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In re Asbestos Litigation

United States District Court, D. Delaware

August 7, 2019


          David 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 Corporation Limited

          David C. Malatesta, Kent & McBride, P.C., Wilmington, DE - Attorneys for Defendant Charles A. Wagner Co., Inc.



         On May 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 (“Wagner”) (collectively, “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.

         I. BACKGROUND

         The 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).

         The 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 ¶¶ 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.
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.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. ...

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