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MacQueen v. Union Carbide Corp.

United States District Court, D. Delaware

June 6, 2018

MARGUERITE MACQUEEN, Individually and as the Surviving Spouse of David MacQueen, Deceased, Plaintiff,
v.
UNION CARBIDE CORPORATION, et al., Defendants.

          REPORT AND RECOMMENDATION

          CHRISTOPHER J. BURKE UNITED STATES MAGISTRATE JUDGE

         Presently before the Court in this asbestos-related personal injury action is Defendant Crane Co.'s ("Crane") motion for summary judgment, filed pursuant to Federal Rule of Civil Procedure 56 (the "Motion"). (D.I. 630) For the reasons that follow, the Court recommends that Crane's Motion be GRANTED.

         I. BACKGROUND

         On March 28, 2013, Plaintiff Marguerite MacQueen 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 against 54 different Defendants 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, Crane and Defendant Elliott Company filed separate notices of removal in this Court. (See, e.g., D.I. 1) This consolidated case was later referred to the Court by District Judge Sue L. Robinson, 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)

         On February 8, 2017, the Court issued a Report and Recommendation (the "Feb. 8, 2017 R&R") on product identification/nexus summary judgment motions filed by Crane, Defendant Warren Pumps LLC ("Warren") and Defendant Air & Liquid Systems Corporation ("Buffalo").[1](D.I. 612) The Court 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 currently operative counts of the operative Fourth Amended Complaint (the "FAC" or the "Amended Complaint"). (Id. at 26) As to the remaining count-Count VII's allegation that Defendants participated in a civil conspiracy 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 regarding Count VII. (Id. at 27) The Court ultimately found that it could not recommend dismissal of Count VII as to Buffalo and Crane, largely because 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 affirmed the Feb. 8, 2017 R&R, (D.I. 620), Plaintiff indicated that it wished to proceed as to its conspiracy claim against Crane, (D.L 621 at 2).

         On April 21, 2017, the Court ordered that, pursuant to the terms of the Scheduling Order, expert discovery should commence on Plaintiffs conspiracy claim against Crane. Plaintiff then served expert reports. Crane later filed a motion to strike those reports ("motion to strike expert reports"), arguing that the reports violated Federal Rules of Evidence 402 and 702. (D.I. 624)[2]On March 14, 2018, the Court ultimately issued a Memorandum Order denying Crane's motion to strike expert reports. (D.I. 643)

         Crane also filed the instant Motion on October 18, 2017. (D.I. 630) This, in turn, led Plaintiff to file a motion to strike the Motion as untimely ("motion to strike the summary judgment motion") on October 27, 2017. (D.I. 632)[3] On December 15, 2017, the Court issued a Memorandum Order denying Plaintiffs motion to strike the summary judgment motion, finding that the Motion was not untimely under the operative Scheduling Order. (D.I. 636)

         Briefing on the Motion completed on February 5, 2018. (D.I. 640) At the parties' request, the Court held oral argument on the Motion on April 11, 2018. (D.I. 645 (hereinafter, "Tr."))

         II. STANDARD OF REVIEW

         A grant of summary judgment is appropriate where "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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 n. 10 (1986). If the moving party has sufficiently demonstrated the absence of a genuine dispute of material fact, the nonmovant must then "come forward with specific facts showing that there is a genuine issue for trial." Id. at 587 (internal quotation marks, citation and emphasis omitted).

         If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). During this process, the Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150(2000).

         However, in order to defeat a motion for summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586-87; see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (party opposing summary judgment "must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue") (internal quotation marks and citation omitted). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Facts that could alter the outcome are "material, " and a factual dispute is "genuine" only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "If the evidence is merely colorable ... or is not significantly probative . . . summary judgment may be granted." Id. at 249-50 (internal citations omitted).

         A party asserting that a fact cannot be-or, alternatively, is-genuinely disputed must support the assertion 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).

         III. DISCUSSION

         As noted above, the sole remaining count against Crane is Count VII. With that Count, Plaintiff is pursuing a claim of civil conspiracy under Delaware law. (D.I. 380 at ¶¶ 48-56; D.I. 638 at 1 n.1, 7, 10-11) The elements of such a claim are: (1) a confederation or combination of two or more persons; (2) an unlawful act done in furtherance of the conspiracy; and (3) damages resulting from the action of the parties to the conspiracy. See AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 437 n.8 (Del. 2005); Nicolet, Inc. v. Nutt, 525 A.2d 146, 149-50 (Del. 1987); Wayman Fire Prot, Inc. v. Premium Fire & Sec, LLC, C.A. No. 7866-VCP, 2014 WL 897223, at *24 (Del. Ch. Mar. 5, 2014).

         Plaintiff is asserting that the "unlawful act" said to have been done in furtherance of the conspiracy is the tort of intentional misrepresentation. (D.I. 638 at 11 (citing Nicolet, Inc., 525 A.2d at 150)) Under Delaware law, intentional misrepresentation (also referred to as "fraudulent concealment") has five elements: (1) deliberate concealment by the defendant of a material past or present fact, or silence in the face of a duty to speak; (2) the defendant acted with scienter; (3) the defendant had an intent to induce plaintiffs reliance upon the concealment; (4) causation; and (5) damages resulting from the concealment. Nicolet Inc., 525 A.2d at 149; Johnson v. Preferred Prof I Ins. Co., 91 A.3d 994, 1017 (Del. Sup. Ct 2014).

         In Nicolet, Inc. v. Nutt, 525 A.2d 146 (Del. 1987), an asbestos litigation matter, the Delaware Supreme Court explained how a defendant might be found liable for participating in a civil conspiracy somewhat similar to the type alleged here. The Nicolet Court noted that under Delaware law, a conspirator is jointly and severally liable for the acts of co-conspirators committed in furtherance of the conspiracy. 525 A.2d at 150. It then explained that the defendant there was subject to liability if the plaintiffs could establish that:

(1) [Defendant] was a member of a conspiracy consisting of asbestos manufacturers; (2) a member of the conspiracy, acting in furtherance of the conspiracy, actively suppressed data on the harmful effects of asbestos with the intent to hide such information from plaintiffs in order to induce them to continue their exposure (i.e., committed the tort of intentional misrepresentation); and, (3) ...

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