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In re: Asbestos Litigation

United States District Court, D. Delaware

June 27, 2017

IN RE ASBESTOS LITIGATION
v.
ANDRITZ INC, et al., Defendants. RALPH ELLIOTT SHAW and JOAN SANDERSON SHAW, Plaintiffs,

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This Report and Recommendation is limited to one pending motion for summary judgment in this asbestos-related personal injury action. The motion was filed by Defendant, Union Carbide Corporation ("Union Carbide"). (D.I. 99) For the reasons set forth below, the court recommends granting Union Carbide's motion for summary judgment.

         II. BACKGROUND

         A. Procedural History

         Ralph Elliott Shaw and Joan Sanderson Shaw ("Plaintiffs") filed this asbestos action in the Delaware Superior Court against multiple defendants on February 26, 2015, asserting claims arising from Mr. Shaw's alleged harmful exposure to asbestos. (D.I. 1, Ex. 1 at ¶ 40) Defendant CBS Corporation removed the action to this court on August 21, 2015. (D.I. 1) Union Carbide filed a motion for summary judgment on January 30, 2017. (D.I. 99) Plaintiffs did not respond to the motion. On June 23, 2017, Plaintiffs' counsel sent a letter to the court asking the court to grant Union Carbide's motion for summary judgment. (D.I. 115)

         B. Facts a) Plaintiffs alleged exposure history

         Plaintiffs allege that Mr. Shaw developed mesothelioma as a result of exposure to asbestos-containing products during the course of his employment with General Dynamics Electric Boat Shipyard from 1952 to 1954 and from 1957 to 1968. (D.I. 1, Ex. 1 at ¶ 40) In addition, Mr. Shaw alleges he was exposed to asbestos from 1968 to 1996, as a result of his work at H. R. Hillery Company and the Sheet Metal Workers' Union. (Id.) Mr. Shaw also alleges that he was exposed to asbestos while performing construction on his home from the 1960s to the late 1970s, as well as performing maintenance work on his automobiles intermittently from 1951 to the 2000s. (Id.) Plaintiffs contend that Mr. Shaw was injured due to exposure to asbestos-containing products that Union Carbide manufactured, sold, distributed, licensed, or installed. (D.I. 1, Ex. 1 at ¶ 41) Accordingly, Plaintiffs assert negligence, willful and wanton conduct, products liability, conspiracy, and loss of consortium claims. (Id., Ex. 1) Mr. Shaw was deposed on July 22, 2015.[1](D.I. 32 at ¶ 4(c)(iii)) No other product identification witnesses were deposed.

         b) Plaintiffs product identification evidence

         Mr. Shaw did not identify an asbestos-containing Union Carbide product. (See D.I. 99)

         III. LEGAL STANDARDS A. Summary Judgment

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 631 F.3d 177, 181 (3d Cir. 2011) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23(1986)).

         The moving party bears the initial burden of proving the absence of a genuinely disputed material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Williams v. Borough of West Chester, Pa, 891 F.2d 458, 460-61 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). The non-movant must support its contention by citing to particular documents in the record, by showing that the cited materials do not establish the absence or presence of a genuine dispute, or by showing that an adverse party cannot produce admissible evidence to support the fact. Fed.R.Civ.P. 56(c)(1)(A)-(B). The existence of some alleged factual dispute may not be sufficient to deny a motion for summary judgment; rather, there must be enough evidence to enable a jury to reasonably find for the non-moving party on the issue. See Anderson, 477 U.S. at 247-49. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Clark v. Welch, Civ. NO.14-029-SLR, 2016 WL 859259, at *2 (D. Del. Mar. 3, 2016). If the non-movant fails to make a sufficient showing on an essential element of its case on which it bears the burden of proof, then the movant is entitled to judgment as a matter of law. See Celotex, 477 U.S at 322.

         If a party fails to address another party's assertion of fact, the court may consider the fact undisputed, or grant summary judgment if the facts show that the movant is entitled to it. Fed.R.Civ.P. 56(e)(2)-(3).[2] A plaintiffs failure to respond "is not alone a sufficient basis for the entry of a summary judgment." Anchorage Assocs. v. Virgin Islands Bd. Of Tax Review,922 F.2d 168, 175 (3d Cir. 1990). Even where a party does not file a responsive submission to oppose the motion, the court must still find that the undisputed facts warrant judgment as a matter of law. Miller v. Ashcroft, 76 F.App'x 457, 462 (3d Cir. 2003) (citing Fed.R.Civ.P. 56; Lorenzo v. Griffith,12 F.3d 23, 28 (3d Cir. 1993)). In other words, the court must still determine whether the unopposed motion for summary judgment "has been properly made and ...


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