Johansen v. Air & Liquid Systems Corporation et al

Filing 183

REPORT AND RECOMMENDATIONS- re #156 MOTION for Summary Judgment, #141 MOTION for Summary Judgment, #138 MOTION for Summary Judgment, #169 MOTION for Summary Judgment, #149 MOTION for Summary Judgment, #163 MOTION for Summary Judgment, #154 MOTION for Summary Judgment, #151 MOTION for Summary Judgment, #161 MOTION for Summary Judgment, #165 MOTION for Summary Judgment, #167 MOTION for Summary Judgment, #147 MOTION for Summary Judgment, #143 MOTION for Summary Judgment, #159 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 2/6/2019. Signed by Judge Sherry R. Fallon on 1/23/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

WILLIAM J. JOHANSEN
Plaintiff,
v.
AIR & LIQUID SYSTEMS
CORPORATION et al
Defendants.

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Civil Action No. 17-452-MN-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION

Presently before the court in this asbestos-related personal injury action are the motions
for summary judgment of fourteen defendants, Air & Liquid Systems Corporation 1 ("Air &
Liquid") (D.I. 161), Anchor/Darling Valve Company ("Anchor Darling") (D.I. 151), Atwood &
Morrill Co. 2 ("Atwood") (D.I. 165), Armstrong International, Inc. ("Armstrong") (D.I. 138),
Crosby Valve LLC ("Crosby") (D.I. 143), Flowserve U.S., Inc. 3 ("Flowserve") (D.I. 154), FMC
Corporation4 ("FMC") (D.I. 149), Gardner Denver, Inc. ("Gardner Denver") (D.I. 141), Jenkins

1

Air & Liquid Systems Corporation is a successor by merger to Buffalo Pumps, Inc. (D.I. 162 at
1) Air & Liquid claims it was originally sued incorrectly "individually and as wholly-owned
subsidiary of AMPCO-PITTSBURG CORPORATION." (D.I. 162 at 1; D.I. 1, Ex. 1 at ,r 8)
2
Atwood & Morrill was acquired by Weir. (D.I. 166 at 5) Atwood claims it was originally sued
incorrectly as "d/b/a WEIR VALVES & CONTROLS USA, INC." (D.I. 166 at 1; D.I. 1, Ex. 1
at ,r 8)
3
Flowserve U.S., Inc. is a successor to Edward Vogt Valve Company, Vogt Valve Co.,
Nordstrom Valves, Inc., Edward Valves, Inc., and Rockwell Manufacturing Company. (D.I. 155
at 1)
4
FMC is a successor through acquisition of Northern Pump Company, Chicago Pump Company,
and Peerless Pump Company. (D.I. 1, Ex. 1 at ,r 8)

contained asbestos. (Id at 60:8-21) In total, Mr. Johansen worked on approximately twelve
valves at Cubi Point, but cannot recall where they were located within the liquid oxygen plant or
the specific manufacturers of the valves he encountered there. (Id at 61:13-20, 62:7-23) Mr.
Johansen also cannot recall the frequency with which he repaired valves nor could he describe
identifying features of the pumps. (Id, Ex.Bat 74:2-12, 80:20-25) He left the Cubi Point liquid
oxygen plant in December 1964. (Id at 83:1-3)
Following his work at Cubi Point, Mr. Johansen then served as a machinist mate aboard
the USS Valley Forge, a helicopter carrier. (Id, Ex. A at 65:9-20) His duties aboard the USS

Valley Forge were similar to those at Cubi Point- operating and repairing hydraulic pumps and
evaporators. (Id at 66:4-17) Mr. Johansen does not believe his work with hydraulic pumps
contributed to his asbestos exposure, but believes he was exposed to asbestos when he worked on
evaporators. (Id at 68:15-25) When working on evaporators, Mr. Johansen would "remove a lot
of insulation to get to the flanges to remove the ... pipes out of the evaporator." (Id at 69:1-8)
After removing this insulation, Mr. Johansen would conduct the same gasket replacement and
packing removal process that he practiced at Cubi Point, and, thus, believes he was similarly
exposed to asbestos. (Id at 74:9-75:4, 75:25-76:8, 77:4-20) Furthermore, he testified that he
had to occasionally change steam traps by unbolting them, removing the insulation, and
installing new steam traps. (D.I. 139, Ex.Bat 114:23-116:8) Mr. Johansen could not recall how
many valves he had worked on while serving on the USS Valley Forge, how many valves were
aboard the ship, or the specific manufacturers of valves aboard the USS Valley Forge. (D.I. 155,
Ex. A at 77:21-78:2, 83:14-21, 83:24-85:6)
After his honorable discharge in 1966, Mr. Johansen worked in a pulp mill in Alaska for
approximately nine months before working as a deck hand for tugboats. (Id at 100:25-101 :22,

5

103:1-16) He later started work at Todd Shipyard as a journeyman pipefitter, installing piping
systems on ships and repairing piping and valves. (Id at 103:19-104:20) This work mirrored the
same processes of removing insulation, replacing gaskets, and replacing packing that he
conducted while serving in the Navy. (Id at 107:6-108:15) Mr. Johansen believes this exposure
to the insulation, gaskets, and packing constituted exposure to asbestos. (Id. at 109:8-13) Mr.
Johansen also expanded his responsibilities at Todd Shipyard to installing piping systems and
valves. (Id. at 112: 11-19) While he did not personally install the insulation on the pipes, Mr.
Johansen was occasionally present when individuals mixed a powdered material before applying
the mixture to the pipes (Id. at 113:1-6, 114:3-13) Mr. Johansen believes that this material
contained asbestos and he was therefore exposed when he helped install piping systems. (Id. at
114: 10-16) Mr. Johansen could not identify how many times he removed or installed new
packing, the brand name or manufacturer of the packing he removed, or the brand name or
manufacturer of the piping he installed. (Id., Ex.Bat 133:20-134:4)
After working at Todd Shipyard, Mr. Johansen worked on a tugboat in Everrett,
Washington for about seven months. (Id., Ex. A at 117:14-25) He then worked as a journeyman
pipefitter at Lockheed Shipyard for approximately three or four months. (Id. at 118:8-21) At
Lockheed Shipyard, Mr. Johansen installed new piping on Navy ships. (Id. at 119:8-14) Again,
Mr. Johansen did not install the insulation, but was present when others did, and the same
powdered material and mixture were used. (Id. at 119:18-120:7) Mr. Johansen also could not
recall a specific brand or manufacturer of the pumps, valves, gaskets, or packing that he worked
with while working at Lockheed Shipyard. (Id, Ex.Bat 142:20-143:8)
Mr. Johansen was diagnosed with mesothelioma in December 2016. (D.I. 157, Ex.Bat
145:8-11)

6

2. Plaintiff's product identification evidence
Plaintiff is the sole product identification witness in this case and his deposition occurred
on March 14 and 15, 2017. (D.I. 135) A supplemental deposition occurred on July 11, 2018.
(Id.)

a. Air & Liquid System Corporation
Mr. Johansen identified Buffalo Pumps as one of several manufacturers of pumps he
encountered during his career, both during his service in the Navy and in his subsequent
employment. (D.I. 162, Ex. A at 95:3-17) Mr. Johansen was unable to identify specifically
which employer or in which locations he encountered Buffalo pumps. (Id., Ex. B at 221 :2-12)
He also could not speak to the maintenance history of the pumps. (Id. at 208: 10-18) Finally, Mr.
Johansen could not recall a specific operating temperature for any pumps, the size of any specific
brand of pump, or the orientation (horizontal or vertical) of any pumps. (Id. at 218: 10-219:6)
b. Anchor/Darling Valve Company
Mr. Johansen did not identify any asbestos-containing Anchor Darling products or
exposure to any Anchor Darling products. (D.I. 152 at 1-2, 4)
c. Atwood & Morrill Co.
Mr. Johansen named Weir in his original deposition as one of several manufacturers of
valves he encountered. (D.1. 166, Ex.Bat 63:4-9, 84:13-85:6) Mr. Johansen was unable to
place Weir valves at a specific jobsite or with a specific employer. (Id. at Ex.Eat 10:20-23) He
could not provide model numbers or serial numbers for Weir valves. (Id. at 10:24-11 :5) Mr.
Johansen also could not describe the color, material, dimensions, weight, type, maintenance
history, or age of Weir valves. (Id. at 11 :6-24, 12:16-23) He was also unable to provide
information as to whether he worked with Weir valves more than valves made by other

7

manufacturers. (Id., Ex. D at 191:6-10) Finally, Mr. Johansen could not recall the substance that
flowed through Weir valves or what work he specifically did on these valves. (Id., Ex.Eat
11:25-12:5, 12:24-13:7)
Mr. Johansen testified regarding Atwood valves separately at his supplemental
deposition. He was unable to recount the frequency with which he was exposed to Atwood
valves or where he had seen Atwood valves. (Id. at 22:18-22, 28:21-25). Mr. Johansen could
not describe the color, dimensions, maintenance history, type, or age of Atwood valves. (Id. at
29:1-14, 32:8-14) Finally, Mr. Johansen could not remember what substance flowed through
Atwood valves. (Id. at 32:5-7)
d. Armstrong International, Inc.
Mr. Johansen indicated that he changed steam traps while serving aboard the USS Valley
Forge, and noted that he replaced them approximately two or three times. (D.I. 139, Ex.Bat

191 :22-25) He named Armstrong as the manufacturer of the steam traps on which he performed
the work he described. (Id. at 117:9-12) Mr. Johansen recalled that steam traps came in various
sizes, but was unable to describe the different types of steam traps. (Id. at 116:24-117:8)
e. Crosby Valve LLC
Mr. Johansen identified Crosby as one of several manufacturers of valves he encountered
during his career. (D.I. 144, Ex.Bat 63:4-9, 83:24-85:6) However, he could not recount the
maintenance history of those valves. (Id., Ex. A at 195:7-10) Mr. Johansen could not provide
details specific to Crosby valves, such as whether they were spring-loaded or had open-body
valves. (Id. at 194:2-9) Rather, he noted that "the name was familiar." (Id. at 194:13-21)
f.

Flowserve U.S., Inc.

Mr. Johansen named Vogt among several manufacturers who made valves that he had

8

encountered throughout his career. (D.I. 155, Ex. A at 63:4-9, 83:24-85:6) However, he was
unable to provide details as to where and when he worked with Vogt valves. (Id., Ex. C at
227:10-15) Additionally, Mr. Johansen could not recall the maintenance history, age, size, type,
or application of Vogt valves. (Id. at 227:25-228:15) He did not know the brand name or
manufacturer of any of the gasket or packing material that he may have used in connection with
a Vogt valve. (Id. at 228:16-229:1)
g. FMC Corporation

Mr. Johansen recalled Chicago Pumps, along with several other manufacturers who made
pumps that he encountered during his career. (D.I. 150, Ex.Bat 79:4-12) He was unable to
identify where he encountered a Chicago pump, describe what a Chicago pump looked like,
recount the application of Chicago pumps, or recall specific work he performed on Chicago
pumps. (Id., Ex.Cat 222:23-223:22) Additionally, Mr. Johansen was unable to testify as to
whether Chicago pumps had flanges and could not recall how many times he encountered a
Chicago pump. (Id. at 224:7-16) Instead, he testified that he could not "recall it specifically
being a Chicago pump ... just pumps in general." (Id. at 223: 10-22)
h. Gardner Denver, Inc.

Mr. Johansen identified Gardner Denver as one of several manufacturers of pumps he
encountered. (D.I. 142, Ex. A at 95:3-17) He could not, however, identify where he
encountered a Gardner Denver pump, what substance flowed through a Gardner Denver pump,
or what work he did on a Gardner Denver pump. (Id., Ex.Bat 225:2-5, 225:11-14, 226:3-7)
Mr. Johansen could not recount the number, maintenance history, type, model number, serial
number, size, or color of Gardner Denver pumps to which he was exposed. (Id. at 225 :6-10,
225:15-226:2, 226:8-11)

9

i.

Jenkins Bros.

Jenkins Bros. was named as a valve manufacturer that Mr. Johansen encountered during
his career. (D.I. 164, Ex. A at 62:16-63:13) Mr. Johansen could not describe the shape, size,
model numbers, or substance that flowed through any manufacturer's valve. (Id, Ex. B at 170:223) Additionally, he admitted that there was nothing that he could recall that distinguished
_Jenkins valves from other valves to which he was exposed. (Id at 256:15-257:1)
j.

Kunkle Industries, Inc.

Mr. Johansen identified Kunkle among several valve manufacturers he generally recalled
during his career. (D.I. 148, Ex.Bat 62:16-63:13) However, he could not recall any specific
information regarding the size, shape, or location of any Kunkle valves he encountered. (Id, Ex.
A at 195:16-24)
k. Nash Engineering Holdings LLC
Nash was one of several pump manufacturers that Mr. Johansen testified he was exposed
to during his career. (D.I. 168, Ex. A at 95:3-17) In his most recent deposition, Mr. Johansen
was unable to describe where he had encountered a Nash pump. (Id., Ex. D at 15:7-9) He could
not recall a model number, serial number, color, material, dimensions, weight, type, age, or
maintenance history of a Nash pump. (Id. at 15:10-16:4, 16:13-19) Mr. Johansen could not state
what substance flowed through a Nash pump or characteristics identifying a Nash pump. (Id. at
16:5-12) Finally, Mr. Johansen could not remember what work he had specifically performed on
Nash pumps. (Id. at 16:20-17:1)

I.

Neles-Jamesbury, Inc.

Mr. Johansen identified Neles-Jamesbury as a manufacturer of valves he encountered.
(D.I. 157, Ex.Cat 78:2-79:7) Mr. Johansen could not recall a specific workplace where he

10

encountered valves manufactured by Neles-Jamesbury nor did he have a specific recollection of
working on a Neles-Jamesbury valve. (Id., Ex. D at 252:15-19, 255:10-16) He could not
describe the material, size, or color ofNeles-Jamesbury valves. (Id. at 253:14-23) Mr. Johansen
could not specifically recall any distinguishing features of a Neles-Jamesbury valve. (Id. at
254:3-24) Finally, Mr. Johansen could not identify whether Neles-Jamesbury valves had a lever
handle or a wheel handle. (Id. at 253:24-254:2)
m. Red-White Valve Corp.
Mr. Johansen recognized Red-White as one of several manufacturers of valves he
generally recalled. (D.I.171,Ex.1 at78:2-79:7)
There was no testimony specific to Red-White apart from a generalized identification.
(Id. at 169: 19-170: 1) Mr. Johansen admitted that he was unable to distinguish the valves on

which he performed most of his work. (Id.) He was unable to describe the size, shape, model
number, material, or substance that flowed through any particular valve. (Id. at 170:2-23)
n. Warren Pumps, LLC
Mr. Johansen did not provide any deposition testimony specific to Warren. (See D.I. 160,
Ex. A) Mr. Johansen included Warren generally among the group of pump manufacturers he
recalled. (D.I. 160 at 2) He is unable to provide more specific testimony relating particular
pumps to certain worksites nor can he provide descriptive features for any pumps he recalls.
(Id., Ex. A at 118:17-25, 142:20-25)

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.

11

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
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

12

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.
Civ. P. 56(e)(2)-(3). 9 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

9

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.
13

the unopposed motion for summary judgment "has been properly made and supported."
Williams v. Murray, Inc., 2014 WL 3783878, at *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: Product Identification/Causation
The parties do not dispute that maritime law applies to all Naval/sea-based claims. 10 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 11 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,
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

°

1

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).
11
"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).
14

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). 12

"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." 13 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 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

12

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).
13
However, "'substantial exposure is necessary to draw an inference from circumstantial
evidence that the exposure was a substantial factor in causing the injury."' Stark, 21 F. App'x. at
376 (quoting Harbour v. Armstrong World Indus., Inc., 1991 WL 65201, at *4 (6th Cir. April 25,
1991)).
15

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).

C. Washington Law
The parties do not dispute that Washington law applies to all land-based claims. (D.I.
105) Under Washington law, a plaintiff asserting a claim for asbestos-related injuries must
"establish a reasonable connection between the injury, the product causing the injury, and the
manufacturer of that product. In order to have a cause of action, the plaintiff must identify the
particular manufacturer of the product that caused the injury." Lockwood v. AC & S, Inc., 744
P.2d 605,612 (Wash. 1987) (citing Martin v. Abbott Labs., 102 Wash. 2d 581,590 (1984)).
Washington law requires plaintiffs to establish that exposure to asbestos from a particular
product was a "substantial factor" in causing the plaintiff's injuries. See Barabin v. Albany
Intern. Corp., 2009 WL 2578967, at *5-6 (W.D. Wash. Aug. 18, 2009); Barabin v.
Asten.Johnson, Inc., 2010 WL 11613472, at *2-3 (W.D. Wash. Dec. 10, 2010). In identifying

manufacturers, plaintiffs may rely on witness testimony, but the burden remains on the plaintiff
to make this identification and establish a causal connection between the injury, product, and
manufacturer of that product. Lockwood, 744 P.2d at 612-13. Courts should consider:
the evidence of plaintiff's proximity to the asbestos product when
the exposure occurred and the expanse of the work site where
asbestos fibers were released. They should also take into account
the extent of time that the plaintiff was exposed to the product. ...
Court should also consider the types of asbestos products to which
the plaintiff was exposed and the ways in which such products
were handled and used. In addition, trial courts must consider the
evidence presented as to medical causation of the plaintiff's
particular disease.

16

Id. at 613.
IV.

DISCUSSION
A. Air & Liquid System Corporation
The court recommends granting Air & Liquid's motion for summary judgment, because

there is no genuine issue of material fact in dispute as to whether an Air & Liquid product was a
substantial factor in causing Mr. Johansen's injuries. Although Mr. Johansen was able to name
Buffalo pumps in his deposition, he was unable to specifically identify which employer or on
whichjobsites he encountered Buffalo pumps. (D.1. 162, Ex. A at 95:12-17; Ex.Bat 221 :2-12)
There is no mention within the record regarding the frequency with which Mr. Johansen was
exposed to Buffalo pumps or whether Buffalo pumps were the most prevalent pumps in his line
of work. (See id., Ex. A; Ex. B) Mr. Johansen was unable to name the brand name or
manufacturer of the packing or gaskets removed from pumps in general while he served in the
Navy. (Id., Ex.Bat 214:3-7, 217:4-9) Plaintiff has failed to provide evidence that Air &
Liquid's products were a substantial factor in causing Mr. Johansen's injuries, as required by
maritime law. As such, the court recommends granting Air & Liquid's motion for summary
judgment.

B. Anchor/Darling Valve Company
The court recommends granting Anchor Darling's motion for summary judgment,
because there is no genuine issue of material fact in dispute as to whether an Anchor Darling
product was a substantial factor in causing Mr. Johansen's injuries. The plaintiff has failed to
identify exposure to an Anchor Darling product in his testimony under oath. The lack of
evidence in the record on product identification and nexus supports dismissal of the claims
against Anchor Darling as a matter of law. Therefore, the court recommends granting Anchor

17

Darling's motion for summary judgment.

C. Atwood & Morrill Co.
The court recommends granting Atwood's motion for summary judgment, because there
is no genuine issue of material fact in dispute as to whether a Weir product was a substantial
factor in causing Mr. Johansen's injuries. Mr. Johansen identified Weir as one of the
manufacturers of valves he recalls in general. (D.I. 166, Ex.Bat 63:4-9) However, Mr.
Johansen was unable to provide details regarding where and how often he worked on or around
Weir or Atwood valves. (Id., Ex.Eat 10:20-23; Ex. D at 191 :6-10) Mr. Johansen could not
recall the color, material, dimensions, weight, type, maintenance history, or age of these valves.

(Id., Ex.Eat 11:6-24, 12:16-23)
Furthermore, when asked how, if at all, he was able to identify a Weir valves, Mr.
Johansen testified:
Q:

Sir, how do you know that a valve was a Weir valve?

A:
Well, as I remember, the - all the equipment had some kind of name on it, the
manufacturer name; saw it on them somehow.
Q:
Was it embossed into the Weir vales or was there a nameplate? Is there anything
else you could tell me, any specifics you could tell me?
A:

No. I couldn't tell you on that, no.

(Id., Ex. Eat 12:6-15) Atwood has presented evidence that, prior to approximately 1990, it did
not manufacture any valves with the word "Weir" on the valve and that any valves that were
thereafter manufactured with the name "Weir" did not contain any asbestos-containing
components. (Id., Ex. F at 2)
With respect to Atwood valves, Mr. Johansen has similarly failed to provide evidence
that Atwood valves were a substantial factor in causing his injuries. Mr. Johansen was unable to

18

recount how often he performed work on or around Atwood valves. (Id., Ex.Eat 28:21-25) He
could not describe the color, dimensions, maintenance history, type, or age of Atwood valves.

(Id. at 29:1-14, 32:5-14) Mr. Johansen could not remember the brand name or manufacturer of
the gasket or packing material used in connection with Atwood valves. (Id. at 31 :20-32:4)
Plaintiff has failed to provide evidence that Atwood's products were a substantial factor
in causing his injuries, as required by maritime law and Washington law. Therefore, the court
recommends granting Atwood's motion for summary judgment.
D. Armstrong International, Inc.

The court recommends granting Armstrong's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether an Armstrong product was a
substantial factor in causing Mr. Johansen's injuries. Mr. Johansen recounted his work with
steam traps and named Armstrong as the manufacturer of steam traps he interacted with aboard
the USS Valley Forge. (D.I. 139, Ex. B at 117:9-12) Mr. Johansen noted his work on steam
traps was limited to a 20-month period aboard the USS Valley Forge. (Id. at 191:11-16)
However, he noted that during that period, he only replaced steam traps approximately "two or
three times." (Id. at 191:17-25) He replaced steam traps, but never repaired them. (Id. at 116:36) Mr. Johansen claims exposure related to flange gaskets and insulation, but the insulation was
not provided by Armstrong. (D.I. 139 at 6; Ex.Bat 116:6-18) Plaintiffs deposition testimony
fails to create a genuine issue of material fact as to whether Armstrong's products were a
substantial factor in causing his injuries, as required under maritime law. See Lindstrom, 424
F.3d at 492. Accordingly, the court recommends granting Armstrong's motion for summary
judgment.

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E. Crosby Valve LLC
The court recommends granting Crosby's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether a Crosby product was a substantial
factor in causing Mr. Johansen's injuries. Mr. Johansen named Crosby as a valve manufacturer
he was exposed to generally during his career. (D.I. 144, Ex.Bat 63:4-9) He could not recall,
however, whether the valves were spring-loaded or open-body. (Id., Ex. A at 194:2-9) Mr.
Johansen testified:
Q:
Is there anything specific that you can tell me about a Crosby valve regarding how
it's calibrated?
A:

All I remember is the name was familiar as working on valves.

Q:
So there is nothing other than the name that you recall regarding Crosby that you
can give me any additional information?
A:

That is correct.

(Id. at 194:13-21) Crosby offers the affidavit and deposition of Captain William A. Lowell
("Captain Lowell"), a former U.S. Naval officer and engineer who personally performed and
supervised the maintenance of Crosby valves aboard naval ships. (D.I. 144, Ex. C; Ex. D)
Captain Lowell's testimony provides that "Crosby did not design, manufacture, supply or sell
safety valves that utilized asbestos-containing internal components such as gaskets or packing."

(Id., Ex.Cat~ 18) Plaintiffs deposition testimony fails to create a material issue of fact as to
whether Crosby's products were a substantial factor in causing his injuries, as required under
maritime law and Washington law. Plaintiff has not responded to this motion so there is no
evidence from the record provided to the court which would create a dispute of material fact in
this instance. Consequently, the court recommends granting Crosby's motion for summary
judgment.

20

F. Flowserve U.S., Inc.

The court recommends granting Flowserve's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether a Vogt product was a
substantial factor in causing Mr. Johansen's injuries. Mr. Johansen named Vogt as a valve
manufacturer whose products he encountered throughout his career. (D.I. 155, Ex. A at 63:4-9;
Ex. B at 78:23-79:3) Despite this identification, Mr. Johansen could not specify where or when
he was exposed to Vogt valves or Vogt valves' size, type, application, maintenance history, or
age. (Id, Ex.Cat 227:10-15, 227:25-228:15) Additionally, Mr. Johansen could not recall the
brand name or manufacturer of any gasket or packing material that may have been used in
connection with Vogt valves. (Id at 228:16-229:1) Plaintiffs testimony fails to show that Vogt
products were a substantial factor in causing his injury, as required under maritime law and
Washington law. As such, the court recommends granting Flowserve's motion for summary
judgment.
G. FMC Corporation

The court recommends granting FMC's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether a FMC product was a substantial factor
in causing Mr. Johansen's injuries. Mr. Johansen testified he remembered a list of pump
manufacturers, which included Chicago Pumps, throughout his career. (D.I. 150, Ex.Bat 79:412) Despite this identification, Mr. Johansen could not identify where he had seen a Chicago
pump. (Id, Ex.Cat 222:23-223:2) Furthermore, Mr. Johansen could not describe the physical
attributes, maintenance history, or application of Chicago pumps. (Id at 223:3-9, 223:23-224:3)
He could not recall what work he performed nor how often he was exposed to Chicago pumps.

(Id at 223:10-22, 224:12-16) Finally, he could not recall if the Chicago pump had a flange. (Id

21

at 224:7-11) Plaintiffs deposition testimony fails to create a material issue of fact as to whether
FMC's products were a substantial factor in causing his injuries, as required under maritime and
Washington law. Therefore, the court recommends granting FMC's motion for summary
judgment.
H. Gardner Denver, Inc.

The court recommends granting Gardner Denver's motion for summary judgment,
because there is no genuine issue of material fact in dispute as to whether a Gardner Denver
product was a substantial factor in causing Mr. Johansen's injuries. Mr. Johansen named
Gardner Denver as a manufacturer of pumps he had encountered during his career. (D.I. 142,
Ex. A at 95:3-17) Mr. Johansen could not describe where he encountered Gardner Denver
pumps, the work he performed on Gardner Denver pumps, the frequency with which he worked
on Gardner Denver pumps, or what substance flowed through Gardner Denver pumps. (Id., Ex.
Bat 225:2-5, 225:11-14, 225:24-226:7) Furthermore, he could not describe the model or serial
number, size, color, type, or maintenance history of Gardner Denver pumps. (Id. at 225:6-10,
225:15-23, 226:8-11) Plaintiffs deposition testimony fails to create a material issue of fact as to
whether Gardner Denver's products were a substantial factor in causing his injuries. Thus, the
court recommends granting Gardner Denver's motion for summary judgment.
I. Jenkins Bros.

The court recommends granting Jenkins Bros. 's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether a Jenkins Bros. product was a
substantial factor in causing Mr. Johansen's injuries. Mr. Johansen identified Jenkins Bros. as a
manufacturer of valves he worked with during his career. (D.I. 164, Ex. A at 63:4-9) Mr.
Johansen admitted that there was nothing that distinguished Jenkins valves from other valves that

22

he encountered. (Id., Ex.Bat 256:22-257:1) Plaintiffs deposition testimony fails to create a
material issue of fact as to whether Jenkins Bros.' s products were a substantial factor in causing
his injuries, as required under maritime and Washington law. Therefore, the court recommends
granting Jenkins Bros.'s motion for summary judgment.
J. Kunkle Industries, Inc.
The court recommends granting Kunkle's motion for summary judgment, because there
is no genuine issue of material fact in dispute as to whether a Kunkle product was a substantial
factor in causing Mr. Johansen's injuries. Mr. Johansen identified Kunkle as a manufacturer of
valves he worked with during his career. (D.I. 148, Ex.Bat 63:4-9) However, Mr. Johansen
could not provide any information regarding the size, type, or location of any Kunkle valves to
which he was exposed. (Id., Ex. A at 195:20-24) Plaintiffs deposition testimony fails to create
a material issue of fact as to whether Kunkle's products were a substantial factor in causing his
injuries, as required under maritime and Washington law. As such, the court recommends
granting Kunkle's motion for summary judgment.
K. Nash Engineering Holdings LLC
The court recommends granting Nash's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether a Nash product was a substantial factor
in causing Mr. Johansen's injuries. Nash was one of several pump manufacturers that Mr.
Johansen generally recalled. (D.I. 168, Ex. A at 95:12-17) Mr. Johansen conceded that he could
not recall where he encountered a Nash pump, what substance flowed through a Nash pump, or
specific work he performed on a Nash pump. (Id., Ex. D at 15:7-9, 16:5-7, 16:20-17:1)
Furthermore, Mr. Johansen could not identify a model number, serial number, color, material,
dimensions, weight, type, maintenance history, or age of any Nash pump. (Id. at 15:10-16:7,

23

16:13-19) He was unable to describe any of Nash pumps' distinguishing features. (Id. at 16:812) Finally, Mr. Johansen testified that he did not know the brand name or manufacturer of any
gasket or packing materials that he may have used in connection with a Nash pump. (Id. at 17:211) Plaintiffs deposition testimony fails to create a material issue of fact as to whether Nash's
products were a substantial factor in causing his injuries, as required under maritime and
Washington law. Therefore, the court recommends granting Nash's motion for summary
judgment.
L. Neles-Jamesbury, Inc.

The court recommends granting Neles-Jamesbury's motion for summary judgment,
because there is no genuine issue of material fact in dispute as to whether a Neles-Jarnesbury
product was a substantial factor in causing Mr. Johansen's injuries. Mr. Johansen identified
Neles-Jamesbury as one of many valve manufacturers whose products he generally recalled.
(D.I. 157, Ex.Cat 78:23-79:3) Mr. Johansen admitted he could not remember a specific
worksite in which he encountered Neles-Jamesbury valves, a specific work performed on NelesJarnesbury valves, or whether Neles-Jarnesbury valves had a level or wheel handle. (Id., Ex. D
at 252: 15-19, 253 :24-254:2, 255: 10-16) Furthermore, he could not recall the age, maintenance
history, type, material, size, or color ofNeles-Jarnesbury valves. (Id. at 253:7-23) When asked
how he could distinguish Neles-Jarnesbury valves from other valves, Mr. Johansen responded
that "[i]t probably had a name on the casting or some kind of designation on the casting." (Id. at
254:3-8) However, when questioned further, Mr. Johansen was unable to recall how the lettering
appeared on a Neles-Jamesbury valve, the color of the lettering, or how the name was spelled.

(Jd. at 254: 16-24) Plaintiffs deposition testimony fails to create a material issue of fact as to
whether Neles-Jamesbury's products were a substantial factor in causing his injuries, as required

24

under maritime and Washington law. As such, the court recommends granting NelesJamesbury' s motion for summary judgment.

M. Red-White Valve Corp.
The court recommends granting Red-White's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether a Red-White product was a
substantial factor in causing Mr. Johansen's injuries. Mr. Johansen recognized Red-White as a
manufacturer of valves to which he was exposed. (D.I. 171, Ex. 1 at 78:23-79:3) Mr. Johansen
conceded that he would not be able to say which valves he worked with most. (Id. at 169: 19170: 1) He also was unable to describe the size, shape, model number, valve material, or
substance that flowed through any particular valve. (Id. at 170:2-23) Plaintiff has failed to
provide evidence that Red-White's products were a substantial factor in causing his injuries, as
required under maritime and Washington law. Therefore, the court recommends granting RedWhite's motion for summary judgment.

N. Warren Pumps, LLC
The court recommends granting Warren's motion for summary judgment, because there
is no genuine issue of material fact in dispute as to whether a Warren product was a substantial
factor in causing Mr. Johansen's injuries. Mr. Johansen spoke generally regarding his inability
to place any pump at any of his worksites or describe any pumps. (D.I. 160, Ex. A at 118:17-25,
142:20-24) Plaintiff has failed to provide evidence that Warren's products were a substantial
factor in causing his injuries, as required under maritime and Washington law. Thus, the court
recommends granting Warren's motion for summary judgment.

25

V.

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

granting defendants' motions for summary judgment.

,:•\ ::±*,

~h,>11,

:,~eJenllaJt,;;: :~:

\;,t,,

'~z

<,<

. ,,,,,,:;l\li;,jion~or'.$J1itmaty wtt~iaeilt:>;~p

Air & Liquid Systems Corporation

GRANT

Anchor/Darling Valve Company

GRANT

Atwood & Morrill Co.

GRANT

Armstrong International, Inc.

GRANT

Crosby Valve LLC

GRANT

Flowserve U.S., Inc.

GRANT

FMC Corporation

GRANT

Gardner Denver, Inc.

GRANT

Jenkins Bros.

GRANT

Kunkle Industries, Inc.

GRANT

Nash Engineering Holdings LLC

GRANT

Neles-Jamesbury, Inc.

GRANT

Red-White Valve Corp.

GRANT

Warren Pumps, LLC

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
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).

26

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

27