Magistrate Judge Recommends Granting Summary Judgment to Four Defendants Due to Lack of Evidence U.S. District Court for the District of Delaware, February 15, 2017

A report and recommendation was made regarding four summary judgment motions filed by defendants Gardner Denver, Flowserve, Atwood & Morrill Company, and Nash Engineering. The plaintiffs did not respond to any of the motions for summary judgment. The magistrate judge recommended granting all four motions.

The plaintiffs originally filed in Delaware state court, alleging that Icom Henry Evans developed mesothelioma due to asbestos exposure while a fireman and boiler tender with the U.S. Navy from 1957-1967. Foster Wheeler removed to federal court. The only fact witness deposed was Mr. Evans, who testified he believed he was exposed to asbestos gaskets and refractory brick on the USS Kearsarge and USS John A. Bole. He did not identify any products made by Gardner Denver, Flowserve (Edward Valves), Atwood, or Nash.

The parties agreed that maritime law applied to all Naval/sea based claims. To establish causation in an asbestos claim under maritime law, a plaintiff must show that: (1) he was exposed to the defendant’s product, and (2) the product was a substantial factor in causing the injury he suffered, and (3) the defendant manufactured or distributed the asbestos-containing product to which exposure is alleged. “A plaintiff may rely upon direct evidence…or circumstantial evidence [to] support an inference that there was exposure to the defendant’s product for some length of time…a mere showing that defendant’s product was present somewhere at plaintiff’s place of work is insufficient.”  In this case, since the plaintiffs did not produce any evidence tending to establish exposure to Gardner Denver, Flowserve, Atwood, and Nash products, the plaintiffs failed to meet the substantial factor test. The magistrate judge recommended granting summary judgment.

Read the full decision here.

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