Evans et al v. Alfa Laval Inc. et alREPLY BRIEF re MOTION for Summary JudgmentD. Del.November 21, 2016IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE In Re: ICOM HENRY EVANS and ) ASBESTOS JOHANNA ELAINE EVANS ) C.A. No. 1:15-cv-00681-SLR-SRF WARREN PUMPS, LLC’S REPLY BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Defendant Warren Pumps, LLC ("Warren"), by and through its undersigned counsel, hereby submits this Reply Brief in further support of its Motion for Summary Judgment: I. THE MATERIAL FACTS REMAIN UNDISPUTED AND THE EVIDENCE IS INSUFFICIENT TO ESTABLISH THAT A WARREN PRODUCT WAS A SUBSTANTIAL FACTOR IN CAUSING THE ALLEGED INJURIES. Plaintiffs acknowledge that maritime law requires them to establish exposure to the defendant's product such that the exposure was a substantial factor in causing the injury. Plaintiffs also acknowledge this Court's recent Hillyer decision and other Third Circuit case law explaining that there is a requirement of the causation standard that is implicit in the first requirement – that the defendant at issue manufactured or distributed the specific asbestos- containing product to which exposure is alleged. Hillyer v. ABB, Inc. (In re Asbestos Litigation), No. 15-378-GMS-SRF, 2016 U.S. Dist. LEXIS 99337 (D. Del. Jul. 28, 2016).1 Notwithstanding Plaintiffs’ acknowledgements regarding the evidence necessary to meet their burden of proof as to causation, Plaintiffs attempt to withstand summary judgment on the issue of causation by attaching numerous exhibits to their Opposition which do nothing to dispute the material facts addressed in Warren’s Opening Memorandum. Indeed, Plaintiffs’ 1 Id. Plaintiffs’ Opposition argues that they have met their burden of proof with respect to the duty to warn element of their claims. However, as Warren’s Opening Memorandum of Law clearly demonstrates, Warren moved for summary judgment on the basis that Plaintiffs have failed to presented sufficient evidence to satisfy their burden of proof as to the causation element of their claims. Thus, Plaintiffs’ citation to (and urging of this Court to adopt the standards set forth in) duty to warn cases such as Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760 (N.D. Ill. 2014) are misplaced and should be disregarded. Case 1:15-cv-00681-SLR-SRF Document 193 Filed 11/21/16 Page 1 of 4 PageID #: 9879 2 exhibits do not assist Plaintiffs in meeting their burden, as they (at best) show nothing more than that: (1) Mr. Evans “worked” on pumps while serving in a fire room aboard two Navy vessels; (2) the Navy procured certain pumps from Warren for installation in the fire rooms of those vessels; (3) depending upon the time period at issue, some (but not all) Warren pumps contained one or more internal asbestos-containing components (i.e. internal gaskets, packing and/or internal insulation encased under a metal covering) when originally sold by Warren pursuant to military specifications; and (4) if ordered by the Navy for a specific Warren pump, Warren at times sold a replacement internal gasket or set of packing for that specific pump. Plaintiffs’ exhibits do nothing to dispute the following material facts which are fatal to Plaintiffs’ claims against Warren: Mr. Evans did not testify to ever encountering any internal asbestos-containing component of any pump, much less a Warren pump. In fact, the only internal pump “work” he described involved utilizing components made of carbon—not asbestos. Mr. Evans testified that the external flange gaskets he encountered when connecting piping to the outside of pumps were supplied by the Navy and manufactured by a different company; and Plaintiffs have not offered any admissible evidence that Warren supplied such external flange gaskets to the Navy generally, let alone for the USS Kearsarge or USS Bole. Mr. Evans testified that the pumps he encountered were not insulated.2 As anticipated in Warren’s Opening Memorandum, Plaintiffs’ Opposition does not dispute the above-listed facts drawn directly from Mr. Evans’ own testimony. Instead, Plaintiffs 2 Discovery Deposition of Icom Henry Evans, p. 152:3: Q. Were any of the pumps externally insulated? A. No. This page was attached as part of Warren's Exhibit A to its Opening Brief. Case 1:15-cv-00681-SLR-SRF Document 193 Filed 11/21/16 Page 2 of 4 PageID #: 9880 3 come forth with ship records to establish the presence of Warren pumps at Mr. Evans’ worksite. However, it is well established under maritime law that the mere presence of Warren pumps in Mr. Evans’ workspace is not sufficient to establish substantial factor causation; nor is evidence of only minimal exposure to asbestos associated with those pumps. See Lindstrom, 424 F.3d at 492. Rather, Plaintiffs must—but have failed to—present sufficient evidence: (1) that Mr. Evans performed pump work that involved the manipulation of asbestos-containing components associated with a Warren pump; (2) that such work with asbestos-containing components led to a “high enough level of exposure” such that it could be deemed “substantial exposure;” and (3) that such asbestos-containing components were manufactured or supplied by Warren. The only conclusion that can be reached from Mr. Evans’ testimony is that he did not receive any—not even minimal—exposure to asbestos from his work on pumps. Moreover, Plaintiffs’ own exhibits confirm that even if Mr. Evans had ever encountered an asbestos-containing component associated with a Warren pump (of which there is no evidence in this case), Mr. Evans could not have encountered any originally-installed components on either vessel. Indeed, Plaintiffs’ Exhibit 2 states that the USS Kearsarge underwent an overhaul from November 1947 to March 1948 and from August 1949 to January 1950, and that in 1950 the ship was converted and most pumps were completely overhauled at that time by the shipyard.3 Exhibit 2 further indicates that the USS Kearsarge was overhauled from February 1954 to June 1954, drydocked in April 1955, and scheduled for another overhaul in June 1956.4 All of those overhauls occurred before Mr. Evans testified to boarding the USS Kearsarge, in 1957. Similarly, Plaintiffs' Exhibit 4 indicates that the USS Bole underwent overhaul in 1948 3 Plaintiffs' Exhibit 2, p. 8: "All pump units were opened and inspected during conversion and in most cases completely overhauled by shipyard. Lube oil, fuel oil service, main feed, feed booster, and main condensate pumps were shifted during dock trials without incident." 4 Id. at p. 15, 17. Case 1:15-cv-00681-SLR-SRF Document 193 Filed 11/21/16 Page 3 of 4 PageID #: 9881 4 and was due for its next overhaul beginning April 1950.5 Mr. Evans testified that he did not board the USS Bole until years later in 1961. Accordingly, the evidence in the record, even viewed in a light most favorable to Plaintiffs, fails to support a reasonable inference beyond impermissible speculation and conjecture that Mr. Evans was “substantially” exposed to asbestos from asbestos-containing components supplied by Warren over a “substantial” period of time – as required by maritime law’s stringent causation standard. CONCLUSION For the foregoing reasons and those stated more fully in Warren’s Opening Memorandum of Law, defendant Warren Pumps, LLC respectfully requests that summary judgment be entered in its favor, and that all claims against Warren be dismissed with prejudice. Respectfully submitted, MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN BY: /s/ Jessica L. Tyler (No. 5458) ARMAND J. DELLA PORTA, JR. (ID 2861) ANA MARINA MCCANN (ID 5474) JESSICA L. TYLER (ID 5458) JENNIFER D. SMITH (ID 5804) 1007 N. Orange Street, Suite 600 P.O. Box 8888 Wilmington, DE 19899 (302) 552-4300 Attorneys for Warren Pumps, LLC DATED: November 21, 2016 LEGAL/107899853.v1 5 Plaintiffs' Exhibit 2, p. 7-8, 11-12. The Report indicates that pumps were opened for inspection. Case 1:15-cv-00681-SLR-SRF Document 193 Filed 11/21/16 Page 4 of 4 PageID #: 9882
