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In re Asbestos Litigation

United States District Court, D. Delaware

August 31, 2017

IN RE ASBESTOS LITIGATION
v.
CBS CORPORATION, et al., Defendants. MARILYN CHARLEVOIX, Individually and as Executor of the Estate of Stephen Charlevoix, Deceased, and on behalf of all Wrongful Death Beneficiaries, Plaintiff,

          REPORT AND RECOMMENDATION

          Sherry R. Fallon United States Magistrate Judge.

         I. INTRODUCTION

         Presently, there are five motions for summary judgment before the court in this asbestos-related personal injury action. The motions were filed by defendants, Caterpillar Inc., ("Caterpillar") (D.I. 154), VIAD Corp. ("VIAD") (D.I. 158), Warren Pumps, LLC ("Warren Pumps") (D.I. 164), Crane Co. ("Crane") (D.I. 150), and Ford Motor Company ("Ford") (D.I. 160) (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

Caterpillar Inc.

GRANTED

VIAD Corp.

GRANTED

Warren Pumps

GRANTED

Crane Co.

GRANTED

Ford Motor Company

GRANTED

         II. BACKGROUND

         A. Procedural History

         Plaintiffs Stephen and Marilyn Charlevoix filed this asbestos related personal injury action in Delaware Superior Court against multiple defendants on July 10, 2015. (D.I. 1) Crane removed the action to this court on August 21, 2015. (Id.) On December 14, 2016, Plaintiff filed an Amended Complaint, asserting wrongful death claims.[1](D.I. 197) The court entered the Amended Complaint on December 20, 2016. (D.I. 198) Crane, Caterpillar, VIAD and Ford filed motions for summary judgment on September 30, 2016. (D.I. 150, 154, 158, 160) Warren Pumps filed a motion for summary judgment on October 4, 2016. (D.I. 164) Plaintiff opposes the motions. (D.I. 171, 173, 175, 177, 216) The court held oral argument to address the summary judgment motions of Caterpillar, VIAD, and Warren Pumps on January 11, 2017.[2]

         B. Facts

         Plaintiff alleges that Mr. Charlevoix developed mesothelioma as a result of exposure to asbestos containing materials from his work with various employers and service in the Navy. (D.I. 198) Plaintiff contends that Mr. Charlevoix was injured due to exposure to asbestos-containing products that Defendants manufactured, sold, distributed, or installed. (Id.) Accordingly, Plaintiff asserts claims for negligence, loss of consortium, and punitive damages. (Id.)

         Plaintiff states that Mr. Charlevoix was first exposed to asbestos-containing products during his service as a boiler tender with the U.S. Navy from 1961 to 1964 aboard the USS Valley Forge. (D.I. 198) After his service in the Navy, Mr. Charlevoix worked at Grede Foundry from 1964 to 1966 as a grinder. (D.I. 198 at ¶ 1) From 1966 to 1978, Mr. Charlevoix worked as an equipment operator and foreman for M.J. Electric. (Id.) After leaving M.J. Electric, Mr. Charlevoix went to Charlevoix Logging to work as a logger, where he worked until 2012. (Id; D.I. 171 at 7)

         Mr. Charlevoix was deposed on December 15, 2015. (D.I. 155, Ex. 1) Product identification witness, James Kimble, was deposed on May 24, 2016. (D.I. 177, Ex. 7) Product identification witness, Patrick J. Milligan, was deposed on May 26, 2016. (D.I. 155, Ex. 3)

         The parties agree that maritime law applies to all naval and sea-based claims. (D.I. 159 at 1) Additionally, the parties agree that Michigan law applies to all land-based claims. (D.I. 155 at 1)

         C. Testimony of Product Identification Witnesses

         1. Patrick Milligan

         Mr. Milligan worked at M.J. Electric from 1975 to 1979 as a mechanic and truck driver. (D.I. 171 at 6) After leaving M.J. Electric, Mr. Milligan worked at Charlevoix Logging from 1979 to 2012. (Id.) Mr. Milligan testified regarding Mr. Charlevoix's work experience and duties at both M.J. Electric and Charlevoix Logging. (Id.)

         2. Howard Kimble

         Mr. Kimble served aboard the USS Valley Forge from January of 1960 through October of 1963. (D.I. 175 at 7) He was assigned to the ship's evaporator room from October of 1961 through October of 1963. (Id.) Mr. Kimble worked with Mr. Charlevoix in the evaporator room starting in October of 1961. (Id.) Mr. Charlevoix remained in the evaporator room at the time Mr. Kimble left that assignment in October of 1963. (Id.)

         D. Plaintiffs product identification evidence

         1. Caterpillar Inc.

         Mr. Charlevoix stated that he performed maintenance work on eight Caterpillar bulldozers during his time at M.J. Electric. (D.I. 155, Ex. 1 at 140:2-141:15) Mr. Charlevoix estimates that the models of the eight Caterpillars consisted of four D3s, two D4s, one D6, and one D8. (Id. at 142:11-23) Mr. Charlevoix stated that most of his work involved fixing hydraulic leaks. (Id. at 145:7-15) He stated that he does not associate asbestos exposure with his work at M.J. Electric. (Id. at 157:22-158:4)

         Mr. Charlevoix testified that Charlevoix Logging used Caterpillar equipment to create roads. (D.I. 155, Ex. 1 at 99:17-20) However, Mr. Charlevoix clarified that when using the term "Caterpillar" he was referring to a general dozer tractor that could have been manufactured by other companies. (Id. at 99:22-100:4) Mr. Charlevoix stated that he did own a tractor that was actually manufactured by Caterpillar before trading it. (Id. at 100:5-16) Mr. Charlevoix said that he had the Caterpillar tractor for ten years, and that it was a D4 model. (Id. at 103:13-22) He explained that the only repair work that he did on the Caterpillar tractor was to "put a set of tracks on it." (Id. at 103:23-25) In 1980, Mr. Charlevoix purchased a secondhand grader that was manufactured by Caterpillar. (Id. at 117:25-118:4) Mr. Charlevoix stated that he believes the Caterpillar grader was manufactured in 1942 or 1943. (Id. at 118:9-10) Mr. Charlevoix stated that he still owns the grader and has performed maintenance on it. (Id. at 118:7-23) He explained that he has replaced injectors and has tightened up "knuckles and front ends" on the grader. (Id. at 118:17-19) When asked whether he believed the maintenance exposed him to asbestos, Mr. Charlevoix said that he did not believe it did. (Id. at 119:4-5) Mr. Milligan said he did not know whether Mr. Charlevoix was exposed to asbestos during his work at M.J. Electric or Charlevoix Logging. (D.I. 155, Ex. 3 at 111:25-112:2)

         2. VIAD/Griscom-Russell

         Mr. Charlevoix was assigned to the evaporator room aboard the USS Valley Forge. (D.I. 159, Ex. A at 65:8-66:15) Mr. Charlevoix stated that the top of the evaporator was covered with insulation, but Mr. Charlevoix did not know the manufacturer. (Id. at 76:3-4; D.I. 159, Ex. B at 91:23-24) Mr. Charlevoix explained that he believes he was exposed to asbestos when removing the end caps in order to perform work to tighten the tubes on the evaporators. (D.I. 159, Ex. A at 76:5-14) To access the tubes, Mr. Charlevoix would remove nuts from the front cover which, occasionally required him to remove insulation around the nuts. (Id. at 76:3-14) Mr. Charlevoix also stated that, although there was a gasket under the front cover, it was likely made of rubber. (Id. at 249:25-250:1) Mr. Charlevoix stated that he probably did this process five or six times during his time on the USS Valley Forge. (D.I. 159, Ex. B at 96:9-13)

         Mr. Kimble testified that he believed the evaporators were manufactured by "Grissom." (D.I. 159, Ex. C at 68:9-22) Mr. Kimble further stated the evaporators would have had some repairs done before Mr. Charlevoix arrived oh the USS Valley Forge. (Id. at 111:13-112:1) Mr. Kimble stated that the exterior of the evaporator was covered in insulation, but did not know who placed the insulation there or who manufactured the insulation. (Id. at 116:21-117:12)

         3. Warren Pumps

         Mr. Charlevoix testified that he would repair the "wear rings and impeller" on the pumps located in the evaporator room. (D.I. 165, Ex. B at 72:12-18) Mr. Charlevoix explained that there were four pumps in the evaporator room. (Id. at 73:6-74:10) Mr. Charlevoix did not associate gaskets with the pumps. (Id. at 242:22-24) Mr. Charlevoix stated there was a "siliconlike" sealant on the pumps that had to be scraped off when an impeller was removed from a pump. (Id. at 242:24-244:18) He stated that the only thing he associated asbestos and the pumps with was the external insulation on top of the motors. (Id. at 247:25-248:3)

         Mr. Kimble testified that Mr. Charlevoix would have worked on the brine overboard pumps at least a half a dozen times. (D.I. 165, Ex. C at 76:23-77:1) Mr. Kimble was unable to identify the manufacturer of the gaskets. (Id. at 78:10-15) Mr. Kimble stated that replacement parts would come from the Navy storeroom. (Id. at 78:16-79:19) Mr. Kimble did not believe that Mr. Charlevoix's work on the pumps would have exposed him to asbestos. (Id. at 82:16-20)

         4. Crane Co.

         Mr. Charlevoix did not associate any name with the valves on the USS Valley Forge. (D.I. 173, Ex. 5 at 102:20-22) Mr. Charlevoix stated the valves were not insulated. (Id. at 102:23-25) Mr. Charlevoix stated there were gaskets located on each side of the valves, but that he never took them off. (Id. at 103:1-5)

         Mr. Kimble testified that Mr. Charlevoix would have to work on a valve if there was a leak. (D.I. 173, Ex. 6 at 195:15-19) When a leak occurred, Mr. Charlevoix would have to repack the valve. (Id. at 195:23-196:1) Mr. Kimble explained that a sharpened tool with a hook on the end was used to pull out the packing. (Id. at 184:1-14) Mr. Kimble could not remember the name of the packing used. (Id. at 185:7-14) Mr. Kimble also did not know the manufacturer of the steam valves or the C-valve. (Id. at 67:11-22)

         5. Ford Motor Company

         Mr. Charlevoix's father had a Ford tractor when Mr. Charlevoix was growing up. (D.I. 161, Ex. C at 27:1-10) Mr. Charlevoix would help his father with repairing the tractor. (D.I. 161, Ex. B at 193:14-19) In the late 1950s, Mr. Charlevoix helped his father with maintenance work at Foster City Garage. (D.I. 216, Ex. 1 at 28:16-29:19) Mr. Charlevoix identified Ford as a type of vehicle worked on at Foster City Garage. (Id. at 29:20-24)

         Mr. Charlevoix worked at M.J. Electric from 1966 to 1978 as a power line contractor. (D.I. 216, Ex. 1 at 33:5-20) Mr. Charlevoix stated that for roughly three months out of the year he would help in the maintenance shop doing repairs. (D.I. 216, Ex. 1 at 41:10-42:11) Mr. Charlevoix stated that M.J. Electric had about two hundred Ford pickups. (Id. at 37:25-38:2) He stated the models of the Ford pickups were 150s, 250s and 350s. (D.I. 161, Ex. B at 196:11-14) Mr. Charlevoix stated M.J. Electric also had two Ford dump trucks. (Id. at 201:10-17)

         Mr. Charlevoix started working at Charlevoix Logging in 1978. (D.I. 216, Ex. 1 at 53:17-19) Mr. Charlevoix stated that Charlevoix Logging had ten Ford pickup trucks. (D.I. 161, Ex. B at 114:7-16) The models of the pickups were 150s and 250s. (Id. at 213:7-12) Charlevoix Logging had two Gafner Iron Mules. (D.I. 161, Ex. B at 203:17-19) Charlevoix Logging also had one Ford dump truck. (Id. at 218:1-2) Mr. Milligan stated that Mr. Charlevoix had a Ford logging truck when Mr. Milligan began working at Charlevoix Logging in 1979. (D.I. 216, Ex. 3 at 42:15-17)

         Mr. Milligan also stated that Mr. Charlevoix performed clutch and gasket work on Ford vehicles owned by family and friends. (D.I. 216, Ex. 3 at 152:16-19) However, Mr. Milligan could not recall the manufacturer of any clutches or ...


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