Denbow v. Air & Liquid Systems Corp. (In re Asbestos Litigation, 2016)

Our plain-English summary of In re Asbestos Litigation (U.S. District Court, District of Delaware, August 12, 2016).

Clyde Lee Denbow and his wife, Ellen Palmer, sued several companies in Delaware state court in 2014, claiming Mr. Denbow developed mesothelioma from asbestos exposure. The case was removed to federal court. After he died, Ms. Palmer substituted herself as plaintiff and added a wrongful death claim. She alleged exposure during Navy service from 1954 to 1957, work at the Koppers Follansbee Tar Plant from 1965 to 1970, and personal construction projects. Air & Liquid Systems (successor to Buffalo Pumps) and Georgia-Pacific moved for summary judgment, arguing there was no evidence Mr. Denbow was exposed to their products. Plaintiff did not respond. Her two product identification witnesses, who testified about Koppers and the USS New Jersey, said nothing about either defendant's products. The magistrate judge recommended granting both motions and dismissing the two defendants with prejudice, since fact discovery had closed and plaintiff offered no evidence. Motions by two other defendants were handled separately.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, District of Delaware
• Decided: August 12, 2016
• Docket: Civil Action No. 14-1064-SLR-SRF
• Stage: Summary judgment
• State: Delaware

Outcome. The magistrate judge recommended granting summary judgment for Air & Liquid Systems Corporation and Georgia-Pacific against plaintiff Ellen Palmer, and dismissing them with prejudice, because plaintiff offered no product identification evidence and did not respond.

What the court held. Where the plaintiff, after adequate discovery, offers no evidence that the decedent was exposed to a defendant's product, summary judgment for that defendant is warranted, even on an unopposed motion, under Rule 56(e)(3).

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Clyde Lee Denbow: mesothelioma; died

Who	Work	Where	When	Products
Clyde Lee Denbow	Navy service (the Navy); military service	USS New Jersey	1954-1957
Clyde Lee Denbow	worker at Koppers Follansbee Tar Plant	Koppers Follansbee Tar Plant, Follansbee, West Virginia	1965-1970
Clyde Lee Denbow	personal construction projects (construction)		over the course of his life

The defendants

• Air & Liquid Systems Corporation (manufacturer)
• Georgia-Pacific LLC (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Denbow v. CBS Corp. (In re Asbestos Litigation) (March 30, 2017). The magistrate judge recommended granting summary judgment for CBS Corporation/Westinghouse and Crane Co. against plaintiff Ellen Palmer, because she did not show Mr. Denbow was exposed to asbestos from their products.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

IN RE: ASBESTOS LITIGATION.

ELLEN JEANENE PALMER, Individually and as Executrix of the Estate of CLYDE LEE DENBOW,

Plaintiff,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal., Defendants.

Civil Action No. 14-1064-SLR-SRF.

August 12, 2016.

United States District Court, D. Delaware.

Clyde Lee Denbow, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC & John Spillane, Heard Robins Cloud & Lubel, LLP, pro hac vice.

Ellen Jeanene Palmer, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC.

Air & Liquid Systems Corporation, Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Buffalo Pumps Division, Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba.

Beazer East Inc., Defendant, represented by Ronald L. Daugherty, Salmon Ricchezza Singer & Turchi LLP. Georgia Pacific LLC, Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Stephanie Elizabeth Smiertka, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

Westinghouse Electric Corporation, Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC.

Crane Co., Defendant, represented by Nicholas E. Skiles, Swartz Campbell LLC & Shawn Edward Martyniak, Swartz Campbell LLC.

Buffalo Pumps Division, Cross Claimant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Buffalo Pumps Division, Cross Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Beazer East Inc., Cross Defendant, represented by Ronald L. Daugherty, Salmon Ricchezza Singer & Turchi LLP. Crane Co., Cross Defendant, represented by Nicholas E. Skiles, Swartz Campbell LLC.

Westinghouse Electric Corporation, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. Buffalo Pumps Division, Cross Claimant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Buffalo Pumps Division, Cross Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Beazer East Inc., Cross Defendant, represented by Ronald L. Daugherty, Salmon Ricchezza Singer & Turchi LLP. Crane Co., Cross Defendant, represented by Nicholas E. Skiles, Swartz Campbell LLC.

Westinghouse Electric Corporation, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. Georgia Pacific LLC, Cross Claimant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP & Stephanie Elizabeth Smiertka, Manion Gaynor & Manning LLP.

Defendant Motion for Summary Judgment

Air & Liquid Systems Corporation GRANT

Georgia-Pacific LLC GRANT

Georgia Pacific LLC, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP & Stephanie Elizabeth Smiertka, Manion Gaynor & Manning LLP.

Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Beazer East Inc., Cross Defendant, represented by Ronald L. Daugherty, Salmon Ricchezza Singer & Turchi LLP. Buffalo Pumps Division, Cross Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Crane Co., Cross Defendant, represented by Nicholas E. Skiles, Swartz Campbell LLC.

Westinghouse Electric Corporation, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. Air & Liquid Systems Corporation, Cross Claimant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Air & Liquid Systems Corporation, Cross Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Beazer East Inc., Cross Defendant, represented by Ronald L. Daugherty, Salmon Ricchezza Singer & Turchi LLP. Buffalo Pumps Division, Cross Defendant, represented by Barbara Anne Fruehauf, Wilbraham Lawler & Buba. Crane Co., Cross Defendant, represented by Nicholas E. Skiles, Swartz Campbell LLC & Shawn Edward Martyniak, Swartz Campbell LLC.

Georgia Pacific LLC, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Stephanie Elizabeth Smiertka, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

Westinghouse Electric Corporation, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC. REPORT AND RECOMMENDATION

SHERRY R. FALLON, District Judge.

I. INTRODUCTION

This Report and Recommendation is limited to two motions for summary judgment in this asbestos-related personal injury action.[1] The motions were filed by Defendants Air & Liquid Systems Corporation[2] ("ALS") (D.I. 70), and Georgia-Pacific LLC ("Georgia-Pacific") (D.I. 74) (collectively "Defendants"). As indicated in the chart infra and for the reasons set forth below, the court recommends granting Defendants' motions for summary judgment.

II. BACKGROUND

A. Procedural History

Clyde Lee Denbow ("Mr. Denbow") and his wife Ellen Jeanene Palmer ("Ms. Palmer" or "Plaintiff') filed this asbestos action in the Delaware Superior Court against multiple defendants on June 27, 2014. (D.I. 1, Ex. A) The complaint asserts personal injury claims regarding Mr. Denbow's alleged wrongful exposure to asbestos. (Id., Ex. A) ALS removed the action to this court on August 18, 2014. (Id.) After Mr. Denbow's death, Ms. Palmer amended the complaint to substitute herself as the

plaintiff, and to add a wrongful death claim. (D.I. 24) ALS and Georgia-Pacific filed motions for summary judgment on June 12, 2016. (D.I. 70, 74) Plaintiff did not respond to Defendants' motions.

B. Facts

Plaintiff alleges that Mr. Denbow developed mesothelioma as a result of exposure to asbestos-containing products during the course of his employment with the U.S. Navy from 1954 to 1957, while working for Koppers Follansbee Tar Plant ("Koppers") from 1965 to 1970, and while performing personal construction projects over the course of his life. (D.I. 24 at ¶¶ 4-5, 13-18, 47-51) Plaintiff contends that Mr. Denbow was injured due to exposure to asbestos-containing products that Defendants manufactured, assembled, produced, sold, merchandised, supplied, distributed, or otherwise placed in the stream of commerce. (Id. at ¶ 14) Accordingly, Plaintiff asserts claims for negligence, breach of implied warranty, strict liability, direct employer liability, wrongful death, and loss of consortium. (Id. at 7-27)

Plaintiff produced two product identification witnesses for deposition: Harold Lauck and Charlie Ricker. (D.I. 71 at 3) Harold Lauck testified regarding his work with Mr. Denbow at Koppers. (Id.) Charlie Ricker testified regarding his Navy service with Mr. Denbow aboard the USS New Jersey. (Id.) Neither witness testified regarding ALS or Georgia-Pacific products. (D.I. 71 at 5; D.I. 75 at 2)

III. LEGAL STANDARD

A. Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a dispute about a material fact is `genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). The moving party bears the initial burden of proving the absence of a genuinely disputed material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). The non-movant must support its contention by citing to particular documents in the record, by showing that the cited materials do not establish the absence or presence of a genuine dispute, or by showing that an adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A)—(B). The existence of some alleged factual dispute may not be sufficient to deny a motion for summary judgment; rather, there must be enough evidence to enable a jury to reasonably find for the non-moving party on the issue. See Anderson, 477 U.S. at 247-49. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Clark v. Welch, Civ. N0.14-029-SLR, 2016 WL 859259, at [*2] (D. Del. Mar. 3, 2016). If the non-movant fails to make a sufficient showing on an essential element of its case on which it bears the burden of proof, then the movant is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 322.

If a party fails to address another party's assertion of fact, the court may consider the fact undisputed, or grant summary judgment if the facts show that the movant is entitled to it. Fed. R. Civ. P. 56(e)(2)-(3).[3] A plaintiffs failure to respond "is not alone a sufficient basis for the entry of a summary judgment." Anchorage Assocs. v. Virgin Islands Bd. Of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). Even where a party does not file a responsive submission to oppose the motion, the court must still find that the undisputed facts warrant judgment as a matter of law. Miller v. Ashcroft, 76 F. App'x 457, 462 (3d Cir. 2003) (citing Fed. R. Civ. P. 56; Lorenzo v. Griffith, 12 F.3d 23, 28 (3d Cir. 1993)). In other words, the court must still determine whether the unopposed motion for summary judgment "has been properly made and supported." Williams v. Murray, Inc., Civil No. 12-2122, 2014 WL 3783878, at [*2] (D.N.J. July 31, 2014) (quoting Muskett v. Certegy Check Servs., Inc., No. 08-3975, 2010 WL 2710555, at [*3] (D.N.J. July 6, 2010)).

IV. DISCUSSION

Defendant Motion for Summary Judgment

Air & Liquid Systems Corporation GRANT

Georgia-Pacific LLC GRANT

Defendants' motions for summary judgment should be granted. Defendants contend that summary judgment is warranted because there is no evidence regarding exposure to their respective products. (D.I. 71 at 5-6; D.I. 75 at 2) Having been given an adequate opportunity to engage in fact discovery and create a record on product identification, Plaintiff has not set forth any evidence to refute Defendants' assertions. Because there is no evidence to establish that Mr. Denbow was exposed to a product for which ALS or Georgia-Pacific is liable, this court may recommend dismissal pursuant to Fed. R. Civ. P. 56(e)(3). Therefore, Defendants' motions for summary judgment should be granted.

V. CONCLUSION

For the foregoing reasons, and as indicated in the chart infra, I recommend granting Defendants' summary judgment motions (D.I. 70, 74), and dismissing Defendants with prejudice, as fact discovery is closed and there is no opposition by the Plaintiff.

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed. R. Civ. P. 72(b)(2). The objection and responses to the objections are limited to ten (10) pages each. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).

The parties are directed to the court's Standing Order For Objections Filed Under Fed. R. Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website, http://www.ded.uscourts.gov.

[1] Defendants Westinghouse Electric Corporation and Crane Co. also filed motions for summary judgment in this action. (D.I. 68, 72) Because Plaintiff opposes each motion, the court will address them separately.

[2] Air & Liquid Systems Corporation is a successor by merger to Buffalo Pumps. (D.I. 71 at 3)

[3] This section was added to Rule 56 to overcome cases in the Third Circuit that impaired the utility of the summary judgment device: A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matters sufficient to show that there is no genuine issue as to a material fact. The adverse party, in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue.

Fed. R. Civ. P. 56(e) advisory committee's note. Before the amendment, the Third Circuit would have denied summary judgment if the averments were "well-pleaded," and not conclusory. Id. However, the Advisory Committee noted that summary judgment is meant to pierce the pleadings and to assess proof to see whether there is a genuine need for trial. Id. Accordingly, the pre-amendment Third Circuit precedent was incompatible with the basic purpose of the rule. Id. The amendment recognizes that, "despite the best efforts of counsel to make his pleadings accurate, they may be overwhelmingly contradicted by the proof available to his adversary." Id. The amendment, however, was not designed to affect the ordinary standard applicable to summary judgment. Id.

Sources

• The opinion on Google Scholar
• Delaware asbestos laws
• Delaware asbestos exposure sites