Holland et al v. Airco Inc et al

Filing 195

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 3/24/2016. (AVC)

FILED
2016 Mar-24 AM 10:26
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
GEORGE D. HOLLAND,
individually and as the personal
representative of The Estate of
OWEN D. HOLLAND, deceased,
Plaintiff,
vs.
AIRCO INC., et. al,
Defendants.

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Civil Action Number
5:11-cv-02189-AKK

MEMORANDUM OPINION
George D. Holland (“George”) brings this matter individually and as the
personal representative of the estate of Owen D. Holland (“Owen”) against Crane
Company (“Crane”), Fluor Daniel Services Corporation (“Fluor Daniel”), and
Goulds Pumps Incorporated (“Goulds”), (collectively “the Defendants”), for
allegedly exposing Owen to airborne asbestos fibers that directly caused his
contraction of and subsequent death from malignant mesothelioma. Docs. 186 at
1; 187 at 1; 188 at 1. The Defendants’ motions for summary judgment, docs. 182,
184, and 185, are fully briefed and ripe for review. For the reasons explained more
fully below, the motions are due to be granted.

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I.

Standard of Review

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” “Rule
56(c) mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the initial burden of proving the absence
of a genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation marks
omitted). A dispute about a material fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
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competent evidence supports the non-moving party’s version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276-1278 (11th Cir. 2002) (a court is not
required to resolve disputes in the non-moving party’s favor when that party’s
version of events is supported by insufficient evidence).

However, “mere

conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the
opposing party’s position will not suffice; there must be enough of a showing that
the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573,
1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
II.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

A. FACTS
Owen worked at the Monsanto Chemical Plant located in Decatur, Alabama,
from 1967 until 2004. Doc. 183-2 at 3. After initially working as a cutter and
baler, Monsanto transferred Owen to the “dope prep” division in 1974. Doc. 184-2
at 3-4. In this position, Owen worked on metal pumps and valves, including
pumps manufactured by Goulds and valves manufactured by Crane. See id. at 5-7;
doc. 186-3 at 44-46. Owen’s duties included taking pumps off and putting them on
the production line and sweeping the packing from around the pumps. Doc. 184-2
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at 8. Owen also vacuumed and/or swept fibers from around the valves. Doc. 1863 at 46-47. Owen only worked on the external surfaces of the pumps and valves,
and never worked on their internal components. Docs. 184-2 at 8-13, 27; 186-3 at
46-47.
In 1985, Monsanto transferred Owen to spinning operator, a position in
which Owen continued working around metal pumps, including pumps
manufactured by Goulds. Doc. 184-2 at 15. Again, Owen only worked on the
external surfaces of the pumps. See id. at 17. From 2002 until he left Monsanto in
2004, Owen worked as a floor monitor and ran the production floor. Id. at 15; doc.
183-2 at 3.
B. Procedural History
Owen and Gregory A. Legg originally filed this case in this court against
forty-five defendants.

Doc. 1. The Judicial Panel on Multidistrict Litigation

(“MDL”) subsequently transferred the case to the Eastern District of Pennsylvania
for inclusion in MDL 875.1 Doc. 161. There, Judge Eduardo C. Robreno severed
Legg and Owen’s claims. See doc. 162-1 at 24. Owen subsequently filed an
amended and severed complaint, see doc. 179-1 at 33-34, alleging that he was
exposed to asbestos-containing products “produced, manufactured, specified for
use, installed, distributed, sold, and/or placed into the stream of commerce by . . .

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After Owen’s death, George was substituted as a plaintiff in place of Owen. See doc. 179-1 at 33, 59.

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Defendants during his employment as a laborer, operator, and utility worker from
approximately the late 19[6]0’s to 2004,” doc. 184-1 at 2.
After the Defendants moved for summary judgment, Judge Robreno granted
the motion, in part, for Fluor Daniel as to all claims of exposure prior to May 19,
1980. 2 Docs. 183 at 3; 183-1 at 9. As to the remaining claims against Fluor
Daniel, Judge Robreno found that an Alabama judge should address Alabama’s
standard for exposure in asbestos cases and the operation of Alabama’s
construction statute of repose, and remanded the case with leave for Fluor Daniel
to refile its motion as to alleged exposure after May 19, 1980. Doc. 183-1 at 9-10.
Judge Robreno also denied Crane’s and Goulds’ motions for summary judgment
with leave to refile in this court. Doc. 179 at 3-4.
III.

ANALYSIS

To prevail on a tort claim, Alabama law requires a plaintiff to show that the
defendant is in fact responsible for the plaintiff’s injury. See Thompson-Hayward
Chemical Company v. Childress, 169 So. 2d 305 (Ala. 1964).

Indeed,

“[r]egardless of the theory of liability in [asbestos] cases, the threshold for every
theory is proof that an injured plaintiff was exposed to asbestos-containing
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George alleges that Fluor Daniel performed construction and maintenance work at Monsanto from 1967
through 1998. Doc. 187 at 2. This work purportedly entailed, in part, the installation and removal of insulation
from pipes, pumps, and various production lines. Id. The claim against Fluor Daniel is based on Owen’s testimony
that “Daniel” performed work at Monsanto. Fluor Daniel challenges this contention, and asserts that it is a related
but distinct corporate entity from Daniel International Corporation, the entity that actually performed the
construction/maintenance work at Monsanto. Doc. 182 at 9.

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products for which the defendant is responsible.” Blackston v. Shook & Fletcher
Insulation Col., 764 F.2d 1480, 1481 (11th Cir. 1985). Unfortunately for George,
he has failed to meet this threshold burden.
A. Crane
The court begins its analysis with Crane’s motion. According to Crane,
George cannot demonstrate that Owen was exposed to asbestos fibers from a
product Crane manufactured, supplied, or otherwise placed into the stream of
commerce. Doc. 185-1 at 1. George disagrees and contends that Monsanto used
and repaired or overhauled Crane’s asbestos-containing products during Owen’s
employment, and that Owen was exposed to and breathed the dust created by these
products. Doc. 186 at 5. In support of his allegation, George has submitted
evidence that some Crane valves contained parts that had asbestos in them, 3 and
that Owen worked around valves, including valves manufactured by Crane, and
was exposed to packing used in the valves while cleaning up pieces of packing and
gasket material. Docs. 185-2 at 3-4, 6-7, 9; 186-5 at 74-75. This evidence,
however, is insufficient to establish liability because it does not prove that the
packing materials in the Crane valves Owen worked around contained asbestos.
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George notes that Crane admits in its interrogatory response that its valves contained asbestos-containing

parts:
Industrial valves manufactured by Crane Co. were made of steel, bronze, and other metals; the valves
themselves were not composed of asbestos. . . . [c]ertain of the valves had enclosed within their metal
structure asbestos-containing gaskets, packing, or discs.
Doc. 186 at 5 (citing doc. 186-4 at 35) (emphasis added).

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While George may be correct that some valves Crane manufactured contained
asbestos, this is far short of establishing that the valves Crane supplied to
Monsanto had asbestos-containing component parts. In fact, even Owen admitted
that he did not know if any of the valves he worked around had their original
packing material, that Monsanto routinely tried new products for the packing
material, and that he could not recall the names of the manufacturers or suppliers
of the packing placed in the valves, except that he thinks it was Sirco, Victor,
Goodyear, or Sepco. Doc. 185-2 at 6-7, 9.
Simply put, George has failed to present any evidence showing that Crane
was the manufacturer of any of the packing Owen worked around or that a
particular shipment to Monsanto of Crane valves had asbestos in their original
packing. As such, there is no evidence before the court linking Crane valves with
original asbestos-containing component parts to the valves that Owen worked
around. Without this evidence, no reasonable jury could conclude that Owen was
exposed to asbestos fibers from a product manufactured, supplied, or otherwise
placed into the stream of commerce by Crane. Accordingly, summary judgment in
favor of Crane is warranted with respect to this alleged exposure.
Perhaps because of his inability to directly link Crane products to Owen’s
injury, George argues alternatively that, under the Alabama Extended
Manufacturer’s Liability Doctrine (“AEMLD”), Crane can still be liable for
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Owen’s exposure even if Crane did not manufacture, supply, or otherwise place
into the stream of commerce the asbestos fibers that Owen was exposed to at
Monsanto. Doc. 186 at 7. As George puts it, “the mere fact that a product has
been altered or modified does not necessarily relieve the manufacturer or seller of
liability” for necessary components in its equipment, and “[a] manufacturer or
seller remains liable if . . . the alteration or modification was reasonably
foreseeable to the manufacturer or seller.” Id. at 8 (citing Sears, Roebuck and Co.
v. Harris, 630 So. 2d 1018, 1027 (Ala. 1993) (quotations and citations omitted)).
Therefore, George contends that because Crane valves require non-metal asbestos
containing gaskets, packing, and/or discs to perform as designed, a jury could
reasonably conclude that Crane recommended that its customers use asbestoscontaining materials in Crane valves when replacing the packing materials. Doc.
186 at 7-8. This contention is unavailing because George failed to identify any
evidence,4 and the court, after combing through the record, has found none to
suggest that Crane valves require the use of asbestos-containing component parts,
or that Crane recommended asbestos-containing materials as replacement
products.5 Without this evidence, no reasonable fact finder could conclude that the

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In support of his assertion that Crane valves require non-metal, asbestos containing gaskets, packing
and/or discs, George cites “See Exhibit ‘D,’” a 206 page document. Although judges “are not like pigs, hunting for
truffles buried in briefs,” United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991), the court reviewed Exhibit D
nonetheless to try to ferret out the relevant facts, if any, buried in this massive document.
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Crane offered for sale gaskets, packing, and discs manufactured by other companies that may have
contained asbestos. Doc. 186-4 at 37. However, George has not presented any evidence that Crane recommended

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Crane valves in use at Monsanto were designed to require asbestos packing, to the
exclusion of other kinds of packing materials. Therefore, to the extent that George
seeks to hold Crane liable for Owen’s exposure to asbestos-containing component
parts that were not manufactured or supplied by Crane, this contention also fails.
B. Fluor Daniel
Relying on Alabama’s construction statute of repose, which bars any cause
of action which accrues or would have accrued more than seven years after the
substantial completion of construction, Ala. Code §6-5-221, Fluor Daniel argues,
as it did before Judge Robreno, that it is due summary judgment because there is
no evidence that it exposed Owen to asbestos after May 19, 1980. 6 Doc. 182 at 1314. In denying this part of Fluor Daniel’s motion, Judge Robreno believed that an
Alabama court should address Alabama’s standard for exposure in asbestos cases
and the operation of Alabama’s construction statute of repose. See doc. 183-1 at 910. This court does not have to answer the questions raised by Judge Robreno

asbestos-containing materials as replacement products. Still, George contends that if Crane factory installed
asbestos-containing gaskets, packing, and discs in its valves, then it is reasonable to conclude that its valves were
designed to use the same, and if this case concerned the proper operation of the valves as opposed to the asbestos
content of component parts, Crane would likely assert that the customer’s failure to use the same materials it
originally specified and factory installed would eliminate its liability for the valve’s subsequent failure. See doc.
186 at 9. George’s contention is pure speculation and conjecture, and is inadmissible. See Ellis, 432 F.3d at 1326
(per curiam) (citing Bald Mountain Park, Ltd., 863 F.2d at 1563 (“mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion”).
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Fluor Daniel also moved for summary judgment under the “completed and accepted rule,” doc. 182 at 14,
which grants a contractor limited liability if it has built according to an owner’s plans and specifications and the
owner has accepted the work, see McFadden v. Ten-T Corp., 529 So. 2d 192 (Ala. 1988). The court does not reach
this issue because George has failed to meet his threshold burden of establishing that Fluor Daniel caused his
injuries.

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because regardless of what causation standard applies, it is a general principle of
Alabama tort law that the plaintiff bears the burden of submitting evidence proving
that the defendant caused his injuries. See Turner, 508 So. 2d at 254; ThompsonHayward Chem. Co, 169 So. 2d at 309. As discussed below, George has failed to
meet this threshold burden.
George alleges that Fluor Daniel performed construction and maintenance
work at Monsanto from 1967 through 1998. Doc. 187 at 1-2. To support his
contention that Fluor Daniel is the proper defendant, rather than the purportedly
unrelated “Daniel” that Owen referenced, see supra at n. 2, George relies on the
testimony of Richard Mays, see id. at 2; doc. 187-4 at 70-77. According to Mays,
he started working at the Monsanto plant in 1963 for Davis Construction, which
later combined with Daniel to become Fluor Daniel. See doc. 187-4 at 70-77.
Fluor Daniel moves to strike Mays’ testimony due to George’s failure to disclose
Mays or his contentions, as required by Federal Rules of Civil Procedure 26(a) or
(e), during the discovery period. See doc. 193. As Fluor Daniel correctly points
out, George waited until eight months after the discovery deadline to disclose
Mays. Doc. 183-9 at 2-3. When “a party fails to provide information or identify a
witness as required by Rule 26(a) or (e), the party is not allowed to use that
information or witness to supply evidence on a motion, at a hearing, or at a trial,
unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
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37(c)(1).

Therefore, the court GRANTS Fluor Daniel’s Motion to Strike

Witnesses Not Disclosed During Discovery, doc. 193. 7

Accordingly, Mays’

testimony is inadmissible and cannot form the basis to defeat summary judgment.
Alternatively, even if Mays’ testimony is admissible, it does not create a material
dispute because Mays does not mention Owen directly, see docs. 187 at 7 (citing
doc. 187-4 at 39, 41-41); 182 at 11; 187-4, and he is not even certain if he
personally worked with any asbestos insulation, see doc. 187-4 at 74-76, 81.8
Moreover, Owen’s own testimony that he breathed in the dust generated by
“Daniel” crews performing insulation work at Monsanto, doc. 182 at 3; 183-2 at 3,
is speculative and conclusory, see Ellis, 432 F.3d at 1326 (per curiam) (citing Bald
Mountain Park, Ltd., 863 F.2d at 1563 (“mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion”).
Accordingly, summary judgment is due in favor of Fluor Daniel.
C. Goulds
The court turns now to the final defendant in this case, Goulds. Like the
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The court agrees with Judge Robreno’s analysis, in denying George’s motion for leave to list fact
witnesses, that George’s failure to timely disclose Mays was neither justified nor harmless. See doc. 183-9.
Basically, in Master Interrogatories to Plaintiff, the Defendants sought to discover all persons with knowledge of
relevant issues to Owen’s exposure to asbestos. Docs. 183-6 at 4; 194 at 3. George responded on July 21, 2011, but
did not disclose Mays. See doc. 183-6 at 4-5. Nearly eight months after discovery closed, George moved for leave
to extend time to list Mays, and two other persons, as fact witnesses, contending that George failed to list the
witnesses out of “inadvertence” and that Defendants would not be prejudiced. Docs. 183-9 at 2; 194 at 3. Judge
Robreno found that considering the substantial length of delay and the unpersuasive reason asserted, George’s
neglect was not excusable, and that granting the motion would substantially prejudice the Defendants, and that he
would likely have to reopen discovery if he allowed George to rely on these new witnesses. Doc. 183-9 at 3.
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Mays also testified that in the late 1980s or in the 1990s he learned from a co-worker that the insulation
he worked with contained asbestos. Doc. 187-4 at 76-77, 90-91. This testimony is inadmissible hearsay.

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other two defendants, Goulds argues also that George has failed to satisfy the
threshold requirement of establishing that Owen was exposed to an asbestoscontaining product for which Goulds is responsible.9 Doc. 184-1 at 1. Based on
the record before this court, the court finds that George has failed to present
evidence that the Goulds pumps supplied to Monsanto were among the Goulds
pumps with original asbestos-containing component parts. 10

In fact, Owen

testified that although he worked around Goulds pumps, he never worked on the
internal parts of a pump, and that it was impossible to determine the manufacturer
9

Based on George’s contention that Owen’s primary exposure to dust created by Goulds pumps occurred
while Owen worked in the “dope prep” division from 1975-1985, doc. 188 at 13, Goulds also claims it is due
summary judgment based on the statute of limitations, doc. 184-1 at 22. Under Alabama law, as it existed prior to
May 19, 1980, claims arising from asbestos exposure prior to May 19, 1980 are barred by a one-year statute of
limitations. “Under §§6-2-30 and 6-2-39 of the Alabama Code of 1975 [as they existed at that time], all actions for
injury to the person not arising from contract must be commenced within one year after the cause of action has
accrued.” See Henderson v. MeadWestvaco Corp., 23 So. 3d 625, 630 (Ala. 2009). However, the statute of
limitations changed when “the discovery rule” became effective on May 19, 1980. Under the discovery rule, a
personal injury action resulting from asbestos exposure accrues on the date the injured person, through reasonable
diligence, should have reason to discover the alleged injury. See Ala. Code §6-2-30(b) (1975). After uncertainty as
to whether “the discovery rule” could be applied retroactively, the Alabama Supreme Court held in Tyson v. JohnsManville Sales Corp., 399 So. 2d 263, 267 (Ala. 1981), that “if, before the effective date of Act No. 80-566, ‘the
discovery rule,’ [May 19, 1980,] one year had elapsed between the date of the plaintiff’s exposure and the date on
which plaintiff’s action was commenced, then that claim is nevertheless barred by the statute of limitations.” Archer
v. Mead Corp, 998 F. Supp. 2d at 1280 (quoting Tyson, 399 So. 2d at 267). Therefore, based on the law as it existed
at that time, any action by, or on behalf of Owen, based on a personal injury resulting from asbestos exposure prior
to May 19, 1980 had to be commenced within one year of that exposure. See Henderson, 23 So. 3d at 630 (holding
that plaintiff’s claim of personal injury resulting from asbestos exposure accrued in 1972, and thus was time-barred
in 1973). As a result, the applicable Alabama statute of limitations bars George’s claim arising from Owen’s
asbestos exposure prior to May 19, 1980.
10

George notes that Goulds admits that it

[w]as engaged in the manufacture and sale of centrifugal industrial pumps. The only asbestos that may
have been contained in its product was within the casing gasket and/or the stuffing box packing. The
casing gasket may have been made from a sheet of blended rubber and asbestos which did not have free
floating propensities. The casing gasket is confined between two pieces of bolted together material in the
pump assembly and was used to establish leak-proof seals between the same. The stuffing box packing is
braided material that may have been asbestos.
Doc. 188-5 at 2. Goulds also admits that “[p]rior to approximately 1985, Goulds sold some centrifugal pumps with
asbestos-containing casing gaskets and stuffing box packing.” Id. at 3.

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of the packing material that was removed from any of the pumps. Doc. 184-2 at 79, 14, 19, 21, 24-26, 27. Simply put, because Owen could not identify Goulds as
the manufacturer of the packing to which he was exposed to during his
employment at Monsanto, and in light of George’s failure to present any evidence
showing that a particular shipment of Goulds pumps to Monsanto had asbestos in
their original packing, Goulds is due summary judgment with respect to this
alleged exposure.
Similarly, for the same reasons as the claim against Crane, George’s
contention that Goulds is liable under the AEMLD even if Goulds did not
manufacture, supply, or otherwise place into the stream of commerce the asbestos
fibers that Owen was exposed to at Monsanto, doc. 188 at 8, also misses the mark.
As with his claim against Crane, George has failed to identify any evidence,11 and
the court has found none, to suggest that Goulds pumps require the use of asbestoscontaining component parts, or that Goulds recommended asbestos-containing
materials as replacement products. Therefore, to the extent that George seeks to
hold Goulds liable for Owen’s exposure to asbestos-containing component parts
that were not manufactured or supplied by Goulds, summary judgment is also
warranted.
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In support of his assertion that Goulds pumps require non-metal, asbestos containing gaskets and
packing to perform as designed, George cites “See Exhibit ‘D,’” a 114 page document that excerpts Owen’s
deposition testimony. However, it appears that George meant to cite “Exhibit E,” which is Goulds’ 103 page
Response to Master Discovery. Regardless of whether it is Exhibit D or E, the court found nothing in either exhibit
to support George’s contentions.

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IV.

CONCLUSION

In sum, Defendants’ motions for summary judgment are due to be granted.
The court will enter a separate order in accordance with this memorandum opinion.
DONE the 24th day of March, 2016.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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