Evans et al v. Alfa Laval Inc. et al
REPORT AND RECOMMENDATIONS- re 143 MOTION for Partial 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 9/18/2017. Signed by Judge Sherry R. Fallon on 8/30/2017. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
ICOM HENRY EVANS, and
JOHANNA ELAINE EV ANS,
ALFA LAVAL, INC., et al.
Civil Action No. 15-681-ER-SRF
REPORT AND RECOMMENDATION
Presently before the court, in this asbestos-related personal injury action, is the motion
for partial summary judgment as to the Plaintiffs' punitive damages claim filed by defendant
John Crane Inc. ("John Crane"). (D.I. 143) For the reasons set forth below, the court
recommends denying John Crane's motion for partial summary judgment.
A. Procedural History
Icom Henry Evans and Johanna Elaine Evans ("Plaintiffs") filed this asbestos related
personal injury action in the Delaware Superior Court against multiple defendants on June 11,
2015, asserting injuries arising from Mr. Evans' alleged harmful exposure to asbestos. (D.I. 1 at
Defendant Foster Wheeler removed the action to this court on August 4, 2015. (D.I. 1) On
September 9, 2016, the parties stipulated that maritime law applies to all substantive claims. 1
(D.I. 136) On October 7, 2016, John Crane filed a motion for partial summary judgment
requesting dismissal of Plaintiffs' claims for punitive damages as a matter oflaw. (D.I. 143)
Plaintiffs oppose the motion. (D.I. 175)
The Plaintiff, Icom Evans ("Mr. Evans"), developed mesothelioma which he claims
resulted from his exposure to asbestos containing gaskets manufactured by John Crane. (D.I.
175) Mr. Evans removed and replaced gaskets during his naval service as a boiler tender and
fireman on the USS Kearsarge and the USS Bole between 1957 and 1968. (Id) John Crane
contends that the relevant time period for purposes of Plaintiffs' punitive damages claim is
confined to the time frame of Mr. Evans' ship-board service. (D.I. 181)
John Crane admits to having knowledge of the hazards of asbestos by 1970. (D.I. 181 at
4) However, the parties dispute whether John Crane had knowledge of the hazards of asbestos
before 1970. (D.I. 175, 181) The parties further dispute whether John Crane's knowledge after
1970 is relevant to consideration of the punitive damages issue. (Id)
In 1922, John Crane's President, Frank R. Payne, joined the American Society of
Mechanical Engineers ("ASME"). (D.I. 175 at 3) In 1933, a journal entitled "Mechanical
In order to establish causation in an asbestos claim under maritime law, a plaintiff must show,
for each defendant, that "(l) he was exposed to the defendant's product, and (2) the product was
a substantial factor in causing the injury he suffered." Lindstrom v. A-C Prod Liab. Trust, 424
F.3d 488, 492 (6th Cir. 2005) (citing Starkv. 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).
Engineering," which is published by ASME, featured an article describing the hazards of
asbestos. (Id at 3-4) A similar article was published in "Mechanical Engineering" in 1935. (Id
at 4) In 1936, the Illinois Labor Standards Act listed asbestos as an occupational injury
compensable under the state's workers' compensation system. 2 (D.I. 175, Ex. 5 at 99:23-100:1)
In 1943, the Illinois Department of Labor published an article titled, "Wartime Operations
Emphasize Industrial Hygiene Problems of Asbestos Industry." (D.I. 175, Ex. 10) In 1950,
"Mechanical Engineering" published an article linking asbestos exposure to forms of cancer.
(D.I. 175, Ex. 1 at 112: 14-20) In 1964, the New York Academy of Sciences published a book
listing products that could expose workers to asbestos. (D.I. 175, Ex. 3 at 100:2-21) In 1966,
articles were published in the Wall Street J oumal and the Chicago Tribune discussing the health
hazards linked to asbestos. (D.I. 175, Ex. 1at116:22-118:8; Ex. 2 at 105:23-107:20)
Years subsequent to the publication of the foregoing articles, depositions of John Crane's
corporate representatives, George Springs and George McKillop, were taken in connection with
then pending asbestos litigation in 2007, 2010, and 2015, respectively. (D.I. 175) In summary,
each corporate representative testified regarding the time frame of John Crane's knowledge of
the hazards of asbestos. In their brief, Plaintiffs point to internal inconsistencies in Mr. Springs'
testimony. (D.I. 175) For example, Mr. Springs testified that in 1943 John Crane took steps to
protect employees from "raw" asbestos it used in the manufacturing process, but Mr. Springs
later attempted to qualify his statement, explaining his testimony addressed whether John Crane
had ventilation in its manufacturing plant. (D.I. 175, Ex. 11 at 24:6-13; 104: 11-105 :5)
Additionally, Mr. Springs testified that he would.expect John Crane to be aware of Illinois
workers' compensation legislation regarding the hazards of asbestos, and that he knew Illinois
John Crane is headquartered in Illinois. (D.I. 175 at 3)
had labeled asbestosis as an occupational injury by 1936. (D.I. 175, Ex. 2 at 95:16-20; Ex. 5 at
99:23-100:1) However, John Crane highlights that Mr. Springs' statement was made in the
present tense, and did not address what John Crane was aware of in 1936. (D.I. 181 at 2)
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).
The moving party bears the initial burden of proving the absence of a genuinely disputed
material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to
demonstrate the existence of a genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891F.2d458, 46061 (3d Cir. 1989). When determining whe_ther a genuine issue of material fact exists, the court
must view the evidence in the
most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007);
Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some evidence
in support of the nonmoving party may not be sufficient to deny a motion for summary
judgment. Rather, there must be enough evidence to enable a jury 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. at322.
B. Punitive Damages
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. VI), 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)).
The court recommends denial of John Crane's motion for partial summary judgment.
John Crane argues that to defeat partial summary judgment, Plaintiffs must show that by 1967,
John Crane knew that asbestos-containing products and gaskets it sold caused injury, yet it
continued to sell them with reckless indifference of the risks to others. (D .I. 181 at 7) John
Crane argues that Plaintiffs have no evidence establishing that by 1967, John Crane had actual
knowledge that exposure to its asbestos-containing packing or gaskets caused an asbestos-related
disease. (D.I. 147 at 3) As such, John Crane argues there is no evidence that it sold asbestoscontaining products in a willful, wanton, or reckless manner, which would support a claim for
punitive damages. (D.I. 181at2-3)
In response, Plaintiffs argue that (1) John Crane had actual knowledge of the hazards of
asbestos as early as the 1930s, and (2) John Crane's post-exposure conduct provides evidence
that is probative of John Crane's willful, wanton, and reckless state of mind. (D.I. 175 at 12-14)
The Plaintiffs assert that John Crane sold asbestos products, including gaskets, from 1931 to
1985, and did not warn of dangers of asbestos until 1983, if at all. (D.1. 175 at 1-2) Therefore,
Plaintiffs assert a genuine issue of material fact
as to whether John Crane knew its
asbestos-containing products were hazardous, and, despite such knowledge, continued to
distribute its products without disclosing such hazards. (D.I. 175- at 1-2)
Plaintiffs argue that John Crane had actual knowledge of the health hazards associated
with asbestos exposure, because starting in 1933, academic and news periodicals, as well as state
legislation, were published addressing the harms of asbestos exposure. (D.I. 175 at 2-6) In
support of this assertion, Plaintiffs cite to an Illinois Labor Standards Act from 1936, which
listed asbestosis as an occupational injury compensable under the state's workers' compensation
system. (D.I. 175, Ex. 5 at 99:23-100:1) Plaintiffs further cite to three academic articles
published between 1933 and 1950, in a journal entitled "Mechanical Engineering," which discuss
the hazards of asbestos. (D.I. 175, Ex. 1 at 112:4-25; Ex. 8; Ex. 9) Plaintiffs state that in 1922,
John Crane's President, Frank R. Payne, joined the American Society of Mechanical Engineers,
and would have received "Mechanical Engineering" through his membership. (D.I. 175 at 3)
Plaintiffs also cite to a 1943 Illinois Department of Labor Bulletin discussing asbestos exposure
titled, "Wartime Operations Emphasize Industrial Hygiene Problems of Asbestos Industry." (D.I.
175, Ex. 10) Plaintiffs further cite to a 1964 book published by the New York Academy of
Sciences listing products that could expose workers to asbestos (D.I. 175, Ex. 3 at 100:2-21),
and a pair of articles from 1966 that were published in the Wall Street J oumal and the Chicago
Tribune discussing the health hazards linked to asbestos. (D.I. 175, Ex. 1 at 116:22-118:8; Ex. 2
The academic and news periodicals, as well
the state legislation, create a dispute of
material fact as to whether John Crane had knowledge of the hazards of asbestos as early as the
1930s. For example, Plaintiffs cite to the testimony Mr. Springs, in which he states that he
would expect John Crane to maintain awareness of Illinois Department of Labor Bulletins. (D.I.
175, Ex. 2 at 95:16-20) Moreover, publications discussing the hazards of asbest()S were
available to John Crane company executives. (D .I. 175 at 3-6)
Plaintiffs further argue that a genuine issue of material fact exists, because John Crane
had actual knowledge of the hazards of asbestos as early as 1943. (D.I. 175 at 5) Plaintiffs cite to
a transcript from a 2013 New York Supreme Court case, in which Mr. Springs testified regarding
John Crane's knowledge of the harms of asbestos exposure. (D.I. 175, Ex. 11) The following
testimony was provided:
MR. STUEMKE: And I mean no disrespect, Mr. Springs, it seems like we are
talking past each other a little bit. Yes or no, in 1943, John Crane was taking steps
to protect its employees from exposure to asbestos in manufacturing because they
understood that exposure to asbestos could be harmful; yes or no?
MR. SPRINGS: Exposure to raw asbestos in the manufacturing process, yes.
(D.I. 175, Ex. 11 at 24:6-13)
Following a recess, Mr. Springs was questioned by his counsel regarding his earlier
statement on John Crane's knowledge of asbestos hazards:
MR. BURNS: And you spoke with me earlier that it was just hazards of all dust.
In any of your exchanges with Mr. Stuemke, you seem to imply that John Crane
had knowledge in 1943 about asbestos. Was that a misstatement oris that correct?
MR. STUEMKE: Objection, leading.
THE COURT: Overruled.
MR. SPRINGS: I misspoke. If you understood that that is what I said, you
misunderstood me and I misspoke and I apologize.
MR. BURNS: Okay. One last time, what did you mean by that, your exchange
with Mr. Stuemke?
MR. SPRINGS: He asked me if-my recollection is he asked me about did John
Crane have ventilation in our plant in 1943? And I said yes, we did. And that's all
I was referring to. We had ventilation to clean dust out of the area. All dust. That
building wasn't air-conditioned, so that's what the reason was, ventilation.
(Id. at 104:11-105:5)
In its brief, John Crane highlights that Mr. Springs stated in his testimony that he
misspoke. (D.I. 181 at 4) Mr. Springs, when asked about his inconsistent statements, stated that
he misunderstood the question, because he thought he was being asked about ventilation in the
manufacturing plant. (D.I. 175, Ex. 11 at 104:22-105:5)
Additionally, the court notes that Mr. Springs originally stated that John Crane took
precautions to prevent its workers from being exposed to raw asbestos. (D.I. 175, Ex. 11 at 24:613) John Crane states it did not sell raw asbestos. (D.I. 181at6) Furthermore, John Crane
contends that the products it sold were encapsulated with various rubber coatings and lubricants.
(D.I. 181 at 6)
The court cannot assess the credibility of Mr. Springs' testimony at the summary
judgment stage. See Facenda v. NFL. Films, Inc., 542 F.3d 1007, 1024 (3d Cir. 2008)
(suggesting that credibility judgments are disallowed when ruling on summary judgment) (citing
Country Floors, Inc. v. P'ship Composed of Gepner and Ford, 930 F.2d 1056, 1062 (3d Cir.
1991 ). Thus, a dispute of material fact exists as to whether John Crane knew asbestos-containing
products were harmful by 1967. As such, it is recommended that a trier of fact should determine
whether John Crane knew asbestos-containing products were harmful, and chose not to warn
potential users of the health risks. Furthermore, the trier of fact should determine if John Crane
had such knowledge, and whether John Crane continued, nonetheless, to sell products in a
manner that was in willful or wanton disregard, or in reckless indifference of potential harm to
others. Therefore, the court recommends denying John Crane's motion for partial summary
The court does not address Plaintiffs' post-exposure conduct argument, because a
genuine issue of material fact exists regarding whether John Crane knew asbestos-containing
products were harmful by 1967. 3 As such, the court makes no recommendations as to the
admissibility of evidence of post-exposure conduct, and leaves the issue to be decided by the
District Judge at the appropriate time.
For the foregoing reasons, the court recommends denying John Crane's motion for partial
The cases presented by Plaintiffs and Defendant demonstrate a split amongst courts as to
whether post-incident conduct should be allowed to determine a defendant's knowledge or state
of mind at the time the incident allegedly occurred. See Gulbranson v. Duluth, Missabe & Iron
Range Ry. Co., 921F.2d139, 142 (8th Cir. 1990) (post-injury memorandum not relevant to
defendant's knowledge at the time of the injury); Thomas v. Am. Cystoscope Maker, Inc., 414 F.
Supp. 255, 265 (E.D. Pa. 1976) (applying Pennsylvania law disallowing post-injury conduct to
inferentially show defendant's state of mind); Sealover v. Carey Canada, 793 F. Supp. 569, 579
(M.D. Pa. 1992) (evidence that defendants learned of hazards of asbestos after injury is not
relevant). But see Dykes v. Raymark Indus., Inc., 801 F.2d 810, 818 (6th Cir. 1986) (whether
post-injury evidence is relevant to a defendant's culpability should be determined on a case-bycase basis); Farahmand v. Cohen, 1999 U.S. Dist. LEXIS 10742 at *5 (E.D. Pa. July 15, 1999)
("The law in this circuit states that after the fact evidence may be admissible as circumstantial
evidence to show discrimination."); Peshlakai v. Ruiz, 39 F. Supp. 3d 1264, 1343 (D.N.M. 2014)
(evidence of subsequent acts are admissible to show the defendant's state of mind at the time of
injury); Samuels v. Albert Einstein Med Ctr., 1998 WL 770624, at *5 (E.D. Pa. Nov. 5, 1998)
(after the fact evidence may be admissible as circumstantial evidence to show discrimination).
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,
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