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In re Asbestos Litigation

United States District Court, D. Delaware

May 14, 2019

IN RE ASBESTOS LITIGATION
v.
AIR & LIQUID SYSTEMS CORPORATION et al., Defendants. GLENDA GUSTAVSON, Individually and as Successor in Interest to the Estate of CARL D. GUSTAVSON, deceased, Plaintiff,

          REPORT AND RECOMMENDATION

          Sherry R. Fallon United States Magistrate Judge.

         I. INTRODUCTION

         Presently before the court in this asbestos-related wrongful death action are the motions for summary judgment of Air & Liquid Systems Corporation ("Air & Liquid")[1] (D.I. 130), Aurora Pump Company ("Aurora") (D.I. 124), Blackmer Pump Company ("Blackmer") (D.I. 116), BW/IP Inc. ("BW/IP")[2] (D.I. 126), CBS Corporation ("CBS")[3] (D.I. 119), Eaton Corporation ("Eaton")[4] (D.I. 122), Flowserve U.S., Inc. ("Flowserve")[5] (D.I. 113), FMC Corporation ("FMC")[6] (D.I. 114), Gardner Denver, Inc. ("Gardner Denver") (D.I. 120), Warren Pumps, LLC ("Warren") (D.I. 132), and Anchor/Darling Valve Company ("Anchor Darling") (D.I. 128) (collectively, "defendants"). Plaintiff, Glenda Gustavson ("Mrs. Gustavson" or "plaintiff), did not respond to these motions. As indicated in the chart infra and for the reasons that follow, the court recommends GRANTING Eaton's motion for summary judgment (D.I. 122) without prejudice and recommends GRANTING the remaining defendants' motions for summary judgment with prejudice.[7]

Defendant

Motion for Summary Judgment

Air & Liquid Systems Corporation

GRANT

Aurora Pump Company

GRANT

Blackmer Pump Company

GRANT

BW/IP Inc.

GRANT

CBS Corporation

GRANT

Eaton Corporation

GRANT WITHOUT PREJUDICE

Flowserve U.S., Inc.

GRANT

FMC Corporation

GRANT

Gardner Denver, Inc.

GRANT

Warren Pumps, LLC

GRANT

Anchor/Darling Valve Company

GRANT

         II. BACKGROUND

         a. Procedural History

         On August 16, 2017, plaintiff originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from Carl D. Gustavson's ("Mr. Gustavson" or "decedent") alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On October 18, 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, [8] and 1446. (D.I. 1) Air & Liquid, Aurora, Blackmer, BW/IP, CBS, Eaton, Flowserve, FMC, Gardner Denver, Warren, and Anchor Darling filed motions for summary judgment, individually. (D.I. 130; D.I. 124; D.I. 116; D.I. 126; D.I. 119; D.I. 122; D.I. 113; D.I. 114; D.I. 120; D.I. 132; D.I. 128) Plaintiff did not respond to these motions.[9]

         b. Facts

         i. Mr. Gustavson's alleged exposure history

         Plaintiff alleges that Mr. Gustavson developed lung cancer as a result of exposure to asbestos-containing materials during his service as a boiler technician in the United States Navy.[10] (D.I. 1, Ex. 1 at ¶¶ 3-4, 13) Mr. Gustavson passed away on September 12, 2016. (Id. at ¶ 13) Plaintiff contends that Mr. Gustavson was injured due to exposure to asbestos-containing products that defendants manufactured, sold, distributed, or installed. (Id. at ¶ 9) Accordingly, plaintiff asserts claims individually, and as the personal representative of decedent's estate, for negligence, willful and wanton conduct, strict liability, and wrongful death. (Id. at ¶¶ 15-35)

         Mr. Gustavson died prior to the commencement of this action, and was not deposed. (Id. at ¶ 13) Mr. John Kenneth Poggenburg ("Mr. Poggenburg") is the sole product identification witness in this case and his depositions occurred on February 22, 2018 and June 26, 2018. (D.I. 45; D.I. 74)

         Mr. Gustavson enlisted in the Navy on June 29, 1954, and served aboard the USS Shangri-La and the USS Edmonds. (D.I. 121 at 2; Ex. B) He was honorably discharged from active duty on the USS Shangri-La on July 16, 1958. (D.I. 121 at 2; Ex. B) He was recalled to active duty on October 1, 1961 to serve on the USS Edmonds and was discharged from active duty again on August 1, 1962. (D.I. 121 at 2; Ex. B)

         Mr. Poggenburg served on the USS Edmonds with Mr. Gustavson from October 1961 to July 1962. (D.I. 131, Ex. A at 15:9-16) Mr. Poggenburg served as the chief engineer aboard the USS Edmonds and admitted that in this role, he did not observe Mr. Gustavson's daily operations and duties. (Id. at 27:9-13, 34:4-11) Mr. Poggenburg did not serve on any other ships with Mr. Gustavson, and testified that he does not know what Mr. Gustavson's duties were while serving aboard the USS Shangri-La. (Id. at 15:13-23, 30:10-18, 41:22-25, 43:1-3, 72:11-21, 86:20-25)

         Mr. Poggenburg testified that Mr. Gustavson started as a boiler tech on the USS Edmonds but left as the "oil king." (Id. at 21:14-17, 42:3-5) As the only "oil king" aboard the USS Edmonds, it was Mr. Gustavson's primary responsibility to measure the depth of fuel in all fuel tanks and move oil from tank to tank in order to maintain the proper stability of the ship. (Id. at 21:14-24, 45:3-18) Mr. Poggenburg testified that, in addition to his duties as "oil king," Mr. Gustavson would have been assigned to traditional boiler tech duties, such as standing watch at the boilers, performing routine maintenance of the steam lines and valves, and insulating steam lines. (Id. at 23:15-20, 24:7-12, 43:12-16) Mr. Poggenburg further testified that he did not know whether Mr. Gustavson was previously trained in maintaining ship equilibrium via oil tanks, or trained specifically on the USS Edmonds. (Id. at 63:22-64:18) Mr. Poggenburg did not have any personal knowledge that Mr. Gustavson worked on any equipment in the engine room. (Id. at 39:16-40:4)

         Mr. Poggenburg could not recall the manufacturer of steam line insulation, asbestos wrap, pumps, pump packing, gaskets, evaporators, or fire bricks surrounding the boilers. (Id. at 24:20-25:16, 25:24-26:2, 26:13-27:16, 28:4-10, 29:9-17, 37:18-21) He identified Wilcox as a boiler manufacturer, Worthington as a pump manufacturer, and DeLaval as a steam valve manufacturer, but noted that he generally remembered these names and could not specifically place any equipment from these manufacturers on the USS Edmonds. (Id. at 25:17-23, 29:22-30:22, 34:20-35:7, 38:8-11) Mr. Poggenburg stated that he did not know the maintenance history or manufacturer name of any equipment aboard the USS Edmonds apart from his general recollection of Wilcox, Wurthington, and DeLaval. (Id. at 26:3-12, 29:18-30:9) Furthermore, he testified that he could not identify any manufacturer of equipment undergoing any maintenance in an area where that he saw Mr. Gustavson was present while aboard the USS Edmonds. (Id. at 40:5-11)

         ii. Plaintiffs product identification evidence

         Mr. Poggenburg is the sole product identification witness in this case and his depositions occurred on February 22, 2018 and June 26, 2018. (D.I. 45; D.I. 74)

         1. Air & Liquid Systems Corporation

         Mr. Poggenburg indicated that he would have no reason to dispute plaintiffs counsel's representation that Buffalo pumps were aboard the USS Shangri-La. (D.I. 131, Ex. A at 62:6-10) However, Mr. Poggenburg was not assigned to the USS Shangri-La at any time when Mr. Gustavson served on board the ship. (Id. at 15:9-16, 72:11-21) He did not otherwise identify any asbestos-containing Buffalo pumps on the USS Edmonds or observe whether the decedent was exposed to any Buffalo pumps. (D.I. 131 at 4-5)

         2. Aurora Pump Company

         Mr. Poggenburg did not identify any asbestos-containing Aurora products on board the USS Edmonds or observe whether the decedent was exposed to any Aurora product. (D.I. 125 at 5)

         3. Blackmer Pump Company

         Mr. Poggenburg did not identify any asbestos-containing Blackmer products on board the USS Edmonds or observe whether the decedent was exposed to any Blackmer product. (D.I. 118 at 4)

         4. BW/IPInc.

         Mr. Poggenburg did not identify any asbestos-containing BW/IP products on board the USS Edmonds or observe whether the decedent was exposed to any BW/IP product. (D.I. 127 at 2, 5)

         5. CBS Corporation

         Mr. Poggenburg did not identify any asbestos-containing Westinghouse products on board the USS Edmonds or observe whether the decedent was exposed ...


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