United States District Court, D. Delaware
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 A.O. Smith
Corp. ("A.O. Smith") (D.I. 166), Air & Liquid
Systems Corporation ("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.
Motion for Summary Judgement
A.O. Smith Corporation
Air & Liquid Systems Corp.
Crosby Valve LLC
DAP Products, Inc.
Dominion Nuclear Connecticut, Inc.
Foster Wheeler LLC
Gardner Denver, Inc.
Rheem Manufacturing Company
Spirax Sarco, Inc.
Superior Boiler Works, Inc.
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,
 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
Mr. Harding's alleged exposure history
allege that Mr. Harding developed lung cancer as a result of
exposure to asbestos-containing materials during his service
as a pipefitter 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
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.
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,
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)
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)
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)
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
162, Ex. B at 26)
Plaintiffs' product identification evidence
Harding is the sole product identification witness in this
case and his deposition occurred on August 8 and 9, 2017.
A.O. Smith Corporation
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)
Air & Liquid Systems Corp.
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)
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)
Crosby Valve LLC
Harding did not identify any asbestos-containing Crosby
products or exposure to any Crosby products. (D.I. 147 at
DAP Products, Inc.
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
Dominion Nuclear Connecticut, Inc.
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.