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MacQueen v. Union Carbide Corp.

United States District Court, D. Delaware

February 8, 2017

MARGUERITE MACQUEEN, Individually and as the Surviving Spouse of DAVID MACQUEEN, deceased, Plaintiff,
v.
UNION CARBIDE CORPORATION, et al, Defendants.

          REPORT AND RECOMMENDATION

          CHRISTOPHER J. BURKE UNITED STATES MAGISTRATE JUDGE.

         Presently pending before the Court are three separate motions for summary judgment filed pursuant to Federal Rule of Civil Procedure 56 (the "Motions"), filed by remaining Defendants Crane Co. ("Crane"), (D.I. 444), Warren Pumps LLC ("Warren"), (D.I. 460), and Air & Liquid Systems Corporation ("Buffalo"[1]), (D.I. 462). For the reasons set forth below, the Court recommends that Warren's Motion be GRANTED, and that Crane's and Buffalo's respective Motions be GRANTED-IN-PART and DENIED-IN-PART.

         I.BACKGROUND[2]

         In this matter, Plaintiff is acting individually as administratrix of the estate and as the surviving spouse of the decedent, her husband David MacQueen ("Mr. MacQueen" or "Decedent"). (D.I. 380 at 4) On March 28, 2013, Plaintiff filed suit in the Superior Court of Delaware, in and for New Castle County, naming over 50 Defendants. (D.I. 1, ex. 1) On May -10, 2013, Crane and another Defendant, Elliott Company ("Removing Defendants"), each filed respective notices of removal in this Court. (D.I. 1; D.I. 1, Civil Action No. 13-835-SLR-CJB)[3]After the cases were consolidated, they were later referred to the Court by Judge Sue L. Robinson on September 11, 2013, for the Court to "conduct all proceedings . . . [and] hear and determine all motions[], through and including the pretrial conference." (D.I. 152; see also D.I. 580)

         On September 30, 2014, Plaintiff filed the operative complaint, which is the Fourth Amended Complaint. (D.I. 380) Plaintiff therein asserted state law causes of action based on or related to Mr. MacQueen's alleged exposure to asbestos and asbestos-containing products while Mr. MacQueen was employed: (1) by the United States Navy aboard the U.S.S. Randolph and the U.S.S. Independence from 1956 to 1960; and (2) as a salesman by Union Carbide Corporation from approximately 1963 to 1980. (Id. at ¶ 11) Crane, Warren, and Buffalo are the three remaining Defendants in the case, with the other Defendants having all claims/cross-claims against them dismissed by stipulation or otherwise. Each of the three remaining Defendants are manufacturers of equipment that Plaintiff alleges was aboard the U.S.S. Randolph or U.S.S. Independence; Plaintiff alleges this equipment contained asbestos, to which Mr. MacQueen was exposed. (See, e.g., D.I. 535 at 17-18; D.I. 536 at 17-18; D.I. 537 at 17-18)[4]

         The Fourth Amended Complaint includes counts of negligence (Count IV), (D.I. 380 at ¶¶ 26-31), strict liability (Count V), (id. at ¶¶ 32-39), willful and wanton conduct (Count VI), (id. at ¶¶ 40-47), conspiracy (Count VII), (id. at ¶¶ 48-56), and loss of consortium (Count VIII), (id. at ¶¶ 57-58).[5] Plaintiff demands a judgment for damages against all Defendants jointly and severally, as well as punitive damages from each Defendant. (Id. at 34)

         On October 17, 2014, Crane, Warren, and Buffalo filed the instant Motions, seeking summary judgment as to all pending claims on product identification and nexus grounds. (D.I. 444; D.I. 460; D.I. 462) Briefing on the Motions was stayed on November 18, 2014, to allow for the prior resolution of another related motion. (See D.I. 529 at 6 n.4) Thereafter, briefing on the Motions resumed, and it was complete as of February 6, 2015. (D.I. 543; D.I. 544; D.I. 545) The parties also later provided letters discussing supplemental authority. (D.I. 566; D.I. 571)

         The Court originally scheduled oral argument on the Motions for June 24, 2015. But on June 16, 2015, the Court postponed oral argument at Plaintiffs request, (D.I. 567), ordering that argument would instead be scheduled after a forthcoming ruling by the District Court on a related motion. The District Court later ordered that discovery in the case be re-opened, in order to allow Plaintiff the ability to pursue third-party discovery as to product identification and nexus from former Defendant Huntington Ingalls Incorporated, (D.I. 580); this, in turn, caused the Court to issue a revised Scheduling Order in the case, (D.I. 584). That revised Scheduling Order permitted the parties-after the third-party discovery period was complete-to submit renewed and/or supplemented summary judgment motions on product identification and nexus. (Id. at ¶ 11) Those renewed and/or supplemented motions were initially due by July 1, 2016, (id), a deadline that was later extended to August 5, 2016, (D.I. 596 at 9). On August 1, 2016, Plaintiff and the remaining Defendants filed a stipulation, in which (1) they each stated their request that briefing on the Defendants' originally-filed Motions be deemed submitted for purposes of the new case-dispositive motions deadline, and (2) Plaintiff sought oral argument on those Motions. (D.I. 601)

         The Court then held oral argument on the Motions on January 10, 2017. Thereafter, the Court sought additional letter briefing from the parties on a discrete issue, which the parties filed on January 18, 2017. (D.I. 606-07; D.I. 609-10)

         II. STANDARD OF REVIEW

         A grant of summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). If the moving party has sufficiently demonstrated the absence of a genuine dispute of material fact, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Id. at 587 (internal quotation marks and emphasis omitted). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). During this process, the Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150(2000).

         However, in order 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 586-87; see also Podobnikv. United States Postal Service, 409 F.3d 584, 594 (3d Cir. 2005) (party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks and citation omitted). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Facts that could alter the outcome are "material, " and a factual dispute is "genuine" only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "If the evidence is merely colorable ... or is not significantly probative ... summary judgment may be granted." Id. at 249-50 (internal citations omitted). A party asserting that a fact cannot be-or, alternatively, is-genuinely disputed must support the assertion 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 the 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)(1)(A) & (B).

         III. DISCUSSION

         The key issue raised by the Motions is whether Plaintiff can establish the existence of a genuine issue of material fact as to causation-that is, as to whether there is a nexus between his work on the two ships referenced above and his work with any asbestos-containing product for which any or all of the three remaining Defendants could be held responsible. (D.I. 445 at 2; D.I. 461 at 5; D.I. 463 at 1) In a products liability action under maritime law, [6] such as this one, a plaintiff proceeding under either a negligence and/or strict liability theory must establish causation by showing, "for each defendant, that (1) he was exposed to the defendant's product, and (2) the product was a substantial factor 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)); see also Walkup v. Air & LiquidSys. Corp., Civil Action No. 12-1635-SLR-SRF, 2014 WL 2514353, at *4 (D. Del. June 4, 2014), adopted by 2014 WL 4447568 (D. Del. Sept. 8, 2014). Relatedly, a manufacturer "is not liable for harm caused by, and owes no duty to warn of the hazards inherent in, asbestos products that the manufacturer did not manufacture or distribute." Conner v. Alfa Laval, Inc., 842 F.Supp.2d 791, 801 (E.D. Pa. 2012); see also Walkup, 2014 WL 2514353, at *4.[7]

         Defendants argue that Plaintiff cannot demonstrate that a genuine issue of material fact exists as to causation. Plaintiff disagrees, arguing both that Defendants have not done enough to shift the burden of production to her at the summary judgment stage, (see, e.g., D.I. 535 at 9), and that, in any event, she has presented sufficient circumstantial evidence to survive Defendants' summary judgment Motions, (see, e.g., Id. at 19).

         A. Whether Defendants Have Shifted the Burden to Plaintiff

         As to a summary judgment motion, "the moving party bears the initial burden of showing the absence of a genuine issue of material fact[.]" Haskins v. Christiana Care Health Servs., 701 F.Supp.2d 623, 627 (D. Del. 2010). Plaintiff argues that each Defendant has not met this burden, such that she need not even demonstrate that a genuine issue of fact exists for this case to move forward. (D.I. 535 at 9) The Court disagrees with Plaintiff.

         Defendants cannot, of course, prove the non-existence of a fact. Rather, a defendant may satisfy its initial burden by "'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case when the nonmoving party bears the ultimate burden of proof." Singletary v. Pa. Dep't. of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (quoting Celotex, 411 U.S. at 325) (certain quotation marks omitted). That is exactly what all three Defendants have done through their briefing on the instant Motions.

         Two of the Defendants (Warren and Buffalo) did so by not only citing the appropriate standard for establishing causation, but then by offering detailed citations to the content of the depositions of Plaintiffs' three product identification witnesses (Grover Garrant, Douglas Mitchell and Delas Strode). For example, Warren devotes over two pages of its opening brief to descriptions of the deposition testimony of Mr. Garrant, Mr. Mitchell .and Mr. Strode, pointing out how their answers could not serve to create a genuine issue of material fact as to whether Mr. MacQueen had any interaction with a Warren pump on either of the two ships at issue. (D.I. 461 at 6-9) Warren concludes by asserting that "[t]here has been no evidence, testimonial or otherwise, in support of the proposition that decedent David MacQueen worked with or around an asbestos-containing product for which Warren is legally responsible." (See Id. at 9; see also D.I. 537 at 9 (Plaintiff acknowledging that Warren's opening brief did "cite to portions of the record of this case")) Similarly, Buffalo also cites to the standard for showing causation, and then cites repeatedly to portions of the three witnesses' deposition testimony, all in order to show that "Plaintiff has not produced any evidence that Mr. MacQueen was exposed to asbestos-containing product for which Buffalo is responsible during his service in the U.S. Navy, or, for that matter, during any subsequent employment." (See D.I. 463 at 1-2; see also D.I. 536 at 9 (Plaintiff acknowledging that Buffalo's opening brief did "cite to portions of the record of this case" in support of its Motion)) Thus, Warren and Buffalo have easily discharged their initial burdens.

         As for Defendant Crane, in its opening brief, it includes a section entitled "Failure of Plaintiffs Proof of Crane Co.-Specific Exposure/Causation[.]" (D.I, 445 at 4) After noting that for Plaintiff to succeed in her action, she must, inter alia, "prove that defendant-attributable asbestos exposure was a substantial factor in causing [Mr. MacQueen's] injury[, ]" (id. (citations omitted)), Crane states that "[s]ince there has been no evidence produced to support Plaintiffs allegations that Decedent was exposed to an asbestos-containing Crane Co. product, Plaintiff cannot satisfy the applicable maritime law by providing sufficient evidence that exposure to a Crane Co. product was a substantial factor in causing Decedent's injury[, ]" (id. at 5). In reaching this conclusion, Crane also refers explicitly to the testimony of the three product identification witnesses referenced above. There it explains that "[t]hree witnesses were tendered for deposition by Plaintiff in support of Plaintiff s claims of asbestos exposure while serving in the United States Navy: [Mr.] Garrant, [Mr.] Mitchell and [Mr.] Strode [, ]" that "[n]one of these witnesses knew Mr. MacQueen or any of the work he performed" and that "none of them testified to any work performed on any Crane Co. piece of equipment and none knew of any asbestos exposure, to Mr. MacQueen or anyone else, as the result of working with any Crane Co. product." (Id. at 3; see also Id. at 2)

         Now it is true, as Plaintiff notes, (D.I. 535 at 9), that when Crane made reference to the testimony of these three witnesses, it did not cite for support to particular pages of the witnesses' deposition testimony. But Crane did: (1) explain the basis for its Motion, (2) identify certain witnesses whose testimony allegedly underscored the merit of its Motion (in a case where its co-Defendants had otherwise cited to the relevant pages of that testimony for the same purpose), and (3) describe what it was about those witnesses' testimony that was lacking. In light of this, the Court concludes that Crane too has discharged its burden. That is, Crane did enough to "inform[] the district court of the basis for its motion" and to "identify[]" the portions of the record that demonstrate the absence of a genuine issue of fact. Celotex, 477 U.S. at 323; cf. Church-El v. Bank of New York, Civil No. 11-877 (NLH/KW), 2015 WL 757690, at *4 (D. Del. Feb. 19, 2015) (finding that summary judgment movant had not met his initial burden because he had neither submitted documents in support of his motion nor "described the content of these documents with any degree of particularity"). This amounts to "pointing out. .. that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325; see also Singletary, 266 F.3d at 192 n.2.

         In light of this, the burden shifts to Plaintiff to show a genuine issue of material fact.[8] The Court will next assess whether Plaintiff has met that burden.

         B. Whether Plaintiff Has Established the Existence of a Genuine Issue of Material Fact as to Causation

         1. Exposure

         The threshold question that the Court must answer in the causation inquiry is whether Plaintiff has raised a genuine issue of material fact as to whether Mr. MacQueen was exposed to any of the Defendants' products. The Court determines that she has not.

         As was noted above, Plaintiff tendered three product identification witnesses during discovery, who were deposed in July and August of 2014. (D.I. 271; D.I. 273; D.I. 277) None of the three witnesses offered factual information that would allow the Court to infer that Mr. MacQueen was ever exposed to any of the Defendants' products on either the U.S.S. Randolph or the U.S.S. Independence (or anywhere else). Indeed, two of the witnesses, Mr. Strode and Mr. Garrant, did not recall ever meeting Mr. MacQueen. (See D.I. 463, ex. A at 12-13; id., ex. B at 19) The third witness, Mr. Mitchell, testified that he had met Mr. MacQueen, but then he identified the man he was thinking of as a black man (Mr. MacQueen was white). (D.I. 461 at 8 & ex. H at 17) Additionally, Mr. Mitchell testified that he would not be able to say whether Mr. MacQueen worked on any particular piece of equipment on the U.S.S. Independence. (Id., ex. H at 52-53) And, in fact, Plaintiff does not now rely on any aspect of these three witnesses' testimony in order to defeat summary judgment.[9]

         Instead, Plaintiff attempts to establish a factual controversy based on the expert affidavit of Captain Francis J. Burger (the "Burger Affidavit" or the "Affidavit"), disclosed for the first time with her briefs in opposition to the pending Motions. (See, e.g., D.I. 535, Ex. B ("Burger Aff.")) Captain Burger is a retired Naval Engineering Officer and Engineer/Project Manager with over 50 years of experience in the fields of Naval and Marine Engineering and Naval Architecture. (Burger Aff. at ¶ 1 & att. A) As he explains in the Affidavit, Captain Burger has experience in:

evaluating and considering the potential for exposure to asbestos encountered by shipboard naval personnel, including pipefitters, welders, engine room personnel and shipyard workers in connection with work with a variety of equipment and products used aboard U.S. naval ships and aircraft carriers. [He has] also developed extensive knowledge and ...

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