Mosher et al v. ABB, Inc. et al

Filing 142

REPORT AND RECOMMENDATIONS- re 103 Motion for Summary Judgment, 116 MOTION for Summary Judgment, 111 MOTION for Summary Judgment, 122 MOTION for Summary Judgment, 118 MOTION for Summary Judgment, 113 MOTION for Summary Jud gment, 106 MOTION for Summary Judgment, 128 MOTION for Summary Judgment, 108 MOTION for Summary Judgment, 120 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 12/3/2019. Signed by Judge Sherry R. Fallon on 11/19/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
IN RE: ASBESTOS LITIGATION

)

KENT E. MOSHER and
CATHY MOSHER,

)
)
)
)

Plaintiffs,

)
)

V.

ABB, INC., et al.,

Civil Action No. 18-410-LPS-SRF

)
)

)
)

Defendants.

)

REPORT AND RECOMMENDATION

I.

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

for summary judgment of ABB, Inc. ("ABB") 1 (D.I. 120), Aurora Pump Company ("Aurora
Pump") (D.I. 106), Crosby Valve LLC ("Crosby Valve") (D.1. 108), FMC Corporation ("FMC") 2
(D.1. 116), Gardner Denver, Inc. ("Gardner Denver") (D.I. 111), Gould Electronics Inc. ("Gould
Electronics") (D.I. 122), Pfizer, Inc. ("Pfizer") (D.I. 118), Siemens Industry, Inc. ("Siemens") 3
(D.I. 103), Union Carbide Corporation ("Union Carbide") (D.I. 113), and Warren Pumps, LLC
("Warren Pumps") (D.I. 128) (collectively, "defendants"). Plaintiffs, Kent E. Mosher ("Mr.
Mosher") and Cathy Mosher ("Mrs. Mosher") (collectively, "plaintiffs"), did not respond to

1

ABB is the successor to ITE Circuit Breakers, Inc. (D.1. 121 at 1)
FMC was sued on behalf of its former Northern Pump and Chicago Pump businesses. (D.I. 117
at 1)
3
Siemens is the successor-in-interest to Siemens Energy & Automation, Inc. (D.I. 104 at 1)
2

these motions. As indicated in the chart infra and for the reasons that follow, the court
recommends GRANTING each defendant's motion for summary judgment. 4

GRANT
Aurora Pump Company

GRANT

Crosby Valve LLC

GRANT

FMC Corporation

GRANT

Gardner Denver, Inc.

GRANT

Gould Electronics Inc.

GRANT

Pfizer, Inc.

GRANT

Siemens Industry, Inc.

GRANT

Union Carbide Corporation

GRANT

Warren Pumps, LLC

GRANT

II.

BACKGROUND
a. Procedural History
On January 25, 2018, plaintiffs originally filed this personal injury action against multiple

defendants in the Superior Court of Delaware, asserting claims arising from Mr. Mosher' s
alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On March 16, 2018, 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, 5 and 1446. (D.I. 1) On May 14, 2018, plaintiffs filed an amended complaint
(the "First Amended Complaint"). (D.I. 51) ABB, Aurora Pump, Crosby Valve, FMC, Gardner

4

Defendants' opening briefs in support of their respective motions for summary judgment are as
follows: ABB (D.I. 121), Aurora Pump (D.I. 107), Crosby Valve (D.I. 109), FMC (D.I. 117),
Gardner Denver (D.I. 112), Gould Electronics (D.I. 123), Pfizer (D.I. 119), Siemens (D.I. 104),
Union Carbide (D.I. 114), and Warren Pumps (D.I. 129).
5
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 any agency thereof or any
officer (or any person acting under that officer) of the United States or of any agency thereof, in
an official or individual capacity, for or relating to any act under color of such office." 28 U.S.C.
§ 1442(a)(l).
2

Denver, Gould Electronics, Pfizer, Siemens, Union Carbide, and Warren Pumps filed motions
for summary judgment, individually. (D.I. 120; D.I. 106; D.I. 108; D.I. 116; D.I. 111; D.I. 122;
D.I. 118; D.I. 103; D.I. 113; D.I. 128) Plaintiffs did not respond to these motions. 6

b. Facts
i. Mr. Mosher's alleged exposure history

Plaintiffs allege that Mr. Mosher developed mesothelioma as a result of exposure to
asbestos-containing materials during his service as a boiler technician in the United States Navy
and his career at the Henderson Mine in Denver, Colorado. (D.I. 51 at ,i,i 3, 13) Plaintiffs
contend that Mr. Mosher was injured due to exposure to asbestos-containing products that
defendants manufactured, sold, distributed, or installed. (Id. at ,i 9) Accordingly, plaintiffs
assert claims for negligence, strict liability, loss of consortium, and punitive damages. (Id. at ,i,i
14-32)
Mr. Mosher was deposed on April 17 and 18, 2018. (D.I. 19; D.I. 104 at 2) Plaintiff did
not produce any other fact or product identification witnesses for deposition.
Mr. Mosher was in boot camp in San Diego for seven weeks. (D.1. 129, Ex.Bat 73:1-6)
Following boot camp, Mr. Mosher was stationed on the USS Truett in Norfolk, Virginia from
1973 to 1977. (D.I. 129, Ex. A) On the USS Truett, he worked as a boiler technician, standing
watch and performing maintenance on boilers, pumps, valves, and strainers. (D.I. 51 at ,i 3; D.I.
114, Ex.Bat 12:13-41:8)
Mr. Mosher removed insulation and gaskets when repairing boilers. (D.1. 114, Ex.Bat
12:13-20, 13:3-19) He described how he broke open an access panel and seal to perform repairs

6

Aurora Pump (D.I. 131), Crosby Valve (D.I. 132), FMC (D.1. 133), Pfizer (D.I. 134), Union
Carbide (D.I. 135), Gould Electronics (D.I. 137), Gardner Denver (D.1. 138), ABB (D.I. 140),
and Warren Pumps (D.I. 141) requested that their motions be granted based on no opposition.
3

on the boilers. (Id. at 12: 13-20) Upon opening the boilers, the gaskets often fell apart and he
would scrape the boilers with a wire brush. (Id. at 13: 12-19) He also mixed a powder with
liquid to form a cement-like plaster, which was subsequently applied to the boilers. (Id. at 14:515) Mr. Mosher testified that removing insulation, removing gaskets, and mixing the plaster
produced dust, which he inhaled. (Id. at 12:21-13:2, 13:20-25, 14:16-21) Mr. Mosher performed
work on boilers monthly while stationed on the USS Truett. (Id. at 14:1-4)
Mr. Mosher would repair pumps monthly by replacing gaskets and packing. (Id. at 16:520: 18) He described how he would remove all insulation and bolts before removing the gaskets
with a scraper or wire brush. (Id. at 16:5-15) He used packing pullers and a pick to remove the
dry packing in pieces. (Id. at 18:23-19:4) After removing the packing, Mr. Mosher cleaned the
packing gland with a wire brush. (Id. at 19:24-20:5) Mr. Mosher also replaced insulation around
pumps by mixing a powder with liquid before applying the solution to pumps. (Id. at 39:4-14,
40:5-41 :2) He testified that replacing gaskets, packing, and insulation produced dust, which he
inhaled. (Id. at 16:21-17:16, 18:2-19:23, 39:13-23)
In repairing valves weekly, Mr. Mosher removed gaskets and packing, which produced
dust that he inhaled. (Id. at 23:24-24:1, 24:17-25:18, 27:8-28:11) He removed bolts before
pulling the gaskets out with a pick, scraper, or wire brush. (Id. at 24:2-6, 25:1-8) He also
removed dry packing using a packing puller or a pick. (Id. at 27:8-12, 27:23-28:3)
Mr. Mosher testified that while he did not perform any work on turbines, he was present
when others removed gaskets and insulation from the turbines, which was a dusty process. (Id.
at 34:18-38:25)
After his discharge in August 1977, Mr. Mosher worked at Henderson Mine in Denver,
Colorado. (D.I. 51 at iJ 3; D.I. 114, Ex.Bat 42:22-43:1; D.I. 129, Ex.Bat 193:10-12) He

4

worked as a miner and production operator until 1979. (D.I. 114, Ex.Bat 43:9-12) He received
his associates degree in commercial and industrial electricity in 1979, and subsequently worked
as an apprentice in the electrical department at Henderson Mine. (D.1. 114, Ex.Bat 43:6-13) In
the spring of 1979, Mr. Mosher was promoted to a mine electrician, working on control panels,
switch gear, and cabling. (Id. at 43 :9-14; D.I. 114, Ex. C at 195: 1-17) He worked at Henderson
Mine until it closed in 1983. (D.I. 114, Ex.Bat 43:4-5) Mr. Mosher was diagnosed with
mesothelioma in December 2017. (D.I. 51 at ,i 13)
ii. Plaintiffs' product identification evidence

Mr. Mosher is the sole product identification witness in this case and his deposition
occurredonApril 17and 18,2018. (D.I.19;D.I.104at2)

1. ABB, Inc.
Mr. Mosher did not identify any asbestos-containing ABB products or exposure to any
ABB products.
2. Aurora Pump Company

Mr. Mosher identified Aurora Pump as the manufacturer of Prairie-Masker pumps. 7 (DJ.
107, Ex. D at 157: 17-18) Mr. Mosher testified that he worked on an Aurora pump once, when
the pump turbine fell off and he had to reattach the pump. (D.1. 107, Ex.Bat 226:6-15, 227:4-7)
He stated that it took approximately one day to reattach the pump turbine. (Id. at 227:20-25)
Mr. Mosher admitted that this was the only time that he worked on a Prairie-Masker pump, and
the only time that he was present when the Prairie-Masker pump was maintained. (Id. at 226:624, 231 :4-7)
7

Aurora Pump avers that Mr. Mosher mistakenly identified it as the manufacturer of two pumps
on the USS Truett as part of the Prairie-Masker system on that vessel. (D .I. 107 at 3) Aurora
Pump contends that it did not design, manufacture, or sell the Prairie-Masker systems that Mr.
Mosher described. (Id.; Ex. A)

5

3. Crosby Valve LLC
Mr. Mosher identified Crosby Valve as one of several manufacturers of valves he
encountered during his career. (D.I. 114, Ex.Bat 28:14-16) He recalled that Crosby valves
were used to control the flow of hot water and steam. (D.I. 109, Ex. A at 233:17-21) Mr.
Mosher could not recount the dimensions, color, model number, material, or location of Crosby
valves. (Id. at 233:22-234:1, 234:4-11) He could not remember if the valves were welded or
flanged in place. (Id. at 234:2-3) Mr. Mosher testified that he "gag[ged]" Crosby valves,
meaning that he put a clamp on the valves to hold them from operating. (Id. at 236:22-237:7)
Mr. Mosher gagged valves approximately once every quarter. (Id. at 237:13-20) Mr. Mosher
stated that he performed no other work on Crosby valves. (Id. at 237:21-23) He was present
once or twice when a gasket was removed from the flange of a Crosby valve, but was not present
when individuals worked on packing on Crosby valves. (Id. at 239:10-14, 239:19-21)

4. FMC Corporation
Mr. Mosher did not identify any asbestos-containing FMC products or exposure to any
FMC products.

5. Gardner Denver, Inc.
Mr. Mosher did not identify any asbestos-containing Gardner Denver products or
exposure to any Gardner Denver products.

6. Gould Electronics Inc.
Mr. Mosher did not identify any asbestos-containing Gould Electronics products or
exposure to any Gould Electronics products.

6

7. Pfizer, Inc.
Mr. Mosher did not identify any asbestos-containing Pfizer products or exposure to any
Pfizer products.

8. Siemens Industry, Inc.
Mr. Mosher did not identify any asbestos-containing Siemens products or exposure to
any Siemens products.

9. Union Carbide Corporation
Mr. Mosher testified that when he worked at Henderson Mine as an electrician, he was
exposed to "Bakelite," a reddish-brown plastic material that was used for insulation from high
voltages. (D.I. 114, Ex.Bat 43:18-20, 45:4-21) Mr. Mosher stated that he did not know the
manufacturer of this plastic material, but referred to it as "Bakelite," which he admitted is a
generic term for a hard plastic material. (D.I. 114, Ex.Cat 65:17-66:2, 203:16-24)

10. Warren Pumps, LLC
Mr. Mosher named Warren Pumps as the manufacturer of the booster pumps on which he
performed maintenance. 8 (D.I. 129, Ex.Bat 157:12-14) Mr. Mosher testified that he added
packing "to one or two of the booster pumps and that was it." (Id. at 125: 14-19) He also stated
that, when working on booster pumps, he broke the casing and worked on impellers once. (Id. at
167:10-12)

8

Warren Pumps avers that Mr. Mosher mistakenly identified it as the manufacture of three
electric booster pumps aboard the USS Truett. (D.I. 129 at 2) Warren Pumps avers that
Fairbanks-Morse manufactured the booster pumps aboard the USS Truett. (Id.; Ex. C)
7

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
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 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

8

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. 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, 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. See
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. See 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 Servs., Inc., 2010 WL 2710555, at *3 (D.N.J. July 6, 2010)).
b. Maritime Law: Substantial Factor Causation
The parties do not dispute that maritime law applies to all Naval and sea-based claims.
(D.1. 102) 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

9

product was a substantial factor 9 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
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." 10 Abbay v. Armstrong Int 'l, 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

9

"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
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)).
10

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).
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 .... " Air & Liquid Systems Corp. v. Devries, 139 S. Ct. 986, 993 (2019).
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 987, 995-96.

c. Colorado Law
A federal court sitting in diversity is "required to apply the substantive law of the state
whose laws govern the action." Robertson v. Allied Signal, 914 F.2d 360, 378 (3d Cir. 1990).
Consequently, the parties agree that Colorado substantive law applies to all land-based claims.
(D.I. 102)
Under Colorado law, a plaintiff must establish that a particular defendant's conduct was a
substantial contributing cause of his injury. See Rupert v. Clayton Brokerage Co., 737 P.2d
1106, 1112 (Colo. 1987); Merkley v. Pittsburgh Corning Corp., 910 P.2d 58, 59 (Colo. App.
1995) (affirming summary judgment when plaintiff failed to identify particular asbestos product
to which he allegedly was exposed). In Merkley, the Colorado Court of Appeals favorably cited

11

the Fourth Circuit's decision Lohrmann v. Pittsburgh Corning Corp., which states that "casual"
exposure to a defendant's asbestos-containing product is not enough to prove causation, rather
there must be "exposure to a specific product on a regular basis over some extended period of
time." Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986).
IV.

DISCUSSION
a. ABB, Inc.

The court recommends granting ABB' s motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether an ABB product was a substantial
factor in causing Mr. Mosher' s injuries. There is no evidence of plaintiffs identification of any
product manufactured, distributed, or supplied by ABB. Mr. Mosher has failed to identify
exposure to any ABB product. Therefore, there is no need for the court to address substantial
factor causation under Colorado or maritime law. The lack of evidence of product identification
and causation forecloses the derivative claim of loss of consortium. Furthermore, there is no
evidence in the record of willful and wanton conduct that would permit plaintiffs' claim of
punitive damages against ABB to survive summary judgment. Therefore, the court recommends
granting ABB's motion for summary judgment.
b. Aurora Pump Company

The court recommends granting Aurora Pump's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether an Aurora Pump product was a
substantial factor in causing Mr. Mosher's injuries. Aurora Pump contends that it did not design,
manufacture, or sell the Prairie-Masker pumps that Mr. Mosher has described. (D.I. 107 at 7;
Ex. A) Furthermore, Mr. Mosher admitted that he has only performed maintenance on a PrairieMasker pump once. (D.I. 107, Ex. B at 226:6-24, 231 :4-7) Accordingly, the evidence in the

12

record fails to create a genuine issue of material fact concerning the substantial exposure
requirement under maritime law. See In re Asbestos Litig., C.A. No. 15-726-ER-SRF, 2017 WL
3780125, at *9-10 (D. Del. Aug. 31, 2017) (concluding that plaintiffs testimony that he
performed maintenance on one pump five times and on other pumps once or twice was
insufficient to establish a genuine issue of material fact as to whether defendant's product was a
substantial factor in causing plaintiffs injuries). Therefore, the court recommends granting
Aurora Pump's motion for summary judgment.

c. Crosby Valve LLC
The court recommends granting Crosby Valve's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether a Crosby Valve product was a
substantial factor in causing Mr. Masher's injuries. Crosby Valve argues that its valves had no
asbestos-containing components. 11 (D.I. 109 at 7; Ex. B; Ex.Cat 78:7-15) Mr. Mosher testified
that his exposure to Crosby valves was limited to "gagging" them approximately once per
quarter. (D.I. 109, Ex. A at 236:22-237:23) He was present once or twice when other
individuals removed gaskets from flanges of Crosby valves, but was not present when packing
was removed. (Id. at 239:10-14, 239:19-21) Furthermore, Mr. Mosher could not recount the
dimensions, color, model number, material, or location of Crosby valves, or whether the valves
were welded or flanged. (Id. at 233:22-234:1, 234:4-11) Mr. Masher's deposition testimony
fails to create a genuine issue of material fact as to whether Crosby Valve's products were a

11

Defendant sold safety valves to the Navy and manufacturers of boilers. (D.I. 109, Ex. B) The
valves were designed to regulate pressure and Crosby Valves contends that they were not
designed to be insulated and did not require asbestos to function. (Id.) Plaintiffs have not
offered any evidence to create a material dispute of fact as to whether Crosby valves contained
asbestos.
13

substantial factor in causing his injuries, as required under maritime law. As such, the court
recommends granting Crosby Valve's motion for summary judgment.

d. 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. Mosher' s injuries. There is no evidence of plaintiffs identification of any
product manufactured, distributed or supplied by FMC. Mr. Mosher has failed to identify
exposure to any FMC product. Therefore, there is no need for the court to address substantial
factor causation under Colorado or maritime law. The lack of evidence of product identification
and causation forecloses the derivative claim of loss of consortium. Furthermore, there is no
evidence in the record of willful and wanton conduct that would permit plaintiffs' claim of
punitive damages against FMC to survive summary judgment. Therefore, the court recommends
granting FMC's motion for summary judgment.

e. 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. Mosher's injuries. There is no evidence of
plaintiffs identification of any product manufactured, distributed, or supplied by Gardner
Denver. Mr. Mosher has failed to identify exposure to any Gardner Denver product. Therefore,
there is no need for the court to address substantial factor causation under Colorado or maritime
law. The lack of evidence of product identification and causation forecloses the derivative claim
of loss of consortium. Furthermore, there is no evidence in the record of willful and wanton
conduct that would permit plaintiffs' claim of punitive damages against Gardner Denver to

14

survive summary judgment. Therefore, the court recommends granting Gardner Denver's
motion for summary judgment.
f.

Gould Electronics Inc.

The court recommends granting Gould Electronics' motion for summary judgment,
because there is no genuine issue of material fact in dispute as to whether a Gould Electronics
product was a substantial factor in causing Mr. Mosher's injuries. There is no evidence of
plaintiffs identification of any product manufactured, distributed, or supplied by Gould
Electronics. Mr. Mosher has failed to identify exposure to any Gould Electronics product.
Therefore, there is no need for the court to address substantial factor causation under Colorado or
maritime law. The lack of evidence of product identification and causation forecloses the
derivative claim ofloss of consortium. Furthermore, there is no evidence in the record of willful
and wanton conduct that would permit plaintiffs' claim of punitive damages against Gould
Electronics to survive summary judgment. Therefore, the court recommends granting Gould
Electronics' motion for summary judgment.
g. Pfizer, Inc.

The court recommends granting Pfizer's motion for summary judgment, because there is
no genuine issue of material fact in dispute as to whether a Pfizer product was a substantial
factor in causing Mr. Mosher' s injuries. There is no evidence of plaintiffs identification of any
product manufactured, distributed, or supplied by Pfizer. Mr. Mosher has failed to identify
exposure to any Pfizer product. Therefore, there is no need for the court to address substantial
factor causation under Colorado or maritime law. The lack of evidence of product identification
and causation forecloses the derivative claim of loss of consortium. Furthermore, there is no
evidence in the record of willful and wanton conduct that would permit plaintiffs' claim of

15

punitive damages against Pfizer to survive summary judgment. Therefore, the court
recommends granting Pfizer's motion for summary judgment.

h. Siemens Industry, Inc.
The court recommends granting Siemens' motion for summary judgment, because there
is no genuine issue of material fact in dispute as to whether a Siemens product was a substantial
factor in causing Mr. Mosher' s injuries. There is no evidence of plaintiffs identification of any
product manufactured, distributed, or supplied by Siemens. Mr. Mosher has failed to identify
exposure to any Siemens product. Therefore, there is no need for the court to address substantial
factor causation under Colorado or maritime law. The lack of evidence of product identification
and causation forecloses the derivative claim of loss of consortium. Furthermore, there is no
evidence in the record of willful and wanton conduct that would permit plaintiffs' claim of
punitive damages against Siemens to survive summary judgment. Therefore, the court
recommends granting Siemens' motion for summary judgment.

i.

Union Carbide Corporation

The court recommends granting Union Carbide's motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether a Union Carbide product was a
substantial contributing cause of Mr. Mosher's injuries. Mr. Mosher testified that, while
working as an electrician at Henderson Mine, he was exposed to "Bakelite." (D.I. 114, Ex.Bat
43:18-20, 45:4-21) Union Carbide was a manufacturer of phenolic reisins 12 sold under the
tradename "Bakelite." (D.I. 114, Ex. D) Union Carbide's phenolic reisins did not contain
asbestos. (Id.) Union Carbide also manufactured a phenolic molding compound sold under the

12

A phenolic reisin is made by reacting phenol with formaldehyde, and is used for molding and
laminating parts for use in electrical equipment. See Phenol-formaldehyde resin,
ENCYLC0PAEDIA BRITANNI CA, https://www.britannica.com/science/phenol-formaldehyde-resin
(last visited Nov. 19, 2019).
16

same trade name. (Id) Some of these phenolic molding compounds contained asbestos, though
Union Carbide ceased the manufacture and sale of asbestos-containing phenolic molding
compounds by 1974. (Id) Mr. Mosher admitted that he used "Bakelite" as a generic term for a
hard plastic material, and that he did not know the name of that material's manufacturer. (D.I.
114, Ex.Cat 65: 11-66:2, 203: 16-24) Plaintiffs have not provided any evidence that creates a
genuine issue of material fact as to whether plaintiff worked specifically with any Union Carbide
product containing asbestos and that such exposure was a substantial contributing cause of Mr.
Mosher's injuries, as required under Colorado law. Therefore, the court recommends granting
Union Carbide's motion for summary judgment.
j.

Warren Pumps, LLC

The court recommends granting Warren Pumps' motion for summary judgment, because
there is no genuine issue of material fact in dispute as to whether a Warren Pumps product was a
substantial factor in causing Mr. Mosher's injuries. Mr. Mosher identified Warren Pumps as the
manufacturer of the booster pumps on which he performed maintenance. (D.1. 129, Ex.Bat
157:12-14) Warren Pumps argues that Naval archive records show that booster pumps onboard
the USS Truett during the relevant time period were manufactured by Fairbanks-Morse, not
Warren Pumps. (D.I. 129 at 3-4; Ex. C) Furthermore, Mr. Mosher testified that, in working on
the booster pumps, he mainly packed glands. (D.I. 129, Ex.Bat 167:10-11) He stated that,
when he worked on booster pumps, he broke the casing in half and worked on impellers once.
(Id at 167:10-12) When asked ifhe had to change any packing, Mr. Mosher stated, "I think we

added packing ... to one or two of the booster pumps and that was it." (Id at 125:14-19)
Consequently, there is insufficient evidence to find that the substantial factor test required under

17

maritime law has been met, and the court recommends granting Warren Pump's motion for
summary judgment.

V.

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

granting defendants' motions for summary judgment.

ABB, Inc.

GRANT

Aurora Pump Company

GRANT

Crosby Valve LLC

GRANT

FMC Corporation

GRANT

Gardner Denver, Inc.

GRANT

Gould Electronics Inc.

GRANT

Pfizer, Inc.

GRANT

Siemens Industry, Inc.

GRANT

Union Carbide Corporation

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.1 (3d Cir.
2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).

18

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: November' 11_, 2019

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