Janis, Jr. et al v. A.W. Chesterton, Inc. et al

Filing 137

REPORT AND RECOMMENDATIONS- re 102 MOTION for Summary Judgment, 104 MOTION for Summary Judgment, 100 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 2/1/2019. Signed by Judge Sherry R. Fallon on 1/18/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

EARL JANIS, JR. and
TONI JANIS
Plaintiffs,
V.

A.W. CHESTERTON, INC., et al
Defendants.

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Civil Action No. 17-167-MN-SRF

REPORT AND RECOMMENDATION

I.

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

for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by FMC Corporation
("FMC") 1, Warren Pumps, LLC ("Warren"), and Ingersoll Rand Co. ("Ingersoll Rand")
(collectively, "defendants"). (D.I. 100; D.I. 102; D.I. 104) For the following reasons, I
recommend GRANTING defendants' motions for summary judgment. 2

II.

Background
a. Procedural History
On November 2, 2016, plaintiffs Earl Janis Jr. ("Mr. Janis") and Toni Janis ("Mrs. Janis")

( collectively "plaintiffs") originally filed this personal injury action against multiple defendants
in the Superior Court of Delaware, asserting claims arising from Mr. Janis's alleged harmful
exposure to asbestos. (D.I. 1, Ex. 1) On February 16, 2017, the case was removed to this court

1

FMC was sued individually and as a successor to Northern Pump Company, Coffin, Chicago
Pump Company, and Peerless. (D.I. 1, Ex. 1)
2
The briefing for the pending motion is as follows: FMC (D.I. 101; D.I. 117; D.I. 121), Warren
(D.I. 103; D.I. 118; D.I. 122), and Ingersoll Rand (D.I. 105; D.I. 119; D.I. 123).

by defendant Crane Co. pursuant to 28 U.S.C. §§ 1442(a)(l), the federal officer removal statute,3
and 1446. (D.I. 1) On June 4, 2018, defendants filed their pending motions for summary
judgment. (D.I. 100; D.I. 102; D.I. 104)

b. Facts
Plaintiffs allege that Mr. Janis developed lung cancer as a result of exposure to asbestoscontaining materials during his service as a machinist mate in the United States Navy. (D.I. 1,
Ex. 1 at 123) Plaintiffs contend that Mr. Janis was injured due to exposure to asbestoscontaining products that defendants manufactured, sold, distributed, licensed, or installed. (Id. at

1129-30) Accordingly, plaintiffs assert claims for negligence, willful and wanton conduct, strict
liability, loss of consortium, conspiracy, and punitive damages. (See D .I. 1, Ex. 1)
Mr. Janis was deposed on February 23, 2017. (D.I. 12) Plaintiffs did not produce any
other fact or product identification witnesses for deposition.
Mr. Janis served in the Navy from 1971-1975. (D.I. 117, Ex. A at 34:9-25, 36:1-38:19)
Mr. Janis started his service onboard the USS Aeolus from 1971-1972. (Id. at 34:3-18) He
served aboard the USS Richard L. Page from 1972-1974. (Id. at 34:20-23, 36:1-15) He
continued his service aboard the USS Yellowstone in 1974. (Id. at 36:16-23) The USS
Yellowstone was a tender, a ship that never moved and instead served as a repair ship for other
ships. (Id. at 36:22-37:2) Finally, Mr. Janis served on the USS Santa Barbara from 1974-1975.
(Id. at 37:10-38:11)
Mr. Janis worked as a machinist mate and was responsible for installing, repairing, and

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

maintaining valves and pumps onboard the USS Aeolus, USS Richard L. Page, USS Yellowstone,
and USS Santa Barbara. (Id. at 40:5-9, 40:14-17) Mr. Janis changed gaskets for pumps and
valves by removing, scraping, and cleaning them. (Id. at 43: 14-15) He would reinstall gaskets
by either using a pre-made gasket or cutting out more gasket material and fashioning a new one.
(Id. at 46:4-24) Mr. Janis testified that removing gaskets and creating new gaskets out of the
provided gasket material dispersed products into the air, producing visible particles that he
inhaled. (Id. at 44:6-25, 47:4-10)
Mr. Janis also replaced packing from valves and pumps. (Id at 47:11-22, 49:22-25, 57:514) He would remove old packing by scraping and pulling it with a knife or screwdriver. (Id. at
47:21-48:5) Mr. Janis testified that removing packing created particles in the air because the
packing would fall apart, and he inhaled this resulting dust. (Id. at 48:10-21) In replacing the
packing, he would cut new packing, which also produced particles in the air which he inhaled.
(Id. at 49:11-21) Mr. Janis's duties also included reinstalling insulation on the pumps. (Id. at
60: 15-17) He would remove the old insulation on the pipe and wrap new material tightly around
the pump before painting the new insulation. (Id. at 60: 18-61: 1) Mr. Janis testified that the
process of reinstalling insulation on pumps would similarly create dust that he inhaled. (Id. at
61:2-12)
After being honorably discharged from the Navy, Mr. Janis worked as a construction
worker at Ray Thompson Construction Company in Charleston, South Carolina until 2004. (D.I.
1, Ex. 1 at~ 23) Mr. Janis was diagnosed with lung cancer in February 2016. 4 (D.I. 101, Ex. B

4

Mr. Janis started smoking when he started serving in the Navy and continued to smoke
until he quit about ten years ago. (D.1. 101, Ex.Bat 15:15-16:1) When he smoked, he would
smoke between one half of a pack and one pack every day. (Id. at 16:2-6) Defendants suggest
that plaintiffs are unable to prove causation in light of Mr. Janis's past smoking habits. (D.I. 101
at 15) Here, neither plaintiffs nor defendants have produced expert testimony regarding Mr.
3

at 16:13)

III.

Legal Standard
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 nonrnoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986); Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of proving the absence of a genuinely disputed
material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to
demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the
light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574,587 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458,
460-61 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). An assertion that a fact cannot
be---or, alternatively, is-genuinely disputed must be supported either by citing to "particular
parts of materials in the record, including depositions, documents, electronically stored

Janis's history of smoking. In similar asbestos cases where the plaintiff has a past smoking habit
and the parties have submitted expert testimony or reports, courts have not considered this
smoking history. See Brown v. General Elec. Co., 2012 WL 7761251 (E.D. Pa. 2012) (granting
defendant's motion for summary judgment without discussion of plaintiffs past smoking habits
in its analysis, even with an expert produced by defendant); In re Asbestos Litig., 2014 WL
605844 (Del. Super. Ct. 2014) (concluding plaintiffs failed to meet product nexus standard under
maritime or Arkansas law without analyzing plaintiffs past smoking habits, despite expert
testimony produced by defendant). Therefore, Mr. Janis's smoking history is not considered
relevant for purposes of this Report and Recommendation.
4

information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials," or by "showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l)(A) &
(B). To defeat a motion for summary judgment, the nonmoving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586. The "mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported 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." Id. at 249-50 (internal citations omitted); see

also Celotex, 477 U.S. at 322. 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 if the facts show that the movant is entitled to it. Fed. R.
Civ. P. 56(e)(2)-(3). 5

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 matter
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.
5

b. Maritime Law: Product Identification/Causation

The parties do not dispute that maritime law applies to all Naval/sea-based claims. 6 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 Stark v. Armstrong World Indus., Inc., 21 F. App'x 371,
375 (6th Cir. 2001)); Dumas v. ABB Grp., Inc., 2015 WL 5766460, at *8 (D. Del. Sept. 30,

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
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.
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, Inc. v. Great Lakes
Dredge & Dock Co., 513 U.S. 527 (1995), the Supreme Court defined these tests as follows:
A court applying the location test must determine whether the tort occurred on
navigable water or whether injury suffered on land was caused by a vessel on
navigable water. The connection test raises two issues. A court, first, must
"assess the general features of the type of incident involved," to determine
whether the incident has "a potentially disruptive impact on maritime
commerce[.]" Second, a court must determine whether "the general character" of
the "activity giving rise to the incident" shows a "substantial relationship to
traditional maritime activity."
513 U.S. at 534 (internal citations omitted).
"Maritime law incorporates traditional 'substantial factor' causation principles, and courts often
look to the Restatement (Second) of Torts for a more helpful definition." Delatte v. A. W
Chesterton Co., 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).
7

6

2015), report and recommendation adopted, 2016 WL 310724 (D. Del. Jan. 26, 2016); Mitchell
v. Atwood & Morrill Co., 2016 WL 4522172, at *3 (D. Del. Aug. 29, 2016), report and
recommendation adopted, 2016 WL 5122668 (D. Del. Sept. 19, 2016); Denbow v. Air & Liquid
Sys. Corp., 2017 WL 1199732, at *4 (D. Del. Mar. 30, 2017), report and recommendation
adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017). 8
"In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of
the plaintiff or Decedent who experienced the exposure, co-worker testimony, or eye-witness
testimony) or circumstantial evidence that will support an inference that there was exposure to
the defendant's product for some length oftime." 9 Abbay v. Armstrong Int'!, Inc., 2012 WL
975837, at *1 n.l (E.D. Pa. Feb. 29, 2012) (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

8

Previously, courts in this Circuit recognized a third element and required a plaintiff to "show
that (3) the defendant manufactured or distributed the asbestos-containing product to which
exposure is alleged," Abbay v. Armstrong Int'!, Inc., 2012 WL 975837, at *1 n.l (E.D. Pa. Feb.
29, 2012), because 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). However, the Third
Circuit rejected the bare metal defense, and held that a manufacturer of a "bare metal" product
may be held liable for injuries sustained from later-added asbestos-containing materials, if the
facts show that the plaintiffs injuries were a reasonably foreseeable result of the manufacturer's
failure to provide a reasonable and adequate warning. In re: Asbestos Prod. Liab. Litig.
(Devries), 873 F.3d 232, 240 (3d Cir. 2017). This decision is currently under review by the
Supreme Court of United States; on May 14, 2018, the Supreme Court granted the Petition for a
Writ of Certiorari of the Devries decision. See Air & Liquid Sys. Corp. v. Devries, No. 17-1104,
2018 WL 753606 (U.S. May 14, 2018).
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. App 'x at
376 (emphasis in original) (quoting Harbour v. Armstrong World Indus., Inc., 1991 WL 65201,
at *4 (6th Cir. Apr. 25, 1991)).
7

insufficient." Lindstrom, 424 F.3d at 492 (quoting Stark, 21 F. App'x at 376) (internal citation
omitted). "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). "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. App'x at 376 (citations omitted).

IV.

Discussion
a. Applicable Standard
As a preliminary matter, plaintiffs repeatedly assert that the Lindstrom standard used by

the defendants is inapplicable because the standard articulated by the Third Circuit in Devries
should instead apply. (D.I. 117 at 8-9; D.I. 118 at 8-9; D.I. 119 at 9-10) In Devries, the Third
Circuit rejected the bare metal defense, under which "a manufacturer who delivers a product
'bare metal' - that is without the insulation or other material that must be added for the product's
proper operation - is not generally liable for injuries caused by asbestos in later-added
materials." Devries, 873 F.3d at 234,240. Here, the bare metal defense is not in issue because
the defendants are challenging at the outset the plaintiffs' ability to show substantial factor
causation under Lindstrom, i.e., lack of sufficient product exposure and no nexus to causation of
mJur1es. (D.I. 101 at 13-14; D.I. 103 at 8; D.I. 105 at 8-9; D.I. 121 at 7-8; D.I. 122 at 2; D.I. 123
at 2)

b. FMC's Motion for Summary Judgment
Under Lindstrom, the plaintiff must show that "(1) he was exposed to the defendant's
product, and (2) the product was a substantial factor in causing the injury he suffered."

Lindstrom, 424 F.3d at 492. FMC argues that plaintiffs failed to provide evidence that Mr. Janis

8

was exposed to an asbestos-containing product manufactured or supplied by FMC and, ifthere
was such exposure, plaintiffs have not shown that it was so frequent to be deemed a substantial
factor in causing Mr. Janis's injury. (D.I. 101 at 2) Mr. Janis has testified about valves, pumps,
and the names of multiple brands including Chicago pumps and Peerless pumps that he was
exposed to during his career. 10 However, he was unable to give any details as to where he had
seen these specific pumps, the physical attributes of the pumps, how often he was exposed to
these pumps, or whether these pumps specified the use of asbestos-containing gaskets or
packing. (Id. at 13, 15; Ex.Cat 100:9-24, 101 :10-13, 101 :23-102:6, 186:12-14, 193:8-18)
Plaintiffs rely on two pieces of evidence to establish substantial factor causation under
Lindstrom: (I) the ship records showing Northern pumps were aboard the USS Richard L. Page

and Chicago pumps were aboard the USS Aeolus and (2) Mr. Janis's testimony that he worked on
pumps hundreds of times. (D.I. 117 at 7-9; see also D.I. 117, Ex. G; D.I. 134 at 68:1-3) First,
the ship records serve only to identify that FMC's products were onboard some of the ships on
which Mr. Janis served. See Lindstrom, 424 F.3d at 492 ("[A] mere showing that defendant's
product was present somewhere at plaintiffs place of work is insufficient.").
Second, Mr. Janis's testimony is similarly insufficient to create a factual dispute
concerning causation. A plaintiff must provide evidence of "sufficient frequency, regularity, or
proximity" to a product to create a genuine issue of material fact regarding substantial factor
causation. Thomasson v. Air & Liquid Systems Corp., 2015 WL 1639730, at *3-4 (D.N.J. Apr. 9,
2015). Mr. Janis, however, is unable to provide details regarding the type or size of any
particular manufacturer's pump. (D.I. 101, Ex.Cat 100:9-12, 100: 17-19) He also could not

10

Plaintiffs have conceded that Mr. Janis has not identified and was not exposed to a Northern
pump. (D.I. 135 at 22:16-23:1)
9

recall the application of any particular manufacturer's pumps onboard any ship or the number of
times he would have worked on a particular manufacturer's pump. (Id. at 100:13-16, 100:20-24)
More specifically, Mr. Janis could not recall on which ship he was exposed to a Chicago or
Peerless pump, or any specific work he did on these pumps. (Id. at 212:16-18, 213:8-25, 216:1720, 217:3-23) He could not testify as to the shape, size, horsepower, material, or model or series
number of Chicago or Peerless pumps. (Id. at 211 :15-23, 212:2-6, 215:19-21, 216:3-5)
Moreover, Mr. Janis was unable to provide details regarding what substance flowed through
Chicago or Peerless pumps or to what mechanisms these pumps were attached. (Id. at 212:7-15,
216:6-16) Finally, Mr. Janis did not know the composition of the insulation or gaskets, or if they
contained asbestos. (Id., Ex.Bat 45:13-25)
Mr. Janis's testimony that he worked on pumps hundreds oftimes does not establish a
material issue of fact concerning whether he was exposed to Chicago or Peerless pumps such
that they were a substantial factor in causing his injury. This testimony establishes that Mr. Janis
has generally worked on pumps manufactured by varied manufacturers hundreds of times during
his naval service spanning from 1971 to 197 5. It would be speculative for the court to determine
that plaintiff was exposed to FMC's products with such "frequency, regularity, and proximity"
that such exposure was a substantial factor causing his injury. See Thomasson, 2015 WL
1639730, at *3-4; Lindstrom, 424 F.3d at 492; Damon v. Aireon Manuf Corp., 2015 WL
9461593, at *1 n.1 (E.D. Pa. Sept. 1, 2015) (granting defendant's motion for summary judgment
even when there was evidence presented that plaintiff worked with defendant's equipment and
was exposed to dust through that work because there was no evidence that the dust or equipment
contained asbestos). Therefore, the court recommends granting FMC's motion for summary
judgment.

10

c. Warren's Motion for Summary Judgment
Warren argues that plaintiffs cannot show that Warren's products were a substantial
factor in causing Mr. Janis's injury because although Mr. Janis has a general recollection of
Warren pumps in the Navy, he could not place a Warren pump on any particular ship or provide
information regarding the frequency with which he was exposed to Warren pumps. (D.I. 103 at
8) Additionally, Warren argues that plaintiffs do not allege Mr. Janis was exposed to asbestos
from a pump, but instead from other materials he was exposed to while working in the Navy.
(Id.) Warren asserts plaintiffs have not provided any evidence that these other materials

contained asbestos. (Id. at 8-9)
Plaintiffs counter that Mr. Janis worked on pumps hundreds of times while enlisted in the
Navy and recognized Warren pumps because its name was on boxes of new pumps and on the
pumps themselves. (D.I. 118 at 7; D.I. 134 at 68:1-3) Plaintiffs argue that Mr. Janis handled
hundreds of pumps, working in close proximity with them on a regular, daily basis. (D.I. 118 at
8) Therefore, plaintiffs determine, one can reasonably conclude that exposure to Warren's
product was a substantial factor in causing Mr. Janis's injury. (Id.)
Plaintiffs' reliance on Mr. Janis's testimony is insufficient to create a factual dispute as to
causation because he is unable to provide details regarding his specific work with Warren
pumps. For example, Mr. Janis could not recall where any Warren pump was located on the USS
Richard L. Page. (D.I. 103, Ex. A at 194:5-12) Additionally, he could not provide any details

regarding the function, application, size, shape, or color of any pumps he may have worked on
aboard the USS Richard L. Page. (Id. at 194: 13-24) Further, Mr. Janis could not state the
number of times he would have worked on any particular pump. (D.I. 122, Ex. A at 100:20-24)

11

Finally, Mr. Janis did not know the composition of insulation, packing, or gasket material
contained, or whether it contained asbestos. (D.I. 103, Ex. A at 109:19-110:6)
Mr. Janis's testimony, at best, asserts that he generally worked on pumps hundreds of
times. Without specific testimony regarding the "frequency, regularity, and proximity" of his
work specifically with Warren pumps, the court would only be speculating as to whether
plaintiffs alleged exposure to Warren's products was a substantial factor causing his injury. See

Thomasson, 2015 WL 1639730 at *3-4. Thus, plaintiffs testimony fails to create a genuine
issue of material fact as to the causation inquiry. See Lindstrom, 424 F.3d at 492; Damon, 2015
WL 9461593, at *1 n.1. Accordingly, the court recommends granting Warren's motion for
summary judgment.

d. Ingersoll Rand's Motion for Summary Judgment
Ingersoll Rand avers that Mr. Janis is similar to the plaintiff in Lindstrom because he is
unable to do any more than identify Ingersoll Rand as a manufacturer of pumps installed aboard
the USS Aeolus, USS Richard L. Page, or USS Yellowstone. (D.I. 105 at 6-9) Ingersoll Rand
notes that, similar to the plaintiff in Moeller v. Garlock Sealing Technologies, LLC, 660 F .3d
950, 955 (6th Cir. 2011), Mr. Janis personally worked with equipment every day and some of
that equipment was manufactured by Ingersoll Rand. (Id. at 7) See also Moeller, 660 F.3d at
95 5 (concluding that although some of the gaskets were made by defendant, plaintiff still could
not establish substantial factor causation because he could not show how many of defendant's
gaskets he removed or how frequently he removed them). Additionally, Ingersoll Rand argues
that Mr. Janis could not quantify the frequency with which he was exposed to Ingersoll Rand
pumps and that plaintiffs now allege Mr. Janis was exposed to asbestos from other materials he
used during his service - not contained within the pumps themselves. (D.I. 105 at 8-9)

12

Plaintiffs argue that one could make a reasonable conclusion beyond speculation that Mr.
Janis worked on Ingersoll Rand pumps on a frequent basis, such that this exposure was a
substantial factor in causing his injury. (D.I. 119 at 8-9) To prove this, plaintiffs heavily rely
upon: (1) ship records indicating that Ingersoll Rand pumps were on the USS Yellowstone and
(2) Mr. Janis's testimony that he worked on pumps hundreds oftimes as a machinist mate. (Id.
at 8)
Although plaintiffs cite ship records placing Ingersoll Rand pumps aboard the USS

Yellowstone, this serves only to identify that Ingersoll Rand's products were onboard some of the
ships on which Mr. Janis served. See Lindstrom, 424 F.3d at 492 ("[A] mere showing that
defendant's product was present somewhere at plaintiffs place of work is insufficient.").
Additionally, the USS Yellowstone was a tender ship, meaning that it remained stationary and
repaired the parts of other ships in addition to its own parts. (D.I. 105, Ex. A at 74:4-12, 75:517) Mr. Janis was unable to state from which ships the pumps and valves he repaired originated
while aboard the USS Yellowstone, and recalled a great variety of pump and valve sizes. (Id. at
76:6-78:14, 81:14-21)
Similarly, plaintiffs' reliance on Mr. Janis's testimony is insufficient to establish
causation because he is unable to provide details regarding the "frequency, regularity, or
proximity" of his exposure to Ingersoll Rand pumps. See Thomasson, 2015 WL 1639730, at *34. At first, Mr. Janis incorrectly identified Ingersoll Rand as a valve manufacturer named "Ingris
... or something, Rand." (D.I. 123, Ex. A at 52:13-14) Counsel then corrected Mr. Janis's
pronunciation and ensured that he was testifying about pump manufacturers instead of valve
manufacturers. (Id. at 52:17-23) Mr. Janis testified that he did not associate any particular ship
with his work on Ingersoll Rand pumps and has no recollection of installing a new Ingersoll

13

Rand pump. (D.I. 105, Ex. A at 205:20-206:16) Although Mr. Janis recalled that he was able to
identify an Ingersoll Rand pump because the name was on the pump itself, he could not
remember how the name appeared on the pump. (Id. at 206:17-25) He also could not recall the
color, maintenance history, or size oflngersoll Rand pumps. (Id. at 207:1-25) Further, Mr. Janis
does not know what the packing, gasket, or insulation material contained, or if they contained
asbestos. (Id. at 109:24-110:6; Ex.Bat 45:13-46:3) Again, Mr. Janis could not recall the
number of times he worked on any particular pump. (Id., Ex. A at 100:20-24)
Plaintiffs contend that Mr. Janis worked on pumps hundreds of times, but this does not
establish he was exposed to Ingersoll Rand pumps in particular and that such exposure was a
substantial factor in causing his injury. (D.I. 119 at 8) As the record illustrates, there were many
different pump manufacturers that supplied pumps to the various ships on which Mr. Janis
served. (D.I. 123, Ex. A at 52:7-23) Plaintiffs testimony fails to create a genuine issue of
material fact as to whether Ingersoll Rand's products were a substantial factor in causing his
injuries. See Lindstrom, 424 F.3d at 492; Damon, 2015 WL 9461593, at *1 n.l. Therefore, the
court recommends granting Ingersoll Rand's motion for summary judgment.
e. Loss of Consortium
The recommendation for granting defendants' motions for summary judgment for the
reasons stated in sections (IV)(b)-(d) supra eliminates the need to consider plaintiffs' loss of
consortium claim. However, for the sake of completeness, this report and recommendation
addresses the arguments.
The court recommends granting summary judgment in favor of defendants with respect to
plaintiffs' loss of consortium claim. (See D.I. 1, Ex. 1 at ,i,i 106-108) "Maritime law does not
allow claims for loss of consortium to non-seamen." Frango v. Royal Caribbean Cruises, 891

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So. 2d 1208, 1210 (3d Cir. 2005). Plaintiffs do not oppose defendants' argument that Mrs.
Janis's loss of consortium claim should be dismissed. (See D.I. 118; D.I. 119) Thus, the court
recommends granting defendants' motions for summary judgment with respect to Mrs. Janis's
related loss of consortium claim.
f.

Punitive Damages

The recommendation for granting defendants' motions for summary judgment for the
reasons stated in sections (IV)(b)-(d) supra eliminates the need to consider punitive damages.
However, for the sake of completeness, this report and recommendation addresses the
arguments. The court recommends granting summary judgment in favor of defendants with
respect to plaintiffs' punitive damages claim.
Punitive damages are limited to situations "where a defendant's conduct is 'outrageous,'
'owing to gross negligence,' 'willful, wanton, and reckless indifference for the rights of others,'
or behavior even more deplorable." Exxon Shipping Co. v. Baker, 554 U.S. 471,493 (2008)
(internal citation omitted). "Punitive damages are not intended to compensate the plaintiff for a
loss suffered, but instead are 'imposed for purposes of retribution and deterrence."' In re

Asbestos Prod. Liab. Litig. (No. VI), 2014 WL 3353044, at *11 (E.D. Pa. July 9, 2014) (quoting
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408,416 (2003)).
In support of their claim, plaintiffs cite to advertisements for defendants' products in the
same 1940s issues of the Southern Power and Industry magazine, which reported how exposure
to asbestos may result in health hazards. (D.I. 118 at 10; D.I. 119 at 11) However, plaintiff fails
to produce any evidence regarding defendants' actual knowledge of asbestos hazards or conduct
indicative of willful or wanton actions. See Relyea v. Borg Warner Corp., 2014 WL 6736781, at
*1 n.1 (E.D. Pa. Oct. 1, 2014); In re Asbestos Litig., C.A. No. 15-395-GMS-SRF, 2017 WL

15

3592451, at *8 (D. Del. Aug. 21, 2017). Therefore, the court recommends granting defendants'
motion for summary judgment with respect to plaintiffs' punitive damages claims.
g. Conspiracy
The recommendation for granting defendants' motion for summary judgment for the
reasons stated in sections (IV)(b)-( d) supra eliminates the need to consider plaintiffs' conspiracy
claim. However, for the sake of completeness, this report and recommendation addresses the
arguments.
The court recommends granting summary judgment in favor of defendants with respect to
plaintiffs' conspiracy claim. In Counts X and XI of the complaint, plaintiffs allege defendants
conspired to withhold information about "the hazards of asbestos and the methods for protecting
themselves from that danger." (D.I. 1, Ex. 1 at ,r 66) Plaintiffs aver that because of this
conspiracy, Mr. Janis was "never advised of the dangers of asbestos nor of the methods for
protecting [himself] from inhaling or ingesting asbestos. Due to the acts or omissions of
[defendants], workers, including Plaintiff, inhaled or ingested asbestos while using Defendant's
products." (Id)
"The rule that civil conspiracy may not exist without an underlying tort is a common one.
Indeed, we are unaware of any jurisdiction that recognizes civil conspiracy as a cause of action
requiring no separate tortious conduct." Boyanowski v. Capital Area Intermediate Unit, 215
F.3d 396, 405-06 (3d Cir. 2000) (internal quotations and citations omitted) (citing In re
Orthopedic Bone Screw Prods. Liab. Litig., 193 F.3d 781, 789 & n.7 (3d Cir. 1999)).

Plaintiffs failed to set forth any legal argument in response to defendants' motions for summary
judgment as to the conspiracy claim. (See D.I. 118; D.I. 119) As such, plaintiffs have not
produced any evidence regarding defendants' agreement to suppress knowledge of the dangers of

16

asbestos, or that they intentionally marketed their asbestos products without effective warnings.
Additionally, the court has concluded above that the underlying claim of products liability fails
due to lack of causation. Therefore, the court recommends granting defendants' motion for
summary judgment with respect to plaintiffs' conspiracy claim.

V.

Conclusion
For the foregoing reasons, the court recommends granting defendants' motions for

summary judgment. (C.A. No. 17-167, D.I. 100; D.I. 102; D.I. 104)
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.l
(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: January \~, 2019

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