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In re Asbestos Litigation

United States District Court, D. Delaware

February 15, 2017

IN RE ASBESTOS LITIGATION
v.
ALFA LAVAL, INC., et al. Defendants. ICOM HENRY EVANS, and JOHANNA ELAINE EVANS, Plaintiffs, Defendant Motion For Summary Judgment Defendant Motion For Summary Judgment

          REPORT AND RECOMMENDATION I.INTRODUCTION

          Sherry R. Fallon United States Magistrate Judge.

         This Report and Recommendation is limited to four pending motions for summary judgment in this asbestos-related personal injury action. The motions were filed by Defendants, Gardner Denver, Inc. ("Gardner Denver") (D.I. 146), Flowserve U.S. Inc.[1] ("Flowserve") (D.I. 149), Atwood & Morrill Company, Inc. ("Atwood") (D.I. 160), and Nash Engineering Company ("Nash") (D.I. 161) (collectively "Defendants"). As indicated in the chart, infra, and for the reasons set forth below, the court recommends granting Defendants' motions for summary judgment.

Defendant
Motion For Summary Judgment
Gardner Denver Inc.
GRANT
Flowserve U.S. Inc.
GRANT
Atwood & Morrill Company Inc.
GRANT
Nash Engineering Company
GRANT

         II. BACKGROUND

         A. Procedural History

         Icom Henry Evans and Johanna Elaine Evans ("Plaintiffs") filed this asbestos action in the Delaware Superior Court against multiple defendants on June 11, 2015, asserting claims regarding Mr. Evans' alleged harmful exposure to asbestos. (D.I. 1 at ¶ 1) Defendant Foster Wheeler removed the action to this court on August 4, 2015. (D.I. 1) Gardner Denver, Flowserve, Atwood, and Nash filed motions for summary judgment on October 7, 2016. (D.I. 146, 149, 160, 161) Plaintiffs did not respond to these motions. On December 30, 2016, counsel for Flowserve sent a letter to the court seeking dismissal for Plaintiffs' failure to oppose the summary judgment motion. (D.I. 199) Counsel for Gardner Denver filed a similar letter on January 23, 2017.[2] (D.I. 204)

         B. Facts

         1. Plaintiffs alleged exposure history

         Plaintiffs allege that Mr. Evans developed mesothelioma as a result of exposure to asbestos-containing products during the course of his employment as a fireman and boiler tender with the U.S. Navy from 1957 to 1967. (D.I. 1, Ex. A at ¶ 29(a)) Plaintiffs contend that Mr. Evans was injured due to exposure to asbestos-containing products that Defendants manufactured, sold, distributed, licensed, or installed. (Id., Ex. A at ¶ 32) Accordingly, Plaintiffs assert negligence, strict liability, punitive damages, and loss of consortium claims. (Id., Ex. A)

         Mr. Evans was deposed on April 7, 2016. (D.I. 100) Plaintiffs did not produce any other fact or product identification witnesses for deposition.[3] Mr. Evans testified that he enlisted in the Navy in July of 1957. (4/7/16 Video Tr. at 20:5-8) After boot camp, he went to a training school for boilermen. (Id. at 20:24-21:8) His training there consisted of learning how to tend and operate boilers on ships. (Id. at 21:7-8)

         After training, Mr. Evans was stationed on the USS Kearsarge from 1957 to 1961. (Id. at 22:5-23:9) There, he worked as a boilerman. (Id. at 24:9) On the USS Kearsarge, Mr. Evans operated and maintained the boilers when repairs were required. (Id. at 26:1-6) He believes he was exposed to asbestos while operating and maintaining the boilers because he worked with asbestos-containing gaskets. (Id. at 28:3-19)

         In 1961, Mr. Evans left the Navy, but re-enlisted a month or so later, and was assigned to the USS John A. Bole. (Id. 34:15-22) Mr. Evans testified that he had the same duty assignment as he was assigned on the USS Kearsarge. (Id. at 36:17-21) He believes he was exposed to asbestos while hammering out refractory brick inside the boilers. (Id. at 45:13-46:8) While hammering, Mr. Evans noticed particles being released into the air. (Id. at 48:5-49:1)

         From the early 1960s and until the 1990s, Mr. Evans also changed the brakes on automobiles owned by his family. (Id. 91:5-92:4) Mr. Evans believes he was exposed to asbestos while cleaning out the debris inside tire drums. (Id. at 92:5-94:11)

         2. Plaintiffs' product identification evidence

         a. Gardner Denver Inc.

         Mr. Evans did not identify any products manufactured by Gardner Denver. (See D.I. 148)

         b. Flowserve U.S. ...


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