United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. Fallon United States Magistrate Judge.
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
Motion for Summary Judgment
Ford Motor Company
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.(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.
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.)
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
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)
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)
Testimony of Product Identification Witnesses
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.)
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.)
Plaintiffs product identification evidence
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)
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)
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)
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
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)
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)
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)
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)
Ford Motor Company
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)
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)
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)
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 ...