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 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"),  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
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. 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)
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. 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
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)
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
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)
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)
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
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.
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.
Maritime Law: Product Identification/Causation
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 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) (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).
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." 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).
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)).
courts have not followed the "frequency, proximity, and
regularity" test,  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 ...