EDUARDO C. ROBRENO, District Judge.
TABLE OF CONTENTS
I. BACKGROUND ....................................................723
II. LEGAL STANDARD ................................................724
A. SUMMARY JUDGMENT STANDARD .................................724
B. THE APPLICABLE LAW ........................................724
C. PRODUCT IDENTIFICATION/CAUSATION UNDER NORTH
DAKOTA LAW ..............................................724
III. DISCUSSION ....................................................726
A. DEFENDANT'S ARGUMENT ......................................726
B. PLAINTIFFS' ARGUMENTS .....................................726
C. ANALYSIS ..................................................727
IV. CONCLUSION ....................................................732
Before the Court are Motions for Summary Judgment in nineteen (19) various cases originating in North Dakota, all of which are part of MDL-875, the consolidated asbestos products liability multidistrict litigation pending in the U.S. District Court for the Eastern District of Pennsylvania. Defendant Foster Wheeler Corporation ("Foster Wheeler") has moved for summary judgment in each case on grounds of insufficient evidence.
I. BACKGROUND
The "Amoco Cases" were transferred from the United States District Court for the District of North Dakota to the United States District Court for the Eastern District of Pennsylvania in 1992 (single plaintiff cases) and 1993 (multi-plaintiff action on behalf of sixty-six (66) different plaintiffs), where they were administratively consolidated for pre-trial purposes as part of MDL-875.
Each of the decedents in these cases ("Decedents") worked at the same Amoco refinery in Mandan, North Dakota and was thereafter diagnosed with an asbestos-related illness. Defendant Foster Wheeler built a 140-foot high Alkylation unit at the Mandan Amoco refinery in 1957. Defendant Foster Wheeler has moved for summary judgment in many of the "Amoco Cases," arguing that there is insufficient product identification evidence to support a finding of causation with respect to its product(s).
II. LEGAL STANDARD
A. Summary Judgment Standard
Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). "A motion for summary judgment will not be defeated by `the mere existence' of some disputed facts, but will be denied when there is a genuine issue of material fact." Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505.
In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. "After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party." Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir.2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250, 106 S.Ct. 2505.
B. The Applicable Law
The parties have all agreed that North Dakota substantive law applies. Therefore, this Court will apply North Dakota law in deciding Foster Wheeler's Motions for Summary Judgment. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); see also Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).
C. Product Identification/Causation Under North Dakota Law
This Court has previously addressed the issue of product identification/causation under North Dakota law and has thoroughly explored the contours of that state's law. See, e.g., Various Plaintiffs v. Various Defendants (In Re Asbestos Products Liability Litigation), 2010 WL 3397473 (E.D.Pa. Aug. 26, 2010) (Robreno, J.) (adopting the July 30, 2010 Report and Recommendation of Chief Magistrate Judge Thomas J. Rueter regarding summary judgment motions of defendant S.O.S. Products Company, Inc., appearing at 2010 WL 3397472); Miller v. Acands, Inc., 09-68111, 2011 WL 5505429 (E.D.Pa. June 23, 2011) (Robreno, J.). In Miller, the Court wrote:
Miller, 2011 WL 5505429 at *1 n. 1.
There have been no new decisions from any court of appeals in North Dakota since this Court's discussion of the North Dakota product identification standard in June of 2011.
III. DISCUSSION
A. Defendant's Argument
Foster Wheeler concedes that it built a 140-foot high Alkylation unit at the Amoco facility in 1957. It argues, however, that Plaintiffs in these cases have failed to identify sufficient evidence to support a finding of causation with respect to its work or its product(s) at the Amoco facility.
B. Plaintiffs' Arguments
Plaintiffs contend generally that they have identified sufficient product identification evidence under the standard that the court should apply. Plaintiffs acknowledge that any asbestos associated with the Alkylation unit was asbestos of a component part manufactured by a company other than Foster Wheeler (including, specifically, Johns-Manville). Plaintiffs cite to state trial court and federal district court cases to argue that a liberal application of the "substantial factor" test is warranted under the precedent of trial courts in North Dakota, and that circumstantial evidence is sufficient to survive summary judgment. Of particular note, Plaintiffs cite to Nogosek v. Asbestos Corp. of America, No. A2-87-173, 1989 WL 1635767 (D.N.D.1989), quoting the following excerpt:
1989 WL 1635767, at *1-2 (emphasis added). During oral argument, Plaintiffs asserted that Bossert and the decisions issued by this MDL Court in June of 2011 are distinguishable because of the short time period of alleged exposure experienced by the plaintiffs in those case as compared to the Decedents at hand.
In each of the nineteen (19) cases in which Plaintiffs have opposed Foster Wheeler's motion for summary judgment, Plaintiffs submit as part of their evidence the testimony of one or more of the following former workers at the Amoco facility, each of whom was deposed in the early stage of the litigation of the "Amoco Cases" now before the Court:
(i) Robert E. Carufel (died of mesothelioma; deposed 1991)
Mr. Carufel testified that he was involved in the storage of asbestos insulation at the Amoco plant — including at the Alkylation Unit — and that this work resulted in exposure to asbestos, including but not limited to exposure resulting from physically tearing off asbestos and replacing it.
(ii) Robert Clooten (at facility 1955-1983; deposed 1991)
Mr. Clooten, who worked as a craftsman in the pipefitting, welding, and insulation trades, testified that he was involved in dusty work associated with the use of pipecovering and insulating block at the facility from 1954 to 1983. He testified that Kaylo brand pipecovering was among the sources of asbestos exposure. He testified that about half of the asbestos pipecovering that was present during his work at the facility was still in place at the facility at the time of his deposition (1991).
(iii) Gerald Assel (deposed 1996)
Mr. Assel testified that, during "shut-downs" of the facility, everyone would work doing everything that needed to be done to repair and maintain the plant and that, on "Energy Saturdays," everyone would work overtime repairing steam leaks and insulation throughout the plant.
(iv) Lyle Berg (deposed 1996)
Mr. Berg testified that his work as a laborer, relief operator, and craftsman or laborer on maintenance "turn-arounds" took him to every part of the refinery. He testified about the system of "labor gangs" used to assist and clean up after every type of trade working at the facility. He testified that nearly every vessel and piece of equipment was covered with insulation.
In short, Plaintiffs rely upon the testimony of these former Amoco workers about their job duties and the general work processes in place at the refinery (e.g., the "labor gangs," nature and scope of work done during "shut-downs," "turn-arounds" and "Energy Saturdays," and the way in which this work was assigned) to provide circumstantial evidence from which Plaintiffs contend a jury could conclude that the Decedents were exposed to asbestos as a result of asbestos-containing products supplied to and installed in the facility by Foster Wheeler.
C. Analysis
As a preliminary matter, the Court has considered Plaintiffs' arguments that the standard to be applied in assessing the sufficiency of their evidence pertaining to product identification and causation should be modified from that previously applied by this Court because (1) Nogosek indicates that circumstantial evidence of exposure to a given Defendant's product is
A short summary of the evidence for each Decedent is as follows:
Decedent Name Summary of Evidence
1 Raymond Birst No deposition testimony of Mr. Birst;
Evidence that Mr. Birst worked at facility 1955-1985;
Evidence that Foster Wheeler constructed and supplied
Alkylation unit at facility in 1957 — which contained
asbestos component parts manufactured by others;
No evidence that Mr. Birst worked in Alkylation unit or
otherwise around a product of Foster Wheeler's
2 Clarence Fateley No deposition testimony of Mr. Fateley;
Evidence that Mr. Fateley worked at facility 1954-1984;
Evidence that Foster Wheeler constructed and supplied
Alkylation unit at facility in 1957 — which contained
asbestos component parts manufactured by others;
No evidence that Mr. Fateley worked in Alkylation unit or
otherwise around a product of Foster Wheeler's
3 Mike Hilzendeger No deposition testimony of Mr. Hilzendeger;
Evidence that Mr. Hilzendeger worked at facility 1953-1984;
Evidence that Foster Wheeler constructed and supplied
Alkylation unit at facility in 1957 — which contained
asbestos component parts manufactured by others;
No evidence that Mr. Hilzendeger worked in Alkylation
unit or otherwise around a product of Foster Wheeler's
4 Boyd Jaskoviak No deposition testimony of Mr. Jaskoviak;
Evidence that Mr. Jaskoviak worked at facility 1954-1988; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Jaskoviak worked in Alkylation unit or otherwise around a product of Foster Wheeler's 5 Creighton Kettelson No deposition testimony of Mr. Kettelson; Evidence that Mr. Kettelson worked at facility 1954-1983; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; Deposition testimony of former Amoco employee Leonard Ereth, who testified that Mr. Kettleson may have worked in Alkylation unit at one time, although he was not sure 6 Joseph Leingang No deposition testimony of Mr. Leingang; Evidence that Mr. Leingang worked at facility 1954-1986; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Leingang worked in Alkylation unit or otherwise around a product of Foster Wheeler's 7 Richard Leingang Mr. Leingang was deposed as a co-worker in another plaintiff's action but did not testify that he was exposed to asbestos attributable to Foster Wheeler; Evidence that Mr. Leingang worked at facility 1955-1995; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Leingang worked in Alkylation unit or otherwise around a product of Foster Wheeler's 8 Lorraine McCulley No deposition testimony of Mr. McCulley; Evidence that Mr. McCulley worked at facility 1956-1989; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. McCulley worked in Alkylation unit or otherwise around a product of Foster Wheeler's 9 Alvie Nixon No deposition testimony of Mr. Nixon; Evidence that Mr. Nixon worked at facility 1954-1973; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others;
No evidence that Mr. Nixon worked in Alkylation unit or otherwise around a product of Foster Wheeler's 10 Joseph Senger No deposition testimony of Mr. Senger; Evidence that Mr. Senger worked at facility 1954-1986; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Senger worked in Alkylation unit or otherwise around a product of Foster Wheeler's 11 Daryl Sheldon No deposition testimony of Mr. Sheldon; Evidence that Mr. Sheldon worked at facility 1955-1975; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Sheldon worked in Alkylation unit or otherwise around a product of Foster Wheeler's 12 Gerard Sheldon No deposition testimony of Mr. Sheldon; Evidence that Mr. Sheldon worked at facility 1955-1989; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Sheldon worked in Alkylation unit or otherwise around a product of Foster Wheeler's 13 Melvin Skager No deposition testimony of Mr. Skager; Evidence that Mr. Skager worked at facility 1955-1978; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Skager worked in Alkylation unit or otherwise around a product of Foster Wheeler's 14 Larry Sullivan No deposition testimony of Mr. Sullivan; Evidence that Mr. Sullivan worked at facility 1954-1989; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Sullivan worked in Alkylation unit or otherwise around a product of Foster Wheeler's 15 Wallace Toepke Mr. Toepke was deposed; he testified that he didn't specifically recall Foster Wheeler but he thought perhaps the company supplied clothing or gloves; Defendant Foster Wheeler contends that Mr. Toepke specifically testified
that he never worked in the Alkylation unit, but Defendant failed to attach the page of the deposition transcript where it is claimed that he testified to this (p. 77) Evidence that Mr. Toepke worked at facility 1954-1985; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Toepke worked in Alkylation unit or otherwise around a product of Foster Wheeler's 16 William Woods No deposition testimony of Mr. Woods; Plaintiffs contend that Mr. Woods worked for a time as a lab technician; Deposition testimony of co-worker Lyle Berg indicates lab technicians would have been exposed to asbestos inside and outside of the lab and would work in "all parts of the refinery" with "all trades" Defendant Foster Wheeler contends that Mr. Woods's daughter (Sharon Schwahn) specifically testified that he did not work in the Alkylation unit, but Defendant failed to attach the page of the deposition transcript where it is claimed that she testified to this (p. 43) Evidence that Mr. Woods worked at facility 1954-1987; Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Woods was exposed to asbestos from a product of Foster Wheeler's 17 Richard Zachmeier Mr. Zachmeier was deposed in 1993 in connection with another person's lawsuit but did not testify that he was exposed to asbestos attributable to Foster Wheeler Evidence that Mr. Zachmeier worked at facility 1955-1981; Co-worker deposition testimony suggests that Mr. Zachmeier worked all over facility Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Zachmeier was exposed to asbestos from a product of Foster Wheeler's 18 William Zachmeier No deposition testimony of Mr. Zachmeier; Evidence that Mr. Zachmeier worked at facility 1955-1990; Co-worker deposition testimony suggests that Mr. Zachmeier worked all over facility
Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Zachmeier was exposed to asbestos from a product of Foster Wheeler's 19 James Zoller Mr. Zoller was deposed; he testified that he did not know what type of product(s) Foster Wheeler manufactured and that he did not recall working around any Foster Wheeler employees Evidence that Mr. Zoller worked at facility 1955-1972; Co-worker deposition testimony suggests that Mr. Zoller worked all over facility Evidence that Foster Wheeler constructed and supplied Alkylation unit at facility in 1957 — which contained asbestos component parts manufactured by others; No evidence that Mr. Zoller was exposed to asbestos from a product of Foster Wheeler's
Although there is evidence that each of the Decedents in these cases worked at the Amoco facility, there is no evidence that any Decedent was exposed to asbestos from a product of Defendant Foster Wheeler's or as a result of work that was performed by Foster Wheeler in constructing the Alkylation unit. Although there is testimony that a few of the Decedents worked "all over the facility," there is no evidence that this work resulted in any one Decedent's exposure to asbestos. Plaintiffs suggest that the testimony of former Amoco workers Mr. Carufel, Mr. Clooten, Mr. Assel, and/or Mr. Berg can be used as a basis for inferring that the Decedents were exposed to asbestos supplied by Foster Wheeler despite the fact that this testimony does not identify any particular Decedent as having had such exposure. The Court notes that this evidence lacks the quality and specificity required to show that a defendant's product (or conduct) was a substantial part of the causation of a Decedent's illness and concludes that any such inference of causation by a jury would be based on speculation. See Bossert, 1994 WL 108844, at *2. Plaintiffs have failed to carry their burden of pointing to evidence sufficient to support a finding of causation. Accordingly, summary judgment in favor of Defendant must be granted. See Miller, 2011 WL 5505429, at *1 n. 1 (citing Andrews, 387 N.W.2d at 726-27 and Bossert, 1994 WL 108844, at *1-2).
IV. Conclusion
Summary judgment in favor of Defendant Foster Wheeler is warranted in each of the nineteen (19) cases in which Plaintiffs opposed Foster Wheeler's motion (see Exhibit A, attached hereto) because there is no evidence that any Decedent was exposed to asbestos from a product of — or as a result of work performed by — Foster Wheeler. Accordingly, Defendant's motion in each case is granted.
Exhibit A
Motions by Foster Wheeler in Various Cases Transferred from the United States District Court for the District of North Dakota
Decedent's Name D.N.D. Case No. E.D. PA Case No. Doc. No. 1 Raymond Birst 90-00241 09-66623 33 2 Clarence Fateley 90-00249 09-66630 37 3 Mike Hilzendeger 92-00186 09-68033 14 4 Boyd Jaskoviak 90-00259 09-66640 28 5 Creighton Kettelson 90-00262 09-66643 28 6 Joseph Leingang 90-00265 09-66646 27 7 Richard Leingang 90-00266 09-66647 33 8 Lorraine McCulley 92-00186 09-68048 12 9 Alvie Nixon 90-00272 09-66653 29 10 Joseph Senger 90-00284 09-66665 34 11 Daryl Sheldon 90-00287 09-66668 34 12 Gerard Sheldon 90-00288 09-66669 31 13 Melvin Skager 90-00289 09-66670 29 14 Larry Sullivan 90-00292 09-66673 33 15 Wallace Toepke 90-00294 09-66675 33 16 William Woods 90-00298 09-66679 33 17 Richard Zachmeier 90-00300 09-66681 28 18 William Zachmeier 90-00301 09-66682 29 19 James Zoller 90-00302 09-66683 33
ORDER
Exhibit A
Motions by Foster Wheeler in Various Cases Transferred from the United States District Court for the District of North Dakota
Decedent's Name D.N.D. Case No. E.D. PA Case No.
1 Raymond Birst 90-00241 09-66623
2 Clarence Fateley 90-00249 09-66630
3 Mike Hilzendeger 92-00186 09-68033
4 Boyd Jaskoviak 90-00259 09-66640
5 Creighton Kettelson 90-00262 09-66643
6 Joseph Leingang 90-00265 09-66646
7 Richard Leingang 90-00266 09-66647
8 Lorraine McCulley 92-00186 09-68048
9 Alvie Nixon 90-00272 09-66653
10 Joseph Senger 90-00284 09-66665
11 Daryl Sheldon 90-00287 09-66668
12 Gerard Sheldon 90-00288 09-66669
13 Melvin Skager 90-00289 09-66670
14 Larry Sullivan 90-00292 09-66673
15 Wallace Toepke 90-00294 09-66675 16 William Woods 90-00298 09-66679 17 Richard Zachmeier 90-00300 09-66681 18 William Zachmeier 90-00301 09-66682 19 James Zoller 90-00302 09-66683
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