Hickman v. CBS Corporation et al

Filing 202

REPORT AND RECOMMENDATIONS- GRANTING #192 MOTION for Summary Judgment, #140 MOTION for Summary Judgment, #145 MOTION for Summary Judgment, #158 MOTION for Summary Judgment, #163 MOTION for Summary Judgment, #153 MOTION for Summary Judgment, #142 MOTION for Summary Judgment, #160 MOTION for Summary Judgment, #144 MOTION for Summary Judgment, #151 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 10/19/2017. Signed by Judge Sherry R. Fallon on 10/2/2017. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION
.GERALDL HICKMAN,
Plaintiff,

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)
)
)

)

~

Civil Action No.

16-308-LPs~sRF

)
A. W. CHESTERTON COMP ANY, et al., )
)
Defendants.
)

REPORT AND RECOMMENDATION
l.

INTRODUCTION
Presently before the court in this asbestos-related personal injury action are the motions

for summary judgment of Defendants BorgWarner Morse TEC LLC 1 ("BorgWarner") (D.I. 140),
Clayton Industries ("Clayton") (D.I. 163), Foster Wheeler LLC{"Foster Wheeler") (D.I. 158),
Gardner Denver Inc. ("Gardner") (D.I. 142), General Electric Company ("GE") (D.I. 160),
Genuine Parts Company ("GPC") (D.I. 145), Mack Trucks Inc. ("Mack Trucks") (D.I. 151),
Marotta Controls Inc. ("Marotta") (D.I. 192), National Automotive Parts Assoc. (''NAP A") (D.I.
145), Navistar, Inc. 2 (''N~vistar") (D.I. 153), and Neles-Jamesbury Inc. (''Neles-Jamesbury")

(D.I. 144) (collectively, "Defendants"). Plaintiff Gerald Hickman ("Plaintiff') did not respond to
these motions. As indicated in the chart infra and for the reasons that follow, the court
recommends GRANTING Defendants' motions for summary judgment.

1

BorgWarner Morse TEC LLC is a successor by merger to Borg-Warner Corporation. (D.I. 141
at4)
2
Navistar, Inc. has changed its name several times; one of its previous names was "International
Harvester Company," referred to frequently simply as "International" or "International
Harvester." (D.I. 166 at 1 n.1) Navistar was a manufacturer in part and assembler of trucks and
buses under the brand name "International." (Id.)

BorgWarner Morse TEC LLC
Clayton Industries
. Foster Wheeler LLC

GRANT

Gardner Denver Inc.

GRANT

General Electric Company ·

GRANT

. Genuine Parts Company

. GRANT

' Mack Trucks Inc.

.·GRANT
GRANT

. Marotta Controls Inc.
National Automotive Parts Assoc.

GRANT

Navistar Inc.

GRANT
. GRANT

II.

BACKGROUND
A. Procedural History
Plaintiff filed this personal injury action against multiple defendants on March 15, 2016,

in the Superior Court of Delaware, asserting claims arising from his alleged harmful exposure to
asb~stos.

(D.I. 1, Ex. 1) On Appl 27, 2016, the case was removed to this court by Defendant

Crane Co. pursuant to 28 U.S.C. §§ 1442(a)(l), the federal officer removal statue,3 and 1446.
(D.I. 1) Plaintiff filed a First Amended Complaint on September 12, 2016. (D.I. 49)
BorgWarner, Clayton, Foster Wheeler, -Gardner, GE, GPC, Mack Trucks, Marotta, NAPA,
Navistar, and N eles-Jamesbury filed the pending motions for summary judgment, individually.
(D.I. 140, 163, 158, 142, 160, 145, 151., 192, 153, 144) Plaintiff did not respond to these
motions.

B. Facts
3

The federal officer removal statute permits removal of a state court action to federal court
when, inter alia, such action is brought against "[t]he United States or an agency thereof or any
officer (or any person acting under that officer) of the United States or of any agency thereof,
sued in an official or individual capacity for any act under color of such office." 28 U.S.C. §
1442(a)(l).
2

1. Plaintiff's alleged exposure history
Plaintiff alleges he developed asbestosis and asbestos related pleural disease as a result of
exposure to asbestos-containing materials during his service in the Navy, as well as from his
civilian work with automobiles. (D.I. 49 at ifif 4, 11, 15) Plaintiff contends he was injured due to
exposure to Defendants' asbestos-containing products. (Id. at if 13) Accordingly, Plaintiff
asserts claims for negligence, willful and wanton conduct, strict liability, conspiracy, and
punitive-damages. (Id. at 11-27)
Plaintiff was deposed on January 31 and February 1, 2017. (D.I. 98) Plaintiff did not·
produce any other fact or product identification witn~sses for deposition. 4 First, Plaintiff alleges
he experienced secondary exposure to asbestos from living in his family home from 1946-1958
with his father, who owned and operated Hickman's Service Station. (D.I. 49 at ifif 15, 16) He
testified that his father performed brake work on trucks and cars and would use an air hose,
which created dust. (D.I. 179, Ex. A at 217:5-10; 222:2-22) His father would return home in his
uniform; where Plaintiff would "sometimes" hug his father, whose clothes "could have"
remained dusty from vehicle servicing work. (Id. at 219: 2-1 7)
Plaintiff first enlisted in the Navy in 1963. (D .I. 49 at if 11) He attended basic training in
San Diego for four months before traveling to Hawaii in January of 1964. (D.I. 149, Ex. A at
52:13-23) Plaintiff spent roughly "eighteen months" in Hawaii, where he was assigned to the
USS Nicholas (the ''Nicholas"). (Id. at 52:19-24; 75:24-76:5) Aboard the Nicholas, he worked
-itithe engine and boiler rooms as a fireman apprentice and, later, as a fireman. (Id. at 76:6-77:7,
77:21-78:8) He worked primarily as an operator, and also performed maintenance clean-up
duties. (Id. at 78:9-19) Plaintiff testified that he removed asbestos insulation from a generator,

4

The deadline for completion of depositions of all co-worker, product identification, and other
exposure testimony witnesses was March 21, 2017. (D.I. 64 at 3-4)
3

which he believes was either General Electric or Westinghouse, and certain service pumps. (Id.
at _84:5-85:5; 87:14-88:6) He could not describe the pumps other than that they pumped water or
oil. (Id. at 174:18-176:9)
Plaintiff went to the Great Lakes Naval Facility ("Great Lakes") for four months where
he received a military rating of engineman. (Id. at 53:1-8; 54:1-2) At Great Lakes he lived in
the barracks, and is not aware of asbestos exposure while there. (Id. at 53: 13-21; 89:24-90:3) In
approximately 1965, Plaintiff joined the USS Impervious (the "Impervious~') in Long Beach,
California as an engineman fireman third class, and became second class after a year. (Id. at
54:3-22; 91:7-10) After making second class, his work became more supervisory in nature and
he did less hands-on repair work. (Id. at 95:5-16) Plaintiff repaired diesel engines, pumps,
valves, boilers, and air conditioning equipment. (Id. at 91: 11-16) He believes he was exposed to
asbestos from the asbestos padding or ''blankets" on the diesel engines, but does not know who
made these products. (Id. at 92:19-93:5) Plaintiff also testified there was asbestos wrapped
piping in the living quarters, but he does not know the manufacturer of this product. (Id. at 93:918)
Plaintiff then served aboard the USS Endurance (the "Endurance"), where he was a
second class engineman with similar duties to the Impervious. (Id. at 94:15-23; 96:5-14) He
believes he was exposed to asbestos from the boilers, as well as from removing insulation
pads/lagging. (Id. at 97:16-22; 98:13-17)
In 1968, Plaintiff reported to Norfolk, Virginia for two months where he does not believe

he was exposed to asbestos. (Id. at 99:3-23)
He transferred to Annapol1s, Maryland, where he worked on training boats, including
yard patrol boats, work boats, utility boats, and sailboats, from 1968 to 1970. (Id. at 56: 14-21;

4

57:4-12; 99:24-101: 17) He believes he was exposed to asbestos-containing material from
lagging/pads on the engines and pipe insulation, but does not know the manufacturer of this
material. (Id. at 101: 18-102: 18; 103: 15-23)
Sometime in late 1970, Plaintiff arrived in Vallejo, California, where he became an
engineman first class and trained for three months for Vietnam. (Id. at 57:19-58:14) While in
Vietnam in early 1971, he patrolled the boats and identified more padding insulation affixed to
piping and exhausts. (Id. at 58:13-14; 110:13-23; 111:7-24; 112:1-12) Plaintiff lived on a barge
in Vietnam where there was pipe insulation, but he does not know who manufactured these
materials. (Id. at 111 :7-112:12) He estimates he returned from Vietnam in November 1971. (Id.
at 59:12-14; 109:16-19)
Plaintiff returned to Delaware for approximately one month in early 1972 before the
Navy transferred him to Norfolk, Virginia to work on submarines. (Id. at 60:3-12) Plaintiff was
assigned to the USS L.Y. Spear (the "L.Y. Spear") for four years, and lived aboard the ship
during the last eighteen months of his assignment. (Id. at 60:3-12; 60:17-24; 113:4-16; 118:1214) He did not work in the engine room of the L.Y. Spear, nor did he perform maintenance or
repair on the ship. (Id. at 114:9-17) Instead, his work took him aboard other ships and he
recalled five of the eight submarines he performed work on: the Skipjack, Lapan, Bluefish,
Spadefish, and Shark. (D.I. 193, Ex. A at 115:2-23; Ex.Bat 367:11-22) Plaintiff removed some
service pumps from these submarines but he does not know who manufactured the pumps. (Id.
at 115 :24-117 :5) He testified that there was insulation/lagging and pads a.ffixed to the piping
leading to the service pumps, but he does not know who manufactured the lagging or pads. (Id.
at 117:10-118:2)
While still assigned to the L.Y. Spear, Plaintiff accepted part-time employment with

5

North Ship Co. for six months in 1974. (Id. at 118:15-22) He was an outside machinist who
removed pumps and valves from gas oil tankers. (Id. at 120:1-14)
In 1975, the Navy transferred Plaintiff to Philadelphia, Pennsylvania for three years. (Id.
at 61:22-62:12; 125:19-126:4) In Philadelphia, he removed valves and pumps from
decommissioned ships, which were then reused aboard active vessels. (Id. at 127:10-129:11;
130:2-11; 131:22-132:15) Some of the ships he went aboard include the USS Iowa, the USS
Wisconsin, the USS Intrepid, the USS Keasarge, the USS Northampton, the USS Salem, and "a
fow smaller ships." (Id. at 130:7-131: 17) Plaintiff associates asbestos exposure in Philadelphia
with removing lagging or asbestos material from the pumps and valves, though he does not know
who manufactured these materials. (Id. at 133:16-134:4; 134:16-21)
In 1977, Plaintiff went overseas to Bahrain on the USS Lasalle (the "Lasalle") and spent
a year aboard the ship. (Id. at 62:21-63:6) He worked as a Chief Petty Officer in charge of the
maintenance department that included twenty-five to thirty men. (Id. at 138:2-24) Plaintiff
testified that there was asbestos-containing material on board, including lagging that covered the
piping. (Id. at 140:11-141 :4)
Plaintiff was then stationed aboard the USS Opportune in Little Creek, Virginia, for
approximately one year while also working at the naval station. (Id. at 63:9-64:8) His title at
this time was assistant engineer, and he supervised maintenance and the operation of the
engineering department. (Id. at 143:2-143:18) Plaintiff identified lagging and pads as the only
asbestos-containing materials. (Id. at 145 :9-16) The insulating materials were affixed to the
piping, valves, and the exhaust system on the diesel engines. (Id. at 144:4-10; 145:9-16)
From 1980 to

1983~

Plaintiff was assigned to the naval station at Little Creek, where he

was in charge of maintenance in the engine overhaul shop. (Id. at 147:6-12) He identified the

6

padding around the exhaust as an asbestos-containing product. (Id. at 147:13-18)
Plaintiffleft the Navy for two years and then reenlisted in 1985. (Id. at 66:19-22) He
spent the first eighteen months between school in Norfolk and at Great Lakes. (Id. at 66:1068:7) Subsequently, he reported to Sturgeon Bay, Wisconsin for the new construction of a ship.
(Id. at 68:8-16) Once the ship was built, Plaintiffretumed to Norfolk and finished his career

with the Navy.
During his deposition, Plaintiff also discussed his civilian automotive work. During the
summers and weekends from 1961to1963, Plaintiff worked for Hitchens' Chevron. (D.I. 162,
Ex.Bat 73:21-22; 187:2-6) He spent halfhis time pumping gas, and also performed oil changes
or "lube jobs," assisted customers in the convenience store, and assisted his uncle with brake
work. (Id. at 187: 11-189:9) He would clean up the dust after his uncle finished removing and
rep1acing brakes. (Id. at 189:3-9) While in the Navy and stationed in Norfolk in 1970, Plaintiff
pumped gas part time at Wayson's Exxon for "two or three" seasons. (Id. at 107:23-108:3) He
did not personally perform any brake work, but was around when mechanics performed such
jobs. (Id. at 107: 18-22)
Plaintiff testified about personal automotive repairs he performed on about five vehicles:
a 1970 Mustang, a 1967 Chevelle, a 1977 Chevrolet, a 1973 Chevrolet, and two Buicks. (D.I.
147, Ex. D at 155:11-156:11) Some of these repairs included rebuilding the engine, changing the
exhaust, replacing the valve covers, and working on the brakes. (D.I. 162, Ex.Bat 196:5-14)
Plaintiff did not recall the brand name or manufacturer of any of the replacement parts he used.
(D.I. 147, Ex. D at 157:21-159:7)
2. Plaintiff's product identification evidence
Plaintiff is the sole product identification witness in this case and his deposition occurred

7

...
•.

on January 31 and February 1, 2017. (D.I. 98)

a. BorgWarner Morse TEC LLC
Plaintiff did not identify an asbestos-containing BorgWam.er product.

b. Clayton Industries
Plaintiff testified that he "think[ s]" he worked on Clayton boilers during his time on the
Endurance and the Impervious. (D.I. 167, Ex. 1 at 98:9-12) Plaintiff testified that the Endurance
and Impervious were "identical sister ships," and maintenance on both ships was the same. (Id.
at 96:15-23) Plaintiffbelieves he was exposed to asbestos while working on these alleged
Clayton boilers by removing alleged asbestos lagging and gaskets while performing maintenance
on the boilers .. (Id. at 210:9-20) Plaintiff cleaned and performed the general maintenance and
upkeep of the alleged Clayton boilers. (Id. at 203: 8-18) He testified that these Clayton boilers
were "fire tube boilers," and he cleaned the tubes. (Id. at 203:16-24) Plaintiff testified that there
were two Clayton boilers on the Endurance, and he worked on both of them. (Id. at 203 :22204:5)

c. Foster Wheeler LLC
Plaintiff did not initially identify a Foster Wheeler product. He answered affirmatively,
though, when his counsel asked ifhe recalled working with a Foster Wheeler boiler. (D.I. 159,
Ex. A at 225:22-226:3) Plaintiff stated that he cannot remember what ship any foster Wheeler
boiler was on, but that it was "probably at the Philadelphia inactive ships." (Id. at 226:2-21)
Plaintiff could not recall what work he did to a Foster Wheeler boiler. (Id. at 226:2-17)

d. Gardner Denver Inc.
Plaintiff testified that he recalled seeing Gardener portable compressors on the LaSalle
and in the Philadelphia and Norfolk shipyards. (D.l. 142, Ex.Bat 346:1-347:1) He stated that

8
.....

:·· :...

he knew this was a Gardner compressor ''because of the label on it." (Id. at 348:14-16) Plaintiff
was unable to provide a description of these compressors. (Id. at 343:23-345345:11) Plaintiff
did not perform internal work on these compressors and was not present when others performed
any internal work on these compressors. (Id. at 347:15-348:9; 348:20-23) Plaintiff testified that
these compressors were made of steel, and he did not know whether any of the compressors
contained asbestos. (Id. at 347:21-348:1; 348:10-13)
e. General Electric Company
Plaintiff testified that, while aboard the Nicholas, he removed asbestos insulation from
generators and turbines, which may have been manufactured by GE. (D.I. 161, Ex. A at 84: 1085:13; 239:5-7) Plaintiff testified that he performed repair work to the generator and turbine, but
did not perform anyreinsulating work. (Id. at 174:1-12) Plaintiff testified that while working
for North Ship Co. on both Navy and private vessels, he removed turbine casings. (Id. at 121 :13122:3) However, Plaintiff could not identify the manufacturer of any specific turbine or ship
aboard which it would be found. (Id. at 124:3-21) While aboard the LaSalle, Plaintiffbelieved
there to be a GE turbine, but he testified that he did no maintenance work on that turbine. (Id.,
Ex.Bat 259:4-260:14; 262:6-18) Finally, Plaintiff recalled working on GE reduction gear, qut
could not recall with which ships he would.associate this work. (Id., Ex. A at 239:21-240:6) He
stated that the source of his alleged exposure was only to the insulating material surrounding the
flanges leading to the gears and not the gears themselves. (Id. at 240:7-11)

f. Genuine Parts Company
GPC is a distributor and/or assembler of replacement automobile parts. (D.I. 147 at 6)
GPC's remanufacturing, assembly, and/or distribution of automotive products occur through
GPC' s unincorporated Rayloc division. (Id. at 6-7) Many stores operated by GPC have

9

subsequently been resold to "independent jobbers." (Id. at 7) Plaintiff did not identify an
asbestos-containing product remanufactured or supplied by GPC. (See id., Ex. D)
g. Mack Trucks Inc.
Plaintiff did not maintain, repair, or service a Mack truck. (D.I. 152, Ex. A at 320:15-19;
323:19-21) Plaintiff testified that on four occasions in the 1950s, he was present when his father
serviced a Mack truck at Hickman's Service Station. (Id. at 321:22-331:23; 332:14-18) He
recalled that two of these occasion involved replacement of rear brakes and other brake work.

(Id. at 321 :22-322:20; 325:25-326:5; 328:15-329:17; 329:23-330:19)

h. Marotta Controls Inc.
Plaintiff testified that he encountered Marotta valves on submarines he maintained while
serving on the L.Y. Spear between 1972.and 1975. (D.I. 193, Ex. A at 230:19-22; Ex.Bat
363:24-364:15; 365:3-14) These submarines included the Skipjack, Lapon, Bluefish, Spadefish,
and Shark. (Id., Ex. A at 115:2-23; Ex.Bat 367:11-22) Plaintiff did not perform maintenance
on the L.Y. Spear itself, but rather maintained submarines while they were at port in Norfolk and
aboard the L.Y. Spear. (Id., Ex. A at 114:15-17; Ex.Bat 368:7-11) Plaintiff identified these
valves as high pressure air valves. (Id., Ex. A at 230:12-18; Ex.Bat 365:4-7) He described
these Marotta valves as approximately ten inches in length and six inches in diameter. (Id., Ex.
Bat 373:4-11) The valves were brass with metal components ranging in size of five inches to a
''butterfly'' piece, which was "smaller than a pinkie fingernail." (Id. at 369:9-13; 372:8-19;
373:15-18) Plaintiff testified that he did three different tasks on the valves: removal, overhaul,
and replacement. (Id. at 366:20-367:1)

i. National Automotive Parts Assoc.
NAP A is a not-for-profit membership corporation that functions as a trade association for

10

various distributors in the replacement automotive parts business. (D.I. 147 at 6) It has no
subsidiaries, "predecessor" corporations, or sales offices. (Id.) NAP A does not manufacture,
distribute, or sell any automotive parts. (Id.) Plaintiff testified that he performed personal
automotive repairs on about five vehicles: a 1970 Mustang, a 1967 Chevelle, a 1977 Chevrolet, a
1973 Chevrolet, and two Buicks. (Id., Ex. D at 155:11-156:11) When asked where he purchased
the replacement parts, Plaintiff testified that he purchased parts from "regular automotive
jobbers ... [s]ome in Pennsylvania, some in Delaware, and some in Virginia." (Id. at 158:17-23)
Plaintiff further stated that the auto parts stores were "[l]ike NAPA and just any- any auto parts
place." (Id.) He testified that he did not recall purchasing parts for the 1970 Mustang at
''NAP A," but that ''NAPA" is just a name of an auto parts store that he could think of. (Id. at
158:24-159:7)
j. Navistar Inc.

The only testimony Plaintiff offered in regard to Navistar is that he may have been
present when his father performed work on an International truck at Hi_ckman's Service Station

in the 1950s. (D.I. 166, Ex. A at 220:2-17; 291 :6-12) Plaintiff stated that his father replaced the
brakes on an International truck more than once but less than five times. (Id. at 304:12-16)
k. Neles-Jamesbury Inc.

Plaintiff did not initially identify a Neles-Jamesbury product. He answered affirmatively,
though, when his counsel asked ifhe recalled using a Neles-Jamesbury valve. (D.I. 146, Ex.Bat
229:11-14) Plaintiff could not recall where he used a Neles-Jamesbury valve, but stated that it
was on "one of those seven ships." (Id. at 229:16-18) He did not know the type, size, or color of
any valves manufactured by N eles-J amesbury that he may have encountered. (Id., Ex. C at
380:7-22) He did not specifically recall performing any work on valves manufactured by Neles-

11

Jamesbury, and could not say whether Neles-Jamesbury valves contained asbestos. (Id. at 383:423)

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 oflaw." Fed.
R. Civ. P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a
dispute about a material fact is 'genuine' 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 par:ty 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
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

12

colorable, or is not significantly probative, summary judgment may be granted." Clark v. Welch,
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 amatter 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). 5 A plaintiffs failure to respond "is not alone a sufficient basis for the entry
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 thatthe undisputed facts warrant judgment as a matter oflaw.

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."

5

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 ifthe averments were "well-pleaded," and not conclusory. Id.
However, the Advisory Committee noted that summary judgment is meant to pierce the
pleadings and to assess proof to see whether there is a genuine need for trial. Id. Accordingly,
the pre-amendment Third Circuit precedent was incompatible with the basic purpose of the rule.
Id. The amendment recognizes that, "despite the best efforts of counsel to make his pleadings
accurate, they may be overwhelmingly contradicted by the proof available to his adversary." Id.
The amendment, however, was not designed to affect the ordinary standard applicable to
summary judgment. Id.
13

.

....'

Williams v. Murray, Inc., 2014 WL 3783878, *2 (D.N.J. July 31, 2014) (quoting Muskett v.
Certegy Check Svcs., Inc., 2010 WL 2710555, at *3 (D.N.J. July 6, 2010)).

B. Maritime Law
The parties do not dispute that maritime law applies to all Naval/sea-based claims. 6 (D.I.
129) 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 factor 7 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
6

For maritime law to apply, a plaintiffs exposure underlying a products liability claim must
meet both a locality test and a connection test. In Jerome B. Grubart v. Great Lakes Dredge &
Dock Co., 513 U.S. 527 (1995), the Supreme Court defined these tests as follows:
A court applying the location test must determine whether the tort occurred on
navigable water or whether injury suffered on land was caused by a vessel on
navigable water. The connection test raises two issues. A court, first, must "assess
the general features of the type of incident involved," to determine whether the
incident has "a potentially disruptive impact on maritime commerce[.]" Second, a
court must determine whether "the general character" of the "activity giving rise
to the incident" shows a "substantial relationship to traditional maritime activity."
513 U.S. at 534 (internal citations omitted).
7
"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.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).
14

adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017). Other courts in this Circuit recognize a
third element and require a plaintiff to "show that (3) the defendant manufactured or distributed
the asbestos-containing product to which exposure is alleged."8 Abbay v. Armstrong Int'!, Inc.,
2012 WL 975837, at *1 n.l (E.D. Pa. Feb. 29, 2012).
"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 of time." 9 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 *l 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).

C. Delaware Law

8

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) (citing cases); Conner v. Alfa Laval,
Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012).
9
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)).
15
-~

.... :....

_

The parties do not dispute that Delaware law applies to all land based claims. (D.I. 129)
Under Delaware law, a plaintiff asse1iing a claim for asbestos-related injuries must introduce
evidence showing a product nexus between defendant's product and plaintiff's asbestos-related
injuries. Cain v. Green Tweed & Co., 832 A.2d 737, 741 (Del. 2003) (citing In re Asbestos
Litig., 509 A.2d 1116, 1117 (Del. Super. Ct. 1986), aff'd sub nom. Nicolet, Inc. v. Nutt, 525 A.2d

146 (Del. 1987)).
Delaware courts have not followed the "frequency, proximity, and regularity" test, 10 first
set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), which has
been adopted as the test in numerous jurisdictions. Happel v. Anchor Packing Co., 2010 WL
7699063, at * 1 (E.D. Pa. Oct. 14, 2010). Delaware courts simply require a plaintiff show that he
was in proximity to the product at the time it was being used. Nutt v. A .C. & S. Co., 517 A.2d
690 (Del. Super. Ct. 1986). Plaintiff must show "that the asbestos product was used in an area
where the plaintiff frequented, walked by, or worked adjacent to, with the result that fibers
emanating from the use of the product would have been present in the area where the plaintiff
worked." Cain, 832 A.2d at 741. "Implicit within this product nexus standard is the requirement
that the particular defendant's product to which the plaintiff alleges exposure must be susceptible
· to releasing fibers which are capable of ingestion or respiration into the plaintiff's body." In re
Asbestos Litig., 2007 WL 1651968, at *19 (Del. Super. Ct. May 31, 2007), as corrected (June

25, 2007) (quoting Merganthaler v. Asbestos Corp. ofAmerica, 1988 WL 116405 at *1-2 (Del.
Super. Ct. 1988)).

10

The court, in Lohrmann, stated that to support a reasonable inference of substantial causation
from circumstantial evidence, there must be evidence of exposure to a specific product on a
regular basis over some extended period of time in proximity to where the plaintiff actually
worked. Lohrmann, 782 F.2d at 1162-63. The test for substantial factor causation found in
Lindstrom appears to be consistent with this "frequency, regularity, proximity" test.
16

This standard, known as the "product nexus standard," is meant to ensure that the
plaintiff presents "a factual connection in space and time between a particular plaintiff and a
particular defendant's product." Id. Delaware courts have held that a plaintiff can survive
summary judgment if there is testimony that asbestos-containing products were used at a
worksite during the time plaintiff was employed there. Happel, 2010 WL 7699063, at *1.
However, it is insufficient to overcome summary judgment ifthe "time and place" testimony is
based on speculation or conjecture. Id. (citing In re: Asbestos Litigation, 509 A.2d at 1117-18).
IV.

DICUSSION
A. BorgWarner Morse TEC LLC
The court recommends granting BorgWamer's motion for summary judgment, because

there is no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an
asbestos-containing Borg Warner product. During Plaintiffs deposition, he did not identify any
BorgWamer product. Because Plaintiff has not introduced evidence showing a product nexus
between BorgWamer's products and his asbestos-related injuries, as required by Delaware law,
BorgWamer's motion for summary judgment should be granted.

B. Clayton Industries
The court recommends granting Clayton's motion for summary judgment. Although
Plaintiff testified that he "think[s]" he worked on Clayton boilers during his time on the
Endurance and Impervious, there is no genuine issue of material fact in dispute as to whether
Plaintiff was exposed to an asbestos-containing product made by Clayton. (D.I. 167, Ex. 1 at
98:9-12) Plaintiff testified that he was exposed to asbestos while working on these alleged
Clayton boilers by removing alleged asbestos lagging and gaskets while performing maintenance
on the boilers, but he could not identify the manufacturer of the lagging or gaskets that he

17

removed or replaced. (Id. at 92:19-93:5; 97:19-98:8; 210:9-211:19) Moreover, Plaintiff testified
that the alleged Clayton boilers he worked on were "fire tube boilers." (Id. at 203:16-24)
However, Clayton has never made a fire tube boiler and instead manufactured boilers with a
water tube system. (Id., Ex. 2 at ifif 3-4)
Plaintiffs deposition testimony fails to create a material issue of fact as to whether
Clayton's products were a substantial contributing factor to his injuries. See Lindstrom, 424 F.3d
at 492. Therefore, the court recommends granting Clayton's motion for summary judgment.
C. Foster Wheeler LLC
The C<?Urt recommends granting Foster Wheeler's motion for summary judgment,
because there is no genuine issue of material fact in dispute as to whether Plaintiff was exposed
to an asbestos-containing product made by Foster Wheeler. Foster Wheeler avers that Plaintiff
did not identify working with or around any original asbestos-containing materials that were
made or supplied by Foster Wheeler. (D.I. 159 at 7) Additionally, Foster Wheeler raises the
bare metal defense. (Id. at 10-14) It contends that it is not responsible for any asbestoscontaining products manufactured by other parties.
Although Plaintiff answered affirmatively when asked by counsel if he recalled working
with a Foster Wheeler boiler, he failed to rebut the assertion that any Foster Wheeler boiler at
issue did not contain asbestos. (Id., Ex. A at 225:22-226:3) Furthermore, Plaintiff could not
remember any specifics regarding his exposure to Foster Wheeler Boilers. (Id., Ex.Bat 255:1259:3) Finally, the bare metal defense precludes holding Foster Wheeler responsible for
asbestos-containing products that Foster Wheeler did not manufacture, sell, or distribute that
were applied to Foster Wheeler boilers. See Dalton, 2013 WL 4886658, at *6-7. Consequently,
there is insufficient evidence to maintain the causal nexus required by maritime law, and

18

summary judgment should be granted in Foster Wheeler~s favor.

D. Gardner Denver Inc.
The court recommends granting Gardner's motion for summary judgment. Although
Plaintiff testified that he recalled seeing Gardner portable compressors on the LaSalle and in the
Philadelphia and Norfolk shipyards, he .did not offer sufficient testimony to create a.dispute of
fact to whether any Gardner compressor contained asbestos to which he was exposed. (D.I. 142,
Ex.Bat 346:1-347:1) Plaintiff did not perform internal work on these compressors and was not
present when others performed any internal work on these compressors. (Id. at 347:15-348:9;
348:20-23) Plaintiff testified that these compressors were made of steel and he did not know
whether any of the compressors contained asbestos. (Id. at 347:21-348:1; 348:10-13) Plaintiffs
testimony fails to prove that Gardner's products were a substantial contributing factor to his
injury under maritime law. See Lindstrom, 424 F.3d at 492.
Additionally, Gardner raises the bare metal defense, which precludes holding Gardner
responsib1e for asbestos-containing products that Gardner did not manufacture, sell, or distribute
that were applied to Gardner compressors. (D.I. 143 at 11-13); See Dalton, 2013 WL 4886658,
at *6-7. As such, the court recommends granting Gardner's motion for summary judgment.

E. General Electric Company
The court recommends granting GE's motion for summary judgment. Although Plaintiff
testified that he may have encountered GE products aboard the Nicholas, the LaSalle, and while
employed by North Ship Co., he did not offer sufficient testimony to create a dispute of fact to
whether he was exposed to asbestos-containing GE products. (D.I. 161, Ex. A at 84:10-85:13;
121:13-122:3;239:5-7; 239:21-240:6; Ex.Bat 259:4-260:14; 262:6-18) Plaintiff could not
specifically identify these products as manufactured by GE. Plaintiffs testimony fails to prove

19

.

~

'

that GE's products were a substantial contributing factor to his injury under maritime law. See
Lindstrom, 424 F.3d at 492.
Additionally, GE raises the bare metal defense, which precludes holding GE responsible
for asbestos-containing products that GE did not manufacture, sell, or distribute that were
applied to GE equipment. (D.I. 161 at 10-15); See Dalton, 2013 WL 4886658, at *6-7. As such,
the court recommends granting GE's motion for summary judgment.

F. Genuine Parts Company
The court recommends granting GPC's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an asbestoscontaining product made by GPC. During Plaintiffs deposition, he did not identify an asbestoscontaining product remanufactured or supplied by GPC. As required under Delaware law,
Plaintiff has not shown a factual connection in space and time between him and a product
manufactured or supplied by GPC. In re Asbestos Litig., 2007 WL 1651968, at *19. Because
Plaintiff has not introduced evidence showing a product nexus between GPC's products and his
asbestos-related injuries, GPC's motion for summary judgment should be granted.

G. Mack Trucks Inc.
The court recommends granting Mack Truck's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an
asbestos-containing Mack Truck product. Plaintiff did not maintain, repair, or service a Mack
truck. (D.I. 152, Ex. A at 320:15-19; 323:19-21) Plaintiff testified that on four occasions in the
1950s, he was present when his father performed brake work on a Mack truck at the Hickman's
Service Station. (Id. at 321 :22-331 :23; 332:14-18) However, Plaintiff did not know who
manufactured or supplied the brakes removed or installed. (Id. at 324:12-19; 326:25-328:9) He

20

also did not know the maintenance history, year of manufacture, or mileage of any of these
alleg~d

Mack trucks. (Id. at 324:4-6; 327:18-23; 331:7-12) As required under Delaware law,

Plaintiff has not shown a factual connection in space and time betwe~n him and a Mack Truck
product. In re Asbestos Litig., 2007 WL 1651968, at *19. Because Plaintiffhas not introduced
evidence showing a product nexus between Mack Truck's products and his asbestos-related
injuries, Mack Truck's motion for summary judgment should be granted.

H. Marotta Controls Inc.
The court recommends granting Marotta's motion for summary judgment, because there
is no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an asbestoscontaining product made by Marotta. Marotta avers that Plaintiff did not identify working with
or around any original asbestos-containing materials that were made or supplied by Marotta.
(D.I. 193 at 5-6) Additionally, Marotta raises the bare metal defense. (D.I. 193 at 16-17)
Marotta contends that it is not responsible for any asbestos-containing products manufactured by
other parties.
Although Plaintiff answered affirmatively when asked by counsel if he recalled working
with Marotta valves, he failed to rebut the assertion that any Marotta valve at issue did not
contain asbestos. (Id., Ex. A at 230:12-22) Plaintiff testified that all pieces of the valves were
metal or "0-rings," which are pure synthetic rubber. (Id., Ex.Bat 369:14-16; 373:19-24; Ex. H
at~ 21)

Plaintiff testified that the valves themselves did not contain any asbestos. (Id., Ex. B at

370:3-8)
Furthermore, Plaintiffs only alleged asbestos exposure during removal and overhaul
work occurred form the removal of external insulation or lagging on the pipes leading to the
valves. (Id. at 369:17-370:2; 371 :17-20) He did not know the manufacturer of any of the

21

padding, lagging, or insulation removed or installed on or around the valves. (Id. at 363:4-14)
As such, the bare metal defense precludes holding Marotta responsible for asbestos-containing
products that Marotta did not manufacture, sell, or distribute that were applied to Marotta. valves.
See Dalton, 2013 WL 4886658, at *6-7. Consequently, there is insufficient evidence to maintain
the causal nexus required by maritime law, and summary judgment should be granted in
Marotta' s favor.

I. National Automotive Parts Assoc.
The court recommends granting NAP A's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an asbestoscontaining product made by NAP A. Plaintiff testified that he purchased replacement parts for
his personal automobiles from "regular automotive jobbers ... [s]ome in Pennsylvania, some in
Delaware, and some in Virginia." (D.I. 147, Ex. D at 158:17-23) He testified that the auto parts
stores were "[l]ike NAPA and just any- any auto parts place." (Id.) He did not recall
purchasing parts for the 1970 Mustang at "NAPA," but that ''NAP A" is just a name of an auto
parts store that he could think of. (Id. at 158:24-159:7) This testimony appears only to describe,
rather than identify, the type of automotive parts store from which Plaintiff may have purchased
replacement automobile parts. Even assuming Plaintiff did purchase automotive parts from a
. NAP A store, this does not show a product nexus as required by Delaware law. It is insufficient
.to overcome summary judgment if the "time and place" testimony is based on speculation or
conjecture. Happel, 2010 WL 7699063, at *1. Consequently, NAP A's motion for summary
judgment should be granted.

J. Navistar Inc.
The court recommends granting Navistar' s motion for summary judgment, because there

22

-·

_·. :~

is no genuine issue of material fact in dispute as to whether Plaintiff was exposed to an asbestoscontaining Navistar product. Plaintiff testified that he may have been present, when his father
performed work on an International truck at Hickman's service station in the 1950s. (D.I. 166,
Ex. A at 220:2-17; 291 :6-12) Plaintiff stated that his father replaced the brakes on an
International truck more than once but less than five times. (Id. at 304:12-16) Plaintiff did not
know the model or year of the International truck his father allegedly worked on, nor did he
know its maintenance history. (Id. at 300:14-17; 302:8-20) Even assuming Plaintiff was present
when his father performed work on an International truck, this does not show a product nexus as
required by Delaware law. It is insufficient to overcome summary judgment ifthe "time and
place" testimony is based on speculation or conjecture. Happel, 2010 WL 7699063, at *l.
Consequently, Navistar' s motion for summary judgment should be granted.

K. Neles-Jamesbury Inc.
The court recommends granting N eles-J amebury' s motion for summary judgment.
Plaintiff alleges he was exposed to asbestos through removing and replacing asbestos padding,
interference lagging, and insulation from various machinery, including valves, as well as from
the flange or packing associated with a valve. (D.I. 146, Ex.Bat 121:17-122:3; 122"18-123:13;
133:16-134:4; 140:18-21; 145:9-16; 166:1-167:15; 230:6-10; Ex.Cat 279:14-22)

Although Plaintiff testified that he recalled using N eles-J amesbury valves, there is no
genuine issue of material fact in dispute as to whether Plaintiff was exposed to an asbestoscontaining product made by Neles-Jamesbury. (Id., Ex.Bat 229:11-14) Plaintiff could not
recall where he used a N eles-Jamesbury valve, and he did not know the type, size, or color of
anyNeles-Jamesburyvalve he may have encountered. (Id., 229:16-18; Ex.Cat 380:7-22) He
did not specifically recall performing any work on valves manufactured by N eles-Jamesbury,

23

and could not saywhetherNeles-Jamesburyvalves contained asbestos. (Id., Ex.Cat 383:4-23)
Moreover, Plaintiff did not know the maintenance history of any of the valves he encountered
while serving in the Navy. (Id., Ex.Bat 88L23-89:2; 94:11-14; 103:8-11; 122:14-17; 133:9-15;
142:3-11; 146:21-24; Ex.Cat 280:5-18; 362:21-25; 392:25-393:11) Plaintiff testified that there
were thousands of valves on the ships on which he worked, that he did not work on every valve
on every ship, and that he did not know who manufactured any particular valve. (Id., Ex. C at
267:24-268:1; 268:7-12; 277:2-11) Plaintiffs deposition testimony fails to create a material
issue of fact as to whether N eles-J amesbury products were a substantial contributing factor to
Plaintiffs injuries under maritime law. See Lindstrom, 424 F.3d at 492.
Additionally, Neles-Jamesbury raises the bare metal defense, which precludes holding
N eles-J amesbury responsible for asbestos-containing products that N eles-J amesbury did not
manufacture, sell, or distribute that were applied to Neles-Jamesbury valves. (D.I. 146 at 12-13);
See Dalton, 2013 WL 4886658, at *6-7. Consequently, there is insufficient evidence to maintain
the causal nexus required by maritime law, and summary judgment should be granted in N el esJ amesbury' s favor. .

V.

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

granting Defendants' motions for summary judgment.

GRANT
Clayton Industries

GRANT

Foster Wheeler LLC

GRANT

Gardner Denver Inc.

GRANT

General Electric Company

GRANT

Genuine Parts Company

GRANT

Mack Trucks Inc.

GRANT
24

.

-~

'

Marotta Controls Inc.

GRANT

National Automotive Parts Assoc.

GRANT

Navistar Inc.

GRANT

Neles-Jamesbury Inc.

·GRANT

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(1 ), 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 ofthis 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: October __!_, 201 7

25