Morgan v. Bill Vann Company, Inc. et al

Filing 420

Order granting #275 MOTION for Summary Judgment filed by Gorman-Rupp Company. Plaintiff's claims against Gorman-Rupp Company are dismissed with prejudice. The Clerk is directed to terminate Gorman-Rupp as a party defenant. 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 The Gorman-Rupp Company’s Motion
for Summary Judgment (doc. 275). 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

Gorman-Rupp 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 Gorman-Rupp). 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 Gorman-Rupp products are as
follows:3 From 1978 through 1992, Morgan worked at the Alabama River Pulp paper mill.
(Morgan Dep. I, at 95-96.)4 Initially, Morgan helped with construction of the mill, including
installation of pumps and boiler couplings. (Id. at 97.) 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 mill’s machine shop, after which he
no longer did “hands-on” 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.) In this supervisory role, Morgan was present in the machine and pump
shops “every day and seen what was done and particularly in the tearing down and making sure
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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it’s cleaned up right when it went back together.” (Morgan Dep. II, at 163.) Although he did not
perform hands-on work on the pumps, Morgan testified, “I got these eyeballs down there and I
run these fingers around things and then when it was being cleaned up, I’ve got to breathe about
as much dust and dirt as [the hands-on workers] did.” (Id. at 165.)5
Morgan recalled there being one Gorman-Rupp pump at the Alabama River Pulp facility.
(Morgan Dep. I, at 98; Morgan Dep. IV, at 119.) Morgan did not remember any other pumps
manufactured by Gorman-Rupp at that site. (Morgan Dep. II, at 364.) This singular GormanRupp pump “had to do with the effluent or sewage, and it was a positive displacement pump.”
(Morgan Dep. I, at 98-99.) The function of this pump was “taking solids … out of the sewers,”
which was a “rough service” that resulted in the equipment requiring attention in the pump shop
“pretty often.” (Morgan Dep. IV, at 175.) During the time that Morgan was supervising the
pump shop, he was present in a supervisory capacity when that pump’s rotating element was
overhauled on multiple occasions. (Morgan Dep. I, at 99.) The Gorman-Rupp pump had
asbestos packing material and gaskets. (Id.; Morgan Dep. IV, at 175.)6
More specifically, the Gorman-Rupp pump utilized sheet asbestos for gaskets and
“braided asbestos packing for packing and stuffing box … around the shaft of the pump.”
(Morgan Dep. IV, at 176.) The process of changing out the asbestos packing and gaskets, which
had to be done periodically in the pump shop, created dust. (Id. at 171-73.) In the case of the
Gorman-Rupp pump, the amount of asbestos dust generated was “a lot” because that machine
5

Morgan reinforced these points by testifying that he “looked in to every job that
was being … performed. And all the pumps, … 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. … I wanted to see it for myself. And a lot of times I put my hands on it just to
feel it. And the same thing with the machine work. I went by every job to see … what was
going on.” (Morgan Dep. III, at 231.) As for the daily clean-up process in Alabama River
Pulp’s machine and pump shops, Morgan explained that at the end of each day, the crew would
“air hose things off, and then sweep it up,” including “dirt and dust and what asbestos was there
in the dirt and dust.” (Id. at 232.)
6

In that regard, Gorman-Rupp indicated in written discovery responses in other
mesothelioma litigation that it is “in the business of the design and manufacture of pumps and
pumping systems. Some pumps incorporated asbestos gaskets and/or packing, which were
purchased from vendors. The particular Gorman-Rupp pumps with asbestos-containing packing
and/or gaskets were offered until the mid-1980s.” (Doc. 314-7, at 2.)

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was a “good size pump.” (Id. at 176.) Because of his supervisory position in the pump shop and
diligent approach to his duties, Morgan was exposed to and breathed in that dust each time the
Gorman-Rupp pump was brought in for service, which was no more than once every 90 days
from 1978 to 1992. (Id. at 176-77.) To the best of Morgan’s recollection, the packing and
gaskets that Alabama River Pulp used with the Gorman-Rupp pump were manufactured by
another company, A.W. Chesterton; however, Morgan testified that he did not know which
distributors or supply houses provided the gaskets and packing used at the Alabama River Pulp
mill. (Morgan Dep. I, at 99-100.) Morgan acknowledged that he had no evidence that the pump
manufacturer supplied replacement packing. (Morgan Dep. IV, at 70.)
Significantly, the record in the light most favorable to plaintiff confirms that the GormanRupp pump at the Alabama River Pulp facility was not made of asbestos and did not have
exterior asbestos.7 According to Morgan, the Gorman-Rupp pump was made of cast iron, with
stainless steel internals. (Morgan Dep. IV, at 120.) Morgan professed to know nothing about
who installed that pump, nor did he possess information about the pump’s original components.
(Id. at 121.) Morgan’s son, Ronald Melvin Morgan, likewise testified that he did not know when
Morgan or the pump shop might have repaired or worked on the Gorman-Rupp pump. (Ronald
Melvin Morgan Dep., at 338-39.) Nor did Morgan’s son know whether his father was present on
the first occasion when Alabama River Pulp employees replaced the packing and gaskets on the
Gorman-Rupp pump. (Id. at 104-05.) The record reflects that, generally speaking, “when you
pull an old gasket out of a line or if you pull an old packing out of a valve or a pump, there’s no
way you can tell who made it.” (Id. at 339-40.)
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
7

As a general proposition, when asked whether the actual pumps at Alabama River
Pulp contained asbestos, Morgan responded, “No.” (Morgan Dep. II, at 350.) When asked
whether the asbestos dust he encountered during the maintenance and repair of pumps at
Alabama River Pulp was from the packing or the pump itself, Morgan responded, “Well, it
would have to be from the packing, you know.” (Id. at 351.)

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

Analysis.
Although Gorman-Rupp’s Motion for Summary Judgment raises a number of legal and

factual arguments, the Court need only examine one, to-wit: movant’s invocation of the socalled “bare metal defense.” The factual premise of this argument is that “[t]here is no
substantial evidence that the Plaintiff was exposed to any asbestos-containing product
manufactured or distributed by Defendant The Gorman-Rupp Company” (doc. 275, at 1),
because the only Gorman-Rupp product to which Morgan was exposed was a cast iron pump. In
other words, defendant’s position is that plaintiff cannot show that Morgan “worked with or in
direct proximity to any original asbestos-containing component in this pump.” (Doc. 347, at 7.)
The legal premise of this argument is that a manufacturer of “bare metal” is not liable for other
manufacturers’ asbestos-containing components used in connection with that bare metal.8

8

Although Gorman-Rupp’s initial Rule 56 Motion and brief alluded to this premise
in general terms, movant did not specifically invoke or develop the bare metal defense until its
reply brief. (Compare doc. 275 with doc. 347.) Ordinarily, that sequence of events would
disqualify the bare metal defense from consideration at this time, because ordinarily federal
courts do not consider arguments presented for the first time in reply briefs. See, e.g., Windham
v. City of Fairhope, 2013 WL 1679355, *8 n.13 (S.D. Ala. Apr. 16, 2013) (“federal courts
generally do not consider new, previously available arguments unveiled in reply briefs”); GrossJones v. Mercy Medical, 874 F. Supp.2d 1319, 1330 n.8 (S.D. Ala. 2012) (“District courts,
(Continued)
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A.

Is the Bare Metal Defense Cognizable Under Alabama Law?

Many jurisdictions have embraced some form of this bare metal defense in the asbestos
context. See, e.g., Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 495 (6th Cir. 2005)
(affirming grant of summary judgment for manufacturer of valves that used asbestos packing
materials and gaskets, where defendant did not provide replacement packing or gaskets, such that
“any asbestos that [defendant] may have been exposed to in connection with a Henry Vogt
product would be attributable to some other manufacturer,” and “Henry Vogt cannot be held
responsible for material ‘attached or connected’ to its product”); Faddish v. Buffalo Pumps, 881
F. Supp.2d 1361, 1372 (S.D. Fla. 2012) (“A number of state courts … have concluded that a
defendant manufacturer is not liable for a third party’s asbestos-containing products when the
defendant is not within the ‘chain of distribution’ of the asbestos product. … Predicting that the
Florida Supreme Court would follow this trend, this court likewise concludes that the defendant
‘bare metal’ suppliers cannot be liable for a third party’s asbestos containing products under the
facts presented in this case.”); Conner v. Alfa Laval, Inc., 842 Supp.2d 791, 801 (E.D. Pa. 2012)
(collecting cases and holding that “under maritime law, a manufacturer is not liable for harm
caused by, and owes no duty to warn of the hazards inherent in, asbestos products that the
manufacturer did not manufacture or distribute,” such that defendants who made products that
used asbestos insulation, gaskets and packing could not be held liable when they did not
manufacture or distribute the asbestos products themselves); Surre v. Foster Wheeler LLC, 831
F. Supp.2d 797, 801-02 (S.D.N.Y. 2011) (granting summary judgment to manufacturer of boilers
in asbestos case, where “Crane did not manufacture or place into the stream of commerce the

including this one, ordinarily do not consider arguments raised for the first time on reply.”). In
this case, however, the Court will consider Gorman-Rupp’s “bare metal” argument because
several co-defendant pump manufacturers raised precisely the same arguments in their principal
briefs (and Gorman-Rupp alluded to it), such that plaintiff was on notice that this issue was in
play for all pump manufacturer defendants. Moreover, the record does not reveal that GormanRupp is materially differently situated than any other pump manufacturer from a factual or legal
standpoint with regard to application of this defense. And plaintiff could have asked for leave to
file a sur-reply to address Gorman Rupp’s iteration of the bare metal defense, or moved to strike
it as untimely presented, but elected to do neither. Under the circumstances, the Court is
satisfied that plaintiff has been heard fully on the bare metal defense invoked by Gorman-Rupp,
even though movant failed to develop the argument until its reply.

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asbestos to which Surre was exposed,” “there is no evidence that Pacific boilers required
asbestos insulation to function,” and “there is no evidence that Crane played any role in choosing
the type of insulation Surre applied”); O’Neil v. Crane Co., 266 P.3d 987, 996-97 (Cal. 2012)
(rejecting claim that pump manufacturers were liable for asbestos packing and gaskets used by
customer where “it is undisputed that O’Neil was exposed to no asbestos from a product made by
the defendants,” “there was no evidence that defendants’ products required asbestos-containing
gaskets or packing in order to function,” and “[t]he defective product in this setting was the
asbestos insulation, not the pumps and valves to which it was applied after defendants’
manufacture and delivery”); Braaten v. Saberhagen Holdings, 198 P.3d 493, 502 (Wash. 2008)
(“Because we have held … that there is no duty to warn of the dangers of other manufacturers’
asbestos products, we also conclude that there was no duty to warn with respect to replacement
packing and gaskets. … [T]hese manufacturers should not be held liable for harm caused by
asbestos-containing material included in their products postmanufacture.”).
The parties agree that the substantive law of Alabama governs here. Alabama appellate
courts have not unequivocally resolved the question of whether the bare metal defense is
available in asbestos cases under state law. See Holland v. Armstrong Int’l, Inc., 2012 WL
7761422, *1 n.1 (E.D. Pa. Nov. 28, 2012) (“The Court has reviewed the caselaw cited by the
parties and has determined that Alabama law on this issue is not settled.”).9 Accordingly, this
Court is tasked with predicting how the Alabama Supreme Court would decide the issue. See,
9

That said, Gorman-Rupp has cited an on-point unpublished opinion from the
Circuit Court of Mobile County, Alabama, styled Robert Patrick, et al. v. Ametek, Inc., et al. and
dated April 19, 2011. (Doc. 272, Exh. G.) The Patrick decision, authored by Circuit Judge
Joseph S. Johnston, applies Alabama law to the same circumstances presented here (i.e., whether
a manufacturer of bare-metal pumps may be held liable for asbestos-containing components
made and supplied by third parties). Judge Johnston found that, under Alabama law, “a
manufacturer of a non-defective product cannot be held liable for a defective product
subsequently associated with that product which it did not manufacture or supply.” (Id. at 6.)
He adopted the legal principle articulated in other jurisdictions that “[s]ince this defendant did
not manufacture or market the asbestos-containing material nor did it have control over the type
of materials selected, it was not liable.” (Id. at 8.) The Patrick order concluded that “[b]ecause
the Plaintiffs have failed to meet the threshold requirement of showing … that the Plaintiff
worked with an asbestos-containing product manufactured, sold, distributed or otherwise placed
in the stream of commerce by FLOWSERVE, Plaintiffs have failed to establish the requisite
causal nexus between such products and Mr. Patrick’s injury.” (Id. at 9.)

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e.g., State Farm Mut. Auto. Ins. Co. v. Duckworth, 648 F.3d 1216, 1224 (11th Cir. 2011)
(“Where, as here, we find no [state] Supreme Court decision directly on point, we must
anticipate how the [state] Supreme Court would decide this case.”); Clark v. Riley, 595 F.3d
1258, 1264 (11th Cir. 2010) (“In rendering a decision based on state substantive law, a federal
court must decide the case the way it appears the state’s highest court would.”) (citations and
internal quotation marks omitted).
Fortunately, Alabama case law does provide helpful guidance to inform such a
prediction. In particular, the Alabama Supreme Court has held “that a distributor or
manufacturer of a nondefective component is not liable for defects in a product that it did not
manufacture, sell, or otherwise place in the stream of commerce.” Sanders v. Ingram
Equipment, Inc., 531 So.2d 879, 880 (Ala. 1988); see also Brest v. Chrysler Corp., 939 F. Supp.
843, 848 (M.D. Ala. 1996) (“Under Sanders, it is well established in Alabama that a
manufacturer can only be held liable for defects in the products that it manufactured, sold, or
otherwise placed in the stream of commerce.”). Moreover, the Eleventh Circuit interpreted
Alabama law in analogous circumstances in Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d
465 (11th Cir. 1993). In that case, the plaintiff’s decedent was killed while mounting a Goodyear
tire on a multi-piece rim for which the tire had been specifically designed. The plaintiff’s
evidence was that a defect in the rim (which was manufactured by a third party), not the tire,
caused the accident. Relying on Sanders for the proposition that the manufacturer of a nondefective component cannot be held liable for injuries caused by a product that it did not
manufacture, sell, or otherwise place in the stream of commerce, the Eleventh Circuit concluded
that “Goodyear would have no duty to give a warning concerning a mismatched or defective rim
manufactured by [someone else].” Id. at 472. Sanders and Reynolds strongly suggest that
Alabama courts would follow the majority rule as set forth in Conner, O’Neil and the other
authorities cited supra.
Plaintiff’s position is that Alabama law would impose a duty to warn on Gorman-Rupp in
this context. As an initial matter, plaintiff does not and cannot challenge the well-settled
principle that, under Alabama products-liability law, “a defect in the product must be
affirmatively shown” by the plaintiff. Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046,
1051 (Ala. 2007) (citations omitted). Rather, plaintiff’s principal argument against the pump
manufacturers is that Alabama River Pulp’s use of dangerous asbestos-containing packing and
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gaskets with those pumps was a foreseeable modification or alteration of the product which does
not relieve the pump makers of responsibility for the resulting defect (i.e., components that
released respirable asbestos dust when replaced). See generally Sears, Roebuck and Co. v.
Harris, 630 So.2d 1018, 1027 (Ala. 1993) (explaining that “the mere fact that a product has been
altered or modified does not necessarily relieve the manufacturer or seller of liability” and that a
manufacturer remains liable “if the alteration or modification was reasonably foreseeable” to it).
Plaintiff’s theory, then, is that Alabama River Pulp’s use of asbestos-containing packing and
gasket materials was a foreseeable modification to its pumps, for which Gorman-Rupp owed a
duty to warn under Alabama law, and that this Court therefore should not apply the “bare metal
defense” doctrine.
There is an obvious tension between the Sanders tenet that a manufacturer is not liable
for defects in a product that it did not place in the stream of commerce, on the one hand, and the
Sears ruling that a manufacturer is liable for alterations to its product that are reasonably
foreseeable, on the other. If the alteration giving rise to liability under Sears is the addition of a
component part that the defendant manufacturer did not place in the stream of commerce (and
for which Sanders would preclude liability), then does the Sanders rule or the Sears rule control?
Fortunately, the Alabama Supreme Court answered this question in Hannah v. Gregg, Bland &
Berry, Inc., 840 So.2d 839 (Ala. 2002). In Hannah, the plaintiff’s decedent was killed in a
workplace accident involving machines whose electrical controls included control panels
provided by Westinghouse. The plant operator modified the Westinghouse control panels by
adding additional buttons. Plaintiff’s theory was that the accident’s cause was a worker pressing
the wrong button on the Westinghouse control panel. When plaintiff sued under the AEMLD,
Westinghouse argued that it was entitled to summary judgment under Sanders because the
defects in the industrial machines were unrelated to the control panel it supplied. The Hannah
Court rejected this argument, reasoning that (i) plaintiff’s theory was that the Westinghouse
controls themselves were defective because they omitted safety devices, and (ii) “Sanders is
inapplicable when the plaintiff seeks to recover based upon the theory that the product supplied
by the defendant is itself defective.” Id. at 855. So Hannah teaches that if a manufacturer is
sued for defects in its own product (rather than for defects in some third party’s component part
used with that product), then Sanders does not preclude liability under Alabama law.

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Considering all of the foregoing authorities in the aggregate, the Court concludes that (i)
the prevailing majority rule in other jurisdictions is to recognize the “bare metal defense” (under
which a pump manufacturer such as Gorman-Rupp cannot be liable for a third party’s asbestos
materials used with its products, where the pump manufacturer was not in the chain of
distribution of such asbestos-containing materials); (ii) the trend in other jurisdictions favors
adoption of that defense for sound and even compelling policy reasons;10 (iii) that defense is a
logical outgrowth and application of Alabama law as summarized in Sanders, Hannah, Reynolds
and Brest; and (iv) at least one trial court in Alabama has expressly adopted the defense and
concluded that a pump defendant has no liability under Alabama law for third-party asbestoscontaining gaskets and packing. In light of this survey of applicable law, the undersigned is of
the opinion that the Alabama Supreme Court would adopt the bare metal defense as a modest
extension and application of the rule in Sanders, subject to the Hannah caveat that the defense is
inapplicable if the defendant is being sued for defects in its own product. Neither plaintiff nor
defendant identifies serious grounds for disagreement with this assessment of how the Alabama
Supreme Court would resolve the issue; therefore, the Court’s analysis of Gorman-Rupp’s Rule
56 Motion will proceed in accordance with that forecast.

10

As one court explained, “Where, as here, the defendant manufacturer did not
incorporate the defective component into its finished product and did not place the defective
component into the stream of commerce, the rationale for imposing liability is no longer present.
The manufacturer has not had an opportunity to test, evaluate, and inspect the component; it has
derived no benefit from its sale; and it has not represented to the public that the component part
is its own.” O’Neil, 266 P.3d at 998-99 (citations omitted); see also Faddish, 881 F. Supp.2d at
1373-74 (justification for products liability is “to encourage manufacturer accountability and to
insure that the costs of injuries resulting from defective products are borne by the manufacturers
that put such products on the market rather tha[n] by the injured persons who are powerless to
defend themselves,” but those interests are inapplicable for a defendant “who had no control over
the type of insulation the [end user] would choose and derived no revenue from sale of asbestoscontaining products used” at that facility) (citations and internal quotation marks omitted);
Conner, 842 F. Supp.2d at 800-01 (observing that “products-liability theories rely on the
principle that a party in the chain of distribution of a harm-causing product should be liable
because that party is in the best position to absorb the costs of liability into the cost of
production,” but that “this policy weighs against holding manufacturers liable for harm caused
by asbestos products they did not manufacture or distribute because those manufacturers cannot
account for the costs of liability created by the third parties’ products”).

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B.

Application of Bare Metal Defense to Record Facts.

In the light most favorable to plaintiff, the record reflects that there was a single GormanRupp pump in use at the Alabama River Pulp mill throughout the period of Morgan’s
employment. That pump was used with replaceable asbestos packing and gasket component
parts, which Gorman-Rupp did not manufacture; rather, such asbestos-containing materials were
purchased from third-party vendors. There is no evidence that the Gorman-Rupp pump was
shipped to Alabama River Pulp with asbestos-containing components already installed (as
opposed to Alabama River Pulp obtaining those materials from a third party and installing them
itself). There is no evidence that Morgan ever handled, dealt with, or was exposed to any
original asbestos-containing materials that may have been shipped by Gorman-Rupp to Alabama
River Pulp with the pump.11 There is no evidence that Gorman-Rupp imposed any requirements
or even recommendations for Alabama River Pulp regarding what replacement packing and
gaskets should be used. There is no evidence that Gorman-Rupp supplied or distributed
replacement packing and gaskets to Alabama River Pulp to use with its pump. Morgan testified
that A.W. Chesterton packing and/or gaskets were used with the Gorman-Rupp pump, but he
indicated that he did not know which distributor or supply house might have sent those products
to Alabama River Pulp.
At the root of his claims, plaintiff seeks to hold Gorman-Rupp liable because the process
of replacing packing and gaskets on the Gorman-Rupp pump at Alabama River Pulp produced
asbestos dust, which Morgan breathed because he worked as foreman in the pump room in close
proximity to the workers tearing out the old material. Plaintiff’s theory is that the dust from
these packings and gaskets substantially caused or contributed to Morgan’s contraction of
malignant mesothelioma. Obviously, no asbestos dust or fibers emanated from Gorman-Rupp’s
cast-iron pump itself; rather, by Morgan’s own reckoning, any dust encountered in the process of
replacing packing or gaskets would come from the packing or gaskets, not from the pump. In the
absence of evidence that (i) Gorman-Rupp shipped asbestos-containing materials to Alabama
River Pulp with its pump, (ii) Morgan was present when those original asbestos packing and
11

On this point, Morgan’s testimony was clear that he did not “know anything about
who installed that Gorman-Rupp pump,” nor did he “know anything about the original
components with the Gorman-Rupp pump.” (Morgan Dep. IV, at 121.)

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gaskets were replaced, and/or (iii) Gorman-Rupp supplied replacement packing and gaskets to
Alabama River Pulp for use with its pump, any asbestos dust to which Morgan was exposed in
connection with the pump shop’s maintenance of the Gorman-Rupp pump would not be
attributable to Gorman-Rupp, but would instead be solely the result of a third party’s
components, for which Gorman-Rupp cannot be liable pursuant to the bare metal defense.
It would not save plaintiff’s claims to argue that Gorman-Rupp defectively designed its
pumps to require asbestos-containing components. After, all, the record is devoid of evidence
that the Gorman-Rupp pump in use at Alabama River Pulp required asbestos-containing packing
and gaskets, or that it would not function properly unless the packing and gaskets were made of
asbestos, to the exclusion of other kinds of materials. Of course, speculation and conjecture are
not valid grounds for denying summary judgment relief.12 Thus, to the extent that plaintiff seeks
to hold Gorman-Rupp liable on a defective design theory, that theory cannot withstand Rule 56
scrutiny. Mere compatibility of a Gorman-Rupp pump with asbestos-containing components is
not a design defect. See O’Neil, 266 P.3d at 298-99 (“[N]o evidence showed that the design of
defendants’ products required the use of asbestos components, and their mere compatibility for
use with such components is not enough to render them defective.”).
There being no record basis for a defective design claim against Gorman-Rupp and
plaintiff not having delineated any other ground for his claim that the pump itself was defective,
the claims against Gorman-Rupp lie outside the Hannah caveat (i.e., that a manufacturer may be
held liable, notwithstanding Sanders, when the plaintiff pursues claims that the defendant’s
product is itself defective). Plaintiff seeks to hold Gorman-Rupp liable not because its pump was
defective, but because Alabama River Pulp installed asbestos packing and gaskets in that pump.
The packing and gaskets, not the pump, were the defect. But Gorman-Rupp neither
manufactured said components nor placed them in the stream of commerce. The clear thrust of
12

“Speculation does not create a genuine issue of fact; instead, it creates a false
issue, the demolition of which is a primary goal of summary judgment.” Cordoba v. Dillard’s,
Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (citation omitted); see also Garczynski v. Bradshaw,
573 F.3d 1158, 1165 (11th Cir. 2009) (“A ‘mere scintilla’ of evidence is insufficient; the nonmoving party must produce substantial evidence in order to defeat a motion for summary
judgment.”). Simply put, “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550
U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted).

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the bare metal defense is that a manufacturer cannot be held liable for asbestos-containing
products used in conjunction with its bare metal pumps, absent evidence that the manufacturer
was part of the chain of distribution for those products. Accordingly, to the extent that plaintiff
would predicate liability on a theory that Gorman-Rupp failed to warn of the dangers presented
by these component parts despite knowledge that end users might foreseeably replace packing
and gaskets supplied with its pumps with comparable asbestos-containing components, such
claims would fail as a matter of law. Under the bare metal defense, Gorman-Rupp is not liable
for harm caused by, and owed no duty to warn Morgan or anyone else concerning the hazards of,
asbestos-containing packing and gaskets that users of its pumps might install, absent a showing
that Gorman-Rupp manufactured, sold or distributed such asbestos-containing components.13
IV.

Conclusion.
“Where the record taken as a whole could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380, 127
S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted). This record, taken as a whole, could not
lead a rational trier of fact to find that Morgan was ever exposed to asbestos from a product that
Gorman-Rupp manufactured, sold, distributed, or otherwise placed in the stream of commerce.
Morgan worked around and in close proximity to a cast-iron pump manufactured by GormanRupp. That pump was bare metal. Plaintiff has adduced no evidence that it was defective. That
13

See Lindstrom, 424 F.3d at 497 (asbestos defendant “cannot be held responsible
for asbestos-containing material that … was incorporated into its product post-manufacture”);
Faddish, 881 F. Supp.2d at 1371 (“a manufacturer’s duty to warn, whether premised in
negligence or strict liability theory, generally does not extend to hazards arising exclusively from
other manufacturer’s products, regardless of the foreseeability of the combined use and attendant
risk”); Surre, 831 F. Supp.2d at 801-02 (boiler manufacturer owed no duty to warn, as a matter
of law, where defendant did not manufacture or place into stream of commerce the asbestos to
which plaintiff was exposed, there was no evidence that boilers required asbestos insulation to
function, and record did not show that defendant played role in end user’s decision to utilize
asbestos insulation); O’Neil, 266 P.3d at 998 (“[N]o case law … supports the idea that a
manufacturer, after selling a completed product to a purchaser, remains under a duty to warn the
purchaser of potentially defective additional pieces of equipment that the purchaser may or may
not use to complement the product bought from the manufacturer.”) (citation omitted); Braaten,
198 P.2d at 385 (“a manufacturer is not liable for failure to warn of the danger of exposure to
asbestos in insulation applied to its products if it did not manufacture the insulation and was not
in the chain of distribution of the insulation,” and “[i]t makes no difference whether the
manufacturer knew its products would be used in conjunction with asbestos insulation”).

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pump did not emit asbestos dust or fibers. To be sure, Alabama River Pulp installed packing and
gaskets in that pump that contained asbestos and produced dust to which Morgan was exposed in
his capacity as pump shop foreman after August 1979. The pump’s mere compatibility for use
with asbestos-containing components is not a design defect. There is no evidence that GormanRupp shipped its pump to Alabama River Pulp with pre-installed asbestos packing and gaskets.
Even if there were, the record is devoid of evidence that Morgan was ever exposed to these
original packing and gaskets in the Gorman-Rupp pump. Moreover, there is no evidence that
Gorman-Rupp was involved in the chain of distribution for replacement packing and gasket
materials, all of which were manufactured and sold by third parties. Under Sanders and other
Alabama authority, as well as the reasonable prediction that the Alabama Supreme Court would
adopt the majority rule and extend Sanders principles to embrace the so-called “bare metal
defense,” the Court concludes that Gorman-Rupp owed no duty to warn under Alabama law for
asbestos exposures from packing and gaskets that it did not manufacture, sell, distribute or
otherwise place in the stream of commerce. Absent a causal nexus between Gorman-Rupp’s
product (i.e., the pump) and Morgan’s injuries and death, plaintiff’s claims against this defendant
fail, as a matter of law. Plaintiff offers nothing more than conjecture and speculation to create
such a nexus. That is not enough.
For all of the foregoing reasons, the Court finds that there are no genuine issues of
material fact, and that movant is entitled to judgment as a matter of law. Defendant The
Gorman-Rupp Company’s Motion for Summary Judgment (doc. 275) is granted, and plaintiff’s
claims against that defendant are dismissed with prejudice. The Clerk of Court is directed to
terminate Gorman-Rupp as a party defendant.
DONE and ORDERED this 30th day of August, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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