Johansen v. Air & Liquid Systems Corporation (D. Del., Jan. 25, 2019)

Our plain-English summary of Johansen v. Air & Liquid Systems Corporation (U.S. District Court, District of Delaware, January 25, 2019).

William Johansen sued several companies in Delaware state court, later removed to federal court, saying he developed mesothelioma from asbestos exposure. He alleged exposure during Navy service as a machinist mate, civilian work as a pipefitter, and work on cars. This report addressed only Ford Motor Company's summary judgment motion. Johansen owned a used 1966 F-150 and a 1963 F-250 and did about five brake jobs in total over seventeen years, sanding replacement brakes labelled "Ford" or "FOMC". The magistrate judge, applying Washington law, found his testimony enough to identify Ford brakes, but found the exposure de minimis and not a substantial factor in causing his disease. She also found Ford had no duty to warn about replacement parts made by others, and that Washington law does not allow punitive damages without legislative authorization. Johansen offered no argument on the last two points. She recommended granting Ford's motion.

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: January 25, 2019
• Docket: Civil Action No. 17-452-MN-SRF
• Stage: Summary judgment
• State: Delaware

Outcome. The magistrate judge recommended granting Ford Motor Company's summary judgment motion on the negligence, failure-to-warn and punitive damages claims, because Johansen's brake exposure was de minimis and Ford owed no duty to warn about third-party replacement parts; this favors Ford over plaintiff Johansen.

What the court held. Under Washington law a plaintiff must show asbestos exposure from the defendant's product was a substantial factor in causing injury, and about five brake jobs over seventeen years was de minimis exposure that did not meet that standard. A manufacturer generally has no duty to warn of dangers of another manufacturer's product, and Washington does not allow punitive damages unless the legislature authorizes them.

Issues decided: The Bare-Metal Defense, Causation, Failure to Warn, Product Identification, Punitive Damages, Venue, Removal and Transfer.

The people and their exposure

• William J. Johansen: mesothelioma

Who	Work	Where	When	Products
William J. Johansen	owner performing brake jobs on his own Ford pickups		late 1960s-1986	brakes, clutches and friction materials, Ford brakes, FOMC brakes, 1966 F-150, 1963 F-250
William J. Johansen	machinist mate (the Navy); military service	United States Navy
William J. Johansen	civilian pipefitter

The defendants

• Ford Motor Company (manufacturer)

Other decisions in this case

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

• Johansen v. Air & Liquid Systems Corporation (February 13, 2019). The magistrate judge recommended granting summary judgment to all fourteen defendants, such as Air & Liquid, Crosby, Flowserve and Warren Pumps, and rejecting plaintiff Johansen's claims because he did not respond to the motions or show his exposure to their products.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Braaten v. Saberhagen Holdings (Washington Supreme Court, 2008). The Washington Supreme Court reversed the Court of Appeals and reinstated the trial court's summary judgment orders in favor of pump and valve manufacturers Buffalo Pumps, IMO, Crane and Yarway, against the Braaten estate.
• Lockwood v. AC & S, Inc. (Washington Supreme Court, 1987). The Washington Supreme Court affirmed the Court of Appeals and the trial court, leaving in place the $183,372 jury verdict for Albert Lockwood against Raymark Industries.
• Estate OF Brandes v. Brand Insulations, Inc. (Washington Court of Appeals, 1st Division, 2017). The Court of Appeals affirmed the jury verdict for Barbara Brandes's estate against Brand Insulations and reversed the trial court's remittitur, ordering the full $3,500,000 verdict reinstated.
• Morgan v. Aurora Pump Co. (Washington Court of Appeals, 1st Division, 2011). The Court of Appeals reversed the trial court's summary judgment dismissal of the Morgans' claims against the pump and valve makers (Aurora, Buffalo, IMO, Warren, Weir and Powell) and remanded for trial.

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.

WILLIAM J. JOHANSEN Plaintiff,

v.

AIR & LIQUID SYSTEMS CORPORATION et al, Defendants.

Civil Action No. 17-452-MN-SRF.

January 25, 2019.

United States District Court, D. Delaware.

William J. Johansen, Plaintiff, represented by Bartholomew J. Dalton, Dalton & Associates P.A., Adam Balick, Balick & Balick, LLC, Andrew Caulfield 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 Ampco-Pittsburgh Corporation, individually and as successor in interest to Buffalo Pumps & The Fairbanks Company, Defendants, represented by Timothy A. Sullivan, III, Wilbraham, Lawler & Buba.

Armstrong International, Inc., Defendant, represented by Robert Alexander Ranieri, Dickie McCamey & Chilcote, P.C. Atwood & Morrill Co., doing business as Weir Valves & Controls USA, Inc. & Nash Engineering Holdings LLC, individually and as succesor to The Nash Engineering Company, Defendants, represented by Elizabeth Grabey, McGivney & Kluger, P.C.

Crane Co., Defendant, represented by Nicholas E. Skiles, Swartz Campbell LLC & Allison L. Texter, Swartz Campbell LLC. Flowserve U.S., Inc., individually and solely as successor to Durco, Duriron, Anchor Darling, Superior Group, Edward Vogt, Vogt Valves, Nordstrom Valves, Edward Valve, Inc., and Rockwell Manufacturing Company, Defendant, represented by Willard F. Preston, III, Goldfein & Joseph & Jessica L. Reno, Manning Gross + Massenburg LLP.

FMC Corporation, individually and as successor through acquisition of Northern Pump Company, Chicago Pump Company, and Peerless Pump Company, Defendant, represented by Neal C. Glenn, Kelley Jasons McGowan Spinelli & Hanna LLP. Ford Motor Company, Defendant, represented by Christian J. Singewald, White & Williams & Rochelle Libid Gumapac, White & Williams.

Gardner Denver, Inc., Defendant, represented by Matthew P. Donelson, Eckert Seamans Cherin & Mellott, LLC. Goulds Pumps, Incorporated & ITT Corporation, Defendants, represented by Kelly A. Costello, Morgan Lewis & Bockius LLP.

IMO Industries, Inc., Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. Jenkins Bros., Defendant, represented by Brian Tome, Reilly, Janiczek, McDevitt, Henrich & Cholden, P.C. Kunkle Industries, Inc., Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC. Neles-Jamesbury, Inc., Defendant, represented by Joseph C. Schoell, Drinker Biddle & Reath LLP & Ryan T. Costa, Drinker Biddle & Reath LLP.

Warren Pumps, LLC, Defendant, represented by Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. Crosby Valve LLC, Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC & Donald Robert Kinsley, Maron Marvel Bradley & Anderson LLC.

Anchor/Darling Valve Company, Defendant, represented by David Phillip Primack, McElroy Deutsch Mulvaney & Carpenter LLP.

Warren Pumps, LLC, Cross Claimant, represented by Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. Warren Pumps, LLC, Cross Defendant, represented by Jessica Lee Tyler, Marshall, Dennehey, Warner, Coleman & Goggin. Air & Liquid Systems Corporation, individually and as wholly-owned subsidiary of Ampco-Pittsburgh Corporation, individually and as successor in interest to Buffalo Pumps & The Fairbanks Company, Cross Defendants, represented by Timothy A. Sullivan, III, Wilbraham, Lawler & Buba.

Crane Co., Cross Defendant, represented by Nicholas E. Skiles, Swartz Campbell LLC & Allison L. Texter, Swartz Campbell LLC.

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

IMO Industries, Inc., Cross Defendant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. William J. Johansen, Cross Defendant, represented by Bartholomew J. Dalton, Dalton & Associates P.A., Adam Balick, Balick & Balick, LLC, Andrew Caulfield Dalton, Dalton & Associates P.A., Ipek Kurul Medford, Dalton & Associates, P.A. & Michael Collins Smith, Balick & Balick, LLC.

Neles-Jamesbury, Inc., Cross Claimant, represented by Joseph C. Schoell, Drinker Biddle & Reath LLP. Neles-Jamesbury, Inc., Cross Defendant, represented by Joseph C. Schoell, Drinker Biddle & Reath LLP. Anchor/Darling Valve Company, Cross Defendant, represented by David Phillip Primack, McElroy Deutsch Mulvaney & Carpenter LLP.

Crosby Valve LLC, Cross Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC & Donald Robert Kinsley, Maron Marvel Bradley & Anderson LLC.

Flowserve U.S., Inc., individually and solely as successor to Durco, Duriron, Anchor Darling, Superior Group, Edward Vogt, Vogt Valves, Nordstrom Valves, Edward Valve, Inc., and Rockwell Manufacturing Company, Cross Claimant, represented by Willard F. Preston, III, Goldfein & Joseph & Jessica L. Reno, Manning Gross + Massenburg LLP.

Flowserve U.S., Inc., individually and solely as successor to Durco, Duriron, Anchor Darling, Superior Group, Edward Vogt, Vogt Valves, Nordstrom Valves, Edward Valve, Inc., and Rockwell Manufacturing Company, Cross Defendant, represented by Willard F. Preston, III, Goldfein & Joseph & Jessica L. Reno, Manning Gross + Massenburg LLP.

Red-White Valve Corp, Cross Defendant, represented by Mary E. Sherlock, Weber Gallagher Simpson Stapleton Fires & Newby LLP.

The Fairbanks Company & Air & Liquid Systems Corporation, individually and as wholly-owned subsidiary of Ampco-Pittsburgh Corporation, individually and as successor in interest to Buffalo Pumps, Cross Claimants, represented by Timothy A. Sullivan, III, Wilbraham, Lawler & Buba.

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

Nash Engineering Holdings LLC, individually and as succesor to The Nash Engineering Company & Atwood & Morrill Co., Cross Defendants, represented by Elizabeth Grabey, McGivney & Kluger, P.C.

IMO Industries, Inc., Cross Claimant, represented by Eileen M. Ford, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C. Crosby Valve LLC, Cross Claimant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC & Donald Robert Kinsley, Maron Marvel Bradley & Anderson LLC.

Jenkins Bros., Cross Defendant, represented by Brian Tome, Reilly, Janiczek, McDevitt, Henrich & Cholden, P.C. Anchor/Darling Valve Company, Cross Claimant, represented by David Phillip Primack, McElroy Deutsch Mulvaney & Carpenter LLP.

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

Kunkle Industries, Inc., Cross Claimant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC. Kunkle Industries, Inc., Cross Defendant, represented by Paul A. Bradley, Maron Marvel Bradley & Anderson LLC. Jenkins Bros., Cross Claimant, represented by Brian Tome, Reilly, Janiczek, McDevitt, Henrich & Cholden, P.C. REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Presently before the court in this asbestos-related personal injury action is a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by Ford Motor Company ("Ford" or "defendant"). (D.I. 145) For the following reasons, I recommend GRANTING defendant's motion for summary judgment.[1]

II. BACKGROUND

A. Procedural History

On February 15, 2017, William J. Johansen ("Mr. Johansen" or "plaintiff') originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from his alleged harmful exposure to asbestos. (D.I. 1, Ex. 1) On April 20, 2017, the case was removed to this court by defendant Crane Co. pursuant to 28 U.S.C. §§ 1442(a)(1), the federal officer removal statute,[2] and 1446. (D.I. 1) On August 1, 2018, Ford filed its pending motion for summary judgment. (D.I. 145)

B. Facts

Mr. Johansen alleges that he developed mesothelioma as a result of exposure to asbestos-containing materials during his service as a machinist mate in the United States Navy, his civilian work as a pipefitter, and his work on cars. (D.I. 1, Ex. 1 at ¶¶ 3-6) Mr. Johansen contends that he was injured due to exposure to asbestos-containing products that Ford manufactured, sold, distributed, licensed, or installed. (Id. at ¶¶ 4-14) Accordingly, plaintiff asserts claims for negligence, willful and wanton conduct, and strict product liability. (Id. at ¶¶ 15-31)

Mr. Johansen was deposed on March 14 and 15, 2017. (D.I. 135) He was deposed again on July 11, 2018. (Id.) Plaintiff did not produce any other fact or product identification witnesses for deposition.

Mr. Johansen purchased a used 1966 F-150 Ford pickup in the late 1960s and owned it for one year. (D.I. 172, Ex. A at 136:3-12; D.I. 146, Ex. 3 at 230:21-231:1, 231:14-22) He cannot recall how many miles the vehicle had at the time of purchase, and does not know its maintenance history. (D.I. 146, Ex. 3 at 231:8-10, 232:4-7) He performed one brake job on this vehicle. (D.I. 172, Ex. A at 136: 13-16) He then purchased a 1963 F-250 Ford pickup in approximately 1970 that he owned for sixteen years. (Id. at 136:20-137:1; Ex. B at 234:23-235:3) He does not recall how many miles the vehicle had at the time of purchase, and does not know its maintenance history. (Id, Ex. B at 235:4-6, 236:25-237:3) He estimated that he performed four brake jobs on this vehicle. (Id., Ex. A at 137:2-13)

Mr. Johansen described how, when changing brakes on his Ford cars, he would remove the wheel, hub, and springs. (Id at 137:24-138:3) He would then slide off the old brake, clean the area, and sand the new brake before installing the replacement brake. (Id at 138:4-13, 138:23-139:2) Mr. Johansen testified that he believes he was exposed to asbestos by sanding the replacement brakes and inhaling the resulting dust. (Id at 138:9-22, 139:14-17) He also noted that he was able to identify whether he was removing and installing Ford brakes because the brakes were labelled with the name "Ford" or

"FOMC." (Id, Ex. B at 232:12-21, 234:2-7, 237:10-23, 240:2-9) Mr. Johansen could not remember the packaging for the new brakes. (Id. at 233:16-19) He could not identify whether the old brakes he removed were installed as new brakes or remanufactured brakes. (Id. at 237:24-238:2)

Mr. Johansen was diagnosed with mesothelioma in December 2016. (Id., Ex. A at 145:8-11)

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 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., Ltd. 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 of whether or not a fact 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 nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. 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).[3]

B. Washington Law

The parties do not dispute that Washington law applies to the instant motion. (D.I. 105) Under Washington law, a plaintiff asserting a claim for asbestos-related injuries must "establish a reasonable connection between the injury, the product causing the injury, and the manufacturer of that product. In order to have a cause of action, the plaintiff must identify the particular manufacturer of the product that caused the injury." Lockwood v. AC & S, Inc., 744 P.2d 605, 612 (Wash. 1987) (citing Martin v. Abbott Labs., 102 Wash. 2d 581, 590 (1984)). Washington law requires plaintiffs to establish that exposure to asbestos from a particular product was a "substantial factor" in causing the plaintiff's injuries. See Barabin v. Albany Intern. Corp., 2009 WL 2578967, at [*5]-6 (W.D. Wash. Aug. 18, 2009); Barabin v. AstenJohnson, Inc., 2010 WL 11613472, at [*2]-3 (W.D. Wash. Dec. 10, 2010). In identifying manufacturers, plaintiffs may rely on witness testimony, but the burden remains on the plaintiff to make this identification and establish a causal connection between the injury, product, and manufacturer of that product. Lockwood, 744 P.2d at 612-13. In determining whether there is evidence that defendant's conduct was a substantial factor in causing plaintiff's injury, courts consider:

the evidence of plaintiff's proximity to the asbestos product when the exposure occurred and the expanse of the work site where asbestos fibers were released. They should also take into account the extent of time that the plaintiff was exposed to the product. . . . Courts should also consider the types of asbestos products to

which the plaintiff was exposed and the ways in which such products were handled and used. . . . In addition, trial courts must consider the evidence presented as to medical causation of the plaintiff's particular disease.

Id. at 613. See also Estate of Brandes v. Brand Insulations, Inc., 2017 WL 325702, at [*5] (Wash. Ct. App. Jan. 23, 2017); Morgan v. Aurora Pump Co., 248 P.3d 1052, 1057 (Wash. 2011).

IV. DISCUSSION

A. Negligence Claim

Ford argues that summary judgment should be granted because there is no evidence that plaintiff worked with or around an original Ford asbestos-containing brake or replacement brake. (D.I. 146 at 5) To bolster this argument, Ford asserts that plaintiff was unable to remember the packaging of replacement brakes, and that he did not purchase replacement parts from a Ford dealership. (Id.) Plaintiff argues, however, that he specifically identified that in every instance of removing or installing brakes on his Ford vehicles, he encountered products labelled with the name "Ford" or "FOMC." (D.I. 172 at 11) Mr. Johansen owned two Ford vehicles and performed five brake removals and installations, in the aggregate, over the course of seventeen years of maintenance on these vehicles. (D.I. 172, Ex. A at 136:13-16, 137:2-13) Viewing the facts in a light favorable to the plaintiff, brakes identified by their label of "Ford" or "FOMC" were removed and installed on plaintiffs Ford vehicles, establishing a sufficient identification of Ford's products. (Id., Ex. B at 232:12-21, 234:2-7, 237:10-23, 240:2-9) Additionally, plaintiff presented evidence from the record to support his contention that the factfinder could reasonably determine that any Ford brakes purchased in the 1960s or 1970s would have contained asbestos. (Id., Ex. C; Ex. D) Plaintiff testified that in changing the brakes on his vehicles, he routinely sanded the replacement brakes before installing them and inhaled the resulting dust. (Id., Ex. A at 138:9-22)

Ford claims that Mr. Johansen did not know whether the brakes he removed were original or remanufactured brakes. (D.I. 146 at 5) However, Mr. Johansen's testimony is that the brakes he removed had Ford's label. (Id., Ex. 3 at 232:12-21) Ford further asserts that Mr. Johansen could not recall where he purchased the replacement brakes, and therefore there is no evidence that he worked with a Ford asbestos-containing replacement brake. (D.I. 146 at 5) Although Mr. Johansen could not recall where he purchased replacement brakes, he testified that he replaced his brakes with the same product as what he removed, and knew this was the case because both the removed and installed brakes were labelled with the name "Ford" or "FOMC." (D.I. 172, Ex. A at 141: 14-21; Ex. B at 233:7-15) Plaintiffs "need not offer a detailed recollection of facts surrounding the exposure to the asbestos-containing product." Jack v. Borg-Warner Morse Tee, LLC, 2018 WL 4409800, at [*15] (W.D. Wash. Sept. 17, 2018) (quoting Morgan v. Aurora Pump Co., 248 P.3d 1052, 1056 (Wash. Ct. App. 2011)). Jack involved an automobile mechanic's claim of alleged asbestos exposure from Ford brake products. Id. The plaintiff in Jack stated that he worked with Ford brakes, grinded them when working on his cars, and could not remember whether he purchased these brakes from a Ford dealership. Id. However, unlike the plaintiff in Jack, Mr. Johansen was not regularly exposed to brakes over three decades of automotive work. Id.

Ford argues that even if it assumed that Mr. Johansen worked with asbestos-containing Ford brakes, his exposure is de minimis and should not defeat summary judgment. (D.I. 146 at 6) Ford has cited and included a transcript and three orders from the Superior Court of Washington, granting defendants' motions for summary judgment where exposure was deminimis.[4] (D.I. 179 at 5-6; Ex. 4; Ex. 5; Ex. 6; Ex. 7) The court is informed by the persuasive authority of the Delaware Superior Court in In re Asbestos Litig., 2011 WL 6058302 (Del. Super. Ct. Nov. 16, 2011) ("Gordon") and In re: Asbestos Litig., 2017 WL 237617, at [*2] (Del. Super. Ct. Jan. 17, 2017) ("Hastings"). Plaintiffs must "show `some evidence' of both `daily and continuous proximity' to defendant's product for more than a de minimis period of time." Hastings, 2017 WL 237617, at [*2] (citing Collins v. Ashland, Inc., 2009 WL 81297 (Del. Super. Ct. Jan. 6, 2009)). The court in Gordon applied a de minimis standard to a plaintiff who interacted with defendant's product approximately fifty times for one hour each over forty-seven years. Gordon, 2011 WL 6058302, at [*1]-2. The court found there was insufficient evidence of frequent or regular exposure to asbestos, summarizing that "[o]ver the course of a lifetime, this averages out to a little over an hour per year that Gordon spent replacing automotive gaskets." Id. at [*3]. Mr. Johansen's exposure similarly does not exceed a de minimis standard. Mr. Johansen claimed exposure to five brake jobs over the course of seventeen years of maintenance on his

vehicles. (D.I. 172, Ex. A at 136:13-16, 137:2-13) Such exposure does not meet the substantial factor causation standard, and the court recommends granting Ford's motion for summary judgment with respect to plaintiffs negligence claim. B. Failure to Warn Claim

Ford moves for summary judgment on the basis that it did not have a duty to warn of asbestos hazards associated with the replacement parts manufactured by third parties. Plaintiff has failed to provide any argument that would raise a dispute of fact regarding Ford's alleged negligence for failure to warn of the alleged hazards associated with replacement parts manufactured by third parties. (See D.I. 172) The court in Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008) recognized the general rule that "a manufacturer does not have an obligation to warn of the dangers of another manufacturer's product." Braaten, 198 P.3d at 501. Therefore, the court recommends granting Ford's motion for summary judgment with regard to its alleged negligence for failure to warn of asbestos hazards for replacement parts it did not manufacture.

C. Punitive Damages Claim

Under Washington law, punitive damages are not awarded unless expressly authorized by the legislature. See Barr v. lnterbay Citizens Bank of Tampa, Fla., 635 P.2d 441, 443-44 (Wash. 1981) (citing Maki v. Aluminum Bldg. Prods., 436 P.2d 186 (Wash. 1968); Spokane Truck & Dray Co. v. Hoefer, 25 P. 1072 (Wash. 1891)); Randles v. Platypus Marine, Inc., 2014 WL 3925406, at [*2] (W.D. Wash. Aug. 12, 2014). Plaintiff has failed to provide any argument or citation to authority in opposition to Ford's motion to dismiss punitive damages as a matter of law. (See D.I. 172) Consequently, the court recommends granting defendant's motion for summary judgment with regard to plaintiffs punitive damages claim. V. CONCLUSION

For the foregoing reasons, the court recommends granting-in-part and denying-in-part defendant's motion for summary judgment. (D.I. 145)

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] Ford's opening brief in support of its motion for summary judgment is D.I. 146, plaintiffs answering brief is D.I. 172, and Ford's reply brief is D.I. 179.

[2] 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). [3] 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 matter 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.

[4] The Superior Court of Washington transcript and orders do not include a factual summary quantifying the amount of exposure deemed de minimis by the court.

Sources

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