Charlevoix et al v. Caterpillar Inc. et al
REPORT AND RECOMMENDATIONS re #162 MOTION for Summary Judgment filed by Fiat Allis North America, #144 MOTION for Summary Judgment filed by John Crane 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 2/16/17. (cak)
IN THE UNITED ST ATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
MARILYN CHARLEVOIX, Individually
and as Executor of the Estate of Stephen
Charlevoix, Deceased, and on behalf of all
Wrongful Death Beneficiaries,
CBS CORPORATION, et al.,
Civil Action No. 15-726-SLR-SRF
REPORT AND RECOMMENDATION
This Report and Recommendation is limited to two pending motions for summary
judgment in this asbestos-related personal injury action. The motions were filed by Defendants,
John Crane Inc. ("John Crane") (D.I. 144), and Fiat Allis North America ("Fiat") (D.1. 162)
(collectively "Defendants"). As indicated in the chart, infra, and for the reasons set forth below,
the court recommends granting Defendants' motions for summary judgment.
Motion for Summary Jude;ment
John Crane Inc.
Fiat Allis North America
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 arising from 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) John Crane filed a motion for summary
judgment on September 28, 2016. (D.1. 144) Fiat filed its motion on September 30, 2016. (D.I.
162) Plaintiffs did not respond to these motions. On January 9, 2017, counsel for Fiat sent a
letter to the court seeking dismissal in light of Plaintiffs' failure to oppose its summary judgment
motion.1 (D.I. 209)
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. (D.I. 1at1) In addition, Mr. Charlevoix alleges he was exposed to asbestos from 1961
to 1978 as a result of his work with various employers, and in his own logging business. (Id.)
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~
4) Accordingly, Plaintiffs assert negligence, punitive damages, and loss of consortium claims.
(Id., Ex. 1)
Mr. Charlevoix was deposed on December 15, 2015. 2 (D.I. 57) Product identification
witness, James Kimble, was deposed on May 24, 2016. (D.I. 67) Additionally, product
identification witness, Pat Milligan, was deposed on May 26, 2016. (D.1. 68) Mr. Charlevoix
Moving Defendant, John Crane, did not submit a letter request for dismissal but the court will
consider its respective motion which appears pending and unopposed, according to the docket.
The deadline to complete depositions of all plaintiffs alleging exposure was April 15, 2016.
(D.I. 38 at~ 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. ~ 4(c)(iv)) The
deadline to complete depositions of all defense fact witnesses was September 30, 2016. (D.I. ~
was enlisted in the Navy from 1961to1964. (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. (12/15115 Video Tr. at 85: 1022)
After his discharge from service 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. John Crane Inc.
Mr. Charlevoix did not identify an asbestos-containing John Crane product. (See D.I.
145, Exs. 1-4)
b. Fiat Allis North America
Mr. Charlevoix identified Fiat as the manufacturer of a front-end loader vehicle which he
used in the operation of his logging business. (12/15/15 Video Tr. at 78:1-79:12) Mr.
Charlevoix could not remember the exact year that he purchased the vehicle, but believed it was
sometime in the early 1980s. 3 (12/15115 Tr. at 183:17-184:6) In the morning deposition session,
Mr. Charlevoix stated the vehicle was a 1979 model. (12115115 Video Tr. at 79:16-17)
However, in the afternoon session, Mr. Charlevoix stated he was not sure about the model year,
but that it was probably a 1980s model. 4 (12115/15 Tr. at 183:5-16) Mr. Charlevoix stated that
he had the engine overhauled in the vehicle. (Id. at 79: 18-22) Product identification witness, Pat
Mr. Milligan believed the vehicle was purchased in the mid-1990s. (5/26/16 Tr. at 113:24-25)
Mr. Milligan thought the vehicle was manufactured in the late 1970s. (5/26/16 Tr. at 114:1-3)
Milligan, said the first engine overhaul took place a couple years after Mr. Charlevoix purchased
the vehicle. (5/26/16 Tr. at 115:9-11) Mr. Charlevoix did not associate asbestos exposure with
the engine overhaul. (12/15/15 Tr. at 190:5-12) Mr. Charlevoix purchased the vehicle used and
did not know the vehicle' s maintenance history or whether it still had any of its original parts and
equipment. (Id. at 188:4- 10)
Mr. Milligan testified that Mr. Charlevoix had the engine overhauled in the Fiat front-end
loader vehicle twice.5 (5/26/16 Tr. at 115:1-8) Mr. Milligan stated that gaskets had to be
removed during the process. (Id. at 116: 10-12) He did not know who manufactured the gaskets
that were removed, or who manufactured the gaskets that were installed. (Id. at 116: 13-18) Mr.
Milligan said that Mr. Charlevoix was present when the gaskets were removed. (Id. at 116: 1921) He did not know the composition of the gaskets and could not say if they contained any
asbestos. (Id. at 117:2-4)
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)).
As stated above, Mr. Milligan testified that the first engine overhaul took place a couple years
after Mr. Charlevoix purchased the vehicle. (5/26/16 Tr. at 115:9-11) However, the record
before the court does not address the timing of the second engine overhaul.
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., 891 F.2d 458, 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,
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). 6 A plaintiffs failure to respond "is not alone a sufficient basis for the entry
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
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,
B. Maritime Law
The parties do not dispute that maritime law applies to all Naval/sea-based claims. 7 (D.I.
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 if the 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.
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."
106) 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 8 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." 9 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." 10 Abbay, 2012 WL 975837, at *1 n.l (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.
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.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 ofresponsibility." Restatement (Second) of Torts§ 431 cmt. a
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).
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)).
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.l
(quoting Lindstrom, 424 F.3d at 492).
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.
Under Michigan law, a plaintiff must establish that a particular defendant's conduct was a
substantial factor in causing the plaintiffs injury. 11 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 Roehlingv. Nat'! Gypsum Co.
Gold Bond Bldg. Prod. , 786 F.2d 1225, 1228 (4th Cir. 1986)). It is not enough for the plaintiff to
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.
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)).
A. John Crane Inc.
The court recommends granting John Crane'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 John Crane. Plaintiffs fail to meet the "substantial
factor" test, because Plaintiffs did not produce any evidence tending to establish exposure to a
John Crane prod~ct. Therefore, the court recommends granting summary judgment in favor of
B. Fiat Allis North America
The court recommends granting Fiat's motion for summary judgment. Although Mr.
Charlevoix testified that he owned a Fiat vehicle, there is no genuine issue of material fact in
dispute as to whether Mr. Charlevoix was exposed to an asbestos-containing product made by
Fiat. (12/15/ 15 Video Tr. at 78 :1-79:12) Mr. Charlevoix testified that he had the engine
overhauled in the vehicle, in which he removed and reinstalled the engine. (Id. at 79: 18-22;
12115/15 Tr. at 190:5- 12) Mr. Charlevoix did not testify that he was exposed to any asbestos in
the course of that work. (Id.) Mr. Milligan testified that gaskets had to be removed during the
engine overhaul process, and that Mr. Charlevoix was present during the removal. (5/26/ 16 Tr. at
116:10-21) However, Mr. Milligan did not know who manufactured the gaskets that were
removed, or who manufactured the gaskets that were installed. (Id. at 116: 13-18) Mr. Milligan
also did not know the composition of the gaskets and could not say if they contained any
asbestos. (Id. at 117:2-4)
The deposition testimony of Mr. Charlevoix and Mr. Milligan fails to create a material
issue of fact as to whether, under Michigan law, Fiat's products were a substantial contributing
factor to Mr. Charlevoix' s injury. The record does not support the claim that Mr. Charlevoix
was exposed to asbestos from Fiat products on a regular basis, over an extended period ohime.
Summary judgment is, therefore, warranted.
For the foregoing reasons, and as addressed in the chart infra, the court recommends
granting Defendants' motions for summary judgment.
Motion for Summary Judgment
John Crane Inc.
Fiat Allis North America
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: February _lk_, 2017
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