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In re Asbestos Litigation

United States District Court, D. Delaware

June 26, 2018

IN RE ASBESTOS LITIGATION
v.
ATWOOD MORRILL CO., et al., Defendants. JOHN A. PIENO, JR., and DIONE PIENO, his wife, Plaintiffs,

          REPORT AND RECOMMENDATION

          Sherry R. Fallon, United States Magistrate Judge.

         I. INTRODUCTION

         Presently 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 LLC[1] ("BorgWarner"), Flowserve U.S. Inc.[2]("Flowserve"), and Warren Pumps LLC ("Warren") (collectively, "Defendants"). (D.I. 138; D.I. 140; D.I. 145; D.I. 148; D.I. 153)[3] 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.

Defendant

Motion For Summary Judgment

Crosby Valve LLC

GRANT

The Fairbanks Company

GRANT

BorgWarner Morse Tec LLC

GRANT

Flowserve U.S. Inc.

GRANT

Warren Pumps

GRANT

         II. BACKGROUND

         A. Procedural History

         On 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, [4] 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.[5] (D.I. 138; D.I. 140; D.I. 145; D.I. 148; D.I. 153) Plaintiffs did not respond to these motions.

         B. Facts

         1. Mr. Pieno's Alleged Exposure History

         Plaintiffs 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 9-15)

         Mr. 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.[6] 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)

         Mr. 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)

         In 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)

         Around 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)

         In 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)

         In 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)

         In 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)

         2. Plaintiffs' Product Identification Evidence

         a. Crosby

         Mr. 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)

         b. Fairbanks

         Mr. 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 ...


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