United States District Court, D. Delaware
EARL JAMS, JR. and TONI JANIS Plaintiffs,
A.W. CHESTERTON, INC., et al Defendants.
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 Armstrong
International, Inc. ("Armstrong") (D.I. 114), CBS
("CBS") (D.I. 109), CertainTeed Corporation
("CertainTeed") (D.I. 111), DAP, Inc.
("DAP") (D.I. 107), and Union Carbide Corporation
("Union Carbide") (D.I. 113) (collectively,
"defendants"). Plaintiffs, Earl Janis Jr.
("Mr. Janis") and Toni Janis ("Mrs.
Janis") (collectively, "plaintiffs"), did not
respond to these motions. As indicated in the chart
infra and for the reasons that follow, the court
recommends GRANTING each defendant's motion for summary
Motion for Summary Judgment
Armstrong International, Inc.
Union Carbide Corporation
November 2, 2016, plaintiffs originally filed this personal
injury action against multiple defendants in the Superior
Court of Delaware, asserting claims arising from Mr.
Janis's alleged harmful exposure to asbestos. (D.I. 1,
Ex. 1) On February 16, 2017, the case was removed to this
court by defendant Crane Co. pursuant to 28 U.S.C.
§§ 1442(a)(1), the federal officer removal statute,
 and 1446.
(D.I. 1) Armstrong, CBS, CertainTeed, DAP, and Union Carbide
filed motions for summary judgment, individually. (D.I. 114;
D.I. 109; D.I. 111; D.I. 107; D.I. 113) Plaintiffs did not
respond to these motions.
Mr. Janis's alleged exposure history
allege that Mr. Janis developed lung cancer as a result of
exposure to asbestos-containing materials during his service
as a machinist mate in the United States Navy and as a
construction worker at Ray Thompson Construction Company.
(D.I. 1, Ex. 1 at ¶ 23) Plaintiffs contend that Mr.
Janis was injured due to exposure to asbestos-containing
products that defendants manufactured, sold, distributed,
licensed, or installed. (Id. at ¶¶ 29-30)
Accordingly, plaintiffs assert claims for negligence, willful
and wanton conduct, strict liability, loss of consortium,
conspiracy, and punitive damages. (See D.I. 1, Ex.
Janis served in the Navy from 1971-1975. (D.I. 110, Ex. B at
60:13-17; D.I. 112, Ex. A at 68:12-14) Mr. Janis started his
service as a machinist's mate onboard the USS
Aeolus and then onboard the USS Richard L.
Page. (D.I. 110, Ex. B at 64:5-7, 65:22-24) He then
served on the USS Yellowstone, which is a tender, a
ship that never moved and instead served as a repair ship for
other ships. (Id. at 73:6-10, 74:8-15) Finally, Mr.
Janis served on the USS Santa Barbara, an ammunition
carrier. (Id. at 81:22-82:4) As a machinist's
mate, he installed valves and pumps. (Id. at
104:1-5) He would sometimes need to remove a motor and
deliver it to electricians to complete the work.
(Id. at 104:18-21) While he did not perform any work
on motors, he had to remove insulation in order to remove and
transport the motor to the electrician. (Id. at
Janis started working for Ray Thompson's construction
company over the weekends in 1974. (D.I. 115, Ex. A at
70:8-12) While working for Ray Thompson, he installed floors,
sheetrock, insulation, roofing, windows, and doors.
(Id. at 70:13-18) Mr. Janis described how he
installed sheetrock by applying a thin coat of sheetrock mud,
then tape, and a heavier coat of sheetrock mud. (Id.
at 79:6-8) The mud compound either came pre-mixed in an iron
bucket or as a powder in a bag that needed to be mixed with
water. (Id. at 79:12-80:4) He testified that pouring
powder into a mixing bucket dispersed the product into the
air and he inhaled the resulting dust. (Id. at
80:5-14, 84:1-8) Mr. Janis also replaced floors using a
product that came in a roll. (Id., Ex. C at
164:12-18) When Mr. Janis replaced roofing, he used a
three-tab asphalt roofing shingle. (D.I. 112, Ex. C at
169:19-24) He cut the shingles and performed installation.
(Id. at 173:14-23) Mr. Janis was diagnosed with lung
cancer in February 2016. (D.I. 112, Ex. A at 16:11-13)
Plaintiffs product identification evidence
is the sole product identification witness in this case and
his deposition occurred on February 23, 2017. (D.I. 12)
Armstrong, International, Inc.
Janis identified Armstrong as a manufacturer of a flooring
product that he used as a construction worker. (D.I. 115, Ex.
C at 164:12-23) There is no evidence of record that has been
submitted to the court indicating where, when, and how
plaintiff was exposed or whether such exposure was to an
asbestos-containing Armstrong product.
Janis did not identify any Westinghouse products or exposure
to any asbestos-containing Westinghouse products.
(See D.I. 110, Ex. B) Mr. Janis recounted how he
worked around motors while serving in the Navy. However, he
admitted that he performed no work on the motors themselves,
did not know the number of times he had to remove motors, did
not know the number of times the insulation was previously
removed prior to his contact with it, and did not know on
which ships he performed this task. (Id. at 105:7-9,