United States District Court, D. New Jersey
Kenneth T. Shearer and Barbara Shearer, Plaintiffs,
A.W. Chesterton Company, et. al., Defendants.
JOSEPH H. RODRIGUEZ, District Judge.
Presently before the Court are three separate motions for Summary Judgment filed by Defendants by A.W. Chesterton Company , General Electric ("GE") , and Westinghouse . Plaintiffs Kenneth T. Shearer and Barbara Shearer filed opposition to GE's motion. There is no opposition as to A.W. Chesterton Company's motion and, by way of letter, Plaintiffs do not oppose Westinghouse's motion. See Letter dated Dec. 4, 2014, Dkt. No. 38. On May 20, 2015, the Court heard oral argument on the motions. For the reasons stated on the record that day and, those that follow, all three motions for summary judgment are granted.
Plaintiffs Kenneth T. Shearer ("Shearer") and Barbara Shearer allege that Shearer contracted mesothelioma while serving in the United States Navy. Plaintiffs have sued a number of entities alleging various theories of liability. Relevant here, Plaintiffs allege GE is liable for failing to warn Shearer of the dangers associated with the asbestos insulation that, while not manufactured or distributed by GE, GE knew would be used in connection with its equipment. GE manufactured and distributed turbines to the United States Navy pursuant to specifications determined by the Navy. The parties agree that the Navy's specifications required GE to design the turbine in a manner that accommodated asbestos insulation and that the asbestos insulation was placed on the GE turbines after the turbines left GE's control. The issue is whether, under these circumstances, GE owed a duty to Shearer to warn him about the dangers of the asbestos insulation, which is a product GE neither manufactured nor distributed.
Shearer served in the United States Navy from June 20, 1960 through May 22, 1963 aboard the U.S.S. Ernest G. Small. See Plaintiff's Military Personnel Records, Ex. C, Def. Mat. Facts. When he first boarded the vessel, it was dry docked at Hunter's Point, San Francisco, California. Shearer Dep., 66:10. According to an unofficial USS Ernest G. Small webpage, her keel was laid down by the Bath Iron Works, Bath ME on January 30, 1945, she was launched on June 14, 1945 and commissioned August 21, 1945. See http://www.navsource.org/archives/05/838.htm.
The USS Ernest G. Small was the only naval ship on which Mr. Shearer served and his work detail assignment was in the aft engine room of the vessel. Id . 72:3-23. At the time Shearer boarded the vessel, it was three quarters of the way through a major overhaul; Shearer's assignment was to stand watch in the aft engine room. Id. at 68:9 to 69:9. According to Shearer, the overhaul was referred to as FRAM: Fleet Rehabilitation and Modernization. Id . 108:1 to 8 and 69:1-6. Naval personnel handled all aspects of the FRAM. Id . Shearer testified that during the FRAM, he observed the personnel wrapping the steam lines and turbines in the aft engine room on the vessel with asbestos padding. Id. at 160:25 to 161:9 and 163:8-10. Shearer was unable to identify the manufacturer of the insulation and he was unaware of the stage of the project at the time he boarded the ship. Id. at 164:5-13.
Shearer's duties aboard the vessel included working the throttle board, maintaining auxiliary pumps, making temperature checks, making sure the pumps and air purifiers were running, changing filters and plates on oil purifiers and checking water levels and temperatures. Id. at 69:10-23. In addition, he performed hands on work, such as sweeping up "asbestos lagging" and debris from insulation on "everything" including the turbines, pumps, pump turbines and water lines. Id. at 103:24 to 104:25. He also changed packing glands on several auxiliary pumps and bilge pumps that were covered with asbestos insulation. Id. at 81:7 to 85:6.
The aft engine room housed a number of turbines, both large and small. Shearer could not identify the manufacturer of the turbines, or the company responsible for maintaining the turbines. Id. at 160:18-24; 203:8-13. Likewise, Shearer could not identify the manufacturer of the insulation wrap for the turbines. Id. at 209:5-22.
Mr. Shearer died on March 14, 2014 from complications of mesothelioma. The Complaint alleges, inter alia, that GE's failure to warn about the health hazards posed by the asbestos laden equipment aboard the USS Ernest G. Small caused Shearer's illness, and, now, wrongfully caused his death. GE moves for Summary Judgment.
Summary Judgment Standard
A court will grant a motion for summary judgment if there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); accord Fed.R.Civ.P. 56 (c). Thus, this Court will enter summary judgment only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56 (c).
An issue is "genuine" if supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id . In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id .; Maidenbaum v. Bally's Park Place, Inc., 870 F.Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Andersen, 477 U.S. at 256-57. Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322.
In deciding the merits of a party's motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the finder of fact. ...