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Johansen v. Air & Liquid Systems Corp.

United States District Court, D. Delaware

January 23, 2019

WILLIAM J. JOHANSEN Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION et al Defendants.

          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 fourteen defendants, Air & Liquid Systems Corporation[1] ("Air & Liquid") (D.I. 161), Anchor/Darling Valve Company ("Anchor Darling") (D.I. 151), Atwood & Morrill Co.[2] ("Atwood") (D.I. 165), Armstrong International, Inc. ("Armstrong") (D.I. 138), Crosby Valve LLC ("Crosby") (D.I. 143), Flowserve U.S., Inc.[3] ("Flowserve") (D.I. 154), FMC Corporation[4] ("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)

         Following 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, 83:24-85:6)

         After 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 at 133:20-134:4)

         After 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)

         Mr. Johansen was diagnosed with mesothelioma in December 2016. (D.I. 157, Ex. B at 145:8-11)

         2. Plaintiffs product identification evidence

         Plaintiff 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. (Id.)

         a. Air & Liquid System Corporation

         Mr. 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)

         b. Anchor/Darling Valve Company

         Mr. Johansen did not identify any asbestos-containing Anchor Darling products or exposure to any Anchor Darling products. (D.I. 152 at 1-2, 4)

         c. Atwood & Morrill Co.

         Mr. 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 11:25-12:5, 12:24-13:7)

         Mr. 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)

         d. Armstrong International, Inc.

         Mr. 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 116:24-117:8)

         e. Crosby Valve LLC

         Mr. 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 194:13-21)

         f. Flowserve U.S., Inc.

         Mr. 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 228:16-229:1)

         g. FMC Corporation

         Mr. 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)

         h. Gardner Denver, Inc.

         Mr. 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)

         i. Jenkins Bros.

         Jenkins 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 256:15-257:1)

         j. Kunkle Industries, Inc.

         Mr. 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 195:16-24)

         k. Nash Engineering Holdings LLC

         Nash 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 16:20-17:1)

         1. Neles-Jamesbury, Inc.

         Mr. 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. ...


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