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

Filing 94

REPORT AND RECOMMENDATIONS granting 72 MOTION for Summary Judgment, granting 70 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 Obj ections (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 10/3/2016. Signed by Judge Sherry R. Fallon on 9/16/2016. (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
Presently, there are two motions for summary judgment before the court in this asbestos-

related personal injury action. 1 The motions were filed by Defendants Nash Engineering Co.
(''Nash") (D.I. 70), and Foster Wheeler LLC ("Foster Wheeler") (D.I. 72) (collectively
"Defendants"). For the reasons set forth below, I recommend that the court grant Defendants'
motions for summary judgment.

II.

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

Superior Court against multiple defendants on July 30, 2015, asserting personal injury claims
proximately caused by Mr. Mitchell's alleged exposure to asbestos. (D.I. 1, Ex. A) Foster
Wheeler removed the action to this court on October 22, 2015. (D.I. 1) Nash and Foster Wheeler

1

Summary judgment motions filed by defendants, Warren Pumps LLC, Atwood & Morrill Co.,
and Carrier Corporation, have since been terminated or granted. (D.I. 85, 91)

filed motions for summary judgment on June ld, 2016. (D.I. 70, 72) Plaintiffs oppose the
motions. (D.I. 79, 80) The court held oral argument to address the motions on September 12,
..,
2016.

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. 70 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. (Id., Ex. A at
84:6-24) While aboard the USS Gridley, Mr. Mitchell's duties included "cleaning the bilge,
painting, replacing steam lines, replacing asbestos on the side of the boilers, [and] making sure
that[] the boiler was in shape to continue the job." (Id., Ex. A at 107:11-17)

2

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 expo~µre to the moving Defendants' products only occurred while he was employed
bytheNavy. ·
2

2. Plaintiffs' product identification evidence
a. Nash
Nash is a pump manufacturer. (D.I. 80, Ex. F at 9) Nash supplied pumps that may have
contained asbestos-containing gaskets from 1959 to 1981. (Id., Ex. F at 10) Mr. Mitchell .
testified to working with pumps and gaskets aboard the USS Gridley. (Id., Ex. A at 201:14-

210:11) Specifically, he worked with bilge pumps, centrifugal pumps, auxiliary pumps, and most
pumps in Fire Room Number Two. (Id., Ex. A at 199:1-201:23) Mr. Mitchell stated that he
replaced gaskets, insulation, and packing on the pumps. (Id., Ex. A at 208:4-213:19) However,
Mr. Mitchell did not specifically identify working with Nash pumps or gaskets. (Id., Ex. A at

210:14-17; D.I. 70 at 2)
b. Foster Wheeler
Mr. Mitchell testified that the USS Gridley had four Foster Wheeler boilers. (D.I. 73, Ex.
A at 107:18-25) He stated that he worked on two of the Foster Wheeler boilers in Boiler Room
Number Two. (Id., Ex. A at 108:1-19) Mr. Mitchell's boiler work included cleaning and
painting inside the outer casing, replacing external insulation, cleaning the burner housing and
firebox, cleaning the steam and sludge drums, and replacing the gasket on the boiler door. (Id.,
Ex. A at 108:20-109:23; 126:3-20) Given the high heat applications, Mr. Mitchell believ~d that
his asbestos exposure occurred as a result of working with external insulation on the boilers,
firebrick and mortar inside fireboxes, and the asbestos padding covering of the sludge-box door.

(Id., Ex. A at 113: 11-124 :23) Plaintiff also asserts that he replaced asbestos-containing gaskets
on the boiler doors. (Id., Ex. A at 126:3-20)
Mr. Mitchell testified that he replaced the exterior asbestos-containing insulation two to
three times per week. (Id., Ex. A at 115:14-116:21) He cleaned the burner houses "numerous

3
...
•.

times." (Id., Ex. A at 117:10-118:7) To clean the burner housing, Mr. Mitchell used a wire brush
to scrub the steel pipes and walls, and swept the floor. (Id.) Scraping the brick in the confined
space inside the boilers created dust inhaled by Mr. Mitchell. (Id., Ex. A at 120:16-121:2) Mr.
Mitchell replaced the asbestos padding on the sludge drums every time the ship came to port~
(Id., Ex. A at 125:8-23) Additionally, he replaced the gaskets on the boiler doors about twenty
times. (Id., Ex. A at 126:3-20) He thought thafthe mortar inside the firebox and internal
insulation were original to the Foster Wheeler boilers, but he did not know about the external
insulation. (Id., Ex. A at 128:21-129:11)

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, 637F.3d177, 181 (3d Cir.
2011) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett,
477 U.S. 317, 322-:-23 (1986)).
The moving party bears the initial burden of proving the absence of a genuinely disputed
material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to
demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the
light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986); Williams v. Borough of West Chester, Pa., 891F.2d458, 46061 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). The non-movant must support its

4

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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 non- ·
moving 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.

B. Maritime Law
The parties agree that maritime law applies. (D.I. 56 at, 10) To establish causation in an
asbestos claim under maritime law, a plaintiff must show that "(1) hewas exposed to the
defendant's product, and (2) the product was a substantial factor3 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.

Appx~

371, 375 (6th Cir. 2001)). Other courts in this Circuit

recognize at~rd element and require a plaintiff to "show that (3) the defendant manufactured or
distributed the asbestos-containing product to which exposure is alleged."4 Abbay v.Armstrong

3

"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, 2011 WL 11439126, 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 of responsibility." Restatement (Second) of Torts § 431 cmt. a
(1965).
4
The majority of federal courts have held that, under maritime law, a manufacturer has no
5
·•

•.

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 oftime." 5 Id. (citing Stark, 21 F. Appx. at 376). On the other hand, '"[m]inimal
exposure' to a defendant's product is in~ufficient to establish causation. Likewise, a mere
showing that defendant's product was present somewhere at plaintiff's 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 97 583 7, at * 1 n.1
(quoting Lindstrom, 424 F .3d at 492).

C. Government Contractor Defense
Under the test set out in Boyle v. United Techs. Corp., a federal contractor will not be
held liable for its product's design defects when: (1) the United States approved reasonably
precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier
warned the United States about the dangers in the use of the equipment that were known to the
supplier but not to the United States. 487 U.S. 500, 512 (1988). The defense is applicable to
both design defect and failure to warn claims. See, e.g., MacQueen v. Union Carbide Corp.,

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).
5
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. Apr. 25, 1991) (emphasis in original)).
6

Civil Action No. 13-831-SLR-CJB, 2013 WL 6571808, at *3 (D. Del. Dec. 13, 2013), report and

recommendation adopted, 2014 WL·108535 (D. Del. Jan. 9, 2014); Walkup v. Air &Liquid Sys.
Corp., Civil Action No. 12-1635-SLR-SRF, 2013 WL 5448623, at *2 (D. Del. Sept. 26, 2013),.
report and recommendation adopted, 2013 WL 5798701 (D. Del. Oct. 24, 2013); In re Asbestos
. Litig. (Seitz), 661 F. Supp. 2d 451, 454 (D. DeL 2009). In a failure to warn claim, the first prong
of Boyle is altered to preclude liability where the government exercised discretion and approved
the warai?-gs. See Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995). Courts
require the government approval to "transcend rubber stamping" for the defense to shield a
government contractor from liability for failure to warn. Id. at 1156-57.
IV.

DISCUSSION

A. Nash
Nash's motion for summary judgment should be granted. Nash argues that because Mr.
i

Mitchell did not identify exposure to any Nash_product, Nash is entitled to judgment as a matter
oflaw. (D.I. 70 at 2) Nash contends that Plaintiffs may not establish causation by showing that
Nash products were merely present somewhere at Mr. Mitchell's workplace. (Id. at 4-6)
Plaintiffs respond that a genuine issue of mate~al fact remains because Mr. Mitchell testified that
i

he worked on all the pumps in Fire Room Number Two, and Navy purchase orders show Nash's
asbestos gaskets were used on centrifugal pumps on the USS Gridley. (D.l; 80 at 1-3)
Under maritime law, Plaintiffs must produce evidence of exposure to an asbestoscontaining Nash product, and evidence that such exposure was a substantial factor in causing Mr.
Mitchell's alleged injuries. Lindstrom v. A-C Product Liab. Trust, 424 F.3d 488, 492 (6th Cir.
2005). Evidence that Nash's products were present at Mr. Mitchell's workplace, without more,
is insufficient to overcome a motion for summary judgment. Id.

7

In the present action, Mr. Mitchell testified that he worked on all the pumps in Fire Room

Number Two, but he did not testify that those were Nash pumps. (D.I. 80; Ex. A at 201 :14--23)
Plaintiffs submit purchase orders in support of the argument that asbestos-containing Nash
pumps were present on the USS Gridley. 6 (Id., Ex. B) However, the purchase orders are from
1968 and 1971. (Id.) Mr. Mitchell did not work on the USS Gridley until 1977. (D.I. 79, Ex. A
at 83:10-84:9) Moreover, the purchase orders do not identify the location of the listed equipment
aboard the ship. (D.I. 80, Ex. B)
That Nash "supplied pumps that may have contained asbestos-containing gaskets from
approximately 1959 until 1981" does not show that Mr. Mitchell was exposed to one of those
products. (Id., Ex. E) "While all reasonable inferences must be drawn in favor of the nonmovant, 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
(citingLeonardv. Stemtech Health Scis., Inc., Civ. Action No. 08-067-LPS-CJB, 2011 WL

6046701, at *8 (D. Del. Dec. 5, 2011), report and recommendation adopted, 2012 WL 1133185
(D. Del. Mar. 28, 2012)). Evidence of"substantial exposure is necessary to draw an inference
from circumstantial evidence that the exposure was a substantial factor in causing the injury."
Id. at *3 (citing Starkv. Armstrong World Indus., Inc., 21 F. Appx. 371, 376 (6th Cir. 2001)).

Plaintiffs have not submitted evidence indicating that exposure to a Nash pump was a substantial

6

The records Plaintiffs rely on are submitted without a declaration, and they were previously
undisclosed in the pending litigation. (D.I. 80, Ex. B) As in the Walkup case, Nash asserts that
these records are not admissible at trial. See Walkup v. Air & Liquid Sys. Corp., Civil Action
No., 12-1635-SLR-SRF, 2014 WL 2514353, at *6 (D. Del. June 4, 2014), report and
recommendation adopted, 2014 WL 4447568 (D. Del. Sept. 8, 2014); (D.I. 86 at 2-3) In Walkup,
without deciding admissibility, this court determined that such evidence was insufficient to
create a genuine issue of material fact on the issue of product identification. Id.

8

-·

•,

factor in causing Mr. Mitchell's alleged injuries. Id. at *5 (granting summary judgment in
Nash's favor based on a similar record). Therefore, the court should grant Nash's motion for
summary judgment.

B. Foster Wheeler
Foster Wheeler's motion for summary judgment should be granted. Foster Wheeler
argues that summary judgment is warranted based on lack of causation and the government
contractor defense.
1. Causation

Foster Wheeler argues that summary judgment is warranted because there is no evidence
Mr. Mitchell was exposed to an asbestos-containing Foster Wheeler-product. (D.I. 73 at 4)
"While Mr. Mitchell alleges exposure while working with Foster Wheeler boilers, his exposure
is attributed to the components or products attached to the boiler itself," and Foster Wheeler did
not manufacture or supply those products. (Id.) Foster Wheeler argues that it cannot be not liable
for the products of others. (Id. at 9) Plaintiffs respond that genuine issues of material fact remain
because Mr. Mitchell testified he was exposed to asbestos dust in a confined area while cleaning
inside Foster Wheeler boilers. (D.I. 79 at 3) Additionally, Plaintiffs contend that Foster Wheeler
owed a duty to warn about the foreseeable use of asbestos with its boilers because Foster
Wheeler recommends in a technical manual that asbestos gaskets be used on the access doors
and panels of its boilers. (Id. at 4)
To establish causation under maritime law, Plaintiffs must show that Mr. Mitchell was
exposed to a Foster Wheeler boiler, the exposure was a substantial factor in causing Mr.
Mitchell's injury, and Foster Wheeler manufactured or distributed the asbestos-containing
product to which Mr. Mitchell alleges exposure. Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d

9

488, 492 (6th Cir. 2005); Abbay v. Armstrong Int'l, Inc., E.D. PA Civil Action No. 2:10-CV83248-ER, 2012 WL 975837, at *l n.l (E.D. Pa. Feb. 29, 2012).
Mr. Mitchell testified that he performed maintenance to two Foster Wheeler boilers in
Fire Room Number Two. (D.I. 73, Ex. A at 108:1-9) He recalled that the boilers were
approximately six to eight feet long from front to back, 100 feet from side to side, and two or
two and a half stories tall. (Id., Ex. A at 110:6-18)
Mr. Mitchell did not know ifthe external insulation he maintained was original to the
Foster Wheeler boilers, but he testified that the boilers would have been repaired and maintained
prior to his arrival onboard the USS Gridley. (Id., Ex. A at 128:14-20) The door gaskets he
maintained were not original either, as they were replaced every time the boiler door was
opened. (Id., Ex. A at 126:3-20)
Aside from the external insulation and gaskets, Mr. Mitchell also painted, cleaned, and
repaired insulation inside the boilers "numerous" times. (Id., Ex. A at 108:20-111: 12) He
testified that the sludge drum on the bottom of the boiler had an opening covered with asbestos
padding. (Id., Ex. A at 123:8-124:23) Mr. Mitchell believes he was exposed to asbestos when he
replaced the insulation on the sludge drum opening every time the ship was in port. (Id., Ex. A
at 125:14-126:2) He thought that the insulation inside the doors was original to the Foster
Wheeler boilers. (Id., Ex:. Aat 128:14-129:11) However, Plaintiffs do not cite to any evidence
to support such an assertion. Additionally, that Mr. Mitchell often replaced the insulation
padding on the door supports an inference that the component was not original to the USS
Gridley.
Mr. Mitchell also thought that cleaning inside the boiler exposed him to asbestos because
of the brick and mortar mix inside the burner housing, which was made for high heat

10

applications. (Id., Ex. A at 118:24--121:11) Scraping the wall of the boiler caused the asbestoscontaining mortar mix to "release." (Id.) Mr. Mitchell testified thathe breathed that dust in a
"small confined area of approximately eight foot by eight foot" while maintaining the boiler.

(Id.) He believed that the boiler makers installed and replaced the mortar mixture themselves.
(Id., Ex. A at 122:1-11) However, Plaintiffs do not cite to any evidence to support that the brick
and mortar mix was original to Foster Wheeler's boilers.
In the present action, Plaintiffs have not directed the court to 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. Plaintiffs
cite to a Foster Wheeler boiler maintenance manual to support the assertion that Foster Wheeler
boilers contained asbestos components, and Foster Wheeler recommeQded that asbestos be used
with replacement components. (D.I. 79, Ex BB) However, that manual is a Navy publication, so
at best, it supports an inference that the Navy recommended that asbestos be used to replace
some Foster Wheeler boiler components. The manual does indicate that Foster Wheeler supplied
such components.
Additionally, Plaintiffs submit an Affidavit from a former Foster Wheeler employee,
Walter Newitts, who worked for the company in the 1960's and early 1970's, just befo~e Mr.
Mitchell was stationed aboard the USS Gridley. (D.I. 79, Ex. E) However, Mr. Newitts'
testimony that Foster Wheeler supplied some asbestos-containing insulation for use with its
boilers is not evidence that Mr. Mitchell was exposed to such insulation. (Id., Ex. E at if 21)
Additionally, Mr. Newitts' testimony does not address Navy specifications for Foster Wheeler
products subject to a government contract. Moreover, Mr. Newitts' statements, while making
general reference to boilers, refer to exterior insulation on "casing and piping," and to boiler

11

installation at utility plants or power companies, not to marine based installations. (Id., Ex. at ifif
5-10, 18-36) The court would be going beyond viewing the facts in favor of the nonmoving
Plaintiffs to speculate that the Newitts Affidavit creates a factual issue concerning Foster
Wheeler's manufacture, sale, or use of asbestos in the boilers onboarcl the USS Gridley, on
which Mr. Mitchell performed maintenance.
As the Third Circuit recently noted in a factually similar matter, Plaintiffs proffered
evidence does not answer the "crucial question of whether the original, asbestos-containing
[components were] present in the [boiler] during the maintenance. Nor does it answer the
question of whether, if replacement [components were] present ... [they] were manufactured by
[Foster Wheeler]." In re Asbestos Prods. Liab. Litig. (No. VI), No. 15-1988, 2016 WL 4750507,
at *4 (3d Cir. Sept. 13, 2016). 7 Without evidence regarding how frequently insulation and
components were saved during maintenance, Mr. Mitchell's testimony cannot support the
inference that original, asbestos-containing c01pponents remained on or in the boilers upon
which he worked. See id.
Plaintiffs have done nothing more than'. show the presence of Foster Wheeler's boilers
upon the USS Gridley. See In re Asbestos Litig. (Dumas), Civil Action No. 13-229-SLR-SRf,
2015 WL 5766460, at *10 (D. Del. Sept. 30, 2015), report and recommendation adopted, 2016
WL 310724 {D. Del. Jan. 26, 2016) (granting summary judgment in defendant's favor based on
lack of causation, despite the plaintiffs argument that the use of asbestos with defendant's

7

In re Asbestos Prods. Liab. Litig. (No. VI) was decided under Indiana law. No. 15-1988, 2016
WL 4750507, at *3 (3d Cir. Sept. 13, 2016). However, the summary judgment standard for
liability in an asbestos matter under Indiana 18\W, where the plaintiff "must provide evidence
sufficient to support an inference that that he ihhaled [a significant amount of] ·asbestos dust from
the defendant's product," is similar to the "substantial factor" standard under maritime law. See
. id.; Lindstrom v. A-C Prod. Liab. Trust, 424 F:.3d 488, 492 (6th Cir. 2005).
12

products was foreseeable). Plaintiffs' evidence is speculative as to whether the products to
which Mr. Mitchell alleges exposure actually contained asbestos supplied or manufactured by
Foster Wheeler. Moreover, that the boiler components were so frequently maintained runs
counter to Plaintiffs' assertion that they were original to the Foster Wheeler boilers.
"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 tJ.:ie
record, not by speculation or conjecture. Walkup v. Air & Liquid Sys. Corp., Civil Action No.
12-1635-SLR-SRF, 2014 WL 2514353, at *6 (D. Del. June 4, 2014), report and

recommendation adopted, 2014 WL 4447568 (P. Del. Sept. 8, 2014). In the absence of evidence
I

that original Foster Wheeler components remained on the Foster Wheeler boilers on which Mr.
Mitchell worked, or that replacement components were manufactured by Foster Wheeler,
Plaintiffs cannot support the assertion that exposure to Foster Wheeler boilers was a substantial
factor in causing Mr. Mitchell's lung cancer.. See In re Asbestos Prods. Liab. Litig. (No. VI),
.

i

2016 WL 4750507, at *4; Lindstrom, 424 F.3d at 492. Therefore, I recommend granting Foster
Wheeler's motion for summary judgment. 8

8

See also Malone v. Air &Liquid Sys, Civil Action No. 14-406-GMS-SRF, 2016 WL 4522164
(D. Del. Aug. 28, 2016) (Foster Wheeler's summary judgment motion granted based on lack of
causation and the bare metal defense); In re Asbestos Litigation (Dumas), Civil Action No. 13229-SLR-SRF, 2015 WL 5766460 (D. Del. Sept. 30, 2015), report and recommendation
adopted, 2016 WL 310724 (D. Del. Jan. 26, 2016) (same); Dalton v. 3M Co., Civil Action No.
10-113-SLR-SRF, 2013 WL 4886658 (D. Del. Sept. 12, 2013), report and recommendation
adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2,013) (same). ·
13

2. Government contractor defense
The court recommends granting summary judgment based upon causation. However,
Foster Wheeler asserts an additional basis for judgment as a matter of law pursuant to the
government contractor defense.
The government contractor defense shields defendants from liability for acts arising out
of the performance of a federal contract. See Bailey v. McDonnell Douglas Corp., 989 F.2d 794,
797 (5th Cir. 1993). A federal contractor is not liable for failure to warn when:
(1) the United States exercised its discretion and approved the warnings, if any;
(2) the contractor provided warnings that conformed to the approved warnings; and
(3) the contractor warned the United States of the dangers in the equipment's use
about which the contractor knew, but the United States did not.

See Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del.
Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014)

(quotingMacQueen v. Union Carbide Corp., CI.'.ivil Action No. 13-831-SLR-CJB, 2013 WL
6571808, at *4 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535
I

. (D. Del. Jan. 9, 2014)).
Foster Wheeler points to Military Specifications ("MilSpecs") and Affidavits from
Admiral Ben J. Lehman (Ret.) and Foster Wheeler corporate representative, J. Thomas·
Schroppe, as evidence that the government was involved in the design and manufacture of all
products used on Navy warships. (D.I. 73 at 11) Admiral Lehman stated:
The U.S. Navy would not have allowed its equipment suppliers, such as Foster
Wheeler, to affix any warning related to any asbestos hazards on their
equipment ... Further, the U.S. Navy would not have allowed Foster Wheeler to
place any warnings related to asbestos hazards in any written material provided by
Foster Wheeler to the U.S. Navy or to a U.S. Navy contractor .. .including its
technical and operational manuals ....

(Id., Ex.Bat 'if 14) Mr. Schroppe confirmed that Foster Wheeler complied with the Navy's
specifications. (Id. at 11, Ex. C)
14

However, Plaintiffs submit the Declaration of Captain Arnold P. Moore, USNR (Ret.),
P.E. who states:
The U.S. Navy did not prohibit manufacturers ... from providing warnings and
safety precautions concerning their products. In fact ... Navy specifications and
standards specifically required equipment manufacturers ... to provide warnings
concerning hazards associated with their products .... The Navy relied heavily
upon its manufacturers and vendors to identify hazar4s associated with their
products.
(D.I. 79,

Ex.Pat~

11) Captain Moore also cites to MilSpecs requiring manufacturers to provide

operating, maintenance, and "safety precautions" for their equipment. (Id.,

Ex.Pat~

12) Dr.

fyioore avers that the MilSpecs "indicate[] that the U.S. Navy did not intend to dictate warnings
and safety precautions to manufacturers .... [The MilSpecs] also clearly demonstrate[] that the
Navy did not intend to prohibit such warnings and safety precautions." (Id.)
A factual question exists as to whether the Navy exercised discretion and approved the
warnings at issue, or whether it required manufactures to create their own warning labels.
Consequently, -genuine issues of material fact remain with respect to the first two elements of the
Boyle analysis: (1) whether the government exercised discretion and approved the warnings at

issue, and (2) whether the contractor provided warnings that conformed to the approved
warnings. See Boyle v. United Techs. Corp., 487 U.S. 500, 512-13 (1988); Tate v. Boeing
Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995). Therefore, the court recommends that summary

judgment based on the government contractor defense is not warranted. However, for the
reasons discussed in the preceding section, Foster Wheeler is, nonetheless, entitled to summary
judgment based upon lack of causation under maritime law.

V.

CONCLUSION
For the foregoing reasons, I recommend that the court grant both Nash's motion for

summary judgment (D.I. 70), and Foster Wheeler's motion for summary judgment (D.I. 72).
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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,
http://www.ded.uscourts.gov.

Dated: September__J_(L, 2016

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