United States District Court, D. Delaware
IN RE ASBESTOS LITIGATION ELLEN JEANENE PALMER, individually and as EXECUTRIX of the Estate of CLYDE LEE DENBOW Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION, BUFFALO PUMPS DIVISION, et al., Defendants.
REPORT AND RECOMMENDATION
R. FALLON, UNITED STATES MAGISTRATE JUDGE
before the court in this asbestos-related personal injury
action are the motions for summary judgment of Defendants CBS
Corporation ("CBS") (D.I. 68), and Crane Co.
("Crane") (D.I. 72) (collectively
"Defendants"). Plaintiff Ellen Jeanene Palmer
("Plaintiff), individually and as executrix, opposes
Defendants' motions for summary judgment. (D.I. 76, 77)
For the reasons set forth below, and as indicated in the
chart infra, the court recommends granting
Defendants' motions for summary judgment.
Motion for Summary Judgment
filed this asbestos-related action against multiple
defendants on June 27, 2014, in the Superior Court of
Delaware. (D.I. 1 at ¶ 1) The complaint asserts that
Clyde Lee Denbow ("Mr. Denbow") developed
mesothelioma through his work as a naval machinist mate in
the United States Navy from 1954 to 1957 aboard the USS New
Jersey. (Id. at ¶ 2) On August 18, 2014, the
case was removed to this court by Defendant Air & Liquid
Systems Corporationpursuant to 28 U.S.C. §§
1442(a)(1) and 1446. (Id. at ¶ 6) CBS
and Crane individually filed the pending motions for summary
judgment. (D.I. 68, 72) The motions were fully briefed by
August 5, 2016. (D.I. 80, 81) On September 26, 2016, the
court held oral argument on CBS's motion for summary
alleges that Mr. Denbow developed mesothelioma as a result of
exposure to asbestos-containing products during his time in
the Navy from 1954 to 1957 aboard the USS New Jersey, and
while working at Koppers Chemical from 1965 to 1970. (D.I. 1
at ¶ 2; D.I. 73 at 2) Plaintiff contends that Defendants
manufactured, sold, used, distributed, licensed, installed,
or removed asbestos-containing products. (D.I. 1, Ex. A)
Accordingly, Plaintiff asserts claims for negligence, strict
liability, breach of warranty, wrongful death, direct intent
employer liability, and punitive damages. (D.I. 77 at 4)
Denbow served in the United States Navy from January 6, 1954
until November 12, 1957. (D.I. 76 at 6) He was assigned to
the USS New Jersey as a Machinist Mate Fireman Apprentice on
August 27, 1954. (Id.) While aboard the ship, Mr.
Denbow received several promotions, from Machinist Mate
Fireman, to Machinist Mate First Class, to Machinist Mate
Second Class. (Id.) Mr. Denbow's service
concluded when he was detached from the USS New Jersey on
August 21, 1957. (Id.)
his naval service, Mr. Denbow worked as a laborer and lift
truck operator at Koppers Chemical ("Koppers") from
1965 to 1970. (D.I. 73 at 2)
Testimony of Product Identification Witness
Denbow passed away on July 27, 2014, and was never deposed
for this case. (D.I. 69 at 3) Therefore, Plaintiff relies
largely on the testimony of product identification witnesses
to support the claim that Mr. Denbow was exposed to asbestos
directly from Defendants' products and equipment during
his time in the Navy and as an employee at
Charles Ricker is Plaintiffs product identification witness
regarding Mr. Denbow's service aboard the USS New Jersey.
Mr. Ricker did not immediately recognize Mr. Denbow's
name when he first heard it regarding this lawsuit. (1/21/16
Video Tr. at 19:12-16) He had to research Mr. Denbow's
photograph to remember who he was. (Id.) The last
time Mr. Ricker spoke to Mr. Denbow was when Mr. Ricker left
the USS New Jersey. (Id. at 19:7-11)
Ricker joined the Navy on April 26, 1952. (Id. at
5:24) Mr. Ricker served on the USS New Jersey from the latter
part of September 1952 until April 1956. (Id. at
7:3-4) He testified that he did not recall when he met Mr.
Denbow. (Id. at 7:7) However, Mr. Ricker believed he
must have met Mr. Denbow at some period between 1952 and
1956. (Id. at 17:1-2) Mr. Ricker was a machinist
mate in engine room No. 2 and No. 4 during his time on the
USS New Jersey, where he was responsible for maintaining
propulsion equipment. (Id. at 7:20-9:4) Mr. Ricker
stated that he worked in engine room No. 2 with Mr. Denbow.
(Id. at 9:7; 21:15) Mr. Ricker testified that Mr.
Denbow, as a machinist mate, would have had the same
responsibilities of maintaining propulsion equipment.
(Id. at 10:7-11:12) However, Mr. Ricker had no
specific recollection of Mr. Denbow performing any
maintenance tasks aboard the USS New Jersey. (Id. at
Ricker further testified that engine room No. 2 had a
Westinghouse turbine, and that it was his job to operate and
maintain it. (Id. at 12:10-13:23) Mr. Ricker stated
it was highly likely the Westinghouse turbine had repairs
performed to it before he boarded the ship, and, therefore,
he did not know whether the equipment on the turbine had any
original parts. (Id. at 47:11-20) He stated that one
of the duties in the engine room was to remove
asbestos-wrapped insulation from the Westinghouse turbine.
(Id. at 14:4-11) When asked whether the cutting of
the insulation was a dusty process, Mr. Ricker agreed that it
was. (Id. at 29:6-9) Mr. Ricker further explained
that he believed, based on his personal experience, that the
insulation had asbestos. (Id. at 33:1-6) However,
Mr. Ricker could not recall who manufactured any of the
replacement parts. (Id. at 31:2-5; 52:7-54:7) Mr.
Ricker believed the packing the Navy used contained asbestos
because that was stated to him by his superiors.
(Id. at 58:14-21) He has no memory of seeing the
word "asbestos" on the packaging or on the packing
material itself. (Id. at 54:8-13)
Ricker could not recall the manufacturer of the valves in
engine room No. 2. (1/21/16 Tr. at 51:13-15) Mr. Ricker
explained that when maintaining the valves, he would put
packing glands around the valve stems. (Id. at
51:16-21) Mr. Ricker did not know the maintenance history of
the valves. (Id. at 51:22-52:6)
Plaintiffs Alleged Exposure from Each Defendant's
claims that Mr. Denbow was exposed to an asbestos insulated
Westinghouse turbine while aboard the USS New Jersey. (D.I.
76 at 6) Plaintiff relies on Mr. Ricker's testimony that
engine room No. 2, where Mr. Denbow worked, had a
Westinghouse turbine. (Id. at 6-7) Specifically, Mr.
Ricker testified that the Westinghouse turbines on the USS
New Jersey used asbestos-containing insulation, packing, and
gaskets. (D.I. 76, ...