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In re Asbestos Litigation

United States District Court, D. Delaware

April 4, 2018

IN RE ASBESTOS LITIGATION
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants. JOAN KISTER, Individually and as Executor of the Estate of ALAN B. KISTER, deceased, Plaintiffs,

          REPORT AND RECOMMENDATION

          Sherry R. Fallon United Spates Magistrate Judge

         I. INTRODUCTION

         Presently before the court in this asbestos-related personal injury action are the motions for summary judgment of defendants Air & Liquid Systems Corporation ("Buffalo Pumps"), [1]The Fairbanks Company ("Fairbanks"), CertainTeed Corporation ("CertainTeed"), Foster Wheeler LLC ("Foster Wheeler"), Union Carbide Corporation ("Union Carbide"), Aurora Pump Company ("Aurora"), and Pfizer, Inc. ("Pfizer") (collectively, "Defendants"). (D.I. 75; D.I. 78; D.I. 80; D.I. 84; D.I. 86; D.I. 87; D.I. 90)[2] Plaintiff Joan Kister ("Plaintiff' or "Mrs. Kister"), individually, and as the Executor of the Estate of Alan B. Kister ("Mr. Kister"), did not respond to these motions. As indicated in the chart infra and for the reasons that follow, the court recommends GRANTING Defendants' motions for summary judgment.

Defendant

Motion for Summary Judgment

Air & Liquid Systems / Buffalo Pumps

GRANT

The Fairbanks Company

GRANT

CertainTeed Corporation

GRANT

Foster Wheeler LLC

GRANT

Union Carbide Corporation

GRANT

Aurora Pump Company

GRANT

Pfizer Inc.

GRANT

         II. BACKGROUND

         A. Procedural History

         On October 28, 2016, Joan and Alan Kister originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr. Kister's alleged harmful exposure to asbestos. (D.I. 1, Ex. A) On February 23, 2017, the case was removed to this court by defendant CBS Corporation pursuant to 28 U.S.C. §§ 1442(a)(1), the federal officer removal statue, [3] and 1446. (D.I. 1) On July 30, 2017, Mr. Kister died during the pendency of this action. (D.I. 62) As a result, Mrs. Kister filed an amended complaint on February 6, 2018, naming herself, individually, and as the Executor of the Estate of Mr. Kister, as plaintiff. (D.I. 69) Buffalo Pumps, Fairbanks, CertainTeed, Foster Wheeler, Union Carbide, Aurora, and Pfizer filed the pending motions for summary judgment, individually. (D.I. 75; D.I. 78; D.I. 80; D.I. 84; D.I. 86; D.I. 87; D.I. 90) Plaintiff did not respond to these motions. On March 26, 2018, CertainTeed, Foster Wheeler, and Union Carbide sent a joint letter to the court seeking dismissal for Plaintiffs failure to oppose any of their respective summary judgment motions. (D.I. 95) On April 3, 2018, Aurora sent its own letter to the court seeking dismissal. (D.I. 98)

         B. Facts

         1. Mr. Kister's Alleged Exposure History

         Plaintiff alleges that Mr. Kister developed mesothelioma as a result of exposure to asbestos-containing materials during his employment as a pipe-coverer with Newport News Shipbuilding and Dry Dock Co. ("Newport News") from February to August 1968. (D.I. 69 at ¶¶ 4, 14) Plaintiff contends that Mr. Kister was injured due to exposure to asbestos-containing products that Defendants manufactured, sold, distributed, licensed, or installed. (Id. at ¶¶ 5, 9) Accordingly, Plaintiff asserts claims for negligence, willful and wanton conduct, strict liability, loss of consortium, and wrongful death. (Id. at 7-14)

         Mr. Kister was deposed on January 26, 2017. (D.I. 76 at 1) Plaintiff did not produce any other fact or product identification witnesses for deposition.[4] In 1968, Mr. Kister was employed by Newport News and worked at Newport News Shipyard. (D.I. 69 at ¶ 4) During this time, Mr. Kister worked aboard the USS Mobile ("the Mobile") for seven months. (D.I. 76, Ex. A at 38:22-23) While working as a pipe-coverer aboard the Mobile, Mr. Kister performed work on pumps housed in the Mobile's pump room. (Id. at 75:23-76:76:19) Mr. Kister testified that there were many different pumps aboard the Mobile, but the three manufacturers he recalled encountering were "Warren, Worthington, and Ingersoll-Rand." (Id., Ex. B at 33:4-11) Mr. Kister did not know of any other products which may have exposed him to asbestos. (D.I. 88, Ex. B at 58:20-25)

         2. Plaintiffs Product Identification Evidence

         a. Air & Liquid Systems / Buffalo Pumps

         Mr. Kister did not identify an asbestos-containing Buffalo Pumps product. (See D.I. 76, Exs. A-B)

         b. Fairbanks

         Mr. Kister did not identify an asbestos-containing Fairbanks product. (See id.)

         c. CertainTeed

         Mr. Kister did not identify an asbestos-containing CertainTeed product. (See id.)

         d. ...


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