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Charlevoix v. John Crane (In re Asbestos Litigation, 2017)

Our plain-English summary of In re Asbestos Litigation (U.S. District Court, District of Delaware, February 16, 2017).

Stephen Charlevoix and his wife Marilyn sued several companies in Delaware state court, and the case was removed to federal court. They alleged he developed mesothelioma from asbestos exposure during Navy service on the USS Valley Forge from 1961 to 1964, in later jobs, and in his own logging business. John Crane Inc. and Fiat Allis North America moved for summary judgment, and the plaintiffs did not respond. The magistrate judge noted that a failure to respond is not enough alone to grant judgment, so the court checked the record. Mr. Charlevoix identified no John Crane product. For Fiat, he owned a used front-end loader whose engine was overhauled. A witness said gaskets were removed but did not know who made them or whether they contained asbestos. Applying maritime and Michigan substantial-factor rules, the judge found no evidence of exposure to either company's asbestos product and recommended granting both motions.

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.

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The decision

Outcome. The magistrate judge recommended granting summary judgment for John Crane Inc. and Fiat Allis North America against plaintiffs Marilyn and Stephen Charlevoix, who did not oppose the motions, because there was no evidence of exposure to either defendant's asbestos-containing product.

What the court held. Under maritime law and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury. Evidence that does not show regular exposure over an extended period does not meet this test. A failure to respond to a summary judgment motion does not alone justify judgment.

Issues decided: Causation, Choice of Law, Maritime Law and Navy Ships, Trial Procedure and Discovery, Product Identification.

The people and their exposure

Who Work Where When Products
Stephen Charlevoix boiler tender (the Navy); military service USS Valley Forge 1961-1964
Stephen Charlevoix grinder (iron and steel) Grede Foundry 1964-1966
Stephen Charlevoix maintenance worker and equipment installer MJ Electric 1966-1978
Stephen Charlevoix owner and operator of logging business Charlevoix Logging late-1960s onward gaskets and packing, Fiat Allis front-end loader engine gaskets

The defendants

Other decisions in this case

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

  • In re Asbestos Litigation Charlevoix v. CBS Corporation (December 29, 2016). The magistrate judge recommended granting summary judgment to CBS/Westinghouse, Goodyear, FMC/Northern Pump and Ingersoll Rand because the unopposed motions showed plaintiffs had no evidence of exposure to those defendants' products.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

  • Brisboy v. Fibreboard Corp. (Michigan Supreme Court, 1988). The Michigan Supreme Court upheld the denial of Fibreboard's motion for directed verdict, but held the lower courts wrongly disregarded the jury's finding that Rand was 55% negligent, and remanded for judgment with damages apportioned under the jury's verdict.
  • Lohrmann v. Pittsburgh Corning Corp. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the judgment for the defendants: directed verdicts for Raymark, Celotex and Pittsburgh Corning, a jury verdict for the other four defendants, and the challenged evidentiary rulings and jury instructions, against plaintiff Lohrmann.
  • Roehling v. Nat. Gypsum Co. Gold Bond Bldg. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit reversed summary judgment for National Gypsum and Owens-Illinois on the Huntley Power Station exposure and remanded for trial, but affirmed summary judgment for Celotex and on the DuPont and Ford plant exposures.
  • Conner v. Alfa Laval, Inc. (U.S. District Court, Eastern District of Pennsylvania, 2012). The court granted summary judgment to General Electric, Crane, Foster Wheeler, Warren Pumps, IMO Industries, Buffalo Pumps, Armstrong International and CBS, and denied the plaintiffs relief on their strict liability and negligence claims.

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 MARILYN CHARLEVOIX, Individually and as Executor of the Estate

of Stephen Charlevoix, Deceased, and on behalf of all Wrongful Death Beneficiaries, Plaintiffs,

v.

CBS CORPORATION, etal., Defendants.

Civil Action No. 15-726-SLR-SRF.

February 16, 2017.

United States District Court, D. Delaware.

Stephen Charlevoix, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC.

Marilyn Charlevoix, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC, Bridget B. Truxillo, ROBINS CLOUD LLP, pro hac vice & Ian P. Cloud, ROBINS CLOUD LLP, pro hac vice.

Caterpillar Inc., Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Fiat Allis North America, Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Ford Motor Company, Defendant, represented by Christian J. Singewald, White & Williams.

John Crane Inc., Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

VIAD Corporation, Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Warren Pumps, LLC, Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Caterpillar Inc., Cross Claimant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

VIAD Corporation, Cross Claimant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Marilyn Charlevoix, Cross Defendant, represented by David W. deBruin, The deBruin Firm LLC.

Stephen Charlevoix, Cross Defendant, represented by David W. deBruin, The deBruin Firm LLC.

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Fiat Allis North America, Cross Claimant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Ford Motor Company, Cross Claimant, represented by Christian J. Singewald, White & Williams.

Ford Motor Company, Cross Defendant, represented by Christian J. Singewald, White & Williams.

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Warren Pumps, LLC, Cross Claimant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Ford Motor Company, Cross Defendant, represented by Christian J. Singewald, White & Williams.

John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

John Crane Inc., Cross Claimant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Ford Motor Company, Cross Defendant, represented by Christian J. Singewald, White & Williams.

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Caterpillar Inc., Cross Claimant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Ford Motor Company, Cross Defendant, represented by Christian J. Singewald, White & Williams.

John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

Defendant Motion for Summary Judgment

John Crane Inc. GRANT

Fiat Allis North America GRANT

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

VIAD Corporation, Cross Claimant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

VIAD Corporation, Cross Defendant, represented by Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

Caterpillar Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. & Megan Trocki Mantzavinos, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C..

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

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Ford Motor Company, Cross Defendant, represented by Christian J. Singewald, White & Williams.

John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

Warren Pumps, LLC, Cross Defendant, represented by Ana Marina McCann, Marshall, Dennehey, Warner, Coleman & Goggin, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Jennifer D. Smith, Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

This Report and Recommendation is limited to two pending motions for summary judgment in this asbestos-related personal injury action. The motions were filed by Defendants, John Crane Inc. ("John Crane") (D.I. 144), and Fiat Allis North America ("Fiat") (D.I. 162) (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

Stephen and Marilyn Charlevoix ("Plaintiffs") filed this asbestos action in the Delaware Superior Court against multiple defendants on July 10, 2015, asserting claims arising from Mr. Charlevoix's alleged harmful exposure to asbestos. (D.I. 1 at 1) Defendant Crane Co. removed the action to this court on August 21, 2015. (D.I. 1) John Crane filed a motion for summary judgment on September 28, 2016. (D.I. 144) Fiat filed its motion on September 30, 2016. (D.I. 162) Plaintiffs did not respond to these motions. On January 9, 2017, counsel for Fiat sent a letter to the court seeking dismissal in light of Plaintiffs' failure to oppose its summary judgment motion.[1] (D.I. 209)

B. Facts

A. Plaintiff's alleged exposure history

Plaintiffs allege that Mr. Charlevoix developed mesothelioma as a result of exposure to asbestos-containing products during the course of his employment with the U.S. Navy from 1961 to 1964. (D.I. 1 at 1) In addition, Mr. Charlevoix alleges he was exposed to asbestos from 1961 to 1978 as a result of his work with various employers, and in his own logging business. (Id.) Plaintiffs contend that Mr. Charlevoix was injured due to exposure to asbestos-containing products that Defendants manufactured, sold, distributed, licensed, or installed. (D.I. 1, Ex. 1, at ¶ 4) Accordingly, Plaintiffs assert negligence, punitive damages, and loss of consortium claims. (Id., Ex. 1)

Mr. Charlevoix was deposed on December 15, 2015.[2] (D.I. 57) Product identification witness, James Kimble, was deposed on May 24, 2016. (D.I. 67) Additionally, product identification witness, Pat Milligan, was deposed on May 26, 2016. (D.I. 68) Mr. Charlevoix was enlisted in the Navy from 1961 to 1964. (D.I. 1, Ex. 1) He was stationed on the USS Valley Forge, where he worked as a boiler tender. (D.I. 147 at 1) Mr. Charlevoix believes he was exposed to asbestos while cleaning the boilers in the boiler room. (12/15/15 Video Tr. at 85: 10-22)

After his discharge from service in the Navy, Mr. Charlevoix was a grinder for Grede Foundry from 1964 to 1966, and a maintenance worker and equipment installer for MJ Electric from 1966 to 1978. (D.I. 153 at 2) Mr. Charlevoix was also the owner and operator of Charlevoix Logging from the late-1960s until the time of his filing this suit. (Id.; D.I. 157 at 3) B. Plaintiff's product identification evidence

a. John Crane Inc.

Mr. Charlevoix did not identify an asbestos-containing John Crane product. (See D.I. 145, Exs. 1-4)

b. Fiat Allis North America

Mr. Charlevoix identified Fiat as the manufacturer of a front-end loader vehicle which he used in the operation of his logging business. (12/15/15 Video Tr. at 78:1-79:12) Mr. Charlevoix could not remember the exact year that he purchased the vehicle, but believed it was sometime in the early 1980s.[3] (12/15/15 Tr. at 183:17-184:6) In the morning deposition session, Mr. Charlevoix stated the vehicle was a 1979 model. (12/15/15 Video Tr. at 79:16-17) However, in the afternoon session, Mr. Charlevoix stated he was not sure about the model year, but that it was probably a 1980s model.[4] (12/15/15 Tr. at 183:5-16) Mr. Charlevoix stated that he had the engine overhauled in the vehicle. (Id. at 79: 18-22) Product identification witness, Pat Milligan, said the first engine overhaul took place a couple years after Mr. Charlevoix purchased the vehicle. (5/26/16 Tr. at 115:9-11) Mr. Charlevoix did not associate asbestos exposure with the engine overhaul. (12/15/15 Tr. at 190:5-12) Mr. Charlevoix purchased the vehicle used and did not know the vehicle's maintenance history or whether it still had any of its original parts and equipment. (Id. at 188:4-10)

Mr. Milligan testified that Mr. Charlevoix had the engine overhauled in the Fiat front-end loader vehicle twice.[5] (5/26/16 Tr. at 115:1-8) Mr. Milligan stated that gaskets had to be removed during the process. (Id. at 116: 10-12) He did not know who manufactured the gaskets that were removed, or who manufactured the gaskets that were installed. (Id. at 116: 13-18) Mr. Milligan said that Mr. Charlevoix was present when the gaskets were removed. (Id. at 116: 19-21) He did not know the composition of the gaskets and could not say if they contained any asbestos. (Id. at 117:2-4)

III. LEGAL STANDARDS

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. No. 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).[6] 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, [*2] (D.N.J. July 31, 2014) (quoting Muskett v. Certegy Check Svcs., Inc., No. 08-3975, 2010 WL 2710555, at [*3] (D.N.J. July 6, 2010)).

B. Maritime Law

The parties do not dispute that maritime law applies to all Naval/sea-based claims.[7] (D.I. 106) To establish causation in an asbestos claim under maritime law, a plaintiff must show that "(1) he was exposed to the defendant's product, and (2) the product was a substantial factor[8] in causing the injury he suffered." Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005) (citing Stark v. Armstrong World Indus., Inc., 21 F. App'x 371, 375 (6th Cir. 2001)). Other courts in this Circuit recognize a third element and require a plaintiff to "show that (3) the defendant manufactured or distributed the asbestos-containing product to which exposure is alleged."[9] Abbay v. Armstrong Int'l, Inc., E.D. PA Civil Action No. 2:10-CV-83248-ER, 2012 WL 975837, at [*1] n.l (E.D. Pa. Feb. 29, 2012).

"In establishing causation, a plaintiff may rely upon direct evidence ... or circumstantial evidence [to] support an inference that there was exposure to the defendant's product for some length of time."[10] Abbay, 2012 WL 975837, at [*1] n.l (citing Stark, 21 F. App'x at 376). On the other hand, "`[m]inimal exposure' to a defendant's product is insufficient to establish causation. Likewise, a mere showing that defendant's product was present somewhere at plaintiffs place of work is insufficient." Lindstrom, 424 F.3d at 492 (quoting Stark, 21 F. App'x at 376). "Rather, the plaintiff must show `a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.'" Abbay, 2012 WL 975837, at* 1 n.l (quoting Lindstrom, 424 F.3d at 492).

C. Michigan Law

A federal court sitting in diversity is "required to apply the substantive law of the state whose laws govern the action." Robertson v. Allied Signal, 914 F.2d 360, 378 (3d Cir. 1990). Consequently, the parties agree that Michigan substantive law applies to all land-based claims. (D.I. 106)

Defendant Motion for Summary Judgment

John Crane Inc. GRANT

Fiat Allis North America GRANT

Under Michigan law, a plaintiff must establish that a particular defendant's conduct was a substantial factor in causing the plaintiffs injury.[11] Brisboy v. Fibreboard Corp., 418 N.W.2d. 650, 653 (Mich. 1988). The frequency and intensity of exposure to asbestos-containing products, "in the scope of [the plaintiffs] entire work history," should be considered in determining whether defendant's conduct was a substantial contributing factor. Allen v. Owens-Corning Fiberglas Corp., 571 N.W.2d 530, 533 (Mich. Ct. App. 1997).

Moreover, the plaintiff must show "the manufacturer's asbestos product was used at the specific site within the workplace where [the plaintiff] worked." Roberts v. Owens-Corning Fiberglas Corp., 726 F. Supp. 172, 174 (W.D. Mich. 1989) (citing Roehlingv. Nat'l Gypsum Co. Gold Bond Bldg. Prod., 786 F.2d 1225, 1228 (4th Cir. 1986)). It is not enough for the plaintiff to show that the defendant's product was present somewhere at his workplace. Id. (citing Lohrman v. Pittsburgh Corning Corp., 782 F.2d. 1156, 1162-63 (4th Cir. 1986)).

IV. Discussion

A. John Crane Inc.

The court recommends granting John Crane's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Charlevoix was exposed to an asbestos-containing product made by John Crane. Plaintiffs fail to meet the "substantial factor" test, because Plaintiffs did not produce any evidence tending to establish exposure to a John Crane product. Therefore, the court recommends granting summary judgment in favor of John Crane.

B. Fiat Allis North America

The court recommends granting Fiat's motion for summary judgment. Although Mr. Charlevoix testified that he owned a Fiat vehicle, there is no genuine issue of material fact in dispute as to whether Mr. Charlevoix was exposed to an asbestos-containing product made by Fiat. (12/15/15 Video Tr. at 78:1-79:12) Mr. Charlevoix testified that he had the engine overhauled in the vehicle, in which he removed and reinstalled the engine. (Id. at 79: 18-22; 12/15/15 Tr. at 190:5-12) Mr. Charlevoix did not testify that he was exposed to any asbestos in the course of that work. (Id.) Mr. Milligan testified that gaskets had to be removed during the engine overhaul process, and that Mr. Charlevoix was present during the removal. (5/26/16 Tr. at 116:10-21) However, Mr. Milligan did not know who manufactured the gaskets that were removed, or who manufactured the gaskets that were installed. (Id. at 116: 13-18) Mr. Milligan also did not know the composition of the gaskets and could not say if they contained any asbestos. (Id. at 117:2-4)

The deposition testimony of Mr. Charlevoix and Mr. Milligan fails to create a material issue of fact as to whether, under Michigan law, Fiat's products were a substantial contributing factor to Mr. Charlevoix's injury. The record does not support the claim that Mr. Charlevoix was exposed to asbestos from Fiat products on a regular basis, over an extended period of time. Summary judgment is, therefore, warranted.

V. Conclusion

For the foregoing reasons, and as addressed in the chart infra, the court recommends granting Defendants' motions for summary judgment.

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] Moving Defendant, John Crane, did not submit a letter request for dismissal but the court will consider its respective motion which appears pending and unopposed, according to the docket.

[2] The deadline to complete depositions of all plaintiffs alleging exposure was April 15, 2016. (D.I. 38 at ¶ 4(c)(iii)) The deadline to complete depositions of all co-worker, product identification, and other exposure testimony witnesses was June 15, 2016. (D.I. ¶ 4(c)(iv)) The deadline to complete depositions of all defense fact witnesses was September 30, 2016. (D.I. ¶ 4(c)(v))

[3] Mr. Milligan believed the vehicle was purchased in the mid-1990s. (5/26/16 Tr. at 113:24-25)

[4] Mr. Milligan thought the vehicle was manufactured in the late 1970s. (5/26/16 Tr. at 114:1-3)

[5] As stated above, Mr. Milligan testified that the first engine overhaul took place a couple years after Mr. Charlevoix purchased the vehicle. (5/26/16 Tr. at 115:9-11) However, the record before the court does not address the timing of the second engine overhaul. [6] 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.

[7] For maritime law to apply, a plaintiffs exposure underlying a products liability claim must meet both a locality test and a connection test. In Jerome B. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995), the Supreme Court defined these tests as follows: A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. The connection test raises two issues. A court, first, must "assess the general features of the type of incident involved," to determine whether the incident has "a potentially disruptive impact on maritime commerce[.]" Second, a court must determine whether "the general character" of the "activity giving rise to the incident" shows a "substantial relationship to traditional maritime activity." 513 U.S. at 534 (internal citations omitted).

[8] "Maritime law incorporates traditional `substantial factor' causation principles, and courts often look to the Restatement (Second) of Torts for a more helpful definition." Delatte v. A. W. Chesterton Co., E.D. PA Civil Action No. 2:09-69578, 2011 WL 11439126, at [*1] n.1 (E.D. Pa. Feb. 28, 2011). The comments to the Restatement indicate that the word "substantial," in this context, "denote[s] the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility." Restatement (Second) of Torts§ 431 cmt. a (1965). [9] The majority of federal courts have held that, under maritime law, a. manufacturer has no liability for harms caused by, and no duty to warn about hazards associated with, a product it did not manufacture or distribute. This is also referred to as the "bare metal" defense. See Dalton v. 3M Co., Civil Action No. 10-0113-SLR-SRF, 2013 WL 4886658, at [*7] (D. Del. Sept. 12, 2013), report and recommendation adopted, 2013 WL 5486813 (Oct. 1, 2013) (citing cases); Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012). [10] However, "`substantial exposure is necessary to draw an inference from circumstantial evidence that the exposure was a substantial factor in causing the injury.'" Stark, 21 F. App'x. at 376 (quoting Harbour v. Armstrong World Indus., Inc., No. 90-1414, 1991 WL 65201, at [*4] (6th Cir. April 25, 1991) (emphasis in original)).

[11] Michigan has adopted the "substantial factor" test of legal causation as outlined in the Restatement of Torts, 2d § 431. Brisboy v. Fibreboard Corp., 418 N.W.2d. 650, 653 (Mich. 1988).

Sources

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In re Asbestos Litigation, No. Civil Action No. 15-726-SLR-SRF (U.S. District Court, District of Delaware February 16, 2017).

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“Summary of In re Asbestos Litigation.” AsbestosClaims.Law Library. https://asbestosclaims.law/library/cases/in-re-asbestos-litigation-2017-02-16.

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