STATE OF CONNECTICUT
`
`DOCKET NO.: FBT-CV14-6041050-S
`
`LARRY PURCELL
`
`v.
`
`INGERSOLL-RAND COMPANY, et al.
`
`x
`
`:
`
`'
`
`:
`
`:
`x
`
`SUPERIOR COURT
`
`JUDICIAL DISTRICT
`
`OF FAIRFIELD
`
`AT BRIDGEPORT
`
`AUGUST 11, 2017
`
`WEIR VALVES & CONTROLS USA, INC. d/b/a ATWOOD & MORRILL CO.I INC.’S
`MOTION FOR SUMMARY JUDGMENT
`
`Pursuant to Connecticut Practice Book § 17-44, et seq., as amended, Defendant, Weir
`
`Valves & Controls USA, Inc., d/b/a Atwood & Morrill Co., Inc., incorrectly pleaded as Weir
`
`Valves & Controls USA, Inc., k/n/a Atwood & Morrill Co., Inc. (hereinafter “Atwood”),
`
`respectfully moves this Court for summary judgment as to all claims of Plaintiff, all claims of
`
`Intervening Plaintiffs and all cross-claims of Defendants, as there exists no genuine issue of
`
`material fact as to whether Plaintiff inhaled respirable fibers from a Atwood product.
`
`In the operative Complaint, which is directed against, inter alia, Atwood, Plaintiff alleges
`
`Violations of the Connecticut Product Liability Act, codified at Connecticut General Statutes §
`
`52-572m, et seq. (“the CPLA”). Plaintiff also seeks punitive and exemplary damages.
`
`Plaintiffs claims against Atwood, as well as any Cross Claims and any Intervening
`
`Complaints, arise out of injuries that Plaintiff allegedly sustained as a result of his exposure to
`
`products that allegedly contained asbestos and were allegedly manufactured by, inter
`
`alia, Atwood, through his employment at General Dynamics / Electric Boat, from 1976 until
`
`approximately 1989, and through his service in the US Navy from 1957 until 1976.
`
`ORAL ARGUMENT REQUESTED
`NO TESTIMONY REQUIRED
`
`{C0134036-l}
`
`

`

`As set forth more fully in the accompanying memorandum of law, Atwood moves for
`
`summary judgment on the ground that there is no evidence to prove that Plaintiff was ever
`
`exposed to any asbestos-containing products manufactured, distributed or sold by Atwood.
`
`Furthermore, even assuming, arguendo, that Plaintiff was exposed to an asbestos-containing
`
`product manufactured, distributed or sold by Atwood, there is no evidence to prove that he
`
`inhaled any asbestos fibers from the product or that such exposure was a substantial factor in
`
`causing his alleged damages. Absent any evidence in this regard, there is no genuine issue of
`
`material fact in dispute as to this critical element in Plaintiff’s case. Atwood is, therefore,
`
`entitled to judgment as a matter of law. C.G.S. § 52-572m; see also Lynn v. Haybuster Mfg,
`
`Inc, 226 Conn. 282, 627 A.2d 1288 (1993).
`
`WHEREFORE, Atwood respectfully requests that summary judgment enter in its favor as
`
`to the claims of Plaintiff, any and all claims of Intervening Plaintiffs and all cross-claims of
`
`Defendants.
`
`THE DEFENDANT,
`WEIR VALVES & CONTROLS USA
`
`INC. D/B/A ATWOOD & MORRILL
`
`CO., INC., INCORRECTLY
`PLEADED AS WEIR VALVES &
`
`CONTROLS USA, INC. K/N/A
`
`ATWOOD & MORRILL CO., INC.
`
`By
`
`/s/ 422361
`Jennifer E. Wheelock, Esq.
`MCGIVNEY, KLUGER & COOK, PC
`20 Church Street, Suite 780
`
`Hartford, CT 06103
`
`(860) 404-3000
`Juris No. 423896
`
`Its Attorneys
`
`{00134036-1}
`
`

`

`w
`
`This is to certify that on this 11th day of August 2017 a copy of the foregoing was either
`mailed, postage prepaid, emailed or hand-delivered to:
`
`Amity L. Arscott, Esq.
`Embry & Neusner
`PO. Box 1409
`
`Groton, CT 06340
`
`51]arscotyfidjembrvneusnerccmi
`
`and sent Via e-mail to all defense counsel of record.
`
`WA
`Jennifer E. Wheelock, Esq.
`
`{C0134036-1}
`
`

`

`STATE OF CONNECTICUT
`
`DOCKET NO.: FBT-CV14-6041050-S
`
`x
`
`SUPERIOR COURT
`
`LARRY PURCELL
`
`v.
`
`INGERSOLL-RAND COMPANY, et al.
`
`:
`
`'
`
`:
`
`:
`x
`
`JUDICIAL DISTRICT
`
`OF FAIRFIELD
`
`AT BRIDGEPORT
`
`AUGUST 11, 2017
`
`WEIR VALVES & CONTROLS USA, INC. d/b/a ATWOOD & MORRILL CO., INC.’S
`MEMORANDUM OF LAW IN SUPPORT OF ITS
`
`MOTION FOR SUMMARY JUDGMENT
`
`Pursuant to Connecticut Practice Book § 17-44, et seq, as amended, Defendant, Weir
`
`Valves & Controls USA, Inc., d/b/a Atwood & Morrill Co., Inc., incorrectly pleaded as Weir
`
`Valves & Controls USA, Inc., k/n/a Atwood & Morrill Co., Inc. (hereinafter “Atwood”), hereby
`
`submits this Memorandum of Law and corresponding documentation in support of its Motion for
`
`Summary Judgment, dated August 11, 2017.
`
`I.
`
`INTRODUCTION
`
`Atwood moves for summary judgment with respect to Plaintiff s Complaint, any Cross
`
`Complaints, and any Intervening Complaints, on the ground that there is no evidence to prove
`
`that Plaintiff was ever exposed to any asbestos-containing products manufactured, distributed or
`
`sold by Atwood. Furthermore, even assuming, arguendo, that Plaintiff was exposed to an
`
`asbestos-containing product manufactured, distributed or sold by Atwood, there is no evidence to
`
`prove that he inhaled any asbestos fibers from the product, or that such exposure was a
`
`substantial factor in causing his damages. Absent any evidence in this regard, there is no
`
`genuine issue of material fact in dispute as to this critical element in Plaintiffs case. Atwood is,
`
`therefore, entitled to judgment as a matter of law.
`
`{C0134039-1}
`
`

`

`II.
`
`STATEMENT OF THE CASE
`
`A.
`
`Procedural Background and Allegations in Plaintiff’s Comglaint
`
`The Complaint alleges that Plaintiff was exposed to asbestos containing products through
`
`his employment at General Dynamics / Electric Boat, from 1976 until approximately 1989, and
`
`through his service in the US. Navy from 1957 until 1976. See Complaint, fill. Plaintiff further
`
`alleges that due to such exposure he suffers from laryngeal cancer, asbestosis, asbestos-related
`
`lung disease, lung disease and loss of lung function. See Id. at 1] 12.
`
`Atwood is one of numerous defendants in this matter, and this action has been brought
`
`against it as an alleged manufacturer of asbestos-containing products. In the Complaint, Plaintiff
`
`makes no specific allegations regarding when and where he was exposed to asbestos-containing
`
`products allegedly manufactured, distributed or sold by Atwood; nor does the Complaint contain
`
`allegations regarding exposure to any specific product manufactured, distributed or sold by
`
`Atwood. See, generally, Complaint.
`
`B.
`
`Lack of Evidence Regarding Lara: Purcell’s Exposure to Atwood Products
`
`1. Plaintiff’s Responses to Discovery
`
`As part of Plaintiff’s compliance with Defendants’ Standard Interrogatories and Requests
`
`for Production, Plaintiff provided his medical records, employment records and other records.
`
`Atwood was not identified in any of these records. In fact, Atwood was not mentioned anywhere
`
`in Plaintiff’s discovery responses other than on Exhibit A to Plaintiffs responses which states:
`
`“[b]ased on knowledge and belief, Plaintiff was exposed to these products through the course of
`
`his employment:
`
`...Weir Valves & Controls USA, Inc....” (See Exhibit A attached hereto as
`
`Exhibit 1). On Exhibit A, Atwood is listed along with eighty-four
`
`(84) other product
`
`manufacturers, distributors and/or sellers. No additional information is provided concerning the
`
`{C0134039-1}
`
`

`

`precise type of Atwood products Plaintiff was allegedly exposed to or when and where the
`
`alleged exposure occurred.
`
`2.
`
`Deposition Testimony
`
`Larry Purcell was deposed on May 8, 2015. At no time during his deposition did he
`
`identify Atwood as a manufacturer, distributor or seller of an asbestos-containing product that he
`
`used, or was exposed to, at any location, at any time. No other depositions have been taken and
`
`thus no other individual has provided testimony regarding Atwood as a manufacturer, distributor
`
`or seller of an asbestos-containing product that Plaintiff used, or was exposed to, at any location,
`
`at any time. There is no reasonable expectation that such evidence will be produced in this
`
`matter.
`
`III.
`
`DISCUSSION
`
`A.
`
`Standard for Sum mall Judgment
`
`Connecticut Practice Book § 17-49 provides that summary judgment, “shall be
`
`rendered forthwith if the pleadings, affidavits and any other proof submitted 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.” The party seeking summary judgment has “the burden of showing the absence of any
`
`genuine issue as to all the material facts which, under the applicable principles of substantive
`
`law, entitle him to a judgment as a matter of law.” Suarez v. Dickmont Plastics Corp, 229 Conn.
`
`99, 105 (1994) (internal quotations omitted). The party opposing the motion for summary
`
`judgment, in turn, “must provide an evidentiary foundation to demonstrate the existence of a
`
`genuine issue of material fact. Id. “Mere statements of legal conclusions or that an issue of fact
`
`does exist are not sufficient to raise the issue.” United Oil Co. v. Urban Redevelopment Comm,
`
`158 Conn. 364, 377 (1969). Further, mere allegations of the existence of a genuine issue of
`
`{C0134039-l}
`
`

`

`material fact is not enough to counter a motion for summary judgment. Miller v. Technologies,
`
`Inc, 233 Conn. 732, 745, 600 A.2d 810 (1995).
`
`When ruling on a motion for summary judgment, the Court, “must View the
`
`evidence in a light most favorable to the non-moving party.” Connell v. Caldwell, 214 Conn.
`
`242, 246-247 (1999). The test used by the Courts in ruling on a summary judgment motion is to
`
`determine whether the moving party would be entitled to a directed verdict if the same set of
`
`facts were presented at trial. Haesche v. Kissner, 229 Conn. 213 (1994); Connell, 214 Conn. at
`
`247. A directed verdict is properly rendered when the evidence, viewed in the light most
`
`favorable to the non-moving party, is such that the, “trier of fact could not reasonably reach any
`
`other conclusion than that embodied in the verdict as directed.” United Oil C0.,158 Conn. at
`
`380.
`
`B.
`
`Applicable Law
`
`1.
`
`The Connecticut Product Liability Act
`
`The Connecticut Product Liability Act (“the CPLA”) governs a Plaintiffs right to sue for
`
`damages allegedly caused by a defectively manufactured or designed product. C.G.S § 52—
`
`572m. The CPLA is a Plaintiff’s exclusive remedy for claims brought against product sellers
`
`(i.e., product manufacturers, wholesalers, distributors, or retailers) for personal injuries or
`
`property damage caused by a defective product. See Lynn v. Haybuster Manufacturing MFG,
`
`Inc., 226 Conn. 282, 627 A.2d 1288 (1993).
`
`In order to recover under the CPLA, a Plaintiff must prove the following:
`
`(1)
`
`that the defendant was engaged in the business of selling the product;
`
`(2)
`
`that the product was in a defective condition unreasonably dangerous to
`
`the consumer or user;
`
`{C0134039-1}
`
`

`

`(3)
`
`that the defect caused the injury for which compensation has been sought;
`
`(4)
`
`that the defect existed at the time of the sale; and
`
`(5)
`
`that the product was expected to and did reach the consumer without
`
`substantial change in its condition.
`
`See Giglio v. Connecticut Light ana1 Power Co., 180 Conn. 230, 234 (1980); Zichichi v.
`
`Middlesex Memorial Hospital, 204 Conn. 399, 403 (1987).
`
`Moreover, a plaintiff must, “plead and prove that the product was defective and the defect
`
`was the proximate cause of the Plaintiff’s injuries.” Haesch v. Kissner, 229 Conn. 213, 218
`
`(1994) (internal quotations and citations omitted). In other words, Plaintiffs must prove that
`
`Defendant’s asbestos-containing product was a substantial factor in causing Plaintiffs’-
`
`Decedent’s damages. Roberts v Owens-Corning Fiberglas Corporation, 726 F.Supp 172, 174
`
`(W.D. Mich. 1989) (attached hereto as Exhibit 2).
`
`Importantly, a plaintiff in a products liability case, “must plead and prove that the item
`
`which caused him harm was in fact the defendant’s product within the meaning of the Act.”
`
`Bobryk v. Lincoln Amusements, Inc, 15 Conn. L Rptr. 617, 619 (Conn. Super. Ct 1996)
`
`(Sheldon, J.) (internal quotations omitted) (attached hereto as Exhibit 2). Under any causation
`
`test, “the plaintiff still must produce evidence sufficient to support an inference that he inhaled
`
`asbestos dust from the defendant’s product.” Peerman v Georgia-Pacific Corp, 35 F.3d 284,
`
`287 (7th Cir. 1994) (attached hereto as Exhibit 2). In other words, in order to properly allege a
`
`cause of action under the CPLA, a plaintiff “must allege facts which, if proved at trial, will
`
`establish that the thing which caused him harm was a thing which the defendant sold, leased or
`
`bailed to any person.” Id.
`
`{C0134039-1}
`
`

`

`In the instant action, Plaintiff has failed to set forth any facts to support an inference that
`
`he inhaled asbestos dust
`
`from a Atwood product. All Plaintiff has done is make an
`
`unsubstantiated assertion, based on knowledge and belief,
`
`that he was exposed to Atwood
`
`products, (see Exhibit 1). Without setting forth any facts or evidence to back up his assertion,
`
`Plaintiff cannot prove his case.
`
`2. Bray v. Ingersoll-Rand C0., et al.
`
`This exact scenario very recently came before the United States District Court District of
`
`Connecticut in Bray v. Ingersoll-Rand C0., et al., 2015 US. Dist. LEXIS 19523 (D. Conn. Feb.
`
`19, 2015)1.
`
`In this recent case, the Court (Underhill, J.) granted Defendants’ motions for
`
`summary judgment on the basis that Plaintiffs failed to meet their evidentiary burden with
`
`respect to their product liability and loss of consortium claims. Id.
`
`In reaching its decision, the
`
`Court concluded that Plaintiffs tried “to bolster the lack of identifying information with materials
`
`that are either inadmissible [hearsay] or that invite speculation.” Id. The materials deemed either
`
`inadmissible hearsay and/or that invited speculation, according to the federal court, were “Pls.
`
`Responses to Defs’ Request for Production, Exhibit A,” prepared by the law firm Embry &
`
`Neusner on behalf of the Bray Plaintiffs.
`
`(Incidentally, Embry & Neusner is Plaintiffs’ counsel
`
`in the instant action.) The Court concluded that Plaintiffs’ general list of manufacturers and their
`
`products was inadmissible hearsay as “[t]here [was] no indication that
`
`the document was
`
`produced or dictated by the decedent, and further,
`
`there [was] no way to authenticate the
`
`plaintiffs’ list.” Id.
`
`Similarly,
`
`in this matter, Plaintiff has also submitted a document, “Exhibit A,” in
`
`response to Defendants’
`
`interrogatories and requests for production.
`
`(See Exhibit 1). The
`
`l The Connecticut Supreme Court has said, that “[a]lthough the interpretation of our state [law] by a federal court is
`not binding upon us, it may be persuasive authority.” General Acci. Ins. Co. v. Wheeler, 221 Conn. 206, 2012
`(Conn. 1992).
`
`{C0134039-1}
`
`

`

`aforementioned exhibit states: “[b]ased on knowledge and belief, the decedent was exposed to
`
`these products through the course of his employment,” and provides a two-page list of
`
`manufacturers and general categories of products.
`
`In Bray, an almost identical exhibit was
`
`barred by the rules against hearsay. Further, the Bray Court explained: “[e]ven if the list were
`
`admissible, it has little probative value. The categories offered are general and too vague to allow
`
`a reasonable juror to find that a specific defendant’s products contributed to [plaintiffs] asbestos
`
`exposure.” Id.
`
`Here too, Plaintiffs Exhibit A falls under the inadmissible hearsay category. See Conn.
`
`Code of Evidence §§ 8-1, 8-2, 9-1 and 9-4. Even assuming, arguerzdo, Exhibit A was
`
`admissible, it too lacks probative value because the mere listing of Atwood as a possible source
`
`of Plaintiff’s asbestos exposure, especially without
`
`reference to any specific product of
`
`Atwood’s,
`
`is too vague to have probative value. Consequently, there has been no evidence
`
`presented by Plaintiff to prove a causal link between any Atwood product and his alleged
`
`exposure to asbestos.
`
`C.
`
`Argument
`
`1. Plaintiffs products liability claim cannot survive summary judgment.
`
`Plaintiffs product liability action against Atwood, based on his alleged exposure to
`
`asbestos by Atwood products, must fail. Here, there is no evidence to demonstrate that Plaintiff
`
`used, or was ever exposed to, any asbestos-containing product manufactured, sold or distributed
`
`by Atwood. No witness identified Atwood as a manufacturer, seller or distributor of an asbestos-
`
`containing product to which Plaintiff claims exposure. See Discussion, supra.
`
`Plaintiffs
`
`attempt to overcome his failure to prove prima facie elements of his claim cannot be overcome
`
`by hearsay and speculation. Bray, 2015 US. Dist. LEXIS 19523.
`
`{C0134039-1}
`
`

`

`In light of the foregoing record, Plaintiff is unable to, “plead and prove that the item
`
`which caused [him] harm was in fact Defendant’s product within the meaning of the Act.”
`
`Bobryk, 15 Conn. L Rptr. at 619. Having failed to make this threshold showing, Plaintiff is
`
`unable to prove that any of Atwood’s products were a proximate cause of his claimed injuries.
`
`Haesch, 229 Conn. at 218.
`
`Since Plaintiff cannot prove a basic and essential element of the case necessary to sustain
`
`a cause of action pursuant to the CPLA, Atwood is entitled to judgment as a matter of law.
`
`2.
`
`Co-Defendants’ Cross-Claims Fail for the Same Reasons Set Forth
`
`Above Concerning the Claims of Plaintiff.
`
`Co-Defendants in this case have filed cross-claims against Atwood seeking contribution
`
`for Plaintiff’s alleged damages pursuant to Conn. Gen Stat. § 52-5720.
`
`In addition, Co-
`
`Defendants seek equitable contribution for Atwood’s share of any judgment rendered in favor of
`
`Plaintiff. For the same reasons Plaintiff’s claims against Atwood cannot survive summary
`
`judgment, so should not
`
`the claims of all Cross—Claim Defendants. Atwood repeats and
`
`incorporates the above arguments concerning Plaintiffs claims as to the claims of all Cross-
`
`Claim Defendants. Wherefore, all claims of the Cross-Claim Defendants cannot survive a
`
`summary judgment motion and this motion should be granted as to all such claims.
`
`3.
`
`Intervening Plaintiffs’ claims are derivative and must fail.
`
`“[A]n intervening employer’s statutory right to reimbursement depends on the liability of
`
`the third party to the employee...” Mulchay v. Mossa, 89 Conn. App. 115, 124 (2005). “An
`
`employer has no cause of action unless the employee has a cause of action.” Id. The employee,
`
`Larry Purcell, as stated herein, does not have a viable cause of action against Atwood. Since
`
`Plaintiffs action against Atwood must be dismissed, so must derivative causes of action of
`
`Intervening Plaintiff(s) that may be or have been brought.
`
`{C0134039-l}
`
`

`

`IV.
`
`CONCLUSION
`
`It is clear from the foregoing that there is no credible evidence that identifies any Atwood
`
`product as a source of Plaintiff’s alleged exposure to asbestos. Further, there is no reasonable
`
`expectation that such evidence will be produced.
`
`Accordingly, Plaintiff will be unable to prove that Atwood was a seller of a product that
`
`“was the proximate cause of [his] injuries.” Haesch, 229 Conn. at 218. In other words, Plaintiff
`
`cannot surmount the necessary obstacle in proving his case “that the thing which caused [him]
`
`harm was a thing which [Atwood] sold, leased, or bailed to any person.” Bobryk, 15 Conn. L.
`
`Rptr. at 619 (see Exhibit 2). Thus, Atwood is entitled to summary judgment as a matter of law
`
`with respect to the claims of Plaintiff, any and all claims of Intervening Plaintiffs and all cross-
`
`claims of Defendants.
`
`THE DEFENDANT,
`WEIR VALVES & CONTROLS USA
`
`INC. D/B/A ATWOOD & MORRILL
`
`CO., INC., INCORRECTLY
`PLEADED AS WEIR VALVES &
`
`CONTROLS USA, INC. K/N/A
`
`ATWOOD & MORRILL CO., INC.
`
`By
`
`/s/ 422361
`Jennifer E. Wheelock, Esq.
`MCGIVNEY, KLUGER & COOK, PC
`20 Church Street, Suite 780
`
`Hartford, CT 06103
`
`(860) 404-3000
`Juris No. 423896
`
`Its Attorneys
`
`{C0134039-1}
`
`

`

`CERTIFICATION
`
`This is to certify that on this 11th day of August 2017 a copy of the foregoing was either
`mailed, postage prepaid, emailed or hand-delivered to:
`
`Amity L. Arscott, Esq.
`Embry & Neusner
`PO. Box 1409
`
`Groton, CT 06340
`alarscott@embryneusner.com
`
`and sent via e-mail to all defense counsel of record.
`
`A J
`
`ennifer E. Wheelock, Esq.
`
`{c0134039-1}
`
`

`

`EXHIBIT 1
`
`

`

`Larry Purcell
`Interrogatory 19, cont’d.
`
`Exhibit A
`
`1.
`
`Plaintiff may testify that he recalls the following manufactures and/or products:
`Westinghouse turbines and other products and equipment
`General Electric turbines and other products and equipment
`Goulds Pumps pumps
`Hobart welding equipment and other products
`Minnesota, Mining and Manufacturing stripping, cloth, tape and other
`products
`
`9999‘?»
`
`2.
`
`Based on knowledge and belief, the plaintiff was exposed to these products
`through the course of his employment:
`
`AMATEX cloth, cement and tile
`Anaconda Wire and cable
`
`Anchor Packing gaskets
`Armstrong Cork Corporation gaskets, insulation, tiles and other products
`Armstrong International steam traps and other equipment
`A.W. Chesterton gaskets and packing
`Aurora pumps and other products and equipment
`Babcock & Wilcox boilers
`
`Bayer Cropscience, Inc.
`Benjamin Foster cements, mastics and other products
`Bondex mastics, cement, plastics and other products
`BorgWarner Morse Tec, Inc.
`Buffalo Pumps
`BW/IP, Inc.
`Carborundum grinding wheels
`Carey Canada asbestos block, insulation and other products
`Carrier Corporation air conditioning and other products
`Celotex cements, boards and coatings
`Certainteed Corp. cements, pipes and other products
`Combustion Engineering boilers and other products
`Congoleum tiles and other products
`Crane Co. gaskets, valves and other products
`Crosby Valves
`Crown Cork & Seal- Mundet insulation and other products
`Delaval turbines and other products and equipment
`Dresser-Rand/Terry Steam Turbines
`Eagle-Picher cement and other products
`Elliott Company turbines, blowers and other equipment
`
`

`

`Fibreboard / Pabco cement, insulation and other products
`Flexitallic gaskets and other products
`Flintkote cement, board and other products
`Flowserve-Byron Jackson pumps
`Ford Motor Company
`Foster Wheeler, LLC steam generators, condensors, air ejectors and other products
`FMC Corporation
`GAF-Ruberoid felt, cement and other products
`Gardner Denver pumps
`Garlock gaskets, packing and other products
`General Electric turbines and other products and equipment
`Georgia Pacific, LLC
`Gould Pumps pumps
`Guard-line gloves
`H.K. Porter cloth and other products
`Hobart welding equipment and other products
`Honeywell switching gear, controls and equipment
`IMO pumps and other products and equipment
`Industrial Holdings
`Ingersoll-Rand pumps and other products and equipment
`ITT Bell & Gossett pumps
`Jenkins valves
`
`John Crane gaskets, packing and other products
`Johns-Manville cement, insulation felt and other products
`Keene - Baldwin-Ehret Thermasil, cements and other products
`Lawrence Pumps
`Leslie Controls controls, gear and other equipment
`Lincoln Electric welding rods
`Melrath gaskets and other products
`Metropolitan Life Insurance Company
`Mine Safety Appliances respirators and other products
`Minnesota, Mining and Manufacturing stripping, cloth, tape and other products
`Nash Engineering Company pumps and other products
`National Gypsum—Gold Bond compound, board and other products
`Niantic Rubber Co.
`
`Niantic Seal, Inc.
`Okonite wire and cable
`
`Owens Corning Fiberglas Kaylo and cement and other products
`Owens-Illinois Kaylo and other products
`Pittsburgh Corning Unibestos and other products
`Raybestos-Manhattan packing, cord, thread and other products
`Richard Klinger sheet and gaskets
`Safeguard Scientifics/Penn-El Service Company-BACO tubing and packing
`SEPCO gaskets, packing and other products.
`Steel Grip gloves
`Tuthill Corporation gaskets and packing
`
`

`

`UNARCO Unibestos and other products
`Union Carbide Corporation, asbestos
`United States Gypsum insulation and other products
`Viking Pumps
`Walworth valves and other products
`Weir Valves & Controls USA Inc.
`
`Westinghouse turbines and other product and equipment
`Warren Pumps pumps and other products
`Worthington Pump pumps and other products and equipment
`Yarway Corporation steam traps
`3M Company strip heaters
`
`

`

`EXHIBIT 2
`
`

`

`Page i
`
`a“ LexisNexisl’
`
`e.
`Positive
`As of: Dec 14, 2016
`
`JANICE G, ROBERTS, temporary personal representative of the Estate of William
`R. Roberts, deceased Plaintiff, v. OWENS—CORNING FIBERGLAS CORPORA-
`TION et aL, Defendaiits, v. MANVILLE CORPORATION ASBESTOS DISEASE
`COMPENSATION FUND, Third-Party Defendant
`
`File No, K86-134CA9
`
`UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
`MICHIGAN, SOUTHERN DIVISION
`
`726 E Supp. 172; 1989 ULS. Dist. LEFG'S 16070
`
`November 30, 1989, Decided
`December 1, 1989, Filed
`
`CASE SUE‘IMARY:
`
`PROCEDURAL POST‘URE: Three of 10 defendant
`
`(manufacturers),
`products mufacturers
`asbestos
`brought motions for summary judgment in plaintiff tem-
`porary personal represeinative's mugful death action
`against them, which alleged that the decedent, the per-
`sonal representative's husband, died as a result of his
`exposure to asbestos products manufactured by the man-
`ufacwrers.
`
`OVERVIEW: The temporary personal repmeutative
`(representative), brought a wrongfill death action against
`10 asbestos products manufacturers (manufacnuers), 3 of
`whom brought motions for summary judgment. As to the
`first manufacturer's motion, the court granted the motion,
`holding that
`the representative failed to establish that
`products manufacnired by the first manufacturer were
`present on any of the naval ships where the decedent was
`stationed, and thus failed to meet the threshold require-
`ment in 3 products liability action of product identifica-
`tion. As to the second manufacturer,
`the court also
`granted its motion, holding that although the representa~
`tive met the threshold requirement, it was insufficient for
`the representative to establish prommate cause in an as-
`bestos liability action by merely showing that the second
`
`manufacturer's product was present somewhere at the
`decedent‘s place of work. Finally, the court granted the
`third manufacturer's motion, holding that the representa-
`tive failed to establish that asbestos products manufac=
`tuned by it were present in the engine or auxiliary ma-
`chine rcoms of the various naval vessels where the de=
`cedent was stationed.
`
`OUTCOME: The court granted the motions for sum-
`mary judgment of the asbestos products manufacturers in
`the temporary personal representative‘s wrongful death
`action against them.
`
`CORE TERMS: manufacturer's, decedent, asbestos
`summary judgment, asbestos products, exposure, auxil-
`iary, machine, engine, naval vessels, proximate cause,
`manufactured, insurers, ships, products liability action,
`material issue of fact, threshold requirement, identifica=
`tion, non-moving, stationed, causation, workplace, infer,
`exposure to asbestos, products manufactured, place of
`work, legitimately, fact-finder, factfiader, coverage
`
`LexisNexis(R) Headnotes
`
`Civil Procedure > Summary Judgment > Evidence
`
`

`

`726 F. Supp. 172, '1"; l989 US. Dist. LEXIS l6070, 4“"
`
`Page 2
`
`Safari! Procedore > Seminary Jodgmem > Srendcm’s >
`ripproprfaiaieess
`Civil Procedure > Summary Jodgmerzt > Standards >
`Generate Disputes
`[HNl] Summary judgment is appropriate only Where no
`genuine issue of fact remains to be decided so that the
`moving party is entitled to judgment as a matter of law.
`There is no material
`issue of fact for trial unless,
`in
`Viewing the evidence in favor of the non-moving party, a
`reasonable fact-=finder could return a verdict for that par-
`ty. If the evidence is merely colorahle or is not signifi-
`cantly probative, summary judgment may be granted.
`
`Civil Procedure > Summary Judgment > Burdens of
`froductian & Proof> Movants
`Civil Procedure > Summary Judgment > Burdens of
`Production & Proof> Nonmovants
`{ENE} The party moving for summary judgment bears
`the initial responsibility of informing the court of the
`basis of its motion and identifying those portions of the
`record which demonstrate the absence of a material issue
`
`of fact. Once this has been done, the non=moving party
`must come forward with specific facts showing that there
`is a material
`issue of fact on an issue, which the
`non-moving party will bear the burden of proof at trial.
`Fed. R. co. P. 56(3).
`
`Environmental Law > Hazardous Wastes & Toxic Sob-
`sronces > Asbestos > General Overview
`
`Environmental Law > Litigation & Adminisom‘ive
`Proceedings > Tom's Torts
`Tomi > Negii‘gersce > Causation > General Overview
`[HNB] The threshold requirement of any products liabil=
`ity action is identification of the injury—causing product
`and its manufacmrcr. A plaintiff must also establish the
`existence of proximate cause. A plaintiff cannot establish
`the requisite connection between his injury and a partic-
`ular asbestos product manufacturer by merely showing
`that an asbestos manufacturer's product was present
`somewhere at his place of work. To establish proximate
`cause, a plaintiff must establish that the manufactm‘es's
`asbestos product was used at the specific site within the
`workplace when he worked.
`
`bestos was astronomy used. is considered, for 335-31916,
`shipyards, [1er proof that the plaintiff and an asbestos
`product are in the workplace at the same time does not
`prove eaposm’e to that product. Thus, a pmSUIRpfion of
`exposure would be contrary to Michigan law of autism-
`tial causation.
`
`Environmental Law > Léiigetion & Administrative
`Proceedings > Toxic Torts
`Torts > Negligence > Causation > General Overview
`[ENS] It is insufficient for a plaintiff to establish proxi.=
`mate cause in an asbestos products liability action by
`merely showing that the asbestos manufacturer's product
`was present somewhere at his place of work
`
`[“1] Benjamin F. Gibson, United States
`JUDGES:
`District Judge.
`
`OPINION BY: GISON
`
`OPINION
`
`BENJAMIN F. GIBSON, UNITED
`[*173]
`STATES DISTRICT JUDGE
`
`Plaintifi‘, Janice G. Roberts, brings this wrongful
`death action against the defendants ‘ alleging that the
`decedent, her husband, William E. Roberts, died as a
`result of his exposure to asbestos products manufactured
`by the defendants. Presently before the Court are motions
`for my judgment filed by defendants Keene Cor—
`poration (hereinafter "Kc-sue"), Owens-Corning Fiber=
`glas Corporation (heminafizcr "Owens-Coming") and
`Eagle-Fiche:
`Industries,
`has.
`(hereiuafier
`"Eae
`gle—Picher").
`
`ten
`Plaintiff initially brought suit against
`1
`manufacturers of asbestos products. Three of file
`defendants, Owens-Illinois,
`Inc.,
`Pittsburgh
`Corning Corporation and Fibreboard Corporation,
`have been dismissed fi’om the action by stipula-
`tion of the parties. Defendant Owens—Corning
`Fiberglas Corporation has implied the Manville
`Corporation Asbestos Disease Compensation
`Fund as a third=pariy defendant.
`
`BACKGROUND
`
`Environmental Law > Hazardous Works & Toxic Su6=
`stances > Asbestos > General Worries:
`
`Envirorzmentai Law > Litigation dc Administrative
`Recordings > Toxic forts
`Torts > Negligence > Causation > General Overview
`{KN-4] Conduct is a legal or proximate cause of harm to
`another if the conduct was a substantial factor in bringing
`about the harm. When the size of workplaces Where as-
`
`Plaintiff asserts that the decedent‘s only exposure to
`asbestos products occurred during his service in the
`United States Navy. He served in the Navy from Octo-
`ber, 1955 to June, 1974. According to the plaintiff, the
`decedent's
`[* *2}
`exposure occurred in the engine and
`auxiliary machine rooms of various naval vessels. Plain=
`tiff claims that the decedent was stationed aboard the
`
`following ships at the following times:
`
`

`

`726 F. Supp. 172, s; 1939 Us. Dist. LEXIS 16070.
`
`Page 3
`
`Built At/Build Dates
`
`1944-46
`
`
`1952-54
`
`
`Va.
`1962-64
` ll/7l-06/74
`Rm num
`-, -ort News,
`
`
`
`1960-62
`l ”71-06/74
`Edison
`Gmto Conn.
`
`
`
`
`m‘——~—-—n—______.________.___—_fi__a_______'
`
`
`
`
`
`
`Decoder-it died before any of his testimony could be
`recorded.
`
`STANDARD OF REVIEW
`
`[HNI] Summaryjudgment is appropriate only where
`no genuine issue of fact remains to be decided so that the
`moving party is entitled to judgment as a matter of law.
`Alias Concrete Pine, Inc. v. Roger J. Au & Sons, 568
`F.2d 905, 908 (6!!! Cir. 1982). There is no material issue
`of fact for trial unless, in viewing the evidence in favor
`of the non=moving party, a reasonable fact-finder could
`return a verdict for that party. Anderson v. Liberty Lobby.
`4??? US. 242, 249, 9! L. Ed 2d 202, 106 5'. Cr. 2505
`([986). "If the evidence is merely colorable 01- is not sig-
`nificantly probative, summary judgment may be giant-
`ed." Id.
`[“3]
`(citations omitted).
`
`[H'NZ] The party moving for summary judgment
`bears the initial responsibility of informing the court of
`the basis of its motion and identifying those portions of
`the record which demonstrate die absence of a material
`issue offact. Celotex Corp. :2. Garrett, 477 U.S. 317. 323,
`9! L. Ed 211265. 106 .S'. Ct. 254%?
`[*1741 (1936). Once
`this has been done,
`the non-moving party must come
`forward with specific facts showing that there is a mate
`rial issue of fact on an issue which the non-moving party
`will bear the burden of proo