Kister v. Air & Liquid Systems Corp. (In re Asbestos Litigation, 2018)

Our plain-English summary of In re Asbestos Litigation (U.S. District Court, District of Delaware, April 4, 2018).

Joan Kister, for herself and as executor of her husband Alan Kister's estate, sued several companies in Delaware state court over his mesothelioma. The case was removed to federal court. Mr. Kister worked as a pipe-coverer for Newport News Shipbuilding in 1968, including about seven months aboard the USS Mobile, where he worked on pumps in the pump room. He died during the case. Seven defendants moved for summary judgment: Buffalo Pumps, Fairbanks, CertainTeed, Foster Wheeler, Union Carbide, Aurora and Pfizer. Mrs. Kister did not respond. The parties agreed maritime law applied, which requires proof that the plaintiff was exposed to a defendant's product and that the product was a substantial factor in causing the injury. In his deposition Mr. Kister recalled pumps by Warren, Worthington and Ingersoll-Rand, but did not identify an asbestos-containing product from any moving defendant. The magistrate judge recommended granting all seven motions, noting that the court must still check that an unopposed motion is properly supported.

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: April 4, 2018
• Stage: Summary judgment
• State: Delaware

Outcome. A magistrate judge recommended granting summary judgment to Buffalo Pumps, Fairbanks, CertainTeed, Foster Wheeler, Union Carbide, Aurora and Pfizer, because Mr. Kister identified none of their asbestos-containing products and the plaintiff did not respond.

What the court held. Under maritime law, a plaintiff must show for each defendant that he was exposed to its product and that the product was a substantial factor in causing the injury; with no product identification, summary judgment follows even when the motion is unopposed.

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

The people and their exposure

• Alan B. Kister: mesothelioma; died

Who	Work	Where	When	Products
Alan B. Kister	pipe-coverer (shipyards and maritime work)	Newport News Shipyard; USS Mobile, Newport News, Virginia	1968	Warren, Worthington, Ingersoll-Rand

The defendants

• Air & Liquid Systems Corporation (Buffalo Pumps) (manufacturer)
• The Fairbanks Company (manufacturer)
• CertainTeed Corporation (manufacturer)
• Foster Wheeler LLC (manufacturer)
• Union Carbide Corporation (manufacturer)
• Aurora Pump Company (manufacturer)
• Pfizer, Inc. (manufacturer)

Other decisions in this case

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

• Tallman v. Foster Wheeler Energy Corp. (In re Asbestos Litigation) (August 21, 2017). The magistrate judge recommended granting Foster Wheeler's motion for summary judgment against the plaintiff, finding no evidence that Mr. Tallman was exposed to asbestos from a Foster Wheeler product, and also recommended judgment on the punitive damages claim.
• Rogers v. Asbestos Corp. Limited (In re Asbestos Litigation) (August 7, 2019). The district court overruled Rogers's objections, adopted the magistrate judge's Report, and granted summary judgment to Asbestos Corporation Limited and Charles A. Wagner Company, so Rogers lost his claims against both.
• Pruitt v. Gardner Denver (In re Asbestos Litigation) (September 23, 2020). The district court overruled Gardner Denver's and Warren Pumps' objections, adopted the magistrate judge's Report, and denied both companies' motions for summary judgment against plaintiff John Pruitt.
• Thorne v. Crane Co. (In re Asbestos Litigation) (July 1, 2021). The magistrate judge granted the defendants' (Crane Co., ITT, Johnson Controls and Metropolitan Life) joint motion and ruled that Iowa substantive law, not North Dakota law as the Thornes argued, governs all claims and defenses.
• Cox v. Foster Wheeler (In re Asbestos Litigation) (August 18, 2021). The district court overruled Foster Wheeler's objections, adopted the magistrate judge's Report, and denied Foster Wheeler's motion for summary judgment, so the Cox plaintiff's claims proceed.
• Thorne v. Crane Co. (In re Asbestos Litigation) (June 16, 2022). The magistrate judge recommended granting Crane Co.'s motion for summary judgment against Rickey and Barbara Thorne on all claims, including loss of consortium and punitive damages.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Devries v. Air & Liquid Systems Corp. (In re Asbestos Products Liability Litigation) (U.S. Court of Appeals, Third Circuit, 2017). The Third Circuit affirmed summary judgment for the manufacturers on the widows' strict liability claims because they waived those arguments on appeal, vacated summary judgment on the negligence claims, and remanded for further proceedings.

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.

JOAN KISTER, Individually and as Executor of the Estate of ALAN B. KISTER, deceased, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal., Defendants.

Civ. No. 17-193-LPS-SRF.

April 4, 2018.

United States District Court, D. Delaware.

Joan Kister, Individually and as executor of the Estate of Alan B. Kister, deceasaed, Plaintiff, represented by Adam Balick, Balick & Balick, LLC, Bartholomew J. Dalton, Dalton & Associates P.A., Ipek Kurul Medford, Dalton & Associates, P.A. & Michael Collins Smith, Balick & Balick, LLC.

Air & Liquid Systems Corporation, individually and as wholly-owned subsidiary of of Ampco-Pittsburgh Corporation, individucally and as successor in interest to Buffalo Pumps, Defendant, represented by Barbara Anne Fruehauf & Timothy A. Sullivan, III, Wilbraham, Lawler & Buba.

Aurora Pump Company, Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC & Donald

Robert Kinsley, Maron Marvel Bradley & Anderson LLC.

CBS Corporation, a Delaware Corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvanie Corporation, f/k/a Westinghouse Electric Corporation, as successor in interest to The Bryant Electric Company, Defendant, represented by Allison L. Texter, Swartz Campbell LLC, Beth E. Valocchi, Swartz Campbell LLC & Jennifer Ann Kapes, Swartz Campbell LLC.

Certainteed Corporation & General Electric Company, Defendants, represented by Beth E. Valocchi, Swartz Campbell LLC. Foster Wheeler LLC, Defendant, represented by Allison L. Texter, Swartz Campbell LLC & Beth E. Valocchi, Swartz Campbell LLC.

Goulds Pumps Incorporated, Grinnell LLC & ITT Corporation, Defendants, represented by Kelly A. Costello, Morgan Lewis & Bockius LLP.

Pfizer, Inc., Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP.

The Fairbanks Company, Defendant, represented by Barbara Anne Fruehauf & Timothy A. Sullivan, III, Wilbraham, Lawler & Buba.

Union Carbide Corporation, Defendant, represented by Joseph S. Naylor, Swartz Campbell LLC.

Warren Pumps LLC, Defendant, represented by Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Georgia-Pacific LLC, Defendant, pro se.

Pfizer, Inc., Cross Claimant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Pfizer, Inc., Cross Defendant, represented by Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Air & Liquid Systems Corporation, individually and as wholly-owned subsidiary of of Ampco-Pittsburgh Corporation, individucally and as successor in interest to Buffalo Pumps & The Fairbanks Company, Cross Defendants, represented by Barbara Anne Fruehauf & Timothy A. Sullivan, III, Wilbraham, Lawler & Buba.

Aurora Pump Company, Cross Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC.

CBS Corporation, a Delaware Corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, a Pennsylvanie Corporation, f/k/a Westinghouse Electric Corporation, as successor in interest to The Bryant Electric Company, Cross

Defendant Motion for Summary Judgment

Air & Liquid Systems/Buffalo Pumps GRANT GRANT

The Fairbanks Company GRANT

CertainTeed Corporation GRANT

Foster Wheeler LLC GRANT

Union Carbide Corporation GRANT

Aurora Pump Company GRANT

Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC, Jennifer Ann Kapes, Swartz Campbell LLC & Allison L. Texter, Swartz Campbell LLC.

Certainteed Corporation & General Electric Company, Cross Defendants, represented by Beth E. Valocchi, Swartz Campbell LLC.

Foster Wheeler LLC, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz Campbell LLC.

Goulds Pumps Incorporated, Grinnell LLC & ITT Corporation, Cross Defendants, represented by Kelly A. Costello, Morgan Lewis & Bockius LLP.

Union Carbide Corporation, Cross Defendant, represented by Joseph S. Naylor, Swartz Campbell LLC.

Warren Pumps LLC, Cross Defendant, represented by Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. The Fairbanks Company, Cross Claimant, represented by Barbara Anne Fruehauf & Timothy A. Sullivan, III, Wilbraham, Lawler & Buba.

Certainteed Corporation, Cross Claimant, represented by Beth E. Valocchi, Swartz Campbell LLC.

Joan Kister, Individually and as executor of the Estate of Alan B. Kister, deceasaed, Cross Defendant, represented by Adam Balick, Balick & Balick, LLC, Bartholomew J. Dalton, Dalton & Associates P.A., Ipek Kurul Medford, Dalton & Associates, P.A. & Michael Collins Smith, Balick & Balick, LLC.

Aurora Pump Company, Cross Claimant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC.

Warren Pumps LLC, Cross Claimant, represented by Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Presently before the court in this asbestos-related personal injury action are the motions for summary judgment of defendants Air & Liquid Systems Corporation ("Buffalo Pumps"),[1] The Fairbanks Company ("Fairbanks"), CertainTeed Corporation ("CertainTeed"), Foster Wheeler LLC ("Foster Wheeler"), Union Carbide Corporation ("Union Carbide"), Aurora Pump Company ("Aurora"), and Pfizer, Inc. ("Pfizer") (collectively, "Defendants"). (D.I. 75; D.I. 78; D.I. 80; D.I. 84; D.I. 86; D.I. 87; D.I. 90)[2] Plaintiff Joan Kister ("Plaintiff' or "Mrs. Kister"), individually, and as the Executor of the Estate of Alan B. Kister ("Mr. Kister"), did not respond to these motions. As indicated in the chart infra and for the reasons that follow, the court recommends GRANTING Defendants' motions for summary judgment.

Pfizer Inc. GRANT

II. BACKGROUND

A. Procedural History

On October 28, 2016, Joan and Alan Kister originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr. Kister's alleged harmful exposure to asbestos. (D.I. 1, Ex. A) On February 23, 2017, the case was removed to this court by defendant CBS Corporation pursuant to 28 U.S.C. §§ 1442(a) (1), the federal officer removal statue,[3] and 1446. (D.I. 1) On July 30, 2017, Mr. Kister died during the pendency of this action. (D.I. 62) As a result, Mrs. Kister filed an amended complaint on February 6, 2018, naming herself, individually, and as the Executor of the Estate of Mr. Kister, as plaintiff. (D.I. 69) Buffalo Pumps, Fairbanks, CertainTeed, Foster Wheeler, Union Carbide, Aurora, and Pfizer filed the pending motions for summary judgment, individually. (D.I. 75; D.I. 78; D.I. 80; D.I. 84; D.I. 86; D.I. 87; D.I. 90) Plaintiff did not respond to these motions. On March 26, 2018, CertainTeed, Foster Wheeler, and Union Carbide sent a joint letter to the court seeking dismissal for Plaintiffs failure to oppose any of their respective summary judgment motions. (D.I. 95) On April 3, 2018, Aurora sent its own letter to the court seeking dismissal. (D.I. 98) B. Facts

1. Mr. Kister's Alleged Exposure History

Plaintiff alleges that Mr. Kister developed mesothelioma as a result of exposure to asbe'stos-containing materials during his employment as a pipe-coverer with Newport News Shipbuilding and Dry Dock Co. ("Newport News") from February to August 1968. (D.I. 69 at ¶¶ 4, 14) Plaintiff contends that Mr. Kister was injured due to exposure to asbestos-containing products that Defendants manufactured, sold, distributed, licensed, or installed. (Id. at ¶¶ 5, 9) Accordingly, Plaintiff asserts claims for negligence, willful and wanton conduct, strict liability, loss of consortium, and wrongful death. (Id. at 7-14) Mr. Kister was deposed on January 26, 2017. (D.I. 76 at 1) Plaintiff did not produce any other fact or product identification witnesses for deposition.[4] In 1968, Mr. Kister was employed by Newport News and worked at Newport News Shipyard. (D.I. 69 at ¶¶ 4) During this time, Mr. Kister worked aboard the USS Mobile ("the Mobile") for seven months. (D.I. 76, Ex. A at 38:22-23) While working as a pipe-coverer aboard the Mobile, Mr. Kister performed work on pumps housed in the Mobile's pump room. (Id. at 75:23-76:76:19) Mr. Kister testified that there were many different pumps aboard the Mobile, but the three manufacturers he recalled encountering were "Warren, Worthington, and Ingersoll-Rand." (Id., Ex.Bat 33:4-11) Mr. Kister did not know of any other products which may have exposed him to asbestos. (D.I. 88, Ex. B at 58:20-25) 2. Plaintiff's Product Identification Evidence

a. Air & Liquid Systems/Buffalo Pumps

Mr. Kister did not identify an asbestos-containing Buffalo Pumps product. (See D.I. 76, Exs. A-B)

b. Fairbanks

Mr. Kister did not identify an asbestos-containing Fairbanks product. (See id.)

c. CertainTeed

Mr. Kister did not identify an asbestos-containing CertainTeed product. (See id.)

d. Foster Wheeler

Mr. Kister did not identify an asbestos-containing Foster Wheeler product. (See id.)

e. Union Carbide

Mr. Kister did not identify an asbestos-containing Foster Wheeler product. (See id.)

f. Aurora

Mr. Kister did not identify an asbestos-containing Aurora product. (See id.)

g. Pfizer

Mr. Kister did not identify an asbestos-containing Pfizer product. (See id.)

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 oflaw." 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 nomnoving 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). An assertion that a fact cannot be—or, alternatively, is—genuinely disputed must be supported either by citing to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," or by "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A) & (B). To defeat a motion for summary judgment, the nomnoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Podobnikv. US. Postal Serv., 409 F.3d 584,594 (3d Cir. 2005). The "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported 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." Id. at 249-50 (internal citations omitted); see also Celotex, 477 U.S. at 322. 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).[5] 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., 2014 WL 3783878, [*2] (D.N.J. July 31, 2014) (quoting Muskett v. Certegy Check Svcs., Inc., 2010 WL 2710555, at [*3] (D.N.J. July 6, 2010)).

B. Maritime Law

The parties do not dispute that maritime law applies to the claims and defenses asserted in this case. (D.I. 59) 1. Product Identification/Causation

In order to establish causation in an asbestos claim under maritime law, a plaintiff must show, for each defendant, "(1) that he was exposed to the defendant's product, and (2) that the product was a substantial factor[6]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. Appx. 371,375 (6th Cir. 2001)); Dumas v. ABB Grp., Inc., 2015 WL 5766460, at [*8] (D. Del. Sept. 30, 2015), report and recommendation adopted, 2016 WL 310724 (D. Del. Jan. 26, 2016); Mitchell v. Atwood & Morrill Co., 2016 WL 4522172, at [*3] (D. Del. Aug. 29, 2016), report and recommendation adopted, 2016 WL 5122668 (D. Del. Sept. 19, 2016); Denbow v. Air & Liquid Sys. Corp., 2017 WL 1199732, at [*4] (D. Del. Mar. 30, 2017), report and recommendation adopted, 2017 WL 1427247 (D. Del. Apr. 19, 2017).[7]

"In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of the plaintiff or decedent who experienced the exposure, co-worker testimony, or eye-witness testimony) or circumstantial evidence that will support an inference that there was exposure to the defendant's product for some length oftime."[8] Abbay v. Armstrong Int'l, Inc., 2012 WL 975837, at [*1] n.1 (E.D. Pa. Feb. 29, 2012) (citing Stark, 21 F. Appx. 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. Appx. 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.1 (quoting Lindstrom, 424 F.3d at 492). "Total failure to show that the defect caused or contributed to the accident will foreclose as a matter oflaw a finding of strict product[] liability." Stark, 21 F. Appx. at 376 (citations omitted).

IV. DISCUSSION

A. Air & Liquid Systems/Buffalo Pumps

The court recommends granting Buffalo Pump's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Buffalo Pumps product. During his deposition, Mr. Kister did not identify any Buffalo Pumps product. (See D.I. 76, Exs. A-B) Therefore, summary judgment should be granted.

B. Fairbanks

The court recommends granting Fairbanks' motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Fairbanks product. During his deposition, Mr. Kister did not identify any Fairbanks product. (See id.) Therefore, summary judgment should be granted.

C. CertainTeed

The court recommends granting CertainTeed's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing CertainTeed product. During his deposition, Mr. Kister did not identify any CertainTeed product. (See id.) Therefore, summary judgment should be granted.

Defendant Motion for Summary Judgment

Air & Liquid Systems/Buffalo Pumps GRANT

The Fairbanks Company GRANT

CertainTeed Corporation GRANT

Foster Wheeler LLC GRANT

Union Carbide Corporation GRANT

Aurora Pump Company GRANT

Pfizer Inc. GRANT

D. Foster Wheeler

The court recommends granting Foster Wheeler's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Foster Wheeler product. During his deposition, Mr. Kister did not identify any Foster Wheeler product. (See id.) Therefore, summary judgment should be granted.

E. Union Carbide

The court recommends granting Union Carbide's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Union Carbide product. During his deposition, Mr. Kister did not identify any Union Carbide product. (See id.) Therefore, summary judgment should be granted. F. Aurora

The court recommends granting Aurora's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Aurora product. During his deposition, Mr. Kister did not identify any Aurora product. (See id.) Therefore, summary judgment should be granted.

G. Pfizer

The court recommends granting Pfizer's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Pfizer product. During his deposition, Mr. Kister did not identify any Pfizer product. (See id.) Therefore, summary judgment should be granted.

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] Air & Liquid Systems Corporation is named individually and as a wholly-owned subsidiary of AMPCO-Pittsburgh Corporation, individually and as successor in interest to Buffalo Pumps, Inc. (D.I. 69 at, 8)

[2] All briefing associated with these motions can be found at D.I. 76; D.I. 79; D.I. 81; D.I. 85; D.I. 88; D.I. 91. [3] The federal officer removal statute permits removal of a state court action to federal court when, inter alia, such action is brought against "[t]he United States or an agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office." 28 U.S.C. § 1442(a)(1). [4] The deadline for completion of depositions of all co-worker, product identification, and other exposure testimony witnesses was September 15, 2017. (D.I. 24 at 3)

[5] 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.

[6] "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., 2011 WL 11439126, at *l 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).

[7] Previously, courts in this Circuit recognized a third element and required a plaintiff to "show that (3) the defendant manufactured or distributed the asbestos-containing product to which exposure is alleged," Abbay v. Armstrong Int'l, Inc., 2012 WL 975837, at [*1] n.1 (E.D. Pa. Feb. 29, 2012), because 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., 2013 WL 4886658, at [*7] (D. Del. Sept. 12, 2013) (citing cases); Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012). However, the Third Circuit has most recently held that a manufacturer of a "bare metal" product may be held liable for injuries sustained from later-added asbestos-containing materials, if the facts show that the plaintiff's injuries were a reasonably foreseeable result of the manufacturer's failure to provide a reasonable and adequate warning. In re: Asbestos Prod. Liab. Litig. (De Vries), 873 F.3d 232, 240 (3d Cir. 2017).

[8] 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. Appx. at 376 (quoting Harbour v. Armstrong World Indus., Inc., 1991 WL 65201, at [*4] (6th Cir. April 25, 1991)).

Sources

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