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Curry v. American Standard

August 12, 2010


The opinion of the court was delivered by: Eduardo C. Robreno, J.

Consolidated Under MDL DOCKET NO 875


Before the Court is the report and recommendation ("R&R") issued by Magistrate Judge David R. Strawbridge, and joined by Magistrate Judges Elizabeth T. Hey and Judge M. Faith Angell ("the Panel"), and defendant Crane Co.'s objections thereto. The Panel recommends that the Court deny Crane Co.'s motion for summary judgment.*fn1 Federal jurisdiction in this case is based on diversity of citizenship under 28 U.S.C. § 1332. The issue before the Court revolves around product identification.


Michael Curry was diagnosed with mesothelioma in July 2008, and filed this personal injury action in the Supreme Court of the State of New York on October 8, 2008 alleging exposure to asbestos while employed on the USS Kitty Hawk ("Kitty Hawk") from 1963-1965. (Pl.'s Mot. Summ. J., doc. no. 31, at 1,2). The matter was removed to the United States District Court for the Southern District of New York and subsequently transferred to the Eastern District of Pennsylvania as part of MDL 875 in April of 2009. Mr. Curry passed away on December 14, 2009, and Violet Curry was substituted as the named representative of his estate. (Pl.'s Motion to Amend Compl., doc. no. 37, at 1).

Mr. Curry began serving aboard the Kitty Hawk as a "fireman apprentice, boiler man striker" in January 1963. (Curry Discovery Dep. Vol I, doc. no. 32, at 44:9-21). Mr. Curry was assigned to the "four main machine room" ("MMR4") where his responsibilities included standing watch, cleaning, taking readings from certain machinery, performing basic repairs on valves, and maintaining and operating pumps. (Id. at 45-48; 51-54). In January 1965, he became a boiler man third class and was given the additional responsibility of training others to repair the equipment. (Id. at 47-48:1-5).

Mr. Curry testified that there were "thousands of valves" within MMR4 and that the majority of the valves were manufactured by Crane Co. (Id. at 101:25, 124:8-10). Mr. Curry testified that everything in MMR4 was covered with lagging and asbestos, and every valve in the boiler room "had asbestos gaskets between the flanges" and "asbestos packing in the form of rope type packing around the valves." (Curry Video Dep., doc. no. 31 at 13:6-12). Mr. Curry testified that his exposure to asbestos occurred when he opened up or "broke apart" valves in order to replace packing material and that he removed and replaced flanged gaskets on these valves. (Curry Discovery Dep., Vol. II, doc. no. 31 at 338-40, 354-55, 360-65).

Crane Co. moved for summary judgment, arguing that Plaintiff failed to establish that Crane Co. products caused Mr. Curry's injuries. (Crane Co.'s Mot. Summ. J., doc no. 25 at 2). Crane Co. asserts that it cannot be held responsible for replacement parts or external insulation which contained asbestos that were not "manufactured, supplied, or specified by Crane Co." (Id. at 7-8). The Panel issued a Report and Recommendation on June 21, 2010, denying Crane Co.'s motion for summary judgment.

Crane Co. raises three specific objections to the R&R. First, Crane Co. argues that evidence implicating original Crane Co. packing and insulation is based on mere speculation. (Crane Co. Objects., doc. no. 55 at 1). Second, Crane Co. argues that any original packing and insulating material would have been replaced prior to Mr. Curry's employment on the Kitty Hawk. (Id.) Finally, Crane Co. argues that it cannot be held responsible for asbestos-containing replacement parts that it did not manufacture or supply. (Id.)

For the reasons set forth fully below, the court overrules each of these objections, and adopts the Panel's R&R denying Crane Co.'s motion for summary judgment.


Pursuant to 28 U.S.C. § 636(b)(1)(C), "a judge of the Court shall make a de novo determination of those portions of the report or specific proposed findings or recommendations to which objection is made. A judge of the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

When evaluating a motion for summary judgment, Federal Rule of Civil Procedure 56 provides that the Court must grant judgment in favor of the moving party when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact . . . ." Fed. R. Civ. P. 56(c)(2). A fact is "material" if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248-249. "In considering the evidence the court should draw all reasonable inferences against the moving party." El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).

Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, 'the burden on the moving party may be discharged by showing -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (quoting Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)). Once the moving party has thus discharged its burden the nonmoving party "may not rely merely on allegations or denials in its own pleading; ...

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