Travis v. Globe Mfg. Co. (In re Asbestos Products Liability Litigation, 2010)

Our plain-English summary of In re Asbestos Products Liability Litigation (U.S. District Court, Eastern District of Pennsylvania, November 29, 2010).

Francis Bruce Travis sued in New York state court, alleging he developed mesothelioma from asbestos exposure while working as a firefighter for the U.S. Navy at Naval Air Station New York from 1957 to 1962. The case was removed to federal court and transferred to the federal asbestos MDL in Pennsylvania. Travis said his protective turn-out coats, which he believed Globe made, contained asbestos. Globe said it never sold asbestos-containing firefighter gear, apart from a brief, unsold experiment in 1960 with a 3M material given free to a few customers. Globe also submitted a lab test showing no asbestos in another of its materials. A magistrate judge recommended summary judgment for Globe. The district court reviewed the objections and agreed. It found that a magazine listing Globe as a maker of asbestos coats did not show Travis wore such a coat, and that any finding he wore an experimental coat would be speculation. It also rejected his complaint about the test, because he had not challenged the results. Summary judgment went to Globe.

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, Eastern District of Pennsylvania
• Decided: November 29, 2010
• Stage: Summary judgment
• State: Pennsylvania

Outcome. The court overruled the plaintiff's objections and adopted the magistrate judge's recommendation, granting summary judgment to Globe Manufacturing Co. and against plaintiff Travis.

What the court held. Under New York law, a plaintiff must produce evidence that he was exposed to the specific defendant's asbestos-containing product and that the exposure was a substantial factor in causing his injury; speculation that he wore a fire suit made with asbestos material is not enough.

Issues decided: Causation, Choice of Law, Expert Testimony, Product Identification.

The people and their exposure

• Francis Bruce Travis: mesothelioma

Who	Work	Where	When	Products
Francis Bruce Travis	firefighter (the Navy); military service	Naval Air Station New York (NASNY), New York	1957-1962	asbestos textiles, Globe fire suits / turn-out coat (Globe Manufacturing Co.), 3M reflective tape

The defendants

• Globe Manufacturing Co., LLC (manufacturer)
• 3M Co. (manufacturer)

Other decisions in this case

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

• In re Asbestos Products Liability Litigation (February 25, 2009). The court denied the motions to quash filed by the doctors and plaintiffs, and granted the defendants' motions to compel in part, enforcing the subpoenas only as to documents about diagnoses relied on by plaintiffs in MDL 875.
• Larson v. Georgia Pacific (In re Asbestos Products Liability Litigation) (May 24, 2010). The court denied all four Daubert motions, allowing plaintiffs' causation experts (Brody, limited to general causation, and Legier), defense industrial hygienist Dyson's dose reconstruction testimony, and defendants' causation experts to testify.
• Vest v. McDonnell Douglas Corp. (In re Asbestos Products Liability Litigation) (May 25, 2011). The court granted the Vests' motion to remand to California state court, holding that McDonnell Douglas Corporation's removal under the federal officer removal statute was untimely.
• Thurmon v. Scapa Waycross (In re Asbestos Products Liability Litigation) (July 31, 2012). The magistrate judge granted Scapa Waycross, Honeywell International and Warren Pumps' motions to quash plaintiffs' 30(b)(6) corporate deposition notices, denied plaintiffs' motion to extend discovery and their motion to compel Scapa documents (reserving the request under Rule 56(d)), and deferred Scapa's Rule 11 sanctions motion.
• Williams v. Lockheed Martin Corp. (In re Asbestos Products Liability Litigation) (September 9, 2013). The magistrate judge denied Lockheed Martin's motion to reopen the evidentiary hearing, found that plaintiffs' counsel violated Rule 4.2 but refused to disqualify him, awarded Lockheed $10,000 in partial fees and costs, and denied plaintiffs' cross-motion for sanctions.
• Schott v. Viad Corp. (In re Asbestos Products Liability Litigation) (March 13, 2014). The court adopted the magistrate judge's report, overruled the plaintiff's objections, and granted summary judgment for Viad Corporation on all claims because the plaintiff did not show exposure to asbestos parts made or supplied by Griscom-Russell.
• Ney v. Owens-Illinois (In re Asbestos Products Liability Litigation) (August 11, 2016). The district court denied William Ney's motion to remand to Philadelphia state court, finding he joined non-diverse defendant Crown, Cork & Seal in bad faith to block removal, so Owens-Illinois's late removal was timely and stood.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Johnson v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1990). The Second Circuit affirmed the jury judgment for plaintiffs John and Ann Marie Johnson, including compensatory and punitive damages, against Celotex and Owens-Illinois; one judge dissented as to punitive damages.

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 PRODUCTS LIABILITY LITIGATION (No. VI)

FRANCES BRUCE TRAVIS, Plaintiff,

v.

3M CO., ET AL., Defendants

Consolidated Under MDL Docket No. 875, Case No. 09-70104.

November 29, 2010.

United States District Court, E.D. Pennsylvania.

MEMORANDUM

EDUARDO C. ROBRENO, Judge.

Before the Court is the report and recommendation ("R&R") issued by Magistrate Judge M. Faith Angell and Plaintiff's objections thereto. Magistrate Judge M. Faith Angell recommends that the Court grant Globe Manufacturing Co., LLC's ("Globe") motion for summary judgment. Federal jurisdiction in this case is based on diversity of citizenship under 28 U.S.C. § 1332. The issue before the Court is product identification.

I. BACKGROUND

Plaintiff Francis Bruce Travis ("Plaintiff") filed this action in the Supreme Court of the State of New York, alleging that Mr. Travis developed mesothelioma as a result of exposure to asbestos-containing materials while employed by the U.S. Navy at Naval Air Station New York ("NASNY") from 1957 until 1962. (R&R at 1-2). The action was subsequently removed to the United States District Court for the Southern District of New York, and transferred to the Eastern District of Pennsylvania as part of MDL-875 on June 12, 2009. (Transfer Order, doc. no. 1).

Plaintiff contends that he was exposed to Globe asbestos-containing fire suits while serving as a firefighter at the NASNY. (R&R at 2). Mr. Travis testified that part of his protective gear was a "turn-out coat." (Id. at 3). He wore two different coats as protective gear, one as part of his crash gear and one as part of his structural firefighting gear. (Id.). He testified that Globe was the manufacturer of the structural firefighting gear. (Id.; Travis Depo., doc. no. 124-2 at 217, 226). He testified that the coat which was part of his structural gear contained reflective tape manufactured by 3M Co. and that the tape contained asbestos. (R&R at 4; Travis Depo. at 325-26). Mr. Travis also testified that he was given used crash gear, including a used turn-out coat, which contained asbestos and was probably manufactured by Globe. (R&R at 4; Travis Depo. at 220, 224). Mr. Travis claimed that people in the Navy told him that his gear contained asbestos. (R&R at 4).

Globe argues that it never sold aluminized crash gear turn-out coats which contained asbestos and never sold any firefighter protective gear containing asbestos. (Id. at 5). According to Douglas Towle, Vice President of Globe, Globe sold two types of gear to distributors, structural firefighting suits and "approach suits." (Id. at 6). Mr. Towle testified that aluminized approach suits made up less than five percent of Globe's product line. (Towle Depo. at 66-67). For a brief period of time beginning in 1960, Globe experimented with a new material in its aluminized crash gear. (Id. at 6). This "Type 73 material" was supplied by 3M Co. (Id.). It was supplied to limited customers at no charge and was never sold or included in any production line because it did not perform well. (Id.). In 1958, Globe used an aluminized rayon material purchased from 3M Co. to make approach fire gear. This was Type 82 material. (Id.). Globe sent a swatch of this material to be chemically tested and the results confirmed that asbestos could not be present in the sample. (July 19, 2010 Test Report, doc. no. 132).

Mr. Towle testified that Globe never sold products directly to the government and that when someone in the military wore a Globe product, it would have been purchased from the inventory of a Globe supplier to meet an urgent need. (Towle Depo., doc. no. 103-1 at 57-58). Moreover, most Globe distributors did not stock approach suits because they were expensive and so any suits which went to the military were likely structural suits. (Id. at 60, 62-63).

Plaintiff submitted two advertising sections from August 1959 and July 1970 of Fire Engineering magazine, where Globe was listed as a manufacturer of asbestos-containing coats. (Doc. Nos. 124-15 and 124-16). In his deposition, Mr. Trowle testified that this was likely an administrative error. (Trowle Depo. at 86-87).

Globe moved for summary judgment, arguing that Globe never incorporated asbestos into its aluminized crash coats and never sold any firefighter protective gear containing asbestos. (Def.'s Mot. Summ. J, doc. no. 103 at 3). Magistrate Judge M. Faith Angell issued her R&R on September 28, 2010, granting Globe's motion for summary judgment.

Plaintiff raises two objections to Magistrate Judge Angell's R&R. First, Plaintiff argues that he has submitted clear proof overlooked by the R&R demonstrating that Globe used asbestos-containing material in its fire suits during the time Mr. Travis wore Globe fire suits. Second, Plaintiff argues that the R&R improperly considered Globe's testing results of its fire suit material without allowing Plaintiff the opportunity to contest the testing method or to test the fabric itself. For the reasons set forth below, Plaintiff's objections are overruled, and this Court adopts Magistrate Judge M. Faith Angell's R&R granting Globe's motion for summary judgment.

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 636(b)(1)(C), "a judge of the Court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made. A judge of the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. When evaluating a motion for summary judgment, Federal Rule of Civil Procedure 56 provides that the Court must grant judgment in favor of the moving party when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact. . . ." Fed. R. Civ. P. 56(c)(2). A fact is "material" if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248-249. "In considering the evidence the court should draw all reasonable inferences against the moving party." El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).

Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, `the burden on the moving party may be discharged by showing — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (quoting Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)). Once the moving party has thus discharged its burden the nonmoving party "may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in [Rule 56] — set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).

III. DISCUSSION

To establish proximate cause for an asbestos injury under New York law, a plaintiff must demonstrate that he was exposed to the defendant's product and that it is more likely than not that the exposure was a substantial factor in causing his injury. See Johnson v. Celotex Corp., 899 F.2d 1281, 1285-86 (2d Cir. 1990). Jurors are instructed that an act or omission is a "substantial factor. . . if it had such an effect in producing the [injury] that reasonable men or women would regard it as a cause of the [injury]." Rubin v. Pecoraro, 141 A.D.2d 525, 527 (N.Y. App. Div. 1988). A particular defendant's product need not be the sole cause of injury. However, a plaintiff "must produce evidence identifying each [defendant]'s product as being a factor in his injury." Johnson, 899 F.2d at 1286.

As set forth below, Plaintiff has failed to raise a genuine issue of material fact as to whether Mr. Travis was exposed to asbestos-containing products manufactured by Globe. Each of Globe's objections to the Magistrate Judge's report and recommendation will be addressed in turn.

A. Plaintiff has submitted clear proof overlooked by the R&R demonstrating

that Globe used asbestos-containing material in its fire suits during the time

that Mr. Travis wore Globe fire suits

Globe has presented evidence that the only time it sold asbestos-containing coats was when it experimented with the "73 material" for a short amount of time. Globe never sold any coats containing the "73 material," but provided them to some customers at no charge on an experimental bases. Globe did not supply products directly to the U.S. Navy, but may have supplied an asbestos-containing coat containing the "73 material" to a customer who in turn supplied the coat to the U.S. Navy. However, as the 73 material was used in on an experimental basis in crash gear and crash gear made up less than five percent of Globe's production line, any finding that Mr. Travis wore a fire suit made with "73 material" would be based on speculation.

Plaintiff presents the excerpts from Firefighter Engineering listing Globe as a manufacturer of asbestos-containing coats. Even if Globe was correctly listed as a manufacturer of asbestos-containing coats in this magazine, this does not establish that Mr. Travis was ever exposed to a Globe coat which contained asbestos.

B. The R&R improperly considered Globe's testing results of its fire suit

material without allowing Plaintiff the opportunity to contest the testing

method or to test the fabric itself.

Defendant argues that the test was produced pursuant to Plaintiff's request on or about July 20, 2010 and that Plaintiff decided not to take further action at that time. (Pl.'s Response, doc. no. 143 at 5). Plaintiff has not made any specific objections as to any flaws in Defendant's test results. This Court overrules Plaintiff's objection that the test should be rejected as Plaintiff chose not to contest the results.

IV. CONCLUSION

Each of Plaintiff's objections to the Magistrate Judge Angell's R&R are overruled. The Court adopts Magistrate Judge Angell's R&R granting Defendant Globe Manufacturing Co. LLC's motion for summary judgment.

An appropriate order follows.

Sources

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