United States District Court, D. Delaware
EARL JANIS, 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 three motions for summary judgment pursuant to
Federal Rule of Civil Procedure 56 filed by FMC Corporation
("FMC"), Warren Pumps, LLC ("Warren"),
and Ingersoll Rand Co. ("Ingersoll Rand")
(collectively, "defendants"). (D.I. 100; D.I. 102;
D.I. 104) For the following reasons, I recommend GRANTING
defendants' motions for summary judgment.
November 2, 2016, plaintiffs Earl Janis Jr. ("Mr.
Janis") and Toni Janis ("Mrs. Janis")
(collectively "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,
1446. (D.I. 1) On June 4, 2018, defendants filed their
pending motions for summary judgment. (D.I. 100; D.I. 102;
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.
(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 was deposed on February 23, 2017. (D.I. 12) Plaintiffs
did not produce any other fact or product identification
witnesses for deposition.
Janis served in the Navy from 1971-1975. (D.I. 117, Ex. A at
34:9-25, 36:1-38:19) Mr. Janis started his service onboard
the USS Aeolus from 1971-1972. (Id. at
34:3-18) He served aboard the USS Richard L. Page
from 1972-1974. (Id. at 34:20-23, 36:1-15) He
continued his service aboard the USS Yellowstone in
1974. (Id. at 36:16-23) The USS Yellowstone
was a tender, a ship that never moved and instead served as a
repair ship for other ships. (Id. at 36:22-37:2)
Finally, Mr. Janis served on the USS Santa Barbara
from 1974-1975. (Id. at 37:10-38:11)
Janis worked as a machinist mate and was responsible for
installing, repairing, and maintaining valves and pumps
onboard the USS Aeolus, USS Richard L. Page, USS
Yellowstone, and USS Santa Barbara. (Id. at
40:5-9, 40:14-17) Mr. Janis changed gaskets for pumps and
valves by removing, scraping, and cleaning them.
(Id. at 43:14-15) He would reinstall gaskets by
either using a pre-made gasket or cutting out more gasket
material and fashioning a new one. (Id. at 46:4-24)
Mr. Janis testified that removing gaskets and creating new
gaskets out of the provided gasket material dispersed
products into the air, producing visible particles that he
inhaled. (Id. at 44:6-25, 47:4-10)
Janis also replaced packing from valves and pumps.
(Id. at 47:11-22, 49:22-25, 57:5-14) He would remove
old packing by scraping and pulling it with a knife or
screwdriver. (Id. at 47:21-48:5) Mr. Janis testified
that removing packing created particles in the air because
the packing would fall apart, and he inhaled this resulting
dust. (Id. at 48:10-21) In replacing the packing, he
would cut new packing, which also produced particles in the
air which he inhaled. (Id. at 49:11-21) Mr.
Janis's duties also included reinstalling insulation on
the pumps. (Id. at 60:15-17) He would remove the old
insulation on the pipe and wrap new material tightly around
the pump before painting the new insulation. (Id. at
60:18-61:1) Mr. Janis testified that the process of
reinstalling insulation on pumps would similarly create dust
that he inhaled. (Id. at 61:2-12)
being honorably discharged from the Navy, Mr. Janis worked as
a construction worker at Ray Thompson Construction Company in
Charleston, South Carolina until 2004. (D.I. 1, Ex. 1 at
¶ 23) Mr. Janis was diagnosed with lung cancer in
February 2016. (D.I. 101, Ex. B at 16:13)
"The court shall grant summary judgment if 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). Material facts are those that
could affect the outcome of the proceeding, and "a
dispute about a material fact is 'genuine' if the
evidence is sufficient to permit a reasonable jury to return
a verdict for the nonmoving party." Lamont v. New
Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Celotex Corp. v. Catrett, 477 U.S. 317,
moving party bears the initial burden of proving the absence
of a genuinely disputed material fact. See Celotex,
477 U.S. at 321. The burden then shifts to the non-movant to
demonstrate the existence of a genuine issue for trial, and
the court must view the evidence in the light most favorable
to the non-moving party. See Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Williams v. Borough of West Chester, Pa., 891 F.2d
458, 460-61 (3d Cir. 1989); Scott v. Harris, 550
U.S. 372, 380 (2007). An assertion that a fact cannot be-or,
alternatively, is-genuinely disputed must be supported 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 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). 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, 475 U.S. at 586. The "mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment;" rather, there must be enough evidence
to enable a jury to reasonably find for the non-moving party
on the issue. See Anderson, 477 U.S. at 247-49.
"If the evidence is merely colorable, or is not
significantly probative, summary judgment may be
granted." Id. at 249-50 (internal citations
omitted); see also Celotex, 477 U.S. at
322. If the non-movant fails to make a sufficient showing on
an essential element of its case on which it bears the burden
of proof, then the movant is entitled to judgment as a matter
of law. See Celotex, 477 U.S. at 322.
party fails to address another party's assertion of fact,
the court may consider the fact undisputed, or grant summary
judgment if the facts show that the movant is entitled to it.
Maritime Law: Product Identification/Causation
parties do not dispute that maritime law applies to all
Naval/sea-based claims. In order to establish causation in an
asbestos claim under maritime law, a plaintiff must show, for
each defendant, "that (1) he was exposed to the
defendant's product, and (2) the product was a
substantial factor in causing the injury he suffered."
Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488,
492 (6th Cir. 2005) (citing Stark v. Armstrong World
Indus., Inc., 21 Fed.Appx. 371, 375 (6th Cir. 2001));
Dumas v. ABB Grp., Inc., 2015 WL 5766460, at *8 (D.
Del. Sept. 30, 2015), report and recommendation
adopted, 2016 WL 310724 (D. Del. Jan. 26, 2016);
Mitchell v. Atwood & Morrill Co., 2016 WL
4522172, at *3 (D. Del. Aug. 29, 2016), report and
recommendation adopted, 2016 WL 5122668 (D. Del. Sept.
19, 2016); Denbow v. Air & Liquid Sys. Corp.,
2017 WL 1199732, at *4 (D. Del. Mar. 30, 2017), report
and recommendation adopted, 2017 WL 1427247 (D. Del.
Apr. 19, 2017).
establishing causation, a plaintiff may rely upon direct
evidence (such as testimony of the plaintiff or Decedent who
experienced the exposure, co-worker testimony, or eye-witness
testimony) or circumstantial evidence that will support an
inference that there was exposure to the defendant's
product for some length of time."Abbay v.
Armstrong Int'l, Inc., 2012 WL 975837, at *1 n.1
(E.D. Pa. Feb. 29, 2012) (citing Stark, 21 Fed.Appx.
at 376). On the other hand, '"[m]inimal
exposure' to a defendant's product is insufficient
[to establish causation]. Likewise, a mere showing that
defendant's product was present somewhere at plaintiffs
place of work is insufficient." Lindstrom, 424
F.3d at 492 (quoting Stark, 21 Fed.Appx. at 376)
(internal citation omitted). "Rather, the plaintiff must
show 'a high enough level of exposure that an inference
that the asbestos was a substantial factor in the injury is
more than conjectural.'" Abbay, 2012 WL
975837, at * 1 n.1 (quoting L ...