Morgan v. Bill Vann Company, Inc. et al

Filing 417

ORDER denying #271 Motion for Summary Judgment filed by John Crane. Signed by Chief Judge William H. Steele on 8/30/2013. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
RONALD MELVIN MORGAN,
as Personal Representative for the Estate
of Rueben Morgan,

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Plaintiff,
v.
BILL VANN COMPANY, INC., et al.,
Defendants.

CIVIL ACTION 11-0535-WS-B

ORDER
This matter comes before the Court on defendant John Crane, Inc.’s Motion for Summary
Judgment (doc. 271). The Motion has been briefed and is ripe for disposition.1
I.

Relevant Background.
This is an asbestos action pending against 11 defendants,2 alleging various state-law tort

claims and a wrongful death cause of action based on the alleged exposure of plaintiff’s
decedent, Rueben Morgan, to asbestos-containing products at various times and locations.
Morgan was diagnosed with malignant mesothelioma (a disease commonly linked to asbestos
exposure) in or about February 2011. (Doc. 199, at Exh. A.) He died on or about November 5,
2012, at the age of 79. (Doc. 206, at Exh. A.)

1

John Crane requested oral argument on its Motion. The Local Rules authorize
such requests, but also provide that “the court may in its discretion rule on any motion without
oral argument.” LR 7.3. After careful review of the parties’ briefs and exhibits, the undersigned
finds that oral argument is unlikely to be beneficial in resolving the issues raised on summary
judgment. Accordingly, the request for oral argument is denied.
2

Initially, there were numerous other named defendants; however, the ranks of
defendants have dwindled as a result of settlements and voluntary dismissals. All 11 remaining
defendants have pending, ripe summary judgment motions that have been taken under
submission.

On May 4, 2011, less than three months after his diagnosis, Morgan initiated this
litigation against 42 named defendants (including John Crane). Morgan’s pleadings alleged that
he “was exposed to asbestos dust, asbestos particles, asbestos containing materials and products
that were produced, manufactured, specified for use, installed, distributed, sold and/or placed
into the stream of commerce by the producer and/or distributor Defendants during his
employment as a machinist, engine room worker, and mechanic,” as a result of which he was
“diagnosed with an asbestos related disease.” (Doc. 1, Exh. A-2, at 6.) On July 29, 2011,
Morgan amended his Complaint to name certain additional defendants. (Doc. 4, Exh. B, at 1.)
Record facts concerning Morgan’s interactions with John Crane, Inc. (“John Crane”)
products are as follows:3 Morgan was employed as a machinist by the U.S. Coast Guard during
the period of 1959 to 1964. (Morgan Dep. I, at 64-65, 72; doc. 271-2, Exh. B, at 2.)4 Morgan’s
Coast Guard service included substantial periods of time when he was stationed on vessels called
the Mendota and the Mistletoe. (Morgan Dep. I, at 65-67, 73.) Morgan worked in the vessels’
engine rooms, where his duties included working with asbestos-containing packing and gaskets
as he maintained various valves and pumps. (Id. at 68-70.) During this period of time that
Morgan worked in the Coast Guard, he encountered a John Crane product called “John Crane
Super-Seal,” which he described as “a popular packing from the Navy” and “a good asbestos
packet.” (Morgan Dep. III, at 67.) Morgan used this John Crane asbestos packing on the
3

The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Plaintiff’s evidence is
taken as true and all justifiable inferences are drawn in his favor. Federal courts cannot weigh
credibility at the summary judgment stage. See Feliciano v. City of Miami Beach, 707 F.3d
1244, 1252 (11th Cir. 2013) (“Even if a district court believes that the evidence presented by one
side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility
choices.”). Thus, the Court will “make no credibility determinations or choose between
conflicting testimony, but instead accept Plaintiff’s version of the facts drawing all justifiable
inferences in Plaintiff’s favor.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
4

Morgan’s deposition was taken multiple times in this case, including discovery
depositions taken on August 16, 2011 and August 25, 2011, and trial depositions taken on
September 2 and 8, 2011. For purposes of this Order, citations to Morgan’s August 16
deposition will take the form “Morgan Dep. I,” while citations to the August 25 deposition will
take the form “Morgan Dep. II,” those to the September 2 deposition will take the form “Morgan
Dep. III,” and those to the September 8 deposition will take the form “Morgan Dep. IV.”

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following occasions: during his Coast Guard assignments on the Mendota and the Mistletoe until
1964; when he worked at a civilian shipyard in Norfolk, Virginia from 1965 through 1967; and
when he worked at the Cleveland machine shop in Cleveland, Tennessee from 1974 through
1978. (Id. at 76-77; Morgan Dep. I, at 78, 93-95; doc. 271-2, Exh. B at 2-3.)
From 1978 through 1992, Morgan worked at the Alabama River Pulp paper mill.
(Morgan Dep. I, at 95-96.) For approximately his first year at Alabama River Pulp, Morgan
worked as a machinist. (Morgan Dep. IV, at 123-24.) On August 1, 1979, he was promoted to
the position of foreman of the paper mill’s machine shop, after which he no longer did “handson” maintenance work, but closely supervised others. (Id. at 124.) Morgan also set up and
supervised the pump shop at Alabama River Pulp. (Morgan Dep. I, at 99; Morgan Dep. III, at
74.)5 Morgan saw John Crane packing being used at Alabama River Pulp several times per
month from 1978 through 1992. (Morgan Dep. III, at 77-78.) Indeed, during his employment at
Alabama River Pulp, Morgan worked around John Crane packing “no less than once or twice a
month … the whole time that [he] was working.” (Id. at 74.) Morgan testified that Alabama
River Pulp pump shop employees “were still using this John Crane Super-Seal packing when
[he] left in ’92.” (Id. at 74-75.)
According to Morgan, the John Crane packing was “braided asbestos with wire in it. …
[A]ll it was was asbestos and … something to hold it together. … It was a good, good packing.
It would last good, work good.” (Morgan Dep. III, at 69.) Substantial summary judgment
evidence corroborates Morgan’s testimony that the John Crane packing contained asbestos, at
least until John Crane discontinued use of that substance in the manufacturing process in 1985.6
5

Notwithstanding Morgan’s supervisory responsibilities in the machine shop and
pump shop, he was not involved in ordering or purchasing gaskets and packing for the Alabama
River Pulp mill. (Morgan Dep. I, at 100; Morgan Dep. IV, at 126.)
6

John Crane has generally described its business as being that it “manufactures
engineered sealing products, some which contained asbestos but which encapsulated the fibers in
lubricants, binders and adhesives so as to prevent their release in normal use and installation.”
(Doc. 315, Exh. F, at 1.) The record also includes a John Crane representative’s testimony that
the company’s “Super Seal” products “were made with a braided asbestos jacket.” (Doc. 315,
Exh. G, at 8214.) That same John Crane representative further testified that John Crane stopped
using asbestos in the manufacture of Super Seal packing material in July 1985. (Doc. 315, Exh.
H, at 6289.)

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Plaintiff’s evidence is that Morgan knew that the asbestos packing material in question was made
by John Crane because it was packaged in a distinctive large tin can or box. (Id.; Morgan Dep.
IV, at 127-28.) John Crane packing “was stocked in the pump shop” at Alabama River Pulp, and
the mill used those products through the time of Morgan’s retirement in 1992. (Morgan Dep. IV,
at 128.)
There is substantial record evidence documenting how asbestos dust was created when
Alabama River Pulp machinists replaced John Crane Super-Seal packing materials on pumps and
valves. When the old packing was removed, “it would brittle and … come apart in … little
pieces.” (Morgan Dep. III, at 70.) The old packing had to be dug out of the “stuffing box” and
“it would come apart” during that process, after which the stuffing box would have to be cleaned.
(Id. at 71.) The new packing would then have to be cut to measurements for the particular pump
or valve. (Id.) Such removal, tearing and cutting of the asbestos packing would create “a good
bit of dust because you’d have to clean up the stuffing box … and it would be quite dusty.” (Id.
at 72.) Alabama River Pulp machinists would clean the stuffing box with an air hose, broom or
foxtail brush, causing the dust to go airborne and employees to breathe it in whenever they
worked with the product. (Id.) When the John Crane asbestos packing product was replaced in
this manner at Alabama River Pulp, it created dust that Morgan both saw and breathed every
time his subordinates worked with the product. (Id. at 72, 78.)
To be clear, Morgan did not personally perform the tasks of replacing asbestos packing
with John Crane Super-Seal products at Alabama River Pulp after 1979. Again, after Morgan
became foreman on August 1, 1979, he ceased performing such hands-on work, but instead
supervised other Alabama River Pulp workers in the machine shop and pump shop. (Morgan
Dep. II, at 162-63; Morgan Dep. IV, at 124, 129.) Alabama River Pulp mechanics and
millwrights whom Morgan supervised (as opposed to Morgan himself) actually performed the
hands-on work of opening and repacking valves, replacing gaskets and so on. (Morgan Dep. II,
at 162.) Morgan never personally installed or removed John Crane packing from any pump or
valve at Alabama River Pulp. (Id. at 365-66.)
That said, Morgan was present when the work was being performed and he monitored the
pumps and valves closely, because “whatever was being done to them, I wanted to know what it
was. I wanted to know what kind of condition they were when they come in, plus, you know,
see it. … [A] lot of times I put my hands on it just to feel it. And the same thing with the
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machine work.” (Morgan Dep. III, at 231.)7 Also, Morgan would be present in the machine
shop and pump shop at the end of each day, when the crews would clean the equipment using air
hoses and sweep the accumulated dust off the floor, creating airborne dust from the day’s
activities (which would of course include dust from any John Crane asbestos-containing products
that had been installed or removed). (Id. at 232.) Morgan was in sufficiently close proximity to
the workers performing the installation, removal and clean-up tasks that, as he put it, “I’ve got to
breathe about as much dust and dirt as [the hands-on workers] did.” (Morgan Dep. II, at 165.)
Morgan testified that the last time he saw or used a John Crane product was in 1992 when
he retired from Alabama River Pulp. (Morgan Dep. III, at 67.)
II.

Summary Judgment Standard.
Summary judgment should be granted only “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(a), Fed.R.Civ.P. 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).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “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.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
7

Elsewhere, Morgan elaborated that in the machine shop, “I was there every day
and seen what was done and particularly in the tearing down and making sure it’s cleaned up
right when it went back together.” (Morgan Dep. II, at 163.) Similarly, in the pump shop, when
the work was being done, Morgan testified, “I got these eyeballs down there and I run these
fingers around things” in his supervisory capacity. (Id. at 165.) He explained as follows: “I was
there when the … man would be installing it, taking the old packing out. And from time to time
… every job, you know, supervising, seeing what was done.” (Morgan Dep. IV, at 129.)

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determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
III.

Analysis.
John Crane’s Motion for Summary Judgment proceeds from the premise that “plaintiff

has failed to meet his burden of showing that he was actually exposed to any respirable asbestos
from a John Crane product after May 19, 1979, and therefore, his claims against John Crane are
time-barred.” (Doc. 271-1, at 5.) Reasonable inferences from the summary judgment record,
taken in the light most favorable to the plaintiff, refute this argument, at least under Rule 56
scrutiny.
Contrary to movant’s position, the record contains considerable evidence from which a
reasonable finder of fact could conclude that Morgan was actually exposed to respirable asbestos
from a John Crane product after 1979. In that regard, plaintiff’s evidence shows that Morgan
worked at Alabama River Pulp from 1978 to 1992, that Alabama River Pulp routinely used John
Crane asbestos packing in the pump shop after 1979 and continued to utilize it until Morgan
retired in 1992 (although John Crane stopped using asbestos in the product after 1985), that
Morgan worked in the Alabama River Pulp pump shop supervising workers who installed and
removed packing on pumps and valves, that such work produced considerable amounts of
asbestos dust both during the removal / installation processes and at the end-of-day cleanup, that
Morgan was in close physical proximity to his subordinates performing this work (often touching
and seeing the valves and pumps while the work was being done), and that Morgan breathed in
dust created by these processes, just as the machinists did. Such testimony plainly constitutes
substantial evidence that Morgan was exposed to asbestos-containing products manufactured by
John Crane.
In response, John Crane insists that plaintiff’s showing is lacking because “Morgan
testified that he could not recall a single time in which he installed or removed John Crane
gaskets or packing after he went to work at ARP in 1978.” (Doc. 353, at 2.) Movant’s
characterization of Morgan’s testimony is accurate, but its legal conclusion is not. John Crane
cites no authority for the proposition that exposure to a defendant’s asbestos-containing products
does not count for causation or liability purposes unless the plaintiff physically handled such
products himself. The Court is aware of none; to the contrary, extensive authorities from many
jurisdictions undercut the crabbed definition of “exposure” championed by John Crane. See,
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e.g., Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir. 1985)
(holding that plaintiff must “show that he was exposed to defendant’s asbestos-containing
product by working with or in close proximity to the product”) (emphasis added).8 Contrary to
John Crane’s position, the touchstone of a causation analysis in the asbestos context is not
whether the plaintiff actually touched the defendant’s asbestos-containing products, but whether
he was working in sufficiently close proximity to the release of asbestos dust and/or fibers from
such products that it is reasonably likely he inhaled same.9 In this case, Morgan’s deposition
testimony satisfies that threshold by a wide margin.
Faced with plaintiff’s persuasive, well-supported “close proximity” argument, John
Crane’s only rejoinder is that plaintiff is relying on “nothing more than conjecture” because “Mr.
8

See also Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir. 1990) (finding
genuine issue of material fact in asbestos exposure case where plaintiff’s evidence was that
defendant’s asbestos-containing products “were in use 300 to 400 feet away from” plaintiff);
Chism v. W.R. Grace & Co., 158 F.3d 988, 992 (8th Cir. 1998) (to show proximate causation,
plaintiff must show exposure to defendant’s asbestos-containing product “in proximity to where
the plaintiff actually worked”); Tragarz v. Keene Corp., 980 F.2d 411, 418 (7th Cir. 1992)
(plaintiff in asbestos case can make sufficient showing of exposure by testifying “that he or she
worked with or in proximity to the defendant’s asbestos containing products”); Slaughter v.
Southern Talc Co., 949 F.2d 167, 171 (5th Cir. 1991) (“A plaintiff must prove that, more
probably than not, he actually breathed asbestos fibers originating in defendants’ products. This
proof can be made by showing that plaintiff frequently and regularly worked in proximity to
defendants’ products such that it is likely that plaintiffs inhaled defendants’ asbestos fibers.”);
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986) (causation in
asbestos case requires “evidence of exposure to a specific product … in proximity to where the
plaintiff actually worked”); Sheffield v. Owens-Corning Fiberglass Corp., 595 So.2d 443, 455
(Ala. 1992) (“The tendency of asbestos dust to … creat[e] a secondary exposure hazard to
bystanders … not working directly with the material, has been generally recognized.”).
9

In so concluding, the Court expresses no opinion as to the viability of the “fiber
drift theory” about which plaintiff and many defendants spar in their summary judgment filings.
Again, plaintiff’s evidence is that Morgan worked in the same pump room where asbestos dust
from John Crane products was being generated, sometimes as close as arm’s length to the John
Crane products in question, and that Morgan could see the dust as he breathed it in. As to John
Crane, this is simply not a case in which asbestos fibers released on the other side of a large
factory or paper mill are alleged to have drifted in the air across the plant to Morgan’s location;
rather, the John Crane asbestos dust was created in the immediate physical vicinity of where
Morgan was working. Cf. Blackston, 764 F.2d at 1481 (rejecting notion that plaintiff can show
that he “was exposed to the asbestos in a defendant’s products by simply showing that he worked
at a job site at a time when the defendant’s asbestos-containing products were used”).

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Morgan testified that it was impossible to identify the brand or manufacturer of old gaskets or
packing when they were removed.” (Doc. 353, at 4.) Here again, John Crane ignores plaintiff’s
substantial evidence that John Crane asbestos-containing gaskets and packing were in use at
Alabama River Pulp throughout Morgan’s employment there. John Crane likewise disregards
Morgan’s testimony that his crews in the pump room were installing and changing out John
Crane packing materials on pumps and valves several times per month, and that he knew such
products were from John Crane because he recognized the packaging (i.e., John Crane packing
came in a “tin can about yay round and that high”) and saw such John Crane products stocked at
the pump shop until his retirement from Alabama River Pulp in 1992. (Morgan Dep. IV, at 12728.) This testimony does not conflict with Morgan’s testimony that the brands of old gaskets or
packing could not be discerned when they were removed from pumps and valves. Even though
the packing material itself was not labeled “John Crane,” Morgan knew that new asbestos
packing from John Crane was being installed in Alabama River Pulp pumps because he saw the
tin in which it came. If John Crane asbestos was being installed on Alabama River Pulp pumps
during Morgan’s employment there, then common sense says that it also was being removed
from such pumps when replacement became necessary. Certainly, this qualifies as
circumstantial evidence that John Crane asbestos-containing packing was in fact being used at
Alabama River Pulp well past 1979, so as to create a genuine issue of material fact.10
This same evidence and reasoning defeats John Crane’s limitations argument. Under
Alabama law, there are different rules for accrual of personal injury actions relating to asbestos
exposure, depending on whether the last exposure occurred prior to May 19, 1979 or thereafter.
See In re Asbestos Products Liability Litigation (No. VI), 2011 WL 3240827, *2 (E.D. Pa. July
29, 2011) (“Under Alabama law, all claims for pre–1979 exposure to asbestos must be filed
within one year of the last date of exposure. For any exposure to asbestos after May 17, 1980,
the claim accrues upon discovery of an asbestos-related disease.”). Here, as addressed supra,
plaintiff has come forward with substantial evidence that he was exposed to airborne asbestos
dust emanating from John Crane products well into the 1980s. For that reason, his claims against
10

Under Alabama law, proof of causation in products liability cases may take the
form of circumstantial evidence. See, e.g., Turner v. Azalea Box Co., 508 So.2d 253, 254 (Ala.
1987) (affirming principle that “circumstantial evidence may be used to prove identity” of the
manufacturer of a defective product).

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John Crane accrued under the “discovery rule” articulated by the Alabama legislature as follows:
“A civil action for any injury … resulting from exposure to asbestos, including asbestoscontaining products, shall be deemed to accrue on the first date the injured party, through
reasonable diligence, should have reason to discover the injury giving rise to such civil action.”
Ala. Code § 6-2-30(b). Plaintiff’s evidence is that Morgan discovered his injury when he was
diagnosed with malignant mesothelioma in February 2011. He filed suit against John Crane less
than three months later, or well within the two-year limitations period created by Alabama Code
§ 6-2-38(l). Plaintiff’s evidence, accepted as true, demonstrates that his claims against John
Crane are not time-barred because he was exposed to asbestos-containing products from John
Crane after the May 1980 effective date for Alabama’s new “discovery rule,” and he sued John
Crane well within the statutory time period after his claim accrued.
IV.

Conclusion.
For all of the foregoing reasons, the Court finds that there are substantial genuine issues

of material fact as to plaintiff’s claims against defendant John Crane. Accordingly, John Crane,
Inc.’s Motion for Summary Judgment (doc. 271) is denied.
DONE and ORDERED this 30th day of August, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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