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In Re: Asbestos Products Liability Litigation : (No.Vi v. 3m Co.

November 29, 2010

IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION : (NO.VI)
CONSOLIDATED UNDER FRANCES BRUCE TRAVIS, PLAINTIFF,
v.
3M CO., ET AL.,
DEFENDANTS



Transferred from the Southern District of New York

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

MEMORANDUM

Before the Court is the report and recommendation ("R&R") issued by Magistrate Judge M. Faith Angell and Plaintiff's objections thereto. Magistrate Judge M. Faith Angell recommends that the Court grant United Gilsonite Laboratories' ("UGL") motion for summary judgment. 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.

I. BACKGROUND

Plaintiff Francis Bruce Travis ("Plaintiff") filed this action in the Supreme Court of the State of New York, alleging that Mr. Travis developed mesothelioma as a result of exposure to UGL asbestos-containing joint compound and joint cement while employed as a maintenance worker at the Pennbrook Apartment Complex in Pennsylvania. (R&R at 1-2). The action was subsequently removed to the United States District Court for the Southern District of New York, and transferred to the Eastern District of Pennsylvania as part of MDL-875 on June 12, 2009. (Transfer Order, doc. no. 1).

Plaintiff contends that he was exposed to UGL asbestos-containing joint compound and joint cement while employed as a maintenance worker at the Pennbrook Apartment Complex in Pennsylvania for nine to ten months. (R&R at 2). Mr. Travis testified that his primary duties at the Pennbrook Apartment Complex included wall repair and painting. (Travis Depo., doc. no. 87-7 at 84-85). When asked to identify the manufacturers of products he used at the apartment complex, Mr. Travis responded, "I thought the outfit in the Scranton area, something labs, G-E-L [...] Yes, that was wallboard, drywall." Id. at 319-20. On the second day of his deposition, Mr. Travis testified that, "the company in Scranton, Pennsylvania, UGL or something like that" manufactured the drywall Mr. Travis worked with at the Pennbrook Apartment Complex. Id. at 430-31. Mr. Travis recalled using UGL drywall or wallboard about eighteen times in replacements and possibly for patching up holes. Id. at 431. Mr. Travis testified that to the best of his knowledge, UGL was the only manufacturer of the drywall. Id.

According to Thomas White, a corporate representative for UGL, UGL has never manufactured, sold, or supplied any drywall, wallboard or sheetrock. (White affidavit, doc. no. 125-1 at ¶ 3).

UGL moved for summary judgment, arguing that there was no evidence that Mr. Travis was exposed to any UGL asbestos-containing products. (Def.'s Br. in Supp. Mot. Summ. J, doc. no. 93-3 at 1). Magistrate Angell issued her R&R on September 28, 2010, granting UGL's motion for summary judgment.

Plaintiff raises two objections to Magistrate Judge Angell's R&R. First, Plaintiff argues that the Report and Recommendation overlooked Mr. Travis' direct and implied identification of Defendant UGL, UGL's joint compound and spackle, and evidence establishing that Defendant's product contained asbestos.

Second, Plaintiff argues that Plaintiff did not receive its opportunity to explain critical factual issues at oral argument.

For the reasons set forth below, Plaintiff's objections are overruled, and this Court adopts Magistrate Judge M. Faith Angell's R&R granting UGL's motion for summary judgment.

II. LEGAL STANDARD

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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