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In re Asbestos Litigation

United States District Court, D. Delaware

July 21, 2017

IN RE ASBESTOS LITIGATION
v.
AIR & LIQUID SYSTEMS CORP., et al., Defendants. HAROLD HAYNES and JUDY HAYNES, Plaintiffs,

          REPORT AND RECOMMENDATION

          Cherry R. Pallon Magistrate Judge.

         I. INTRODUCTION

         This Report and Recommendation is limited to seven pending motions for summary judgment in this asbestos-related personal injury action. The motions were filed by Defendants Air & Liquid Systems Corporation[1] ("Air & Liquid") (D.I. 107), Aurora Pump Company ("Aurora") (D.I. 88), BorgWarner Morse TEC LLC[2] ("BorgWarner") (D.I. 100), FMC Corporation[3] ("FMC") (D.I. 96), Honeywell International Inc.[4] ("Honeywell") (D.I. 98), Pfizer Inc. ("Pfizer") (D.I. 94), and Warren Pumps, LLC ("Warren Pumps") (D.I. 92) (collectively, "Defendants"). As indicated in the chart, infra, and for the reasons set forth below, the court recommends granting Defendants' motions for summary judgment.

Defendant

Motion for Summary Judgment

Air & Liquid Systems Corporation

GRANTED

Aurora Pump Company

GRANTED

BorgWarner Morse TEC LLC

GRANTED

FMC Corporation

GRANTED

Honeywell International Inc.

GRANTED

Pfizer Inc.

GRANTED

Warren Pumps, LLC

GRANTED

         II. BACKGROUND

         A. Procedural History

         Harold and Judy Haynes ("Plaintiffs") filed this asbestos related personal injury action in the Delaware Superior Court against multiple defendants on June 3, 2016, asserting claims arising from Mr. Haynes' alleged harmful exposure to asbestos. (D.I. 1 at 1) Defendant Crane Co. removed the action to this court on July 15, 2016. (D.I. 1) Defendants Aurora, Warren Pumps, Pfizer, FMC, Honeywell, BorgWarner, and Air & Liquid filed motions for summary judgment on March 24, 2017. (D.I. 88, 92, 94, 96, 98, 100, and 107) Plaintiffs did not respond to these motions. On May 2, 2017, counsel for Warren Pumps sent a letter to the court seeking dismissal due to Plaintiffs' lack of opposition to its summary judgment motion. (D.I. 113) Counsel for Aurora filed a similar letter on May 30, 2017, requesting dismissal of all claims against it.[5] (D.I. 115)

         B. Facts

         1. Plaintiffs alleged exposure history

         Plaintiffs allege that Mr. Haynes developed lung cancer as a result of exposure to asbestos-containing products during the course of his service as a boiler tender with the U.S. Navy from 1959 to 1963. (D.I. 1, Ex. 1 at ¶¶ 2, 15) In addition, Mr. Haynes alleges he was exposed to asbestos from 1963 to 2015 as a result of his employment as a fireman, mechanic, laborer, and janitor. (D.I. 1, Ex. 1 at ¶ 3(b)-(1)) Plaintiffs contend that Mr. Haynes was injured due to exposure to asbestos-containing products that Defendants manufactured, sold, distributed, licensed, or installed. (D.I. 1, Ex. 1 at ¶ 4) Accordingly, Plaintiffs assert negligence, strict liability, punitive damages, and loss of consortium claims. (Id., Ex. 1)

         Mr. Haynes was deposed on December 6 and 7, 2016.[6] (D.I. 101 at 2) Plaintiffs did not produce any other fact or product identification witnesses for deposition. Mr. Haynes testified that he enlisted in the Navy in September 1959. (12/6/16 Video Tr. at 23:15-17) After boot camp, he went to a training school for boilermen. (Id. at 24:12-14) His training consisted of instruction on tending and operating boilers on ships. (Id. at 24:17-22) After his training, Mr. Haynes was stationed on the USS Halsey Powell ("USS Powell") from 1960 to 1963 and on the USS Dennis J. Buckley ("USS Buckley") for six months in 1963. (D.I. 108 at 1) Mr. Haynes believes that he was exposed to asbestos while operating and maintaining boilers. (12/6/16 Video Tr. at 23:1-13)

         After leaving the Navy, Mr. Haynes believes he was exposed to asbestos-containing products through his employment as an engine fireman for the Union Pacific Railroad from 1963 to 1964 (D.I. 95 at 3); an auto mechanic for Modern Motors Volkswagen Dealership from 1964 to 1966 (D.I. 99 at 2); a laborer for Steelman Duff Railroad Construction Company in 1967 (Id.); an auto mechanic for Pete Loverly Volkswagen Dealership in 1968 (Id.); an auto mechanic for Humphrey Volkswagen Dealership from 1972 to 1973 (Id.); a mechanic for Pacific Alaska Airline from 1973 to 1979 (Id.); an auto mechanic for Mid Oregon Motors Volkswagen Dealership from 1979 to 1980 (Id.); a mechanic for Butler Aircraft from 1982 to 2003 (Id.); and a janitor for Redmond High School District from 2004 to 2015. (Id.) Mr. Haynes also believes he was exposed to asbestos-containing products while performing automotive repair work for his friends and family from 1981 to 2014. (D.I. 99 at 2)

         2. Plaintiffs product identification evidence

         a. Air & Liquid/Buffalo Pumps

         Mr. Haynes identified Buffalo Pumps as the manufacturer of pumps that he worked on while serving in the Navy as a boiler tender from 1959 to 1963. (D.I. 108 at 2) Mr. Haynes testified that he worked on pumps manufactured by Buffalo Pumps twenty to thirty times while he was aboard the USS Powell. (12/6/16 Tr. at 158:17-25) Mr. Haynes could not remember the specific kind of work he performed on Buffalo Pumps' products while aboard the USS Powell. (Id. at 159:6-10) Additionally, Mr. Haynes could not recall how many times he worked on pumps manufactured by Buffalo Pumps during his six months aboard the USS Buckley in 1963. (Id. at 159:1-5) Mr. Haynes stated that he did not have knowledge of when the pumps were installed on either the USS Powell or the USS Buckley. (Id. at 159:14-160:8) Furthermore, Mr. Haynes testified that he did not know the maintenance history of any of the pumps manufactured by Buffalo Pumps on either ship. (Id. at 160:4-8) He did not know whether the packing or gasket material used on the pumps, on either ship, contained asbestos. (Id. at 160:25-161:9)

         b. Aurora Pump

         Mr. Haynes did not identify any products manufactured by Aurora. (See D.I. 89)

         c. BorgWarner Morse

         Mr. Haynes identified BorgWarner as the manufacturer of clutches used at various Volkswagen dealerships where he was employed from 1964 to 1973. (D.I. 101 at 2) Mr. Haynes testified that he removed Volkswagen clutch disks. (12/6/16 Video Tr. at 106:4-8) However, Mr. Haynes could not remember removing, installing, or working on a BorgWarner clutch. (Id. at 105:25-106:2; 356:4-6; 12/7/2016 Tr. at 355:24-356:1) Mr. Haynes did not assert that the clutches or clutch discs manufactured by BorgWarner contained any asbestos. (D.I. 101)

         d. FMC

         Mr. Haynes did not identify any products manufactured by FMC. (See D.I. 97)

         e. Honeywell/Bendix

         Mr. Haynes identified Bendix as a manufacturer of automotive brakes that he installed as a mechanic and car owner after he moved to Redmond, Oregon in 1981. (D.I. 99 at 3) Mr. Haynes testified that he could not recall the last time he worked on a Bendix brake. (12/6/16 Tr. at 360:1-3) He estimated that he installed Bendix brakes ten to fifteen times. (12/6/16 Video Tr. at 93:20-23) Mr. Haynes testified that he did not know whether the ...


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