Charlevoix et al v. Caterpillar Inc. et al

Filing 202

REPORT AND RECOMMENDATIONS- granting #152 MOTION for Summary Judgment, granting #146 MOTION for Summary Judgment, granting #166 MOTION for Summary Judgment, granting #156 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 1/17/2017. Signed by Judge Sherry R. Fallon on 12/29/2016. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
CHARLEVOIX et al.

Plaintiffs,

v.
CBS CORPORATION, et al.
Defendants.

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Civil Action No. 15-726-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,
CBS Corporation 1 ("CBS") (D.I. 146), The Goodyear Tire & Rubber Company ("Goodyear")
(D.1. 152), FMC Corporation2 ("FMC") (D.I. 156), and Ingersoll Rand Company ("Ingersoll")
(D.1. 166) (collectively "Defendants"). 3 As indicated in the chart, infra, and for the reaso~s set
forth below, the court recommends granting Defendants' motions for summary judgment.

CBS Corporation/Westinghouse

GRANT

The Goodyear Tire & Rubber Co.

GRANT

FMC Corporation/Northern Pump

GRANT

Ingersoll Rand Company

GRANT

1

CBS Corporation is sued as a successor-in-interest to Westinghouse Electric Corporation
("Westinghouse"). (D.1. 147 at 1)
2
Northern Pump is a predecessor company of FMC. (D.I. 157 at 1)
3
Defendants John Crane Inc., Crane Co., Caterpillar Inc., VIAD Corporation, Ford Motor
Company, Fiat Ams North America, and Warrant Pumps also filed motions for summary
judgment. (D.1. 144, 150, 154, 158, 160, 162, 164) Those motions will be addressed separately.

II.

BACKGROUND
A. Procedural History
Stephen and Marilyn Charlevoix ("Plaintiffs") filed this asbestos action in the Delaware

Superior Court against multiple defendants on July 10, 2015, asserting claims regarding Mr.
Charlevoix's alleged harmful exposure to asbestos. (D.I. 1 at 1) Defendant Crane Co. removed
the action to this court on August 21, 2015. (D.I. 1) CBS, Goodyear, and FMC filed motions for
summary judgment on September 30, 2016. (D.l. 146, 152, 156) Ingersoll filed its motion on
October 4, 2016. (D.l. 166) Plaintiffs did not respond to these motions. On November 8, 2016,
counsel for Ingersoll and FMC sent a letter to the court seeking dismissal for Plaintiffs' failure to
oppose the summary judgment motions. (D.I. 188, 189) Counsel for CBS and Goodyear filed
similar letters on November 10, 2016, and November 14, 2016. (D.l. 190, 192)

B. Facts
A. Plaintiff's alleged exposure history
Plaintiffs allege that Mr. Charlevoix developed mesothelioma as a result of exposure to
asbestos-containing products during the course of his employment with the U.S. Navy from 1961
to 1964, and from 1961to1978 from his work with various employers. (D.l. 1 at 1) Plaintiffs
contend that Mr. Charlevoix was injured due to exposure to asbestos-containing products that
Defendants manufactured, sold, distributed, licensed, or installed. (D.I. 1, Ex. 1 at if 4)
Accordingly, Plaintiffs assert negligence, punitive damages, and loss of consortium claims. (Id,
Ex. 1)
Mr. Charlevoix was deposed on December 15, 2015. 4 (D.I. 57) Product identification

4

The deadline to complete depositions of all plaintiffs alleging exposure was April 15, 2016.
(D.l. 38 at if 4(c)(iii)) The deadline to complete depositions of all co-worker, product
identification, and other exposure testimony witnesses was June 15, 2016. (D.I. if 4(c)(iv)) The

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witness, James Kimble, was deposed on May 24, 2016. (D.I. 67) Additionally, product
identification witness, Pat Mulligan, was deposed on May 26, 2016. (D.I. 68) Mr. Charlevoix
was enlisted in the Navy from 1961 to 1964. (D.I. 1, Ex. 1) He was stationed on the USS Valley
Forge, where he worked as a boiler tender. (D.I. 147 at 1) Mr. Charlevoix believes he was
exposed to asbestos while cleaning the boilers in the boiler room. (Id. at if 6; 12115115 Video Tr.
at 85: 10-22)
After his time in the Navy, Mr. Charlevoix was a grinder for Grede Foundry from 1964 to
1966, and a maintenance worker and equipment installer for MJ Electric from 1966 to 1978.
(D.I. 153 at 2) Mr. Charlevoix was also the owner and operator of Charlevoix Logging from the
late-1960s until the time of his filing this suit. (Id.; D.I. 157 at 3)
B. Plaintiff's product identification evidence
a. CBS Corporation/Westinghouse

Mr. Charlevoix did not identify an asbestos-containing Westinghouse or CBS product.

(See D.I. 147, Ex. B, Ex. C, Ex. D)
b. The Goodyear Tire & Rubber Company

Mr. Charlevoix did not identify an asbestos-containing Goodyear product. (See D.I. 153)
c. FMC Corporation/Northern Pump

Mr. Charlevoix did not identify an asbestos-containing FMC or Northern Pump product.

(See D.I. 157, Ex. A, Ex. B, Ex. C)
d. Ingersoll Rand Company

Mr. Charlevoix did not identify an asbestos-containing Ingersoll product. (See D.I. 167,

deadline to complete depositions of all defense fact witnesses was September 30, 2016. (D.I. if
4(c)(v))
3

Ex.B,Ex.C)

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' 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
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,

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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 ifthe facts show that the movant is entitled to it. Fed. R.
Civ. P. 56(e)(2)-(3). 5 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) (quoting

5

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.
5

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. 6 To
establish causation in an asbestos claim under maritime law, a plaintiff must show that "(l) he
was exposed to the defendant's product, and (2) the product was a substantial factor 7 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. 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." 8 Abbay v. Armstrong Int'!, Inc., E.D. PA Civil Action No. 2:10-CV-83248-ER, 20.12

6

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
there always lurks the idea ofresponsibility." Restatement (Second) of Torts§ 431 cmt. a
(1965).
8
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
7

6

WL 975837, at* 1 n.1 (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."9 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).
Should the court decide that causation has been established, some Defendants rely upon
the "bare metal" defense to avoid liability on the basis that they have no duty to Plaintiffs for
asbestos-containing replacement parts they did not manufacture or distribute. Conner v. Alfa
Laval, Inc., 842 F. Supp. 2d 791, 801-02 (E.D. Pa. 2012) (explaining the policy rationale for

holding only those who make or sell the injurious product liable for the injuries alleged). "The
so-called 'bare metal defense' is recognized by maritime law, such that 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." Carper v. Gen. Elec. Co., Civil Action No. 2:12-06164-ER,

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).
9
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)).
7

2014 WL 6736205, at *l (E.D. Pa. Sept. 4, 2014) (citing Conner, 842 F. Supp. 2d at 801).
C. Michigan 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 Michigan substantive law applies to all land-based claims.
(D.I. 157 at 4)
Under Michigan law, a plaintiff must establish that a particular defendant's conduct was a
substantial factor in causing the plaintiffs injury. 10 Brisboy v. Fibreboard Corp., 418 N.W.2d.
650, 653 (Mich. 1988). The frequency and intensity of exposure to asbestos-containing
products, "in the scope of [the plaintiffs] entire work history," should be considered in
determining whether defendant's conduct was a substantial contributing factor. Allen v. OwensCorning Fiberglas Corp., 571N.W.2d530, 533 (Mich. Ct. App. 1997).
Moreover, the plaintiff must show "the manufacturer's asbestos product was used at the
specific site within the workplace where [the plaintiff] worked." Roberts v. Owens-Corning
Fiberglas Corp., 726 F. Supp. 172, 174 (W.D. Mich. 1989) (citing Roehling v. Nat'! Gypsum Co.
Gold Bond Bldg. Prod., 786 F.2d 1225, 1228 (4th Cir. 1986). It is not enough for the plaintiff to
show that the defendant's product was present somewhere at his workplace. Id. (citing Lohrman
v. Pittsburgh Corning Corp., 782 F.2d. 1156, 1162-63 (4th Cir. 1986).

IV.

Discussion
A. CBS Corporation/Westinghouse

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Michigan has adopted the "substantial factor" test of legal causation as outlined in the
Restatement of Torts, 2d § 431. Brisboy v. Fibreboard Corp., 418 N. W.2d. 650, 653 (Mich.
1988).

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

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

C. FMC Corporation/Northern Pump
The court recommends granting FMC's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether Mr. Charlevoix was exposed to an
asbestos-containing product made by FMC or Northern Pump. Plaintiffs fail to meet the
"substantial factor" test under both maritime law and Michigan law, because Plaintiffs did not
produce any evidence tending to establish exposure to FMC or Northern Pump products.
Therefore, the court recommends granting summary judgment in favor of FMC.

D. Ingersoll Rand Company
The court recommends granting Ingersoll's motion for summary judgment, because there
is no genuine issue of material fact in dispute as to whether Mr. Charlevoix was exposed to an
asbestos-containing product made by Ingersoll. Plaintiffs fail to meet the "substantial factor"

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test, because Plaintiffs did not produce any evidence tending to establish exposure to Ingersoll
products. Therefore, the court recommends granting summary judgment in favor of Ingersoll.
V.

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

granting Defendants' motions for summary judgment.

CBS Corporation/Westinghouse

The Goodyear Tire & Rubber Co.
FMC Corporation/Northern Pump
Ingersoll Rand Company

GRANT
GRANT
GRANT
GRANT

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1 )(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,
http://www.ded.uscourts.gov.
Dated: December -Z. q

, 2016

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