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In re Asbestos Litigation

United States District Court, D. Delaware

March 30, 2017

IN RE ASBESTOS LITIGATION ELLEN JEANENE PALMER, individually and as EXECUTRIX of the Estate of CLYDE LEE DENBOW Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION, BUFFALO PUMPS DIVISION, et al., Defendants.

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Presently before the court in this asbestos-related personal injury action are the motions for summary judgment of Defendants CBS Corporation ("CBS")[1] (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.

Defendant

Motion for Summary Judgment

CBS Corporation/Westinghouse

GRANT

Crane Co.

GRANT

         II. BACKGROUND

         A. Procedural History

         Plaintiff 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 Corporation[2]pursuant to 28 U.S.C. §§ 1442(a)(1)[3] 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 judgment.[4]

         B. Facts

         Plaintiff 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)

         Mr. 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.)

         After 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)

         C. Testimony of Product Identification Witness

         Mr. 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 Koppers.[5]

         1. Charles Ricker

         Mr. 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)

         Mr. 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 25:11-19)

         Mr. 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)

         Mr. 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)

         D. Plaintiffs Alleged Exposure from Each Defendant's Products

         1. CBS Corporation/Westinghouse

         Plaintiff 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, ...


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