Walsh v. Air and Liquid Systems Corp.

• Court: Superior Court of Delaware
• Decided: October 27, 2017
• Docket: N15C-08-206 ASB
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN RE: ASBESTOS LITIGATION

PHILLIP A. WALSH and NAOMI ) WALSH, ) ) Plaintiffs, ) ) v. ) C.A. No. N15C-08-206 ASB ) AIR AND LIQUID SYSTEMS CORP., ) ) Defendants. ) ) )

October 27, 2017

Upon Defendant Air and Liquid System’s Motion for Summary Judgment GRANTED.

Plaintiffs allege that Phillip Walsh (“Mr. Walsh”) developed mesothelioma as

a result of exposure to asbestos while serving in the United States Navy as a

“machinist” from 1975 to 1977. Mr. Walsh performed similar work in engine rooms

on both the USS Halsey and USS Bigelow. Mr. Walsh was responsible for watching

gauges and maintaining equipment, and he believes he was exposed to asbestos from

replacing packing and flange gaskets. Mr. Walsh testified that some pumps and

valves were insulated and he removed and applied insulation to the equipment when

making repairs. Mr. Walsh identified Buffalo Pumps as a pump he recalled being in the engine room on both the ships he worked on. Air & Liquid Systems Corporation,

as successor by merger to Buffalo Pumps moved for summary judgment.

Defendant argues that under Maritime law the evidence fails to establish that

Mr. Walsh was exposed to asbestos from a Buffalo’s pumps. First, Defendant avers

that Mr. Walsh was the only product identification witness. Defendant states that

Mr. Walsh could not differentiate Buffalo pumps from other pumps he recalled

working with, and Mr. Walsh did not order replacement parts. Conversely, Plaintiffs

argue that they established that Mr. Walsh was exposed to asbestos from

Defendant’s product. Plaintiffs cite to a portion of Mr. Walsh’s deposition when

asked about the manufacturer of the replacement packing. Mr. Walsh stated that he

“typically got packaging, or whatever, and they would have the names on that.”

Plaintiffs presented evidence that Buffalo sold asbestos containing pumps from 1955

through 1985, and the ship records demonstrate that Buffalo pumps were present

onboard both the Halsey and Bigelow. Plaintiff cited to contracts between Buffalo

and other ships to demonstrate that Buffalo supplied kits for onboard repair of its

pumps.

In order to establish causation for an asbestos claim under maritime law, a

plaintiff must show that he was exposed to the defendant’s product and “the product

2 was a substantial factor in causing the injury he suffered.”1 When viewing the record

in a light most favorable to Plaintiffs and believing that Mr. Walsh worked on

Defendant’s product, and that the replacement parts contained asbestos, Plaintiffs

have not established that the facts support any permissible inference that Mr. Walsh

was exposed to asbestos-containing components parts for which Defendant is

responsible. There was no testimony from Mr. Walsh that he recalled using

replacement parts manufactured by Defendant, and he was the only product

identification witness in this case. Plaintiffs attempt to stretch Mr. Walsh’s general

testimony about the replacement parts as evidence that Mr. Walsh worked with

asbestos replacement parts manufactured by Defendant. Because Plaintiffs bear the

burden of proof at trial, Defendant is entitled to judgment as a matter of law.2

Accordingly, Defendant’s Motion for Summary Judgment is GRANTED.

IT IS SO ORDERED.

/s/ Calvin L. Scott The Honorable Calvin L. Scott, Jr.

1 Lindstrom v. A–C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir.2005) (citations omitted). 2 See Kennedy v. Encompass Indem. Co., 2012 WL 4754162, at *2 (Del. Super. Sept. 28, 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)) (If the non- moving party bears the burden of proof at trial, yet “fails to make a showing sufficient to establish the existence of an element essential to that party’s case,” then summary judgment may be granted against that party.). 3