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Curry v. American Standard

August 18, 2010


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

Consolidated Under



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 Buffalo Pump, Inc.'s objections thereto. The Panel recommends that the Court deny Buffalo Pump, Inc.'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 is 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.

Plaintiff's naval vessel expert, Arnold Moore, a retired Navy Captain, reported that three Buffalo pumps were in MMR4 of the Kitty Hawk; one "auxiliary machinery cooling water pump, one mechanical cooling salt water circulating pump and one emergency diesel salt water booster pump." (Arnold Moore Expert Report, doc. no. 32, at 10)("Moore Report"). He further reported that information provided by Buffalo Pumps, Inc. ("Buffalo") confirm that these three pumps were manufactured for the Kitty Hawk. (Id.) The pumps were manufactured using asbestos to seal the water end pump shaft, and asbestos was also used in the pump's gaskets. (Id.)

Buffalo moved for summary judgment, arguing that Mr. Curry did not identify the name Buffalo in any of his depositions, and did not discuss working on any of the three pumps that Buffalo provided to the Kitty Hawk. (Def.'s Motion for Summ. J., doc. no. 24, at 3). The Panel issued a Report and Recommendation on June 21, 2010, denying Buffalo's motion for summary judgment.

Buffalo raises four objections to the Panel's R&R. First, Buffalo argues that the Panel mistakenly asserted that a reasonable jury could determine that the fourth feed pump Mr. Curry identified working on could have been a Buffalo pump. (Buffalo Objects., doc. no. 56 at 1). Second, Buffalo argues that Mr. Curry's testimony that most pumps were replaced on the Kitty Hawk is over-general, speculation, and insufficient to create an issue of fact. (Id.) Third, there is no evidence that Mr. Curry worked with an original Buffalo pump. (Id.) Finally, Buffalo argues that it is not liable for asbestos-containing insulation or replacement parts that it did not manufacture or distribute. (Id.)

For the reasons set forth fully below, the court sustains Buffalo's first objection in part, overrules Buffalo's remaining objections, and adopts the Panel's R&R denying Buffalo'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 ...

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