Summary Judgment Recommended for Turbine and Valve Defendants in Mesothelioma Case U.S. District Court for the District of Delaware, March 30, 2017

The plaintiff’s executrix brought this claim against multiple defendants alleging that her decedent, Mr. Denbow, developed mesothelioma as a result of his work in the U.S. Navy onboard the USS New Jersey from 1954-57 and while working at Koppers Chemical from 1965-70.

The plaintiff relied upon the testimony of product identification witness Charles Ricker. Although not sure when he met Mr. Denbow, he testified that he met him while working as a machinist mate in engine room Nos. 2 and 4 during his stint on the New Jersey. The testimony also included that repairs would have been made to the Westinghouse turbine including the removal of insulation. Mr. Ricker believed the insulation contained asbestos but he was not sure who made any of the replacement parts including the valves or its packing glands.

Westinghouse and Crane Co. moved for summary judgment. The court began its analysis with the standard for summary judgment. Summary judgment is appropriate when there is no genuine dispute as to material fact. The moving party bears the burden. The existence of some evidence in support of the nonmoving party may not be sufficient to deny a motion for summary judgment, i.e., there must be enough evidence to enable a reasonable finding for the nonmoving party. The parties agreed that maritime law applied. The court noted that the next step beyond deciding product identification would be to apply the bare metal defense. Essentially, the defense “protects a defendant from liability on the basis that no duty to warn exists relating to asbestos containing products the defendant did not manufacture or distribute, absent evidence that defendant did in fact manufacture or supply the asbestos containing product to which the plaintiff was exposed.”

Westinghouse: The court recommended the granting of Westinghouse’s motion for summary judgment. First, the plaintiff’s fact witness did not identify the plaintiff as having worked on the Westinghouse turbine. Therefore, the substantial exposure requirement is not met. The plaintiff countered that under the Quirin case, the bare metal defense is not applicable because Westinghouse required asbestos containing insulation for its turbines, and furnished a portion of the insulation. The plaintiff utilized deposition testimony from a former employee of Westinghouse who testified that the turbines had to be insulated because they were powered by steam. However, a finding that Westinghouse delivered the turbines to the USS New Jersey without insulation was previously made. In addition, the court stated that as in previous decisions, it does not follow the Quirin case.

Crane Co.: The court also recommended granting Crane Co.’s motion for summary judgment. The plaintiff argued that Crane Co.’s valves utilized asbestos packing. However, Mr. Ricker could not recall any specific products Mr. Denbow used. Moreover, he did not recall the plaintiff working on valves. The plaintiff used circumstantial evidence and asserted that drawings of the USS New Jersey illustrated that Crane valves were in the engine room. Further, witness and engineer Arnold Moore stated that “Crane manufactured and provided valves for the main propulsion system aboard the USS New Jersey.” Also, Crane Co.’s representative stated that Crane valves used asbestos and had to be replaced over time. The court was not persuaded and stated that 1) only the presence of Crane valves was proved and 2) McClean’s testimony did not prove that asbestos containing Crane valves were on this particular ship. Plaintiff again countered arguing that under Quirin the bare metal defense should not apply. The Court declined and reiterated that Plaintiff failed to show a material issue of fact with respect to whether Crane manufactured and supplied asbestos containing valves for the USS New Jersey.

Read the full decision here.

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