Walsh v. Aurora Pump Co.

• Court: Superior Court of Delaware
• Decided: November 29, 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 ) AURORA PUMP CO., ) ) Defendants. ) ) )

November 29, 2017

Upon Aurora Pump’s Motion for Summary Judgment GRANTED.

Plaintiffs Phillip A. Walsh and Naomi Walsh (collectively “Plaintiffs”) filed

an action against numerous defendants including Defendant Aurora Pump Company

(“Defendant”) alleging that Mr. Walsh contracted mesothelioma as a result of his

alleged exposure to asbestos-containing products. Defendant filed a motion for

summary judgment. 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 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 was the only product identification witness offered by

Plaintiffs in this case. He could not testify about the maintenance history regarding

the equipment on the ships, but he recalled Defendant as a manufacturer of pumps

on the USS Halsey and USS Bigelow. Mr. Walsh replaced pumps on the ships and

stated that he would have to pull insulation off the pumps, remove the old gaskets,

put new packing in, and new gaskets on. Mr. Walsh believed that the parts contained

asbestos because it was “common knowledge,” and on the kits he used. With regard

to the packing he stated that “depending on the pump, if it was Gould or, you know,

Warren or some of the names that I mentioned before, it would have been those.”

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

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

in a light most favorable to Plaintiffs, Plaintiffs have not established that the facts

support any permissible inference that Mr. Walsh was exposed to asbestos-

containing component parts for which Defendant’s product was a substantial factor

in causing Mr. Walsh’s injury. Mr. Walsh was the only product identification

1 Lindstrom v. A–C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir.2005) (citations omitted). 2 witness in this case, and he was unable to recall the maintenance history, how often

he worked with Aurora pumps, or whether the pumps were freshwater or saltwater

pumps. Plaintiffs attempt to stretch Mr. Walsh’s general testimony about the

replacement parts as evidence that Mr. Walsh worked with asbestos products and

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.

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