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 is a motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56 filed by Marley-Wylain Company
"defendant"). (D.I. 168) For the following reasons, I
recommend that defendant's motion for summary judgment
should be DENIED-IN-PART and GRANTED-IN-PART.
January 25, 2017, plaintiffs Michael R. Harding ("Mr.
Harding") and his wife, Sally Harding (collectively,
"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,
1446. (D.I. 1) On April 26, 2018, Marley-Wylain filed its
pending motion for summary judgment. (D.I. 168)
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) He
served as a pipefitter in the Navy from 1963 to 1967.
(Id.) Following his service, he settled in Stamford,
Connecticut and worked as an apprentice for Chuck Fratoroli
from 1968 to 1970. (Id.) He then worked for Verses
Brothers as an apprentice and journeyman from 1970 to 1973.
(Id.) Mr. Harding also worked for Boyd & Swift.
(Id.) Finally, he worked for WR Johnson from
approximately 1973 to 1993. (Id.)
Harding testified that during his career, he installed and
removed sectional boilers and package boilers, but did not
perform maintenance on these boilers. (D.I. 181, Ex. A at
82:5-6; Ex. B at 250:6-12) He noted that he installed
approximately six to eight sectional boilers when he started
his career, and they were phased out over the years.
(Id., Ex. A at 85:13-17) Approximately half of the
sectional boilers he installed were manufactured by
Weil-McLain. (Id. at 87:20-25) Mr. Harding was able
to identify these boilers as such because each had a
Weil-McLain nameplate and were a signature blue-gray color.
(Id., Ex. B at 252:7-21) He described that when
installing a sectional boiler, he worked with push nipples,
rods, and asbestos rope. (Id., Ex. A at 82:17-18)
These materials all came packaged together. (Mat 83:2-5) Mr.
Harding did not know the manufacturer or supplier of the
rope, but knew that it came with the boiler. (Id.,
Ex. B at 246:5-9) To install these sectional boilers, Mr.
Harding lined up all the sections and pulled them all
together with the rope. (Id., Ex. A at 82:18-21)
After this process, he would seal the sections together with
a compound paste. (Id. at 83:18-19) He would mix the
compound powder with water before spreading it on the seams
with a trowel or by hand. (Id. at 83:20-83:25;
84:9-12) Mr. Harding did not recall the manufacturer of the
compound. (Id., Ex. B at 247:22-24) Mr. Harding
testified that both handling the rope and mixing the mud
compound created dust that he inhaled, and contends that
these activities are the only ways he was exposed to asbestos
from his work installing Weil-McLain boilers. (Id.,
Ex. A at 87:12-19; Ex. B at 249:23-250:2)
Harding also recounted how he removed sectional boilers and
how the cleanup process was very dusty. (Id., Ex. A
at 96:2-6) He stated that he inhaled the resulting dust and
his clothes became dusty. (Id. at 96:7-20) Mr.
Harding estimated that he removed approximately five
sectional boilers per year for at least twenty years.
(Id. at 96:21-24) He noted that Weil-McLain
manufactured at least fifty percent of the sectional boilers
he removed. (Id. at 97:15-20; Ex. B at 251:1-11) Mr.
Harding also stated that he removed both commercial and
residential Weil-McLain boilers, though seventy percent of
those were commercial boilers. (Id., Ex. B at
251:15-22) While he did not know who supplied or installed
the boilers he removed, he opined that the rope he came into
contact with upon removal was the same rope from the
boiler's installation. (Id. at 255:3-9) He
believed that it was the original rope because "once a
sectional boiler is installed, you don't take it apart
unless you're dismantling it completely. You don't
repair those ropes." (Id. at 255:13-15) Mr.
Harding testified that his handling of and proximity to the
rope and compound are the only ways he could be exposed to
asbestos from the removal of Weil-McLain boilers.
(Id. at 256:6-10)