Summary Judgment was recommended by the magistrate for the plaintiffs’ failure to establish causation in this case. The plaintiff appealed and contended that his asbestos related disease was a result of exposure to asbestos from Foster Wheeler boilers while working onboard the USS Gridley.
The court noted that the standard of review of a magistrate’s report and recommendation is de novo. In this case, no party objected to the application of maritime law. Accordingly, the plaintiff had the burden to show: 1) The plaintiff was exposed to products made by Foster Wheeler 2) Foster Wheeler made or distributed the product 3) the product was a substantial factor in causing the plaintiff’s injuries. The court stated that direct and circumstantial evidence is permitted to establish substantial factor. However, the plaintiff must show that “the asbestos was a substantial factor in the injury is more than conjectural.” It was undisputed that the plaintiff was exposed to Foster Wheeler boilers. However, the plaintiff relied on an affidavit from a Foster Wheeler employee that averred that asbestos containing insulation was used extensively on boilers in the 1950s. The plaintiff testified that a gasket was also present on the sludge drum of the boiler. The defendants countered that nothing demonstrated the age or service history of the boilers. Therefore, the plaintiff could not establish who made the insulation or asbestos used on the boilers. Finally, the court was not persuaded by older cases cited by the plaintiff where the defendants may be held liable for the foreseeable use of asbestos in original products. Relying on the recent decision in In re Asbestos Prods. Liab. Litig., the court noted the plaintiffs did not put forth evidence that “the crucial question of whether the original, asbestos containing components were present in the boiler during maintenance.” Consequently, the court found no error in the report and recommendation. Summary judgment was therefore entered.