No fee unless we recover compensation for your family Text size 833-4-ASBESTOS (833-427-2378) Free Case Review

In re Asbestos Litigation Charlevoix v. CBS Corporation (2016)

Our plain-English summary of In re Asbestos Litigation Charlevoix v. CBS Corporation (U.S. District Court, District of Delaware, December 29, 2016).

Stephen Charlevoix and his wife Marilyn sued several companies in Delaware state court in 2015, claiming his mesothelioma resulted from asbestos exposure. The case was removed to federal court. The opinion says he served in the Navy from 1961 to 1964 as a boiler tender on the USS Valley Forge, where he believed he was exposed while cleaning boilers. He later worked as a grinder at Grede Foundry, as a maintenance worker and equipment installer for MJ Electric, and ran a logging business. Four defendants (CBS/Westinghouse, Goodyear, FMC/Northern Pump and Ingersoll Rand) moved for summary judgment, and the plaintiffs did not respond. The magistrate judge noted that a failure to respond is not alone enough for judgment, but found that Mr. Charlevoix had not identified an asbestos-containing product made by any of the four. Applying the substantial factor test under maritime law for Navy claims and Michigan law for land-based claims, the judge recommended granting all four motions. Motions by other defendants were to be addressed 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.

You don't need the product names or old records. No fee unless we recover compensation for your family.

Call 833-4-ASBESTOS Request a review

The decision

Outcome. 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.

What the court held. Under maritime and Michigan law, a plaintiff must show exposure to the defendant's asbestos-containing product that was a substantial factor in causing the injury; with no evidence identifying such a product, summary judgment is proper even when unopposed.

Issues decided: The Bare-Metal Defense, Causation, Choice of Law, Maritime Law and Navy Ships, 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 1966-1978

The defendants

Other decisions in this case

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

  • Charlevoix v. John Crane (In re Asbestos Litigation) (February 16, 2017). 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.

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 CHARLEVOIX et al., Plaintiffs,

v.

CBS CORPORATION, etal. Defendants.

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

December 29, 2016.

United States District Court, D. Delaware.

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

Stephen Charlevoix, Plaintiff, represented by Laura M. Cabutto, pro hac vice.

Marilyn Charlevoix, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC & Laura M. Cabutto, (See above for address), pro hac vice.

CBS Corporation, Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC & Shawn Edward Martyniak, Swartz Campbell LLC.

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..

FMC Corporation, Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP.

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.

Goodyear Tire & Rubber Company, Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

Ingersoll Rand, Defendant, represented by Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. 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, (See above for address), Armand J. Della Porta, Jr., (See above for address), Jennifer D. Smith, (See above for address) & 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..

CBS Corporation, Cross Defendant, represented by Shawn Edward Martyniak, Swartz Campbell LLC.

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

FMC Corporation, Cross Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Goodyear Tire & Rubber Company, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

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, (See above for address), Armand J. Della Porta, Jr., (See above for address), Jennifer D. Smith, (See above for address) & 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..

CBS Corporation, Cross Defendant, represented by Shawn Edward Martyniak, Swartz Campbell 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.

FMC Corporation, Cross Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Goodyear Tire & Rubber Company, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

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

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

FMC Corporation, Cross Claimant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. FMC Corporation, Cross Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. CBS Corporation, Cross Defendant, represented by Shawn Edward Martyniak, Swartz Campbell 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.

Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Goodyear Tire & Rubber Company, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

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, (See above for address), Armand J. Della Porta, Jr., (See above for address), Jennifer D. Smith, (See above for address) & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

CBS Corporation, Cross Defendant, represented by Shawn Edward Martyniak, Swartz Campbell 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..

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.

FMC Corporation, Cross Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Goodyear Tire & Rubber Company, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

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, (See above for address), Armand J. Della Porta, Jr., (See above for address), Jennifer D. Smith, (See above for address) & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

CBS Corporation, Cross Defendant, represented by Shawn Edward Martyniak, Swartz Campbell 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.

FMC Corporation, Cross Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Goodyear Tire & Rubber Company, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

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, (See above for address), Armand J. Della Porta, Jr., (See above for address), Jennifer D. Smith, (See above for address) & 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. CBS Corporation, Cross Defendant, represented by Shawn Edward Martyniak, Swartz Campbell 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.

FMC Corporation, Cross Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Goodyear Tire & Rubber Company, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

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, (See above for address), Armand J. Della Porta, Jr., (See above for address), Jennifer D. Smith, (See above for address) & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

CBS Corporation, Cross Defendant, represented by Shawn Edward Martyniak, Swartz Campbell 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.

FMC Corporation, Cross Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Goodyear Tire & Rubber Company, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

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, (See above for address), Armand J. Della Porta, Jr., (See above for address), Jennifer D. Smith, (See above for address) & 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.

CBS Corporation, Cross Defendant, represented by Shawn Edward Martyniak, Swartz Campbell 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.

FMC Corporation, Cross Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. Fiat Allis North America, Cross Defendant, represented by Peter S. Murphy, Eckert Seamans Cherin & Mellott, LLC. Goodyear Tire & Rubber Company, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

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, (See above for address), Armand J. Della Porta, Jr., (See above for address), Jennifer D. Smith, (See above for address) & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

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

CBS Corporation, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC & Shawn Edward Martyniak, Swartz Campbell 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.

FMC Corporation, Cross Defendant, represented by Brian Tome, Reilly Janiczek & McDevitt PC, Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP & Daniel Partick Daly, Kelley Jasons McGowan Spinelli & Hanna LLP. 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.

Goodyear Tire & Rubber Company, Cross Defendant, represented by Amaryah K. Bocchino, Manion Gaynor & Manning LLP, Jason A. Cincilla, Manion Gaynor & Manning LLP, Ryan William Browning, Manion Gaynor & Manning LLP, Whitney L. Frame, Manion Gaynor & Manning LLP & William Bruce Larson, Jr., Manion Gaynor & Manning LLP.

Ingersoll Rand, Cross Defendant, represented by Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. John Crane Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

Defendant Motion for Summary Judgment CBS Corporation/Westinghouse GRANT The Goodyear Tire & Rubber Co. GRANT FMC Corporation/Northern Pump GRANT Ingersoll Rand Company 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..

REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

This Report and Recommendation is limited to four pending motions for summary judgment in this asbestos-related personal injury action. The motions were filed by Defendants, CBS Corporation[1] ("CBS") (D.I. 146), The Goodyear Tire & Rubber Company ("Goodyear") (D.1. 152), FMC Corporation[2] ("FMC") (D.I. 156), and Ingersoll Rand Company ("Ingersoll") (D.1. 166) (collectively "Defendants").[3] 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 regarding 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) CBS, Goodyear, and FMC filed motions for summary judgment on September 30, 2016. (D.l. 146, 152, 156) Ingersoll filed its motion on October 4, 2016. (D.l. 166) Plaintiffs did not respond to these motions. On November 8, 2016, counsel for Ingersoll and FMC sent a letter to the court seeking dismissal for Plaintiffs' failure to oppose the summary judgment motions. (D.I. 188, 189) Counsel for CBS and Goodyear filed similar letters on November 10, 2016, and November 14, 2016. (D.l. 190, 192)

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, and from 1961to1978 from his work with various employers. (D.I. 1 at 1) 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 if 4) Accordingly, Plaintiffs assert negligence, punitive damages, and loss of consortium claims. (Id, Ex. 1)

Mr. Charlevoix was deposed on December 15, 2015.[4] (D.I. 57) Product identification witness, James Kimble, was deposed on May 24, 2016. (D.I. 67) Additionally, product identification witness, Pat Mulligan, 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. (Id. at ¶ 6; 12/15/15 Video Tr. at 85: 10-22)

After his time 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. CBS Corporation/Westinghouse

Mr. Charlevoix did not identify an asbestos-containing Westinghouse or CBS product. (See D.I. 147, Ex. B, Ex. C, Ex. D) b. The Goodyear Tire & Rubber Company

Mr. Charlevoix did not identify an asbestos-containing Goodyear product. (See D.I. 153)

c. FMC Corporation/Northern Pump

Mr. Charlevoix did not identify an asbestos-containing FMC or Northern Pump product. (See D.I. 157, Ex. A, Ex. B, Ex. C) d. Ingersoll Rand Company

Mr. Charlevoix did not identify an asbestos-containing Ingersoll product. (See D.I. 167, deadline to complete depositions of all defense fact witnesses was September 30, 2016. (D.I. if 4(c)(v)) Ex.B,Ex.C)

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 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 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., 891F.2d458, 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 oflaw. 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 ifthe 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., 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.[6] 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[7] 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."[8] Abbay v. Armstrong Int'l, Inc., E.D. PA Civil Action No. 2:10-CV-83248-ER, 20.12 WL 975837, at* 1 n.1 (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 oftime."[9] Abbay, 2012 WL 975837, at* 1 n.1 (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.1 (quoting Lindstrom, 424 F.3d at 492).

Should the court decide that causation has been established, some Defendants rely upon the "bare metal" defense to avoid liability on the basis that they have no duty to Plaintiffs for asbestos-containing replacement parts they did not manufacture or distribute. Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 801-02 (E.D. Pa. 2012) (explaining the policy rationale for holding only those who make or sell the injurious product liable for the injuries alleged). "The so-called `bare metal defense' is recognized by maritime law, such that 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." Carper v. Gen. Elec. Co., Civil Action No. 2:12-06164-ER, 2014 WL 6736205, at [*1] (E.D. Pa. Sept. 4, 2014) (citing Conner, 842 F. Supp. 2d at 801).

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. 157 at 4)

Under Michigan law, a plaintiff must establish that a particular defendant's conduct was a substantial factor in causing the plaintiffs injury.[10] 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., 571N.W.2d530, 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 Roehling v. 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. CBS Corporation/Westinghouse

The court recommends granting CBS'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 Westinghouse or CBS. Plaintiffs fail to meet the "substantial factor" test, because Plaintiffs did not produce any evidence tending to establish exposure to CBS or Westinghouse products. Therefore, the court recommends granting summary judgment in favor of CBS.

Defendant Motion for Summary Judgment CBS Corporation/Westinghouse GRANT The Goodyear Tire & Rubber Co. GRANT FMC Corporation/Northern Pump GRANT Ingersoll Rand Company GRANT

B. The Goodyear Tire & Rubber Company

The court recommends granting Goodyear'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 Goodyear. Plaintiffs fail to meet the "substantial factor" test, because Plaintiffs did not produce any evidence tending to establish exposure to Goodyear products. Therefore, the court recommends granting summary judgment in favor of Goodyear.

C. FMC Corporation/Northern Pump

The court recommends granting FMC'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 FMC or Northern Pump. Plaintiffs fail to meet the "substantial factor" test under both maritime law and Michigan law, because Plaintiffs did not produce any evidence tending to establish exposure to FMC or Northern Pump products. Therefore, the court recommends granting summary judgment in favor of FMC.

D. Ingersoll Rand Company

The court recommends granting Ingersoll'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 Ingersoll. Plaintiffs fail to meet the "substantial factor" test, because Plaintiffs did not produce any evidence tending to establish exposure to Ingersoll products. Therefore, the court recommends granting summary judgment in favor of Ingersoll.

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] CBS Corporation is sued as a successor-in-interest to Westinghouse Electric Corporation ("Westinghouse"). (D.1. 147 at 1) [2] Northern Pump is a predecessor company of FMC. (D.I. 157 at 1)

[3] Defendants John Crane Inc., Crane Co., Caterpillar Inc., VIAD Corporation, Ford Motor Company, Fiat Ams North America, and Warrant Pumps also filed motions for summary judgment. (D.1. 144, 150, 154, 158, 160, 162, 164) Those motions will be addressed separately. [4] The deadline to complete depositions of all plaintiffs alleging exposure was April 15, 2016. (D.l. 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 [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 ifthe 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] 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).

[7] "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 ofresponsibility." Restatement (Second) of Torts§ 431 cmt. a (1965). [8] 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. 3 M 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). [9] 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)).

[10] 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

How to cite it

Cite the decision

In re Asbestos Litigation Charlevoix v. CBS Corporation, No. Civil Action No. 15-726-SLR-SRF (U.S. District Court, District of Delaware December 29, 2016).

Cite our summary

“Summary of In re Asbestos Litigation Charlevoix v. CBS Corporation.” AsbestosClaims.Law Library. https://asbestosclaims.law/library/cases/in-re-asbestos-litigation-charlevoix-v-cbs-corporation-2016.

ACL Doc numbers and their short links never change. See how to cite the Library.

Talk with an asbestos lawyer

Start with what you remember, and we'll take it from there.

Call 833-4-ASBESTOS Request a free case review

This page is provided for general informational purposes and does not constitute legal advice. Every asbestos case turns on its own facts, exposure history, diagnosis, deadlines, available evidence, and applicable law. Reviewing this page does not create an attorney-client relationship. For advice about your specific situation, call 833-4-ASBESTOS for a free case review.