United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. FALLON, UNITED STATES MAGISTRATE JUDGE
there is one motion for summary judgment before the court in
this asbestos-related personal injury action. 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.
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) 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.
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.(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)
Testimony of Product Identification Witnesses
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)
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
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)
Plaintiffs Alleged Exposure from Defendant's
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)
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,
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).
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.
parties agree that maritime law applies. (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 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." Abbay v. Armstrong Int'l,
Inc., 2012 WL 975837, at *1 n.1 (E.D. Pa. Feb. 29,
2012); see § III(C), infra.
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 ...