United States District Court, D. Delaware
MARGUERITE MACQUEEN, Individually and as the Surviving Spouse of DAVID MACQUEEN, deceased, Plaintiff,
WARREN PUMPS LLC, et al., Defendants.
Wilmington this 31st day of March, 2017, having reviewed the
objections filed by plaintiff to Magistrate Judge Burke's
Report and Recommendation dated February 8, 2017, as well as
defendants' responses thereto;
ORDERED that the Report and Recommendation (D.I. 612) will be
affirmed and the objections thereto (D.I. 613) overruled, for
the following reasons:
Legal standard. A district judge is charged
with conducting a de novo review of a magistrate judge's
report and recommendation to which specific, written
objections are made. 28 U.S.C. § 636(b)(1); see also
Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir.
1989). The district judge may "accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. §
636(b)(1). Although review is de novo, the district judge, in
exercising her sound discretion, is permitted to rely on the
recommendations of the magistrate judge to the extent she
deems proper. United States v. Raddatz, 447 U.S.
667, 676-677 (1980); Goney v. Clark, 749 F.2d 5, 7
(3d Cir. 1984).
Analysis. Plaintiff asserts that Judge Burke
erred in his conclusion that the affidavit of
"plaintiff's combination expert/fact witness retired
U.S. Navy Captain Francis J. Burger" was not sufficient
to raise genuine issues of material fact with respect to
David MacQueen's exposure to asbestos during his years as
a pipefitter in the Navy.(D.I. 535, ex. B) The primary case
relied on by plaintiff in support of her position is a
decision issued by the Ninth Circuit, Boyd v. Warren
Pumps, LLC, 654 Fed.Appx. 875 (9th Cir.
2016). In that case, the Ninth Circuit affirmed the district
court's grant of summary judgment for certain defendants
"on the ground that Captain Boyd failed to present
evidence sufficient to link Buffalo Pumps or Warren Pumps to
asbestos-containing replacement parts to which Captain Boyd
was exposed during his service aboard the USS Gainard,
" even though the record on summary judgment
"could support the conclusion that Buffalo and Warren
may have sold asbestos-containing replacement parts to some
customers at some pints in time." Id. at 877.
The Court reversed the grant of summary judgment for these
defendants, however, "on Captain Boyd's claim of
exposure ... to asbestos from spare packing and gaskets . . .
." Id. In this regard, the Court found that
"[t]he circumstantial evidence raised more than a mere
possibility that [Captain Boyd] was exposed to
asbestos-containing spare parts supplied by Buffalo and
Warren Pumps, " more specifically, Captain Boyd's
if believed by a jury, places Buffalo and Warren pumps on
board the McCain, reflects that the usual
maintenance schedule for such pumps would have resulted in
their repacking while Captain Boyd was aboard, and provides
evidence from which a jury could reasonably infer that it was
more likely than not that Captain Boyd was present when at
least some of those pumps were services for the first or the
second time, which would have involved 'disturbing'
the spare parts that had been supplied with the original
Id. Significantly, the declaration of "retired
Naval engineering officer Francis J. Burger" served only
to "bolster" Captain Boyd's showing on this
point. Accord Nelson v. Air& Liquid Systems
Corp., 2014 WL 6982476, at *13-15 (W.D. Wash. Dec. 9,
2014). The cases that have addressed the adequacy of such
evidence as the Burger affidavit have found such to be
"impermissibly speculative." See, e.g.,
Olivarv. Buffalo Pumps, Inc., MDL 875, Civ. No. 09-62577
(E.D. Pa. Mar. 29, 2011) (D.I. 544, ex. B); Cardarg v.
Aerojet Gen. Corp., 2012 WL 3536243, at *1 n.1 (E.D. Pa.
July 27, 2012). Plaintiff has cited no case where
circumstantial evidence like the Burger affidavit was alone
deemed sufficient to withstand summary judgment.
sum, it is plaintiff's burden to establish the existence
of a genuine issue of material fact as to causation, that is,
as to whether there is a nexus between Mr. MacQueen's
work on the two ships and his work with any
asbestos-containing product for which any or all of the
moving defendants could be held responsible. Judge Burke, in
his well written and carefully crafted opinion, did not err
in finding that plaintiff failed in this regard.
FURTHER ORDERED that:
Defendant Warren Pumps LLC's motion for summary judgment
(D.1.460) is granted as to all counts/claims.
Defendant Crane Co.'s motion for summary judgment (D.I.
444) is granted as to all counts/claims except for Count VII
of plaintiff's fourth amended complaint.
Defendant Buffalo Pumps, Inc. motion for summary judgment
(D.I. 462) has been mooted by the stipulation of dismissal
entered by the court on March 17, 2017. (D.I. 619)
Plaintiff devotes much effort in her
papers to arguing the propriety of transferring her dismissed
claims against former defendant Huntington Ingalls
Incorporated ("HII") to the Eastern District of
Virginia. (D.I. 613 at 2-4) The record reflects that
plaintiff first made a request to transfer in her
supplemental objections to the Report and Recommendation to
dismiss HII, but without any reasoning specific to this case.
(D.I. 574 at 9-10) The court adopted the Report and
Recommendation by order dated September 30, 2015, without
addressing the request to transfer. Plaintiff did not
subsequently file a motion to reconsider the order or
otherwise call out her transfer request again until January
18, 2017, when plaintiff filed a letter to that effect. (D.I.
608) As noted by HII, however, it has not been a party to
this case since September 30, 2015, and HII complied with a
third-party subpoena in February 2016 that ...