United States District Court, D. Delaware
T. Crumplar, Jacobs & Crumplar, P.A., Wilmington, DE -
Attorneys for Plaintiff
Willard F. Preston, III, Bernadette M. Plaza, Goldfein &
Joseph, Wilmington, DE - Attorneys for Defendant Asbestos
C. Malatesta, Kent & McBride, P.C., Wilmington, DE -
Attorneys for Defendant Charles A. Wagner Co., Inc.
NOREIKA, U.S. DISTRICT JUDGE
15, 2019, Magistrate Judge Fallon issued a Report and
Recommendation (“the Report”) (D.I. 143) granting
five motions for summary judgment filed by defendants in this
litigation. (D.I. 91; D.I. 93; D.I. 101; D.I. 103; D.I. 106).
Presently before the Court are the objections of Plaintiff
Richard Wayne Rogers (“Plaintiff or
“Rogers”) (D.I. 146, D.I. 147) to two of Judge
Fallon's recommendations in the Report - the recommended
grants of summary judgment to Asbestos Corporation Limited
(“ACL”) and to Charles A. Wagner Company
“Defendants”). The Court has reviewed the Report
(D.I. 143), Plaintiffs objections (D.I. 146; D.I. 147), and
the Defendants responses thereto (D.I. 154; D.I. 155). The
Court has also considered de novo the objected-to
portions of the Report and the relevant portions of
Defendants' motions for summary judgment (D.I. 93, D.I.
94, D.I. 101, D.I. 102), and Plaintiffs responses to the
motions (see D.I. 119; D.I. 121). For the reasons
set forth below, Plaintiffs objections are OVERRULED, the
Report is ADOPTED, and Defendants' motions for summary
judgment are GRANTED.
Report correctly set out the procedural history of this case.
(D.I. 143 at 1-2). Plaintiff filed this action on September
18, 2017 against multiple defendants in the Superior Court of
Delaware, asserting claims based on alleged harmful exposure
to asbestos. (D.I. 1, Ex. A). Plaintiff sued Defendants
“for asbestos exposure while working at the Dupont
Seaford Facility in the 1960s and 1970s, ” as well as
other defendants for “exposure to asbestos while
serving in the United States Navy from 1966 to 1970.”
(D.I. 146 at 1). The case was removed to this Court on
November 2, 2017 by defendant Foster Wheeler LLC. Thereafter,
the case was referred to Judge Fallon. Discovery ended on
September 10, 2018. (D.I. 29). Summary judgment motions were
filed on October 10, 2018. (D.I. 93, D.I. 101).
Report sets forth the facts underlying the motions. There is
no dispute as to these facts, and the Court adopts them as
follows in their entirety (D.I. 143 at 2-5):
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 has
asserted claims for negligence, punitive damages, strict
liability, and conspiracy. (Id. at ¶¶
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
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.1. 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. ...