United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. FALLON, UNITED STATES MAGISTRATE JUDGE
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.
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)
Facts a) Plaintiffs alleged exposure
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.(D.I. 32 at ¶ 4(c)(iii)) No other
product identification witnesses were deposed.
Plaintiffs product identification evidence
Shaw did not identify an asbestos-containing Union Carbide
product. (See D.I. 99)
LEGAL STANDARDS A. Summary Judgment
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,
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.
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). 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