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In re Asbestos Litigation

United States District Court, D. Delaware

August 21, 2017

IN RE ASBESTOS LITIGATION
v.
CBS CORPORATION, et al., Defendants. EDNA S. ESSER a/k/a Edna Tallman, Individually and as Executrix of the Estate of CHARLES TALLMAN, Deceased, and on behalf of all Wrongful Death beneficiaries, Plaintiff,

          REPORT AND RECOMMENDATION

          SHERRY R. FALLON, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Presently, there is one motion for summary judgment before the court in this asbestos-related personal injury action.[1] The motion was filed by defendant Foster Wheeler Energy Corporation ("Foster Wheeler"). (D.I. 85) Plaintiff Edna Esser ("Plaintiff), individually and as Executrix for the estate of decedent, Charles Tallman, opposes Foster Wheeler's motion for summary judgment. (D.I. 91) For the reasons set forth below, the court recommends granting Foster Wheeler's motion for summary judgment.

         II. BACKGROUND

         A. Procedural History

         Plaintiff filed this asbestos-related wrongful death action against multiple defendants on April 1, 2015, in the Superior Court of Delaware. (D.I. 1) On May 18, 2015, the case was removed to this court by Foster Wheeler pursuant to 28 U.S.C. §§ 1442(a)(1)[2] and 1446. (Id.) Foster Wheeler filed a motion for summary judgment on September 23, 2016. (D.I. 85) Plaintiff opposes the motion. (D.I. 91) On January 10, 2017, the court held oral argument on Foster Wheeler's motion for summary judgment.

         B. Facts

         Plaintiff alleges that Mr. Tallman developed mesothelioma as a result of exposure to asbestos-containing products during his time in the U.S. Navy from 1947 to 1967. (D.I. 86 at 1) From 1948 to 1956, Mr. Tallman worked as a Boiler Tender aboard the USS Caloosahatchee.[3](D.I. 91 at 1-2) Plaintiff contends that Mr. Tallman's fatal illness was due to exposure to asbestos-containing products that Foster Wheeler manufactured, sold, distributed or installed. (D.I. 1, Ex. A) Accordingly, Plaintiff asserts claims for negligence, strict liability, and punitive damages. (D.I. 1 at ¶ 5)

         C. Testimony of Product Identification Witnesses

         Mr. Tallman passed away on April 10, 2015, and was never deposed for this case. (D.I. 46 at 2; D.I. 86 at 1) Therefore, Plaintiff relies largely on the testimony of product identification witnesses to support the claim that Mr. Tallman was exposed to asbestos directly from Foster Wheeler's products and equipment during his time aboard the USS Caloosahatchee. Plaintiff produced two identification witnesses for deposition: Eugene Nealon and William Schaufele. (D.I. 86 at 1-2) Both testified about their experiences aboard the USS Caloosahatchee with Mr. Tallman. (Id. at 2)

         1. Eugene Nealon

         Mr. Eugene Nealon testified that his service overlapped with Mr. Tallman's aboard the USS Caloosahatchee from 1951 to 1954. (7/19/16 Tr. at 19:15-20:24) Mr. Nealon explained that Mr. Tallman was the leader of his shift group of seven men. (Id. at 19:15-21) He stated that Mr. Tallman was in charge of making the asbestos insulation that was packed around the exterior of the steam valves. (Id. at 28:6-29:8) Mr. Nealon said that he saw Mr. Tallman break down boilers and clean them. (Id. at 32:11-23) He stated it would normally take about one week to clean one boiler. (D.I. 91, Ex. 3 at 42:25-43:4) However, Mr. Nealon stated that he did not believe the cleaning of the boiler would have exposed Mr. Tallman to asbestos. (D.I. 86, Ex. A at 44:21-24) Mr. Nealon could not name the manufacturer of the boilers or the valves. (Id. at 25:25-26:2; Id. at 46:1-3)

         2. William Schaufele

         Mr. William Schaufele testified that he was aboard the USS Caloosahatchee with Mr. Tallman. (7/21/16 Tr. at 26:3-27:6) At one point during the deposition, Mr. Schaufele stated he could not personally recall any particular maintenance or repair jobs that Mr. Tallman performed. (Id. at 42:16-19) Mr. Schaufele speculated as to what Mr. Tallman's tasks would have been based on his rate and rank. (Id. at 46:1-12) However, later on in the deposition, Mr. Schaufele stated that he had a memory of Mr. Tallman cleaning out boilers with him. (Id. at 63:18-25) Mr. Schaufele identified Foster Wheeler as the manufacturer of the boilers. (Id. at 68:18-20) He explained there was a plate on each of the boilers that had Foster Wheeler's name on it. (Id. at 68:21-69:1) Mr. Schaufele initially could not confirm that Mr. Tallman's work on the boilers exposed him to asbestos. (Id. at 72:21-25) However, he later stated that anybody near the boilers would have been exposed to asbestos. (Id. at 91:18-23)

         D. Plaintiffs Alleged Exposure from Defendant's Products

         Plaintiff claims Mr. Tallman was exposed to asbestos-containing Foster Wheeler products while aboard the USS Caloosahatchee. (D.I. 91) Plaintiff relies on Mr. Schaufele's testimony that the boiler room had Foster Wheeler boilers. (D.L 86, Ex. B) Mr. Schaufele stated that he thinks the Foster Wheeler boilers were lined with asbestos insulation. (Id. at 63:1-67:15) Additionally, Mr. Nealon recalls Mr. Tallman cleaning out the boilers. (D.I. 86, Ex. A at 32:11-23)

         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, 637 F.3d 177, 181 (3d Cir. 2011) (citing Anderson v. Liberty Lobby Inc., Ml U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Pursuant to Rule 56(c)(1), a party asserting that a fact is genuinely disputed must support its contention either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials, " or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B).

         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. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989). When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some evidence in support of the nonmoving party may not be sufficient to deny a motion for summary judgment. Rather, there must be enough evidence to enable a jury reasonably to find for the nonmoving party on the issue. See Anderson, 477 U.S. at 249. If the nonmoving party fails to make a sufficient showing on an essential element of its case on which it bears the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 322.

         B. Maritime Law

         The parties agree that maritime law applies.[4] (D.I. 81) In order to establish causation in an asbestos claim under maritime law, a plaintiff must show, for each defendant, that "(1) he was exposed to the defendant's product, and (2) the product was a substantial factor[5] in causing the injury he suffered." Lindstrom v. A-C Prod Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005) (citing Stark v. Armstrong World Indus., Inc., 21 F.Appx. 371, 375 (6th Cir. 2001)); Dumas v. ABB Grp., Inc., 2015 WL 5766460, at *8 (D. Del. Sept. 30, 2015), report and recommendation adopted, 2016 WL 310724 (D. Del. Jan. 26, 2016); Mitchell v. Atwood & Morrill Co., 2016 WL 4522172, at *3 (D. Del. Aug. 29, 2016), report and recommendation adopted, 2016 WL 5122668 (D. Del. Sept. 19, 2016); Denbow v. Air & LiquidSys. Corp., 2017 WL 1199732, at *4 (D. Del. Mar. 30, 2017), report and recommendation adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017). Other courts in this Circuit recognize a third element and require a plaintiff to "show that (3) the defendant manufactured or distributed the asbestos-containing product to which exposure is alleged."[6] Abbay v. Armstrong Int'l, Inc., 2012 WL 975837, at *1 n.1 (E.D. Pa. Feb. 29, 2012); see § III(C), infra.

         "In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of the plaintiff or decedent who experienced the exposure, co-worker testimony, or eye-witness testimony) or circumstantial evidence that will support an inference that there was exposure to the defendant's product for some ...


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