Tallman et al v. CBS Corporation et al

Filing 106

REPORT AND RECOMMENDATIONS granting 85 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 9/8/2017. Signed by Judge Sherry R. Fallon on 8/21/2017. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE ASBESTOS LITIGATION
EDNA S. ESSER a/k/a Edna Tallman,
Individually and as Executrix of the
Estate of CHARLES TALLMAN,
Deceased, and on behalf of all Wrongful
Death beneficiaries,

)
)
)
)
)
)
)
)

Civ. No. 15-395-GMS-SRF

)

Plaintiff,
v.
CBS CORPORATION, et al.,
Defendants.

)
)
)
)
)
)

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Presently, there is one motion for summary judgment before the court in this asbestos-

related personal injury action. 1 The motion was filed by defendant Foster Wheeler Energy
Corporation ("Foster Wheeler"). (D.I. 85) Plaintiff Edna Esser ("Plaintiff'), individually and as
Executrix for the estate of decedent, Charles Tallman, opposes Foster Wheeler's motion for
summary judgment. (D.I. 91) For the reasons set forth below, the court recommends granting
Foster Wheeler's motion for summary judgment.

II.

BACKGROUND
A. Procedural History
Plaintiff filed this asbestos-related wrongful death action against multiple defendants on

April 1, 2015, in the Superior Court of Delaware. (D.I. 1) On May 18, 2015, the case was

1

All other parties have been dismissed, or are expected to be dismissed.

removed to this court by Foster Wheeler pursuant to 28 U.S.C. §§ 1442(a)(l)2 and 1446. (Id)
Foster Wheeler filed a motion for summary judgment on September 23, 2016. (D.I. 85) Plaintiff
opposes the motion. (D.I. 91) On January 10, 2017, the court held oral argument on Foster
Wheeler's motion for summary judgment.

B. Facts
Plaintiff alleges that Mr. Tallman developed mesothelioma as a result of exposure to
asbestos-containing products during his time in the U.S. Navy from 1947 to 1967. (D.I. 86 at 1)
From 1948 to 1956, Mr. Tallman worked as a Boiler Tender aboard the USS Caloosahatchee. 3
(D.I. 91 at 1-2) Plaintiff contends that Mr. Tallman's fatal illness was due to exposure to
asbestos-containing products that Foster Wheeler manufactured, sold, distributed or installed.
(D.I. 1, Ex. A) Accordingly, Plaintiff asserts claims for negligence, strict liability, and punitive
damages. (D.I. 1 at if 5)

C. Testimony of Product Identification Witnesses
Mr. Tallman passed away on April 10, 2015, and was never deposed for this case. (D.I.
46 at 2; D.I. 86 at 1) Therefore, Plaintiff relies largely on the testimony of product identification
witnesses to support the claim that Mr. Tallman was exposed to asbestos directly from Foster
Wheeler's products and equipment during his time aboard the USS Caloosahatchee. Plaintiff
produced two identification witnesses for deposition:

~ugene

Nealon and William Schaufele.

(D.I. 86 at 1-2) Both testified about their experiences aboard the USS Caloosahatchee with Mr.

2

The federal officer removal statute permits removal of a state court action to federal court
when, inter alia, such action is brought against "[t]he United States or an agency thereof or any
officer (or any person acting under that officer) of the United States or of any agency thereof,
sued in an official or individual capacity for any act under color of such office." 28 U.S.C. §
1442(a)(l).
3
Plaintiffs claims against Foster Wheeler are limited to alleged asbestos exposure that occurred
when Mr. Tallman served on board the USS Caloosahatchee.
2

Tallman. (Id at 2)

1. Eugene Nealon
Mr. Eugene Nealon testified that his service overlapped with Mr. Tallman's aboard the
USS Caloosahatchee from 1951 to 1954. (7/19/16 Tr. at 19:15-20:24) Mr. Nealon explained
that Mr. Tallman was the leader of his shift group of seven men. (Id at 19: 15-21) He stated that
Mr. Tallman was in charge of making the asbestos insulation that was packed around the exterior
of the steam valves. (Id at 28:6-29:8) Mr. Nealon said that he saw Mr. Tallman break down
boilers and clean them. (Id at 32: 11-23) He stated it would normally take about one week to
clean one boiler. (D.I. 91, Ex. 3 at 42:25-43:4) However, Mr. Nealon stated that he did not
believe the cleaning of the boiler would have exposed Mr. Tallman to asbestos. (D.I. 86, Ex. A at
44:21-24) Mr. Nealon could not name the manufacturer of the boilers or the valves. (Id at
25:25-26:2; Id. at 46:1-3)

2. William Schaufele
Mr. William Schaufele testified that he was aboard the USS Caloosahatchee with Mr.
Tallman. (7/21/16 Tr. at 26:3-27:6) At one point during the deposition, Mr. Schaufele stated he
could not personally recall any particular maintenance or repair jobs that Mr. Tallman
performed. (Id. at 42:16-19) Mr. Schaufele speculated as to what Mr. Tallman's tasks would
have been based on his rate and rank. (Id. at 46:1-12) However, later on in the deposition, Mr.
Schaufele stated that he had a memory of Mr. Tallman cleaning out boilers with him. (Id. at
63:18-25) Mr. Schaufele identified Foster Wheeler as the manufacturer of the boilers. (Id. at
68:18-20) He explained there was a plate on each of the boilers that had Foster Wheeler's name
on it. (Id. at 68:21-69:1) Mr. Schaufele initially could not confirm that Mr. Tallman's work on
the boilers exposed him to asbestos. (Id. at 72:21-25) However, he later stated that anybody

3

near the boilers would have been exposed to asbestos. (Id. at 91: 18-23)

D. Plaintiff's Alleged Exposure from Defendant's Products
Plaintiff claims Mr. Tallman was exposed to asbestos-containing Foster Wheeler
products while aboard the USS Caloosahatchee. (D.I. 91) Plaintiff relies on Mr. Schaufele's
testimony that the boiler room had Foster Wheeler boilers. (D.I. 86, Ex. B) Mr. Schaufele stated
that he thinks the Foster Wheeler boilers were lined with asbestos insulation. (Id. at 63:1-67:15)
Additionally, Mr. Nealon recalls Mr. Tallman cleaning out the boilers. (D.I. 86, Ex. A at 32: 1123)

III.

LEGAL STANDARDS
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 oflaw." 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' ifthe 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)). Pursuant to Rule 56(c)(l), a party asserting that a fact is
genuinely disputed must support its contention either by citing to "particular parts of materials in
the record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials," or by "showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l)(A) & (B).

4

The moving party bears the initial burden of proving the absence of a genuinely disputed
material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to
demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 46061 (3d Cir. 1989). When determining whether a genuine issue of material fact exists, the court
must view the evidence in the light most favorable to the nomnoving party and draw all
reasonable inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007);
Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some evidence
in support of the nonmoving party may not be sufficient to deny a motion for summary
judgment. Rather, there must be enough evidence to enable a jury reasonably to find for the
nonmoving party on the issue. See Anderson, 477 U.S. at 249. If the nonmoving 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.

B. Maritime Law
The parties agree that maritime law applies. 4 (D.I. 81) In order to establish causation in
an asbestos claim under maritime law, a plaintiff must show, for each defendant, that "(1) he was

4

For maritime law to apply, a plaintiffs exposure underlying a products liability claim must
meet both a locality test and a connection test. In Jerome B. Grubart v. Great Lakes Dredge &
Dock Co., 513 U.S. 527 (1995), the Supreme Court defined these tests as follows:
A court applying the location test must determine whether the tort occurred on
navigable water or whether injury suffered on land was caused by a vessel on
navigable water. The connection test raises two issues. A court, first, must "assess
the general features of the type of incident involved," to determine whether the
incident has "a potentially disruptive impact on maritime commerce[.]" Second, a
court must determine whether "the general character" of the "activity giving rise
to the incident" shows a "substantial relationship to traditional maritime activity."
513 U.S. at 534 (internal citations omitted).
5

exposed to the defendant's product, and (2) the product was a substantial factor 5 in causing the
injury he suffered." Lindstrom v. A-C Prod Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005)
(citing Stark v. Armstrong World Indus., Inc., 21 F. Appx. 371, 375 (6th Cir. 2001)); Dumas v.

ABB Grp., Inc., 2015 WL 5766460, at *8 (D. Del. Sept. 30, 2015), report and recommendation
adopted, 2016 WL 310724 (D. Del. Jan. 26, 2016); Mitchell v. Atwood & Morrill Co., 2016 WL
4522172, at *3 (D. Del. Aug. 29, 2016), report and recommendation adopted, 2016 WL
5122668 (D. Del. Sept. 19, 2016); Denbow v. Air & Liquid Sys. Corp., 2017 WL 1199732, at *4
(D. Del. Mar. 30, 2017), report and recommendation adopted, 2017 WL 1427247 (D. Del. Apr.
19, 2017). Other courts in this Circuit recognize a third element and require a plaintiff to "show
that (3) the defendant manufactured or distributed the asbestos-containing product to which
exposure is alleged." 6 Abbay v. Armstrong Int'!, Inc., 2012 WL 975837, at* 1 n.1 (E.D. Pa. Feb.
29, 2012); see § III(C), infra.
"In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of
the plaintiff or decedent who experienced the exposure, co-worker testimony, or eye-witness
testimony) or circumstantial evidence that will support an inference that there was exposure to

5

"Maritime law incorporates traditional 'substantial factor' causation principles, and courts often
look to the Restatement (Second) of Torts for a more helpful definition." Delatte v. A. W
Chesterton Co., 2011WL11439126, at *1 n.1 (E.D. Pa. Feb. 28, 2011). The comments to the
Restatement indicate that the word "substantial," in this context, "denote[s] the fact that the
defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard
it as a cause, using that word in the popular sense, in which there always lurks the idea of
responsibility." Restatement (Second) of Torts § 431 cmt. a (1965).
6
The majority of federal courts have held that, under maritime law, a manufacturer has no
liability for harms caused by, and no duty to warn about hazards associated with, a product it did
not manufacture or distribute. This is also referred to as the "bare metal" defense. See Dalton v.
3M Co., 2013 WL 4886658, at *7 (D. Del. Sept. 12, 2013) (citing cases); Conner v. Alfa Laval,
Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012).
6

the defendant's product for some length oftime." 7 Abbay, 2012 WL 975837, at *1 n.1 (citing

Stark, 21 F. Appx. at 376).
On the other hand, "'[m]inimal exposure' to a defendant's product is insufficient to
establish causation. Likewise, a mere showing that defendant's product was present somewhere
at plaintiffs place of work is insufficient." Lindstrom, 424 F.3d at 492 (quoting Stark, 21 F.
Appx: at 376). "Rather, the plaintiff must show 'a high enough level of exposure that an
inference that the asbestos was a substantial factor in the injury is more than conjectural."'

Abbay, 2012 WL 975837, at *1 n.1 (quoting Lindstrom, 424 F.3d at 492). "Total failure to show
that the defect caused or contributed to the accident will foreclose as a matter of law a finding of
strict product[] liability." Stark, 21 F. Appx. at 376 (citations omitted).

C. Bare Metal Defense
Should the court decide that product identification has been established, it then considers
the assertion of the "bare metal" defense by the moving defendant. In this instance, as to
equipment manufactured and shipped by Foster Wheeler to the Navy, Foster Wheeler contends
that its boilers had no asbestos containing thermal insulation on them. The bare metal defense
protects a defendant from liability on the basis that no duty to warn exists relating to asbestosco~taining

products the defendant did not manufacture or distribute, absent evidence that

defendant did in fact manufacture or supply the asbestos-containing product to which Plaintiff
was exposed. Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 801-802 (E.D. Pa. 2012)
(explaining the policy rationale for holding only those who make or sell the injurious product

7

However, "'substantial exposure is necessary to draw an inference from circumstantial
evidence that the exposure was a substantial factor in causing the injury.'" Stark, 21 F. Appx. at
376 (quoting Harbour v. Armstrong World Indus., Inc., 1991WL65201, at *4 (6th Cir. April 25,
1991)).
7

liable for the injuries alleged); Malone v. Ai'. & Liquid Sys. Corp., 2016 WL 4522164, at *5 (D.
Del. Aug. 29, 2016), report and recommendation adopted, 2016 WL 5339665 (D. Del. Sept. 22,
2016); Dumas, 2015 WL 5766460 at *8 (D. Del. Sept. 30, 2015), report and recommendation
adopted, 2016 WL 310724 (D. Del. Jan. 26, 2016); Mitchell, 2016 WL 4522172, at *3 (D. Del.
Aug. 29, 2016), report and recommendation adopted, 2016 WL 5122668 (D. Del. Sept. 19,
2016); Denbow, 2017 WL 1199732, at *5 (D. Del. Mar. 30, 2017), report and recommendation
adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017). The 'bare metal defense' is recognized
when maritime law applies. Carper v. Gen. Elec. Co., No. 2:12-06164-ER, 2014 WL 6736205,
at *1 (E.D. Pa. Sept. 4, 2014) (citing Conner, 842 F. Supp. 2d at 801).

D. Government Contractor Defense
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). In a failure to warn claim, the first prong
of Boyle is altered to preclude liability where the government exercised discretion and approved
the warnings. See Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995). Courts

8

require the government approval to "transcend rub her stamping" for the defense to shield a
government contractor from liability for failure to warn. Id. at 1156-57.

IV.

DISCUSSION
1.

Product Identification and Causation

The court recommends granting Foster Wheeler's motion for summary judgment,
because Plaintiff has failed to show that a material issue of fact exists as to whether Foster
Wheeler's product was a substantial factor in causing Mr. Tallman's injuries. See Lindstrom,

424 F.3d at 492.
Plaintiff alleges that Mr. Tallman was exposed to asbestos-containing products used in
connection with Foster Wheeler boilers while serving aboard the USS Caloosahatchee. (D.I. 91
at 1) Plaintiff relies largely on the depositions of Mr. Nealon and Mr. Schaufele regarding Mr.
Tallman's exposure to asbestos. (D.I. 91)
Mr. Tallman worked as a boiler tender in the same room as Mr. Nealon and Mr.
Schaufele. (7/19/16 Tr. at 18:15-19; 7/21/16 Tr. at 26:3-27:6) It is undisputed that there were
Foster Wheeler boilers aboard the USS Caloosahatchee. (7/21/16 Tr. at 68:18-20) Mr. Nealon
and Mr. Schaufele stated that boiler workers would have to break down the boilers and clean
them. (7/19/16 Tr. at 32:11-23; 7/21/16 Tr. at 63:18-25) To clean the boilers, the workers
would crawl into the boilers and scrape the carbon off the tubes. (7/21/16 Tr. at 64:13-65:13)
This process normally took about one week to complete. (7/19/16 Tr. at 42:25-43:4) However,
Mr. Nealon stated that he did not believe Mr. Tallman would have been exposed to asbestos
during the cleaning process. (D.I. 86, Ex. A at 44:21-24) Whereas, Mr. Schaufele stated that
anyone near the boilers would have been exposed to asbestos. (7/21/16 Tr. at 91 :18-23) Mr.

9

Schaufele further stated that during the cleaning process, he sometimes had to smooth down a
piece ofrefractory around the openings of the burners that had crumbled apart. (Id. at 65: 14-24)
Mr. Nealon testified as to Mr. Tallman's exposure to asbestos on the exterior of the
boiler. According to his testimony, Mr. Tallman was in charge of making the asbestos packing
that was applied around the exterior of the steam valves that were attached to the boilers.
(7/19/16 Tr. at 28:6-29:8) Mr. Nealon stated that he saw Mr. Tallman make the asbestos
packing about six times. (Id. at 63 :25-64:9) Mr. Schaufele also

testi~ed

that Mr. Tallman's

work involved application of asbestos-containing pipe insulation and covering, but was unable to
identify the manufacturer of the insulation and covering. (7/21116 Tr. at 33:9-34:23)
Mr. Nealon and Mr. Schaufele's deposition testimony does not establish exposure to an
asbestos-containing Foster Wheeler product. Mr. Nealon stated that he saw Mr. Tallman make
exterior asbestos packing for the valves, however, the record does not provide any information to
infer the materials were manufactured by Foster Wheeler. (See 7/19/16 Tr. at 63:25-67:11)
Moreover, neither Mr. Nealon nor Mr. Schaufele attributed asbestos exposure to the removal of
carbon during the cleaning of the interior of the boilers. (7/19/16 Tr. at 32:11-23; 7/21/16 Tr. at
63:18-25) Mr. Schaufele stated that the refractory sometimes had to be smoothed down during
cleaning, but Mr. Schaufele had no recollection of Mr. Tallman performing this task. (7/21116
Tr. at 67:19-23) Additionally, Mr. Schaufele stated that he only performed this task once, and
that it was possible that individuals assigned to the boiler room would have never performed
refractory work. (Id. at 67:25-68:7) As such, there is no evidence that the material which may
have contained asbestos, the refractory block, was ever repaired, replaced, or disturbed by Mr.
Tallman. (D.I. 97 at 5-7) Plaintiffs references to general block exposure do not assist the court
in determining to which specific components Mr. Tallman was exposed. (See D.I. 91 at 9) Even

10

with the facts viewed in the light most favorable to Plaintiff, generalities and speculation do not
create a dispute of material fact. Walkup v. Air & Liquid Sys. Corp., 2014 WL 2514353, at *6
·(D. Del. June 4, 2014), report and recommendation adopted, 2014 WL 4447568 (D. Del. Sept. 8,
2014). Although Foster Wheeler product identification aboard the USS Caloosahatchee is
established, the evidence in the record fails to create a material issue of fact concerning the
substantial exposure requirement. "While all reasonable inferences must be drawn in favor of
the non-movant, the nonmoving party cannot create a genuine issue of material fact through
mere speculation or the building of inference upon inference. Instead, inferences must be
supported by facts in the record, not by speculation or conjecture." Walkup, 2014 WL 2514353,
at *6 (D. Del. June 4, 2014), report and recommendation adopted, 2014 WL 4447568 (D. Del.
Sept. 8, 2014) (citing Leonard v. Stemtech Health Scis., Inc., 2011 WL 6046701, at *8 (D. Del.
Dec. 5, 2011 ), report and recommendation adopted, 2012 WL 113 318 5 (D. Del. Mar. 28,
2012)).
Plaintiff further argues that under Quirin v. Lorillard Tobacco Co., Foster Wheeler is
responsible for the effects of any exposure relating to its product, whether from original or
replacement parts, regardless of the manufacturer. 17 F. Supp. 3d 760, 769-70 (N.D. Ill. 2014).
Thus, Plaintiff contends that the bare metal defense does not apply because Foster Wheeler
required asbestos-containing insulation for its boilers, and provided some of the insulation. (D.I.
91 at 7-9) In support of this assertion, Plaintiff cites to the deposition of Thomas J. Schroppe, a
Foster Wheeler employee. (Id at 2) Schroppe states that the furnace area of a Foster Wheeler
boiler would be lined with asbestos block insulation. (D.I. 91, Ex. 4 at 74:1-6) Schroppe states
that Foster Wheeler supplied asbestos-containing parts on some boilers, and also supplied
replacement parts for some boilers. (Id at 103: 15-22) Plaintiff cites to the Foster Wheeler

11

Technical Manual and the Foster Wheeler Contract Design Manual for the assertion that Foster
Wheeler boilers required refractory and insulation. (D.I. 91, Exs. 5, 7) Plaintiff also relies on
Foster Wheeler's objections and responses to interrogatories, filed in 2007, from a lawsuit in the
state of Florida. (D.I. 91, Ex. 6) In a response, Foster Wheeler states, "the equipment or services
provided by [Foster Wheeler] might have involved the use, application or procurement of
asbestos products manufactured by others." (DJ. 91, Ex. 6 at 14) Plaintiff highlights that Foster
Wheeler sold asbestos-containing insulation to be used with its boilers in its 1967 Insulation
Standard Catalog. (D.I. 91, Ex. 10) Plaintiff further highlights that the refractory insulation in
the boilers during Mr. Tallman's service was likely original to the boilers, because the USS
Caloosahatchee was launched in 1945, and the shelflife of the asbestos block in the interior
furnace walls could be 10 to 15 years. (D.I. 91, Ex. 4 at 111: 19-116:5; Ex. 8) Lastly, Plaintiff
relies on the affidavit of Walker Newitts, a former employee of Foster Wheeler. (D.I. 91 at 5-6)
Newitts states that Foster Wheeler would specify in a contract what type of insulation to use with
a boiler, and the insulation was often sold by Foster Wheeler. (D.I. 91, Ex. 11 at ifif 8, 9)
Application of the bare metal defense warrants summary judgment in Faster Wheeler's
favor, because Plaintiff fails to show that a material issue of fact exists as to whether Foster
Wheeler provided the insulation to be used with its boilers aboard the USS Caloosahatchee.
During the deposition, Schroppe states that the insulating block "could" have been asbestoscontaining. (D.I. 91, Ex. 4 at 73:18-20) Furthermore, Schroppe's deposition does not concern
the USS Caloosahatchee, but rather different Navy vessels. (D.I. 91, Ex. 4) Moreover, the Foster
Wheeler Technical Manual 8, the Foster Wheeler Contract Design Manual, the Insulation

8

The Foster Wheeler Technical Manual represents the Navy's specifications regarding the
installation ofrefractory material, not Foster Wheeler's. (D.I. 91, Ex. 5)
12

Standard Catalog, and Newitts' affidavit do not establish that Foster Wheeler installed asbestoscontaining boilers aboard the USS Caloosahatchee. (D.I. 91, Exs. 5, 7, 10, 11) The 2007
interrogatory response concerns boilers used at industrial sites, not marine boilers. (D.I. 91, Ex. 6
at 14) Therefore, Foster Wheeler's response is not related to the equipment found on the USS
Caloosahatchee. Additionally, during his deposition, Mr. Nealon assumed that work had been
done on the boilers prior to him performing maintenance work on the boilers. (7/19/16 Tr. at
70:6-11) However, even if the refractory materials were original to the boilers as Plaintiff
argues, neither Mr. Schaufele nor Mr. Nealon could recall Mr. Tallman working with the
refractory material. (7/21/16 Tr. at 67:19-23; See 7/19/16 Tr.) Lastly, Foster Wheeler cites to
the affidavit of Lawrence Stilwell Betts, a retired United States Navy Captain, who states that the
Navy specified the types of thermal insulation to be used on the boilers. (D.I. 86, Ex. D

at~

6)

Moreover, the court has previously declined to follow Quirin, and determined the weight
of authority favors the bare metal defense. 9 Conner, 842 F. Supp. 2d at 794; see also Lindstrom,
424 F.3d at 495; Denbow, 2017 WL 1199732, at *5 (D. Del. Mar. 30, 2017), report and

recommendation adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017); Mitchell, 2016 WL
4522172, at *3 (D. Del. Aug. 29, 2016), report and recommendation adopted, 2016 WL
5122668 (D. Del. Sept. 19, 2016); Malone, 2016 WL 4522164, at *5 (D. Del. Aug. 29, 2016),

report and recommendation adopted, 2016 WL 5339665 (D. Del. Sept. 22, 2016); Dumas, 2015
WL 5766460, at *8 (D. Del. Sept. 30, 2015), report and recommendation adopted, 2016 WL
310724 (D. Del. Jan. 26, 2016); 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. Elliot Turbomachinery

9

See § III(C), supra.
13

Co., 90 Cal. Rptr. 3d 414, 429 (Cal. Ct. App. 2009); In re Asbestos Litig. (Howton), C.A. No.
NI lC-03218 ASB, 2012 WL 1409011, at *I (Del. Super. Ct. Apr. 2, 2012); In re Asbestos Litig.
(Wolfe), C.A. No. NIOC-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).
Plaintiff has failed to show that a material issue of fact exists as to whether Mr. Tallman
was exposed to asbestos from products manufactured or supplied by Foster Wheeler aboard the
USS Caloosahatchee. Consequently, the court recommends granting Foster Wheeler's motion
for summary judgment. See Lindstrom, 424 F.3d at 492.

2.

Government Contractor Defense

Summary judgment should be granted based on the absence of any factual dispute over
the lack of causation of Mr. Tallman's injuries. However, Foster Wheeler asserts an additional
basis for summary judgment as a matter of law pursuant to the government contractor defense.
The government contractor defense shields defendants from liability for acts arising out
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 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.
Boyle v. United Techs Corp., 487 U.S. 500, 512-13 (1988).
Foster Wheeler points to Military Specifications ("MilSpecs") and Affidavits from
Admiral Ben J. Lehman (Ret.) and Foster Wheeler corporate representative, J. Thomas
Schroppe, as evidence that the government was involved in the design and manufacture of all
products used on Navy warships. (D.I. 86 at 14-16) Admiral Lehman stated:
14

The U.S. Navy would not have allowed its equipment suppliers, such as Foster
Wheeler, to affix any warning related to any asbestos hazards on their equipment.
This would have included boilers. Further, the U.S. Navy would not have
allowed Foster Wheeler to place any warnings related to asbestos hazards in any
written material provided by Foster Wheeler to the U.S. Navy or to a U.S. Navy
contractor .. .including its technical and operational manuals ....
(Id. at 15, Ex.Eat if 14) Mr. Schroppe confirmed that Foster Wheeler complied with the Navy's

specifications. (Id. at 15, Ex. C)
However, Plaintiff submits the Declaration of Captain Arnold P. Moore, USNR (Ret. ),
P .E. who states:
I can attest to the instructions the Navy required its equipment manufacturers to
provide to warn of hazards associated with equipment delivered to the Navy. The
Navy relied heavily upon its equipment manufacturers to identify hazards
associated with their products. The hazards associated with exposure to asbestos
and asbestos containing materials and equipment were not exempt.
(D.1. 91, Ex. 19 at if 12) Captain Moore cites to MilSpecs requiring manufacturers to provide
operating, maintenance, and "safety precautions" for their equipment. (Id., Ex. 19 at if 13)
Captain Moore also discusses a number of documents and military specifications establishing
that the Navy required or expected manufacturers to warn of the hazards associated with the use
of their products. (DJ. 91, Ex. 19)
A factual question exists as to whether the Navy exercised discretion and approved the

warnings at issue, or whether it required manufacturers 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 United States approved reasonably precise specifications, and (2)

whether the equipment conformed to those specifications. 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, summary judgment based on the government contractor defense would not be

15

warranted. However, for the reasons discussed in the preceding section, Foster Wheeler is,
nonetheless, entitled to summary judgment based upon lack of causation under maritime law.

3.

Punitive Damages

The recommendation for granting Foster Wheeler's motion for summary judgment for
the reasons stated in§ IV(l), supra, eliminates the need to consider punitive damages. However,
for the sake of completeness, this report and recommendation addresses the arguments.
Summary judgment should also be granted in favor of Foster Wheeler with respect to
Plaintiffs punitive damages claims. In Count II of the complaint, Plaintiff alleges that
Defendant acted "willfully and wantonly, for [its] own economic gain and with reckless
indifference to the health and safety of Plaintiff Charles Tallman" in including asbestos in its
products and failing to warn of the associated hazards. (D.I. 1, Ex. A at if 20)
Punitive damages are limited to situations where "a defendant's conduct is 'outrageous,'
owing to 'gross negligence,' 'willful, wanton, and reckless indifference for the rights of others,'
or behavior even more deplorable." Exxon Shipping Co. v. Baker, 554 U.S. 471, 493 (2008)
(internal citations omitted). "Punitive damages are not intended to compensate the plaintiff for a
loss suffered, but instead are 'imposed for purposes of retribution and deterrence.'" In re

Asbestos Prod Liab. Litig. (No. VJ), 2014 WL 3353044, at *11 (E.D. Pa. July 9, 2014) (quoting
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003)).
In support of her claim, Plaintiff cites to various journal articles published in the 1930s,
explaining the hazards of asbestos. (D.I. 91, Exs. 33, 34, 35, 36, 37, 38, 39) However, Plaintiff
fails to produce any evidence regarding Foster Wheeler's actual knowledge of asbestos hazards
or conduct indicative of willful or wanton actions. Therefore, the court should grant Foster
Wheeler's motion for summary judgment with respect to Plaintiffs punitive damages claims.

16

V.

CONCLUSION
For the foregoing reasons, the court recommends granting Foster Wheeler's motion for

summary judgment.
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. l
(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: August _&L, 2017

17