U.S. District Court for the District of Delaware, August 18, 2021
As reported in July by Asbestos Case Tracker, the plaintiff filed this action against multiple defendants in the Superior Court of Delaware, asserting claims arising from the decedent’s exposure to asbestos. The plaintiff alleges that the decedent developed mesothelioma as a result of his exposure to Foster Wheeler’s asbestos-containing equipment and replacement boiler components during his service as a boiler tender in the United States Navy. Foster Wheeler removed the case to federal court and subsequently moved for summary judgment.
On July 16, 2021, Magistrate Judge Fallon issued a Report and Recommendation (the Report) denying Foster Wheeler’s motion for summary judgment. Judge Fallon found that there was 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. As to the plaintiff’s failure to warn claims, considering the evidence in the light most favorable to the plaintiff, Foster Wheeler failed to establish that the plaintiff could not succeed on her claims as a matter of law. Lastly, Judge Fallon recommended denying the 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 approved of warnings, and whether the contractor provided warnings.
Foster Wheeler objected to the Report, arguing that it erred by: (1) recommending denial of summary judgment where “the record is devoid of competent evidence of exposure to asbestos owing to a Foster Wheeler product to a degree sufficient to substantiate causation,” (2) relying on expert, Captain Lowell, (3) incorrectly interpreting “the narrow exception to maritime law’s general rule that an equipment manufacturer is not liable for an injury caused by a third-party product used with its equipment,” and (4) relying on Walter Newitts’ affidavit.
First, the court agreed that the “frequency, duration, and quantity of [the decedent’s] exposure to Foster Wheeler’s asbestos-containing boilers supports the legal conclusion Foster Wheeler’s products were a substantial factor to the development of [the decedent’s] illness.” The court further noted that a challenge to the decedent’s credibility is a question for the jury and not summary judgment. Second, the court found that Captain Lowell’s testimony regarding the machinery and equipment used on navy ships, as well as the use of asbestos in that equipment, corroborated the decedent’s testimony. Therefore, the Report properly relied on Captain Lowell’s testimony. Third, the court agreed that there are genuine issues of material fact as to each of the three elements of the DeVries standard, which established when “a product manufacturer has a duty to warn in the context of maritime tort law.” Lastly, the court found that the Report properly relied on the Newitts affidavit, which provided relevant evidence regarding Foster Wheeler boilers during the relevant time period, Foster Wheeler’s knowledge of the dangers of asbestos in 1968, and the safety measures enacted by Foster Wheeler for employees working with asbestos.
Accordingly, the court overruled Foster Wheeler’s objections, adopted the Report, and denied the motion for summary judgment.