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In re Asbestos Litigation

United States District Court, D. Delaware

November 20, 2019

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

          REPORT AND RECOMMENDATION

          Sherry R. Fallon, United States Magistrate Judge.

         I. INTRODUCTION

         Presently before the court in this asbestos-related personal injury action is a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by Air & Liquid Systems Corporation ("Air & Liquid").[1] (D.I. 124) For the following reasons, I recommend GRANTING defendant's motion for summary judgment.[2]

         II. BACKGROUND

         a. Procedural History

         On January 25, 2018, plaintiffs Kent E. Mosher ("Mr. Mosher") and Cathy Mosher ("Mrs. Mosher") (collectively, "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, [3] and 1446. (D.I. 1) On May 14, 2018, plaintiffs filed an amended complaint (the "First Amended Complaint"). (D.I. 51) On July 24, 2019, Air & Liquid filed the present motion for summary judgment. (D.I. 124)

         b. Facts

         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. (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. 125 at 1) Plaintiffs did not produce any other fact or product identification witnesses for deposition.

         Mr. Mosher joined the United States Navy in August 1973. (D.I. 125, Ex. A at 10:5-6) In the spring of 1974, he was assigned to the USS Truett, a destroyer escort. (Id. at 10:15-18, 11:2-4) He served as a boiler technician in the fire room, standing watch and performing maintenance on boilers, pumps, valves, and strainers. (Id. at 11:15-12:2) In repairing pumps, Mr. Mosher replaced gaskets and packing. (Id. at 18:1-20:18) He described, generally, how he would remove all insulation and casing gasket bolts before removing the gaskets with a scraper or wire brush. (D.I. 130, Ex. A 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) He testified that replacing gaskets and packing produced dust, which he inhaled. (D.I. 125, Ex. A at 18:2-7, 20:6-16)

         Mr. Mosher stated that he performed maintenance on a fire pump and identified Buffalo as the manufacturer of this pump. (D.I. 125, Ex. B at 157:21-158:9) He described how he was able to identify a Buffalo pump because of the pump's casing nameplate and information. (D.I. 125, Ex. A at 21:11-14) He stated that there was only one fire pump aboard the USS Truett, which supplied water for fire suppression systems. (D.I. 125, Ex. B at 157:24-158:1, 243:10-15) He was unsure whether the fire pump used mechanical seals, but stated that he did not need to repack the pump. (Id. at 244:1-17) Therefore, his work was limited to turning the pump's electric motor on and off, and he did not have to open the fire pump. (Id. at 244:18-245:9) He did not observe others perform work on the Buffalo fire pump. (Id. at 244:20-21)

         Mr. Mosher was honorably discharged in August 1977. (D.I. 125, Ex. A at 10:7-10) He thereafter pursued civilian employment at Henderson Mine. (D.I. 130, Ex. A at 43:9-17) He was diagnosed with mesothelioma in December 2017. (D.I. 51 at ¶ 13)

         III. LEGAL STANDARD

         a. ...


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