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In re Asbestos Litigation

United States District Court, D. Delaware

February 16, 2017

IN RE ASBESTOS LITIGATION
v.
CBS CORPORATION, et al., Defendants. MARILYN CHARLEVOIX, Individually and as Executor of the Estate of Stephen Charlevoix, Deceased, and on behalf of all Wrongful Death Beneficiaries, Plaintiffs,

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This Report and Recommendation is limited to two pending motions for summary judgment in this asbestos-related personal injury action. The motions were filed by Defendants, John Crane Inc. ("John Crane") (D.I. 144), and Fiat Allis North America ("Fiat") (D.I. 162) (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

John Crane Inc.

GRANT

Fiat Allis North America

GRANT

         II. BACKGROUND

         A. Procedural History

         Stephen and Marilyn Charlevoix ("Plaintiffs") filed this asbestos action in the Delaware Superior Court against multiple defendants on July 10, 2015, asserting claims arising from Mr. Charlevoix's alleged harmful exposure to asbestos. (D.I. 1 at 1) Defendant Crane Co. removed the action to this court on August 21, 2015. (D.I. 1) John Crane filed a motion for summary judgment on September 28, 2016. (D.I. 144) Fiat filed its motion on September 30, 2016. (D.I. 162) Plaintiffs did not respond to these motions. On January 9, 2017, counsel for Fiat sent a letter to the court seeking dismissal in light of Plaintiffs' failure to oppose its summary judgment motion.[1] (D.I. 209)

         B. Facts

         A. Plaintiffs alleged exposure history

         Plaintiffs allege that Mr. Charlevoix developed mesothelioma as a result of exposure to asbestos-containing products during the course of his employment with the U.S. Navy from 1961 to 1964. (D.I. 1 at 1) In addition, Mr. Charlevoix alleges he was exposed to asbestos from 1961 to 1978 as a result of his work with various employers, and in his own logging business. (Id.) Plaintiffs contend that Mr. Charlevoix was injured due to exposure to asbestos-containing products that Defendants manufactured, sold, distributed, licensed, or installed. (D.I. 1, Ex. 1 at ¶ 4) Accordingly, Plaintiffs assert negligence, punitive damages, and loss of consortium claims. (Id., Ex. 1)

         Mr. Charlevoix was deposed on December 15, 2015.[2] (D.I. 57) Product identification witness, James Kimble, was deposed on May 24, 2016. (D.I. 67) Additionally, product identification witness, Pat Milligan, was deposed on May 26, 2016. (D.I. 68) Mr. Charlevoix was enlisted in the Navy from 1961 to 1964. (D.I. 1, Ex. 1) He was stationed on the USS Valley Forge, where he worked as a boiler tender. (D.I. 147 at 1) Mr. Charlevoix believes he was exposed to asbestos while cleaning the boilers in the boiler room. (12/15/15 Video Tr. at 85:10- 22)

         After his discharge from service in the Navy, Mr. Charlevoix was a grinder for Grede Foundry from 1964 to 1966, and a maintenance worker and equipment installer for MJ Electric from 1966 to 1978. (D.I. 153 at 2) Mr. Charlevoix was also the owner and operator of Charlevoix Logging from the late-1960s until the time of his filing this suit. (Id.; D.I. 157 at 3)

         B. Plaintiffs product identification evidence

         a. John Crane Inc.

         Mr. Charlevoix did not identify an asbestos-containing John Crane product. (See D.I. 145, Exs. 1-4)

         b. Fiat Allis North America

         Mr. Charlevoix identified Fiat as the manufacturer of a front-end loader vehicle which he used in the operation of his logging business. (12/15/15 Video Tr. at 78:1-79:12) Mr. Charlevoix could not remember the exact year that he purchased the vehicle, but believed it was sometime in the early 1980s.[3] (12/15/15 Tr. at 183:17-184:6) In the morning deposition session, Mr. Charlevoix stated the vehicle was a 1979 model. (12/15/15 Video Tr. at 79:16-17) However, in the afternoon session, Mr. Charlevoix stated he was not sure about the model year, but that it was probably a 1980s model.[4] (12/15/15 Tr. at 183:5-16) Mr. Charlevoix stated that he had the engine overhauled in the vehicle. (Id. at 79:18-22) Product identification witness, Pat Milligan, said the first engine overhaul took place a couple years after Mr. Charlevoix purchased the vehicle. (5/26/16 Tr. at 115:9-11) Mr. Charlevoix did not associate ...


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