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In re Asbestos Litigation

United States District Court, D. Delaware

November 19, 2019

IN RE ASBESTOS LITIGATION KENT E. MOSHER and CATHY MOSHER, Plaintiffs,
v.
ABB, INC., et al, Defendants.

          REPORT AND RECOMMENDATION

          Sherry R. Fallon, United States Magistrate Judge.

         I. INTRODUCTION

         Presently before the court in this asbestos-related personal injury action are the motions for summary judgment of ABB, Inc. ("ABB")[1] (D.I. 120), Aurora Pump Company ("Aurora Pump") (D.I. 106), Crosby Valve LLC ("Crosby Valve") (D.I. 108), FMC Corporation ("FMC")[2](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")[3](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 judgment.[4]

Defendant

Motion For Summary Judgment

ABB, Inc.

GRANT

Aurora Pump Company

GRANT

Crosby Valve LLC

GRANT

FMC Corporation

GRANT

Gardner Denver, Inc.

GRANT

Gould Electronics Inc.

GRANT

Pfizer, Inc.

GRANT

Siemens Industry, Inc.

GRANT

Union Carbide Corporation

GRANT

Warren Pumps, LLC

GRANT

         II. BACKGROUND

         a. Procedural History

         On 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, [5] 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.[6]

         b. Facts

         i. Mr. Mosher's alleged exposure history

         Plaintiffs 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)

         Mr. 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.

         Mr. 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 12:13-41:8)

         Mr. 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)

         Mr. 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)

         In 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 27:8-12, 27:23-28:3)

         Mr. 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)

         After 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)

         ii. Plaintiffs' product identification evidence

         Mr. 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)

         1. ABB, Inc.

         Mr. Mosher did not identify any asbestos-containing ABB products or exposure to any ABB products.

         2. Aurora Pump Company

         Mr. Mosher identified Aurora Pump as the manufacturer of Prairie-Masker pumps.[7] (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)

         3. Crosby Valve LLC

         Mr. 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)

         4. ...


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