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 defendant Nosroc Corp.
("Nosroc"). (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.
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,  and 1446. Nosroc filed its motion for
summary judgment on October 10, 2018. (D.I. 99) Plaintiff did
not respond to this motion.
Mr. Rogers' alleged exposure history
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)
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.
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.
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)
1967, Mr. Rogers was then stationed at the USS Cony,
a DD-508 Fletcher-class destroyer, in
Philadelphia. (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)
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, ...