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In re Asbestos Litigation

United States District Court, D. Delaware

May 15, 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 are five motions for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by Warren Pumps ("Warren"), General Electric Company ("General Electric"), Air & Liquid Systems Corporation ("Air & Liquid"), [1] Charles A. Wagner Co., Inc. ("Wagner"), and Asbestos Corporation Ltd. ("Asbestos Corp."). (D.I. 106; D.I. 91; D.I. 103; D.I. 101; D.I. 93) For the following reasons, I recommend GRANTING defendants' motions 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. Warren Pumps, General Electric, Air & Liquid, Wagner, and Asbestos Corp. filed motions for summary judgment, individually. (D.I. 106; D.I. 91; D.I. 103; D.I. 101; D.I. 93)

         b. Facts

         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. 102, Ex. A at 177:22-178:8) He worked at DuPont for three months. (Id. at 178:9-24) While working in housekeeping, Mr. Rogers swept the warehouse floor in the staple area. (Id. at 180:4-15, 181:6-9) He used a sweeping compound to keep the dust down while sweeping, and testified that he never noticed any dust created from the sweeping compound. (Id. at 182:14-23, 185:13-15, 198:4-10) He admitted that there was not much dust in the area, and stated that the sweeping compound was used to keep the area clean. (Id. at 184:11-22) The sweeping compound was stored in galvanized containers, but Mr. Rogers does not remember any labels on these containers. (Id. at 183:2-23) He stated that the compound had the consistency of "kitty litter [or] sawdust" and was a pink or purple color. (Id. at 185:2-12) He testified that the color of the sweeping compound did not change while he was working at DuPont, and that he has no reason to believe that the sweeping compound contained asbestos. (Id. at 186:18-25, 189:25-190:3)

         In September 1966, Mr. Rogers started boot camp in the Great Lakes. (Id. at 187:1-9) 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. (D.I. 107, Ex. A at 77:12-23) He entered as a fireman and became a machinist mate on the USS Moale. (Id. at 78:1-3; D.I. 123, Ex. B at 23:12-15) As a fireman, he worked in the engine rooms, performing maintenance on pumps and evaporators, including pump packing and installation of new bearings. (D.I. 107, Ex. A at 78:10-12, 81:14-19, 82:9-12, 91:2-7) When the pumps began to leak, he repacked them by pulling out wet packing and cutting rings of new packing with a knife. (D.I. 123, Ex. A at 161:10-14, 165:2-25, 166:21-167:13) Mr. Rogers would also replace the pipe insulation by tearing off the pipe's covering, wetting insulation, and packing the insulation around the pipes. (D.I. 122, Ex. A at 104:16-22; D.I. 125, Ex. A at 92:1-10, 100:7-15) Mr. Rogers testified that while he did not perform any work on turbines themselves, he maintained pumps that assisted in the functioning of the turbines. (D.I. 107, Ex. A at 88:20-89:25)

         In approximately 1967, Mr. Rogers was stationed at the USS Cony, a DD-508 Fletcher-class destroyer, in Philadelphia. (Id. at 97:9-15, 97:23-25; D.I. 44 at ¶ 10) He performed maintenance on the USS Cony for one month, before performing tasks relating to its decommission. (D.I. 107, Ex. A at 102:1-14) Mr. Rogers testified that no decommissioning tasks, other than contact with the piping, exposed him to asbestos. (Id. at 102:15-18)

         After three months on the USS Cony, Mr. Rogers was stationed at the USS Steinaker, a DD-863 Fletcher-class destroyer. (Id. at 101:5-7, 102:19-103:2; D.I. 44 at¶ 10) He performed maintenance in the engine room similar to the tasks he performed on the USS Moale and USS Cony. (D.I. 107, Ex. A at 104:2-11) The USS Steinaker "ran aground" in Norway, which caused damage to the main control and the underside of the ship. (Id. at 113:2-10; D.I. 125, Ex. B at 38:1-6) The Norwegians towed the USS Steinaker to Bergen, where they repaired the ship over the next five months. (D.I. 125, Ex. B at 38:7-18) He was present during the repair of the USS Steinaker's turbine, but did not participate in its repair. (D.I. 122, Ex. A at 107:3-24; D.I. 125, Ex. B at 38:19-39:8, 71:2-4) Mr. Rogers performed pump maintenance during the USS Steinaker's overhaul. (D.I. 107, Ex. A at 113:11-114:23; D.I. 125, Ex. B at 38:19-39:8, 71:2-4) Mr. Rogers served on the USS Steinaker until his honorable discharge from the Navy in 1970. (D.I. 122, Ex. A at 106:19-22; D.I. 123, Ex. A at 187:15-19)

         In December 1970, Mr. Rogers returned to DuPont and performed housekeeping duties substantially similar to the work he had performed prior to his naval service. (D.I. 102, Ex. A at 188:18-189:1) After approximately one month, he started working as a bale scale operator at DuPont. (Id. at 190:9-14) In this role, he labelled and sent out bales of nylon. (Id. at 190:22-191:13) While he performed this job, other individuals swept the floors with the same sweeping compound he used when he performed housekeeping duties. (Id. at 191:21 -192:15) After one year as a bale scale operator, Mr. Rogers was promoted to a tow packing position in 1972. (Id. at 193:3-9) Mr. Rogers performed his duties in tow packing in the staple area where individuals swept floors with the same sweeping compound he had previously used. (Id. at 193:14-23, 194:14-21) After one year in tow packing, he started working as a spinning machine operator. (Id. at 194:2-13) Although he performed his spinning machine operator duties outside of the staple area, individuals still used the sweeping compound around him. (Id. at 196:10-22, 197:7-20) He worked as a spinning machine operator for a few months before leaving DuPont in 1973. (Id. at 195:3-8, 199:8-10) Mr. Rogers was diagnosed with mesothelioma in 2017. (D.I. 140 at 22:23-23:10)

         III. LEGAL STANDARD

         a. Summary Judgment

         "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

         The moving party bears the initial burden of proving the absence of a genuinely disputed material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). An assertion of whether or not a fact is genuinely disputed must be supported either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). To defeat a motion for summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment;" rather, there must be enough evidence to enable a jury to reasonably find for the non-moving party on the issue. See Anderson, 477 U.S. at 247-49. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (internal citations omitted); see also Celotex, 477 U.S. at 322. If the non-movant fails to make a sufficient showing on an essential element of its case on which it bears the burden of proof, then the movant is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 322.

         If a party fails to address another party's assertion of fact, the court may consider the fact undisputed, or grant summary judgment if the facts show that the movant is entitled to it. Fed.R.Civ.P. 56(e)(2)-(3).

         b. Maritime Law: Product Identification/Causation

          The parties do not dispute that maritime law applies to all Naval and sea-based claims. (D.I. 80) In order to establish causation in an asbestos claim under maritime law, a plaintiff must show, for each defendant, "that (1) he was exposed to the defendant's product, and (2) the product was a substantial factor[4] in causing the injury he suffered." Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005) abrogated on other grounds by Air & Liquid Systems Corp. v. Devries, 139 S.Ct. 986 (2019)[5] (citing Stark v. Armstrong World Indus., Inc., 21 Fed.Appx. 371, 375 (6th Cir. 2001)); Dumas v. ABB Grp., Inc., 2015 WL 5766460, at *8 (D. Del. Sept. 30, 2015), report and recommendation adopted, 2016 WL 310724 (D. Del. Jan. 26, 2016); Mitchell v. Atwood & Morrill Co., 2016 WL 4522172, at *3 (D. Del. Aug. 29, 2016), report and recommendation adopted, 2016 WL 5122668 (D. Del. Sept. 19, 2016); Denbow v. Air & LiquidSys. Corp., 2017 WL 1199732, at *4 (D. Del. Mar. 30, 2017), report and recommendation adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017).

         "In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of the plaintiff or Decedent who experienced the exposure, co-worker testimony, or eye-witness testimony) or circumstantial evidence that will support an inference that there was exposure to the defendant's product for some length of time."[6] Abbay v. Armstrong Int'l, Inc., 2012 WL 975837, at *1 n.1 (E.D. Pa. Feb. 29, 2012) (citing Stark, 21 Fed.Appx. at 376). On the other hand, '"[m]inimal exposure' to a defendant's product is insufficient [to establish causation]. Likewise, a mere showing that defendant's product was present somewhere at plaintiffs place of work is insufficient." Lindstrom, 424 F.3d at 492 (quoting Stark, 21 Fed.Appx. at 376) (internal citation omitted). "Rather, the plaintiff must show 'a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural."' Abbay, 2012 WL 975837, at *1 n.1 (quoting Lindstrom, 424 F.3d at 492). "Total failure to show that the defect caused or contributed to the accident will foreclose as a matter of law a finding of strict product[] liability." Stark, 21 Fed.Appx. at 376 (citations omitted).

         c. Delaware Law

         Under Delaware law, a plaintiff asserting a claim for asbestos-related injuries must introduce evidence showing a product nexus between his exposure to a defendant's product and his asbestos-related injuries. Cain v. Green Tweed & Co., 832 A.2d 737, 741 (Del. 2003) (citing In re Asbestos Litig., 509 A.2d 1116, 1117 (Del. Super. Ct. 1986), aff'd sub nom. Nicolet, Inc. v. Nutt, 525 A.2d 146 (Del. 1987)).

         Delaware courts have not followed the "frequency, proximity, and regularity" test, [7] first set forth in Lohrmann v. Pittsburgh Corning Corp.,782 F.2d 1156 (4th Cir. 1986), which has been adopted as the test in numerous jurisdictions. Happel v. Anchor Packing Co., 2010 WL 7699063, at * 1 (E.D. Pa. Oct. 14, 2010). Delaware courts require a plaintiff show that he was in proximity to the product at the time it was being used. Nutt v. A.C. & S. Co.,517 A.2d 690, 692 (Del. Super Ct. 1986). Plaintiff must show "that the asbestos product was used in an area where the plaintiff frequented, walked by, or worked adjacent to, with the result that fibers emanating from the use of the product would have been present in the area where the plaintiff worked." Cain, 832 A.2d at 741. This standard "requires plaintiff [to] show 'some evidence' of both 'daily and continuous ...


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