United States District Court, D. Delaware
IN RE ASBESTOS LITIGATION KENT E. MOSHER and CATHY MOSHER, Plaintiffs,
ABB, INC., et al, Defendants.
REPORT AND RECOMMENDATION
R. Fallon, United States Magistrate Judge.
before the court in this asbestos-related personal injury
action are the motions for summary judgment of ABB, Inc.
("ABB") (D.I. 120), Aurora Pump Company
("Aurora Pump") (D.I. 106), Crosby Valve LLC
("Crosby Valve") (D.I. 108), FMC Corporation
("FMC")(D.I. 116), Gardner Denver, Inc.
("Gardner Denver") (D.I. Ill), Gould Electronics
Inc. ("Gould Electronics") (D.I. 122), Pfizer, Inc.
("Pfizer") (D.I. 118), Siemens Industry, Inc.
("Siemens")(D.I. 103), Union Carbide Corporation
("Union Carbide") (D.I. 113), and Warren Pumps, LLC
("Warren Pumps") (D.I. 128) (collectively,
"defendants"). Plaintiffs, Kent E. Mosher
("Mr. Mosher") and Cathy Mosher ("Mrs.
Mosher") (collectively, "plaintiffs"), did not
respond to these motions. As indicated in the chart
infra and for the reasons that follow, the court
recommends GRANTING each defendant's motion for summary
Motion For Summary Judgment
Aurora Pump Company
Crosby Valve LLC
Gardner Denver, Inc.
Gould Electronics Inc.
Siemens Industry, Inc.
Union Carbide Corporation
Warren Pumps, LLC
January 25, 2018, plaintiffs originally filed this personal
injury action against multiple defendants in the Superior
Court of Delaware, asserting claims arising from Mr.
Mosher's alleged harmful exposure to asbestos. (D.I. 1,
Ex. 1) On March 16, 2018, 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,
 and 1446.
(D.I. 1) On May 14, 2018, plaintiffs filed an amended
complaint (the "First Amended Complaint"). (D.I.
51) ABB, Aurora Pump, Crosby Valve, FMC, Gardner Denver,
Gould Electronics, Pfizer, Siemens, Union Carbide, and Warren
Pumps filed motions for summary judgment, individually. (D.I.
120; D.I. 106; D.I. 108; D.I. 116; D.I. Ill; D.I. 122; D.I.
118; D.I. 103; D.I. 113; D.I. 128) Plaintiffs did not respond
to these motions.
Mr. Mosher's alleged exposure history
allege that Mr. Mosher developed mesothelioma as a result of
exposure to asbestos-containing materials during his service
as a boiler technician in the United States Navy and his
career at the Henderson Mine in Denver, Colorado. (D.I. 51 at
¶¶ 3, 13) Plaintiffs contend that Mr. Mosher was
injured due to exposure to asbestos-containing products that
defendants manufactured, sold, distributed, or installed.
(Id. at ¶ 9) Accordingly, plaintiffs assert
claims for negligence, strict liability, loss of consortium,
and punitive damages. (Id. at ¶¶ 14-32)
Mosher was deposed on April 17 and 18, 2018. (D.I. 19; D.I.
104 at 2) Plaintiff did not produce any other fact or product
identification witnesses for deposition.
Mosher was in boot camp in San Diego for seven weeks. (D.I.
129, Ex. B at 73:1-6) Following boot camp, Mr. Mosher was
stationed on the USS Truett in Norfolk, Virginia
from 1973 to 1977. (D.I. 129, Ex. A) On the USS
Truett, he worked as a boiler technician, standing watch
and performing maintenance on boilers, pumps, valves, and
strainers. (D.I. 51 at ¶ 3; D.I. 114, Ex. Bat
Mosher removed insulation and gaskets when repairing boilers.
(D.I. 114, Ex. B at 12:13-20, 13:3-19) He described how he
broke open an access panel and seal to perform repairs on the
boilers. (Id. at 12:13-20) Upon opening the boilers,
the gaskets often fell apart and he would scrape the boilers
with a wire brush. (Id. at 13:12-19) He also mixed a
powder with liquid to form a cement-like plaster, which was
subsequently applied to the boilers. (Id. at
14:5-15) Mr. Mosher testified that removing insulation,
removing gaskets, and mixing the plaster produced dust, which
he inhaled. (Id. at 12:21-13:2, 13:20-25, 14:16-21)
Mr. Mosher performed work on boilers monthly while stationed
on the USS Truett. (Id. at 14:1-4)
Mosher would repair pumps monthly by replacing gaskets and
packing. (Id. at 16:5-20:18) He described how he
would remove all insulation and bolts before removing the
gaskets with a scraper or wire brush. (Id. at
16:5-15) He used packing pullers and a pick to remove the dry
packing in pieces. (Id. at 18:23-19:4) After
removing the packing, Mr. Mosher cleaned the packing gland
with a wire brush. (Id. at 19:24-20:5) Mr. Mosher
also replaced insulation around pumps by mixing a powder with
liquid before applying the solution to pumps. (Id.
at 39:4-14, 40:5-41:2) He testified that replacing gaskets,
packing, and insulation produced dust, which he inhaled.
(Id. at 16:21-17:16, 18:2-19:23, 39:13-23)
repairing valves weekly, Mr. Mosher removed gaskets and
packing, which produced dust that he inhaled. (Id.
at 23:24-24:1, 24:17-25:18, 27:8-28:11) He removed bolts
before pulling the gaskets out with a pick, scraper, or wire
brush. (Id. at 24:2-6, 25:1-8) He also removed dry
packing using a packing puller or a pick. (Id. at
Mosher testified that while he did not perform any work on
turbines, he was present when others removed gaskets and
insulation from the turbines, which was a dusty process.
(Id. at 34:18-38:25)
his discharge in August 1977, Mr. Mosher worked at Henderson
Mine in Denver, Colorado. (D.I. 51 at ¶ 3; D.I. 114, Ex.
B at 42:22-43:1; D.I. 129, Ex. B at 193:10-12) He worked as a
miner and production operator until 1979. (D.I. 114, Ex. B at
43:9-12) He received his associates degree in commercial and
industrial electricity in 1979, and subsequently worked as an
apprentice in the electrical department at Henderson Mine.
(D.I. 114, Ex. B at 43:6-13) In the spring of 1979, Mr.
Mosher was promoted to a mine electrician, working on control
panels, switch gear, and cabling. (Id. at 43:9-14;
D.I. 114, Ex. C at 195:1-17) He worked at Henderson Mine
until it closed in 1983. (D.I. 114, Ex. B at 43:4-5) Mr.
Mosher was diagnosed with mesothelioma in December 2017.
(D.I. 51 at ¶ 13)
Plaintiffs' product identification evidence
Mosher is the sole product identification witness in this
case and his deposition occurred on April 17 and 18, 2018.
(D.I. 19; D.I. 104 at 2)
Mosher did not identify any asbestos-containing ABB products
or exposure to any ABB products.
Aurora Pump Company
Mosher identified Aurora Pump as the manufacturer of
Prairie-Masker pumps. (D.I. 107, Ex. D at 157:17-18) Mr. Mosher
testified that he worked on an Aurora pump once, when the
pump turbine fell off and he had to reattach the pump. (D.I.
107, Ex. B at 226:6-15, 227:4-7) He stated that it took
approximately one day to reattach the pump turbine.
(Id. at 227:20-25) Mr. Mosher admitted that this was
the only time that he worked on a Prairie-Masker pump, and
the only time that he was present when the Prairie-Masker
pump was maintained. (Id. at 226:6-24, 231:4-7)
Crosby Valve LLC
Mosher identified Crosby Valve as one of several
manufacturers of valves he encountered during his career.
(D.I. 114, Ex. B at 28:14-16) He recalled that Crosby valves
were used to control the flow of hot water and steam. (D.I.
109, Ex. A at 233:17-21) Mr. Mosher could not recount the
dimensions, color, model number, material, or location of
Crosby valves. (Id. at 233:22-234:1, 234:4-11) He
could not remember if the valves were welded or flanged in
place. (Id. at 234:2-3) Mr. Mosher testified that he
"gag[ged]" Crosby valves, meaning that he put a
clamp on the valves to hold them from operating.
(Id. at 236:22-237:7) Mr. Mosher gagged valves
approximately once every quarter. (Id. at 237:13-20)
Mr. Mosher stated that he performed no other work on Crosby
valves. (Id. at 237:21-23) He was present once or
twice when a gasket was removed from the flange of a Crosby
valve, but was not present when individuals worked on packing
on Crosby valves. (Id. at 239:10-14, 239:19-21)