United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. Fallon, United States Magistrate Judge.
before the court in this asbestos-related personal injury
action are the motions for summary judgment of defendants
Crosby Valve LLC ("Crosby"), The Fairbanks Company
("Fairbanks"), BorgWarner Morse Tec
("BorgWarner"), Flowserve U.S. Inc.("Flowserve"),
and Warren Pumps LLC ("Warren") (collectively,
"Defendants"). (D.I. 138; D.I. 140; D.I. 145; D.I.
148; D.I. 153) Plaintiffs John A. Pieno, Jr. ("Mr.
Pieno") and Dione Pieno, his wife, (together,
"Plaintiffs") 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.
Motion For Summary Judgment
Crosby Valve LLC
The Fairbanks Company
BorgWarner Morse Tec LLC
Flowserve U.S. Inc.
October 19, 2016, Plaintiffs originally filed this personal
injury action against multiple defendants in the Superior
Court of Delaware, asserting claims arising from Mr.
Pieno's alleged harmful exposure to asbestos. (D.I. 1,
Ex. A) On December 2, 2016, the case was removed to this
court by defendant Crane Co. pursuant to 28 U.S.C.
§§ 1442(a)(1), the federal officer removal statue,
 and 1446.
(D.I. 1) On March 31, 2017, Plaintiffs filed an amended
complaint. (D.I. 54) On April 17, 2018, Crosby, Fairbanks,
BorgWarner, Flowserve, and Warren filed the pending motions
for summary judgment, individually. (D.I. 138; D.I. 140; D.I. 145; D.I.
148; D.I. 153) Plaintiffs did not respond to these motions.
Mr. Pieno's Alleged Exposure History
allege that Mr. Pieno developed mesothelioma as a result of
exposure to asbestos-containing materials during his service
in the Navy, as well as from his civilian work as a salesman
and mechanic for Western Auto, and personal automotive and
home renovation work. (D.I. 54 at ¶¶ 3-4, 14)
Plaintiffs contend that Mr. Pieno was injured due to exposure
to asbestos- containing products that Defendants
manufactured, sold, distributed, licensed, or installed.
(Id. at ¶¶ 5, 9) Accordingly, Plaintiffs
asserts claims for negligence, willful and wanton conduct,
strict liability, and loss of consortium. (Id. at
Pieno was deposed on January 11 and 12, 2017. (D.L 27)
Plaintiffs did not produce any other fact or product
identification witnesses for deposition. From 1954 to 1962, Mr.
Pieno was employed as a salesman and mechanic at Western
Auto, in Gretna, Louisiana. (D.I. 54 at ¶ 3) From 1962
to 1990, Mr. Pieno served in the United States Navy as an
aircraft pilot. (D.I. 54 at ¶ 3)
Pieno began basic training and the aviation program in 1962,
where he learned to fly aircraft until 1964. (D.L 149, Ex. A
at 27:20-32:15) In in 1965, after training, Mr. Pieno was
assigned to a fleet squadron attached to the USS America
("the America"). (Id. at 32:9-33:16)
Occasionally, he visited the machinery spaces and observed
others working on pumps and valves, however, he could not
recall a specific manufacturer's product aboard the
America, nor what type of repairs were performed. (D.I. 154,
Ex. A at 157:8-159:5)
1970, Mr. Pieno's squadron was attached to the USS
Saratoga ("the Saratoga"), where he continued his
duties as a pilot. (Id. at 161:18-162:9) He
occasionally visited the machinery spaces of the Saratoga,
but did not recall the manufacturer of any piece of equipment
nor any type of repair performed in his presence.
(Id. at 169:19-170:4)
1975, after leaving the Saratoga, Mr. Pieno returned to the
America. (Id. at 170:5-10) In addition to being a
pilot, he served as a maintenance officer for the aircraft.
(Id. at 171:14-23) Mr. Pieno did not go into the
machinery spaces of the America during his second assignment.
(Id. at 172:19-21) He did not recall the
manufacturer of any piece of equipment aboard the America, or
any repairs that were performed in his presence.
(Id. at 172:22-173:4)
1976, Mr. Pieno was assigned to the USS Nimitz. (Id.
at 173:5-6) Mr. Pieno served as a pilot, and was responsible
for walking through the ship and observing what was happening
aboard the carrier. (Id. at 173:21-174:25) He did
not spend time in the machinery spaces, and did not know who
manufactured any equipment aboard, nor any repairs that were
performed in his presence. (Id. at 175:2-15) In
1981, Mr. Pieno joined the USS John. F. Kennedy ("the
JFK") as an Executive Officer. (Id. at
175:14-22) While the ship was in dry dock, Mr. Pieno was
present when a boiler was repaired and its external lagging
removed, creating dust. (Id. at 178:20-179:17)
However, he had no recollection of a particular
manufacturer's product that was removed or installed in
his presence. (Id. at 183:3-9)
approximately 1984, Mr. Pieno became Commanding Officer of
the USS Savannah ("the Savannah"), a supply ship.
(Id. at 183:20-24) As captain of the Savannah, Mr.
Pieno was not personally involved in the repair and
maintenance of equipment. (Id. at 184:8-185:21) Mr.
Pieno recalled pumps and valves being removed and repaired,
but could not recall their location aboard the ship or their
manufacturer. (Id. at 186:8-25)
approximately 1986, Mr. Pieno served as Captain of the USS
Forrestal. (Id. at 187:16-188:1) Mr. Pieno recalled
a turbine being repaired during his tenure, but he did not
recall any other repair to any other piece of equipment, and
he did not know the manufacturer of any equipment.
(Id. at 188:2-22)
Plaintiffs' Product Identification Evidence
Pieno did not initially recall Crosby as a manufacturer of
valves that he encountered during his naval career. (D.I.
139, Ex. C at 51:11-16) Mr. Pieno recalled the Crosby name
after his counsel showed him his own interrogatory answers to
"refresh his memory." (Id. at 74:5-16) Mr.
Pieno stated that he did not work on these alleged Crosby
valves, however, he only recalled seeing others working on
them. (Id.) Mr. Pieno could not identify a specific
manufacturer of valves, or any equipment, on any particular
ship. (Id. at 86:1-4) Mr. Pieno could not identify
the manufacturer of any valve that was serviced or replaced
while he was present. (Id., Ex. D at 196:10-17)
Pieno named Fairbanks as a manufacturer of pumps that he
recalled encountering during his naval career. (D.I. 143, Ex.
A at 50:22-51:4) Mr. Pieno also recalled Fairbanks as a
manufacturer of valves after his counsel showed him his own
interrogatory answers to "refresh his memory."
(Id. at 74:5-16) Mr. Pieno did not provide any
testimony regarding his personal work with ...