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In re Asbestos Litigation

United States District Court, D. Delaware

May 13, 2019

IN RE ASBESTOS LITIGATION
v.
AIR & LIQUID SYSTEMS CORPORATION et al., Defendants. RICHARD WAYNE ROGERS Plaintiff,

          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 defendant Nosroc Corp. ("Nosroc").[1] (D.I. 99) Plaintiff, Richard Wayne Rogers ("Mr. Rogers"), did not respond to this motion. For the following reasons, I recommend GRANTING defendant's motion for summary judgment.[2]

         II. BACKGROUND

         a. Procedural History

         On September 18, 2017, plaintiff Richard Wayne Rogers ("Mr. Rogers") originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr. Rogers' alleged harmful exposure to asbestos. (D.I. 1, Ex. A) On November 2, 2017, the case was removed to this court by defendant Foster Wheeler LLC ("Foster Wheeler") pursuant to 28 U.S.C. §§ 1442(a)(1), the federal officer removal statute, [3] and 1446. Nosroc filed its motion for summary judgment on October 10, 2018. (D.I. 99) Plaintiff did not respond to this motion.

         b. Facts

         i. Mr. Rogers' alleged exposure history

         Plaintiff alleges that he developed mesothelioma as a result of exposure to asbestos-containing materials during his career at the DuPont Seaford plant ("DuPont") and his service as a machinist mate in the United States Navy. (D.I. 44 at ¶¶ 4-10) Plaintiff contends that he was injured due to exposure to asbestos-containing products that defendants mixed, mined, manufactured, distributed, and sold. (Id. at ¶ 11) Accordingly, plaintiff asserts claims for negligence, punitive damages, strict liability, and conspiracy. (Id. at ¶¶ 15-47)

         Mr. Rogers was deposed on April 11 and 24, 2018. (D.I. 48; D.I. 49) Plaintiff did not produce any other fact or product identification witnesses for deposition.

         Mr. Rogers started working in housekeeping at DuPont in July 1966, following his high school graduation. (D.I. 100, Ex. A at 28:4-16, 64:2-22; Ex. B at 17:4-15) He worked at DuPont for three months. (D.I. 100, Ex. A at 28:8-11, 64:19-22) While working in housekeeping, Mr. Rogers swept the warehouse floor in the staple area. (Id. at 64:15-18, 66:9-17; Ex. B at 16:16-19) He used a sweeping compound while sweeping. (D.I. 100, Ex. B at 17:21-23) The sweeping compound was stored in containers throughout the plant. (Id. at 17:24-18:5)

         In September 1966, Mr. Rogers started boot camp in the Great Lakes. (Id. at 21:6-20) He was in boot camp for three months and was then assigned to the USS Moale, a DD-693 World War II Fletcher-class destroyer, in Newport, Rhode Island. (Id. at 21:13-23:3; D.I. 44 at ¶ 10) He entered as a fireman and became a machinist mate on the USS Moale. (D.I. 100, Ex. B at 21:21-25, 23:12-19) As a machinist mate, he worked in engine rooms performing maintenance on pumps, condensers, and evaporators. (Id. at 23:16-19, 24:6-17) Mr. Rogers described how every pipe or steam line is wrapped with asbestos. (Id. at 25:1-5) He described how he wet a material, made a paste, and packed the paste around the steam line. (Id. at 25:7-15)

         In 1967, Mr. Rogers was then stationed at the USS Cony, a DD-508 Fletcher-class destroyer, in Philadelphia.[4] (D.I. 44 at ¶ 10) He performed pump maintenance on the USS Cony for a few months before being transferred to the USS Steinaker, a DD-863 Fletcher-class destroyer in Norfolk, Virginia. (D.I. 100, Ex. B at 30:8-10, 30:22-31:16, 33:13-24; D.I. 44 at¶ 10) Mr. Rogers performed pump maintenance on the USS Steinaker. (D.I. 100, Ex. B at 34:4-35:22) He continued to serve on the USS Steinaker until his honorable discharge from the Navy in 1970. (Id. at 39:10-22; Ex. A at 67:10-14)

         In December 1970, Mr. Rogers returned to DuPont, and performed the same housekeeping duties that he had undertaken prior to his naval service. (D.I. 100, Ex. B at 42:5-25) Later, he worked on bale scales at DuPont, shipping and labelling bales of nylon. (Id. at 43:1-11) Thereafter, he worked on draw machines and boxed nylon. (Id. at 43:25-44:13) He left DuPont in 1973 to work in general construction with his father. (Id. at 47:14-25; D.I. 44 at ¶ 10) Mr. Rogers assumed control of the construction business from his father in 1976 and renamed it "Richard Wayne Rogers Builder." (D.I. 100, Ex. B at 49:5-50:8) He associates the three-tab shingles he used in this construction work with asbestos, but could not remember the name of any shingle manufacturers. (Id. at 50:14-51:9, ...


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