SHERRY R. FALLON, Magistrate Judge.
Presently before the court in this asbestos-related personal injury action are the motions for summary judgment of defendants Air & Liquid Systems Corporation ("Buffalo Pumps"),
On October 28, 2016, Joan and Alan Kister originally filed this personal injury action against multiple defendants in the Superior Court of Delaware, asserting claims arising from Mr. Kister's alleged harmful exposure to asbestos. (D.I. 1, Ex. A) On February 23, 2017, the case was removed to this court by defendant CBS Corporation pursuant to 28 U.S.C. §§ 1442(a)(1), the federal officer removal statue,
Plaintiff alleges that Mr. Kister developed mesothelioma as a result of exposure to asbe'stos-containing materials during his employment as a pipe-coverer with Newport News Shipbuilding and Dry Dock Co. ("Newport News") from February to August 1968. (D.I. 69 at ¶¶ 4, 14) Plaintiff contends that Mr. Kister was injured due to exposure to asbestos-containing products that Defendants manufactured, sold, distributed, licensed, or installed. (Id. at ¶¶ 5, 9) Accordingly, Plaintiff asserts claims for negligence, willful and wanton conduct, strict liability, loss of consortium, and wrongful death. (Id. at 7-14)
Mr. Kister was deposed on January 26, 2017. (D.I. 76 at 1) Plaintiff did not produce any other fact or product identification witnesses for deposition.
Mr. Kister did not identify an asbestos-containing Buffalo Pumps product. (See D.I. 76, Exs. A-B)
Mr. Kister did not identify an asbestos-containing Fairbanks product. (See id.)
Mr. Kister did not identify an asbestos-containing CertainTeed product. (See id.)
Mr. Kister did not identify an asbestos-containing Foster Wheeler product. (See id.)
Mr. Kister did not identify an asbestos-containing Foster Wheeler product. (See id.)
Mr. Kister did not identify an asbestos-containing Aurora product. (See id.)
Mr. Kister did not identify an asbestos-containing Pfizer product. (See id.)
"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 oflaw." 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 nomnoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242,248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
The moving party bears the initial burden of proving the absence of a genuinely disputed material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,587 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). An assertion that a fact cannot be—or, alternatively, 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 nomnoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Podobnikv. US. Postal Serv., 409 F.3d 584,594 (3d Cir. 2005). 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).
The parties do not dispute that maritime law applies to the claims and defenses asserted in this case. (D.I. 59)
In order to establish causation in an asbestos claim under maritime law, a plaintiff must show, for each defendant, "(1) that he was exposed to the defendant's product, and (2) that the product was a substantial factor
"In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of the plaintiff or decedent who experienced the exposure, co-worker testimony, or eye-witness testimony) or circumstantial evidence that will support an inference that there was exposure to the defendant's product for some length oftime."
The court recommends granting Buffalo Pump's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Buffalo Pumps product. During his deposition, Mr. Kister did not identify any Buffalo Pumps product. (See D.I. 76, Exs. A-B) Therefore, summary judgment should be granted.
The court recommends granting Fairbanks' motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Fairbanks product. During his deposition, Mr. Kister did not identify any Fairbanks product. (See id.) Therefore, summary judgment should be granted.
The court recommends granting CertainTeed's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing CertainTeed product. During his deposition, Mr. Kister did not identify any CertainTeed product. (See id.) Therefore, summary judgment should be granted.
The court recommends granting Foster Wheeler's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Foster Wheeler product. During his deposition, Mr. Kister did not identify any Foster Wheeler product. (See id.) Therefore, summary judgment should be granted.
The court recommends granting Union Carbide's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Union Carbide product. During his deposition, Mr. Kister did not identify any Union Carbide product. (See id.) Therefore, summary judgment should be granted.
The court recommends granting Aurora's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Aurora product. During his deposition, Mr. Kister did not identify any Aurora product. (See id.) Therefore, summary judgment should be granted.
The court recommends granting Pfizer's motion for summary judgment, because there is no genuine issue of material fact in dispute as to whether Mr. Kister was exposed to an asbestos-containing Pfizer product. During his deposition, Mr. Kister did not identify any Pfizer product. (See id.) Therefore, summary judgment should be granted.
For the foregoing reasons, and as addressed in the chart infra, the court recommends granting Defendants' motions for summary judgment.
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.
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.