United States District Court, D. Maryland, Southern Division
RICHARD W. FULLEN and MICHELLE FULLEN, Plaintiffs,
3M COMPANY, et al., Defendants.
J. HAZEL UNITED STATES DISTRICT JUDGE
Richard S. Fullen was an aircraft mechanic in the United
States Air Force from 1994 to 2016. ECF No. 128 ¶ 20. In
May 2016, he was diagnosed with mesothelioma, which he
developed through exposure to and inhalation, ingestion, and
absorption of asbestos fibers. Id. ¶¶
19-20. On January 1, 2017, he and his wife, Plaintiff
Michelle Fullen, filed a Complaint against Defendants, all of
which are companies that developed, manufactured, distributed
and/or sold asbestos-containing products that Mr. Fullen
encountered as an aircraft mechanic. ECF No. 1. They filed
their First, Second, and Third Amended Complaints on January
25, July 17, and October 12, 2017, respectively. ECF Nos. 3,
112, 128. Plaintiffs allege claims of negligence, strict
products liability, breach of implied warranty, punitive
damages, and loss of consortium against all Defendants. ECF
Nos. 1, 3, 112, 128. Several Defendants also filed
cross-claims against the other Defendants, asserting their
right to contribution if they are found liable. See,
e.g., ECF Nos. 23, 38, 65, 90, 96.
Opinion and accompanying Order resolve Cross-Defendant Velan
Valve Corporation's Motion for Summary Judgment as to All
Cross-Claims and Third-Party Claims Based Upon Lack of
Product Identification (“Motion for Summary
Judgment”), ECF No. 295, Plaintiffs' Motion to
Strike Defendant Lockheed Martin Corporation's
Designation of Matthew Morrison as a Fact Witness
(“Motion to Strike”), ECF No. 300, and Defendant
Lockheed Martin Corporation's Motion for Determination of
Governing Law, ECF No. 305. No hearing is necessary for the
resolution of any of these motions. See Loc. R.
105.6 (D. Md. 2016). For the following reasons,
Cross-Defendant Velan Valve Corporation's Motion is
granted, Plaintiffs' Motion is denied, and Defendant
Lockheed Martin Corporation's Motion is granted.
MOTION FOR SUMMARY JUDGMENT
15, 2019, Plaintiffs voluntarily dismissed their direct
claims against Defendant and Cross-Defendant Velan Valve
Corporation (“Velan”), leaving only the
cross-claims pending against Velan. ECF No. 294. On June 4,
2019, Velan filed a Motion for Summary Judgment. ECF No. 295.
This motion is unopposed.
Standard of Review
“Under [Federal Rule of Civil Procedure] 56(c), summary
judgment is proper ‘if 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 a judgment as a matter of law.'”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed.R.Civ.P. 56(c)). The party moving for summary
judgment bears the burden of demonstrating that no genuine
dispute exists as to material facts. Pulliam Inv. Co. v.
Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987). If
the moving party demonstrates that there is no evidence to
support the non-moving party's case, the burden shifts to
the non-moving party to identify specific facts showing that
there is a genuine issue for trial. See Celotex, 477
U.S. at 322-23. To defeat the motion, the nonmoving party
must submit evidence showing facts sufficient for a
fair-minded jury to reasonably return a verdict for that
party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986).
survive summary judgment in an asbestos liability case,
“the plaintiff must introduce evidence which allows the
jury to reasonably conclude that it is more likely than not
that the conduct of the defendant was a substantial factor in
bringing about the [plaintiff's injuries].”
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156,
1162 (4th Cir. 1986) (citing Robin Express Transfer, Inc.
v. Canton R.R., 26 Md.App. 321, 335 (Md. Ct. Spec. App.
1975)). To establish this reasonable inference, the plaintiff
must offer “evidence of exposure to a specific product
on a regular basis over some extended period of time in
proximity to where the plaintiff actually worked.”
Id. at 1162-63.
Motion, Velan asserts that there is no evidence that Mr.
Fullen personally used any asbestos-containing product for
which Velan is responsible, that a Velan product was
frequently or regularly utilized in proximity to Mr. Fullen,
or that Mr. Fullen otherwise came into contact with a Velan
product, and there is no evidence that the use of any Velan
product created respirable asbestos fibers or that Mr. Fullen
subsequently inhaled those fibers. Because no party has
responded to the contrary, Velan's Motion for Summary
Judgment will be granted and any remaining claims or
cross-claims against Velan will be dismissed. See
Whittaker v. David's Beautiful People, Inc., No. DKC
14-2483, 2016 WL 429963, at *3 n.3 (D. Md. Feb. 4, 2016)
(considering claims to be abandoned where plaintiff did not
respond to defendants' argument for summary judgment on
MOTION TO STRIKE
claims against Defendant Lockheed Martin Corporation
(“Lockheed”) are based upon Lockheed's
production of C-130 aircraft allegedly containing asbestos
that caused Mr. Fullen's mesothelioma. See ECF
No. 301-2. On April 5, 2018, the Court entered a Scheduling
Order that set a deadline of April 23, 2018 for
Lockheed's identification of fact witnesses. ECF No. 224
at 1. By consent of the parties, this deadline
was extended to May 7, 2018. ECF No. 242 ¶ 6; ECF No.
26, 2019, after the fact witness identification deadline had
passed but before the final discovery deadline,
Lockheed served on Plaintiffs a Supplemental Designation of
Fact Witnesses identifying two new fact witnesses - Matthew
King, who would testify about Lockheed's “post
production sustainment sales of C-130 components to the
United States Government, ” and Matthew Morrison, who
would testify about “the United States Military's
supply chain, parts procurement procedures, the Federal
Logistics Information System, WebFlis, FED LOG and related
databases.” ECF No. 301-1 ¶¶ 9, 10.
13, 2019, Plaintiffs filed a Motion to Strike. ECF No. 300.
Lockheed filed an ...