Winhauer v. Air & Liquid Systems Corporation et al

Filing 238

REPORT AND RECOMMENDATIONS granting 159 MOTION for Summary Judgment, 166 MOTION for Summary Judgment, 163 MOTION for Summary Judgment, 177 MOTION for Summary Judgment, 173 MOTION for Summary Judgment, 150 MOTION for Summar y Judgment, 171 MOTION for Summary Judgment, 169 MOTION for Summary Judgment, 157 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of t he 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 8/1/2016. Signed by Judge Sherry R. Fallon on 7/13/2016. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ROBERT LEE WINHAUER, JR.
Individually and as Executor of the Estate
of ROBERT LEE WINHAUER, and on
behalf of all Wrongful Death beneficiaries,
Plaintiff,
v.
AIR & LIQUID SYSTEMS
CORPORATION, et al.
Defendants.

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Civil Action No. 15-00177-RGA-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Presently, there are nine motions for summary judgment before the court in this asbestos-

related personal injury action. The motions were filed by Defendants, John Crane, Inc. ("JCI")
J

(D.I. 150), Crane Co. ("Crane") (D.I. 157), Flowserve US Inc. ("Flowserve") (D.I. 159), Carver
Pump Co. ("Carver") (D.I. 163), Sterling· Fluid Systems (USA) LLC ("Sterling") (D.I. 166),
FMC Corp. ("FMC") (D.I. 169), Velan Valve Corp. ("Velan") (D.I. 171), Borg-Warner Morse ·
Tee LLC ("Borg") (D.I. 173), and Cleaver-Brooks Inc. ("Cleaver") (D.I. 177) (collectively
"Defendants"). 1 As indicated in the chart infra and for the reasons set forth below, the court
recommends granting Defendants' motions for summary judgment.

John Crane, Inc.
Flowserve US, Inc.

1

GRANT
GRANT

Additional defendants also filed motions for summary judgment in this action. However, the
opposed motions filed by Ingersoll Rand Co. and Honeywell International, Inc. will be addressed
separately. (D.I. 165, 175) The remaining motions have been terminated. (D.I. 152, 155, 161,
162)

Carver Pump Co.

GRANT

Velan Valve Corp.

GRANT

Cleaver-Brooks Inc.

GRANT

Sterling Fluid Systems (USA) LLC

GRANT

FMC Corp.

GRANT

Crane Co.

GRANT

Borg-Warner Morse Tee LLC

GRANT

II.

BACKGROUND

A. Procedural History
Robert Lee Winhauer filed this asbestos action in the Delaware Superior Court against
multiple defendants on December 18, 2014, asserting claims regarding alleged wrongful
exposure to asbestos. (D .I. 1, Ex. 1) Defendant Crane removed the action to this court on
February 23, 2015. (D.I. 1) After Mr. Winhauer's death, the complaint was amended to
substitute a representative of Mr. Winhauer's estate as the plaintiff, and to add a wrongful death
claim. (D.I. 180)
JCI filed it motion for summary judgment on March 3, 2016. (D.I. 150) The remaining
Defendants filed their respective motions on March 4, 2016. (D.I. 152, 155, 157, 159, 161-163
166, 169, 171, 173) Plaintiff did not respond to the motions.

B. Facts
Plaintiff alleges that Mr. Winhauer developed mesothelioma as a result of exposure to
asbestos-containing products while performing personal automotive maintenance work from the
1940's through the 1990's, during his course of employment at Ingalls Shipyard in Pascagoula,
Mississippi from 1965 to 1976, and while working at Courtaulds North America Rayon Staple
Plant ("Courtaulds") in Le Moyne, Alabama from 1977 to 1998. (D.I. 180 at~ 32) Plaintiff

2

asserts that Defendants manufactured, sold, distributed, or designed the products at issue, which
allegedly contained, or were designed for use with, asbestos-containing products. (Id.

at~

38)

Mr. Winhauer testified regarding his alleged asbestos exposure at a deposition on
February 3, 2015. (D.I. 188, Ex. 1) He is the sole product identification witness in this action.
Mr. Winhauer testified that he went to work at the Ingalls Shipyard in Pascagoula, Mississippi
from 1965 to 1976. (Id. at 15:22-16:5) He started as a pipefitter and later became a pipefitter
supervisor, working on planning and installation of pipes on new construction projects. (Id. at

17:2-18:4, 33:20-22) His work included installing gaskets on the pipes, using gaskets to join
pipes together, and installing pumps and valves on the pipes. (Id. at 17:2-21:15) He also
testified that he often worked around insulators who were installing insulation in engine rooms.
(Id. at 29:10-13) Mr. Winhauer worked on freighter ships, the USS Tarawa, and on some

destroyers while at Ingalls Shipyard. (Id. at 18:9-19:7)
In 1977, Mr. Winhauer moved to Courtaulds in Le Moyne, Alabama, where he worked as
a maintenance mechanic until 1998. (Id. at 32:7-18) There, he worked on pipes, pumps, valves,
and insulation. (Id. at 32:19-23) Mr. Winhauer did repair work at Courtaulds, unlike his work
with new construction at Ingalls Shipyard. (Id. at 33:20-22)
Finally, Mr. Winhauer testified that he was exposed to asbestos-containing products
while conducting maintenance to his personal vehicles. (Id. at 60-84) He explained that he
worked on about twelve different vehicles throughout his life, performing brake, engine,
generator, and clutch repairs. (Id.)
1. JCI, Flowserve, Carver, Velan, Cleaver

3

Although named in the complaint, Mr. Winhauer did not identify work with an asbestoscontaining JCI, Flowserve, Carver, Velan, or Cleaver product at either Ingalls Shipyard or
Courtaulds. (See D.I. 188, Ex. 1, Ex. 2) Plaintiff does not dispute this fact.

2. Sterling
Sterling was formerly known as Peerless Pump Co. ("Peerless"). (D.I. 167 at 1) Sterling
is not responsible for Peerless products manufactured before July 31, 1976, when FMC engaged
in the manufacture and sale of Peerless products. (Id. at 1 n.2) Sterling also asserts that it did not
manufacture Peerless products prior to 1988. (Id.)
Mr. Winhauer testified that he did not work on pumps while employed at Ingalls
Shipyard. (D.I. 188, Ex. 1 at 52:1-2) He did do repair work on pumps at Courtaulds, including
changing them out~ repacking them, and replacing the gaskets on the pumps. (Id. at 49:6-22) He
remembered frequently using Peerless pumps during his time at Courtaulds, as he worked on
pumps at least once a week while employed there. (Id. at 52:20-53:12) However, Mr. Winhauer
did not do work on any new pumps at Courtaulds; rather, he only did maintenance work to
pumps already in place. (Id. at 51 :7-13) He did not know the manufacturer of any of the packing
or gaskets used in repairing the pumps. (Id., Ex. 2 at 91:11-94:1) Additionally, Mr. Winhauer
testified that he could not provide details with respect to any specific pump, and he did not know
the frequency to which he worked with particular brands. (Id. at 96:2-97:12)

3. FMC
FMC engaged in the manufacture and sale of Peerless pumps from 1933 until the Peerless
business was sold in 1976. (D.I. 170 at 1 n.2) FMC is also sued as a successor-in-interest to
Chicago Pump Co. ("Chicago"). (D.I. 180atif14) As explained supra, Mr. Winhauer testified
that he worked on Peerless pumps while employed at Courtaulds, but he could not identify

4

specifics with respect to any pump brand. See § II(B)(2). Mr. Winhauer testified that he did not
remember working with any Chicago product. (D.I. 188, Ex. 1 at 52:15-18)

4. Crane
When prompted by counsel, Mr. Winhauer responded affirmatively when asked if he
remembered Crane valves. (Id., Ex. 1at22:1-3) He answered that the name was familiar, and
also that he would have installed gaskets on the valves. (Id. at 22: 1-9) Mr. Winhauer stated that
he would have used Crane valves infrequently at Ingalls Shipyard, but he would have
"[a]bsolutely'' and "[f]requently'' used them at Courtaulds, where he would also change the
gaskets on the valves. (Id., Ex. 2 at 32:11-14; 43:13--44:1) However, Mr. Winhauer could not
give a specific location or application where he used Crane valves. (Id. at 128:10-13) He also
did not know the color, pressure rating, or temperature rating of Crane valves. (Id. at 129:5-15)
He further testified that he would not know if Crane ever specified that asbestos be used with
their valves. (Id. at 130:19-23)

5. Borg
Mr. Winhauer testified about Borg clutches with respect to performing maintenance on
his personal vehicles. Counsel asked if he remembered working with a Borg clutch, and Mr.
Winhauer replied that he used a Borg clutch on his Ford F150. (Id., Ex. 1 at 82:23-83:14)
However, Mr. Winhauer later testified that he did not remember mentioning Borg, and that he
did not remember who manufactured the clutch he replaced on his vehicle. (Id., Ex. 2 at 156:23157:9) He later reiterated that he did not remember ifhe used a Borg clutch on the clutch job.

(Id. at 171 :15-20)

III.

STANDARD OF REVIEW

A. Summary Judgment

5

'-'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-inovant to
demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the
light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986); Williams v. Borough of West Chester, Pa., 891F.2d458, 46061 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). 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
existence of some alleged factual dispute 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 247--49. "If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted." Clark v. Welch,
Civ. N0.14-029-SLR, 2016 WL 859259, at *2 (D. Del. Mar. 3, 2016). If the non-movant fails to
make a sufficient showing on an essential element of its case on which it bears the burden of
proof, then the movant is entitled to judgment as a matter oflaw. See Celotex, 477 U.S. at 322.

6

..

·.!. .

If a-party fails to address .another party's assertion of fact, the court may consider the fact
undisputed, or grant summary judgment ifthe facts show that the movant is entitled to it. Fed. R.
Civ. P. 56(e)(2)-(3). 2 However, even where a party does not file a responsive submission to
oppose the motion, the court must still find that the undisputed facts warrant judgment as a
matter oflaw. Miller v. Ashcroft, 76 F. App'x 457, 462 (3d Cir. 2003) (citing Fed. R. Civ. P. 56;

Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993)). "In other words, the [court] 'must determine
that the deficiencies in the opponent's evidence designated in or in conjunction with the motion
entitle the moving party to judgment as a matter of law.'" Id. (quoting Anchorage Assocs. v.

Virgin Islands Board ofTaxReview, 922 F.2d 168, 175 (3d Cir.1990)).
B. Mississippi Law
A federal court sitting in diversity is "required 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. 144)

2

This section was added to Rule 56 to overcome cases in the Third Circuit that impaired the
utility of the summary judgment device:
A typical case is as follows: A party supports his motion for summary judgment
by affidavits or other evidentiary matters sufficient to show that there is no
genuine issue as to a material fact. The adverse party, in opposing the motion,
does not produce any evidentiary matter, or produces some but not enough to
establish that there is a genuine issue for trial. Instead, the adverse party rests on
averments of his pleadings which on their face present an issue.
Fed. R. Civ. P. 56(e) advisory committee's note. Before the amendment, the Third Circuit would
have denied summary judgment if the averments were "well-pleaded," and not conclusory. Id.
However, the Advisory Committee noted that summary judgment is meant to pierce the
pleadings and to assess proof to see whether there is a genuine need for trial. Id. Accordingly,
the pre-amendment Third Circuit precedent was incompatible with the basic purpose of the rule.
Id. The amendment recognizes that, "despite the best efforts of counsel to make his pleadings
accurate, they may be overwhelmingly contradicted by the proof available to his adversary." Id.
The amendment, however, was not designed to affect the ordinary standard applicable to
summary judgment. Id.
7

.·•'

1. Product Identification
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)
(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, Plaintiff
must use this standard to show identification of Defendants' products, Mr. Winhauer' s exposure
to those products, and causation as to his injuries. Id. Summary judgment is appropriate if
Plaintiff fails to meet the burden of proving product identification, exposure, or causation under
the frequency, regularity, and proximity test. See Gorman-Rupp, 908 So. 2d at 757 (granting
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).

2. Product Liability
Products liability actions in Mississippi are governed by the Mississippi Products
Liability Act ("MPLA"). The MPLA provides that to bring a claim for strict liability, a plaintiff
must prove that at the time the product left the control of the manufacturer or seller, the product
contained a manufacturing defect, design defect, inadequate warnings, or the product breached
an express warranty. Miss. Code Ann. § 11-1-63(a) (2014). Plaintiff must also show that the
defect rendered the product unreasonably dangerous and that the condition of the product
proximately caused the damages for which recovery is sought. Id.
Under the MPLA, a product may be found defective if it "fail[ s] to contain adequate

8

warnings." 3 § 11-1-63(a)(i)(2). As such, manufacturers and sellers have a duty to warn of
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 on1 y 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
So. 2d 772 (Miss. 2004). Plaintiff 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
151, 166 (Miss. 2005) (citing Garner v. Santoro, 865 F.2d 629, 641--42 (5th Cir. 1989)). That
causal link between the alleged injury and the inadequate warning is key to a plaintiffs claim.

Id.
A claim for failure to warn may be based on a theory of negligence or strict liability. ·

0 'Flynn v. Owens-Corning Fiberglas, 759 So. 2d 526, 535 (Miss. Ct. App. 2000). "The strict
liability in tort theory is derived from State Stove Manufacturing Co. v. Hodges, and Section
402A of the Restatement (Second) of Torts." Id.; see also Scordino, 662 So. 2d at 642; Coca

Cola Bottling Co. v. Reeves, 486 So. 2d 374, 377 (Miss. 1986); State Stove Mfg. Co. v. Hodges,
189 So. 2d 113, 118 (Miss. 1966), cert. denied, 386U.S. 912 (1967). Byprovingtherequired
elements in a failure to warn cause of action,

3

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 ·on 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[.]
§ 11-1-63(c)(ii).
9

the plaintiff is in effect proving that the defendant was negligent in its failure to
warn. Hence, even though the cause of action for failure to warn could be based
on negligence or strict liability in tort, the two theories, while conceptually
different, often merge into a single breach of duty.

O'Flynn, 759 So. 2d at 535. (citation omitted). Section 402A defines who maybe liable for a
defective product as follows:
(1) One who sells any product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for physical harm
thereby caused .. .if:
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
Restatement (Second) of Torts§ 402A (1965). It follows that under§ 402A, one who neither
manufactures nor sells the product can be liable under a products liability theory. Dalton v. 3M

Co., Civil Action No. 10-113-SLR-SRF, 2013 WL 4886658, at *8 (D. Del. Sept. 12, 2013),
report and recommendation adopted, 2013 \YL 5486813 (D. Del. Oct. 1, 2013) (citing Scordino,
662 So. 2d at 643) (quoting Harmon v. Nat'lAuto. Parts Ass'n, 720 F. Supp. 79, 80 (N.D. Miss .
. 1989))).

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, § 402A, and case authority that, "it is reasonably
likely that the Supreme Court of Mississippi would follow th~,majority of jurisdictions that have
refused to find defendants liable for other manufacturers' 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,
720 F. Supp. at 80 (strict liability is not imposed on one who neither manufactures nor sells the

10

products)).
The bare metal defense applies to shield defendants from liability for injuries caused by
asbestos components where the defendant neither manufactured nor supplied the product that
allegedly caused the plaintiff to ~e exposed to asbestos. Id. at *6-7 (citing Conner v. Alfa Laval,

Inc., 842 F. Supp. 2d 791, 793 (E.D. Pa. 2012)). Accordingly, courts embracing the principles of.
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); In re Asbestos Litig. (Wolfe), C.A. No. NolOC-08258 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.
IV.

DISCUSSION
Product identification is a threshold question in in this case: Plaintiff must show that

Defendants' products proximately caused Mr. Winhauer's injuries. See Dependable Abrasives,

Inc. v. Pierce, 156 So. 3d 891, 896 (Miss. 2015) (quoting Banks ex rel. Banks v. SherwinWilliams Co., 134 So. 3d 706, 710 (Miss. 2014)). To survive a motion for summary judgment
under Mississippi law, Plaintiff must show that Mr. Winhauer was exposed to Defendants'

11

asbestos-containing products with the requisite frequency, regularity, and proximity. See '
Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 757 (Miss. 2005).

A. Defendants JCI, Flowserve, Carver, Velan, and Cleaver
The court recommends granting JCI's, Flowserve's, Carver's, Velan's, and Cleaver's
motions for summary judgment because there is no genuine issue of material fact in dispute as to
whether Mr. Winhauer was exposed to an asbestos-containing product made by these parties.
Because Plaintiff did not produce any evidence whatsoever tending to establish exposure to these
parties' products, Plaintiff cannot meet Mississippi's frequency, regularity, and proximity
threshold product nexus requirement. Therefore, the court recommends granting summary
judgment in favor of JCI, Flowserve, Carver, Velan, and Cleaver.

B. Defendant Sterling
The court recommends granting Sterling's motion for summary judgment. Sterling
asserts that the record does not show that a Sterling product was the source of Mr. Winhauer' s
exposure. (D.I. 167 at 6-8) Although Mr. Winhauer testified that he remembered working with
Peerless pumps, a brand acquired by Sterling, he did not remember any specifics about that
work. (Id. at 8) Additionally, he did not testify to using asbestos-containing packing or gasket
material supplied by Sterling in repairing the pumps. 4 (Id.) Therefore, Sterling contends that
summary judgment should be granted in its favor.
For the court to deny the summary judgment motion, Plaintiff must have shown that: (1)
Mr. Winhauer was exposed to a particular asbestos-containing Sterling-made product, (2) with
sufficient frequency and regularity, (3) in proximity to where he worked, (4) such that it is

.

4

Mr. Winhauer testified that the packing and gasket materials he used when repairing pumps
included Garlock brand, or other packing material supplied by his employer. (D.I. 188, Ex. 1 at
49:12-50:11; Ex. 2 at 91:20-95:12)
12

..

probable that the exposure to Sterling's product caused Mr. Winhauer' s injuries. 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 GormanRupp, 908 So. 2d at 757; Monsanto Co. v. Hall, 912 So. 2d 134, 136--37 (Miss. 2005)).
The record reflects that Mr. Winhauer worked on thousands of pumps, at least once a
week. (D.I. 188, Ex. 1at52:24-53:12) Although some of that work could have been with
Peerless pumps, the lack of specificity in his testimony is insufficient to show causation. Mr.
Winhauer could not identify any specific location, particular application, operating parameters,
or frequency with which he worked with any pump brand, including Peerless. (Id., Ex. 2 at
96:2-97:12) Additionally, Mr. Winhauer did not know ifhe ever removed any originally
installed components, like packing or gaskets, from the pumps. (Id. at 91:11-93:5) He also
never viewed any specifications that designated the use of any asbestos-containing materials on
any pump, regardless of manufacturer. (Id. at 111 :3-15)
Moreover, Sterling asserts that it did not manufacture asbestos-containing Peerless pumps
until the 1980's, and because Plaintiff does not refute this statement, the court will accept the fact
as undisputed. See Fed. R. Civ. P. 56(e). (D.I. 167 at 1 n.2) Accordingly, because Mr. Winhauer
testified that any Peerless pump he may have repaired would already have been installed by the
time he started working at Courtaulds in 1977, there is no evidence to support the assertion that
Sterling is responsible for the Peerless pumps Mr. Winhauer alleges he was exposed to. (D.I.
188,Ex.1 at51:7-10)
Finally, Sterling proposes that even if Mr. Winhauer could sufficiently identify work with
an asbestos-containing Peerless product, the bare metal defense applies. (D.I. 167 at 8-10) The
bare metal defense protects Sterling from liability "for injuries caused by asbestos components,

13

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 v. 3M Co., Civil
Action No. 10-113-SLR-SRF, 2013 WL 4886658, at *6 (D. Del. Sept. 12, 2013), report and

recommendation adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2013) (quoting Conner v. Alfa
Laval, Inc., 842 F. Supp. 2d 791, 796 (E.D. Pa. Feb. 1, 2012)). In the present action, there is a
complete lack of evidence to show that Sterling supplied any asbestos-containing product or
instructed its customers to insulate Peerless pumps with asbestos-containing products.
Therefore, Plaintiff fails to meet his burden of establishing a prima facie case of product
identification, exposure, and causation under Mississippi law, and summary judgment should be
granted in Sterling's favor.

C. Defendant FMC
Similarly, the court recommends granting FMC's motion for summary judgment. As
explained supra, the record does not reflect sufficient exposure to Peerless pumps under
Mississippi product identification standards. See § IV(B). Mr. Winhauer did not begin working
on Peerless pumps until he started at Courtaulds in 1977. (D.I. 188, Ex. 1 at 32:7-18, 52:2053:12) FMC sold Peerless in 1976. (D.I. 170 at 1 n.2) Additionally, Mr. Winhauer explicitly
testified that he did not remember working with Chicago pumps, a brand to which FMC is a
successC?r-in interest. (D.I. 188, Ex. 1 at 52:15-18) Therefore, summary judgment should be
granted in FMC's favor, as there is no genuine issue of material fact in dispute, and the court
should grant judgment as a matter of law.

D. Defendant Crane
The court recommends granting Crane's motion for summary judgment. Crane avers that
the Crane valves Mr. Winhauer alleges occupational exposure to were made of metal, not

14

asbestos, so they were not a substantial factor in causing his injury. (D.I. 158 at 4) Additionally,
Crane raises the bare metal defense. (Id. at 5) It contends that it is not responsible for any
asbestos-containing gaskets manufactured by other parties, which Mr. Winhauer alleges he used
to repair Crane valves. (Id.)
Although Mr. Winhauer testified that he would have used Crane valves "frequently"
while working at Courtaulds, Plaintiff failed to rebut the assertion that the Crane valves at issue
did not contain asbestos. (D.I. 188, Ex. 1at43:13-44:1) Furthermore, Mr. Winhauer could not
remember any specifics regarding his exposure to any particular valve brand. See § IV(D).
Finally, under the bare metal defense, Crane is not responsible for asbestos-containing products
applied to valves that Crane did not manufacture, sell, or distribute. See Dalton v. 3M Co., Civil
Action No. 10-113-SLR-SRF, 2013 WL 4886658, at *6-7 (D. Del. Sept. 12, 2013), report and

recommendation adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2013). Consequently, there is
insufficient evidence to maintain the causal nexus required by Mississippi law, and summary
judgment should be granted in Crane's-favor.

E. Defendant Borg
Borg's motion for summary judgment should be granted. Borg contends that at most, the
record establishes that Mr. Winhauer may have been exposed only to one asbestos-containing
Borg clutch. (D.I. 174 at 4-5) Such exposure does not rise to the level of frequency, regularity,
or proximity required by Mississippi law. (Id.)
Mr. Winhauer first testified that he did not remember doing any clutch work on any car.
(D.I. 188, Ex. 1 at 82:11-14) However, in response to leading questions by his counsel, he
testified:
Q: You told me you had done some clutch work beforeA: Yes.
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Q: -with a Bork Warner clutch?
A: Yes.

Q: Do you remember what year you changed the clutch out?
A: No I don't.
Q: And that was-the F150 was the '70's right?
A: Yes.
(Id. at 82:23-83:14) Mr. Winhauer only identified Borg when prompted by his counsel. He did

not remember doing any other clutch work, and later in the deposition, he stated that he did not
remember ever mentioning Borg or who manufactured the clutch he repaired. (Id., Ex. 2 at
156:23-157:9) On redirect, his counsel again asked him ifhe remembered the clutch being
manufactured by Borg, to which Mr. Winhauer responded, "No." (Id. at 171 :15-23) Given this
testimony, Mr. Winhauer may have worked with an asbestos-containing Borg clutch, at most,
one time. However, his testimony is inconsistent and it does not amount to frequent, regular
exposure that gives rise to an inference of causation. Therefore, the court recommends granting
Borg's motion for summary judgment.

V.

CONCLUSION
For the foregoing reasons, and as addressed in the chart infra, the court recommends

granting Defendants' motions for summary judgment.

John Crane, Inc.

GRANT

Flowserve US, Inc.

GRANT

Carver Pump, Co.

GRANT

Velan Valve Corp.

GRANT

Cleaver-Brooks Inc.

GRANT

Sterling Fluid Systems (USA) LLC

GRANT

FMC Corp.

GRANT

Crane Co.

GRANT

Borg-Warner Morse Tee LLC

GRANT

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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
nova.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.ded.uscourts.gov.

Dated: July~' 2016

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