In re Asbestos Litigation Evans v. Alfa Laval, Inc. (2017)

Our plain-English summary of In re Asbestos Litigation Evans v. Alfa Laval, Inc. (U.S. District Court, District of Delaware, February 15, 2017).

Icom Henry Evans and his wife Johanna sued several companies in Delaware state court in 2015, claiming his mesothelioma came from asbestos exposure. The case was removed to federal court. Mr. Evans said he worked as a fireman and boiler tender in the U.S. Navy from 1957 to 1967, on the USS Kearsarge and the USS John A. Bole. He said he was exposed to asbestos from gaskets and from hammering out refractory brick inside boilers. He also said he changed automobile brakes from the 1960s to the 1990s. Four defendants moved for summary judgment: Gardner Denver, Flowserve (as successor to Edward Valves), Atwood & Morrill, and Nash Engineering. The plaintiffs did not respond. The magistrate judge noted that maritime law applied and required proof of exposure to the defendant's product that was a substantial factor in causing the injury. Mr. Evans identified no product made by any of the four defendants. The magistrate judge recommended granting all four 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.

The decision

• Court: U.S. District Court, District of Delaware
• Decided: February 15, 2017
• Docket: Civil Action No. 15-681-SLR-SRF
• Stage: Summary judgment
• State: Delaware

Outcome. The magistrate judge recommended granting the unopposed summary judgment motions of Gardner Denver, Flowserve, Atwood & Morrill and Nash Engineering against plaintiffs Icom and Johanna Evans, because Mr. Evans identified no product made by any of them.

What the court held. Under maritime law a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. Without evidence of exposure to a defendant's product, summary judgment is proper even when the motion is unopposed.

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

The people and their exposure

• Icom Henry Evans: mesothelioma

Who	Work	Where	When	Products
Icom Henry Evans	boilerman (the Navy); military service	USS Kearsarge	1957-1961	gaskets and packing
Icom Henry Evans	fireman and boiler tender (the Navy); military service	USS John A. Bole	1961-1967	refractory products
Icom Henry Evans	changed brakes on family automobiles		early 1960s to 1990s	brakes, clutches and friction materials

The defendants

• Gardner Denver Inc. (manufacturer)
• Flowserve US Inc. (successor to Edward Valves, Inc.) (manufacturer)
• Atwood & Morrill Company, Inc. (manufacturer)
• Nash Engineering Company (manufacturer)

Other decisions in this case

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

• Evans v. Flowserve US Inc. (March 8, 2017). The district court adopted the magistrate judge's report and granted the unopposed summary judgment motions of Gardner Denver, Flowserve, Atwood & Morrill and Nash Engineering against plaintiffs Icom and Johanna Evans, because Mr. Evans identified no product made by any of them.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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 ICOM HENRY EVANS, and JOHANNA ELAINE EVANS, Plaintiffs,

v.

ALFA LAVAL, INC., etal., Defendants.

Civil Action No. 15-681-SLR-SRF.

February 15, 2017.

United States District Court, D. Delaware.

Icom Henry Evans, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC.

Icom Henry Evans, Plaintiff, represented by Charles E. Soechting, Jr., Law Offices Of Charles E Soechting Jr Pllc, pro hac vice & Samuel I. Iola, Simon Greenstone Panatier Bartlett, PC, pro hac vice.

Johanna Elaine Evans, Plaintiff, represented by David W. deBruin, The deBruin Firm LLC & Samuel I. Iola, Simon Greenstone Panatier Bartlett, PC, pro hac vice.

Flowserve US Inc., Defendant, represented by Bernadette M. Plaza, Goldfein & Joseph & Willard F. Preston, III, Goldfein & Joseph.

Foster Wheeler Energy Corporation, Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC, Shawn Edward Martyniak, Swartz Campbell LLC & Allison L. Texter, Swartz Campbell LLC.

Gardner Denver Inc., Defendant, represented by Krista Reale Samis, Eckert Seamans Cherin & Mellott, LLC.

General Electric Company, Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC.

IMO Industries, 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..

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

Nash Engineering Company, Defendant, represented by Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott

Thompson, Franklin & Prokopik.

Warren Pumps, LLC, Defendant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Atwood & Morrill Company Inc., Defendant, represented by Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin & Prokopik.

Warren Pumps, LLC, Cross Claimant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.

Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.

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

IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.. John Crane, Inc., Cross Defendant, represented by Jonathan L. Parshall, Murphy, Spadaro & Landon.

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

IMO Industries, 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..

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

Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

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

IMO Industries, 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..

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

Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Icom Henry Evans, Cross Defendant, represented by Charles E. Soechting, Jr., Law Offices Of Charles E Soechting Jr Pllc. Foster Wheeler Energy Corporation, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC & Allison L. Texter, Swartz Campbell LLC.

IMO Industries, 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..

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

Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.

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

General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC.

IMO Industries, 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..

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

Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

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

General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC.

IMO Industries, 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..

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

Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin & Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin.

Atwood & Morrill Company Inc., Cross Claimant, represented by Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin & Prokopik.

Atwood & Morrill Company Inc., Cross Defendant, represented by Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin & Prokopik.

Icom Henry Evans, Cross Defendant, represented by Charles E. Soechting, Jr., Law Offices Of Charles E Soechting Jr Pllc. Flowserve US Inc., Cross Defendant, represented by Bernadette M. Plaza, Goldfein & Joseph & Willard F. Preston, III, Goldfein & Joseph.

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

General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC.

IMO Industries, 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..

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

Nash Engineering Company, Cross Defendant, represented by Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin & Prokopik.

Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.

Nash Engineering Company, Cross Claimant, represented by Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin & Prokopik.

Nash Engineering Company, Cross Defendant, represented by Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin & Prokopik.

Atwood & Morrill Company Inc., Cross Defendant, represented by Paul D. Sunshine, McGivney & Kluger, P.C. & Eric Scott Thompson, Franklin & Prokopik.

Icom Henry Evans, Cross Defendant, represented by Charles E. Soechting, Jr., Law Offices Of Charles E Soechting Jr Pllc. Flowserve US Inc., Cross Defendant, represented by Bernadette M. Plaza, Goldfein & Joseph & Willard F. Preston, III, Goldfein & Joseph.

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

General Electric Company, Cross Defendant, represented by Beth E. Valocchi, Swartz Campbell LLC.

IMO Industries, 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..

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

Warren Pumps, LLC, Cross Defendant, represented by Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin.

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, Gardner Denver, Inc. ("Gardner Denver") (D.I. 146),

Defendant Motion for Summary Judgment Gardner Denver Inc. GRANT Flowserve US Inc. GRANT Atwood & Morrill

Company Inc. GRANT Nash Engineering Company GRANT

Flowserve US Inc.[1] ("Flowserve") (D.I. 149), Atwood & Morrill Company, Inc. ("Atwood") (D.I. 160), and Nash Engineering Company ("Nash") (D.I. 161) (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

Icom Henry Evans and Johanna Elaine Evans ("Plaintiffs") filed this asbestos action in the Delaware Superior Court against multiple defendants on June 11, 2015, asserting claims regarding Mr. Evans' alleged harmful exposure to asbestos. (D.I. 1 at ¶ 1) Defendant Foster Wheeler removed the action to this court on August 4, 2015. (D.I. 1) Gardner Denver, Flowserve, Atwood, and Nash filed motions for summary judgment on October 7, 2016. (D.I. 146, 149, 160, 161) Plaintiffs did not respond to these motions. On December 30, 2016, counsel for Flowserve sent a letter to the court seeking dismissal for Plaintiffs' failure to oppose the summary judgment motion. (D.I. 199) Counsel for Gardner Denver filed a similar letter on January 23, 2017.[2] (D.I. 204)

B. Facts

1. Plaintiff's alleged exposure history

Plaintiffs allege that Mr. Evans developed mesothelioma as a result of exposure to asbestos-containing products during the course of his employment as a fireman and boiler tender with the U.S. Navy from 1957 to 1967. (D.I. 1, Ex. A at ¶ 29(a)) Plaintiffs contend that Mr. Evans was injured due to exposure to asbestos-containing products that Defendants manufactured, sold, distributed, licensed, or installed. (Id., Ex. A at ¶ 32) Accordingly, Plaintiffs assert negligence, strict liability, punitive damages, and loss of consortium claims. (Id., Ex. A)

Mr. Evans was deposed on April 7, 2016. (D.I. 100) Plaintiffs did not produce any other fact or product identification witnesses for deposition.[3] Mr. Evans testified that he enlisted in the Navy in July of 1957. (4/7/16 Video Tr. at 20:5-8) After boot camp, he went to a training school for boilermen. (Id. at 20:24-21:8) His training there consisted of learning how to tend and operate boilers on ships. (Id. at 21:7-8)

After training, Mr. Evans was stationed on the USS Kearsarge from 1957 to 1961. (Id. at 22:5-23:9) There, he worked as a boilerman. (Id. at 24:9) On the USS Kearsarge, Mr. Evans operated and maintained the boilers when repairs were required. (Id. at 26: 1-6) He believes he was exposed to asbestos while operating and maintaining the boilers because he worked with asbestos-containing gaskets. (Id. at 28:3-19)

In 1961, Mr. Evans left the Navy, but re-enlisted a month or so later, and was assigned to the USS John A. Bole. (Id. 34:15-22) Mr. Evans testified that he had the same duty assignment as he was assigned on the USS Kearsarge. (Id. at 36: 17-21) He believes he was exposed to asbestos while hammering out refractory brick inside the boilers. (Id. at 45:13-46:8) While hammering, Mr. Evans noticed particles being released into the air. (Id. at 48:5-49:1)

From the early 1960s and until the 1990s, Mr. Evans also changed the brakes on automobiles owned by his family. (Id. 91:5-92:4) Mr. Evans believes he was exposed to asbestos while cleaning out the debris inside tire drums. (Id. at 92: 5-94:11) 2. Plaintiffs' product identification evidence

a. Gardner Denver Inc.

Mr. Evans did not identify any products manufactured by Gardner Denver. (See D.I. 148)

b. Flowserve US Inc./Edward Valves, Inc.

Mr. Evans not identify any products manufactured by Flowserve, successor-in-interest to Edward Valves. (See D.I. 150) Additionally, Mr. Evans did not identify any products manufactured by Edward Valves. (Id.)

c. Atwood & Morrill Company, Inc.

Mr. Evans did not identify any products manufactured by Atwood. (See D.I. 160)

d. Nash Engineering Company

Mr. Evans did not identify any products manufactured by Nash. (See D.I. 161)

III. LEGAL STANDARDS

A. Summary Judgment

"The court shall grant summary judgment ifthe 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., 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-movingparty on the issue. See Anderson, 477 U.S. at 247-49. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Clark v. Welch, Civ. N0.14-029-SLR, 2016 WL 859259, at [*2] (D. Del. Mar. 3, 2016). If the non-movant fails to make a sufficient showing on an essential element of its case on which it bears the burden of proof, then the movant is entitled to judgment as a matter of law. See Celotex, 477 U.S. at 322.

If a party fails to address another party's assertion of fact, the court may consider the fact undisputed, or grant summary judgment if the facts show that the movant is entitled to it. Fed. R. Civ. P. 56(e)(2)-(3).[4] 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.[5] (D.I. 136) 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[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. 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."[7] Abbay v. Armstrong Int'l, Inc., E.D. PA Civil Action No. 2:10-CV-83248-ER, 2012 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 of time."[8] 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). there always lurks the idea of responsibility." Restatement (Second) of Torts § 431 cmt. a (1965).

IV. Discussion

A. Gardner Denver Inc.

The court recommends granting Gardner Denver's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Evans was exposed to an asbestos-containing product made by Gardner Denver. Because Plaintiffs did not produce any evidence tending to establish exposure to Gardner Denver's products, Plaintiffs fail to meet the "substantial factor" test. Therefore, the court recommends granting summary judgment in favor of Gardner Denver. B. Flowserve US Inc./Edwards Valves Inc.

The court recommends granting Flowserve's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Evans was exposed to an asbestos-containing product made by Flowserve. Because Plaintiffs did not produce any evidence tending to establish exposure to Flowserve or Edwards Valves products, Plaintiffs fail to meet the "substantial factor" test. Therefore, the court recommends granting summary judgment in favor of Flowserve. C. Atwood & Morrill Company, Inc.

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

D. Nash Engineering Company

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

V. Conclusion

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

Defendant Motion for Summary Judgment Gardner Denver Inc. GRANT Flowserve US Inc. GRANT Atwood & Morrill

Company Inc. GRANT Nash Engineering Company GRANT

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] Flowserve is sued as a successor-in-interest to Edward Valves, Inc. ("Edward Valves") (D.I. 150 at 1)

[2] Moving Defendants, Atwood and Nash, did not submit a letter request for dismissal but the court will consider their respective motions which appear pending and unopposed, according to the docket.

[3] The deadline to complete depositions of all plaintiffs alleging exposure was January 25, 2016. (D.I. 51 at if 4(c)(iii)) The deadline to complete depositions of all co-worker, product identification, and other exposure testimony witnesses was May 6, 2016. (D.I. 51 at if 4(c)(iv)) The deadline to complete depositions of all fact witnesses was September 2, 2016. (D.I. 51 at if 4(c)(v))

[4] 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.

[5] 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).

[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., E.D. PA Civil Action No. 2:09-69578, 2011WL11439126, 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

[7] 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). [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. 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)).

Sources

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