SHELDON v. A.H. BENNETT COMPANY et al

Filing 53

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 2/14/2012. 2/16/2012 ENTERED AND COPIES MAILED AND E-MAILED.(sg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
VARIOUS PLAINTIFFS

v.

VARIOUS DEFENDANTS.

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CONSOLIDATED UNDER
MDL 875
Transferred from the
District of North Dakota
Case Nos.: See Exhibit A
(attached hereto)

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

FEBRUARY 14, 2012
TABLE OF CONTENTS

I.
II.

BACKGROUND............................................... 2
LEGAL STANDARD........................................... 3
A.
SUMMARY JUDGMENT STANDARD........................... 3
B.
THE APPLICABLE LAW.................................. 4
C.
PRODUCT IDENTIFICATION/CAUSATION UNDER NORTH DAKOTA
LAW................................................. 4
III. DISCUSSION............................................... 8
A.
DEFENDANT’S ARGUMENT................................ 8
B.
PLAINTIFFS’ ARGUMENTS............................... 8
C.
ANALYSIS............................................11
IV. CONCLUSION...............................................21
Before the Court are Motions for Summary Judgment in
nineteen (19) various cases originating in North Dakota, all of
which are part of MDL-875, the consolidated asbestos products
liability multidistrict litigation pending in the U.S. District
Court for the Eastern District of Pennsylvania.

Defendant Foster

Wheeler Corporation (“Foster Wheeler”) has moved for summary
judgment in each case on grounds of insufficient evidence.

I.

BACKGROUND
The “Amoco Cases” were transferred from the United

States District Court for the District of North Dakota to the
United States District Court for the Eastern District of
Pennsylvania in 1992 (single plaintiff cases) and 1993 (multiplaintiff action on behalf of sixty-six (66) different
plaintiffs), where they were administratively consolidated for
pre-trial purposes as part of MDL-875.
Each of the decedents in these cases (“Decedents”)
worked at the same Amoco refinery in Mandan, North Dakota and was
thereafter diagnosed with an asbestos-related illness.

Defendant

Foster Wheeler built a 140-foot high Alkylation unit at the
Mandan Amoco refinery in 1957. Defendant Foster Wheeler has moved
for summary judgment in many of the “Amoco Cases,” arguing that
there is insufficient product identification evidence to support
a finding of causation with respect to its product(s).1

Foster

Wheeler asserts that North Dakota law applies.

1

In June of 2011, the Court addressed similar motions
for summary judgment made by Foster Wheeler in cases brought by
Plaintiffs who alleged exposure at this same Amoco refinery in
Mandan, North Dakota. See, e.g., Miller v. ACandS, Inc., 0968111, 2011 WL 5505429 (E.D. Pa. June 23, 2011)(Robreno, J.);
Goldade v. AcandS, Inc., 09-68096, 2011 WL 5505426 (E.D. Pa. June
23, 2011)(Robreno, J.); Wallace v. ACandS, Inc., 09-68112, 2011
WL 5505432 (E.D. Pa. June 23, 2011)(Robreno, J.) The Court
granted each of these motions.
2

Plaintiffs in nineteen (19) of the cases (listed in
Exhibit A, attached hereto) have opposed Foster Wheeler’s
motions, contending that summary judgment is not warranted
because there is sufficient circumstantial evidence from which a
reasonable jury could conclude that their Decedent’s asbestosrelated illness was caused by exposure to Foster Wheeler’s
product(s). Plaintiffs assert that North Dakota law applies.
II.

LEGAL STANDARD
A.

Summary Judgment Standard
Summary judgment is appropriate if there are no genuine

issues of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion for
summary judgment will not be defeated by ‘the mere existence’ of
some disputed facts, but will be denied when there is a genuine
issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott
Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is
“material” if proof of its existence or non-existence might
affect the outcome of the litigation, and a dispute is “genuine”
if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
In undertaking this analysis, the court views the facts
in the light most favorable to the non-moving party.

“After

making all reasonable inferences in the nonmoving party’s favor,
3

there is a genuine issue of material fact if a reasonable jury
could find for the nonmoving party.” Pignataro v. Port Auth. of
N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance
Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While
the moving party bears the initial burden of showing the absence
of a genuine issue of material fact, meeting this obligation
shifts the burden to the non-moving party who must “set forth
specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250.
B.

The Applicable Law
The parties have all agreed that North Dakota

substantive law applies. Therefore, this Court will apply North
Dakota law in deciding Foster Wheeler’s Motions for Summary
Judgment. See Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); see
also Guaranty Trust Co. v. York, 326 U.S. 99, 108 (1945).
C.

Product Identification/Causation Under North Dakota Law
This Court has previously addressed the issue of

product identification/causation under North Dakota law and has
thoroughly explored the contours of that state’s law.

See, e.g.,

Various Plaintiffs v. Various Defendants (In Re Asbestos Products
Liability Litigation), 2010 WL 3397473 (E.D. Pa. Aug. 26,
2010)(Robreno, J.)(adopting the July 30, 2010 Report and
Recommendation of Chief Magistrate Judge Thomas J. Rueter
regarding summary judgment motions of defendant S.O.S. Products
4

Company, Inc., appearing at 2010 WL 3397472); Miller v. ACandS,
Inc., 09-68111, 2011 WL 5505429 (E.D. Pa. June 23, 2011)(Robreno,
J.). In Miller, the Court wrote:
The Supreme Court of North Dakota
has not addressed what evidence a Plaintiff
must present in order to survive summary
judgment in the asbestos context. Under North
Dakota law, “a proximate cause is a cause
which had a substantial part in bringing
about the harm or injury either immediately
or through happenings which follow one
another.” Andrews v. J.W. O'Hearn, 387 N.W.2d
716, 726 (N.D. 1986) (internal citations
omitted). There must be a causal link between
the defendant's conduct and the injury.
Andrews, 387 N.W.2d at 727 (citing Mourn v.
Maercklein, 201 N.W.2d 399, 402 (N.D. 1972)).
“‘Proximate cause [is]‘that cause which, as a
natural and continuous sequence, unbroken by
any controlling intervening cause, produces
the injury, and without which it would not
have occurred.’” Andrews, 387 N.W.2d at 727
(quoting Johnson v. Minneapolis, St. P. &
S.S.M. Ry. Co., 54 N.D. 351, 209 N.W. 786,
789 (N.D. 1926); Knorr v. K–Mart Corp., 300
N.W.2d 47 (N.D. 1980)).
Magistrate Judge Karen K. Klein of
the United States District Court for the
District of North Dakota applied a liberal
product identification standard in
recommending that defendants' motions for
summary judgment be denied in Adolph v.
A.P.I., Inc. (D.N.D. 1991). Magistrate Judge
Klein Concluded that coworker testimony or
evidence that a plaintiff was employed by a
company at the same time that the company was
using defendant's asbestos-containing
products could be sufficient to survive
summary judgment and that a plaintiff need
not specifically describe exposure to the
defendant's products. Id. at 3. Magistrate
Judge Klein also recognized that, even if the
defendants were entitled to summary judgment
as to product identification, since they had
5

not moved for summary judgment as to
plaintiff's conspiracy claims, “no useful
purpose would be served by the piecemeal
granting of partial summary judgments on
exposure when a defendant must nonetheless
remain in the case because of the conspiracy
claims.” Id. at 4. Magistrate Judge Klein did
not consider any of the evidence presented
against the defendants and noted that “[t]he
motions may be renewed as to particular
plaintiffs at trial.” Id.
In an unpublished opinion, the
United States Court of Appeals for the Eighth
Circuit addressed product identification and
causation in the asbestos context. Bossert v.
Keene Corp., 19 F.3d 1437, 1994 WL 108844
(8th Cir. 1994). The United States District
Court for the District of North Dakota denied
defendant MacArthur Corp.'s motion for
judgment as a matter of law and MacArthur
appealed this decision. Id. at *1. The court
noted that,
[a] cause is proximate if it ‘had a
substantial part in bringing about
the harm or injury either
immediately or through happenings
which follow one another.’ Andrews,
387 N.W.2d at 727. North Dakota
courts have not addressed the
standard for proving causation in
the specific context of an asbestos
personal injury case, and MacArthur
urges us to use the ‘frequency,
regularity, and proximity’ test
used in other states. See, e.g.,
Jackson v. Anchor Packing Co., 994
F.2d 1295, 1301–03 (8th Cir. 1993)
(applying Arkansas law); Lohrmann
v. Pittsburgh Corning Corp., 782
F.2d 1156, 1162–63 (4th Cir. 1986)
(applying Maryland law).
Plaintiff's proof of exposure
consisted of Mr. Bossert's testimony that he
worked at the Amoco refinery for a total of
approximately eight months and the testimony
6

of Robert Clooten, a former insulation
tradesperson at the Amoco refinery who
testified that about half of the cements
installed in the Amoco refinery from 1954
until 1965 were manufactured by MacArthur and
that about half of this pipe covering was
still in place. 1994 WL 108844, at *2. The
court concluded that the plaintiff's proof of
exposure was “entirely circumstantial” and
that “[b]ecause Bossert failed to produce
substantial evidence of exposure to
MacArthur's products ... Bossert cannot
satisfy any proximate cause standard.” Id. at
*1–2. Accordingly, the court reversed the
district court and granted MacArthur's motion
for judgment as a matter of law. Id. at *2.
The Bossert court granted
defendant's motion for summary judgment based
on evidence that the plaintiff worked a
refinery and coworker testimony that the
defendant's product was present at the
refinery. In Adolf, Magistrate Judge Klein
denied defendants' motions for summary
judgment in this scenario, but relied on the
fact that the defendants would not be
dismissed from the cases even if the motions
were granted and noted that the defendants
would have the opportunity to renew these
motions. This Court will not attempt to
predict the law of North Dakota when the
Supreme Court of North Dakota has not yet
addressed product identification in the
asbestos context. Rather, in keeping with the
general products liability standard,
Plaintiff must merely raise a genuine issue
of material fact as to whether exposure to
the Defendant's product proximately caused
the Plaintiff's injury. Andrews, 337 N.W.2d
at 727.
Miller, 2011 WL 5505429 at *1 n.1.
There have been no new decisions from any court of
appeals in North Dakota since this Court’s discussion of the
North Dakota product identification standard in June of 2011.
7

III.

DISCUSSION
A.

Defendant’s Argument
Foster Wheeler concedes that it built a 140-foot high

Alkylation unit at the Amoco facility in 1957.

It argues,

however, that Plaintiffs in these cases have failed to identify
sufficient evidence to support a finding of causation with
respect to its work or its product(s) at the Amoco facility.
B.

Plaintiffs’ Arguments
Plaintiffs contend generally that they have identified

sufficient product identification evidence under the standard
that the court should apply.

Plaintiffs acknowledge that any

asbestos associated with the Alkylation unit was asbestos of a
component part manufactured by a company other than Foster
Wheeler (including, specifically, Johns-Manville).

Plaintiffs

cite to state trial court and federal district court cases to
argue that a liberal application of the “substantial factor” test
is warranted under the precedent of trial courts in North Dakota,
and that circumstantial evidence is sufficient to survive summary
judgment.

Of particular note, Plaintiffs cite to Nogosek v.

Asbestos Corp. of America, No. A2-87-173, 1989 WL 1635767 (D.N.D.
1989), quoting the following excerpt:
A) Circumstantial Evidence
When claiming wrongful death, a plaintiff must show
that he or she has been exposed to petitioner's
8

asbestos products. Celotex Corp. v. Catrett, 477 U.S.
317, 319 (1986). When Clarence Nogosek was deposed, he
failed to identify by name many of the defendants in
this case. The defendants, however, incorrectly assume
that unless Mr. Nogosek was able to specifically
describe exposure to a defendant's products, summary
judgment is in order. This is not the case.
Mild exposure to asbestos can be a factor in proving
plaintiff's injury. See Rocco v. Johns–Manville Corp.,
754 F.2d 110, 113 (3rd Cir. 1983). Evidence of exposure
alone can allow an inference of injury. See Roehling v.
Nations' Gypsum Co. Gold Bond Bldg. Products, 786 F.2d
1225, 1228 (4th Cir. 1986). Circumstantial evidence
presented to the Court in this case allows a potential
finding that Mr. Nogosek was exposed to defendants'
products. Summary judgment is therefore inappropriate
at this time.
1989 WL 1635767, at #1-2 (emphasis added).

During oral argument,

Plaintiffs asserted that Bossert and the decisions issued by this
MDL Court in June of 2011 are distinguishable because of the
short time period of alleged exposure experienced by the
plaintiffs in those case as compared to the Decedents at hand.
In each of the nineteen (19) cases in which Plaintiffs
have opposed Foster Wheeler’s motion for summary judgment,
Plaintiffs submit as part of their evidence the testimony of one
or more of the following former workers at the Amoco facility,
each of whom was deposed in the early stage of the litigation of
the “Amoco Cases” now before the Court:
(i)

Robert E. Carufel (died of mesothelioma; deposed 1991)
Mr. Carufel testified that he was involved in the

storage of asbestos insulation at the Amoco plant – including at
the Alkylation Unit – and that this work resulted in exposure to
9

asbestos, including but not limited to exposure resulting from
physically tearing off asbestos and replacing it.
(ii)

Robert Clooten (at facility 1955-1983; deposed 1991)
Mr. Clooten, who worked as a craftsman in the

pipefitting, welding, and insulation trades, testified that he
was involved in dusty work associated with the use of
pipecovering and insulating block at the facility from 1954 to
1983.

He testified that Kaylo brand pipecovering was among the

sources of asbestos exposure.

He testified that about half of

the asbestos pipecovering that was present during his work at the
facility was still in place at the facility at the time of his
deposition (1991).
(iii)

Gerald Assel (deposed 1996)
Mr. Assel testified that, during “shut-downs” of the

facility, everyone would work doing everything that needed to be
done to repair and maintain the plant and that, on “Energy
Saturdays,” everyone would work overtime repairing steam leaks
and insulation throughout the plant.
(iv) Lyle Berg (deposed 1996)
Mr. Berg testified that his work as a laborer, relief
operator, and craftsman or laborer on maintenance “turn-arounds”
took him to every part of the refinery.

He testified about the

system of “labor gangs” used to assist and clean up after every
type of trade working at the facility.
10

He testified that nearly

every vessel and piece of equipment was covered with insulation.
In short, Plaintiffs rely upon the testimony of these
former Amoco workers about their job duties and the general work
processes in place at the refinery (e.g., the “labor gangs,”
nature and scope of work done during “shut-downs,” “turn-arounds”
and “Energy Saturdays,” and the way in which this work was
assigned) to provide circumstantial evidence from which
Plaintiffs contend a jury could conclude that the Decedents were
exposed to asbestos as a result of asbestos-containing products
supplied to and installed in the facility by Foster Wheeler.
C.

Analysis
As a preliminary matter, the Court has considered

Plaintiffs’ arguments that the standard to be applied in
assessing the sufficiency of their evidence pertaining to product
identification and causation should be modified from that
previously applied by this Court because (1) Nogosek indicates
that circumstantial evidence of exposure to a given Defendant’s
product is sufficient to survive summary judgment and (2) the
controlling case arguably suggesting otherwise (Bossert) is
distinguishable by virtue of the comparatively short time period
of alleged exposure therein.

The Court rejects this argument and

notes that there have been no new decisions from any appellate
court in North Dakota since the time the Court first addressed
this issue.

Furthermore, the Court notes that Nogosek (1) was
11

decided several years prior to the Eight Circuit’s opinion in
Bossert, (2) made clear that some evidence of exposure to the
defendant’s product is necessary, and (3) denied defendants’
motion where there was in fact direct evidence of exposure to the
moving defendants’ asbestos-containing products.2

Having

established that the standard to be applied remains the same as
that previously set forth by this Court for cases brought under
North Dakota law, the Court now turns to examine the sufficiency
of Plaintiffs’ evidence in each of the nineteen (19) cases
presently before it.
A short summary of the evidence for each Decedent is as
follows:
Decedent Name
1

Summary of Evidence

Raymond Birst

No deposition testimony of Mr. Birst;
Evidence that Mr. Birst worked at
facility 1955-1985;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;

2

The Nogosek court noted that, although the decedent
(Mr. Nogosek) only recalled two manufacturers of asbestoscontaining products to which he was exposed, and was unable to
identify by name the products of the moving defendants prior to
his death, “[s]uppliers who sold asbestos containing products to
Mr. Nogosek, however, have stated that products of [the moving
defendants] and others were used by him as well.” 1989 WL
1635767, at *1.
12

No evidence that Mr. Birst worked in
Alkylation unit or otherwise around a
product of Foster Wheeler’s
2

Clarence Fateley

No deposition testimony of Mr.
Fateley;
Evidence that Mr. Fateley worked at
facility 1954-1984;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Fateley worked in
Alkylation unit or otherwise around a
product of Foster Wheeler’s

3

Mike Hilzendeger

No deposition testimony of Mr.
Hilzendeger;
Evidence that Mr. Hilzendeger worked
at facility 1953-1984;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Hilzendeger
worked in Alkylation unit or otherwise
around a product of Foster Wheeler’s

4

Boyd Jaskoviak

No deposition testimony of Mr.
Jaskoviak;
Evidence that Mr. Jaskoviak worked at
facility 1954-1988;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;

13

No evidence that Mr. Jaskoviak worked
in Alkylation unit or otherwise around
a product of Foster Wheeler’s
5

Creighton Kettelson

No deposition testimony of Mr.
Kettelson;
Evidence that Mr. Kettelson worked at
facility 1954-1983;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
Deposition testimony of former Amoco
employee Leonard Ereth, who testified
that Mr. Kettleson may have worked in
Alkylation unit at one time, although
he was not sure

6

Joseph Leingang

No deposition testimony of Mr.
Leingang;
Evidence that Mr. Leingang worked at
facility 1954-1986;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Leingang worked
in Alkylation unit or otherwise around
a product of Foster Wheeler’s

7

Richard Leingang

Mr. Leingang was deposed as a coworker in another plaintiff’s action
but did not testify that he was
exposed to asbestos attributable to
Foster Wheeler;
Evidence that Mr. Leingang worked at
facility 1955-1995;
Evidence that Foster Wheeler
14

constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Leingang worked
in Alkylation unit or otherwise around
a product of Foster Wheeler’s
8

Lorraine McCulley

No deposition testimony of Mr.
McCulley;
Evidence that Mr. McCulley worked at
facility 1956-1989;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. McCulley worked
in Alkylation unit or otherwise around
a product of Foster Wheeler’s

9

Alvie Nixon

No deposition testimony of Mr. Nixon;
Evidence that Mr. Nixon worked at
facility 1954-1973;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Nixon worked in
Alkylation unit or otherwise around a
product of Foster Wheeler’s

10

Joseph Senger

No deposition testimony of Mr. Senger;
Evidence that Mr. Senger worked at
facility 1954-1986;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
15

contained asbestos component parts
manufactured by others;
No evidence that Mr. Senger worked in
Alkylation unit or otherwise around a
product of Foster Wheeler’s
11

Daryl Sheldon

No deposition testimony of Mr.
Sheldon;
Evidence that Mr. Sheldon worked at
facility 1955-1975;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Sheldon worked in
Alkylation unit or otherwise around a
product of Foster Wheeler’s

12

Gerard Sheldon

No deposition testimony of Mr.
Sheldon;
Evidence that Mr. Sheldon worked at
facility 1955-1989;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Sheldon worked in
Alkylation unit or otherwise around a
product of Foster Wheeler’s

13

Melvin Skager

No deposition testimony of Mr. Skager;
Evidence that Mr. Skager worked at
facility 1955-1978;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
16

No evidence that Mr. Skager worked in
Alkylation unit or otherwise around a
product of Foster Wheeler’s
14

Larry Sullivan

No deposition testimony of Mr.
Sullivan;
Evidence that Mr. Sullivan worked at
facility 1954-1989;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Sullivan worked
in Alkylation unit or otherwise around
a product of Foster Wheeler’s

15

Wallace Toepke

Mr. Toepke was deposed; he testified
that he didn’t specifically recall
Foster Wheeler but he thought perhaps
the company supplied clothing or
gloves; Defendant Foster Wheeler
contends that Mr. Toepke specifically
testified that he never worked in the
Alkylation unit, but Defendant failed
to attach the page of the deposition
transcript where it is claimed that he
testified to this (p. 77)
Evidence that Mr. Toepke worked at
facility 1954-1985;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Toepke worked in
Alkylation unit or otherwise around a
product of Foster Wheeler’s

16

William Woods

No deposition testimony of Mr. Woods;
Plaintiffs contend that Mr. Woods
17

worked for a time as a lab technician;
Deposition testimony of co-worker Lyle
Berg indicates lab technicians would
have been exposed to asbestos inside
and outside of the lab and would work
in “all parts of the refinery” with
“all trades”
Defendant Foster Wheeler contends that
Mr. Woods’s daughter (Sharon Schwahn)
specifically testified that he did not
work in the Alkylation unit, but
Defendant failed to attach the page of
the deposition transcript where it is
claimed that she testified to this (p.
43)
Evidence that Mr. Woods worked at
facility 1954-1987;
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Woods was exposed
to asbestos from a product of Foster
Wheeler’s
17

Richard Zachmeier

Mr. Zachmeier was deposed in 1993 in
connection with another person’s
lawsuit but did not testify that he
was exposed to asbestos attributable
to Foster Wheeler
Evidence that Mr. Zachmeier worked at
facility 1955-1981;
Co-worker deposition testimony
suggests that Mr. Zachmeier worked all
over facility
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
18

No evidence that Mr. Zachmeier was
exposed to asbestos from a product of
Foster Wheeler’s
18

William Zachmeier

No deposition testimony of Mr.
Zachmeier;
Evidence that Mr. Zachmeier worked at
facility 1955-1990;
Co-worker deposition testimony
suggests that Mr. Zachmeier worked all
over facility
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Zachmeier was
exposed to asbestos from a product of
Foster Wheeler’s

19

James Zoller

Mr. Zoller was deposed; he testified
that he did not know what type of
product(s) Foster Wheeler manufactured
and that he did not recall working
around any Foster Wheeler employees
Evidence that Mr. Zoller worked at
facility 1955-1972;
Co-worker deposition testimony
suggests that Mr. Zoller worked all
over facility
Evidence that Foster Wheeler
constructed and supplied Alkylation
unit at facility in 1957 – which
contained asbestos component parts
manufactured by others;
No evidence that Mr. Zoller was
exposed to asbestos from a product of
Foster Wheeler’s

19

Although there is evidence that each of the Decedents
in these cases worked at the Amoco facility, there is no evidence
that any Decedent was exposed to asbestos from a product of
Defendant Foster Wheeler’s or as a result of work that was
performed by Foster Wheeler in constructing the Alkylation unit.
Although there is testimony that a few of the Decedents worked
“all over the facility,” there is no evidence that this work
resulted in any one Decedent’s exposure to asbestos.

Plaintiffs

suggest that the testimony of former Amoco workers Mr. Carufel,
Mr. Clooten, Mr. Assel, and/or Mr. Berg can be used as a basis
for inferring that the Decedents were exposed to asbestos
supplied by Foster Wheeler despite the fact that this testimony
does not identify any particular Decedent as having had such
exposure.

The Court notes that this evidence lacks the quality

and specificity required to show that a defendant’s product (or
conduct) was a substantial part of the causation of a Decedent’s
illness and concludes that any such inference of causation by a
jury would be based on speculation.
at *2.

See Bossert, 1994 WL 108844,

Plaintiffs have failed to carry their burden of pointing

to evidence sufficient to support a finding of causation.
Accordingly, summary judgment in favor of Defendant must be
granted. See Miller, 2011 WL 5505429, at *1 n.1 (citing Andrews,
337 N.W.2d at 726-27 and Bossert, 1994 WL 108844, at *1-2).

20

IV.

Conclusion
Summary judgment in favor of Defendant Foster Wheeler

is warranted in each of the nineteen (19) cases in which
Plaintiffs opposed Foster Wheeler’s motion (see Exhibit A,
attached hereto) because there is no evidence that any Decedent
was exposed to asbestos from a product of – or as a result of
work performed by – Foster Wheeler.
motion in each case is granted.

21

Accordingly, Defendant’s

Exhibit A
Motions by Foster Wheeler
in Various Cases Transferred from the
United States District Court for the District of North Dakota

Decedent’s Name

D.N.D.
Case No.

E.D. PA
Case No.

Doc.
No.

1

Raymond Birst

90-00241

09-66623

33

2

Clarence Fateley

90-00249

09-66630

37

3

Mike Hilzendeger

92-00186

09-68033

14

4

Boyd Jaskoviak

90-00259

09-66640

28

5

Creighton Kettelson

90-00262

09-66643

28

6

Joseph Leingang

90-00265

09-66646

27

7

Richard Leingang

90-00266

09-66647

33

8

Lorraine McCulley

92-00186

09-68048

12

9

Alvie Nixon

90-00272

09-66653

29

10

Joseph Senger

90-00284

09-66665

34

11

Daryl Sheldon

90-00287

09-66668

34

12

Gerard Sheldon

90-00288

09-66669

31

13

Melvin Skager

90-00289

09-66670

29

14

Larry Sullivan

90-00292

09-66673

33

15

Wallace Toepke

90-00294

09-66675

33

16

William Woods

90-00298

09-66679

33

17

Richard Zachmeier

90-00300

09-66681

28

18

William Zachmeier

90-00301

09-66682

29

19

James Zoller

90-00302

09-66683

33