Shaw v. Andritz Inc. et al
REPORT AND RECOMMENDATIONS- granting 99 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 7/14/2017. Signed by Judge Sherry R. Fallon on 6/27/2017. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
RALPH ELLIOTT SHAW and JOAN
ANDRITZ INC, et al.,
Civil Action No. 1:15-cv-00725-LPS-SRF
REPORT AND RECOMMENDATION
This Report and Recommendation is limited to one pending motion for summary
judgment in this asbestos-related personal injury action. The motion was filed by Defendant,
Union Carbide Corporation ("Union Carbide"). (D.I. 99) For the reasons set forth below, the
court recommends granting Union Carbide's motion for summary judgment.
A. Procedural History
Ralph Elliott Shaw and Joan Sanderson Shaw ("Plaintiffs") filed this asbestos action in
the Delaware Superior Court against multiple defendants on February 26, 2015, asserting claims
arising from Mr. Shaw's alleged harmful exposure to asbestos. (D.I. 1, Ex. 1 at if 40) Defendant
. CBS Corporation removed the action to this court on August 21, 2015. (D.I. 1) Union Carbide
filed a motion for summary judgment on January 30, 2017. (D.I. 99) Plaintiffs did not respond
to the motion. On June 23, 2017, Plaintiffs' counsel sent a letter to the court asking the court to
grant Union Carbide's motion for summary judgment. (D.I. 115)
a) Plaintiff's alleged exposure history
Plaintiffs allege that Mr. Shaw developed mesothelioma as a result of exposure to
asbestos-containing products during the course of his employment with General Dynamics
Electric Boat Shipyard from 1952 to 1954 and from 1957 to 1968. (D.I. 1, Ex. 1 at if 40) In
addition, Mr. Shaw alleges he was exposed to asbestos from 1968 to 1996, as a result of his work
at H. R. Hillery Company and the Sheet Metal Workers' Union. (Id.) Mr. Shaw also alleges that
he was exposed to asbestos while performing construction on his home from the 1960s to the late
1970s, as well as performing maintenance work on his automobiles intermittently from 1951 to
the 2000s. (Id.) Plaintiffs contend that Mr. Shaw was injured due to exposure to asbestoscontaining products that Union Carbide manufactured, sold, distributed, licensed, or installed.
(D.I. 1, Ex. 1 at if 41) Accordingly, Plaintiffs assert negligence, willful and wanton conduct,
products liability, conspiracy, and loss of consortium claims. (Id., Ex. 1) Mr. Shaw was deposed
'on July 22, 2015. 1 (D.I. 32 at if 4(c)(iii)) No other product identification witnesses were deposed.
b) Plaintiff's product identification evidence
Mr. Shaw did not identify an asbestos-containing Union Carbide product. (See D.I. 99)
The deadline to complete depositions of all plaintiffs alleging exposure was July 22, 2015.
(D.I. 32 at if 4(c)(iii)) The deadline to complete depositions of all co-worker, product
identification, and other exposure testimony witnesses was May 20, 2016. (Id. at if 4(c)(iv)) The
deadline to complete depositions of all defense fact witnesses was September 16, 2016. (Id. at if
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 s.hifts 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
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 gral)ted." 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.
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). 2 A plaintiffs failure to respond "is not alone a sufficient basis for the entry
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)
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.
(quoting Muskett v. Certegy Check Svcs., Inc., No. 08-3975, 2010 WL 2710555, at *3 (D.N.J.
July 6, 2010)).
B. Connecticut Law
This court previously determined that Connecticut substantive law applies to all claims.
(D.I. 95) Under Connecticut law, a plaintiff alleging products liability in a personal injury action
must establish that:
(1) the defendant was engaged in the business of selling the product; (2) the
product was in a defective condition unreasonably dangerous to the consumer or
· user; (3) the defect caused the injury for which compensation was sought; (4) the
defect existed at the time of the sale; and (5) the product was expected to and did
reach the consumer without substantial change in condition.
Bray v. Ingersoll-Rand Co., 2015 WL 728515, at *4 (D. Conn. Feb. 19, 2015) (citing White v.
Mazda Motor ofAm., Inc., 313 Conn. 610, 622 (2014).
The court recommends granting Union Carbide's motion for summary judgment.
Plaintiffs fail to create a material issue of fact as to whether, under Connecticut law, Union
Carbide's product was a substantial contributing factor to Mr.
injury. Therefore, the
court recommends granting summary judgment in favor of Union Carbide.
For the foregoing reasons, the court recommends granting Union Carbide's motion for
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,
Dated: June~, 2017
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