United States District Court, D. Delaware
REPORT AND RECOMMENDATION
R. Fallon, United States Magistrate Judge.
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"). (D.I. 124) For
the following reasons, I recommend GRANTING defendant's
motion for summary judgment.
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,
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)
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)
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.
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)
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)
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