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Janis v. A.W. Chesterton, Inc.

United States District Court, D. Delaware

January 18, 2019

EARL JANIS, 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 three motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by FMC Corporation ("FMC")[1], 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.[2]

         II. Background

         a. Procedural History

         On 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, [3]and 1446. (D.I. 1) On June 4, 2018, defendants filed their pending motions for summary judgment. (D.I. 100; D.I. 102; D.I. 104)

         b. Facts

          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. 1)

         Mr. Janis was deposed on February 23, 2017. (D.I. 12) Plaintiffs did not produce any other fact or product identification witnesses for deposition.

         Mr. 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)

         Mr. 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)

         Mr. 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)

         After 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.[4] (D.I. 101, Ex. B at 16:13)

         III. Legal Standard

         a. Summary Judgment

          "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, 322-23 (1986)).

         The 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.

         If a 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. Fed.R.Civ.P. 56(e)(2)-(3).[5]

         b. Maritime Law: Product Identification/Causation

         The parties do not dispute that maritime law applies to all Naval/sea-based claims.[6] 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[7] 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).[8]

         "In 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."[9]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 ...


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