United States District Court, D. Delaware
REPORT AND RECOMMENDATION I.INTRODUCTION
R. Fallon United States Magistrate Judge.
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.
("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
Motion For Summary Judgment
Gardner Denver Inc.
Flowserve U.S. Inc.
Atwood & Morrill Company Inc.
Nash Engineering Company
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,
Plaintiffs alleged exposure history
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)
Evans was deposed on April 7, 2016. (D.I. 100) Plaintiffs did
not produce any other fact or product identification
witnesses for deposition. 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)
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)
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)
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)
Plaintiffs' product identification evidence
Gardner Denver Inc.
Evans did not identify any products manufactured by Gardner
Denver. (See D.I. 148)
Flowserve U.S. ...