Charlevoix et al v. Caterpillar Inc. et al

Filing 223

REPORT AND RECOMMENDATIONS- re #154 MOTION for Summary Judgment, #160 MOTION for Summary Judgment, #150 MOTION for Summary Judgment, #164 MOTION for Summary Judgment, #158 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 9/18/2017. Signed by Judge Sherry R. Fallon on 8/31/2017. (lih)

IN THE UNITED STATES 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, .
)
)
)
Plaintiff,
)
)
v.
)
)
CBS CORPORATION, et al.
)
)
Defendants.

Civil Action No. 15-726-ER-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Presently, there are five motions for summary judgment before the court in this asbestos-

related personal injury action. The motions were filed by defendants, Caterpillar Inc.,
("Caterpillar") (D.I. 154), VIAD Corp. ("VIAD") (D.I. 158), Warren Pumps, LLC ("Warren
Pumps") (D.I. 164), Crane Co. ("Crane") (D.I. 150), and Ford Motor Company ("Ford") (D.I.
160) (collectively "Defendants"). As indicated in the chart infra, and for the reasons set forth
below, the court recommends granting Defendants' motions for summary judgment.

Caterpillar Inc.
VIAD Corp.
Warren Pumps
Crane Co.
Ford Motor Company

GRANTED
GRANTED
GRANTED
GRANTED

II.

BACKGROUND
A. Procedural History
Plaintiffs Stephen and Marilyn Charlevoix filed this asbestos related personal injury

action in Delaware Superior Court against multiple defendants on July 10, 2015. (D.I. 1) Crane
removed the action to this court on August 21, 2015. (Id.) On December 14, 2016, Plaintiff filed
an Amended Complaint, asserting wrongful death claims. 1 (D.I. 197) The court entered the
Amended Complaint on December 20, 2016. (D.I. 198) Crane, Caterpillar, VIAD and Ford filed
motions for summary judgment on September 30, 2016. (D.I. 150, 154, 158, 160) Warren
Pumps filed a motion for summary judgment on October 4, 2016. (D.I. 164) Plaintiff opposes
the motions. (D.I. 171, 173, 175, 177, 216) The court held oral argument to address the
summary judgment motions of Caterpillar, VIAD, and Warren Pumps on January 11, 2017. 2
B. Facts
Plaintiff alleges that Mr. Charlevoix developed mesothelioma as a result of exposure to
asbestos containing materials from his work with various employers and service in the Navy.
(D.I. 198) Plaintiff contends that Mr. Charlevoix was injured due to exposure to asbestoscontaining products that Defendants manufactured, sold, distributed, or installed. (Id.)
Accordingly, Plaintiff asserts claims for negligence, loss of consortium, and punitive damages.

(Id.)
Plaintiff states that Mr. Charlevoix was first exposed to asbestos-containing products
during his service as a boiler tender with the U.S. Navy from 1961 to 1964 aboard the USS

1

Mr. Charlevoix died on February 25, 2016. (D.I. 197 at 1) Marilyn Charlevoix filed the
Amended Complaint as Executor of the Estate of Mr. Charlevoix. (Id.)
2
On February 24, 2017, Ford requested oral argument on its motion. (D.I. 220) The court denied
the request on February 27, 2017. Crane did not request oral argument on its motion.
2

Valley Forge. (D.I. 198) After his service in the Navy, Mr. Charlevoix worked at Grede Foundry
from 1964 to 1966 as a grinder. (D.I. 198 at 'if 1) From 1966 to 1978, Mr. Charlevoix worked as
an equipment operator and foreman for M.J. Electric. (Id.) After leaving M.J. Electric, Mr.
Charlevoix went to Charlevoix Logging to work as a logger, where he worked until 2012. (Id.;
D.I. 171 at 7)
Mr. Charlevoix was deposed on December 15, 2015. (D.I. 155, Ex. 1) Product
identification witness, James Kimble, was deposed on May 24, 2016. (D.I. 177, Ex. 7) Product
identification witness, Patrick J. Milligan, was deposed on May 26, 2016. (D.I. 155, Ex. 3)
The parties agree that maritime law applies to all naval and sea-based claims. (D.I. 159 at
1) Additionally, the parties agree that Michigan law applies to all land-based claims. (D.I. 155 at
1)

C. Testimony of Product Identification Witnesses
1. Patrick Milligan
Mr. Milligan worked at M.J. Electric from 1975 to 1979 as a mechanic and truck driver.
(D.I. 171 at 6) After leaving M.J. Electric, Mr. Milligan worked at Charlevoix Logging from
1979 to 2012. (Id.) Mr. Milligan testified regarding Mr. Charlevoix's work experience and
duties at both M.J. Electric and Charlevoix Logging. (Id)

2. Howard Kimble
Mr. Kimble served aboard the USS Valley Forge from January of 1960 through October
of 1963. (D.I. 175 at 7) He was assigned to the ship's evaporator room from October of 1961
through October of 1963. (Id.) Mr. Kimble worked with Mr. Charlevoix in the evaporator room
starting in October of 1961. (Id.) Mr. Charlevoix remained in the evaporator room at the time
Mr. Kimble left that assignment in October of 1963. (Id.)

3

D. Plaintiff's product identification evidence
1. _Caterpillar Inc.

Mr. Charlevoix stated that he performed maintenance work on eight Caterpillar
bulldozers during his time at M.J. Electric. (D .I. 15 5, Ex. 1 at 140 :2-141 :15) Mr. Charlevoix
estimates that the models of the eight Caterpillars consisted of four D3s, two D4s, one D6, and
one D8. (Id at 142:11-23) Mr. Charlevoix stated that most of his work involved fixing
hydraulic leaks. (Id at 145:7-15) He stated that he does not associate asbestos exposure with his
work at M.J. Electric. (Id. at 157:22-158:4)
Mr. Charlevoix testified that Charlevoix Logging used Caterpillar equipment to create
roads. (D.I. 155, Ex. 1 at 99: 17-20) However, Mr. Charlevoix clarified that when using the term
"Caterpillar" he was referring to a general dozer tractor that could have been manufactured by
other companies. (Id. at 99:22-100:4) Mr. Charlevoix stated that he did own a tractor that was
actually manufactured by Caterpillar before trading it. (Id at 100:5-16) Mr. Charlevoix said that
he had the Caterpillar tractor for ten years, and that it was a D4 model. (Id at 103: 13-22) He
explained that the only repair work that he did on the Caterpillar tractor was to "put a set of
tracks on it." (Id. at 103:23-25) In 1980, Mr. Charlevoix purchased a secondhand grader that
was manufactured by Caterpillar. (Id. at 117:25-118:4) Mr. Charlevoix stated that he believes
the Caterpillar grader was manufactured in 1942 or 1943. (Id at 118:9-10) Mr. Charlevoix
stated that he still owns the grader and has performed maintenance on it. (Id. at 118:7-23) He
explained that he has replaced injectors and has tightened up "knuckles and front ends" on the
grader. (Id at 118:17-19) When asked whether he believed the maintenance exposed him to
asbestos, Mr. Charlevoix said that he did not believe it did. (Id at 119:4-5) Mr. Milligan said he
did not know whether Mr. Charlevoix was exposed to asbestos during his work at M.J. Electric

4

or Charlevoix Logging. (D.I. 155, Ex. 3 at 111 :25-112:2)

2. VIAD/Griscom-Russell
Mr. Charlevoix was assigned to the evaporator room aboard the USS Valley Forge. (D.I.
159, Ex. A at 65:8-66:15) Mr. Charlevoix stated that the top of the evaporator was covered with
insulatio!l, but Mr. Charlevoix did not know the manufacturer. (Id. at 76:3--4; D.I. 159, Ex.Bat
91 :23-24) Mr. Charlevoix explained that he believes he was exposed to asbestos when
removing the end caps in order to perform work to tighten the tubes on the evaporators. (D .I.
159, Ex. A at 76:5-14) To access the tubes, Mr. Charlevoix would remove nuts from the front
cover which, occasionally required him to remove insulation around the nuts. (Id. at 76:3-14)
Mr. Charlevoix also stated that, although there was a gasket under the front cover, it was likely
made of rubber. (Id. at 249:25-250:1) Mr. Charlevoix stated that he probably did this process
five or six times during his time on the USS Valley Forge. (D.I. 159, Ex.Bat 96:9-13)
Mr. Kimble testified that he believed the evaporators were manufactured by "Grissom."
(D.I. 159, Ex. C at 68:9-22) Mr. Kimble further stated the evaporators would have had some
repairs done before Mr. Charlevoix arrived oil the USS Valley Forge. (Id. at 111 :13-112:1) Mr.
Kimble stated that the exterior of the evaporator was covered in insulation, but did not know who
placed the insulation there or who manufactured the insulation. (Id at 116:21-117:12)

3. Warren Pumps
Mr. Charlevoix testified that he would repair the "wear rings and impeller" on the pumps
located in the evaporator room. (D.I. 165, Ex.Bat 72:12-18) Mr. Charlevoix explained that
there were four pumps in the evaporator room. (Id. at 73:6-74:10) Mr. Charlevoix did not
associate gaskets with the pumps. (Id. at 242:22-24) Mr. Charlevoix stated there was a "siliconlike" sealant on the pumps that had to be scraped off when an impeller was removed from a

5

pump. (Id. at 242:24-244: 18) He stated that the only thing he associated asbestos and the pumps
with was the external insulation on top of the motors. (Id. at 247:25-248:3)
Mr. Kimble testified that Mr. Charlevoix would have worked on the brine overboard
pumps at least a half a dozen times. (D .I. 165, Ex. C at 76 :23-77: 1) Mr. Kimble was unable to
identify the manufacturer of the gaskets. (Id. at 78:10-15) Mr. Kimble stated that replacement
parts would come from the Navy storeroom. (Id. at 78:16-79:19) Mr. Kimble did not believe
that Mr. Charlevoix's work on the pumps would have exposed him to asbestos. (Id. at 82:16-20)

4. Crane Co.
Mr. Charlevoix did not associate any name with the valves on the USS Valley Forge.
(D.I. 173, Ex. 5 at 102:20-22) Mr. Charlevoix stated the valves were not insulated. (Id. at
102:23-25) Mr. Charlevoix stated there were gaskets located on each side of the valves, but that
he never took them off. (Id. at 103: 1-5)
Mr. Kimble testified that Mr. Charlevoix would have to work on a valve ifthere was a
leak. (D.I. 173, Ex. 6 at 195:15-19) When a leak occurred, Mr. Charlevoix would have to repack
the valve. (Id. at 195:23-196:1) Mr. Kimble explained that a sharpened tool with a hook on the
end was used to pull out the packing. (Id. at 184: 1-14) Mr. Kimble could not remember the
name of the packing used. (Id. at 185:7-14) Mr. Kimble also did not know the manufacturer of
the steam valves or the C-valve. (Id. at 67: 11-22)

5. Ford Motor Company
Mr. Charlevoix's father had a Ford tractor when Mr. Charlevoix was growing up. (D.I.
161, Ex.Cat 27:1-10) Mr. Charlevoix would help his father with repairing the tractor. (D.I.
161, Ex. B at 193: 14-19) In the late 1950s, Mr. Charlevoix helped his father with maintenance
work at Foster City Garage. (D.I. 216, Ex. 1at28:16-29:19) Mr. Charlevoix identified Ford as a

6

type of vehicle worked on at Foster City Garage. (Id. at 29:20-24)
Mr. Charlevoix worked at M.J. Electric from 1966 to 1978 as a power line contractor.

(D.I. 216, Ex. 1 at 33:5-20) Mr. Charlevoix stated that for roughly three months out of the year
he would help in the maintenance shop doing repairs. (D.I. 216, Ex. 1 at 41 :10--42:11) Mr.
Charlevoix stated that M.J. Electric had about two hundred Ford pickups. (Id. at 37:25-38:2) He
stated the models of the Ford pickups were 150s, 250s and 350s. (D.I. 161, Ex.Bat 196:11-14)
Mr. Charlevoix stated M.J. Electric also had two Ford dump trucks. (Id. at 201 :10-17)
Mr. Charlevoix started working at Charlevoix Logging in 1978. (D.I. 216, Ex. 1 at 53:17-

19) Mr. Charlevoix stated that Charlevoix Logging had ten Ford pickup trucks. (D.I. 161, Ex. B
at 114:7-16) The models of the pickups were 150s and 250s. (Id. at 213:7-12) Charlevoix
Logging had two Gafner Iron Mules. (D.I. 161, Ex.Bat 203:17-19) Charlevoix Logging also
had one Ford dump truck. (Id. at 218:1-2) Mr. Milligan stated that Mr. Charlevoix had a Ford
logging truck when Mr. Milligan began working at Charlevoix Logging in 1979. (D.I. 216, Ex. 3
at 42:15-17)
Mr. Milligan also stated that Mr. Charlevoix performed clutch and gasket work on Ford

vehicles owned by family and friends. (D.I. 216, Ex. 3 at 152:16-19) However, Mr. Milligan
could not recall the manufacturer of any clutches or gaskets removed or installed by Mr.
Charlevoix. (Id. at 151 :25-153 :21)

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 of law." Fed.
R. Civ. P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a

7

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., 891 F.2d 458, 460-

61 (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.

8

B. Maritime Law
The parties agree that maritime law applies to all naval and sea-based claims. 3 (D.I. 159
at 1) In order to establish causation in an asbestos claim under maritime law, a plaintiff must
show, for each defendant, that "(1) he was exposed to the defendant's product, and (2) the
product was a substantial factor4 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). Other courts in this Circuit recognize a

3

For maritime law to apply, a plaintiffs exposure underlying a products liability claim must
meet both alocality 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., 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 of
responsibility." Restatement (Second) of Torts § 431 cmt. a (1965).
4

9

third element and require a plaintiff to "show that (3) the defendant manufactured or distributed
the asbestos-containing product to which exposure is alleged. " 5 Abbay v. Armstrong Int 'l, Inc.,
2012 WL 975837, at* 1 n.1 (E.D. Pa. Feb. 29, 2012); see § III(C), infra.
"In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of
the plaintiff or decedent who experienced the exposure, co-worker testimony, or eye-witness
testimony) or circumstantial evidence that will support an inference that there was exposure to
the defendant's product for some length oftime." 6 Abbay, 2012 WL 975837, at *1 n.1 (citing
Stark, 21 F. Appx. 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.
Appx. 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). "Total failure to show

that the defect caused or contributed to the accident will foreclose as a matter of law a finding of
strict product[] liability." Stark, 21 F. Appx. at 376 (citations omitted).

5

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., 2013 WL 4886658, at *7 (D. Del. Sept. 12, 2013), report and recommendation adopted,
2013 WL 5486813 (D. Del. Oct. 1, 2013) (citing cases); Conner v. Alfa Laval, Inc., 842 F. Supp.
2d 791, 801 (E.D. Pa. 2012).
6 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. Appx. at
376 (quoting Harbour v. Armstrong World Indus., Inc., 1991WL65201, at *4 (6th Cir. April 25,
1991)).
10

C. Bare Metal Defense
Should the court decide that product identification has been established, it then considers
the assertion of the "bare metal" defense by the moving defendants. The bare metal defense
relates to defendants in asbestos cases that "manufactured so-called 'bare-metal' products that
contained or.were later encapsulated in asbestos." Conner v. Alfa Laval, Inc., 842 F. Supp. 2d
791, 793 n.2 (E.D. Pa. 2012). The defense shields a manufacturer from liability for any injuries
caused by asbestos components, such as packing, insulation, and gaskets, that were integrated
into the manufacturer's products or used as replacement parts, but which the manufacturer did
not manufacture or distribute. See Dalton v. 3M Co., 2013 WL 4886658, at *7 (D. Del. Sept. 12,
2013), report and recommendation adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2013).
Accordingly, courts accepting the bare metal defense refuse to impose liability upon
manufacturers for dangers associated with asbestos-containing products manufactured and
distributed by other entities. See Dalton, 2013 WL 4886658, at *7 (D. Del. Sept. 12, 2013),
report and recommendation adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2013); Malone v. Air &
Liquid Sys. Corp., 2016 WL 4522164, at *5 (D. Del. Aug. 29, 2016), report and
recommendation adopted, 2016 WL 5339665 (D. Del. Sept. 22, 2016); Dumas, 2015 WL
5766460 at *8 (D. Del. Sept. 30, 201.5), report and recommendation adopted, 2016 WL 310724
(D. Del. Jan. 26, 2016); Mitchell, 2016 WL 4522172, at *3 (D. Del. Aug. 29, 2016), report and
recommendation adopted, 2016 WL 51_22668 (D. Del. Sept. 19, 2016); Denbow, 2017 WL
1199732, at *5 (D. Del. Mar. 30, 2017), report and recommendation adopted, 2017 WL 1427247
(D. Del. Apr. 19, 2017); Conner, 842 F. Supp. 2d at 801; Surre v. Foster Wheeler LLC, 831 F.
Supp. 2d 797, 801 (S.D.N.Y. 2011); Niemann v. McDonnell Douglas Corp., 721 F. Supp: 1019,
1030 (S.D. Ill. 1989); 0 'Neil v. Crane Co., 266 P.3d 987, 997-98 (Cal. 2012); Taylor v. Elliott

11

Turbomachinery Co., 90 Cal. Rptr. 3d 414, 429 (Cal. Ct. App. 2009); In re Asbestos Litig.
(Howton), C.A. No. NllC-03218 ASB, 2012 WL 1409011, at *1 (Del. Super. Ct. Apr. 2, 2012);
In re Asbestos Litig. (Wolfe), C.A. No. NlOC-08-258 ASB, 2012 WL 1415706, at *3-4 (Del.
Super. Ct. Feb. 28, 2012); Braaten v. Saberhagen Holdings, 198 P.3d 493, 498-99 (Wash.
2008); Simonetta v. Viad Corp., 197 P.3d 127, 134-35 (Wash. 2008). The 'bare metal defense'
is recognized when maritime law applies. Carper v. Gen. Elec. Co., No. 2:12-06164-ER, 2014
WL 6736205, at *1 (E.D. Pa. Sept. 4, 2014) (citing Conner, 842 F. Supp. 2d at 801).

D. 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. 7 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.

7 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).

12

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. Caterpillar Inc.
The court recommends granting Caterpillar's motion for summary judgment, because

Plaintiff has failed to show that a material issue of fact exists as to whether Caterpillar's product
was a substantial factor in causing Mr. Charlevoix's injuries under Michigan law. Brisboy, 418
N.W.2d. at 653.
Plaintiff alleges that Mr. Charlevoix was exposed to asbestos-containing products used in
connection with Caterpillar equipment during his time at M.J. Electric and Charlevoix Logging.
(D.I. 171) Mr. Charlevoix stated that he performed maintenance work on eight Caterpillar
bulldozers during his time at M.J. Electric: four D3s, two D4s, one D6, and one D8. (D.I. 155,
Ex. 1at140:2-141:15) Mr. Charlevoix explained that the maintenance primarily involved fixing
hydraulic leaks. (Id. at 145:7-15) Mr. Charlevoix stated that he did not associate asbestos
exposure with his work at M.J. Electric. (Id. at 157:22-158:4) Mr. Milligan also could not recall
any specific maintenance or repairs that Mr. Charlevoix performed on any vehicles at M.J.
Electric. (D.I. 155, Ex. 3 at 34:21-23)
During his time at Charlevoix Logging, Mr. Charlevoix also used Caterpillar equipment:
a Caterpillar D4 tractor, a Caterpillar 12 grader, and three Fabtek Harvesters. (D.I. 155 at 4) Mr.
Charlevoix stated that he replaced the tracks on the D4 tractor. (D.I. 155, Ex. 1 at 160:19-21)
Mr. Charlevoix did not believe he was exposed to asbestos when replacing the tracks. (Id. at
160:22-161:5) Mr. Milligan recalled Mr. Charlevoix performing two radiator jobs, one

13

hydraulic pump job, and one blade repair job on the D4 tractor. (D.I. 155, Ex. 3 at 44:18-22)
Mr. Milligan did not know whether Mr. Charlevoix was exposed to asbestos during this work.
(Id. at 45:12-15) Mr. Charlevoix stated that he replaced the injectors and would "tighten up

knuckles and front ends" on the Caterpillar 12 grader. (D.I. 115, Ex. 1 at 118:17-19) Mr.
Charlevoix stated that the repairs on the grader did not involve asbestos. (Id. at 119:4-5) Mr.
Charlevoix also cleaned the brakes on the grader with Mr. Milligan. (Id. at 166:7-25) Mr.
Milligan did not know whether Mr. Charlevoix was exposed to asbestos during the brake work.
(D.I. 115, Ex. 3 at 105:13-15) Mr. Charlevoix replaced water pumps on one harvester. (D.I.
115, Ex. 1at171:21-24) Mr. Charlevoix did not know whether he was exposed to asbestos
when replacing the water pump. (Id. at 172:2--4) Mr. Milligan recalled Mr. Charlevoix working
on hydraulic systems, a carrier, and final drives in the field, but Mr. Milligan did not know
whether this work exposed Mr. Charlevoix to asbestos. (D.I. 115, Ex. 3 at 64:3-12) Mr.
Milligan states that he removed gaskets from engines at M.J. Electric. (D.I. 171, Ex. 4 at 182:24183:16) Mr. Milligan explained that he would use wire brushes to remove a gasket. (Id.) Mr.
Milligan also explained that he performed brake work at Charlevoix Logging. (Id. at 185: 1-7)
Plaintiff relies largely on the testimony of Eugene Sweeney, a Caterpillar corporate
representative, in asserting Caterpillar used asbestos-containing components. (D.I. 117, Ex. 5)
Sweeney states that gaskets used in Caterpillar equipment from 1960 to the 1980s sometimes
contained asbestos. (D.I. 171, Ex. 5 at 18:18-19:3) Sweeney also states that Caterpillar sold
replacement gaskets for its equipment. (D.I. 171, Ex. 5 at 45 :4-6) Plaintiff also cites to a
Caterpillar Service Magazine which shows that Caterpillar sold tools designed for asbestos
removal. (D.I. 171, Ex. 19) Plaintiff further cites to the deposition of Robert Niemeier, an
employee of Caterpillar for twenty-five years, in which he states that Caterpillar continued to sell

14

asbestos-containing products, without any health instructions, until 1984. (D.I. 171, Ex. 14 at
33:12-16)
However, Plaintiff's evidence is not enough to establish exposure to an asbestoscontaining Caterpillar product. The depositions of Sweeney and Niemeier, and the Caterpillar
Service Magazine, show that Caterpillar sometimes used asbestos-containing products for its
equipment, but it is not enough to show that Mr. Charlevoix was exposed to asbestos.
Additionally, Niemeier's testimony addresses marine diesel engines. (D.I. 171, Ex. 5 at 50:14)
Neither Mr. Charlevoix nor Mr. Milligan identified marine diesel engines. (D.I. 184 at 1) Mr.
Milligan's testimony also does not establish that Mr. Charlevoix was exposed to asbestos during
his work at M.J. Electric or Charlevoix Logging.
Plaintiff has shown that Mr. Charlevoix worked with Caterpillar products, but has not
shown that he was exposed to an asbestos-containing Caterpillar product. Even with the facts
viewed in the light most favorable to Plaintiff, generalities and speculation do not create a
dispute of material fact. Walkup v. Air & Liquid Sys. Corp., 2014 WL 2514353, at *6 (D. Del.
June 4, 2014), report and recommendation adopted, 2014 WL 4447568 (D. Del. Sept. 8, 2014).
"While all reasonable inferences must be drawn in favor of the non-movant, the nonmoving
party cannot create a genuine issue of material fact through mere speculation or the building of
inference upon inference. Instead, inferences must be supported by facts in the record, not by
speculation or conjecture." Id (citing Leonard v. Stemtech Health Scis., Inc., 2011 WL
6046701, at *8 (D. Del. Dec. 5, 2011), report and recommendation adopted, 2012 WL 1133185
(D. Del. Mar. 28, 2012)).
Plaintiff has not submitted evidence indicating that exposure to a Caterpillar product was
a substantial factor in causing Mr. Charlevoix's alleged injuries under Michigan law. Brisboy,

15

418 N.W.2d. at 653. Consequently, the court recommends granting Caterpillar's motion for
summary judgment.

b. VIAD/Griscom-Russell8
The court recommends granting VIAD' s motion for summary judgment because Plaintiff
has failed to show that a material issue of fact exists as to whether VIAD' s product was a
substantial factor in causing Mr. Charlevoix's injuries under maritime law. See Lindstrom, 424
F.3d at 492.
Plaintiff alleges that Mr. Charlevoix was exposed to asbestos-containing products used in
connection with Griscom-Russell evaporators while serving aboard the USS Valley Forge. (D.I.
175) Plaintiff relies on the depositions of Mr. Kimble and Mr. Charlevoix regarding Mr.
Charlevoix's exposure to asbestos. (D.I. 175) Plaintiff also relies on the opinions of Arnold
Moore, an engineer. (Id.)
Mr. Charlevoix was assigned to the evaporator room aboard the USS Valley Forge. (D.I.
159 at 2) It is undisputed that there were Griscom-Russell evaporators on the USS Valley Forge.
(D.I. 175, Ex. 4) When performing maintenance on the evaporators, Mr. Charlevoix was either
"shocking or spinning" the tubes, or removing scale buildup. (D.I. 150, Ex. A at 69:7-72:18)
Mr. Charlevoix did not believe cleaning the tubes exposed him to asbestos. (D.I. 159, Ex.Bat
99:6-10) However, Mr. Charlevoix stated that he was exposed to asbestos when removing the
end caps to tighten the tubes. (D.I. 175, Ex. 7 at 76:5-14) Mr. Kimble also stated that he

8

Plaintiff has failed to show that a material issue of fact exists as to whether Mr. Charlevoix was
exposed to asbestos from products manufactured or supplied by Griscom-Russell aboard the USS
Valley Forge. As such, the court makes no recommendations as to whether VIAD has successor
liability for claims arising from Griscom-Russell products.
16

believed Mr. Charlevoix would have been exposed to asbestos from "asbestos lines running
through the evaporators." (D.I. 175, Ex. 8 at 107:9-25)
Nonetheless, Mr. Charlevoix and Mr. Kimble's depositions are not enough to establish
exposure to an asbestos-containing Griscom-Russell product. Mr. Charlevoix and Mr. Kimble
both state that Mr. Charlevoix was exposed to asbestos while performing maintenance on the
evaporators, however, the record does not provide information to infer that the materials were
manufactured by Griscom-Russell. (See D.I. 175) Mr. Charlevoix did not know who
manufactured the external insulation used with the evaporators. (D.I. 159, Ex. A at 82:21-83:2)
Moreover, there is no evidence of record to support whether the insulation was original to the
installation of the evaporators. The USS Valley Forge was fifteen years old when Mr.
Charlevoix began his service. (D.I. 159 at 5) Additionally, the USS Valley Forge underwent
four overhauls before Mr. Charlevoix's service began. (Id) Mr. Kimble stated that he did not
know the maintenance history of the evaporators located on the USS Valley Forge. (D.I. 159, Ex.
Cat 55:9-14) Mr. Charlevoix also stated that he did not believe the gaskets or packing were
original to the evaporators. (D.I. 159, Ex. A at 63:19-25) Even with the facts viewed in the light
most favorable to Plaintiff, generalities and speculation do not create a dispute of material fact.

Walkup, 2014 WL 2514353, at *6 (D. Del. June 4, 2014), report and recommendation adopted,
2014 WL 4447568 (D. Del. Sept. 8, 2014). Although Griscom-Russell product identification
aboard the USS Valley Forge is established, the evidence in the record fails to create a material
issue of fact concerning whether Mr. Charlevoix was exposed to an asbestos-containing product
manufactured by Griscom-Russell. "While all reasonable inferences must be drawn in favor of
the non-movant, the nonmoving party cannot create a genuine issue of material fact through
mere speculation or the building of inference upon inference. Instead, inferences must be

17

supported by facts in the record, not by speculation or conjecture." Walkup, 2014 WL 2514353,
at *6 (D. Del. June 4, 2014), report and recommendation adopted, 2014 WL 4447568 (D. Del.
Sept. 8, 2014) (citing Leonard v. Stemtech Health Scis., Inc., 2011 WL 6046701, at *8 (D. Del.
Dec. 5, 2011), report and recommendation adopted, 2012 WL 1133185 (D. Del. Mar. 28;
2012)).
Plaintiff further argues that under Quirin v. Lorillard Tobacco Co., Griscom-Russell is
responsible for the effects of any exposure relating to its product, whether from original or
replacement parts, regardless of the manufacturer. 17 F. Supp. 3d 760, 769-70 (N.D. Ill. 2014).
Thus, Plaintiff contends that the bare metal defense does not apply because Griscom-Russell
specified the use of asbestos gaskets for its evaporators on the USS Valley Forge. (D.I. 175 at 8;
D.I. 175, Exs. 4, 9) In support of this assertion, Plaintiff cites to the opinions of Arnold Moore.
(D.I. 175 at 6) Moore states that during the 1960s, much of the machinery and equipment aboard
Navy ships was insulated with components that contained asbestos. (D.I. 175, Ex. 3 at 5) Moore
further states that evaporators were insulated with asbestos felt. (Id. at 12)
Application of the bare metal defense warrants summary judgment in VIAD's favor,
because Plaintiff fails to show that a material issue of fact exists as to whether Griscom-Russell
provided the insulation to be used with its evaporators aboard the USS Valley Forge. VIAD cites
to the declaration of Charles Cushing, a naval architect and marine engineer, who states that
Griscom-Russell did not manufacture gasket material. (D.I. 159, Ex. D at if 8) Cushing states
that any replacement gasket material would have come from Navy Ship Stores, and would not
have been manufactured by Griscom-Russell. 9 (Id.) Cushing also states that to supply asbestos

9

Mr. Charlevoix's testimony concerning gaskets related to Griscom-Russell equipment indicates
that the only gaskets he encountered were made of rubber. (D.I. 159, Ex. A at 249:25-250:1)
18

gasket material to the Navy, a company had to be on the Qualified Products List, and GriscomRussell was not listed. (Id) Further, Moore's declaration does not establish that GriscomRussell supplied the asbestos materials used with its evaporators. Lastly, VIAD states that it had
nothing to do with the external insulation placed on its evaporators. (D .I. 181 at 4)
Moreover, the court has previously declined to follow Quirin, and determined the weight
of authority favors the bare metal defense. 10 Conner, 842 F. Supp. 2d at 794; see Lindstrom, 424
F.3d at 495; Denbow, 2017 WL 1199732, at *5 (D. Del. Mar. 30, 2017), report and

recommendation adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017); Mitchell, 2016 WL
4522172, at *3 (D. Del. Aug. 29, 2016), report and recommendation adopted, 2016 WL
5122668 (D. Del. Sept. 19, 2016); Malone, 2016 WL 4522164, at *5 (D. Del. Aug. 29, 2016),

·report and recommendation adopted, 2016 WL 5339665 (D. Del. Sept. 22, 2016); Dumas, 2015
WL 5766460, at *8 (D. Del. Sept. 30, 2015), report and recommendation adopted, 2016 WL
310724 (D. Del. Jan. 26, 2016); Surre v. Foster Wheeler LLC, 831 F. Supp. 2d 797, 801
(S.D.N.Y. 2011); Niemann v. McDonnell Douglas Corp., 721 F. Supp. 1019, 1030 (S.D. Ill.
1989); O'Neil v. Crane Co., 266 P.3d 987, 997-98 (Cal. 2012); Taylor v. Elliot Turbomachinery

Co., 90 Cal. Rptr. 3d 414, 429 (Cal. Ct. App. 2009); Jn re Asbestos Litig. (Howton), C.A. No.
Nl lC-03218 ASB, 2012 WL 1409011, at *1 (Del. Super. Ct. Apr. 2, 2012); In re Asbestos Litig.

(Wolfe), C.A. No. NlOC-08-258 ASB, 2012 WL 1415706, at *3-4 (Del. Super. Ct. Feb. 28,
2012); Braaten v. Saberhagen Holdings, 198 P.3d 493, 498-99 (Wash. 2008); Simonetta v. Viad

Corp., 197 P.3d 127, 134-35 (Wash. 2008).
Plaintiff has failed to show that a material issue of fact exists as to whether Mr.
Charlevoix was exposed to asbestos from products manufactured or supplied by Griscom-Russell

10

See § III(C), supra.
19

aboard the USS Valley Forge. Consequently, the court recommends granting VIAD's motion for
summary judgment under maritime law. See Lindstrom, 424 F.3d at 492.

c. Warren Pumps
The court recommends granting Warren Pumps' motion for summary judgment because
Plaintiff has failed to show that a material issue of fact exists as to whether Warren Pumps'
product was a substantial factor in causing Mr. Charlevoix's injuries under maritime law. See

Lindstrom, 424 F.3d at 492.
Plaintiff alleges that Mr. Charlevoix was exposed to asbestos-containing products used in
conjunction with pumps manufactured by Warren Pumps. (D.I. 177) Specifically, Plaintiff
argues that the pumps incorporated asbestos-containing packing and gaskets. (Id. at 9) Plaintiff
relies on the depositions of Mr. Charlevoix and Mr. Kimble to establish Mr. Charlevoix's work
history on the pumps in the evaporator room. (D.I. 177) Plaintiff also relies on the opinions of
Arnold Moore, an engineer. (D.I. 177 at 5)
Mr. Charlevoix worked as a boiler tender maintaining pumps in the evaporator room
during his service aboard the USS Valley Forge. (D.I. 165 at 3) It is undisputed that there were
pumps manufactured by Warren Pumps in the evaporator room. (D.I. 177, Ex. 4) Mr.
Charlevoix stated that he worked on four pumps in the evaporator room. (D .I. 165, Ex. B at
74:6-9) Mr. Kimble remembered Mr. Charlevoix replacing the impeller on the brine overboard
pumps six times, which involved removing the bolts and external flange gaskets. (D.I. 165, Ex. C
at 76:19-77:18) Mr. Kimble explained that the process involved cleaning flanges, cutting new
gaskets, and putting a new gasket on the impeller. (D.I. 177, Ex. 7 at 77:5-18) Mr. Charlevoix
stated the top of the pump was covered in asbestos. (D.I. 177, Ex. 5 at 76:3--4) However, Mr.
Charlevoix did not know whether he was exposed to asbestos from his work on the pumps. (Id.

20

at 75:24-76:1) Mr. Charlevoix also stated the external insulation on the pumps contained
asbestos, but Mr. Charlevoix did not know who manufactured the external insulation. (Id. at
82:21-83:6) However, Mr. Charlevoix later stated the external insulation was on the motor, not
the pump. (D.I. 193, Ex.Bat 248:5-17)
The depositions of Mr. Charlevoix and Mr. Kimble are not enough to establish that
Warren Pumps' products were a substantial factor in causing Mr. Charlevoix's injuries. Mr.
Charlevoix and Mr. Kimble identified asbestos-containing components, but did not state the
pumps themselves were asbestos-containing. (D.I. 193 at 7) Mr. Kimble did not recall the
manufacturer of the gaskets. (D.I. 165, Ex.Cat 78:10-15) Moreover, Mr. Charlevoix stated that
he did not associate gaskets with the pumps. (D.I. 165, Ex.Bat 242:17-24) There is also no
evidence of record concerning whether the insulation on the pumps were original to the pumps'
installation, in light of the many overhauls the USS Valley Forge underwent before Mr.
Charlevoix's service began. (D.I. 193 at 8) Further, Mr. Charlevoix stated that he worked on one
pump five times, and the other pumps only once or twice. (D.I. 165, Ex.Bat 73:12-74:15) Even
with the facts viewed in the light most favorable to Plaintiff, generalities and speculation do not
create a dispute of material fact. Walkup, 2014 WL 2514353, at *6 (D. Del. June 4, 2014),

report and recommendation adopted, 2014 WL 4447568 (D. Del. Sept. 8, 2014). Although
Warren Pumps product identification aboard the USS Valley Forge is established, the evidence
in the record fails to create a material issue of fact concerning the substantial exposure
requirement. "While all reasonable inferences must be drawn in favor of the non-movant, the
nonmoving party cannot create a genuine issue of material fact through mere speculation or the
building of inference upon inference. Instead, inferences must be supported by facts in the
record, not by speculation or conjecture." Walkup, 2014 WL 2514353, at *6 (D. Del. June 4,

21

2014), report and recommendation adopted, 2014 WL 4447568 (D. Del. Sept. 8, 2014) (citing

Leonardv. Stemtech Health Scis., Inc., 2011WL6046701, at *8 (D. Del. Dec. 5, 2011), report
and recommendation adopted, 2012 WL 1133185 (D. Del. Mar. 28, 2012)).
Plaintiff further argues that under Quirin, Warren Pumps is responsible for the effects of
any exposure relating to its products, whether from original or replacement parts, regardless of
the manufacturer. 17 F. Supp. 3d at 769-70. Thus, Plaintiff contends that the bare metal defense
does not apply because Warren Pumps specified the use of asbestos-containing packing and
gaskets with its pumps. (D .I. 177 at 18-21) In support of this assertion, Plaintiff cites to Warren
Pumps manufacturer plans, the Warren Pumps Instruction Book, and Navy specifications. (D.I.
177, Exs. 2, 4, 8) Plaintiff states the documents establish the pumps aboard the USS Valley
Forge used asbestos-containing components. (D.I. 177 at 8-10) Plaintiff also cites to the
declaration of Arnold Moore. (D.I. 177 at 8-10) Moore states that Warren Pumps used
insulating material that contained asbestos on its pumps. (D.I. 177, Ex. 3 at 10-11) Further,
Plaintiff cites to the testimony of Warren Pumps' corporate representative, Roland Doktor, in
which he states that Warren Pumps sold pumps containing asbestos gaskets to the Navy. (D.L
177, Ex. 9)
Application of the bare metal defense warrants summary judgment in.Warren Pumps'
favor, because Plaintiff fails to show that a material issue of fact exists as to whether Mr.
Charlevoix was exposed to an asbestos-product manufactured by Warren Pumps. The Warren
Pumps manufacturer plans, the Warren Pumps Instruction Book, the Navy specifications, and
Moore's declaration establish that pumps manufactured by Warren Pumps were located in the
evaporator and fire room, but the documents do not establish that Mr. Charlevoix was exposed to

22

asbestos from a product Warren Pumps manufactured. 11 (D.I. 177, Exs. 2, 3, 4, 8) Additionally,
Doktor's testimony does not establish that Mr. Charlevoix worked on an asbestos-containing
pump manufactured by Warren Pumps. (D.I. 177, Ex. 9, 10)
Again, I recommend that the court decline to follow Quirin. See§ IV(b), supra. As
such, the bare metal defense forms the basis for recommending dismissal of Plaintiffs claims
against Warren Pumps in the instant case. Malone, 2016 WL 4522164, at *5 (D. Del. Aug. 29,
2016), report and recommendation adopted, 2016 WL 5339665 (D. Del. Sept. 22, 2016);
Dumas, 2015 WL 5766460 at *8 (D. Del. Sept. 30, 2015), report and recommendation adopted,
2016 WL 310724 (D. Del. Jan. 26, 2016); Mitchell, 2016 WL 4522172, at *3 (D. Del. Aug. 29,
2016), report and recommendation adopted, 2016 WL 512266.8 (D. Del. Sept. 19, 2016);
Denbow, 2017 WL 1199732, at *5 (D. Del. Mar. 30, 2017), report and recommendation
adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017).
Plaintiff has failed to show that a material issue of fact exists as to whether Mr.
Charlevoix was exposed to asbestos from products manufactured or supplied by Warren Pumps.
Consequently, the court recommends granting Warren Pumps' motion for summary judgment
under maritime law. See Lindstrom, 424 F.3d at 492.
d. Crane Co.

The court recommends granting Crane's motion for summary judgment because Plaintiff
has failed to show that a material issue of fact exists as to whether Crane's product was a

11

Warren Pumps acknowledges that a single asbestos-containing internal component (a 1/64
inch gasket) is identified on a drawing of a fresh water pump and an evaporator feed pump. (D.I.
177, Ex. 4) However, Mr. Charlevoix did not state that he worked with this internal component
in his testimony.
23

substantial factor in causing Mr. Charlevoix's injuries under maritime law. See Lindstrom, 424
F.3d at 492.
Plaintiff alleges that Mr. Charlevoix was exposed to asbestos-containing products used in
connection with Crane valves while serving aboard the USS Valley Forge. (D.I. 173) Plaintiff
argues Crane specified the use of asbestos-containing packing and gaskets with its valves. (D.I.
173 at 7-8) Plaintiff relies largely on Mr. Kimble's testimony regarding Mr. Charlevoix's work
history. (D.I. 173) However, Mr. Kimble's testimony is not enough to establish causation. Mr.
Kimble explained that Mr. Charlevoix would have to work on a valve ifthere was a leak. (D.I.
173, Ex. 6 at 195:15-19) When a leak occurred, Mr. Charlevoix would have to repack the valve.
(Id. at 195:23-196:1) Mr. Kimble explained that a sharpened tool with a hook on the end was

used to pull out the packing. (Id. at 184:1-14) Mr. Kimble could not remember the name of the
packing used. (Id. at 185:7-14) Mr. Kimble also did not know the manufacturer of the steam
valves or the C-valve. (Id. at 67:11-22) Mr. Kimble stated the steam valves did not require dayto-day maintenance. (Id at 85:6-12) Mr. Charlevoix did not associate any name with the valves.
(D.I. 173, Ex. 5 at 102:20-22). Mr. Charlevoix also stated the valves were not insulated. (Id. at
102:23-25) Mr. Charlevoix stated there were gaskets located on each side of the valves, but that
he never removed them. (Id. at 103: 1-5)
Plaintiff counters that circumstantial evidence establishes that Mr. Charlevoix was
exposed to asbestos from Crane valv~s. (D.I. 173) First, Plaintiff states that Crane drawings
show that several valves on the USS Valley Forge were manufactured by Crane. (D.I. 173, Ex. 4)
Secondly, Plaintiff cites to the declaration of Arnold Moore, an engineer, who states that Crane
manufactured and provided valves for the USS Valley Forge, and specified the use of asbestoscontaining packing to seal valve stems. (D.I. 173, Ex. 3 at 15) Plaintiff also relies on the

24

deposition of William McLean, a corporate representative of Crane, who testified that Crane
used asbestos-containing components with its valves, and that it was foreseeable that parts of the
valve would need to be replaced. (D.I. 173, Ex. 14 at 15:17-21; 51 :6-15)
Contrary to Plaintiffs assertion, the evidence is insufficient to withstand a motion for
summary judgment, even when viewed in the light most favorable to Plaintiff. The documents
produced by Plaintiff, and the declaration of Moore, show that Crane valves were located in the
evaporator room, but they do nothing more than show the presence of Crane valves in the
evaporator room-they do not establish exposure. Moreover, McLean's testimony does not
. establish that the valves on the USS Valley Forge contained asbestos packing manufactured by
Crane. Thus, Plaintiff has not produced evidence sufficient to create a genuine issue of fact as to
whether Mr. Charlevoix was substantially exposed to respirable asbestos dust from a Crane
product. "While all reasonable inferences must be drawn in favor of the non-movant, the
nonmoving party cannot create a genuine issue of material fact through mere speculation or the
building of inference upon inference. Instead, inferences must be supported by facts in the
record, not by speculation or conjecture." Walkup, 2014 WL 2514353, at *6 (D. Del. June 4,
2014), report and recommendation adopted, 2014 WL 4447568 (D. Del. Sept. 8, 2014) (citing
Leonard, 2011WL6046701, at *8 (D. Del. Dec. 5, 2011), report and recommendation adopted,
2012 WL 1133185 (D. Del. Mar. 28, 2012)).
Plaintiff further argues that under Quirin, Crane is responsible for the effects of any
exposure relating to its products, whether from original or replacement parts, regardless of the
manufacturer. 17 F. Supp. 3d at 769-70. Thus, Plaintiff contends that the bare metal defense
does not apply because Crane manufactured valves designed to be used with asbestos-containing
packing and gaskets. (D.I. 173 at 15) ·In support of this assertion, Plaintiff cites to a document

25

produced by Crane, dated October 1, 1942, that lists materials for the USS Valley Forge, which
refers tq packing that is "coil form, asbestos and wire jacket." (D.I. 173, Ex. 7) Plaintiff also
relies on Crane's objections and responses to interrogatories, filed in 2011, from a lawsuit in the
state of New York. (D.I. 173, Ex. 8) In a response, Crane states, "Certain of the valves had
enclosed within their metal structure asbestos-containing gaskets, packing, or discs. Crane Co.
did not manufacture the asbestos-containing components that may have been encapsulated within
the valves, but purchased them from other companies." (D.I. 173, Ex. 8 at 12) Plaintiff also
highlights that Crane sold asbestos-containing packing and gaskets in its 1952 piping catalog
(D.I. 173, Ex. 9), and that Crane was "acknowledged" in a 1946 Navy manual, entitled "Navy
Machinery," which states asbestos insulation should be used for high temperatures. (D.I. 173,
Ex. 10) Additionally, Plaintiff emphasizes that Crane's purchase orders show that it sold
asbestos-containing packing and gasket replacement parts to the Navy. (D.I. 173, Exs. 11, 12)
Plaintiff highlights that in 1943, Crane created a manual on how to remove packing. (D.I. 173,
Ex. 13 at 26) Lastly, Plaintiff relies on the testimony of McLean, in which he states Crane sold
replacement gaskets and packing. (D.I. 173, Ex. 14 at 50:23-51 :5)
Nonetheless, application of the bare metal defense warrants summary judgment in
Crane's favor, because Plaintiff fails to show that a material issue of fact exists as to whether
I

Crane manufactured and supplied asbestos-containing valves for the USS Valley Forge. The
drawings depicting the valves on the USS Valley Forge, and the list of materials within the
drawings, only establish that Crane valves were on the USS Valley Forge, and that at the time of
installation, Crane listed asbestos packing as a type of insulation. (D.I. 173, Ex. 4, 7) The
drawings and material list do not establish that Crane supplied asbestos-containing valves.
Moreover, the material list is dated October 1, 1942, roughly twenty years before Mr. Charlevoix

26

boarded the USS Valley Forge. (D.I. 173, Ex. 7) Plaintiff states that the testimony of Mr.
Kimble, Mr. Charlevoix, and the testimony of McLean, establish that replacing the packing was
expected and a regular part of maintenance of the valves. (D.I. 173 at 11-12) Thus, there is no
evidence of record to support whether any packing removed from the Crane valves from 1961 to
1964, was original to installation of the valves. Plaintiff also admits that the purchase orders are
not specific to the USS Valley Forge. (D.I. 173 at 11) Therefore, the orders do not establish that
Crane sold replacement asbestos-containing packing and gaskets for the USS Valley Forge.
Moreover, the 2011 interrogatory response, the 1952 piping catalog, the 1946 Navy Manual, the
1943 "packing removal manual," and McLean's testimony, do not establish that Crane installed
asbestos-containing valves aboard the USS Valley Forge. (D.I. 173, Exs. 8, 9, 10, 13, 14)
Crane asserts there is no evidence that it manufactured or sold any asbestos-containing
product to be used with its valves. (D.I. 180 at 1) Crane emphasizes that its corporate
representative, Anthony Pantaleoni, testified that Crane valves could be used with asbestos and
non-asbestos packing, and did not require any insulation to operate properly. (D.I. 151, Ex. D at
~~

3, 4) Pantaleoni further states the decision to insulate the valves was made by the customer,

not Crane. (Id.)
Again, I recommend that the court decline to follow Quirin. See § IV (b ), supra. As
such, the bare metal defense forms the basis for recommending dismissal of Plaintiffs claims
against Crane in the instant case. Malone, 2016 WL 4522164, at *5 (D. Del. Aug. 29, 2016),
report and recommendation adopted, 2016 WL 5339665 (D. Del. Sept. 22, 2016); Dumas, 2015
WL 5766460 at *8 (D. Del. Sept. 30, 2015), report and recommendation adopted, 2016 WL
310724 (D. Del. Jan. 26, 2016); Mitchell, 2016 WL 4522172, at *3 (D. Del. Aug. 29, 2016),
report and recommendation adopted, 2016 WL 5122668 (D. Del. Sept. 19, 2016); Denbow, 2017

27

WL 1199732, at *5 (D. Del. Mar. 30, 2017), report and recommendation adopted, 2017 WL
1427247 (D. Del. Apr. 19, 2017).
Plaintiff has failed to show that a material issue of fact exists as to whether Mr.
Charlevoix was exposed to asbestos from products manufactured or supplied by Crane.
Consequently, the court recommends granting Crane's motion for summary judgment under
maritime law. See Lindstrom, 424 F.3d at 492.

e. Ford Motor Company
The court recommends granting Ford's motion for summary judgment, because Plaintiff
has failed to show that a material issue of fact exists as to whether Ford's product was a
substantial factor in causing Mr. Charlevoix's injuries under Michigan law. Brisboy, 418
N.W.2d. at 653.
Plaintiff alleges that Mr. Charlevoix was exposed to asbestos-containing component parts
used in Ford vehicles. (D.I. 216) Plaintiff relies on the depositions of Mr. Charlevoix and Mr.
Milligan regarding Mr. Charlevoix's work history with Ford products. (Id)
Mr. Charlevoix's father had a Ford tractor when Mr. Charlevoix was growing up. (D.I.
161, Ex.Cat 27:1-10) Mr. Charlevoix said his father got replacement parts from a Ford dealer.
(D.I. 216, Ex. 1 at 28:5-7) Mr. Charlevoix helped his father with repairs,_ but could not
remember any specific work that he performed himself. (D .I. 161, Ex. B at 193: 14-19) .In the
late 1950s, Mr. Charlevoix helped his father with maintenance work at Foster City Garage. (D.I.
216, Ex. 1 at 28:16-29:19) Mr. Charlevoix said his father worked on clutches, brakes, and
engines. (Id at 29:3-12) Mr. Charlevoix identified Ford as a type of vehicle worked on at Foster
City Garage. (Id at 29:20-24) However, Mr. Charlevoix could not remember a specific vehicle
that he worked on himself. (D.I. 161, Ex.Bat 28:2-4) Mr. Milligan also could not remember a

28

specific vehicle that Mr. Charlevoix worked on at Foster City Garage. (D.I. 161, Ex. D at 29:24)

Mr. Charlevoix worked at M.J. Electric from 1966 to 1978 as a power line contractor.
(D.I. 216, Ex. 1 at 33:5-20) Mr. Charlevoix stated that for roughly three months out of the year
he would help in the maintenance shop doing repairs. (Id. at 41 :10--42:11) However, Mr.
Charlevoix could not remember any specific work he performed in the maintenance shop. (D.I.
161, Ex.Bat 94:13-16) Mr. Charlevoix stated that M.J. Electric had about two hundred Ford
pickups. (D.I. 216, Ex. 1 at 37:25-38:2) He stated the models of the Ford pickups were 150s,
250s and 350s. (D.I. 161, Ex.Bat 196:11-14) He did not know the maintenance history of the
Ford pickups. (Id. at 196:24-197:1) Mr. Charlevoix explained that M.J. Electric would obtain
replacement parts from local dealers, but did not name any specific parts. (D.I. 216, Ex. 1 at
45:8-16; 52:7-14) Mr. Charlevoix stated that he saw mechanics at M.J. Electric work on brakes,
engines, and perform tune-ups on the Ford pickups. (Id. at 46: 15-29) He said that he probably
assisted with gasket work on the pickups. (Id. at 46:21-22; D.I. 161, Ex.Bat 197:19-21) Mr.
Charlevoix stated that he saw mechanics use air hoses to clean out the area where brakes were
installed, and the air came out dusty and muddy. (D.I. 216, Ex. 1 at 47:15-23) Mr. Charlevoix
stated M.J. Electric also had two Ford dump trucks. (D.I. 161, Ex.Bat 201 :10-17) He stated
that he never performed any maintenance on the dump trucks. (Id. at 202:2-11) Mr. Milligan
could not recall any specific maintenance that Mr. Charlevoix performed at M.J. Electric. (D.I.
216, Ex. 3 at 34:21-23) Mr. Milligan also did not know if Mr. Charlevoix's work at M.J.
Electric exposed him to asbestos. (Id. at 39:8-10)
Mr. Charlevoix started working full time at Charlevoix Logging in 1978. (D.I. 216, Ex. 1
at 53: 17-19) Mr. Charlevoix stated that Charlevoix Logging had ten Ford pickup trucks. (D.I.

29

161, Ex.Bat 114:7-16) The models of the pickups were 150s and 250s. (Id. at 213.:7-12) Mr.
Milligan stated brake work was performed on the pickup trucks, but did not know who
manufactured the brakes that were removed or installed on the pickup trucks. (D.I. 216, Ex. 3 at
144:12-145:9) Mr. Milligan stated that Mr. Charlevoix had a Ford logging truck when Mr.
Milligan began working at Charlevoix Logging in 1979. (D.I. 216, Ex. 3 at 42:15-17) Mr.
- Milligan stated that Mr. Charlevoix performed gasket, transmission, and clutch work on the Ford
logging truck. (D.I. 216, Ex. 3 at 129:1-134:2) Mr. Milligan did not know the manufacturer of
the gaskets or the clutches removed or installed on the logging truck. (Id.) Mr. Milligan did not
know whether Mr. Charlevoix's maintenance work on the logging truck exposed him to asbestos.
(Id. at 44:13-16) Charlevoix Logging also had two Gafner Iron Mules. (D.I. 161, Ex.Bat
203: 17-19)

Mr~

Charlevoix Said that he performed clutch work on the Iron Mules. (Id. at

203:23-24) Mr. Charlevoix stated that the first clutch he removed was manufactured by Ford.
(Id. at 206:25-207:4) He also stated that the gaskets removed from the Iron Mules were
manufactured by Ford. (Id. at 210:20-25) Mr. Milligan stated that Mr. Charlevoix was around
when repairs were done to the Iron Mules. (D.I. 216, Ex. 3 at 55:20-56:8) However, Mr.
Milligan did not know whether the work performed around Mr. Charlevoix exposed him to
asbestos. (Id. at 56:23-57:2) Charlevoix Logging also had one Ford dump truck. (D.I. 161, Ex.
Bat 218:1-2) Mr. Charlevoix did not know the maintenance history of the dump truck. (Id. at
218:12-14) Mr. Charlevoix stated he performed clutch work on the dump truck twice in the
1990s. (Id. at 218:18-219:3) Mr. Charlevoix did not know the manufacturer of the clutches he
removed or installed. (Id. at 218:4-7) Mr. Charlevoix also performed gasket work on the dump
truck three times, but could not remember the manufacturer of the gaskets he removed or
installed. (Id. at 219:12-220:16) Mr. Milligan could not recall any specific work Mr. Charlevoix

30

performed on the dump truck. (D.I. 216, Ex. 3 at 59:19-22) Mr. Milligan also stated that Mr.
Charlevoix performed clutch and gasket work on Ford vehicles owned by family and friends.
(D.I. 216, Ex. 3 at 152: 16-19) However, Mr. Milligan could not recall the manufacturer of any
clutches or gaskets removed or installed by Mr. Charlevoix. (D.I. 216, Ex. 3 at 151:25-153:21)
The depositions of Mr. Charlevoix and Mr. Milligan are not enough to establish
causation. Neither Mr. Milligan nor Mr. Charlevoix could state whether any of the work Mr.
Charlevoix performed exposed him to asbestos. As such, the depositions do not create an issue
of material fact as to whether Mr. Charlevoix was exposed to asbestos from a Ford product.
Plaintiff counters that circumstantial evidence establishes that Mr. Charlevoix was
exposed to asbestos from Ford products. (D.I. 216) First, Plaintiff cites to Ford's responses to
interrogatories, filed in 2008, from a lawsuit in the state of California. (D.I. 216, Ex. 4) One
response states:
Ford manufactured and sold some vehicles that incorporated friction components
such as brake linings, brake pads, and clutch facings that were composed, in part,
of asbestos. Ford did not, however, manufacture the asbestos-containing friction
components that were used in its vehicles. Ford also sold replacement parts that
included asbestos-containing brake linings, brake pads and clutch facings to
franchised Ford dealers and authorized distributors in the United States. Ford did
not manufacture the asbestos-containing friction components that it sold as
replacement parts, but rather purchased those components from suppliers. Ford
believes asbestos-containing friction components were incorporated into its
vehicles since it began selling mass production vehicles in the early 1900s when
the business was acquired.
(D.I. 216, Ex. 4 at 3) Plaintiff also cites to Ford's responses to interrogatories from 1984, from a
lawsuit in the state of California, in which Ford stated "certain automotive parts, including brake
linings and clutch facings, have always contained asbestos." (D.I. 216, Ex. 5 at 8) Plaintiff
further relies on the depositions of Mark Taylor, a corporate representative of Ford, who testified
that most Ford brakes had asbestos components. (D.I. 216, Ex. 6 at 14-16) Plaintiff also cites to

31

the deposition of Taylor, and a Ford engineering document, in support of the assertion that Ford
incorporated asbestos gaskets into its vehicles. (D.I. 216, Ex. 8 at 18; D.I. 216, Ex. 9) Taylor
further states that Ford stopped using asbestos gaskets in 1980. (D.I. 216, Ex. 12 at 67) Plaintiff
also cites to an internal Ford memo from 1984, in which Ford was told samples of its insulating
materials contained significant amounts of asbestos. (D .I. 216, Ex. 10 at 1) Lastly, Plaintiff
asserts that Ford knew asbestos was harmful. Plaintiff cites to a 1973 Ford maintenance bulletin
that states "under no circumstances shall compressed air blowoff be used to clean brakes, brake
drums, clutches and associated components." (D.I. 216, Ex. 7) Additionally, Plaintiff cites to a
Ford interoffice memo recommending the use of a vacuum cleaner during the removal of gaskets
due to the dust created from the maintenance process. (D.I. 216, Ex. 11)
Contrary to Plaintiffs assertion, the circumstantial evidence is insufficient to withstand a
motion for summary judgment, even when viewed in the light most favorable to Plaintiff. The
documents produced by Plaintiff, and the deposition of Taylor, establish that asbestos-containing
components were sometimes incorporated into Ford products, but the documents do not establish
exposure. Furthermore, the evidence cited by Plaintiff does not establish that Ford manufactured
asbestos-components for its products. For example, Taylor agrees in a deposition that Ford did
not manufacture asbestos brakes, asbestos clutches, or asbestos gaskets. (D.I. 216, Ex. 6 at

P-

14) Additionally, the Ford interoffice memo cited by Plaintiff talks about "gaskets of concern"
regarding exposure to asbestos dust, however, the document does not list a gasket manufactured
by Ford. (D.I. 216, Ex. 11) Moreover, Ford's 2008 interrogatory response states that Ford did
not manufacture the asbestos-containing friction components. (D.I. 216, Ex. 4 at 3) Thus,
Plaintiff has not produced evidence sufficient to create a genuine issue of fact as to whether Mr.
Charlevoix was substantially exposed to respirable asbestos dust from a Ford product. See

32

Brisboy, 418 N.W.2d. at 653. "While all reasonable inferences must be drawn in favor of the
non-movant, the nonmoving party cannot create a genuine issue of material fact through mere
speculation or the building of inference upon inference. Instead, inferences must be supported
by facts in the record, not by speculation or conjecture." Walkup, 2014 WL 2514353, at *6 (D.
Del. June 4, 2014), report and recommendation adopted, 2014 WL 4447568 (D. Del. Sept. 8,
2014) (citing Leonard, 2011 WL 6046701, at *8 (D. Del. Dec. 5, 2011), report and

recommendation adopted, 2012 WL 1133185 (D. Del. Mar. 28, 2012)).
Plaintiff has not submitted evidence indicating that exposure to a Ford product was a
substantial factor in causing Mr. Charlevoix's alleged injuries under Michigan law. Brisboy, 418
N.W.2d. at 653. Consequently, the court recommends granting Ford's motion for summary
judgment.

V.

CONCLUSION
For the foregoing reasons, and as indicated in the chart infra, the court recommends

granting Defendants' motions for summary judgment.

Caterpillar Inc.

GRANTED

VIAD Corp.

GRANTED

Warren Pumps

GRANTED

Crane Co.

GRANTED

Ford Motor Company

GRANTED

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

33

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: August3J , 2017.

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