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MacQueen v. Union Carbide Corp.

United States District Court, D. Delaware

December 15, 2017

MARGUERITE MACQUEEN, Individually and as the Surviving Spouse of David MacQueen, Deceased, Plaintiff,



         Presently pending before the Court in this asbestos-related personal injury action is a motion filed by Plaintiff Marguerite MacQueen ("Plaintiff) seeking to strike remaining Defendant Crane Company's ("Defendant" or "Crane") motion for summary judgment ("Motion"). (D.I. 632) Crane opposes the Motion. For the reasons discussed below, the Motion is DENIED.

         I. BACKGROUND

         On March 28, 2013, Plaintiff filed this lawsuit in the Superior Court of Delaware, in and for New Castle County. (D.I. 1, ex. 1 ("Complaint")) In the Complaint, Plaintiff asserted state law causes of action based on her husband David MacQueen's ("Mr. MacQueen") alleged exposure to asbestos and asbestos-containing products while Mr. MacQueen was employed: (1) by the United States Navy aboard the U.S.S. Randolph and the U.S.S. Independence from 1956 to 1960; and (2) as a salesman by Union Carbide Corporation from approximately 1963 to 1980. (Id. at ¶ 11)

         On May 10, 2013, Defendants Crane Company and Elliott Company ("Removing Defendants") filed respective notices of removal in this Court. (D.I. 1) This consolidated case[1]was later referred to the Court by District Judge Sue L. Robinson on September 11, 2013, for the Court to "conduct all proceedings ... [and] hear and determine all motions [], through and including the pretrial conference." (D.I. 152) Subsequent to Judge Robinson's later retirement, the case was first re-assigned to visiting District Judge Eduardo C. Robreno, and has since been re-assigned to Chief Judge Leonard P. Stark. The substance of the Court's referral, however, has remained the same through these re-assignments. (See, e.g., D.I. 627)

         The controlling revised Scheduling Order ("Scheduling Order") in the case was signed by the Court on October 16, 2015. (D.I. 584) It issued in light of the District Court's order that discovery on the issue of product identification and nexus should be re-opened, in order to allow Plaintiff the ability to pursue certain third-party discovery on that subject from former Defendant Huntington Ingalls Incorporated ("HII"). (D.I. 580) Paragraph 1(a) of the Scheduling Order thus set new a deadline for completion of "product identification discovery" (April 1, 2016), and Paragraph 11 of the Scheduling Order further provided that "[a]ll renewed and supplemented case dispositive motions on product identification and nexus, an opening brief, and affidavits, if any, in support of the motion shall be served and filed on or before July 1, 2016." (D.I. 584 at ¶¶ 1(a)(vi) & 11)[2]

         The Scheduling Order also addressed the schedule for the filing of "Other Dispositive Motions[.]" (Id. at ¶ l(b)(iii) (emphasis omitted)) As to such motions, Paragraph 1(b) of the Scheduling Order provided that: (1) by 60 days after "all summary judgment motions are resolved[, ]" expert reports were to be submitted by the "party who has the initial burden of proof on the subject matter"; (2) expert depositions and all expert discovery was to be completed by 171 days "after all summary judgment motions are resolved"; and then (3) "[a]ll other Dispositive Motions shall be filed no later than ... 201 [] days after all summary judgment motions are resolved, unless otherwise ordered by the Court." (Id. at ¶ 1 (b)) The Scheduling Order did not set a date for the pre-trial conference and trial, leaving those dates to be later determined. (Id. at ¶¶ 13, 16)

         The Court later extended the deadline for resolution of all product identification/nexus discovery to May 6, 2016, as well as the deadline for the filing of product identification/nexus summary judgment motions (hereafter, "product identification/nexus summary judgment motions") to August 5, 2016. (D.I. 596 at 8-9) On August 1, 2016, Plaintiff and the remaining Defendants (Crane, Warren and Buffalo) filed a stipulation, in which: (1) they each stated their request that briefing on the Defendants' originally-filed product identification/nexus summary judgment motions should be deemed submitted for purposes of the new product identification/nexus summary judgment motions deadline, and (2) Plaintiff sought oral argument on those motions. (D.I. 601) The Court held oral argument on the product identification/nexus summary judgment motions on January 10, 2017.

         On February 8, 2017, the Court issued a Report and Recommendation on Crane, Warren and Buffalo's product identification/nexus summary judgment motions. (D.I. 612) It ultimately recommended that Warren's Motion be granted in its entirety (such that Warren should be dismissed as a Defendant in the case), and that Crane's and Buffalo's respective Motions be granted-in-part and denied-in-part. (Id. at 30) More specifically, the Court ruled that the three Defendants had demonstrated the absence of a genuine issue of material fact as to the issue of causation-that is, that Plaintiff could not show that there was a nexus between: (1) Mr. MacQueen's prior work on the two United States Navy ships, and (2) any exposure to an asbestos containing product for which the remaining Defendants could be held responsible. (Id. at 6, 25) From there, the Court determined that this finding necessitated a grant of summary judgment as to four of the five counts of the then-operative Fourth Amended Complaint. (Id. at 26) As to the other count-Count VII's allegation that the remaining Defendants conspired with Metropolitan Life Insurance Company ("Metropolitan") in order to suppress and misrepresent the hazards of exposure to asbestos, (D.I. 380 at ¶¶ 48-56)-Plaintiff did not contest that the count should be dismissed as to Warren, (D.I. 612 at 26). But Plaintiff argued that the Court's recommendation, if adopted, would not eliminate any possibility of liability as to Buffalo and Crane with regard to Count VII. (Id. at 27) And the Court ultimately found that it could not recommend dismissal of Count VII as to Buffalo and Crane, largely due to the fact that Buffalo and Crane had not addressed Count VII in their briefing on the product identification/nexus summary judgment motions. (Id. at 28-30)

         Plaintiff subsequently agreed to the dismissal of Buffalo from the case. (D.I. 619) This left Crane as the only remaining Defendant. After Judge Robinson denied objections to the Court's Report and Recommendation regarding the product identification/nexus summary judgment motions, (D.I. 620), Plaintiff indicated to the Court that it wished to proceed forward as to its conspiracy claim against Crane, (D.I. 621 at 2).

         Therefore, on April 21, 2017, the Court ordered that, pursuant to the terms of the Scheduling Order, expert discovery on Plaintiffs conspiracy claim against Crane would commence. Plaintiff then served expert reports. Crane filed a motion to strike those reports ("motion to strike expert reports"), arguing that they violated Federal Rules of Evidence 402 and 702. (D.I 624) Briefing was completed on the motion to strike expert reports, and on September 25, 2017, the Court granted Crane's unopposed motion to stay further expert discovery until the Court ruled on the motion to strike expert reports. (D.I. 628; D.I. 629) That motion remains pending.

         Next, Crane filed a motion for summary judgment as to the conspiracy claim ("motion for summary judgment") on October 18, 2017. (D.I. 630) This, in turn, led Plaintiff to file the instant Motion on October 27, 2017, in which Plaintiff seeks to strike Crane's motion for summary judgment as untimely. (D.I 632) The Motion was fully briefed as of November 10, 2017, (D.I. 63 5).[3] The Court also granted Plaintiffs unopposed motion to stay completion of briefing on Crane's motion for summary judgment, pending the Court's decision on the instant Motion. (D.I. 633; D.I. 634)


         Plaintiff asserts in her Motion that Crane's motion for summary judgment is untimely pursuant to the Scheduling Order. (D.I. 632 at 1) Federal Rule of Civil Procedure 16(b) governs whether a court should modify a scheduling order to permit the filing of an otherwise untimely motion. It states that if a party seeks such a modification, then that party must demonstrate "good cause" in support thereof. Fed.R.Civ.P. 16(b)(4); Cordance Corp. v., Inc.,255 F.R.D. 366, 371 (D. Del. 2009). This "good cause" standard requires the movant to demonstrate that the existing schedule cannot reasonably be met, despite the movant's diligence. Novartis ...

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