Mitchell et al v. Atwood & Morrill Co. et al
MEMORANDUM ORDER ADOPTING 94 REPORT AND RECOMMENDATIONS ; granting 70 Motion for Summary Judgment ; granting 72 Motion for Summary Judgment. Signed by Judge Sue L. Robinson on 1/9/2017. (nmfn)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JIMMY R. MITCHELL and CONNIE
) Civ. No. 15-958-SLR/SRF
ATWOOD & MORILL CO., et al.,
At Wilmington this
lf1h day of January, 2017, having reviewed the objections
filed by plaintiffs to the Report and Recommendation issued by Magistrate Judge Fallon
on September 16, 2016, as well as the response thereto submitted by defendant Foster
IT IS ORDERED that the Report and Recommendation (D.I. 94) is affirmed and
the objections (D. I. 97) overruled, for the reasons that follow:
1. Legal standard. A district judge is charged with conducting a de nova review
of a magistrate judge's report and recommendation to which specific, written objections
are made. 28 U.S.C. § 636(b)(1 ); see also Sample v. Diecks, 885 F.2d 1099, 1106 n.3
(3d Cir. 1989). The district judge may "accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(3). Although review is de nova, the district judge, in exercising her
sound discretion, is permitted to rely on the recommendation of the magistrate judge to
the extent she deems proper. United States v. Raddatz, 447 U.S. 667, 676-677 (1980);
Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
2. Background. Plaintiffs Jimmy and Connie Mitchell filed the above captioned
asbestos action in the Delaware Superior Court against multiple defendants, asserting
personal injury claims proximately caused by Mr. Mitchell's alleged exposure to
asbestos. (D.I. 1, ex. A) Defendant Foster Wheeler LLC removed the action to this
court and, after the pursuit of discovery, filed a motion for summary judgment. (D.I. 72)
Magistrate Judge Fallon has recommended that such motion be granted, finding that
plaintiffs had not identified evidence sufficient to create a genuine issue of material fact
"as to whether Foster Wheeler manufactured and distributed asbestos-containing boiler
components, from which Mr. Mitchell alleges exposure." (D.I. 94 at 11) Plaintiffs object
to the entry of summary judgment, arguing that the record, when viewed in the light
most favorable to them, supports an inference that Mr. Mitchell was exposed to
asbestos that was original to the boilers that he worked on while aboard the U.S.S.
Gridley, which boilers were manufactured by Foster Wheeler.
3. Analysis. No objection has been posed to the application of maritime law to
the instant asbestos claim. As such, plaintiffs at bar have the burden to demonstrate
that: (1) Mr. Mitchell was exposed to Foster Wheeler's product; (2) Foster Wheeler
manufactured or distributed the asbestos-containing product to which exposure is
alleged; and (3) such product was a substantial factor in causing the injury plaintiffs,
claim. See Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005);
Abbay v. Armstrong Int'/, Inc., 2012 WL 975837, at *1 n.1 (E.D. Pa. Feb. 29, 2012).
With respect to the third prong, "[i]n 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 of time." Id. (citing Stark v.
Armstrong World Indus., Inc., 21 F. Appx. 371, 385 (6th Cir. 2001). However, a 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).
4. The issue, therefore, is that of causation, and whether there is sufficient
evidence of such to warrant trial. There is no dispute that Mr. Mitchell was exposed to
the Foster Wheeler boilers. Mr. Mitchell testified that he worked with the boilers' burner
box and steam and sludge drums. The burner box was lined with a brick and mortar
mix that "had to" contain asbestos because of the high heat application. 1 (D. I. 97, ex. A
at 1931-32)2 The steam and sludge drums were covered with external insulation which,
again, "had to" contain asbestos "for the super heated steam that came through with
the super heat." (Id. at 1919, 1922-23) Finally, Mr. Mitchell testified that there was a
gasket on the door to the sludge drum that contained asbestos. (Id. at 1934; ex. B at
1989) Plaintiffs also provided an affidavit of a former Foster Wheeler employee, who
averred that in the 1950s, asbestos-containing insulation was used extensively on
Foster Wheeler boilers. (Id., ex. C)
5. Based on the above evidence, plaintiffs argue that the record contains
Mr. Mitchell neither installed nor replaced the mortar, but scraped off the mortar
to prepare for its replacement.
sufficient evidence to support a reasonable inference that Mr. Mitchell was more than
minimally exposed to asbestos-containing insulation or components when he worked on
the Foster Wheeler boilers aboard the U.S.S. Gridley. Defendants argue in response
that, without evidence relating to either the age of the boilers or the maintenance
schedules imposed by the Navy, there is no evidence that the particular insulation
products and components identified by Mr. Mitchell were actually manufactured by
Foster Wheeler (even assuming that they contained asbestos).
6. Although plaintiff cite to older district court cases for the proposition that
defendants should be held responsible for the intended and foreseeable use of
asbestos parts in their original products (D.I. 98 at 6-9), the Third Circuit more recently
has indicated otherwise, finding that plaintiffs in In re Asbestos Prods. Liab. Litig. (No.
VI), 837 F.3d 231 (3d Cir. Sept. 13, 2016), failed to proffer evidence that answered the
"crucial question of whether the original, asbestos-containing [components were]
present in the [boiler] during maintenance. Nor does it answer the question of whether,
if replacement [components were] present ... [they] were manufactured by" Foster
Wheeler. Id. at 237. 3
7. Conclusion. I see no error in Magistrate Judge Fallon's application of the
relevant law to the facts of record, nor in her conclusion that plaintiffs have proferred
insufficient evidence to create a genuine issue of material fact so as to preclude entry of
Although the above cited case was decided under Indiana law, Magistrate
Judge Fallon correctly concluded that the summary judgment standard for liability in an
asbestos matter under Indiana law, where the plaintiff "must provide evidence sufficient
to support an inference that he inhaled [a significant amount] of asbestos dust from the
defendant's product,'' is similar to the "substantial factor" standard under maritime law.
See id. at 236; Lindstrom, 424 F.3d at 492. (D.I. 94 at 12 n.7)
THEREFORE, IT IS FURTHER ORDERED that the summary judgment motions
filed by defendants Nash Engineering Co. (D.I. 70) 4 and Foster Wheeler LLC (D.I. 72)
IT IS FURTHER ORDERED that the Clerk of Court is hereby directed to enter
judgment in favor of defendants Nash Engineering Co. and Foster Wheeler LLC, and
Plaintiffs filed no objections to the recommended entry of summary judgment in
favor of defendant Nash Engineering Co.
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