Kister et al v. Air & Liquid Systems Corporation et al

Filing 99

REPORT AND RECOMMENDATIONS- re 75 MOTION for Summary Judgment, 87 MOTION for Summary Judgment, 78 MOTION for Summary Judgment, 90 MOTION for Summary Judgment, 84 MOTION for Summary Judgment, 86 MOTION for Summary Judgme nt, 80 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 4/18/2018. Signed by Judge Sherry R. Fallon on 4/4/2018. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

IN RE: ASBESTOS LITIGATION
JOAN KISTER, Individually and as
Executor of the Estate of ALAN B.
KISTER, deceased,
Plaintiffs,
V.

AIR & LIQUID SYSTEMS
CORPORATION, et al.,
Defendants.

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Civ. No.' 17-193-LPS-SRF

REPORT AND RECOMMENDATION
I.

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

for summary judgment of defendants Air & Liquid Systems Corporation ("Buffalo Pumps"), 1
The Fairbanks Company ("Fairbanks"), CertainTeed Corporation ("CertainTeed"), Foster
Wheeler LLC ("Foster Wheeler"), Union Carbide Corporation ("Union Carbide"), Aurora Pump
Company ("Aurora"), and Pfizer, Inc. ("Pfizer") (collectively, "Defendants"). (D.I. 75; D.I. 78;
D.I. 80; D.I. 84; D.I. 86; D.I. 87; D.I. 90) 2 Plaintiff Joan Kister ("Plaintiff' or "Mrs. Kister"),
individually, and as the Executor of the Estate of Alan B. Kister ("Mr. Kister"), did not respond
to these motions. As indicated in the chart infra and for the reasons that follow, the court

1

Air & Liquid Systems Corporation is named individually and as a wholly-owned subsidiary of
AMPCO-Pittsburgh Corporation, individually and as successor in interest to Buffalo Pumps, Inc.
(D.I. 69 at, 8)
2

All briefing associated with these motions can be found at D.I. 76; D.I. 79; D.I. 81; D.I. 85; D.I.
88; D.I. 91.

.•.

recommends GRANTING Defendants' motions for summary judgment.

Air & Liquid Systems / Buffalo Pumps

GRANT

The Fairbanks Company

GRANT

CertainTeed Corporation

GRANT

Foster Wheeler LLC

GRANT

Union Carbide Corporation

GRANT

Aurora Pump Company

GRANT

Pfizer Inc.

GRANT

II.

BACKGROUND
A. Procedural History
On October 28, 2016, Joan and Alan Kister originally filed this personal injury action

against multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr.
Kister's alleged harmful exposure to asbestos. (D.I. 1, Ex. A) On February 23, 2017, the case
was removed to this court by defendant CBS Corporation pursuant to 28 U.S.C. §§ 1442(a)(l),
the federal officer removal statue, 3 and 1446. (D.I. 1) On July 30, 2017, Mr. Kister died during
the pendency of this action. (D.I. 62) As a result, Mrs. Kister filed an amended complaint on
February 6, 2018, naming herself, individually, and as the Executor of the Estate of Mr. Kister,
as plaintiff. (D.I. 69) Buffalo Pumps, Fairbanks, CertainTeed, Foster Wheeler, Union Carbide,
Aurora, and Pfizer filed the pending motions for summary judgment, individually. (D.I. 75; D.I.
78; D.I. 80; D.I. 84; D.I. 86; D.I. 87; D.I. 90) Plaintiff did not respond to these motions. On
March 26, 2018, CertainTeed, Foster Wheeler, and Union Carbide sent a joint letter to the court

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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 ).
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seeking dismissal for Plaintiffs failure to oppose any of their respective summary judgment
motions. (D.I. 95) On April 3, 2018, Aurora sent its own letter to the court seeking dismissal.
(D.I. 98)

B. Facts
1. Mr. Kister's Alleged Exposure History

Plaintiff alleges that Mr. Kister developed mesothelioma as a result of exposure to
asbe'stos-containing materials during his employment as a pipe-coverer with Newport News
Shipbuilding and Dry Dock Co. (''Newport News") from February to August 1968. (D.I. 69 at

,r,r 4, 14)

Plaintiff contends that Mr. Kister was injured due to exposure to asbestos-containing

products that Defendants manufactured, sold, distributed, licensed, or installed. (Id. at ,r,r 5, 9)
Accordingly, Plaintiff asserts claims for negligence, willful and wanton conduct, strict liability,
loss of consortium, and wrongful death. (Id. at 7-14)

Mr. Kister was deposed on January 26, 2017. (D.I. 76 at 1) Plaintiff did not produce any
other fact or product identification witnesses for deposition. 4 In 1968, Mr. Kister was employed
by Newport News and worked at Newport News Shipyard. (D .I. 69 at ,r 4) During this time,

Mr. Kister worked aboard the USS Mobile ("the Mobile") for seven months. (D.I. 76, Ex. A at
38:22-23) While working as a pipe-coverer aboard the Mobile, Mr. Kister performed work on
pumps housed in the Mobile's pump room. (Id. at 75:23-76:76:19) Mr. Kister testified that
there were many different pumps aboard the Mobile, but the three manufacturers he recalled
encountering were "Warren, Worthington, and Ingersoll-Rand." (Id., Ex.Bat 33:4-11) Mr.
Kister did not know of any other products which may have exposed him to asbestos. (D.I. 88,

4

The deadline for completion of depositions of all co-worker, product identification, and other
exposure testimony witnesses was September 15, 2017. (D.I. 24 at 3)
3

Ex. B at 58:20-25)

2. Plaintiff's Product Identification Evidence
a. Air & Liquid Systems / Buffalo Pumps
Mr. Kister did not identify an asbestos-containing Buffalo Pumps product. (See D.I. 76,
Exs. A-B)

b. Fairbanks
Mr. Kister did not identify an asbestos-containing Fairbanks product. (See id.)

c. CertainTeed
Mr. Kister did not identify an asbestos-containing CertainTeed product. (See id.)

d. Foster Wheeler
Mr. Kister did not identify an asbestos-containing Foster Wheeler product. (See id.)

e. Union Carbide
Mr. Kister did not identify an asbestos-containing Foster Wheeler product. (See id.)

f.

Aurora

Mr. Kister did not identify an asbestos-containing Aurora product. (See id.)

g. Pfizer
Mr. Kister did not identify an asbestos-containing Pfizer product. (See id.)

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

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to return a verdict for the nomnoving 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. v. Zenith Radio

Corp., 475 U.S. 574,587 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 46061 (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
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 nomnoving party must "do more than
simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475
U.S. at 586; see also Podobnikv. US. Postal Serv., 409 F.3d 584,594 (3d Cir. 2005). 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, 4 77 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.

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· 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 of law.

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 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 that the undisputed facts warrant judgment as a matter of law.

Miller v. Ashcroft, 76 F. App'x 457,462 (3d Cir. 2003) (citing Fed. R. Civ. P. 56; Lorenzo v.
Griffith, 12 F.3d 23, 28 (3d Cir. 1993)). In other words, the court must still determine whether
the unopposed motion for summary judgment "has been properly made and supported."

Williams v. Murray, Inc., 2014 WL 3783878, *2 (D.N.J. July 31, 2014) (quoting Muskett v.

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 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

...

}
·,

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 the claims and defenses asserted
in this case. (D.I. 59)
1. Product Identification/Causation

In order to establish causation in an asbestos claim under maritime law, a plaintiff must
I

show, for each defendant, "(1) that he was exposed to the defendant's product, and (2) that the
product was a substantial factor6 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
adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017). 7

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"Maritime law incorporates traditional 'substantial factor' causation principles, and courts often
look to the Restatement (Second) of Torts for a more helpful definition." Delatte v. A. W
Chesterton Co., 2011 WL 11439126, at *l 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

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'l, Inc., 2012 WL 975837, at *1 n.1 (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
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"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."8 Abbay v. Armstrong Int'!, Inc., 2012 WL
975837, at *1 n.1 (E.D. Pa. Feb. 29, 2012) (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 *1 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 oflaw a finding of strict product[] liability."

Stark, 21 F. Appx. at 376 (citations omitted).

IV.

DISCUSSION
A. ·Air & Liquid Systems / Buffalo Pumps
The court recommends granting Buffalo Pump's motion for summary judgment, because

there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an
asbestos-containing Buffalo Pumps product. During his deposition, Mr. Kister did not identify

Circuit has most recently 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
plaintiff's injuries were a reasonably foreseeable result of the manufacturer's failure to provide a
reasonable and adequate warning. In re: Asbestos Prod. Liab. Litig. (De Vries), 873 F.3d 232,
240 (3d Cir. 2017).
8

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., 1991 WL 65201, at *4 (6th Cir. April 25,
1991 )).
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any Buffalo Pumps product. (See D.I. 76, Exs. A-B) Therefore, summary judgment should be
granted.

B. Fairbanks
The court recommends granting Fairbanks' motion for summary judgment, because there
is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an
asbestos-containing Fairbanks product. During his deposition, Mr. Kister did not identify any
Fairbanks product. (See id.) Therefore, summary judgment should be granted.

C. CertainTeed
The court recommends granting CertainTeed's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an
asbestos-containing CertainTeed product. During his deposition, Mr. Kister did not identify any
CertainTeed product. (See id.) Therefore, summary judgment should be granted.

D. Foster Wheeler
The court recommends granting Foster Wheeler's motion for summary judgment,
because there is no genuine issue of material fact in dispute as to whether Mr. Kister was
exposed to an asbestos-containing Foster Wheeler product. During his deposition, Mr. Kister did
not identify any Foster Wheeler product. (See id.) Therefore, summary judgment should be
granted.

E. Union Carbide
The court recommends granting Union Carbide's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an
asbestos-containing Union Carbide product. During his deposition, Mr. Kister did not identify
any Union Carbide product. (See id.) Therefore, summary judgment should be granted.

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...

F. Aurora
The court recommends granting Aurora's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestoscontaining Aurora product. During his deposition, Mr. Kister did not identify any Aurora
product. (See id.) Therefore, summary judgment should be granted.

G. Pfizer
The court recommends granting Pfizer's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestoscontaining Pfizer product. During his deposition, Mr. Kister did not identify any Pfizer product.

(See id.) Therefore, summary judgment should be granted.

V.

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

granting Defendants' motions for summary judgment.

Air & Liquid Systems / Buffalo Pumps

GRANT

The Fairbanks Company

GRANT

CertainTeed Corporation

GRANT

Foster Wheeler LLC

GRANT

Union Carbide Corporation

GRANT

Aurora Pump Company

GRANT

Pfizer Inc.

GRANT

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
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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: April __::f__, 2018

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