Various Plaintiffs v. Various Defendants (2012)

Our plain-English summary of Various Plaintiffs v. Various Defendants (U.S. District Court, Eastern District of Pennsylvania, February 15, 2012).

Nineteen cases from North Dakota, part of the federal asbestos multidistrict litigation in Pennsylvania, were brought over the deaths of workers at the Amoco refinery in Mandan, North Dakota. Each worker was diagnosed with an asbestos-related illness. Foster Wheeler had built a 140-foot Alkylation unit at the refinery in 1957, and it moved for summary judgment, arguing there was no evidence its product caused any worker's illness. The parties agreed North Dakota law applied. Plaintiffs relied on testimony from other former refinery workers about general work practices, such as shutdowns, turnarounds and labor gangs, and on evidence that the asbestos in the unit came from parts made by others, including Johns-Manville. The court found evidence that each decedent worked at the refinery but none that any decedent was exposed to asbestos from Foster Wheeler's product or work. It held the co-workers' testimony lacked the specificity needed and that a jury inference of causation would be speculation. It granted summary judgment for Foster Wheeler in all nineteen cases.

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: February 15, 2012
• Citation: 847 F.Supp.2d 722
• Stage: Summary judgment
• State: Pennsylvania

Outcome. The court granted Foster Wheeler's motions for summary judgment in all nineteen North Dakota Amoco refinery cases because plaintiffs had no evidence that any decedent was exposed to asbestos from Foster Wheeler's product or work.

What the court held. Applying North Dakota law, a plaintiff must raise a genuine issue of material fact that exposure to the defendant's product proximately caused the injury. General testimony about the refinery and its work practices, without evidence tying a decedent to the defendant's product, leaves any inference of causation to speculation.

Issues decided: Causation, Product Identification.

The people and their exposure

• Raymond Birst: asbestos-related illness; died

• Clarence Fateley: asbestos-related illness; died

• Mike Hilzendeger: asbestos-related illness; died

• Boyd Jaskoviak: asbestos-related illness; died

• Creighton Kettelson: asbestos-related illness; died

• Joseph Leingang: asbestos-related illness; died

• Richard Leingang: asbestos-related illness; died

• Lorraine McCulley: asbestos-related illness; died

• Alvie Nixon: asbestos-related illness; died

• Joseph Senger: asbestos-related illness; died

• Daryl Sheldon: asbestos-related illness; died

• Gerard Sheldon: asbestos-related illness; died

• Melvin Skager: asbestos-related illness; died

• Larry Sullivan: asbestos-related illness; died

• Wallace Toepke: asbestos-related illness; died

• William Woods: asbestos-related illness; died

• Richard Zachmeier: asbestos-related illness; died

• William Zachmeier: asbestos-related illness; died

• James Zoller: asbestos-related illness; died

Who	Work	Where	When	Products
Raymond Birst	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1955-1985
Clarence Fateley	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1954-1984
Mike Hilzendeger	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1953-1984
Boyd Jaskoviak	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1954-1988
Creighton Kettelson	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1954-1983
Joseph Leingang	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1954-1986
Richard Leingang	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1955-1995
Lorraine McCulley	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1956-1989
Alvie Nixon	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1954-1973
Joseph Senger	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1954-1986
Daryl Sheldon	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1955-1975
Gerard Sheldon	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1955-1989
Melvin Skager	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1955-1978
Larry Sullivan	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1954-1989
Wallace Toepke	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1954-1985
William Woods	lab technician (alleged by plaintiffs) (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1954-1987
Richard Zachmeier	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1955-1981
William Zachmeier	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1955-1990
James Zoller	worked at refinery (refineries and petrochemical plants)	Amoco refinery, Mandan, North Dakota	1955-1972

The defendants

• Foster Wheeler Corporation (contractor)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Jackson v. Anchor Packing Co. (U.S. Court of Appeals, Eighth Circuit, 1993). The Eighth Circuit affirmed summary judgment for all defendants (Owens-Corning, Owens-Illinois, Fibreboard, Keene, Anchor, Chesterton, Garlock, John Crane, Rexnord and Georgia Talc) against the ten Mohawk tire plant workers, because the workers lacked sufficient proof that a particular defendant's products caused their injuries.
• 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.

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.

847 F.Supp.2d 722 (2012)

VARIOUS PLAINTIFFS

v.

VARIOUS DEFENDANTS.

MDL No. 875.

February 15, 2012.

TABLE OF CONTENTS

I. BACKGROUND .....................................................723

II. LEGAL STANDARD .................................................724

A. SUMMARY JUDGMENT STANDARD ..................................724

B. THE APPLICABLE LAW .........................................724

C. PRODUCT IDENTIFICATION/CAUSATION UNDER NORTH

DAKOTA LAW ................................................724

III. DISCUSSION .....................................................726

A. DEFENDANT'S ARGUMENT .......................................726

B. PLAINTIFFS' ARGUMENTS ......................................726

C. ANALYSIS ...................................................727

IV. CONCLUSION .....................................................732

United States District Court, E.D. Pennsylvania.

[*723] MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Before the Court are Motions for Summary Judgment in nineteen (19) various cases originating in North Dakota, all of which are part of MDL-875, the consolidated asbestos products liability multidistrict litigation pending in the U.S. District Court for the Eastern District of Pennsylvania. Defendant Foster Wheeler Corporation ("Foster Wheeler") has moved for summary judgment in each case on grounds of insufficient evidence.

I. BACKGROUND

The "Amoco Cases" were transferred from the United States District Court for the District of North Dakota to the United States District Court for the Eastern District of Pennsylvania in 1992 (single plaintiff cases) and 1993 (multi-plaintiff action on behalf of sixty-six (66) different plaintiffs), where they were administratively consolidated for pre-trial purposes as part of MDL-875.

Each of the decedents in these cases ("Decedents") worked at the same Amoco refinery in Mandan, North Dakota and was thereafter diagnosed with an asbestos-related illness. Defendant Foster Wheeler built a 140-foot high Alkylation unit at the Mandan Amoco refinery in 1957. Defendant Foster Wheeler has moved for summary judgment in many of the "Amoco Cases," arguing that there is insufficient product identification evidence to support a finding of causation with respect to its product(s).[1] Foster Wheeler asserts that North Dakota law applies.

[*724] Plaintiffs in nineteen (19) of the cases (listed in Exhibit A, attached hereto) have opposed Foster Wheeler's motions, contending that summary judgment is not warranted because there is sufficient circumstantial evidence from which a

reasonable jury could conclude that their Decedent's asbestos-related illness was caused by exposure to Foster Wheeler's product(s). Plaintiffs assert that North Dakota law applies.

II. LEGAL STANDARD

A. Summary Judgment Standard

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). "A motion for summary judgment will not be defeated by `the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir.2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505. B. The Applicable Law

The parties have all agreed that North Dakota substantive law applies. Therefore, this Court will apply North Dakota law in deciding Foster Wheeler's Motions for Summary Judgment. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945). C. Product Identification/Causation Under North Dakota Law

This Court has previously addressed the issue of product identification/causation under North Dakota law and has thoroughly explored the contours of that state's law. See, e.g., Various Plaintiffs v. Various Defendants (In Re Asbestos Products Liability Litigation), 2010 WL 3397473 (E.D.Pa. Aug. 26, 2010) (Robreno, J.) (adopting the July 30, 2010 Report and Recommendation of Chief Magistrate Judge Thomas J. Rueter regarding summary judgment motions of defendant S.O.S. Products Company, Inc., appearing at 2010 WL 3397472); Miller v. Acands, Inc., 09-68111, 2011 WL 5505429 (E.D.Pa. June 23, 2011) (Robreno, J.). In Miller, the Court wrote:

The Supreme Court of North Dakota has not addressed what evidence a Plaintiff must present in order to survive summary judgment in the asbestos context. Under North Dakota law, "a proximate cause is a cause which had a substantial part in bringing about the [*725] harm or injury either immediately or through happenings which follow one another." Andrews v. J.W. O'Hearn, 387 N.W.2d 716, 726 (N.D.1986) (internal citations omitted). There must be a causal link between the defendant's conduct and the injury. Andrews, 387 N.W.2d at 727 (citing Mourn [Moum] v. Maercklein, 201 N.W.2d 399, 402 (N.D. 1972)). "`Proximate cause [is] that cause which, as a natural and continuous sequence, unbroken by any controlling intervening cause, produces the injury, and without which it would not have occurred.'" Andrews, 387 N.W.2d at 727 (quoting Johnson v. Minneapolis, St. P. & S.S.M. Ry. Co., 54 N.D. 351, 209 N.W. 786, 789 (N.D.1926); Knorr v. K-Mart Corp., 300 N.W.2d 47 (N.D.1980)).

Magistrate Judge Karen K. Klein of the United States District Court for the District of North Dakota applied a liberal product identification standard in recommending that defendants' motions for summary judgment be denied in Adolph v. A.P.I., Inc. (D.N.D.1991). Magistrate Judge Klein Concluded that coworker testimony or evidence that a plaintiff was employed by a company at the same time that the company was using

defendant's asbestos-containing products could be sufficient to survive summary judgment and that a plaintiff

need not specifically describe exposure to the defendant's products. Id. at [*]3. Magistrate Judge Klein also recognized that, even if the defendants were entitled to summary judgment as to product identification, since they had not moved for summary judgment as to plaintiff's conspiracy claims, "no useful purpose would be served by the piecemeal granting of partial summary judgments on exposure when a defendant must

nonetheless remain in the case because of the conspiracy claims." Id. at [*]4. Magistrate Judge Klein did not consider any of the evidence presented against the defendants and noted that "[t]he motions may be renewed as to particular plaintiffs at trial." Id.

In an unpublished opinion, the United States Court of Appeals for the Eighth Circuit addressed product identification and causation in the asbestos context. Bossert v. Keene Corp., 19 F.3d 1437, 1994 WL 108844 (8th Cir.1994). The United States District Court for the District of North Dakota denied defendant MacArthur Corp.'s motion for judgment as a matter of law and MacArthur appealed this decision. Id. at [*1]. The court noted that,

[a] cause is proximate if it `had a substantial part in bringing about the harm or injury either immediately or through happenings which follow one another.' Andrews, 387 N.W.2d at 727. North Dakota courts have not addressed the standard for proving causation in the specific context of an asbestos personal injury case, and MacArthur urges us to use the `frequency, regularity, and proximity' test used in other states. See, e.g., Jackson v. Anchor Packing Co., 994 F.2d 1295, 1301-03 (8th Cir.1993) (applying Arkansas law); Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir.1986) (applying Maryland law).

Plaintiff's proof of exposure consisted of Mr. Bossert's testimony that he worked at the Amoco refinery for a total of approximately eight months and the testimony of Robert Clooten, a former insulation tradesperson at the Amoco refinery who testified that about half of the cements installed in the Amoco refinery from 1954 until 1965 were manufactured by MacArthur and that about half of this pipe covering was still in place. 1994 WL 108844, at [*2]. The court concluded that the plaintiff's proof of exposure was "entirely circumstantial" [*726] and that "[b]ecause Bossert failed to produce substantial evidence of exposure to MacArthur's products ... Bossert cannot satisfy any proximate cause standard." Id. at [*1]-2. Accordingly, the court reversed the district court and granted MacArthur's motion for judgment as a matter of law. Id. at [*2].

726

The Bossert court granted defendant's motion for summary judgment based on evidence that the plaintiff worked a refinery and coworker testimony that the defendant's product was present at the refinery. In Adolf, Magistrate Judge Klein denied defendants' motions for summary judgment in this scenario, but relied on the fact that the defendants would not be dismissed from the cases even if the motions were granted and noted that the defendants would have the opportunity to renew these motions. This Court will not attempt to predict the law of North Dakota when the Supreme Court of North Dakota has not yet addressed product

identification in the asbestos context. Rather, in keeping with the general products liability standard, Plaintiff must merely raise a genuine issue of material fact as to whether exposure to the Defendant's product proximately caused the Plaintiff's injury. Andrews, 337 [387] N.W.2d at 727.

Miller, 2011 WL 5505429 at [*1] n. 1.

There have been no new decisions from any court of appeals in North Dakota since this Court's discussion of the North Dakota product identification standard in June of 2011.

III. DISCUSSION

A. Defendant's Argument

Foster Wheeler concedes that it built a 140-foot high Alkylation unit at the Amoco facility in 1957. It argues, however, that Plaintiffs in these cases have failed to identify sufficient evidence to support a finding of causation with respect to its work or its product(s) at the Amoco facility.

B. Plaintiffs' Arguments

Plaintiffs contend generally that they have identified sufficient product identification evidence under the standard that the court should apply. Plaintiffs acknowledge that any asbestos associated with the Alkylation unit was asbestos of a component part manufactured by a company other than Foster Wheeler (including, specifically, Johns-Manville). Plaintiffs cite to state trial court and federal district court cases to argue that a liberal application of the "substantial factor" test is warranted under the precedent of trial courts in North Dakota, and that circumstantial evidence is sufficient to survive summary judgment. Of particular note, Plaintiffs cite to Nogosek v. Asbestos Corp. of America, No. A2-87-173, 1989 WL 1635767 (D.N.D.1989), quoting the following excerpt:

A) Circumstantial Evidence

When claiming wrongful death, a plaintiff must show that he or she has been exposed to petitioner's asbestos products. Celotex Corp. v. Catrett, 477 U.S. 317, 319, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When Clarence Nogosek was deposed, he failed to identify by name many of the defendants in this case. The defendants, however, incorrectly assume that unless Mr. Nogosek was able to specifically describe exposure to a defendant's products, summary judgment is in order. This is not the case.

Mild exposure to asbestos can be a factor in proving plaintiff's injury. See Rocco v. Johns-Manville Corp., 754 F.2d 110, 113 (3rd Cir.1983 [1985]). Evidence of exposure alone can allow an inference of injury. See Roehling v. Nations' [National] Gypsum Co. Gold [*727] Bond Bldg. Products, 786 F.2d 1225, 1228 (4th Cir.1986). Circumstantial evidence presented to the Court in this case allows a potential finding that Mr. Nogosek was exposed to defendants' products. Summary judgment is therefore inappropriate at this time. 727

1989 WL 1635767, at [*1]-2 (emphasis added). During oral argument, Plaintiffs asserted that Bossert and the decisions issued by this MDL Court in June of 2011 are distinguishable because of the short time period of alleged exposure experienced by the plaintiffs in those case as compared to the Decedents at hand.

In each of the nineteen (19) cases in which Plaintiffs have opposed Foster Wheeler's motion for summary judgment, Plaintiffs submit as part of their evidence the testimony of one or more of the following former workers at the Amoco facility, each of whom was deposed in the early stage of the litigation of the "Amoco Cases" now before the Court: (i) Robert E. Carufel (died of mesothelioma; deposed 1991)

Mr. Carufel testified that he was involved in the storage of asbestos insulation at the Amoco plant — including at the Alkylation Unit — and that this work resulted in exposure to asbestos, including but not limited to exposure resulting from physically tearing off asbestos and replacing it.

(ii) Robert Clooten (at facility 1955-1983; deposed 1991)

Mr. Clooten, who worked as a craftsman in the pipefitting, welding, and insulation trades, testified that he was involved in dusty work associated with the use of pipecovering and insulating block at the facility from 1954 to 1983. He testified that Kaylo brand pipecovering was among the sources of asbestos exposure. He testified that about half of the asbestos pipecovering that was present during his work at the facility was still in place at the facility at the time of his deposition (1991).

(iii) Gerald Assel (deposed 1996)

Mr. Assel testified that, during "shut-downs" of the facility, everyone would work doing everything that needed to be done to repair and maintain the plant and that, on "Energy Saturdays," everyone would work overtime repairing steam leaks and insulation throughout the plant.

(iv) Lyle Berg (deposed 1996)

Mr. Berg testified that his work as a laborer, relief operator, and craftsman or laborer on maintenance "turn-arounds" took him to every part of the refinery. He testified about the system of "labor gangs" used to assist and clean up after every type

Decedent Name Summary of Evidence

1 Raymond Birst No deposition testimony of Mr. Birst;

Evidence that Mr. Birst worked at facility 1955-1985;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Birst worked in Alkylation unit or

otherwise around a product of Foster Wheeler's

2 Clarence Fateley No deposition testimony of Mr. Fateley;

Evidence that Mr. Fateley worked at facility 1954-1984;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Fateley worked in Alkylation unit or

otherwise around a product of Foster Wheeler's

3 Mike Hilzendeger No deposition testimony of Mr. Hilzendeger;

Evidence that Mr. Hilzendeger worked at facility 1953-1984;

Evidence that Foster Wheeler constructed and supplied

of trade working at the facility. He testified that nearly every vessel and piece of equipment was covered with insulation. In short, Plaintiffs rely upon the testimony of these former Amoco workers about their job duties and the general work processes in place at the refinery (e.g., the "labor gangs," nature and scope of work done during "shut-downs," "turn-arounds" and "Energy Saturdays," and the way in which this work was assigned) to provide circumstantial evidence from which Plaintiffs contend a jury could conclude that the Decedents were exposed to asbestos as a result of asbestos-containing products supplied to and installed in the facility by Foster Wheeler.

C. Analysis

As a preliminary matter, the Court has considered Plaintiffs' arguments that the standard to be applied in assessing the sufficiency of their evidence pertaining to product identification and causation should be modified from that previously applied by this Court because (1) Nogosek indicates that circumstantial evidence of exposure to a given Defendant's product is [*728] sufficient to survive summary judgment and (2) the controlling case arguably suggesting otherwise (Bossert) is distinguishable by virtue of the comparatively short time period of alleged exposure therein. The Court rejects this argument and notes that there have been no new decisions from any appellate court in North Dakota since the time the Court first addressed this issue. Furthermore, the Court notes that Nogosek (1) was decided several years prior to the Eight Circuit's opinion in Bossert, (2) made clear that some evidence of exposure to the defendant's product is necessary, and (3) denied defendants' motion where there was in fact direct evidence of exposure to the moving defendants' asbestos-containing products.[2] Having established that the standard to be applied remains the same as that previously set forth by this Court for cases brought under North Dakota law, the Court now turns to examine the sufficiency of Plaintiffs' evidence in each of the nineteen (19) cases presently before it.

728

A short summary of the evidence for each Decedent is as follows:

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Hilzendeger worked in Alkylation

unit or otherwise around a product of Foster Wheeler's

4 Boyd Jaskoviak No deposition testimony of Mr. Jaskoviak;

Evidence that Mr. Jaskoviak worked at facility 1954-1988;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained asbestos

component parts manufactured by others;

No evidence that Mr. Jaskoviak worked in Alkylation unit

or otherwise around a product of Foster Wheeler's

5 Creighton Kettelson No deposition testimony of Mr. Kettelson;

Evidence that Mr. Kettelson worked at facility 1954-1983;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

Deposition testimony of former Amoco employee Leonard

Ereth, who testified that Mr. Kettleson may have worked

in Alkylation unit at one time, although he was not sure

6 Joseph Leingang No deposition testimony of Mr. Leingang;

Evidence that Mr. Leingang worked at facility 1954-1986;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Leingang worked in Alkylation unit

or otherwise around a product of Foster Wheeler's

7 Richard Leingang Mr. Leingang was deposed as a co-worker in another

plaintiff's action but did not testify that he was exposed to

asbestos attributable to Foster Wheeler;

Evidence that Mr. Leingang worked at facility 1955-1995;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Leingang worked in Alkylation unit

or otherwise around a product of Foster Wheeler's

729

8 Lorraine McCulley No deposition testimony of Mr. McCulley;

Evidence that Mr. McCulley worked at facility 1956-1989;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. McCulley worked in Alkylation unit

or otherwise around a product of Foster Wheeler's

9 Alvie Nixon No deposition testimony of Mr. Nixon;

Evidence that Mr. Nixon worked at facility 1954-1973;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Nixon worked in Alkylation unit or

otherwise around a product of Foster Wheeler's

10 Joseph Senger No deposition testimony of Mr. Senger;

Evidence that Mr. Senger worked at facility 1954-1986;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Senger worked in Alkylation unit or

otherwise around a product of Foster Wheeler's

11 Daryl Sheldon No deposition testimony of Mr. Sheldon; Evidence that

Mr. Sheldon worked at facility 1955-1975;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Sheldon worked in Alkylation unit or

otherwise around a product of Foster Wheeler's

12 Gerard Sheldon No deposition testimony of Mr. Sheldon;

Evidence that Mr. Sheldon worked at facility 1955-1989;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Sheldon worked in Alkylation unit or

otherwise around a product of Foster Wheeler's

730

13 Melvin Skager No deposition testimony of Mr. Skager;

Evidence that Mr. Skager worked at facility 1955-1978;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Skager worked in Alkylation unit or

otherwise around a product of Foster Wheeler's

14 Larry Sullivan No deposition testimony of Mr. Sullivan;

Evidence that Mr. Sullivan worked at facility 1954-1989;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Sullivan worked in Alkylation unit or

otherwise around a product of Foster Wheeler's

15 Wallace Toepke Mr. Toepke was deposed; he testified that he didn't

specifically recall Foster Wheeler but he thought perhaps

the company supplied clothing or gloves; Defendant Foster

Wheeler contends that Mr. Toepke specifically testified

that he never worked in the Alkylation unit, but Defendant

failed to attach the page of the deposition transcript where

it is claimed that he testified to this (p. 77)

Evidence that Mr. Toepke worked at facility 1954-1985;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Toepke worked in Alkylation unit or

otherwise around a product of Foster Wheeler's

16 William Woods No deposition testimony of Mr. Woods;

Plaintiffs contend that Mr. Woods worked for a time as a

lab technician; Deposition testimony of co-worker Lyle

Berg indicates lab technicians would have been exposed to

asbestos inside and outside of the lab and would work in

"all parts of the refinery" with "all trades"

Defendant Foster Wheeler contends that Mr. Woods's

daughter (Sharon Schwahn) specifically testified that he did

not work in the Alkylation unit, but Defendant failed to

attach the page of the deposition transcript where it is

731

claimed that she testified to this (p. 43)

Evidence that Mr. Woods worked at facility 1954-1987;

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Woods was exposed to asbestos from

a product of Foster Wheeler's

17 Richard Zachmeier Mr. Zachmeier was deposed in 1993 in connection with

another person's lawsuit but did not testify that he was

exposed to asbestos attributable to Foster Wheeler

Evidence that Mr. Zachmeier worked at facility 1955-1981;

Co-worker deposition testimony suggests that Mr.

Zachmeier worked all over facility

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Zachmeier was exposed to asbestos

from a product of Foster Wheeler's

18 William Zachmeier No deposition testimony of Mr. Zachmeier;

Evidence that Mr. Zachmeier worked at facility 1955-1990;

Co-worker deposition testimony suggests that Mr.

Zachmeier worked all over facility

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

asbestos component parts manufactured by others;

No evidence that Mr. Zachmeier was exposed to asbestos

from a product of Foster Wheeler's

19 James Zoller Mr. Zoller was deposed; he testified that he did not know

what type of product(s) Foster Wheeler manufactured and

that he did not recall working around any Foster Wheeler

employees

Evidence that Mr. Zoller worked at facility 1955-1972;

Co-worker deposition testimony suggests that Mr. Zoller

worked all over facility

Evidence that Foster Wheeler constructed and supplied

Alkylation unit at facility in 1957 — which contained

732

asbestos component parts manufactured by others;

No evidence that Mr. Zoller was exposed to asbestos from

a product of Foster Wheeler's

Decedent's Name D.N.D. Case No. E.D. PA Case No. Doc. No.

1 Raymond Birst 90-00241 09-66623 33

2 Clarence Fateley 90-00249 09-66630 37

3 Mike Hilzendeger 92-00186 09-68033 14

4 Boyd Jaskoviak 90-00259 09-66640 28

5 Creighton Kettelson 90-00262 09-66643 28

6 Joseph Leingang 90-00265 09-66646 27

7 Richard Leingang 90-00266 09-66647 33

8 Lorraine McCulley 92-00186 09-68048 12

9 Alvie Nixon 90-00272 09-66653 29

10 Joseph Senger 90-00284 09-66665 34

Although there is evidence that each of the Decedents in these cases worked at the Amoco facility, there is no evidence that any Decedent was exposed to asbestos from a product of Defendant Foster Wheeler's or as a result of work that was performed by Foster Wheeler in constructing the Alkylation unit. Although there is testimony that a few of the Decedents worked "all over the facility," there is no evidence that this work resulted in any one Decedent's exposure to asbestos. Plaintiffs suggest that the testimony of former Amoco workers Mr. Carufel, Mr. Clooten, Mr. Assel, and/or Mr. Berg can be used as a basis for inferring that the Decedents were exposed to asbestos supplied by Foster Wheeler despite the fact that this testimony does not identify any particular Decedent as having had such exposure. The Court notes that this evidence lacks the quality and specificity required to show that a defendant's product (or conduct) was a substantial part of the causation of a Decedent's illness and concludes that any such inference of causation by a jury would be based on speculation. See Bossert, 1994 WL 108844, at [*2]. Plaintiffs have failed to carry their burden of pointing to evidence sufficient to support a finding of causation. Accordingly, summary judgment in favor of Defendant must be granted. See Miller, 2011 WL 5505429, at [*1] n. 1 (citing Andrews, 387 N.W.2d at 726-27 and Bossert, 1994 WL 108844, at [*1]-2). IV. Conclusion

Summary judgment in favor of Defendant Foster Wheeler is warranted in each of the nineteen (19) cases in which Plaintiffs opposed Foster Wheeler's motion (see Exhibit A, attached hereto) because there is no evidence that any Decedent was exposed to asbestos from a product of — or as a result of work performed by — Foster Wheeler. Accordingly, Defendant's motion in each case is granted.

Exhibit A

Motions by Foster Wheeler in Various Cases Transferred from the United

States District Court for the District of North Dakota

733

11 Daryl Sheldon 90-00287 09-66668 34

12 Gerard Sheldon 90-00288 09-66669 31

13 Melvin Skager 90-00289 09-66670 29

14 Larry Sullivan 90-00292 09-66673 33

15 Wallace Toepke 90-00294 09-66675 33

16 William Woods 90-00298 09-66679 33

17 Richard Zachmeier 90-00300 09-66681 28

18 William Zachmeier 90-00301 09-66682 29

19 James Zoller 90-00302 09-66683 33

Decedent's Name D.N.D. Case No. E.D. PA Case No.

1 Raymond Birst 90-00241 09-66623

2 Clarence Fateley 90-00249 09-66630

3 Mike Hilzendeger 92-00186 09-68033

4 Boyd Jaskoviak 90-00259 09-66640

5 Creighton Kettelson 90-00262 09-66643

6 Joseph Leingang 90-00265 09-66646

7 Richard Leingang 90-00266 09-66647

8 Lorraine McCulley 92-00186 09-68048

9 Alvie Nixon 90-00272 09-66653

10 Joseph Senger 90-00284 09-66665

ORDER

AND NOW, this 14th day of February, 2012, it is hereby ORDERED that the Motion for Summary Judgment of Defendant Foster Wheeler in each of the cases identified on Exhibit A (attached hereto) is GRANTED.

AND IT IS SO ORDERED.

Exhibit A

Motions by Foster Wheeler in Various Cases Transferred from the United

States District Court for the District of North Dakota

11 Daryl Sheldon 90-00287 09-66668

12 Gerard Sheldon 90-00288 09-66669

13 Melvin Skager 90-00289 09-66670

14 Larry Sullivan 90-00292 09-66673

15 Wallace Toepke 90-00294 09-66675

16 William Woods 90-00298 09-66679

17 Richard Zachmeier 90-00300 09-66681

18 William Zachmeier 90-00301 09-66682

19 James Zoller 90-00302 09-66683

734

[1] In June of 2011, the Court addressed similar motions for summary judgment made by Foster Wheeler in cases brought by Plaintiffs who alleged exposure at this same Amoco refinery in Mandan, North Dakota. See, e.g., Miller v. Acands, Inc., 09-68111, 2011 WL 5505429 (E.D.Pa. June 23, 2011) (Robreno, J.); Goldade v. Acands, Inc., 09-68096, 2011 WL 5505426 (E.D.Pa. June 23, 2011) (Robreno, J.); Wallace v. Acands, Inc., 09-68112, 2011 WL 5505432 (E.D.Pa. June 23, 2011) (Robreno, J.) The Court granted each of these motions. [2] The Nogosek court noted that, although the decedent (Mr. Nogosek) only recalled two manufacturers of asbestos-containing products to which he was exposed, and was unable to identify by name the products of the moving defendants prior to his death, "[s]uppliers who sold asbestos containing products to Mr. Nogosek, however, have stated that products of [the moving defendants] and others were used by him as well." 1989 WL 1635767, at [*1].

Sources

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