U.S. District Court for the District of Delaware, July 16, 2021
The plaintiff filed this personal injury action against multiple defendants in the Superior Court of Delaware asserting claims arising from the decedent’s harmful exposure to asbestos. The plaintiff alleges the decedent developed mesothelioma as a result of exposure to defendant Foster Wheeler’s asbestos-containing equipment during the decedent’s service as a boiler tender in the United States Navy. Foster Wheeler removed the case to federal court based on the federal officer removal statute. Subsequently, Foster Wheeler filed its motion for summary judgment.
In its motion, Foster Wheeler argued that the court should grant its motion because no evidence of frequent or regular exposure to any asbestos-containing products associated with Foster Wheeler exists in the record. The plaintiff argued that the decedent’s exposure to asbestos from the Foster Wheeler boilers was a substantial factor in causing the decedent’s injuries.
The parties agreed that maritime law applied to all substantive issues in this litigation. In order to establish causation in an asbestos claim under maritime, a plaintiff must show, for each defendant that that (1) he was exposed to the defendant’s product, and (2) the product was a substantial factor to the text of the note in causing the injury he suffered. The plaintiff must show a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.
The court recommended denying Foster Wheeler’s motion for summary judgment because there is a genuine issue of material fact in dispute as to whether the decedent’s exposure to asbestos from Foster Wheeler products was a substantial factor in causing the decedent’s injuries. The court noted evidence in the record existed to suggest that the decedent worked directly with Foster Wheeler products. The decedent spent twelve hours a day in the boiler room on a naval ship working with Foster Wheeler boilers for at least twenty-one months. Evidence also suggested others performed work on Foster Wheeler products while the decedent was present. Particles from the work on the Foster Wheeler boilers would rise up to the decedent and impact his breathing. The decedent also cleaned and swept in the boiler room, which housed Foster Wheeler boilers.
Thus, the court determined the record contained evidence of the frequency, regularity, or proximity of the decedent’s work on and around Foster Wheeler boilers sufficient to create a genuine issue of material fact regarding substantial factor causation. Further, the evidence showing the decedent’s direct work on Foster Wheeler pumps, his presence in the boiler room, and proximity to those boilers while others did the same work amounts to “a high enough level of exposure such that an inference that the asbestos was a substantial factor in the injury is more than conjectural. As such, the court denied Foster Wheeler’s motion for summary judgment.
The court also recommended denying Foster Wheeler’s motion for summary judgment on the plaintiff’s failure to warn claims because, considering the evidence in the light most favorable to the plaintiff, Foster Wheeler had failed to establish that the plaintiff cannot succeed on her failure to warn claims as a matter of law. Additionally, the court recommended denying Foster Wheeler’s motion for summary judgment based on the government contractor defense finding there was a genuine dispute of material fact as to whether the government exercised discretion and approve of warnings and whether the contractor provided warnings.
The plaintiff filed this personal injury action against multiple defendants in the Superior Court of Delaware asserting claims arising from the decedent’s harmful exposure to asbestos. The plaintiff alleges the decedent developed mesothelioma as a result of exposure to defendant Foster Wheeler’s asbestos-containing equipment during the decedent’s service as a boiler tender in the United States Navy. Foster Wheeler removed the case to federal court based on the federal officer removal statute. Subsequently, Foster Wheeler filed its motion for summary judgment.
In its motion, Foster Wheeler argued that the court should grant its motion because no evidence of frequent or regular exposure to any asbestos-containing products associated with Foster Wheeler exists in the record. The plaintiff argued that the decedent’s exposure to asbestos from the Foster Wheeler boilers was a substantial factor in causing the decedent’s injuries.
The parties agreed that maritime law applied to all substantive issues in this litigation. In order to establish causation in an asbestos claim under maritime, a plaintiff must show, for each defendant that that (1) he was exposed to the defendant’s product, and (2) the product was a substantial factor to the text of the note in causing the injury he suffered. The plaintiff must show a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.
The court recommended denying Foster Wheeler’s motion for summary judgment because there is a genuine issue of material fact in dispute as to whether the decedent’s exposure to asbestos from Foster Wheeler products was a substantial factor in causing the decedent’s injuries. The court noted evidence in the record existed to suggest that the decedent worked directly with Foster Wheeler products. The decedent spent twelve hours a day in the boiler room on a naval ship working with Foster Wheeler boilers for at least twenty-one months. Evidence also suggested others performed work on Foster Wheeler products while the decedent was present. Particles from the work on the Foster Wheeler boilers would rise up to the decedent and impact his breathing. The decedent also cleaned and swept in the boiler room, which housed Foster Wheeler boilers.
Thus, the court determined the record contained evidence of the frequency, regularity, or proximity of the decedent’s work on and around Foster Wheeler boilers sufficient to create a genuine issue of material fact regarding substantial factor causation. Further, the evidence showing the decedent’s direct work on Foster Wheeler pumps, his presence in the boiler room, and proximity to those boilers while others did the same work amounts to “a high enough level of exposure such that an inference that the asbestos was a substantial factor in the injury is more than conjectural. As such, the court denied Foster Wheeler’s motion for summary judgment.
The court also recommended denying Foster Wheeler’s motion for summary judgment on the plaintiff’s failure to warn claims because, considering the evidence in the light most favorable to the plaintiff, Foster Wheeler had failed to establish that the plaintiff cannot succeed on her failure to warn claims as a matter of law. Additionally, the court recommended denying Foster Wheeler’s motion for summary judgment based on the government contractor defense finding there was a genuine dispute of material fact as to whether the government exercised discretion and approve of warnings and whether the contractor provided warnings.