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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 is a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by Marley-Wylain Company ("Marley-Wylain" or "defendant").[1] (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.[2]

         II. BACKGROUND

         A. Procedural History

         On 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, [3] and 1446. (D.I. 1) On April 26, 2018, Marley-Wylain filed its pending motion for summary judgment. (D.I. 168)

         B. Facts

         Plaintiffs 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.[4] (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.

         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) 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.)

         Mr. 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)

         Mr. 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)

         III. LEGAL STANDARD

         A. ...


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