Presley v. Bill Vann Company, Inc. et al

Filing 169

ORDER granting #130 Motion for Summary Judgment filed by Cummins, Inc.. Signed by Chief Judge William H. Steele on 8/4/2015. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
VALERIE K. PRESLEY, etc.,

)
)
Plaintiff,
)
)
v.
) CIVIL ACTION 11-0444-WS-N
)
BILL VANN COMPANY, INC., et al., )
)
Defendants.
)
ORDER
This matter is before the Court on the motion of defendant Cummins, Inc.
(“Cummins”) for summary judgment. (Doc. 130). The parties have filed briefs
and evidentiary materials in support of their respective positions, (Docs. 130, 152,
159), and the motion is ripe for resolution. After careful consideration, the Court
concludes that the motion is due to be granted.
BACKGROUND
The plaintiff’s decedent filed suit against a slew of defendants based on his
exposure to asbestos and resulting health problems. After several years before an
MDL judge, the case is back before the Court, though with considerably fewer
defendants. Cummins’s motion is based on the “bare metal defense.”
DISCUSSION
Summary judgment should be granted only if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003).

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There is no burden on the Court to identify unreferenced evidence
supporting a party’s position.1 Accordingly, the Court limits its review to the
exhibits, and to the specific portions of the exhibits, to which the parties have
expressly cited. Likewise, “[t]here is no burden upon the district court to distill
every potential argument that could be made based upon the materials before it on
summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599
(11th Cir. 1995), and the Court accordingly limits its review to those arguments the
parties have expressly advanced.
The plaintiff’s decedent spent several decades in the Navy and Coast
Guard. It is uncontroverted that his only exposure to products manufactured, sold
or otherwise provided by the defendant was aboard the Coast Guard cutter Point
Verde from 1977 to 1978. The products at issue are two Cummins engines.
The parties agree that Alabama substantive law applies. Two years ago, the
Court performed a painstaking Erie analysis and concluded that “the Alabama
Supreme Court would adopt the bare metal defense.” Morgan v. Bill Vann Co.,
969 F. Supp. 2d 1358, 1367 (S.D. Ala. 2013). The plaintiff (represented by the
same counsel as in Morgan) disagrees with that conclusion but offers nothing that
draws it into question. The bare metal defense is thus potentially applicable.
“The clear thrust of the bare metal defense is that a manufacturer cannot be
held liable for asbestos-containing products used in conjunction with its bare metal
[product], absent evidence that the manufacturer was part of the chain of
distribution for those products.” Morgan, 969 F. Supp. 2d at 1369. “Under the
bare metal defense, [a defendant] is not liable for harm caused by, and owe[s] no
1

Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it
may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144
F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the
referenced portions of these [summary judgment] materials, but is not required to do
so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and
“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a
massive record ….” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d
1057, 1061 (11th Cir. 2011) (internal quotes omitted).

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duty to warn [a plaintiff] or anyone else concerning the hazards of, asbestoscontaining packing and gaskets that users of [its product] might install, where [the
defendant] did not manufacture, sell or distribute such asbestos-containing
components.” Id.
The defendant has presented evidence negating the presence of asbestos in
its engines at the time the plaintiff’s decedent encountered them.2 The plaintiff
has neither challenged the defendant’s evidence nor offered relevant countering
evidence of her own. The plaintiff notes that her decedent testified he was
exposed to asbestos from gaskets on the engines, (Doc. 152 at 10-15), but he did
not testify that these gaskets were original to the engines3 and so did not contradict
the defendant’s evidence.4
The plaintiff argues the defendant can be liable for the Coast Guard’s
replacement of original components with comparable asbestos-containing
components, and the Coast Guard’s use of asbestos-containing blankets and
lagging, because such use and replacement was reasonably foreseeable. (Doc. 152
at 18). As noted, Morgan forecloses the plaintiff’s argument. 969 F. Supp. 2d at
1369 (“Under the bare metal defense, [a defendant] is not liable for harm caused
by, and owe[s] no duty to warn [a plaintiff] or anyone else concerning the hazards
2

The defendant does not contend that its engines never contained asbestos;
instead, it presents evidence that, between the engines’ 1960 delivery and the 1977 arrival
of the plaintiff’s decedent, the engines had been overhauled at least once and probably
several times, with the result that any and all original asbestos-containing components
had been replaced. (Doc. 130-1 at 5, 11; Doc. 130-5 at 4). This evidence places the
defendant in the same position vis-à-vis the plaintiff’s decedent as if the engines had
never contained asbestos to begin with and thus triggers application of the bare metal
defense.
3

Since the plaintiff’s decedent testified that the gaskets were replaced
periodically as a matter of routine maintenance, (Doc. 152 at 11, 13-14), he would have
been hard-pressed to assert that any gaskets were original to a 17-year-old engine.
4

The plaintiff’s decedent also testified to exposure to asbestos from blankets
placed on the engines, (Doc. 152 at 10-15), but the blankets are post-delivery additions,
not components of the engines as created by the defendant.
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of, asbestos-containing packing and gaskets that users of [its product] might
install, where [the defendant] did not manufacture, sell or distribute such asbestoscontaining components.”).
The plaintiff also argues the defendant can be liable for defective design in
that it “required the use of asbestos-containing gaskets, lagging and blankets.”
(Doc. 152 at 18). As in Morgan, however, the plaintiff has identified no evidence
from which a jury could find that the defendant, either expressly or by the nature
of its design, required the use of asbestos-containing products. 969 F. Supp. 2d at
1368. “Mere compatibility of [Cummins engines] with asbestos-containing
products is not a design defect.” Id.
CONCLUSION
For the reasons set forth above, Cummins’s motion for summary judgment
is granted. Judgment shall be entered accordingly by separate order.
DONE and ORDERED this 4th day of August, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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