United States District Court, D. Delaware
WILLIAM J. JOHANSEN Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION et al Defendants.
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 fourteen
defendants, Air & Liquid Systems
("Air & Liquid") (D.I. 161), Anchor/Darling
Valve Company ("Anchor Darling") (D.I. 151), Atwood
& Morrill Co. ("Atwood") (D.I. 165), Armstrong
International, Inc. ("Armstrong") (D.I. 138),
Crosby Valve LLC ("Crosby") (D.I. 143), Flowserve
("Flowserve") (D.I. 154), FMC
("FMC") (D.I. 149), Gardner Denver, Inc.
("Gardner Denver") (D.I. 141), Jenkins contained
asbestos. (Id. at 60:8-21) In total, Mr. Johansen
worked on approximately twelve valves at Cubi Point, but
cannot recall where they were located within the liquid
oxygen plant or the specific manufacturers of the valves he
encountered there. (Id. at 61:13-20, 62:7-23) Mr.
Johansen also cannot recall the frequency with which he
repaired valves nor could he describe identifying features of
the pumps. (Id., Ex. B at 74:2-12, 80:20-25) He left
the Cubi Point liquid oxygen plant in December 1964.
(Id. at 83:1 -3)
his work at Cubi Point, Mr. Johansen then served as a
machinist mate aboard the USS Valley Forge, a
helicopter carrier. (Id., Ex. A at 65:9-20) His
duties aboard the USS Valley Forge were similar to
those at Cubi Point - operating and repairing hydraulic pumps
and evaporators. (Id. at 66:4-17) Mr. Johansen does
not believe his work with hydraulic pumps contributed to his
asbestos exposure, but believes he was exposed to asbestos
when he worked on evaporators. (Id. at 68:15-25)
When working on evaporators, Mr. Johansen would "remove
a lot of insulation to get to the flanges to remove the ...
pipes out of the evaporator." (Id. at 69:1-8)
After removing this insulation, Mr. Johansen would conduct
the same gasket replacement and packing removal process that
he practiced at Cubi Point, and, thus, believes he was
similarly exposed to asbestos. (Id. at 74:9-75:4,
75:25-76:8, 77:4-20) Furthermore, he testified that he had to
occasionally change steam traps by unbolting them, removing
the insulation, and installing new steam traps. (D.I. 139,
Ex. B at 114:23-116:8) Mr. Johansen could not recall how many
valves he had worked on while serving on the USS Valley
Forge, how many valves were aboard the ship, or the
specific manufacturers of valves aboard the USS Valley
Forge. (D.I. 155, Ex. A at 77:21-78:2, 83:14-21,
his honorable discharge in 1966, Mr. Johansen worked in a
pulp mill in Alaska for approximately nine months before
working as a deck hand for tugboats. (Id. at
100:25-101:22, 103:1-16) He later started work at Todd
Shipyard as a journeyman pipefitter, installing piping
systems on ships and repairing piping and valves.
(Id. at 103:19-104:20) This work mirrored the same
processes of removing insulation, replacing gaskets, and
replacing packing that he conducted while serving in the
Navy. (Id. at 107:6-108:15) Mr. Johansen believes
this exposure to the insulation, gaskets, and packing
constituted exposure to asbestos. (Id. at 109:8-13)
Mr. Johansen also expanded his responsibilities at Todd
Shipyard to installing piping systems and valves.
(Id. at 112:11-19) While he did not personally
install the insulation on the pipes, Mr. Johansen was
occasionally present when individuals mixed a powdered
material before applying the mixture to the pipes
(Id. at 113:1-6, 114:3-13) Mr. Johansen believes
that this material contained asbestos and he was therefore
exposed when he helped install piping systems. (Id.
at 114:10-16) Mr. Johansen could not identify how many times
he removed or installed new packing, the brand name or
manufacturer of the packing he removed, or the brand name or
manufacturer of the piping he installed. (Id., Ex. B
working at Todd Shipyard, Mr. Johansen worked on a tugboat in
Everrett, Washington for about seven months. (Id.,
Ex. A at 117:14-25) He then worked as a journeyman pipefitter
at Lockheed Shipyard for approximately three or four months.
(Id. at 118:8-21) At Lockheed Shipyard, Mr. Johansen
installed new piping on Navy ships. (Id. at
119:8-14) Again, Mr. Johansen did not install the insulation,
but was present when others did, and the same powdered
material and mixture were used. (Id. at
119:18-120:7) Mr. Johansen also could not recall a specific
brand or manufacturer of the pumps, valves, gaskets, or
packing that he worked with while working at Lockheed
Shipyard. (Id., Ex. B at 142:20-143:8)
Johansen was diagnosed with mesothelioma in December 2016.
(D.I. 157, Ex. B at 145:8-11)
Plaintiffs product identification evidence
is the sole product identification witness in this case and
his deposition occurred on March 14 and 15, 2017. (D.I. 135)
A supplemental deposition occurred on July 11, 2018.
Air & Liquid System Corporation
Johansen identified Buffalo Pumps as one of several
manufacturers of pumps he encountered during his career, both
during his service in the Navy and in his subsequent
employment. (D.I. 162, Ex. A at 95:3-17) Mr. Johansen was
unable to identify specifically which employer or in which
locations he encountered Buffalo pumps. (Id., Ex. B
at 221:2-12) He also could not speak to the maintenance
history of the pumps. (Id. at 208:10-18) Finally,
Mr. Johansen could not recall a specific operating
temperature for any pumps, the size of any specific brand of
pump, or the orientation (horizontal or vertical) of any
pumps. (Id. at 218:10-219:6)
Anchor/Darling Valve Company
Johansen did not identify any asbestos-containing Anchor
Darling products or exposure to any Anchor Darling products.
(D.I. 152 at 1-2, 4)
Atwood & Morrill Co.
Johansen named Weir in his original deposition as one of
several manufacturers of valves he encountered. (D.I. 166,
Ex. B at 63:4-9, 84:13-85:6) Mr. Johansen was unable to place
Weir valves at a specific jobsite or with a specific
employer. (Id. at Ex. E at 10:20-23) He could not
provide model numbers or serial numbers for Weir valves.
(Id. at 10:24-11:5) Mr. Johansen also could not
describe the color, material, dimensions, weight, type,
maintenance history, or age of Weir valves. (Id. at
11:6-24, 12:16-23) He was also unable to provide information
as to whether he worked with Weir valves more than valves
made by other manufacturers. (Id., Ex. D at
191:6-10) Finally, Mr. Johansen could not recall the
substance that flowed through Weir valves or what work he
specifically did on these valves. (Id., Ex. E at
Johansen testified regarding Atwood valves separately at his
supplemental deposition. He was unable to recount the
frequency with which he was exposed to Atwood valves or where
he had seen Atwood valves. (Id. at 22:18-22,
28:21-25). Mr. Johansen could not describe the color,
dimensions, maintenance history, type, or age of Atwood
valves. (Id. at 29:1-14, 32:8-14) Finally, Mr.
Johansen could not remember what substance flowed through
Atwood valves. (Id. at 32:5-7)
Armstrong International, Inc.
Johansen indicated that he changed steam traps while serving
aboard the USS Valley Forge, and noted that he
replaced them approximately two or three times. (D.I. 139,
Ex. B at 191:22-25) He named Armstrong as the manufacturer of
the steam traps on which he performed the work he described.
(Id. at 117:9-12) Mr. Johansen recalled that steam
traps came in various sizes, but was unable to describe the
different types of steam traps. (Id. at
Crosby Valve LLC
Johansen identified Crosby as one of several manufacturers of
valves he encountered during his career. (D.I. 144, Ex. B at
63:4-9, 83:24-85:6) However, he could not recount the
maintenance history of those valves. (Id., Ex. A at
195:7-10) Mr. Johansen could not provide details specific to
Crosby valves, such as whether they were spring-loaded or had
open-body valves. (Id. at 194:2-9) Rather, he noted
that "the name was familiar." (Id. at
Flowserve U.S., Inc.
Johansen named Vogt among several manufacturers who made
valves that he had encountered throughout his career. (D.I.
155, Ex. A at 63:4-9, 83:24-85:6) However, he was unable to
provide details as to where and when he worked with Vogt
valves. (Id., Ex. C at 227:10-15) Additionally, Mr.
Johansen could not recall the maintenance history, age, size,
type, or application of Vogt valves. (Id. at
227:25-228:15) He did not know the brand name or manufacturer
of any of the gasket or packing material that he may have
used in connection with a Vogt valve. (Id. at
Johansen recalled Chicago Pumps, along with several other
manufacturers who made pumps that he encountered during his
career. (D.I. 150, Ex. B at 79:4-12) He was unable to
identify where he encountered a Chicago pump, describe what a
Chicago pump looked like, recount the application of Chicago
pumps, or recall specific work he performed on Chicago pumps.
(Id., Ex. C at 222:23-223:22) Additionally, Mr.
Johansen was unable to testify as to whether Chicago pumps
had flanges and could not recall how many times he
encountered a Chicago pump. (Id. at 224:7-16)
Instead, he testified that he could not "recall it
specifically being a Chicago pump ... just pumps in
general." (Id. at 223:10-22)
Gardner Denver, Inc.
Johansen identified Gardner Denver as one of several
manufacturers of pumps he encountered. (D.I. 142, Ex. A at
95:3-17) He could not, however, identify where he encountered
a Gardner Denver pump, what substance flowed through a
Gardner Denver pump, or what work he did on a Gardner Denver
pump. (Id., Ex. B at 225:2-5, 225:11-14, 226:3-7)
Mr. Johansen could not recount the number, maintenance
history, type, model number, serial number, size, or color of
Gardner Denver pumps to which he was exposed. (Id.
at 225:6-10, 225:15-226:2, 226:8-11)
Bros, was named as a valve manufacturer that Mr. Johansen
encountered during his career. (D.I. 164, Ex. A at
62:16-63:13) Mr. Johansen could not describe the shape, size,
model numbers, or substance that flowed through any
manufacturer's valve. (Id., Ex. B at 170:2-23)
Additionally, he admitted that there was nothing that he
could recall that distinguished . Jenkins valves from other
valves to which he was exposed. (Id. at
Kunkle Industries, Inc.
Johansen identified Kunkle among several valve manufacturers
he generally recalled during his career. (D.I. 148, Ex. B at
62:16-63:13) However, he could not recall any specific
information regarding the size, shape, or location of any
Kunkle valves he encountered. (Id., Ex. A at
Nash Engineering Holdings LLC
was one of several pump manufacturers that Mr. Johansen
testified he was exposed to during his career. (D.I. 168, Ex.
A at 95:3-17) In his most recent deposition, Mr. Johansen was
unable to describe where he had encountered a Nash pump.
(Id., Ex. D at 15:7-9) He could not recall a model
number, serial number, color, material, dimensions, weight,
type, age, or maintenance history of a Nash pump.
(Id. at 15:10-16:4, 16:13-19) Mr. Johansen could not
state what substance flowed through a Nash pump or
characteristics identifying a Nash pump. (Id. at
16:5-12) Finally, Mr. Johansen could not remember what work
he had specifically performed on Nash pumps. (Id. at
Johansen identified Neles-Jamesbury as a manufacturer of
valves he encountered. (D.I. 157, Ex. C at 78:2-79:7) Mr.
Johansen could not recall a specific workplace where he
encountered valves manufactured by Neles-Jamesbury nor did he
have a specific recollection of working on a Neles-Jamesbury
valve. (Id., Ex. D at 252:15-19, 255:10-16) He could
not describe the material, size, or color of Neles-Jamesbury
valves. (Id. at 253:14-23) Mr. Johansen could not
specifically recall any distinguishing features of a
Neles-Jamesbury valve. (Id. ...