Malone v. Air & Liquid Systems Corporation (D. Del., Apr. 24, 2015)

Our plain-English summary of Malone v. Air & Liquid Systems Corporation (U.S. District Court, District of Delaware, April 24, 2015).

Charles Malone and his wife Elizabeth sued a number of companies in federal court in Delaware, alleging that Mr. Malone developed mesothelioma from asbestos exposure at Ingalls Shipyard in Pascagoula, Mississippi. The complaint says he worked there from about 1964 to 1982, first for about four months as a ship fitter employed by the shipyard and then at the same site for various independent contractors. Nine defendants moved for summary judgment, arguing that the plaintiffs had no proof their products were the source of his exposure. After fact discovery on product identification closed, the plaintiffs filed a notice that they would not oppose those motions. The magistrate judge recommended that the district court grant summary judgment to each of the nine defendants and dismiss them with prejudice, because discovery was closed and there was no opposition, as Federal Rule of Civil Procedure 56(e)(3) permits. The parties had fourteen days to file objections.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, District of Delaware
• Decided: April 24, 2015
• Docket: Civil Action No. 14-406-SLR-SRF
• Stage: Summary judgment
• State: Delaware

Outcome. The magistrate judge recommended granting summary judgment for nine defendants (Air & Liquid Systems, Armstrong International, Atwood & Morrill, Blackmer Pump, Crown Cork & Seal, Flowserve, Nash Engineering, Trane US and William Powell) and dismissing them with prejudice because plaintiffs filed a notice of non-opposition.

What the court held. Where plaintiffs have had adequate fact discovery on product identification and give notice that they do not oppose summary judgment motions, the court may grant those motions and dismiss the moving defendants under Fed. R. Civ. P. 56(e)(3).

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Charles D. Malone: mesothelioma

Who	Work	Where	When	Products
Charles D. Malone	ship fitter (shipyards and maritime work)	Ingalls Shipyard, Pascagoula, Mississippi	1964-1982

The defendants

• Air & Liquid Systems Corporation (manufacturer)
• Armstrong International Inc. (manufacturer)
• Atwood & Morrill Company Inc. (manufacturer)
• Blackmer Pump Company (manufacturer)
• Crown Cork & Seal Company Inc. (manufacturer)
• Flowserve US Inc. (manufacturer)
• The Nash Engineering Company (manufacturer)
• Trane US Inc. (manufacturer)
• The William Powell Company (manufacturer)

Other decisions in this case

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

• Malone v. Air & Liquid Systems Corporation (April 14, 2015). The magistrate judge recommended converting Huntington Ingalls Industries' Rule 12(b)(6) motion to dismiss into a Rule 56 summary judgment motion and giving the Malones 30 days to respond, because the company relied on an affidavit outside the pleadings.
• Malone v. Air & Liquid Systems Corporation (May 22, 2015). The magistrate judge recommended granting summary judgment for defendants Crane Co., Ingersoll Rand, Velan Valve, Zurn Industries and Pfizer, with prejudice, because the Malones filed notices of non-opposition, and recommended that the defendants' separate motion to dismiss be terminated as moot.

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.

CHARLES D. MALONE and ELIZABETH MALONE, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal. Defendants.

Civil Action No. 14-406-SLR-SRF.

April 24, 2015.

Defendant Motion Doc Nos.

Air &Liquid Systems Motion & Brief in Support of Motion for 374 & 375

Coroporation Summary Judgment

Armstrong International Motion & Brief in Support of Motion for 358 & 362

Inc. Summary Judgment

Atwood & Morrill Motion for Summary Judgment and 345

Company Inc. Memorandum in Support Thereof

Blackmer Pump Company Motion & Brief in Support of Motion for 343 & 344

Summary Judgment

Crown Cork & Seal Motion & Memorandum in Support of 360 & 361

Company Inc. Motion for Summary Judgment

Flowserve US Inc. Motion & Memorandum in Support of 349 & 350

Motion for Summary Judgment

The Nash Engineering Motion for Summary Judgment and 347

Company Memorandum in Support Thereof

Trane US Inc. Motion & Brief in Support of Motion for 363 & 364

Summary Judgment

The William Powell Motion & Brief in Support of Motion for 341 & 342

Company Summary Judgment

United States District Court, D. Delaware.

REPORT AND RECOMMENDATION

SHERRY R. FALLON, Magistrate Judge.

I. INTRODUCTION

Pending before the court in this asbestos related personal injury action are certain individual defendants' motions for summary judgment. The defendants, as indicated in the chart below, each move for summary judgment on the basis of a lack of product identification by the Plaintiffs.

On April 17, 2015, Charles D. Malone and Elizabeth Malone ("Plaintiffs") filed a Notice (the "Notice") of non-opposition to the foregoing defendants' motions for summary judgment. (D.I. 389) I recommend that the court grant summary judgment and dismiss with prejudice each of the defendants individually, based upon no opposition to the motions, pursuant to Fed. R. Civ. P. 56(e)(3).

Defendant Motion Doc Nos.

Air &Liquid Systems Motion & Brief in Support of Motion for 374 & 375

Corporation Summary Judgment

Armstrong International Motion & Brief in Support of Motion for 358 & 362

Inc. Summary Judgment

Atwood & Morrill Motion for Summary Judgment and 345

Company Inc. Memorandum in Support Thereof

Blackmer Pump Company Motion & Brief in Support of Motion for 343 & 344

Summary Judgment

II. BACKGROUND

Plaintiffs filed this personal injury action against defendants on April 1, 2014. (D.I. 1) The Complaint alleges Charles D. Malone ("Mr. Malone") experienced exposure to asbestos-containing products and/or equipment from approximately 1964 to 1982, while working at Ingalls Shipyard in Pascagoula, MS. Id. at ¶ 45(a). In 1964, for approximately four months, Ingalls Shipyard employed Mr. Malone as a ship fitter. Id. Furthermore, from approximately 1964 until 1982, Mr. Malone continued working at the Ingalls Shipyard work site for various independent contractors. Id. at ¶ 45 (a)-(b). Plaintiffs allege that Mr. Malone was exposed to asbestos at Ingalls Shipyard, which led to his diagnosis of mesothelioma. Id. Fact discovery relating to product identification closed on March 13, 2015, followed by deadlines for filing dispositive motions and opening briefs on March 31, 2015.[1] (D.I. 186)

III. DISCUSSION

Summary judgment is appropriate when "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. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891F.2d458, 460-61 (3d Cir. 1989).

When determining whether a genuine issue of material fact exists, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). However, the existence of some evidence in support of the nonmoving party may not be sufficient to deny a motion for summary judgment. Rather, there must be enough evidence to enable a jury reasonably to find for the nonmoving party on the issue. See Anderson, 477 U.S. at 249. In this case, defendants have each filed separate motions seeking summary judgment in their favor. (D.1. 374; 358; 345; 343; 360; 349; 347; 363; 341) Having been given an adequate opportunity to engage in fact discovery to create a record on product identification, Plaintiffs have noticed their intent not to oppose the motions of certain defendants as indicated in the preceding chart. Therefore, Fed. R. Civ. P. 56(e)(3) permits the court to recommend dismissal of each moving defendant, with prejudice.

IV. CONCLUSION

I recommend that the court grant summary judgment in favor of the following defendants and dismiss each defendant with prejudice, as fact discovery is closed and there is no opposition by the Plaintiffs.

Crown Cork & Seal Motion & Memorandum in Support of 360 & 361

Company Inc. Motion for Summary Judgment

Flowserve US Inc. Motion & Memorandum in Support of 349 & 350

Motion for Summary Judgment

The Nash Engineering Motion for Summary Judgment and 347

Company Memorandum in Support Thereof

Trane US Inc. Motion & Brief in Support of Motion for 363 & 364

Summary Judgment

The William Powell Motion & Brief in Support of Motion for 341 & 342

Company Summary Judgment

This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(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 objections 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.l (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] The original deadline of March 31, 2015 in the scheduling order (D.I. 186), was extended for certain defendants' pursuant to stipulations of the parties.

Sources

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