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From Products Liability Law Daily, February 9, 2017

Former Navy captain’s affidavit failed to identify asbestos products makers and exposure levels

By Pamela C. Maloney, J.D.

An affidavit prepared by a retired U.S. Navy engineering officer with more than 50 years of experience in naval and marine engineering and architecture was too general to establish that a former seaman actually had been exposed to the asbestos-containing products manufactured or supplied by the companies named in the seaman’s lawsuit, the federal magistrate judge concluded in recommending that the manufacturers’ motions for summary judgment be granted on all counts except for the seaman’s conspiracy count. The magistrate further determined that there was no evidence from which a jury could infer that the seaman’s exposure to those products was substantial enough to contribute to his injury (MacQueen v. Union Carbide Corp., February 8, 2017, Burke, C.).

The former seaman had been stationed aboard the U.S.S. Randolph and the U.S.S. Independence, where he worked as a pipefitter. After his death, his widow filed a lawsuit against more than 50 manufacturers and suppliers of asbestos-containing products, asserting state law causes of action related to her husband’s alleged exposure to asbestos and asbestos-containing products while serving in the Navy and while employed as a salesman by Union Carbide Corp. The three remaining defendants—Crane Co., Warren Pumps LLC, and Air & Liquid Systems Corp. (Buffalo)—all of which had manufactured equipment that allegedly was aboard one of those two vessels—moved for summary judgment on product identification and nexus grounds.

The widow countered the motion, arguing that an affidavit submitted by Captain Francis J. Burger, who had served aboard a sister ship to the Independence, established that during the course of his typical duties, the seaman had come into immediate and close proximity to asbestos-containing packing in valves, asbestos-containing gaskets on pumps, and asbestos-containing pipe insulation. The affidavit further stated that based on Burger’s review of the seaman’s military service records, his knowledge regarding the day-to-day duties of servicemen, and his review of the products manufactured by the named companies, it could be concluded "to a reasonable degree of certainty" that the seaman had been exposed to asbestos-containing products contained in, but not limited to, the products made and supplied by the named companies. The conclusions laid out in the Burger Affidavit were sufficient, according to the widow, to raise a question of fact as to causation.

Product identification evidence. In order to prevail against the manufacturers’ summary judgment motion, the widow had to show that the seaman had been exposed to the manufacturers’ products and that his exposure to those products was a substantial factor in causing his injuries. The widow relied on the Burger Affidavit to counter the manufacturers’ three product identification witnesses, who testified that the seaman had never been exposed to any of the manufacturers’ products while serving on either of the two vessels.

Noting that relevant case law supported the manufacturers’ argument that the affidavit lacked sufficient factual foundation to support Burger’s conclusions, the court explained that, standing alone, an expert affidavit was not enough to create a genuine issue of fact for trial. The affidavit lacked solid evidence as to what products to which the seaman actually had been exposed; instead, Burger merely speculated that the seaman "could have" or "might have been" exposed to asbestos-containing products. Without additional factual foundation, the affidavit could not raise a triable issue of fact.

Furthermore, Burger could not establish that the seaman had been exposed to the products manufactured or supplied by these companies. Although Burger had asserted that the named manufacturers’ products were aboard the two vessels and that the Navy had a policy of using replacement parts that either were from the original manufacturers or were of like kind, quality, and specification as those provided by the original manufacturers, there was no factual evidence to support his conclusion that the asbestos-containing products of these manufacturers were the ones to which the seaman might have been exposed.

In addition to lacking a factual basis for concluding that the seaman had been exposed to these manufacturers’ asbestos-containing products, the Burger Affidavit also failed to provide factual support for the conclusion that the seaman actually had been exposed to those products. The magistrate could not conclude from the affidavit’s broad sweeping statements that the manufacturers’ products were aboard the two ships and that during the time in question, the original and replacement parts for valves, pumps, and pipe insulation would have used asbestos-containing materials, or that the seaman had been exposed to products originally manufactured by these companies or to replacement parts supplied by those same companies.

Substantial factor evidence. The court went on to explain that even assuming that the Burger Affidavit could be construed as sufficient evidence to establish that the seaman had been exposed to asbestos-containing products manufactured or supplied by these three companies, the widow had failed to provide sufficient evidence from which a jury could infer that the seaman’s exposure to those products was substantial enough to contribute to his injury. The affidavit did not speak to the level of asbestos exposure that the seaman might have experienced. The fact that the seaman could have been exposed anywhere on board either of these two vessels, as stated in the affidavit, undercut the possibility that he experienced "substantial exposure" to any particular product found in a particular place.

Conspiracy claim. The widow’s complaint contained allegations that the manufacturers and suppliers had conspired with Metropolitan Life Insurance Company to suppress and misrepresent the hazards of asbestos exposure. Finding that two of the three companies—Crane and Buffalo—failed to seek dismissal of the conspiracy claim specifically, the magistrate concluded that there was no basis on which to recommend dismissal. According to the magistrate, the two companies seemingly asserted that if the court found no genuine issue of fact existed as to causation, then that necessarily meant that all claims against them, including the conspiracy claims, should be dismissed. However, under Delaware law, even if a manufacturer’s negligence or product did not cause the plaintiff’s injuries, the manufacturer still could be liable if it was a member of a conspiracy to intentionally misrepresent or fraudulent conceal the hazards of asbestos. Because neither company proved that there was insufficient evidence to support the conspiracy claim or that the claim had been asserted only against the insurance company, the magistrate could not recommend dismissal of this count.

The case is Civil Action No. 13-831-SLR-CJB.

Attorneys: Thomas C. Crumplar (Jacobs & Crumplar, PA) for Marguerite MacQueen. Beth E. Valocchi (Swartz Campbell LLC) for Union Carbide Corp. Amaryah K. Bocchino (Manion Gaynor & Manning LLP) and Andrew Ross Silverman (MacElree Harvey, Ltd.) for Acme Engineering & Manufacturing. Jessica Lee Tyler (Marshall Dennehey Warner Coleman & Goggin, PC) for Warren Pumps LLC.

Companies: Union Carbide Corp.; Acme Engineering & Manufacturing; American Engineering Co.; Warren Pumps LLC; Air & Liquid Systems Corp.

MainStory: TopStory SCLIssuesNews EvidentiaryNews AsbestosNews DelawareNews

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