving products liability case law in Pennsylvania. Id. at
*4--17. The court noted that since Chicano, additional courts had further interpreted the bare
metal defense. Id. at *14--16 (citing Schaffner v. Aesys Techs., LLC, Nos. 1901EDA2008, 1902
EDA 2008, 2010 WL 605275 (Pa. Super. Ct. Jan. 21, 2010); Kolar v. Buffalo Pumps, Inc., No.
0199, 2010 WL 5312168 (Pa. Com. PL Aug. 2, 2010); In re Asbestos Prods. Liab. Litig.
(Hoffeditz), Civil Action No. 2:09-70103, 2011 WL 5881008 (E.D. Pa. July 29, 2011)).
Considering the subsequent case authorities along with its interpretation of § 402A, the Schwartz
court predicted that a manufacturer or supplier would not be strictly-liable under Pennsylvania
law for an injury arising from aftermarket insulation it did not manufacture or supply that was
installed on its product. Id. at *1 7. With respect to negligence claims, the court stated:
12
To be clear, a product manufacturer is not liable in negligence for injury arising
from all foreseeable use of asbestos-containing component parts (or all foreseeable
injury associated with aftermarket component parts). To require a product
manufacturer to warn of all foreseeable hazards that could arise in connection with
its product (regardless of whether the manufacture actually knew that such hazards
would be present) would create an undue burden on those product manufacturersin terms of both efforts required for investigation of potentially foreseeable hazards
and financial penalties imposed for hazards not discovered-which would deter the
development and production of goods in our society.
Id. at * 19. Thus, foreseeability alone, as set out in Chicano, has not been the standard adopted in
subsequent decisions, namely, Schwartz.
In view of the foregoing, the court recommends against expanding the duty to warn for
manufacturers supplying ''bare metal" products when it is foreseeable that their products will be
used in conjunction with defective products made or sold by a third party.
4. Government contractor defense
i
Under the test set out in Boyle v. United Techs. Corp., a federal contractor will not be
held liable for its product's design defects when: (1) the United States approved reasonably
precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier
warned the United States about the dangers in the use of the equipment that were known to the
supplier but not to the United States. 487 U.S. 500, 512 (1988). The defense is applicable to
both design defect and failure to warn claims. See, e.g., MacQueen v. Union Carbide Corp.,
Civil Action No. 13-831-SLR-CJB, 2013 WL 6571808, at *3 (D. Del. Dec. 13, 2013), report and
recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014); Walkup v. Air & Liquid Sys.
Corp., Civil Action No.
12-1635~SLR-SRF,
2013 WL 5448623, at *2 (D. Del. Sept. 26, 2013),
report and recommendation adopted, 2013 WL 5798701 (D. Del. Oct. 24, 2013); In re Asbestos
Litig. (Seitz), 661 F. Supp. 2d 451, 454 (D. Del. 2009); Kirks v. General Elec. Co., 654 F. Supp.
2d 220, 224--25 (D. Del. 2009). In a failure to warn claim, the first prong of Boyle is altered to
13
preclude liability where the government exercised discretion and approved the warnings. See
Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir: 1995). 8 Courts require the government
approval to "transcend rubber stamping" for the defense to shield a government contractor from
liability for failure to warn. Id. at 1156-57.
5. Learned intermediary doctrine
Under the common law, a manufacturer's duty to warn is discharged when it provides
information to an intermediary, upon whom the manufacturer can reasonably rely to
communicate that information to the ultimate end user. Union Carbide Corp. v. Nix, Jr., 142 So.
3d 374, 386 (Miss. 2014). 9 To use the defense, the manufacturer must show that it provided the
"learned intermediary" with information or warning regarding the hazard. Id. (citing Swan v.
J.P., Inc., 613 So. 2d 846, 851-56 (Miss. 1993)).
IV.
DISCUSSION
Product exposure is a threshold question: Plaintiffs must show that Defendants' products
caused Mr. Malone's injuries. See Dependable A"/;Jrasives, Inc. v. Pierce, 156 So. 3d 891, 896
(Miss. 2015) (quoting Banks ex rel. Banks v. Sherwin-Williams Co., 134 So. 3d 706, 710 (Miss.
2014)). Under Mississippi law, Plaintiffs must snow that Mr. Malone was exposed to
Defendants' asbestos-containing products with the requisite frequency, regularity, and proximity
8
This Sixth Circuit decision has been treated persuasively by Mississippi courts. See, e.g.,
Jowers v. Lincoln Elec. Co., 617 F.3d 346, 353 (5th Cir. 201 O); Perkins v. US., No. 1 :07CV1185
LG-RHW, 2009 WL 2602433, at *2 (S.D. Miss. Aug. 21, 2009); Bragg v. US., 55 F. Supp. 2d
575, 591 (S.D. Miss. 1999).
9 The statutory defense-known as the sophisticated-user defense-protects a manufacturer from
liability if the danger posed by the product is known or should have been known to the user,
accounting for the common knowledge of those who ordinarily use the product. Nix, 142 So. 3d
at 386 (citing Miss. Code Ann§ 11-1-63(e) (2004)). CBS raises the common law defense in this
case. (D.I. 9-10)
14
to survive a motion for summary judgment. See Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 757
(Miss. 2005).
A. Cummins
The court recommends granting Cummins' motion for summary judgment as there is no
genuine issue of material fact in dispute as to whether Mr. Malone was exposed to an asbestoscontaining Cummins product with sufficient frequency, regularity, and proximity to meet
Mississippi's product nexus requirement.
1. Product identification and causation
Cummins contends that summary judgment is warranted because Plaintiffs failed to
produce evidence that "Mr. Malone was exposed to asbestos fibers from a particular Cummins
product with the frequency, regularity, and proximity necessary to demonstrate causation." (D.I.
378 at 7) Plaintiffs respond that the causation standard is applied less strictly in mesothelioma
cases. (D.I. 401at13-14) Additionally, Plaintiffs argue there is a genuine issue of material fact
with respect to causation because Mr. Malone insulated exhaust pipes with asbestos on at least
twenty generators. (Id. at 13-17)
As discussed at§ III(B)(l), supra, the court will follow Dalton in applying Mississippi's
frequency, regularity, and proximity standard to this mesothelioma action. Dalton v. 3M Co.,
Civil Action No. 10-113-SLR-SRF, 2013 WL 4886658, at *7 (D. Del. Sept. 12, 2013), report
and recommendation adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2013) (citing Gorman-Rupp,
908 So. 2d at 757; Monsanto Co. v. Hall, 912 So. 2d 134, 136-37 (Miss. 2005)).
Plaintiffs' claims against Cummins arise from Mr. Malone's alleged exposure to external
asbestos insulation, which was applied to exhaust piping attached to Cummins' emergency
generators. (D.I. 401 at 16, Ex. 1 at 59:7-10, Ex. 2 at 135:15-36:4) Plaintiffs assert that Mr.
15
Malone used asbestos to insulate exhaust piping on Cummins generators on about twenty ships
while working for Badham. (Id., Ex. 1 at 60:3--4) However, Mr. Malone testified that he could
not recall which generators were oii which ships, or how many times he worked on any one type
of generator. (Id.)
Although Plaintiffs argue that Mr. Malone was exposed to asbestos from Cummins
generators on at least twenty ships, in viewing the facts in the light most favorable to Plaintiffs,
the record indicates that Mr. Malone installed external insulation on Cummins and Caterpillar
generators, combined, on about ten ships. In preparation for his deposition, Mr. Malone filled
out a Work History form listing his employers and thirty-three ships he recalled working on at
Ingalls Shipyard. (D.I. 384, Ex. D) However, Mr. Malone did not work on the last ten ships or
any of the destroyers listed on the form while employed by Badham. (Id.; D .I. 401, Ex. 2 at
34:1-15, Ex. 1 at 25:15-27:2) Removing the last ten ships and the additional destroyers from Mr.
Malone's Work History form leaves ten ships on which Mr. Malone worked while employed by
Badham. Thus, by his own testimony, Mr. Malone could only have insulated Cummins and
Caterpillar brand generators on ten ships, and he cannot specify on which company's generators
he worked on each of the ten ships. (D.I. 401, Ex. 2 at 147:4-15)
Mr. Malone did not do any work to the generators themselves, which were already
installed on the ship at the time he insulated the exhaust piping. (D.I. 378, Ex.Bat 146:14-22)
Mr. Malone only applied
e~ternal
insulation to the exhaust piping attached to the generators.
(Id., Ex. B at 136:2-8) The external exhaust piping was attached to the generator by a flange.
(Id., Ex. B at 151 :6-19) Mr. Malone described the insulation process as such a "small" part of
his job that he could not remember how the exhaust system operated. (Id., Ex.Bat 135:15-36:8)
16
Viewing the facts in the light most favorable to Plaintiffs, Plaintiffs fail to show that Mr.
Malone was exposed to an asbestos-containing Cummins generator with sufficient frequency and
regularity, such that it is probable that the exposure caused Mr. Malone's injuries. See Dalton v.
3M, Civil Action No. 10-113-SLR-SRF, 2013 WL 4886658, at *7 (D. Del. Sept. 12, 2013),
report and recommendation adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2013). At best, Mr.
Malone testified that a "small" part of his work involved applying asbestos insulation on the
exhaust piping of generators. (D.I. 401, Ex. 2 at 135:20-136:8) Such exposure is insufficient to
establish causation. "Mere allegations of facts are not sufficient to create a genuine issue of
material fact sufficient to defeat a motion for summary judgment." Gorman-Rupp Co. v. Hall,
908 So. 2d 749, 757 (Miss. 2005). Accordingly, Plaintiffs fail to meet the frequency, regularity,
and proximity test because "[Plaintiffs] failed to submit any evidence that demonstrated that [Mr.
Malone] had any exposure to an asbestos-containing product attributable to [Cummins]." Id.
I
1
Therefore, Plaintiffs have not established causation, and the court recommends granting
Cummins' motion for summary judgment.
2. Bare metal defense
Application of the bare metal defense provides an additional basis warranting summary
judgment in Cummins' favor. Cummins is not liable "for injuries caused by asbestos
components, such as insulation, gaskets, and packing, that were incorporated into [its] products
or used as replacement parts, but which [it] did not manufacture or distribute." Dalton, 2013 WL
4886658, at *6 (quoting Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 796 (E.D. Pa. Feb. I,
2012)).
· Cummins asserts that "Plaintiffs have presented no evidence that the exhaust piping [or
the insulation attached to it] was manufactured, sold or distributed by Cummins." (D.I. 378 at
17
11) Plaintiffs respond that the bare metal defense does not apply because "Cummins required
insulation for the exhaust pipes on its generators and knew that the asbestos-containing
insulation used by its customers was hazardous." (D.I. 401 at 18-19)
For the reasons stated in Dalton, the court finds the bare metal defense applicable to the
facts of the instant case. See 2013 WL 4886658; see also Dalton v. 3M Co., E.D. PA Civil
Action No. 2:10-64604, 2011WL5881011, at *1 n.l (E.D. Pa. Aug. 2, 2011) (explaining that
the bare metal defense is an unsettled issue of Mississippi law). In Dalton, the plaintiff
developed mesothelioma as a result of alleged exposure to asbestos-containing generators while
working at Ingalls Shipyard. 2013 WL 4886685, at *2. The plaintiff argued that Foster Wheeler
supplied external asbestos insulation for use on its generators, and it directed individuals to use
asbestos in its design manuals. Id. at *11-12. The plaintiff was only exposed to external
insulation applied to the generators after the generators were installed on the ships. Id. at *2,
*11.
Additionally, the manuals alleged to have directed the use of asbestos were not actually
supplied by Foster Wheeler. Id. at *12. Therefore, the court granted summary judgment in favor
of Foster Wheeler, finding that Foster Wheeler could not be liable for injuries caused by products
that it did not supply. Id.
In the present action, there is no evidence in the record demonstrating that Cummins
supplied the asbestos-containing insulation Mr. Malone used to insulate a generator's exhaust
piping. The asbestos-containing insulation materials he used were supplied by his employer,
Badham, not Cummins, and Badham obtained its asbestos insulation materials from OwensComing, Kaylo, Shook & Fletcher, or John's-Manville. (D.I. 378, Ex.Bat 44:10--46:20, 149:68)
18
Moreover, there is nothing in the record demonstrating that Cummins required or
instructed its customers to insulate the generator exhaust piping with asbestos. Plaintiffs refer to
Cummins' Marine Diesel Application Practices manual to assert that Cummins instructed end
users to insulate exhaust piping. (D.I. 401 at 9, Ex. 5 at 5; 7/1/15 Tr. at 59:12-60:24) However,
Cummins' counsel pointed out at oral argument that the manual refers to "turbo-charged
propulsion engines for small crafts such as tugboats, small fishing boats, pleasure craft, [and] not
backup generators used in the large and sophisticated naval vessels." (7/1/15 Tr. at 57:1-7) Even
with turbo-charged propulsion engines, the manual does not direct users to apply asbestos
insulation to the exhaust piping attached to Cummins emergency generators. (D .I. 401, Ex. 5 at
6-7) The manual states that "[t]he application practices described ... are intended to assist sales
personnel in selecting machinery for quoting purposes only." (Id., Ex. 5 at 1) Additionally, the
manual states that the exhaust system piping "should be lagged or water cooled." (Id., Ex. 5 at 5)
The court has not been directed to a specific reference to asbestos or application of asbestos
insulation to the exhaust piping.
Plaintiffs submitted deposition testimony from Cummins' corporate representative,
Robert Weimer, in a separate asbestos-related action. 10 (Id. at 9, Ex. 6) Plaintiffs assert that Mr.
Weimer' s testimony indicates that a separate Cummins manual instructed end users to remove
and apply asbestos insulation. (Id. at 9, Ex. 6 at 119:3-121:3) However, Mr. Weimer's
testimony refers to a manual covering an entirely different product than the generators at issue.
(Id.) He specifies a turbine made for a Coast Guard pleasure boat craft, not turbines used aboard
Navy vessels. (Id.) Furthermore, Mr. Weimer's testimony refers to disassembling a turbine
10
Mr. Weimer testified as a Cummins corporate representative on October 7, 2008 in connection
with a Louisiana state court action, Pellegal v. Northrop Grumman Ship Systems, Inc. et al., Case
No. 07-7749. (D.I. 401, Ex. 6)
19
turbocharger by removing the turbocharger blanket, not to insulating generator exhaust piping.
(Id.)
The court declines to expand the duty to warn for manufacturers supplying ''bare metal"
products when it is foreseeable that their products will be used in conjunction with defective
products made by third parties. See§ III(B)(3), supra. However, assuming, arguendo, that
foreseeability alone was the proper standard to apply, the record does not indicate that it was
foreseeable that end users would apply asbestos to Cummins emergency generators. Neither the .
Marine Diesel Application Practices manual nor Mr. Weimer's testimony support an inference
that Cummins required or instructed end users to apply asbestos to its generators. Therefore,
Plaintiffs have not shown the existence of a material issue of fact as to whether Cummins owed a
duty to warn of asbestos-containing insulation supplied by a third party, which was used to
insulate exhaust pipes attached to the generators it manufactured. See Dalton v. 3M Co., Civil
Action No. 10-113-SLR-SRF, 2013 WL 4886658 (D. Del. Sept. 12, 2013), report and
recommendation adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2013).
B. CBS
The court should grant CBS's summary judgment motion, as there is no genuine issue of
material fact in dispute regarding whether Mr. Malone was exposed to an asbestos-containing
product manufactured or distributed by Westinghouse.
1. Product identification and causation
CBS·contends that summary judgment is warranted because "the undisputed evidence
reflects a failure of proof that Mr. Malone was ever exposed to any asbestos-containing product
or material which was manufactured or supplied by Westinghouse." (D .I. 3 82 at 7) Plaintiffs
respond that "[t]here is at least a genuine issue of material fact as to whether Malone's exposure
20
was of sufficient frequency, regularity, and proximity to meet Mississippi's product nexus
requirement [because] Malone specifically recalled insulating Westinghouse turbines." (D.I. 408
at 7-8) Additionally, Plaintiffs argue that the frequency, regularity, and proximity standard
should be applied "less rigidly" in mesothelioma cases. (Id. at 6)
Plaintiffs' claims against Westinghouse arise from Mr. Malone's alleged exposure to
external asbestos insulation, which Mr. Malone applied to the tops and bottoms of the turbines.
(Id., Ex. 1at51:10-52:13, 23:13-24:1) Plaintiffs assert that Mr. Malone worked on
Westinghouse turbines on approximately twenty ships while working at Ingalls Shipyard. (Id. at
7) Mr. Malone testified that turbine insulation projects required 100 to 150 man hours oflaborto
complete "from the fitting and measuring [to] preparing the cloth." (Id., Ex. 1 at 51 :10-52:20)
Mr. Malone was exposed to asbestos because the process of applying insulation to the turbines
generated respirable asbestos fibers in areas with minimal ventilation. (Id. at 7)
However, Mr. Malone testified that he could not identify specifically working with a
I
Westinghouse turbine on any particular ship.· (Id.,, Ex. 2 at 118:20-24) He did not know if any
specific manufacturer's turbines appeared more fyequently than others aboard the ships. (Id., Ex.
2 at 118:25-119:3) He testified that all turbines generally looked the same. (Id., Ex. 2 at 119:21120:15) Mr. Malone also testified that he did not know how big Westinghouse turbines were.
(Id., Ex. 2 at 120:21-121:3) Finally, he affirmed that he had no knowledge that he was ever
exposed to asbestos from a product manufactured or sold by Westinghouse. (Id., Ex. 2 at
121 :23-122:3)
Accordingly, viewing the facts in the light most favorable to Plaintiffs, Plaintiffs fail to
show that Mr. Malone was exposed to an asbestos-containing Westinghouse turbine with
sufficient frequency and regularity, such that it is probable that the exposure caused Mr.
21
Malone's injuries~ See Dalton v. 3M, Civil Action No. 10-113-SLR-SRF, 2013 WL 4886658, at .
*7 (D. Del. Sept. 12, 2013), report and recommendation adopted, 2013 WL 5486813 (D. Del.
Oct. 1, 2013). "Mere allegations of facts are not sufficient to create a genuine issue of material
fact sufficient to defeat a motion for summary judgment." Gorman-Rupp Co. v. Hall, 908 So. 2d
749, 757 (Miss. 2005).
2. Bare metal defense
Application of the bare metal defense provides an additional basis warranting summary
judgment in CBS' s favor. CBS contends that Plaintiffs fail to show that Mr. Malone was injured
by asbestos-containing products manufactured, supplied, or sold by Westinghouse. (D.I. 382 at
1, 7-8) Plaintiffs argue that the bare metal defense does not apply because "Westinghouse
required insulation for its turbines, and it was foreseeable that end users would apply asbestoscontaining insulation to Westinghouse turbines." (D.I. 408 at 8)
"[A] manufacturer is not subject to a duty;to warn or protect against hazards arising from
a product it did not manufacture, supply, or sell.", See Dalton, 2013 WL 4886658, at *10. Mr.
Malone's alleged exposure to asbestos-containing Westinghouse products is limited to working
with the external insulation on Westinghouse turbines. (D.I. 408, Ex. 1at51:10-52:13) Mr.
Malone applied the external insulation to the tops and bottoms of turbines. (Id.) He testified that
the turbines he maintained arrived at Ingalls Shipyard "bare metal." (Id., Ex. 2 at 121:17-19, Ex.
1 at 51:10-52:13) He used insulation supplied by his employer, Badham, to insulate the turbines.
(D.I. 382, Ex. A at 56:3-8) Badham generally used insulation manufactured by Owens-Corning,
Kaylo, and John's Manville. (D.I. 408, Ex. 2 at 44:10-45:22)
Companies sent calcium silicate with the turbines "one or two or three times in [Mr.
Malone's] whole career." (Id., Ex. 1 at 56:7-13) However, Mr. Malone could not specifically
22
recall which companies sent calcium silicate with their turbines. (Id., Ex. 1 at 55:5-56:13)
Although Mr. Malone testified that company representatives advised machinists about insulation,
he also testified that he never spoke with such representatives about the work, and he was not
privy to the representatives' conversations with the machinists. (Id., Ex. 1 at 55:8-57:12)
Additionally, Mr. Malone did not remember a Westinghouse representative ever present at the
shipyard. (Id., Ex. 2 at 56:14-21)
Plaintiffs rely on CBS corporate representative Douglas Ware's deposition testimony in a
separate action to support the position that Westinghouse supplied and recommended asbestos
insulation for use on its turbines. I I (Id., Ex. 5 at 31: 13-3 7: 8) Mr. Ware testified that land-based
turbines operating over 400 degrees were designed to incorporate insulation. (Id., Ex. 5 at
35:14-25) He testified that Westinghouse knew such turbines would at some point be insulated
by either Westinghouse or the customer. (Id., Ex. 5 at 35:14-19) Additionally, Westinghouse
occasionally supplied ins:ulation with its turbines at the customer's request. (Id., Ex. 5 at 36:2137:21) However, Mr. Ware testified about "land-based turbines," not the marine turbines that
Mr. Malone maintained at the shipyard. (Id., Ex. 5 at 31:13-37:21; D.I. 416 at 3) He also
testified that "some" Westinghouse specifications called for turbines to include asbestos block
prior to 1973, but Mr. Ware did not testify that all turbines, whether land-based or marine-based,
were designed to incorporate asbestos components. (D.I. 408, Ex. 5 at 40:14-19)
The court declines to expand the du~y to warn for manufacturers supplying "bare metal"
products when it is foreseeable that their products will be used in conjunction with defective
products made by third parties. See§ III(B)(3), supra. However, assuming, arguendo, that
11
Douglas Ware was deposed on August 10, 2011 in connection with a United States District
Court for the Eastern District of Pennsylvania case, Rabovsky v. Air & Liquid Systems Corp.,
Civil Action No. 2: 10-cv-03232-ER. (D.I. 408, Ex. 5)
23
foreseeability alone was the proper standard to apply, the record does not indicate that
Westinghouse instructed end users to insulate the turbines at issue with asbestos. Mr. Ware's
testimony refers to land-based turbines, and Plaintiffs do not submit evidence that Westinghouse
directed end users to apply asbestos to marine-based turbines. Furthermore, Mr. Malone did not
remember a Westinghouse representative ever present at the shipyard to instruct machinists
about maintenance.
If Westinghouse required its turbines to be insulated with asbestos, the evidence does not
establish that Westinghouse manufactured or supplied such insulation. See King v. Allen Bradley
Co., E.D. PA Civil Action No. 2:13-06106-ER, 2015 WL 9583367, at *1 (E.D. Pa. Mar. 6, 2015)
(although there was evidence that Westinghouse required or recommended the use of asbestos
insulation, the bare metal defense applied because there was no evidence that Westinghouse
supplied or manufactured the insulation at issue); Kilgore v. Allen-Bradley Co., E.D. PA Civil
Action No. 2:13-04029-ER, 2014 WL 7648983, at *1 (E.D. Pa. Nov. 12, 2014) (same); Devries
v. Gen. Elec. Co., E.D. PA Civil Action No. 5:13-00474-ER, 2014 WL 6746795, at *1 (E.D. Pa.
Oct. 10, 2014) (same). Mr. Malone testified that the turbines arrived "bare metal" and his
employer supplied the insulation he applied to turbines. Therefore, Plaintiffs have not shown the
existence of a material issue of fact as to whether Westinghouse owed a duty to warn or protect
against hazards arising from a product it did not manufacture, supply, or sell. See Conner v. v.
Alfa Laval, Inc., 842 F. Supp. 2d 791, 796 (E.D. Pa. 2012).
3. Learned intermediary doctrine
The court recommends granting summary judgment based upon product identification,
causation, and the bare metal defense. However, CBS asserts an additional basis for judgment as
a matter of law pursuant to the learned intermediary doctrine.
24
For the learned intermediary doctrine to apply, CBS must provide evidence that it ·
provided the "learned intermediary," or the third party purchaser, with information or warning.
Union Carbide Corp. v. Nix, Jr., 142 So. 3d 374, 386 (Miss. 2014) (citing Swan v. IP., Inc., 613
So. 2d 846, 851-56 (Miss.1993)).
Although CBS points to evidence that the Navy was aware of the dangers of asbestos, it
offers no facts of record to support whether Westinghouse reasonably relied on the Navy to warn
users like Mr. Malone of the hazard. 12 See id. at 386 (a defendant cannot claim that it relied on a
third party to warn a plaintiff when it is unclear form the record whether it provided the third
party with a warning); Dalton v. 3M Co., E.D. PA Civil Action No. 2:10-64604, 2011 WL
5881011, at *1 (E.D. Pa. Aug. 2, 2011) (it could not be determined that it was reasonable for the
defendant to rely on the third party to warn the plaintiff when there was a genuine issue of
material fact as to whether the defendant had superior knowledge than the Navy about the
hazards· of asbestos). Consequently, the court recommends that summary judgment based on the
learned intermediary doctrine is not warranted. However, for the reasons discussed' in the
preceding sections, CBS is, nonetheless, entitled to summary judgment based upon product
identification, causation, and the bare metal defense. See§ IV(B)(l)-(2).
4. Government contractor defense
CBS asserts the government contractor defense as another basis for judgment as a matter
of law. The government contractor defense shields defendants from liability for acts arising out
12
The parties dispute whether the learned intermediary doctrine applies in this case when Mr.
Malone was employed· as an independent contractor, and not directly by the Navy. The court
need not discuss this distinction because it does not alter the court's recommendation for
summary judgment on other grounds.
25
of the performance of a federal contract. See Bailey v. McDonnell Douglas Corp., 989 F.2d 794,
797 (5th Cir. 1993). A federal contractor is not liable for failure to warn when:
(1) the United States exercised its discretion and approved the warnings, 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.
See Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del.
Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014)
(quotingMacQueen v. Union Carbide Corp., Civil Action No. 13-831-SLR-CJB, 2013 WL
6571808, at *4 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535
(D. Del. Jan. 9, 2014)).
With respect to the first Boyle factor, CBS points to Navy specifications ("MilSpecs")
and an Affidavit from Admiral Roger B. Home Jr. RADM USN (Ret.) as evidence that the Navy
specified and approved all warnings that would be used with its equipment. (D.I. 382 at 3-4)
Admiral Home testified, "The Navy will use previously developed military specifications
("MilSpecs"), create any additional specifications that may be required, and then issue a request
for bids from qualified contractors in an effort to identify a contractor with the capability and
capacity to create a design and to manufacture a turbine that satisfies its new military
requirements." (Id., Ex.Bat if 10) "The MilSpecs for Navy equipment were drafted, approved
and maintained by the Navy .... " (Id., Ex. B at~ 17) "[T]he Navy retained the 'final say' over the
design attributes of naval ships and their equipment." (Id., Ex.Bat ii 21)
However, Plaintiffs argue that the Navy required equipment manufacturers to provide
their own warnings or "safety precautions" with their equipment. (D.I. 408 at 15, Ex. 16 at S 1-1h) Specifically, MIL-B 1507 (SHIPS) required manufacturers to include safety notices regarding
"special hazards" associated with equipment. (Id., Ex. 18 at 3.3.1.1) MIL-M-15071G required
26
manufacturers to identify hazardous components and describe handling precautions for such
components. (Id., Ex. 21 at 3.6.3.4.3) Moreover, SECNAV Instruction 6260 provided that "[t]he
type of labels to be affixed by the manufacturer ... are governed by state and federal laws and
regulations .... " (Id., Ex. 23 at 2) The Instruction also adopts the Manufacturing Chemists
Association's "Warning Labels Guide," which emphasizes that the "warning labels suggested in
the Manual should be used in addition to, or in combination with, any label required by law."
(Id., Ex. 25 at 6) MIL-STD 129B also required warnings to comply with the Warning Labels
Guide. (Id. at 17, Ex. 27 at 6)
A factual question exists as to whether the cited military specifications cover the turbines
at issue, and therefore, whether the Navy required manufactures to create their own warning
labels. Consequently, genuine issues of material fact remain with respect to the first two
elements of the Boyle analysis: (1) whether the government exercised discretion and approved
the warnings at issue, and (2) whether the contractor provided warnings that conformed to the
approved warnings. See Boyle v. United Techs. Corp., 487 U.S. 500, 512-13 (1988); Tate v.
Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995). Therefore, the court recommends that
summary judgment based on the government contractor defense is not warranted. However, for
the reasons discussed at § IV(B)(l )-(2), supra, CBS is, nonetheless, entitled to summary
judgment based upon product identification, causation, and the bare metal defense.
C. Foster Wheeler
The court recommends granting Foster Wheeler's motion for summary judgment, as there
is no issue of material fact in dispute as to whether exposure to an asbestos-containing Foster
Wheeler product caused Mr. Malone's alleged injury.
27
1. Product identification and causation
Foster Wheeler contends that summary judgment is proper because Plaintiffs fail to show
that Mr. Malone worked regularly and frequently in proximity to Foster Wheeler asbestoscontaining products. (D.I. 380 at 7-8) Plaintiffs respond that a genuine issue of material fact
exists because Mr. Malone testified that he installed insulation on Foster Wheeler boilers, which
resulted in a significant amount of exposure to asbestos dust. (D .I. 407 at 7)
Mr. Malone initially identified working with Foster Wheeler boilers at Ingalls Shipyard.
(D.I. 380, Ex. A at 46:22-47:5) However, Mr. Malone could not describe or quantify the number
of Foster Wheeler boilers with which he worked. (D.I. 407, Ex. 2 at 117:7-21, Ex. 1 at 48:2024) Additionally, he admitted that he did not specifically recall insulating a Foster Wheeler
boiler as opposed to any other boiler. (Id., Ex. 2 at 117:22-118:1) Moreover, Mr. Malone
admitted on cross-examination that he did not think he was ever exposed to a product
manufactured or sold by Foster Wheeler. (Id., Ex. 2 at 118:5-10) Accordingly, even if Mr.
Malone was exposed to asbestos while insulating boilers at Ingalls Shipyard, Plaintiffs fail to
show that he worked on or in proximity to an asbestos-containing Foster Wheeler boiler with
sufficient frequency and regularity. See Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 754-757
'
I
(Miss. 20015). Therefore, the court recommends granting Foster Wheeler's motion for summary
judgment on the threshold matter of product identification and causation.
2. Bare metal defense
Application of the bare metal defense provides an additional basis warranting summary
judgment in Foster Wheeler's favor. Foster Wheeler asserts that "it did not manufacture, supply,
or design the asbestos-containing product to which Plaintiffs allege Mr~ Malone was exposed."
(D.I. 380 at 8) Plaintiffs contend that the bare metal defense does not apply because Foster
28
Wheeler required asbestos insulation for its boilers, and it was foreseeable that end users would
apply asbestos-containing insulation to its boilers. (D.I. 407 at 8)
Foster Wheeler cannot be liable "for injuries caused by asbestos components ... that were
incorporated into [Foster Wheeler's] products ... but which [Foster Wheeler] did not manufacture
or distribute." Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 794 (E.D. Pa. Feb. 1, 2012).
There is nothing in the record demonstrating that Foster Wheeler manufactured the
asbestos-containing insulation Mr. Malone used on Foster Wheeler boilers. The boilers arrived
bare metal to the shipyard, and Mr. Malone testified that he would not have been exposed to
asbestos until he applied insulation to the outside of the boiler. (D.I. 407, Ex. 2 at 30:17-31 :19)
Owens-Corning, Kaylo, Shook & Fletcher, or Johns-Manville supplied that insulation to Mr.
Malone's employer, Badham. (Id., Ex. 2 at 44:10-45:22) Furthermore, Mr. Malone did not
remember ifhe saw maintenance specifications provided by any manufacturer in particular. (Id.,
Ex. 2 at 114:25-115:7)
Plaintiffs maintain that Foster Wheeler's "Insulation Standards Catalog" directed
individuals to use external asbestos insulation on its products. (Id. at 9-10, Ex. 5) However, the
Insulation Standards Catalog does not require the use of asbestos. (Id., Ex. 5 at § 82B-159)
Instead, it lists asbestos as one of the many approved materials that may be used with Foster
Wheeler products. (Id.)
The court declines to expand the duty to warn for manufacturers supplying ''bare metal"
products when it is foreseeable that their products will be used in conjunction with defective
products made by a third party. See § III(B)(3), supra. However, assuming, arguendo, that the
foreseeability standard controls, the evidence does not indicate that it was foreseeable that end
users would apply asbestos to Foster Wheeler boilers. Because the Insulation Standards Catalog
29
.,
•.
does not explicitly instruct end users to use asbestos, Plaintiffs have not shown that Foster
Wheeler Required external asbestos insulation on its boilers. See Dalton v. 3M Co., Civil Action
No. 10-113-SLR-SRF, 2013 WL 4886658, at *12 (D. Del. Sept. 12, 2013), report and
recommendation adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2013) ("the court should grant
Foster Wheeler's motion for summary judgment because the Plaintiffs have not shown that
Foster Wheeler required external asbestos insulation on its steam generators). Therefore,
Plaintiffs have not shown the existence of a material issue of fact as to whether Foster Wheeler
owed a duty to warn of the asbestos-containing insulation supplied by third parties, which was
used to externally insulate Foster Wheeler boilers. See id.
3. Government contractor defense
The court recommends granting summary judgment based upon product identification,
causation, and the bare metal defense. However, Foster Wheeler asserts an additional basis for
judgment as a matter of law pursuant to the government contractor defense.
Plaintiffs cite to the same specifications relied upon in their response to CBS in arguing
that the government contractor defense does not apply. As discussed at§ IV(B)(4), supra,
genuine issues of material fact exist as to whether the Navy exercised discretion over the
warning labels at issue, and whether the contractor provided warnings that conformed to the
approved warnings. See Boyle v. United Techs: Co1p., 487 U.S. 500, 512-13 (1988); Tate v.
Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995) (altering the first Boyle factor for failure
to warn claims). Foster Wheeler asserts that the cited specifications do not cover asbestos or
products not manufactured by the Navy, 13 but Foster Wheeler's contention is a factual question
13
Specifically, Foster Wheeler argues that SECNAV Instruction 6260 only applies to products
produced by the Navy, but Plaintiffs' exhibit s.ays that the Instruction "applies to materials
received from any supply source, provided the material is intended for ultimate use at the local
30
for the jury. Consequently, the court recommends that summary judgment based on the
government contractor defense is not warranted. However, for the reasons discussed at§ IV
(C)(l)-(2), supra, Foster Wheeler is, nonetheless, entitled to summary judgment based upon
product identification, causation, and the bare metal defense.
V.
CONCLUSION
For the foregoing reasons, and as addressed in the chart iefra, the court recommends
granting Cummins' motion for summary judgment, granting CBS' motion for summary judgment,
and granting Foster Wheeler's motion for summary judgment.
GRANT
GRANT
GRANT
Cummins, Inc.
CBS Corporation
Foster Wheeler Energy Corporation
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 objection 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.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 court's website,
http://www.
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