Summary Judgment Recommended Where Plaintiff Fails to Establish Substantial Factor Causation Against Multiple Defendants U.S. District Court for the District of Delaware, July 28, 2016

Plaintiff Mark Hillyer sued multiple defendants, alleging that he developed mesothelioma as a result of exposure to asbestos-containing products while serving in the Navy from 1967 to 1997. His claims were based in negligence, strict liability and loss of consortium. In discovery, the plaintiff was deposed on two occasions but did not produce any other fact or product identification witnesses. The plaintiff testified that, while on the USS George Washington Carver, he conducted preventative maintenance to main engines and turbine generators as well as corrective maintenance when repairs were necessary. He later worked as an officer at a nuclear power training unit in Idaho Falls, supervising and performing maintenance on propulsion plant equipment, and aboard the USS Tinosa as a chief machinist’s mate.

Several defendants, including ABB, Inc.; CBS Corp.; BW/IP, Inc.; Eaton Corp.; Union Carbide Corp. and Gould Electronics, Inc., moved for summary judgment on the basis of the plaintiff’s failure to establish substantial factor causation. The respective motions were unopposed. A federal magistrate judge recommended that the district court grant the motions for the following reasons.

  • ABB/ITE. The plaintiff did not identify working with any ABB product. He testified that he worked in the presence of electricians who maintained electrical breakers, including ITE breakers (ITE being a predecessor company to ABB), and other internal components. The plaintiff believed the casings of the breakers consisted of asbestos-containing bakelite. He testified that he threw out cracked ITE products, even though the breakers remained encapsulated. The court determined that there was insufficient evidence to establish that the plaintiff was exposed to any amount of asbestos while handling the ITE breakers. Additionally, ABB contended that it was not liable for the ITE products identified by the plaintiff, which the plaintiff did not refute.
  • CBS/Westinghouse. The plaintiff identified working with asbestos-containing Westinghouse turbines during his work on the USS Tinosa. The court found that there was no evidence in the record establishing that Westinghouse manufactured the external insulation or gaskets applied to the turbines. Additionally, CBS submitted an affidavit stating that the Navy required all turbines to be delivered without insulation, and the plaintiff did not respond to that affidavit.
  • BW/IP. The plaintiff identified Borg Warner as the manufacturer of the brine pumps aboard the USS George Washington Carver and the USS Tinosa. He testified that he worked on the brine pump on the USS Washington Carver on one occasion. However, he testified that he was exposed to asbestos-containing Flexitallic gaskets between the desurgers and the pumps, and there was no evidence that those gaskets were originally installed by BW/IP.
  • Eaton/Cutler-Hammer. According to the plaintiff, his source of exposure to an asbestos-containing product by Cutler-Hammer resulted from occasionally assisting electricians on the USS George Washington Carver or being in their presence. He did not personally work on any Cutler-Hammer breakers, and he did not know if any dust associated with the electricians’ work contained asbestos. Eaton also submitted an expert report indicating that, even if the breakers contained asbestos, they would have only emitted trace amounts of asbestos that would not have been substantial enough to cause the plaintiff’s injuries. As such, the plaintiff could not establish more than minimal exposure.
  • Union Carbide. The plaintiff believed he was exposed to asbestos-containing bakelite by working near electricians performing work on electrical breakers and switches. The court recommended summary judgment as to Union Carbide because the plaintiff failed to establish that he was exposed to any asbestos-containing bakelite. Even if the bakelite did contain asbestos, the plaintiff could not establish that he was exposed to respirable fibers from the product because he did not know if any dust in his vicinity was associated with the electrical breakers.
  • Gould: The plaintiff alleged exposure to Gould products during an overhaul of the USS George Washington Carver in 1972 or 1973; specifically, while working around electricians who were replacing breaker switches. He did not work directly with a Gould product. He also could not recall a specific Gould component or whether it may have exposed him to asbestos. Accordingly, summary judgment was recommended as to Gould as well.

Read the full decision here.


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