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Janis v. A.W. Chesterton, Inc.

United States District Court, D. Delaware

January 17, 2019

EARL JAMS, JR. and TONI JANIS Plaintiffs,
v.
A.W. CHESTERTON, INC., et al Defendants.

          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 Armstrong International, Inc. ("Armstrong") (D.I. 114), CBS Corporation[1] ("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 judgment.[2]

Defendant

Motion for Summary Judgment

Armstrong International, Inc.

GRANT

CBS Corporation

GRANT

CertainTeed Corporation

GRANT

DAP, Inc.

GRANT

Union Carbide Corporation

GRANT

         II. BACKGROUND

         a. Procedural History

          On 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, [3] 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.[4]

         b. Facts

         i. Mr. Janis's alleged exposure history

         Plaintiffs 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. 1)

         Mr. 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 104:22-105:3, 105:7-13)

         Mr. 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)

         ii. Plaintiffs product identification evidence

         Plaintiff is the sole product identification witness in this case and his deposition occurred on February 23, 2017. (D.I. 12)

         1. Armstrong, International, Inc.

         Mr. 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.

         2. CBS Corporation

         Mr. 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, 105:21-106:5)

         3. ...


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