Mitchell et al v. Atwood & Morrill Co. et al

Filing 91

REPORT AND RECOMMENDATIONS- granting 76 MOTION for Summary Judgment, 69 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 9/15/2016. Signed by Judge Sherry R. Fallon on 8/29/2016. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JIMMY R. MITCHELL AND
CONNIE MITCHELL, his wife
Plaintiffs,
v.

ATWOOD & MORILL CO., et al.,
Defendants.

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Civil Action No. 15-958-SLR-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
This Report and Recommendation is limited to two motions for summary judgment in

this asbestos-related personal injury action. The motions were filed by Defendants Atwood &
Morrill Co. ("Atwood") (D.I. 69), and Carrier Corp. ("Carrier") (D.I. 76) (collectively
"Defendants"). 1 As indicated in the chart infra and for the reasons set forth below, the court
recommends granting Defendants' motions for summary judgment.

Atwood & Morrill Co.

GRANT

Carrier Corp.

GRANT

II.

BACKGROUND
A. Procedural History
Jimmy and Connie Mitchell ("Plaintiffs") filed this asbestos action in the Delaware

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After filing a motion for summary judgment, Defendant Warren Pumps LLC was voluntarily
dismissed from this action, rendering the motion moot. (D.I. 81, 85) Defendants Nash
Engineering Company and Foster Wheeler LLC also filed motions for summary judgment. (D.I.
70, 72) Those motions are sub judice pending oral argument on September 12, 2016.

Superior Court against multiple defendants on July 30, 2015, asserting personal injury claims
arising from Mr. Mitchell's alleged exposure to asbestos. (D.I. 1, Ex. A) Defendant Foster
Wheeler removed the action to this court on October 22, 2015. (Id.) Atwood filed its motion for
summary judgment on June 10, 2016. (D.I. 69) Carrier filed its motion on June 24, 2016. (D.I.
76) Plaintiffs did not re_spond to Defendants' motions. On July 27, 2016, Counsel for Carrier
filed a letter with the court seeking dismissal given Plaintiffs' failure to oppose its summary
judgment motion. (D.I. 88)

B. Facts
1. Plaintiffs' alleged exposure history
Plaintiffs allege that Mr. Mitchell developed lung cancer as a result of exposure to
asbestos-containing products, in part during the course of his employment as a boiler fireman
with the U.S. Navy from 1976 to 1979. 2 (D.I. 1, Ex. A at if 3) Plaintiffs contend that Mr.
Mitchell was injured due to exposure to asbestos-containing products that Defendants
manufactured, sold, distributed, or installed. (Id., Ex. A at if 11) Accordingly, Plaintiffs assert
negligence, punitive damages, strict liability, and loss of consortium claims. (Id., Ex. A)
Mr. Mitchell was deposed on December 8, 2015. (D.I. 69 at 2) Plaintiffs did not produce
any other fact witness for deposition. (D.I. 56 at if 4(c)(iv)) Mr. Mitchell testified that he left
high school just before graduation in 1976 and joined the Navy. (D.I. 79, Ex. A at 77:23-78:3)
After training, in 1977, he was assigned to the USS Gridley in San Diego as a board technician.
(Id., Ex. A at 83:10-84:9) He remained there throughout his enlistment until 1979. (D.I. 77, Ex.

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Plaintiffs allege that exposure also occurred while working for other employers, and while
completing personal maintenance projects. (D.I. 1, Ex. A at ifif 3, 6) However, Mr. Mitchell
alleges that his exposure to the moving Defendants' products only occurred while he was
employed by the Navy.
2

A at 84:6-24)
2. Plaintiffs' product identification evidence
a. Atwood

Atwood represents that there is no evidence in the record regarding exposure to an
Atwood product. (D.I. 69 at 2) Plaintiffs have not responded with any evidence in the record of
product identification as to the moving Defendant.
b. Carrier

Mr. Mitchell testified that he replaced and repaired external insulation attached to Carrier
forced draft blowers on the USS Gridley. (D.I. 77, Ex. A at 135:3-23) He did not work on the
internal components of the blowers. (Id., Ex. A at 135:6-8) Mr. Mitchell testified that he
replaced the external insulation "numerous times." (Id., Ex. A at 135:20-23)

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
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., 4 77 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

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light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Williams v. Borough of West Chester, Pa., 891F.2d458, 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.
If a party fails to address another party's assertion of fact, the court may consider the fact

undisputed, or grant summary judgment ifthe facts show that the movant is entitled to it. Fed. R.
Civ. P. 56(e)(2)-(3). 3 A plaintiffs failure to respond "is not alone a sufficient basis for the entry

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This section was added to Rule 56 to overcome cases in the Third Circuit that impaired the
utility of the summary judgment device:
A typical case is as follows: A party supports his motion for summary judgment
by affidavits or other evidentiary matters sufficient to show that there is no
genuine issue as to a material fact. The adverse party, in opposing the motion,
does not produce any evidentiary matter, or produces some but not enough to
establish that there is a genuine issue for trial. Instead, the adverse party rests on
averments of his pleadings which on their face present an issue.

Fed. R. Civ. P. 56(e) advisory committee's note. Before the amendment, the Third Circuit would
have denied summary judgment if the averments were "well-pleaded," and not conclusory. Id.
However, the Advisory Committee noted that summary judgment is meant to pierce the
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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, at *2 (D.N.J. July 31, 2014)
(quoting Muskett v. Certegy Check Servs., Inc., No. 08-3975, 2010 WL 2710555, at *3 (D.N.J.
July 6, 2010)).

B. Maritime Law
The parties agree that maritime law applies. (D.I. 56 at if 10) 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 4 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

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.
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"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
(1965).

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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. " 5 Abbay v. Armstrong

Int'!, Inc., E.D. PA Civil Action No. 2:10-CV-83248-ER, 2012 WL 975837, at *1 n.1 (E.D. Pa.
Feb. 29, 2012).
"In establishing causation, a plaintiff may rely upon direct evidence ... or circumstantial
evidence [to] support an inference that there was exposure to the defendant's product for some
length of time." 6 Id (citing Stark, 21 F. App'x at 376). On the other hand, "'[m]inimal
exposure' to a defendant's product is insufficient to establish causation. Likewise, a mere
showing that defendant's product was present somewhere at plaintiffs place of work is
insufficient." Lindstrom, 424 F.3d at 492 (quoting Stark, 21 F. App'x at 376). "Rather, the
plaintiff must show 'a high enough level of exposure that an inference that the asbestos was a
substantial factor in the injury is more than conjectural.'" Abbay, 2012 WL 975837, at* 1 n.l .
(quoting Lindstrom, 424 F.3d at 492).
IV.

. DISCUSSION
A. Atwood

Atwood's motion for summary judgment should be granted. Atwood asserts that there is
"a complete absence of evidence" regarding exposure to an asbestos-containing Atwood product

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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 (D. Del. Oct. 1, 2013) (citing cases);
Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012).
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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)).
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"because there are no facts on the record relative to Atwood." (D.I. 69 at 3-4) Because Plaintiffs
have not set forth any evidence to refute this assertion, there is no evidence to establish that
exposure to an Atwood product was a substantial factor in causing Mr. Mitchell's alleged injury.

Lindstrom, 424 F.3d at 492 (citing Stark, 21 F. App'x at 375).
Therefore, judgment is warranted is a matter of law, and Atwood's motion for summary
judgment should be granted.
B. Carrier

Carrier's motion for summary judgment should be granted. Carrier argues that the
evidence does not show that it manufactured or supplied the insulation from which Mr. Mitchell
alleges exposure. (D.1. 77 at 9)
Under maritime law, a manufacturer has no liability for harms caused by a product it did
not manufacture or distribute. 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 (D. Del. Oct. 1, 2013). Mr. Mitchell only associates asbestos with external insulation
on Carrier blowers. (D.I. 77, Ex. A at 135:3-23) However, Carrier submitted an affidavit from
Allen Hopkins, Contract Manger-Marine Systems Group for Carrier, indicating that Carrier did
not manufacture such asbestos-containing insulation. (Id., Ex. B) Mr. Hopkins avers that Carrier
did not externally insulate its Navy equipment with asbestos-containing insulation, Carrier did
not require or recommend the use of asbestos, and the equipment did not need to be externally
insulated with asbestos-containing insulation. (Id., Ex.Bat iii! 6-8) Plaintiffs do not submit any
evidence to dispute this sworn testimony. Accordingly, there is no evidence to establish that
exposure to an asbestos-containing Carrier product was a substantial factor in causing Mr.
Mitchell's alleged injury. Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005)

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(citing Stark v. Armstrong World Indus., Inc., 21 F. App'x 371, 375 (6th Cir. 2001)).
Therefore, judgment is warranted is a matter of law, and Carrier's motion for summary
judgment should be granted.

V.

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

granting Defendants' motions for summary judgment.

Atwood & Morrill Co.

GRANT

Carrier Corp.

GRANT

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1 )(B), Fed. R.
Civ. P. 72(b)(l), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed.
R. Civ. P. 72(b)(2). The objection and responses to the objections are limited to ten (10) pages

each. The failure of a party to object to legal conclusions may result in the loss of the right to de
novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir.
2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.

Dated: Augusta, 2016

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