Gustavson v. Crane Co. et al

Filing 147

REPORT AND RECOMMENDATIONS- re 132 MOTION for Summary Judgment, 124 MOTION for Summary Judgment, 113 MOTION for Summary Judgment, 116 MOTION for Summary Judgment, 114 MOTION for Summary Judgment, 130 MOTION for Summary Judgment, 119 MOTION for Summary Judgment, 120 MOTION for Summary Judgment, 122 MOTION for Summary Judgment, 126 MOTION for Summary Judgment, 128 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 5/28/2019. Signed by Judge Sherry R. Fallon on 5/14/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
)
GLENDA GUSTAVSON, Individually
)
and as Successor in Interest to the Estate of )
CARL D. GUSTAVSON, deceased,
)
)
Plaintiff,
)
)
V.
)
)
)
AIR & LIQUID SYSTEMS
CORPORATION et al.,
)
)
Defendants.
)

IN RE: ASBESTOS LITIGATION

Civil Action No. 17-1472-MN-SRF

REPORT AND RECOMMENDATION

I.

INTRODUCTION
Presently before the court in this asbestos-related wrongful death action are the motions

for summary judgment of Air & Liquid Systems Corporation ("Air & Liquid") 1 (D.I. 130),
Aurora Pump Company ("Aurora") (D.I. 124), Blackmer Pump Company ("Blackmer") (D.I.
116), BW/IP Inc. ("BW/IP")2 (D.I. 126), CBS Corporation ("CBS") 3 (D.I. 119), Eaton
Corporation ("Eaton") 4 (D.I. 122), Flowserve U.S., Inc. ("Flowserve") 5 (D.I. 113), FMC
Corporation ("FMC") 6 (D.I. 114), Gardner Denver, Inc. ("Gardner Denver") (D.I. 120), Warren

1

Air & Liquid is a successor-by-merger to Buffalo Pumps, Inc. (D.I. 131 at 1)
BW/IP is a successor to Byron Jackson Pumps. (D.I. 127; D.I. 1, Ex. A at 1)
3
CBS Corp. is a successor to Westinghouse Electric Corporation ("Westinghouse"). (D.I. 121 at

2

1)
4

Eaton is a successor-in-interest to Cutler-Hammer, Inc. (D.I. 1, Ex. A at 1)
Flowserve US Inc. is the successor to Edward Vogt Valve Company, Vogt Valve Co.,
Nordstrom Valves, Inc., Edward Valves, Inc., and Rockwell Manufacturing Company. (D.I. 115
at 1 n.l)
6
FMC was sued on behalf of its former Northern Pump and Chicago Pump businesses. (D.I. 117
at 1)
5

Pumps, LLC ("Warren") (D.I. 132), and Anchor/Darling Valve Company ("Anchor Darling")
(D.I. 128) (collectively, "defendants"). Plaintiff, Glenda Gustavson ("Mrs. Gustavson" or
"plaintiff'), did not respond to these motions. As indicated in the chart i,ifra and for the reasons
that follow, the court recommends GRANTING Eaton's motion for summary judgment (D.I.
122) without prejudice and recommends GRANTING the remaining defendants' motions for
summary judgment with prejudice. 7

Hifri 16i:/: .

. .....,".'fimrfor . , . .
.\Jud
C':·~~"~'"···-••I· . Summar.!:... ....... .g,Illenf ·

s.!j;i:;;ipefend~i1".ktziit,is~li·

..<••:

••WW .

Air & Liquid Systems Corporation

GRANT

Aurora Pump Company

GRANT

Blackmer Pump Company

GRANT

BW/IP Inc.

GRANT

CBS Corporation

GRANT

Eaton Corporation

GRANT WITHOUT PREJUDICE

Flowserve U.S., Inc.

GRANT

FMC Corporation

GRANT

Gardner Denver, Inc.

GRANT

Warren Pumps, LLC

GRANT

Anchor/Darling Valve Company

GRANT

7

Defendants' opening briefs in support of their respective motions for summary judgment are as
follows: Air & Liquid (D.I. 131), Aurora (D.I. 125), Blackmer (D.I. 118), BW/IP (D.I. 127),
CBS (D.I. 121), Flowserve (D.I. 115), FMC (D.I. 117), Gardner Denver (D.I. 123), Warren (D.I.
133), and Anchor Darling (D.I. 129). Although Eaton filed its motion for summary judgment, it
did not file an opening brief in support of its motion. (D .I. 122) It filed a subsequent motion to
dismiss based on lack of any opposition by the plaintiff. (D .I. 140) In its letter request, Eaton
references that a "supporting memorandum" was filed with its earlier motion. (Id) However, no
such memorandum is docketed. Without a properly supported opening brief, the court cannot
assess the merits of Eaton's motion for summary judgment. Nonetheless, dismissal without
prejudice is warranted based on plaintiffs failure to timely oppose Eaton's motion pursuant to
the scheduling order, Fed. R. Civ. P. 41(b), Fed. R. Civ. P. 56(c)(l), and Fed. R. Civ. P. 56(e)(2).
See also 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)).
2

II.

BACKGROUND
a. Procedural History
On August 16, 2017, plaintiff originally filed this personal injury action against multiple

defendants in the Superior Court of Delaware, asserting claims arising from Carl D. Gustavson's
("Mr. Gustavson" or "decedent") alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On
October 18, 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, 8 and 1446. (D.I. 1) Air & Liquid,
Aurora, Blackmer, BW/IP, CBS, Eaton, Flowserve, FMC, Gardner Denver, Warren, and Anchor
Darling filed motions for summary judgment, individually. (D.I. 130; D.I. 124; D.I. 116; D.I.
126; D.I. 119; D.I. 122; D.I. 113; D.I. 114; D.I. 120; D.I. 132; D.I. 128) Plaintiff did not respond
to these motions. 9

b. Facts
i. Mr. Gustavson's alleged exposure history
Plaintiff alleges that Mr. Gustavson developed lung cancer as a result of exposure to
asbestos-containing materials during his service as a boiler technician in the United States
Navy. 10 (D.I. 1, Ex. 1 at ,r,r 3-4, 13) Mr. Gustavson passed away on September 12, 2016. (Id. at
8

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).
9
Aurora (D.I. 139), Blackmer (D.I. 137), BW/IP (D.1. 143), CBS (D.1. 141), Eaton (D.1. 140),
Flowserve (D.I. 142), FMC (D.I. 138), Gardner Denver (D.I. 144), Warren (D.I. 136), and
Anchor Darling (D.I. 145) requested that their motions be granted based on no opposition.
10
Mr. Gustavson smoked a pack of cigarettes per week for forty years. (D.I. 115, Ex. B; D.I.
117, Ex. B) Defendants suggest that plaintiff is unable to prove causation in light of Mr.
Gustavson's past smoking habits. (D.I. 131 at 10; D.I. 115 at 2; D.I. 117 at 3) Here, neither
plaintiff nor defendants have produced expert testimony regarding Mr. Gustavson's history of
smoking and its alleged causal connection to his death. Thus, it is recommended that the court
not consider the decedent'~ smoking history. See Brown v. General Elec. Co., 2012 WL

3

,r 13)

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

products that defendants manufactured, sold, distributed, or installed. (Id at ,r 9) Accordingly,
plaintiff asserts claims individually, and as the personal representative of decedent's estate, for
negligence, willful and wanton conduct, strict liability, and wrongful death. (Id at ,r,r 15-35)
Mr. Gustavson died prior to the commencement of this action, and was not deposed. (Id
at ,r 13) Mr. John Kenneth Poggenburg ("Mr. Poggenburg") is the sole product identification
witness in this case and his depositions occurred on February 22, 2018 and June 26, 2018. (D.I.
45; D.I. 74)
Mr. Gustavson enlisted in the Navy on June 29, 1954, and served aboard the USS

Shangri-La and the USS Edmonds. (D.I. 121 at 2; Ex. B) He was honorably discharged from
active duty on the USS Shangri-La on July 16, 1958. (D.I. 121 at 2; Ex. B) He was recalled to
active duty on October 1, 1961 to serve on the USS Edmonds and was discharged from active
duty again on August 1, 1962. (D.I. 121 at 2; Ex. B)
Mr. Poggenburg served on the USS Edmonds with Mr. Gustavson from October 1961 to
July 1962. (D.I. 131, Ex. A at 15:9-16) Mr. Poggenburg served as the chief engineer aboard the

USS Edmonds and admitted that in this role, he did not observe Mr. Gustavson's daily operations
and duties. (Id. at 27:9-13, 34:4-11) Mr. Poggenburg did not serve on any other ships with Mr.
Gustavson, and testified that he does not know what Mr. Gustavson's duties were while serving
aboard the USS Shangri-La. (Id at 15:13-23, 30:10-18, 41:22-25, 43:1-3, 72:11-21, 86:20-25)

7761251 (E.D. Pa. Nov. 9, 2012) (granting defendant's motion for summary judgment without
discussion of plaintiffs past smoking habits in its analysis, even with an expert opinion produced
by defendant); In re Asbestos Litig., 2014 WL 605844 (Del. Super. Ct. Feb. 14, 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).
4

Mr. Poggenburg testified that Mr. Gustavson started as a boiler tech on the USS Edmonds
but left as the "oil king." (Id at 21 :14-17, 42:3-5) As the only "oil king" aboard the USS

Edmonds, it was Mr. Gustavson's primary responsibility to measure the depth of fuel in all fuel
tanks and move oil from tank to tank in order to maintain the proper stability of the ship. (Id at
21 :14-24, 45:3-18) Mr. Poggenburg testified that, in addition to his duties as "oil king," Mr.
Gustavson would have been assigned to traditional boiler tech duties, such as standing watch at
the boilers, performing routine maintenance of the steam lines and valves, and insulating steam
lines. (Id. at 23:15-20, 24:7-12, 43:12-16) Mr. Poggenburg further testified that he did not know
whether Mr. Gustavson was previously trained in maintaining ship equilibrium via oil tanks, or
trained specifically on the USS Edmonds. (Id. at 63:22-64:18) Mr. Poggenburg did not have any
personal knowledge that Mr. Gustavson worked on any equipment in the engine room. (Id. at
39: 16-40:4)
Mr. Poggenburg could not recall the manufacturer of steam line insulation, asbestos
wrap, pumps, pump packing, gaskets, evaporators, or fire bricks surrounding the boilers. (Id. at
24:20-25:16, 25:24-26:2, 26:13-27:16, 28:4-10, 29:9-17, 37:18-21) He identified Wilcox as a
boiler manufacturer, Worthington as a pump manufacturer, and DeLaval as a steam valve
manufacturer, but noted that he generally remembered these names and could not specifically
place any equipment from these manufacturers on the USS Edmonds. (Id. at 25: 17-23, 29:2230:22, 34:20-35:7, 38:8-11) Mr. Poggenburg stated that he did not know the maintenance
history or manufacturer name of any equipment aboard the USS Edmonds apart from his general
recollection of Wilcox, Wurthington, and DeLaval. (Id. at 26:3-12, 29: 18-30:9) Furthermore, he
testified that he could not identify any manufacturer of equipment undergoing any maintenance

5

in an area where that he saw Mr. Gustavson was present while aboard the USS Edmonds. (Id at
40:5-11)
ii. Plaintiff's product identification evidence
Mr. Poggenburg is the sole product identification witness in this case and his depositions
occurred on February 22, 2018 and June 26, 2018. (D.I. 45; D.I. 74)
1. Air & Liquid Systems Corporation

Mr. Poggenburg indicated that he would have no reason to dispute plaintiffs counsel's
representation that Buffalo pumps were aboard the USS Shangri-La. (D.I. 131, Ex. A at 62:6-10)
However, Mr. Poggenburg was not assigned to the USS Shangri-La at any time when Mr.
Gustavson served on board the ship. (Id at 15:9-16, 72:11-21) He did not otherwise identify
any asbestos-containing Buffalo pumps on the USS Edmonds or observe whether the decedent
was exposed to any Buffalo pumps. (D.I. 131 at 4-5)
2. Aurora Pump Company

Mr. Poggenburg did not identify any asbestos-containing Aurora products on board the
USS Edmonds or observe whether the decedent was exposed to any Aurora product. (D.I. 125 at
5)

3. Blackmer Pump Company

Mr. Poggenburg did not identify any asbestos-containing Blackmer products on board the
USS Edmonds or observe whether the decedent was exposed to any Blackmer product. (D.I. 118

at 4)

6

4. BW/IP Inc.
Mr. Poggenburg did not identify any asbestos-containing BW/IP products on board the
USS Edmonds or observe whether the decedent was exposed to any BW/IP product. (D.I. 127 at

2, 5)

5. CBS Corporation
Mr. Poggenburg did not identify any asbestos-containing Westinghouse products on
board the USS Edmonds or observe whether the decedent was exposed to any Westinghouse
product. (D.I. 121 at 4)

6. Eaton Corporation
Eaton contends that plaintiff did not identify any asbestos-containing Eaton products or
observe whether the decedent was exposed to any Eaton product. 11 (D.I. 122)

7. Flowserve U.S., Inc.
Mr. Poggenburg did not identify any asbestos-containing Flowserve products on board
the USS Edmonds or observe whether the decedent was exposed to any Flowserve product. (D.I.
115 at 3, 7)

8. FMC Corporation
Mr. Poggenburg testified that he would have no reason to dispute plaintiffs counsel's
representation that there were Northern pumps onboard the USS Edmonds. (D.I. 117, Ex.Cat
53:12-17) He also agreed that, because Mr. Gustavson was solely responsible for oil transfer, it
would be fair to say that he worked on Northern pumps. (Id at 53:20-24) Furthermore, Mr.
Poggenburg agreed that Mr. Gustavson may have been exposed to asbestos from removing

11

Eaton has not attached to its motion any written discovery responses or Mr. Poggenburg's
product identification testimony. (See D.I. 122) No opening brief was filed with Eaton's
motion.
7

packing or gaskets from the pumps. (Id. at 54:3-20) Mr. Poggenburg did not otherwise identify
any Northern or Chicago pumps from his personal knowledge or observe whether the decedent
was exposed to any Northern or Chicago pumps. (D.I. 117 at 4-5)

9. Gardner Denver, Inc.
Mr. Poggenburg did not identify any asbestos-containing Gardner Denver products on
board the USS Edmonds or observe whether the decedent was exposed to any Gardner Denver
product. (D.I. 123 at 2, 6)

10. Warren Pumps, LLC
Mr. Poggenburg testified that he would have no reason to dispute plaintiffs counsel's
representation that there were Warren pumps onboard the USS Shangri-La. (D.1. 131, Ex. A at
63 :2-5) He also agreed that because Mr. Gustavson worked in the fire room on the USS Shangri-

La, he would have worked on Warren steam pumps. (Id. at 63: 8-19) Mr. Poggenburg did not
otherwise identify any Warren products on board the USS Edmonds or observe whether the
decedent was exposed to any Warren product. (D.I. 133 at 6-7)

11. Anchor/Darling Valve Company
Mr. Poggenburg did not identify any asbestos-containing Anchor Darling products on
board the USS Edmonds or observe whether the decedent was exposed to any Anchor Darling

product. (D.I. 129 at 3-4)

III.

LEGAL ST AND ARD
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

8

dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the non-moving 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 322. 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
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

9

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 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). 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, 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 and sea-based claims.
(D.I. 108) 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 12 in causing the injury he suffered." Lindstrom v. A-C Prod.

12

"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.l (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).
10

Liab. Trust, 424 F.3d 488,492 (6th Cir. 2005) abrogated on other grounds by Air & Liquid
Systems Corp. v. Devries, 139 S. Ct. 986 (2019) 13 (citingStarkv. 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 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).

"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." 14 Abbay v. Armstrong Int'!, Inc., 2012 WL
975837, at *1 n.1 (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 inference

In Devries, the Supreme Court rejected "the more defendant-friendly bare metal defense,"
which provided that "[i]f a manufacturer did not itself make, sell, or distribute the part or
incorporate the part into the product, the manufacturer is not liable for harm caused by the
integrated product .... " Devries, 139 S. Ct. at 994. The Supreme Court held that a product
manufacturer has a duty to warn in the context of maritime tort law "when (i) its product requires
incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated
product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to
believe that the product's users will realize that danger." Id at 996.
14
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)).
13

11

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 of law a finding of strict
product[] liability." Stark, 21 F. App'x at 376 (citations omitted).

IV.

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

there is no genuine issue of material fact in dispute that no Air & Liquid product was a
substantial factor in causing Mr. Gustavson's injuries. Mr. Poggenburg did not identify a
Buffalo pump aboard the USS Edmonds. (D.I. 131, Ex. A at 25:24-26:2, 34:23-35:7, 40:5-11)
Furthermore, Mr. Poggenburg conceded that he never served on the USS Shangri-La, did not
have any personal knowledge about any activities or equipment aboard the USS Shangri-La, and
that his testimony regarding the activities or equipment aboard the USS Shangri-La was merely a
guess. (Id. at 72:9-21) Mr. Poggenburg admitted that he did not supervise Mr. Gustavson's
daily operations in the engine spaces and, therefore, could not recall him working on a fuel oil
transfer pump. (Id. at 73 :6-11) Moreover, Mr. Poggenburg conceded that he could not
remember ever seeing Mr. Gustavson working on any pumps aboard the USS Edmonds. (Id. at
28: 15-1 7) Because the plaintiff has not responded by introducing evidence of product
identification and product nexus between Air & Liquid's products and Mr. Gustavson's alleged
injuries, there is no basis for the court to find that an Air & Liquid product was a substantial
factor in causing Mr. Gustavson's injuries, as required by maritime law. Therefore, the court
recommends granting Air & Liquid's motion for summary judgment.

12

b. Aurora Pump Company

The court recommends granting Aurora's motion for summary judgment, because there is
no genuine issue of material fact in dispute that no Aurora product was a substantial factor in
causing Mr. Gustavson's injuries. During Mr. Poggenburg's deposition, he did not identify any
Aurora product. Because the plaintiff has not responded by introducing evidence of product
identification and product nexus between Aurora's products and Mr. Gustavson's alleged
injuries, there is no basis for the court to find that an Aurora product was a substantial factor in
causing Mr. Gustavson's injuries, as required by maritime law. Therefore, the court
recommends granting Aurora's motion for summary judgment.
c. Blackmer Pump Company

The court recommends granting Blackmer's motion for summary judgment, because
there is no genuine issue of material fact in dispute that no Blackmer product was a substantial
factor in causing Mr. Gustavson's injuries. During Mr. Poggenburg's deposition, he did not
identify any Blackmer product. Because plaintiff has not responded by introducing evidence of
product identification and product nexus between Blackmer's products and Mr. Gustavson's
alleged injuries, there is no basis for the court to find that a Blackmer product was a substantial
factor in causing Mr. Gustavson's injuries, as required by maritime law. Therefore, the court
recommends granting Blackmer's motion for summary judgment.

d. BW/IP Inc.
The court recommends granting BW/IP's motion for summary judgment, because there is
no genuine issue of material fact in dispute that no BW/IP product was a substantial factor in
causing Mr. Gustavson's injuries. During Mr. Poggenburg's deposition, he did not identify any
BW/IP product. Because plaintiff has not responded by introducing evidence of product

13

identification and product nexus between BW/IP's products and Mr. Gustavson's alleged
injuries, there is no basis for the court to find that a BW/IP product was a substantial factor in
causing Mr. Gustavson's injuries, as required by maritime law. Therefore, the court
recommends granting BW/IP's motion for summary judgment.
e. CBS Corporation
The court recommends granting CBS's motion for summary judgment, because there is
no genuine issue of material fact in dispute that no CBS product was a substantial factor in
causing Mr. Gustavson's injuries. During Mr. Poggenburg's deposition, he did not identify any
CBS product. Because plaintiff has not responded by introducing evidence of product
identification and product nexus between CBS's products and Mr. Gustavson's alleged injuries,
there is no basis for the court to find that a CBS product was a substantial factor in causing Mr.
Gustavson's injuries, as required by maritime law. Therefore, the court recommends granting
CBS's motion for summary judgment.
f.

Eaton Corporation

The court recommends granting Eaton's motion for summary judgment without prejudice
due to plaintiffs failure to timely oppose Eaton's pending motion as required by the scheduling
order, Fed. R. Civ. P. 41(b), Fed. R. Civ. P. 56(c)(l), and Fed. R. Civ. P. 56(e)(2).
g. 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 that no Flowserve product was a substantial
factor in causing Mr. Gustavson's injuries. During Mr. Poggenburg's deposition, he did not
identify any Flowserve product. Because plaintiff has not responded by introducing evidence of
product identification and product nexus between Flowserve's products and Mr. Gustavson's

14

alleged injuries, there is no basis for the court to find that a Flowserve product was a substantial
factor in causing Mr. Gustavson's injuries, as required by maritime law. Therefore, the court
recommends granting Flowserve's motion for summary judgment.
h. FMC Corporation

The court recommends granting FMC's motion for summary judgment, because there is
no genuine issue of material fact in dispute that no Northern or Chicago pump was a substantial
factor in causing Mr. Gustavson's injuries. Mr. Poggenburg testified that he would have no
reason to dispute plaintiffs counsel's representation that there were Northern pumps onboard the
USS Edmonds. (D.I. 117, Ex.Cat 53:12-17) He also agreed that, because Mr. Gustavson was

solely responsible for oil transfer, it would be fair to say that he worked on Northern pumps and
that he was exposed to asbestos through this work. (Id. at 53:20-24, 54:3-20) However, Mr.
Poggenburg testified that he had no personal recollection of seeing any Northern pump aboard
the USS Edmonds during the time that Mr. Gustavson served. (Id. at 73:1-5) He also testified
that he had no personal recollection of fuel oil pumps being replaced or flange gasket material
being replaced on the USS Edmonds. (Id. at 77:1-13) Furthermore, Mr. Poggenburg could not
recall Mr. Gustavson working on a fuel oil transfer pump. (Id. at 73 :6-11) Mr. Poggenburg
conceded that he could not describe any of the pumps that may have been attached to the oil
tanks and could not recall ever seeing Mr. Gustavson working on any pump aboard the USS
Edmonds. (Id. at 74:17-22, 28:15-17) Because plaintiff has not responded by introducing

evidence of product identification and product nexus between FM C's products and Mr.
Gustavson's alleged injuries, there is no basis for the court to find that a FMC product was a
substantial factor in causing Mr. Gustavson's injuries, as required by maritime law. Therefore,
the court recommends granting FMC's motion for summary judgment.

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i.

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 that no Gardner Denver product was
a substantial factor in causing Mr. Gustavson's injuries. During Mr. Poggenburg's deposition,
he did not identify any Gardner Denver product. Because plaintiff has not responded by
introducing evidence of product identification and product nexus between Gardner Denver's
products and Mr. Gustavson' s alleged injuries, there is no basis for the court to find that a
Gardner Denver product was a substantial factor in causing Mr. Gustavson's injuries, as required
by maritime law. Therefore, the court recommends granting Gardner Denver's motion for
summary judgment.

j. Warren Pumps, LLC
The court recommends granting Warren's motion for summary judgment, because there
is no genuine issue of material fact in dispute that no Warren product was a substantial factor in
causing Mr. Gustavson's injuries. Mr. Poggenburg testified that he would have no reason to
dispute plaintiffs counsel's representation that there were Warren pumps onboard the USS

Shangri-La. (D.I. 131, Ex. A at 63:2-5) He also agreed that because Mr. Gustavson worked in
the fire room on the USS Shangri-La, he would have worked on Warren steam pumps. (Id at
63:8-19) However, Mr. Poggenburg admitted that he never served on the USS Shangri-La, had
no personal knowledge about the activities or equipment aboard that ship, and any testimony
regarding the USS Shangri-La reflected his guesses as to those activities and equipment. (D.1.
133, Ex. A at 72:9-21) He also conceded that he could not recall ever seeing Mr. Gustavson
working on any pump aboard the USS Edmonds. (D.1. 131, Ex. A at 28: 15-17)

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Furthermore, Mr. Poggenburg testified that he had no personal knowledge of the
presence, type, location, orientation, function, material, color, model number, serial number,
temperature rating, year of manufacture, or year of installation of any Warren pumps aboard the

USS Edmonds. (D.I. 133, Ex. A at 83:5-85:12) He had no personal knowledge of whether Mr.
Gustavson actually performed work on a Warren pump, or the frequency with which Mr.
Gustavson worked, if ever, on a Warren pump aboard the USS Edmonds. (Id. at 85: 13-24)
Because plaintiff has not responded by introducing evidence of product identification and
product nexus between Warren's products and Mr. Gustavson's alleged injuries, there is no basis
for the court to find that a Warren product was a substantial factor in causing Mr. Gustavson's
injuries, as required by maritime law. Therefore, the court recommends granting Warren's
motion for summary judgment.

k. 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 that no Anchor Darling product was
a substantial factor in causing Mr. Gustavson's injuries. During Mr. Poggenburg's deposition,
he did not identify any Anchor Darling product. Because plaintiff has not responded by
introducing evidence of product identification and product nexus between Anchor Darling's
products and Mr. Gustavson's alleged injuries, there is no basis for the court to find that an
Anchor Darling product was a substantial factor in causing Mr. Gustavson's injuries, as required
by maritime law. Therefore, the court recommends granting Anchor Darling's motion for
summary judgment.

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V.

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

granting Eaton's motion for summary judgment without prejudice, and the remaining
defendants' motions for summary judgment with prejudice.
Air & Liquid Systems Corporation

GRANT

Aurora Pump Company

GRANT

Blackmer Pump Company

GRANT

BW/IP Inc.

GRANT

CBS Corporation

GRANT

Eaton Corporation

GRANT WITHOUT PREJUDICE

Flowserve U.S., Inc.

GRANT

FMC Corporation

GRANT

Gardner Denver, Inc.

GRANT

Warren Pumps, LLC

GRANT

Anchor/Darling Valve Company

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).
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: May \ '-\ , 2019

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