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In re Asbestos Litigation

United States District Court, D. Delaware

January 22, 2019

IN RE ASBESTOS LITIGATION
v.
A. O. SMITH CORP., et al., Defendants. MICHAEL R. HARDING and SALLY HARDING, 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 A.O. Smith Corp. ("A.O. Smith") (D.I. 166), Air & Liquid Systems Corporation[1] ("Air & Liquid") (D.I. 170), Burnham LLC ("Burnham") (D.I. 157), Crosby Valve LLC ("Crosby") (D.I. 144), DAP Products, Inc. ("DAP") (D.I. 145), Dominion Nuclear Connecticut, Inc. ("Dominion") (D.I. 164), Foster Wheeler LLC ("Foster Wheeler") (D.I. 151), Gardner Denver, Inc. ("Gardner Denver") (D.I. 142), Rheem Manufacturing Company ("Rheem") (D.I. 155), Slant/Fin Corporation ("Slant/Fin") (D.I. 163), Spirax Sarco, Inc. ("Spirax") (D.I. 161), and Superior Boiler Works, Inc. ("SBW") (D.I. 159) (collectively, "defendants"). Plaintiffs, Michael R. Harding ("Mr. Harding") and his wife, Sally Harding (collectively, "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.[2]

Defendant

Motion for Summary Judgement

A.O. Smith Corporation

GRANT

Air & Liquid Systems Corp.

GRANT

Burnham LLC

GRANT

Crosby Valve LLC

GRANT

DAP Products, Inc.

GRANT

Dominion Nuclear Connecticut, Inc.

GRANT

Foster Wheeler LLC

GRANT

Gardner Denver, Inc.

GRANT

Rheem Manufacturing Company

GRANT

Slant/Fin Corporation

GRANT

Spirax Sarco, Inc.

GRANT

Superior Boiler Works, Inc.

GRANT

         II. BACKGROUND

         A. Procedural History

         On January 25, 2017, plaintiffs originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr. Harding's alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On March 10, 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) A.O. Smith, Air & Liquid, Burnham, Crosby, DAP, Dominion, Foster Wheeler, Gardner Denver, Rheem, Slant/Fin, Spirax, and SBW filed motions for summary judgment, individually. (D.I. 166, 170, 157, 144, 145, 164, 151, 142, 155, 163, 161, 159) Plaintiffs did not respond to these motions.[4]

         B. Facts

         1. Mr. Harding's alleged exposure history

         Plaintiffs allege that Mr. Harding developed lung cancer as a result of exposure to asbestos-containing materials during his service as a pipefitter[5] in the United States Navy, as well as from his civilian work. (D.I. 1, Ex. 1 at ¶¶ 3-4) Plaintiffs contend that Mr. Harding was injured due to exposure to asbestos-containing products that defendants manufactured, sold, distributed, licensed, or installed. (Id. at ¶¶ 4-13) Accordingly, plaintiffs assert claims for negligence, willful and wanton conduct, strict liability, and loss of consortium. (Id. at ¶¶ 14-32)

         Mr. Harding was deposed on August 8 and 9, 2017. (D.I. 88) Plaintiffs did not produce any other fact or product identification witnesses for deposition.[6]

         Before serving in the Navy, Mr. Harding first worked for Pickering Plumbing and Heating as a plumber apprentice in New Canaan, Connecticut from 1962-1963. (D.I. 1, Ex. 1, ¶ 3) While working for Pickering Plumbing and Heating, Mr. Harding "[d]id commercial plumbing, plumbing and heating in houses in residential, boiler rooms," and dealt with both residential and commercial boilers. (D.I. 156, Ex. 1 at 81:5-6, 81:13-15) Mr. Harding believes he worked on Weil McLain, A.O. Smith, Burnham, and American Standard residential boilers. (Id. at 81:19-22) He also recalls installing Weil McLain and American Standard sectional boilers, but was unsure as to whether he installed a Burnham sectional boiler. (Id. at 85:18-21) Mr. Harding recounted that he removed sectional boilers manufactured by Weil McLain, American Standard, A.O. Smith, Burnham, and Utica, though most were manufactured by Weil McLain. (Id. at 97:7-20, 100:17-23) Additionally, Mr. Harding testified that he installed package boilers manufactured by Burnham, American Standard, Utica, and A.O. Smith. (Id. at 112:7-20) Most of the package boilers he installed were manufactured by A.O. Smith. (Id. at 114:24-115:10) Mr. Harding also recounted how he worked with commercial boilers - the majority of which were manufactured by Weil McLain. (Id. at 121:12-19) Mr. Harding alleges he experienced exposure to asbestos while working on boilers through use of asbestos powder that formed the base for a compound that he applied to boiler connections. (Id. at 83:13-84:12) He further testified that he was exposed to this "asbestos rope and/or dried mud" upon removing the boilers and had to clean up the area by sweeping, scraping, or hosing down the area. (Id. at 94:17-95:25) Mr. Harding described how the processes of installing and removing boilers produced dust and how he would inhale the dust and get some dust on his clothes. (Id. at 96:2-20, 98:22-99:25, 100:1-16, 110:11-111:25, 113:13-20)

         Mr. Harding served in the Navy from 1963 to 1967. (D.I. 1, Ex. 1 at ¶ 3) On board the USS Valley Forge, Mr. Harding worked as a pipefitter and was responsible for packing and replacing valves. (D.I. 171, Ex. A at 89:5-9) When valves were not working, he would replace them and if they were leaking, he would fix them. (Id. at 91:11 -92:18) Mr. Harding would repair packing at the top of the valve by taking the bonnet off, picking out the old packing, cleaning with a wire brush, and then cutting and installing the new packing. (D.I. 156, Ex. 1 at 21:20-22:6) He believes the packing was made of asbestos and described how the packing was a dusty process that left him inhaling the dust. (Id. at 22:22-23:7) Mr. Harding also worked on flanges by replacing gaskets. (Id. at 27:10-14) He described how he would take out an old gasket, scrape the flange, and then make new gaskets out of sheet asbestos. (Id. at 27:13-18) He testified that replacing gaskets also produced dust. (Id. at 28:24-29:4) Mr. Harding performed this maintenance work on feedwater pumps, fuel oil pumps, condensate pumps, bilge pumps, and fire pumps. (Id. at 32:5-8, 54:18-55:9, 64:2-5, 70:9-23)

         Mr. Harding removed insulation from the pipes leading from the pumps, which produced a cloud of dust that he inhaled. (Id. at 38:9-39:10) He would then replace the insulation by wrapping the pipe with a sheet asbestos product and covering the sheet with powdered asbestos cement that he would mix with water in a bucket, which also created dust that he inhaled. (Id. at 39:18-25) Mr. Harding worked on the USS Valley Forge's boilers by welding tubes if they were leaking. (Id. at 42:3-7) When doing so, he was in the presence of other technicians who took old bricks out and installed new ones, which he described as a dusty job that caused him to breathe in dust. (Id. at 45:1-10)

         Mr. Harding was also present when machinist mates took off the access panel of the turbines to get inside the casing and removed gaskets. (Id. at 48:11-49:4) While present, Mr. Harding inhaled the dust that this process created. (Id. at 49:10-13) Mr. Harding was not responsible for turbine repair, did not handle the turbine itself, and was not present for turbine repair, but was responsible for replacing piping going in or around the turbines. (Id. at 47:21-48:1)

         After serving in the Navy, Mr. Harding worked as an apprentice for Chuck Fratoroli ("Fratoroli") in Stamford, Connecticut from 1968 to 1970. (D.I. 1, Ex. A at ¶ 3) As an apprentice, Mr. Harding worked on boilers, similar to the work he performed prior to his naval service. (D.I. 163, Ex. B at 285:1-286:10) In the late 1970s, Mr. Harding worked as a pipefitter at Millstone Power Plant ("Millstone") in New London, Connecticut. (D.I. 165 at 2; Ex. C at 134:8-135:1) His work consisted of installing relief valve piping and flood tubes, removing insulation, and maintaining steam valves. (D.I. 165, Ex. C at 135:24-136:4, 136, 19-25, 141:12-15) Mr. Harding testified that he believed the steam lines were coated with asbestos. (Id. at 136:5-15) Mr. Harding was diagnosed with lung cancer in February 2015.[7] (D.I. 162, Ex. B at 26)

         2. Plaintiffs' product identification evidence

         Mr. Harding is the sole product identification witness in this case and his deposition occurred on August 8 and 9, 2017. (D.I. 88)

         a. A.O. Smith Corporation

         Mr. Harding identified A.O. Smith as one of several manufacturers of sectional boilers he removed during his work as a plumber. (D.I. 167, Ex. A at 100:17-23) On cross-examination, however, Mr. Harding admitted he was mistaken and should not have identified A.O. Smith as a manufacturer of sectional boilers. (Id., Ex. B at 257:18-258:7) Mr. Harding estimated that he installed about twelve A.O. Smith residential packaged boilers over the course of his career. (Id. at 264:25-265:2) Mr. Harding was unable to provide details about A.O. Smith boilers and the general description of A.O. Smith boilers he gave was inconsistent with any boilers manufactured or distributed by A.O. Smith. For example, Mr. Harding testified that A.O. Smith boilers' fuel source was oil, but "A.O. Smith did not manufacture or sell oil-fired boilers." (Compare Id. at 266:13-15 with Ex. C at ¶ 7) Further, Mr. Harding believes his exposure to asbestos from A.O. Smith boilers is narrowly rooted in his exposure to the flue compound. (Id. at 267:4-7) However, A.O. Smith "did not design, manufacture, sell, supply, specify, require, recommend, suggest, or approve the use of asbestos compound with its residential packaged boilers as described by Mr. Harding." (Id., Ex. C at ¶ 10) Mr. Harding believes he was exposed to asbestos by using a flue mud compound when installing A.O. Smith boilers, but he was unable to identify the manufacturer of this compound and has no basis for believing that the compound contained asbestos. (Id., Ex. B at 248:5-13, 266:20-24)

         b. Air & Liquid Systems Corp.

         Mr. Harding did not identify any Air & Liquid products or exposure to any asbestos-containing Buffalo products, and he could not name any manufacturers of the pumps around which he worked. (D.I. 171, Ex. A at 90:6-17) Mr. Harding recounted how he worked around pumps while serving in the Navy aboard the USS Valley Forge. (Id. at 89:5-9; 91:11-92:24) However, he admitted he did not work on the pumps themselves, but instead on the valves that "led in and out of the pumps." (Id. at 89:17-19, 108:7-14)

         c. Burnham LLC

         Burnham manufactured a variety of boilers - some of which contained asbestos-containing components, and others which did not contain asbestos-containing components. (D.I. 158, Ex. G at 4) Mr. Harding identified Burnham as one of several manufacturers of residential and sectional boilers on which he worked. (Id., Ex. A at 81:19-22, 100:17-23) However, he could not recall either installing or removing a Burnham sectional boiler. (Id. at 85:18-21; Ex. B at 280:19-281:8) Mr. Harding testified that he removed two or three Burnham packaged boilers on one occasion during his career. (Id., Ex. B at 281:9-19) He believes he was exposed to asbestos through the flue connection compound associated to the removal of Burnham packaged boilers. (Id. at 282:10-14) Mr. Harding could not recall if the "mud" compound to which he was exposed while removing the Burnham package boilers was original to the boiler. (Id. at 282:15-25)

         d. Crosby Valve LLC

         Mr. Harding did not identify any asbestos-containing Crosby products or exposure to any Crosby products. (D.I. 147 at 5-6)

         e. DAP Products, Inc.

         Mr. Harding identified DAP as a manufacturer of caulk he used as a plumber both before and after his service in the Navy, but could not identify any specific asbestos-containing DAP product that was used. (D.I. 146, Ex. A at 151:2-4, 151:18-21) Mr. Harding testified that he has no knowledge that the DAP caulk he used contained any asbestos. (Id., Ex. B at 273:2-5, 273:23-25) Mr. Harding believes that his exposure to asbestos in the course of working with DAP's caulk is rooted in the dust produced when he scraped off dried caulk on his hands. (Id. at 272:8-11) Mr. Harding described how the caulk was originally a wet product that would dry into a rubbery consistency. (Id. at 271:1-19; 272:8-23) Mr. Harding testified that if a thin coat of caulk dried on his hands, it was not particularly rubbery and he could scrape it off with his nail. (Id. at 272:17-19) He agreed that there was a small amount of dust that was produced, if at all, when he scraped off the caulk from his hands. (Id. at 272:20-23)

         f. Dominion Nuclear Connecticut, Inc.

         Mr. Harding did not identify an asbestos-containing Dominion product or exposure to any Dominion products. (D.I. 165 at 2) Dominion owns Millstone, where Mr. Harding worked as a union pipefitter on two occasions in the late 1970s. (D.I. 165 at 2; Ex. A at ¶¶ 3-4; Ex. C at 134:12-135:1) No. premises liability causes of action have been made in the complaint, so no cause of action is alleged.

         g. ...


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