Harding et al v. A.O. Smith Corporation et al

Filing 213

REPORT AND RECOMMENDATIONS- re 168 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 2/5/2019. Signed by Judge Sherry R. Fallon on 1/22/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

IN RE: ASBESTOS LITIGATION
MICHAEL R. HARDING and
SALLY HARDING, his wife,
Plaintiffs,
v.

A. 0. SMITH CORP., et al.,
Defendants.

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Civil Action No. 17-251-MN-SRF

REPORT AND RECOMMENDATION

I.

INTRODUCTION

Presently before the court in this asbestos-related personal injury action is a motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by Marley-Wylain
Company ("Marley-Wylain" or "defendant"). 1 (D.I. 168) For the following reasons, I
recommend that defendant's motion for summary judgment should be DENIED-IN-PART and
GRANTED-IN-PART.2
II.

BACKGROUND

A. Procedural History

On January 25, 2017, plaintiffs Michael R. Harding ("Mr. Harding") and his wife, Sally
Harding (collectively, "plaintiffs"), originally filed this personal injury action against multiple
1

Marley-Wylain Company is the successor in interest to The Weil-McLain Company. (D.I. 1,
Ex. 1 at ,r 7)
2
Marley-Wylain's opening brief in support of its motion for summary judgment is D.I. 169 and
plaintiffs' answering brief is D.I. 181. Plaintiffs filed their answering brief on June 7, 2018.
(D.I. 181) Marley-Wylain's reply brief was due on June 14, 2018, but no reply brief was ever
filed. (See id.) Therefore, the court decides the pending motion for summary judgment on the
briefs submitted.

defendants in the Superior Court of Delaware, asserting claims arising from Mr. Harding's
alleged harmful exposure to asbestos. (D.1. 1, Ex. 1) On March 10, 2017, the case was removed
to this court 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 April 26, 2018, Marley-Wylain filed its pending motion
for summary judgment. (D.I. 168)

B. Facts
Plaintiffs allege that Mr. Harding developed lung cancer as a result of exposure to
asbestos-containing materials during his service as a pipefitter in the United States Navy, as well
as from his civilian work. 4 (D.I. 1, Ex. 1 at ,r,r 3-4) Plaintiffs contend that Mr. Harding was
injured due to exposure to asbestos-containing products that defendants manufactured, sold,
distributed, licensed, or installed. (Id at ,r,r 4-13) Accordingly, plaintiffs assert claims for
negligence, willful and wanton conduct, strict liability, and loss of consortium. (Id at ,r,r 14-32)
Mr. Harding was deposed on August 8 and 9, 2017. (D.I. 88) Plaintiffs did not produce
any other fact or product identification witnesses for deposition.
Before serving in the Navy, Mr. Harding first worked for Pickering Plumbing and
Heating as a plumber apprentice in New Canaan, Connecticut from 1962-1963. (D.1. 1, Ex. 1, ,r
3) He served as a pipefitter in the Navy from 1963 to 1967. (Id) Following his service, he
settled in Stamford, Connecticut and worked as an apprentice for Chuck Fratoroli from 1968 to
1970. (Id) He then worked for Verses Brothers as an apprentice and journeyman from 1970 to
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).
4
Relevant to plaintiffs' claim against Marley-Wylain, Mr. Harding's alleged exposure to WeilMcLain products is limited to his land-based employment before and after his naval service.
(D.I.181 at3;D.I.169at2)
2

1973. (Id) Mr. Harding also worked for Boyd & Swift. (Id) Finally, he worked for WR
Johnson from approximately 1973 to 1993. (Id)
Mr. Harding testified that during his career, he installed and removed sectional boilers
and package boilers, but did not perform maintenance on these boilers. (D.I. 181, Ex. A at 82:56; Ex.Bat 250:6-12) He noted that he installed approximately six to eight sectional boilers
when he started his career, and they were phased out over the years. (Id, Ex. A at 85:13-17)
Approximately half of the sectional boilers he installed were manufactured by Weil-McLain.
(Id at 87:20-25) Mr. Harding was able to identify these boilers as such because each had a

Weil-McLain nameplate and were a signature blue-gray color. (Id, Ex.Bat 252:7-21) He
described that when installing a sectional boiler, he worked with push nipples, rods, and asbestos
rope. (Id, Ex. A at 82:17-18) These materials all came packaged together. (Id at 83:2-5) Mr.
Harding did not know the manufacturer or supplier of the rope, but knew that it came with the
boiler. (Id, Ex.Bat 246:5-9) To install these sectional boilers, Mr. Harding lined up all the
sections and pulled them all together with the rope. (Id, Ex. A at 82:18-21) After this process,
he would seal the sections together with a compound paste. (Id at 83: 18-19) He would mix the
compound powder with water before spreading it on the seams with a trowel or by hand. (Id at
83:20-83:25; 84:9-12) Mr. Harding did not recall the manufacturer of the compound. (Id., Ex. B
at 247:22-24) Mr. Harding testified that both handling the rope and mixing the mud compound
created dust that he inhaled, and contends that these activities are the only ways he was exposed
to asbestos from his work installing Weil-McLain boilers. (Id, Ex. A at 87:12-19; Ex.Bat
249:23-250:2)
Mr. Harding also recounted how he removed sectional boilers and how the cleanup
process was very dusty. (Id, Ex. A at 96:2-6) He stated that he inhaled the resulting dust and

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his clothes became dusty. (Id. at 96:7-20) Mr. Harding estimated that he removed
approximately five sectional boilers per year for at least twenty years. (Id at 96:21-24) He
noted that Weil-McLain manufactured at least fifty percent of the sectional boilers he removed.
(Id. at 97: 15-20; Ex. B at 251: 1-11) Mr. Harding also stated that he removed both commercial

and residential Weil-McLain boilers, though seventy percent of those were commercial boilers.
(Id, Ex. B at 251: 15-22) While he did not know who supplied or installed the boilers he

removed, he opined that the rope he came into contact with upon removal was the same rope
from the boiler's installation. (Id. at 255:3-9) He believed that it was the original rope because
"once a sectional boiler is installed, you don't take it apart unless you're dismantling it
completely. You don't repair those ropes." (Id at 255:13-15) Mr. Harding testified that his
handling of and proximity to the rope and compound are the only ways he could be exposed to
asbestos from the removal of Weil-McLain boilers. (Id. at 256:6-10)

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 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 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

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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 of whether or not
a fact 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 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 nonmovant 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, 4 77
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.

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Civ. P. 56(e)(2)-(3). 5
B. Connecticut Law
The parties do not dispute that Connecticut law applies to all land-based claims. (D.I.
109) Under Connecticut law, a plaintiff asserting a claim for asbestos-related injuries must "1)
identify an asbestos-containing product for which a defendant is responsible, 2) prove that he has
suffered damages, and 3) prove that defendant's asbestos-containing product was a substantial
factor in causing his damages." Laposka v. Aurora Pump Co., 2004 WL 2222935, at *1 (Conn.
Super. Sept. 14, 2004) (quoting Roberts v. Owens-Corning Fiberglas Corp., 726 F. Supp. 172,
174 (W.D. Mich. 1989)). "Although other jurisdictions have struggled with the issue in relation
to asbestos-related claims, there is no settled law in Connecticut concerning any of these three
critical elements." Id
The Connecticut Supreme Court has not spoken to a specific causation standard in

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This section was added to Rule 56 to overcome cases in the Third Circuit that impaired the
utility of the summary judgment device:
A typical case is as follows: A party supports his motion for
summary judgment by affidavits or other evidentiary 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.
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.
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asbestos cases, but the court has defined "substantial factor" in other contexts. The substantial
factor test helps differentiate those injuries where the defendant "play[s] a part of so minor a
character that the law cannot recognize [it] as [a cause]." Birnie v. Elec. Boat Corp., 953 A.2d
28, 41 (Conn. 2008) (quoting Norton v. Barton's Bias Narrow Fabric Co., 138 A. 139, 140
(Conn. 1927)). The substantial factor causation standard requires contribution "to the
development of the injury in more than a de minimis way." Id (emphasis in original). "Remote
or trivial causes are generally rejected because the determination of the responsibility for
another's injury is much too important to be distracted by explorations for obscure consequences
or inconsequential causes." Kowal v. Hofh,er, 436 A.2d 1, 3 (Conn. 1980).

IV.

DISCUSSION
A. Products Liability/Asbestos Claim

As a preliminary matter, plaintiffs argue that even though Mr. Harding could not recall
the manufacturer of the rope or compound, the fact that these products were packaged with WeilMcLain boilers renders Weil-McLain liable under Conn. Gen. Stat.§ 52-572p. (D.I. 181 at 6-7)
That section states:
(a) A product seller shall not be liable for harm that would not have occurred but
for the fact that his product was altered or modified by a third party unless:
(1) The alteration or modification was in accordance with the instructions or
specifications of the product seller; (2) the alteration or modification was
made with the consent of the product seller; or (3) the alteration or
modification was the result of conduct that reasonably should have been
anticipated by the product seller.
(b) For the purposes of this section, alteration or modification includes changes in
the design, formula, function or use of the product from that originally
designed, tested or intended by the product seller.
Conn. Gen. Stat. § 52-572p. Based on this statute, plaintiffs argue that product sellers may only
use this defense for unforeseeable alterations and uses. (D.I. 181 at 6) Plaintiffs further rely

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upon this statute to argue that defendant is responsible for the foreseeable use of the rope and
compound. (Id. at 7)
Marley-Wylain argues that plaintiffs have not presented any evidence that Mr. Harding
ever worked with or around an asbestos-containing product for which it is responsible. (D.I. 169
at 9) Marley-Wylain also asserts that Mr. Harding was unable to recall the manufacturer of the
rope or compound. (Id.) Furthermore, defendant argues, even if plaintiffs were able to present
evidence that Mr. Harding worked with or around an asbestos-containing product for which
Weil-McLain is responsible, plaintiffs cannot show that such a product was a substantial factor
in causing Mr. Harding's injuries. (Id.) Marley-Wylain provides no authority to support its
argument that the rope and compound are not products for which it is responsible. (See D.I. 169
at 9-10) Marley-Wylain has not filed a rely brief; thus, it has failed to respond to plaintiffs'
argument, supported by the record, that a material issue of fact exists as to the foreseeability of
the use of asbestos-containing components with defendant's products. Plaintiffs contend that
these products were advertised, shipped with Weil-McLain boilers, and required for the boilers
to function properly. (D.I. 181 at 6; Ex. F)
Defendant has not met its evidentiary burden as the party moving for summary judgment.
"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.' Instead, that party must
come forward with sufficient evidence to support a jury verdict in his favor." Heilweil v. ABB,

Inc., 2004 WL 2284114, at *2 (Conn. Super. Ct. Sept. 14, 2004) (internal citations omitted)
(quoting Matsushita, 475 U.S. at 586 (1986); citing Anderson, 477 U.S. at 263 (1986)). "It is
only once the defendant's burden in establishing his entitlement to summary judgment is met that
the burden shifts to the plaintiff to show that a genuine issue of fact exists justifying a trial."

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Lawton v. CBS Corp., 2015 WL 5135644, at *2 (Conn. Super. Ct. July 29, 2015) (internal
brackets omitted) (quoting Romprey v. Safeco Ins. Co. ofAmerica, 77 A.3d 726, 735 (Conn.
2013)).
Although defendant has argued that plaintiffs have not provided evidence of the asbestos
content of boilers, rope, or compound, such an argument "impermissibly attempts to shift its
burden on summary judgment to the plaintiffs." Rutan v. Wayne Combustion Sys., 2011 WL
7049490, at *2 (Conn. Super. Ct. Dec. 28, 2011) (emphasis omitted). Defendant presents no
evidence other than Mr. Harding's deposition testimony to attempt to prove the absence of a
genuinely disputed material fact. The question remains whether the rope and compound are
"asbestos-containing product[ s] for which [Marley-Wylain] is responsible." Laposka, 2004 WL
2222935, at *I. See also Francoeur v. A.O. Smith Corp., 2011 WL 5084306, at *3-4 (Conn.
Super. Ct. Oct. 7, 2011); Rutan, 2011 WL 7049490, at *2. Connecticut courts have admitted
there is no settled law regarding this element, or any of the three elements for asbestos claims.
See Laposka., 2004 WL 2222935, at *I. However, Connecticut courts have denied motions for
summary judgment where defendants have failed to provide evidence "negating the claims" or
"dispel[ling] the existence of a genuine issue of material fact." Francoeur, 2011 WL 5084306,
at *4; Rutan, 2011 WL 7049490, at *2.
There is also a genuine issue of material fact as to whether defendant's product was a
substantial factor in causing Mr. Harding's injuries. Defendant claims that cutting the rope and
applying the compound only produced a small amount of dust and is therefore de minimis. (D.I.
169 at 10) Defendant ignores Mr. Harding's testimony that he installed six to eight boilers when
he started his career and removed five boilers per year for at least twenty years. (D.I. 181, Ex. A
at 85:13-17; 96:21-24) Mr. Harding testified that at least half of these boilers were manufactured

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by Weil-McLain. (Id at 87:20-25; Ex. B at 251: 15-22) Defendant has failed to satisfy its
burden and has not presented any evidence or authority to demonstrate a lack of genuine issue of
material fact regarding causation. See Rutan, 2011 WL 7049490, at *2; Francoeur, 2011 WL
5084306, at *2-4. Therefore, the court recommends denying defendant's motion for summary
judgment.
B. 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)). Under Connecticut law,

punitive damages may be awarded in products liability actions if the plaintiff provides evidence
that defendant acted with "reckless disregard for the safety of the product users, consumers or
others who were injured by the product." Conn. Gen. Stat.§ 52-240b.
In support of their claim, plaintiffs cite to one journal article explaining that the hazards

of asbestos were suggested by the scientific community as early as 1935. (D.I. 181 at 4, 7; Ex.
C) However, plaintiffs fail to produce any evidence regarding defendant's 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.l (E.D. Pa. Oct. 1, 2014); In re Asbestos Litig., C.A. No. 15-

395-GMS-SRF, 2017 WL 3592451, at *8 (D. Del. Aug. 21, 2017). Therefore, the court
recommends granting defendant's motion for summary judgment with respect to plaintiffs'

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punitive damages claims.
V.

CONCLUSION

For the foregoing reasons, the court recommends denying-in-part and granting-in-part
defendant's motion for summary judgment. (D.I. 168)
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 ll, 2019

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