Evans et al v. Alfa Laval Inc. et al

Filing 207

REPORT AND RECOMMENDATIONS re 161 MOTION for Summary Judgment filed by Nash Engineering Company, 146 MOTION for Summary Judgment filed by Gardner Denver Inc., 149 MOTION for Summary Judgment filed by Flowserve US Inc. , 160 MOTION for Summary Judgment filed by Atwood & Morrill Company Inc. 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 3/6/2017. Signed by Judge Sherry R. Fallon on 2/15/17. (cak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

IN RE: ASBESTOS LITIGATION
ICOM HENRY EVANS, and
JOHANNA ELAINE EV ANS,
Plaintiffs,
v.

ALFA LAVAL, INC., et al.
Defendants.

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Civil Action No. 15-681-SLR-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION

This Report and Recommendation is limited to four pending motions for summary
judgment in this asbestos-related personal injury action. The motions were filed by Defendants,
Gardner Denver, Inc. ("Gardner Denver") (D.I. 146), Flowserve US Inc. 1 ("Flowserve") (D.I.
149), Atwood & Morrill Company, Inc. ("Atwood") (D.I. 160), and Nash Engineering Company
("Nash") (D.I. 161) (collectively "Defendants"). As indicated in the chart, infra, and for the
reasons set forth below, the court recommends granting Defendants' motions for summary
judgment.

Gardner Denver Inc.
Flowserve US Inc.
Atwood & Morrill Company Inc.

GRANT

Nash Engineering Company

GRANT

1

Flowserve is sued as a successor-in-interest to Edward Valves, Inc. ("Edward Valves") (D.I.
150 at 1)

II.

BACKGROUND
A. Procedural History
Icom Henry Evans and Johanna Elaine Evans ("Plaintiffs") filed this asbestos action in

the Delaware Superior Court against multiple defendants on June 11, 2015, asserting claims
regarding Mr. Evans' alleged harmful exposure to asbestos. (D.I. 1 at if 1) Defendant Foster
Wheeler removed the action to this court on August 4, 2015. (D.I. 1) Gardner Denver,
Flowserve, Atwood, and Nash filed motions for summary judgment on October 7, 2016. (D.I.
146, 149, 160, 161) Plaintiffs did not respond to these motions. On December 30, 2016, counsel
for Flowserve sent a letter to the court seeking dismissal for Plaintiffs' failure to oppose the
summary judgment motion. (D.I. 199) Counsel for Gardner Denver filed a similar letter on
January 23, 2017. 2 (D.I. 204)

B. Facts
1. Plaintiff's alleged exposure history
Plaintiffs allege that Mr. Evans developed mesothelioma as a result of exposure to
asbestos-containing products during the course of his employment as a fireman and boiler tender
with the U.S. Navy from 1957 to 1967. (D.I. 1, Ex. A at if 29(a)) Plaintiffs contend that Mr.
Evans was injured due to exposure to asbestos-containing products that Defendants
manufactured, sold, distributed, licensed, or installed. (Id., Ex. A at if 32) Accordingly, Plaintiffs
assert negligence, strict liability, punitive damages, and loss of consortium claims. (Id., Ex. A)
Mr. Evans was deposed on April 7, 2016. (D.I. 100) Plaintiffs did not produce any other

2

Moving Defendants, Atwood and Nash, did not submit a letter request for dismissal but the
court will consider their respective motions which appear pending and unopposed, according to
the docket.
2

fact or product identification witnesses for deposition. 3 Mr. Evans testified that he enlisted in the
Navy in July of 1957. (4/7/ 16 Video Tr. at 20:5- 8) After boot camp, he went to a training school
for boilermen. (Id. at 20:24-21 :8) His training there consisted of learning how to tend and
operate boilers on ships. (Id. at 21 :7-8)
After training, Mr. Evans was stationed on the USS Kearsarge from 1957 to 1961. (Id. at
22 :5-23:9) There, he worked as a boilerman. (Id. at 24:9) On the USS Kearsarge, Mr. Evans
operated and maintained the boilers when repairs were required. (Id. at 26: 1-6) He believes he
was exposed to asbestos while operating and maintaining the boilers because he worked with
asbestos-containing gaskets. (Id. at 28 :3-19)
In 1961 , Mr. Evans left the Navy, but re-enlisted a month or so later, and was assigned to
the USS John A. Bole. (Id. 34:15-22) Mr. Evans testified that he had the same duty assignment
as he was assigned on the USS Kearsarge. (Id. at 36: 17- 21) He believes he was exposed to
asbestos while hammering out refractory brick inside the boilers. (Id. at 45:13-46:8) While
hammering, Mr. Evans noticed particles being released into the air. (Id. at 48:5-49:1)
From the early 1960s and until the 1990s, Mr. Evans also changed the brakes on
automobiles owned by his family. (Id. 91 :5-92:4) Mr. Evans believes he was exposed to
asbestos while cleaning out the debris inside tire drums. (Id. at 92: 5- 94: 11)

2. Plaintiffs' product identification evidence
a. Gardner Denver Inc.
Mr. Evans did not identify any products manufactured by Gardner Denver. (See D.I. 148)

3

The deadline to complete depositions of all plaintiffs alleging exposure was January 25, 2016.
(D.I. 51 at if 4(c)(iii)) The deadline to complete depositions of all co-worker, product
identification, and other exposure testimony witnesses was May 6, 2016. (D.I. 51 at if 4(c)(iv))
The deadline to complete depositions of all fact witnesses was September 2, 2016. (D.I. 51 at if
4(c)(v))
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b. Flowserve US Inc./Edward Valves, Inc.
Mr. Evans not identify any products manufactured by Flowserve, successor-in-interest to
Edward Valves. (See D.I. 150) Additionally, Mr. Evans did not identify any products
manufactured by Edward Valves. (Id.)

c. Atwood & Morrill Company, Inc.
Mr. Evans did not identify any products manufactured by Atwood. (See D.I. 160)

d. Nash Engineering Company
Mr. Evans did not identify any products manufactured by Nash. (See D.I. 161)

III.

LEGAL STANDARDS
A. Summary Judgment
"The court shall grant summary judgment ifthe 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' 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, 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

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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 of law. See Celotex, 477 U.S. at 322.
If a party fails to address another party's assertion of fact, the court may consider the fact
undisputed, or grant summary judgment if the facts show that the movant is entitled to it. Fed. R.
Civ. P. 56(e)(2)-{3). 4 A plaintiffs failure to respond "is not alone a sufficient basis for the entry

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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 ifthe 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.
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of a summary judgment." Anchorage Assocs. v. Virgin Islands Bd. Of Tax Review, 922 F.2d
168, 175 (3d Cir. 1990). 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 of law.

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 still determine whether
the unopposed motion for summary judgment "has been properly made and supported." Williams

v. Murray, Inc., Civil No. 12-2122, 2014 WL 3783878, *2 (D.N.J. July 31, 2014) (quoting
Muskett v. Certegy Check Svcs., Inc., No. 08-3975, 2010 WL 2710555, at *3 (D.N.J. July 6,
2010)).

B. Maritime Law
The parties do not dispute that maritime law applies to all Naval/sea-based claims. 5 (D.I.
136) To establish causation in an asbestos claim under maritime law, a plaintiff must show that
"(1) he was exposed to the defendant's product, and (2) the product was a substantial factor 6 in

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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).
"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., E.D. PA Civil Action No. 2:09-69578, 2011WL11439126, at *1 n.l (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
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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. App'x 371, 375 (6th Cir. 2001)).
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." 7 Abbay v. Armstrong Int'!, Inc., E.D. PA Civil Action No. 2:10-CV-83248-ER, 2012
WL 975837, at* 1 n. l (E.D. Pa. Feb. 29, 2012).
"In establishing causation, a plaintiff may rely upon direct evidence ... or circumstantial
evidence [to] support an inference that there was exposure to the defendant's product for some
length oftime." 8 Abbay, 2012 WL 975837, at *1 n.1 (citing Stark, 21 F. App'x 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. App'x 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).

there always lurks the idea ofresponsibility." Restatement (Second) of Torts§ 431 cmt. a
(1965).
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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., Civil Action No. 10-0113-SLR-SRF, 2013 WL 4886658, at *7 (D. Del. Sept. 12, 2013),
report and recommendation adopted, 2013 WL 5486813 (Oct. 1, 2013) (citing cases); Conner v.
Alfa Laval, Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012).
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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. App 'x. at
376 (quoting Harbour v. Armstrong World Indus., Inc., No. 90-1414, 1991 WL 65201, at *4 (6th
Cir. April 25, 1991) (emphasis in original)).
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IV.

Discussion
A. Gardner Denver Inc.
The court recommends granting Gardner Denver's motion for summary judgment,

because there is no genuine issue of material fact in dispute as to whether Mr. Evans was
exposed to an asbestos-containing product made by Gardner Denver. Because Plaintiffs did not
produce any evidence tending to establish exposure to Gardner Denver's products, Plaintiffs fail
to meet the "substantial factor" test. Therefore, the court recommends granting summary
judgment in favor of Gardner Denver.

B. Flowserve US Inc./Edwards Valves Inc.
The court recommends granting Flowserve's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether Mr. Evans was exposed to an
asbestos-containing product made by Flowserve. Because Plaintiffs did not produce any
evidence tending to establish exposure to Flowserve or Edwards Valves products, Plaintiffs fail
to meet the "substantial factor" test. Therefore, the court recommends granting summary
judgment in favor of Flowserve.

C. Atwood & Morrill Company, Inc.
The court recommends granting Atwood's motion for summary judgment, because there
is no genuine issue of material fact in dispute as to whether Mr. Evans was exposed to an
asbestos-containing product made by Atwood. Because Plaintiffs did not produce any evidence
tending to establish exposure to Atwood's products, Plaintiffs fail to meet the "substantial factor"
test. Therefore, the court recommends granting summary judgment in favor of Atwood.

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D. Nash Engineering Company
The court recommends granting Nash's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether Mr. Evans was exposed to an asbestoscontaining product made by Nash. Because Plaintiffs did not produce any evidence tending to
establish exposure to Nash' s products, Plaintiffs fail to meet the "substantial factor" test.
Therefore, the court recommends granting summary judgment in favor of Nash.

V.

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

granting Defendants' unopposed motions for summary judgment.

Gardner Denver Inc.
Flowserve US Inc.

GRANT

Atwood & Morrill Company Inc.

GRANT

Nash Engineering Company

GRANT

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).

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The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013 , a copy of which is available on the court's website,
http://www.ded.uscourts.gov.
Dated: February ~' 2017

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