William Lund et al v. 3M Company et al

Filing 864

ORDER DENYING DEFENDANTS ELECTRIC BOAT CORPORATION AND GENERAL DYNAMICS CORPORATION'S MOTION FOR RECONSIDERATION 852 by Judge Dean D. Pregerson. (lom)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VICTORIA LUND, individually
and as successor-in-interest
to WILLIAM LUND, deceased;
DAVID LUND, an individual;
and SHEILA LUND, an
individual, as legal heirs
of WILLIAM LUND, Deceased,

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Plaintiff,
v.

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3M COMPANY a/k/a MINNESOTA
MINING & MANUFACTURING
COMPANY, et al.,

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Defendants.

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___________________________

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Case No. CV 13-02776 DDP (VBKx)
ORDER DENYING DEFENDANTS ELECTRIC
BOAT CORPORATION AND GENERAL
DYNAMICS CORPORATION’S MOTION FOR
RECONSIDERATION
[Dkt. 852]

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Presently before the court is Defendants Electric Boat

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Corporation and General Dynamics Corporation’s (“Defendants”)

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Motion for Reconsideration of the court’s Order Denying Summary

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Adjudication of Plaintiff’s Strict Liability Claims. (Dkt. 852.)

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Having considered the submissions of the parties, heard oral

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argument, and reviewed the evidence, the court DENIES the motion

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for reconsideration and adopts the following order.

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I. BACKGROUND
The court has set forth the relevant background in a prior

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memorandum of decision addressing Defendants’ Motion for Summary

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Judgment. (See Dkt. 845.) In brief, Plaintiffs, individually and as

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legal heirs and representatives of William Lund’s estate, brought

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this action to recover for injuries suffered by Mr. Lund, a former

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U.S. Navy Machinist Mate. (Dkt. 1, ¶ 8.) According to Plaintiffs,

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Mr. Lund’s injuries and mesothelioma diagnosis were attributable to

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his exposure to asbestos dust and fibers during the construction

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and maintenance of various U.S. Navy ships manufactured by

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Defendants. (Id.) In particular, Plaintiffs allege that Mr. Lund

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was exposed to asbestos while working “in the engineering spaces on

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the USS Lafayette” at Electric Boat division’s shipyard and while

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working on the USS Gato at General Dynamics’ shipyard. (Plaintiffs’

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Responses to Special Interrogatories Propounded by Defendant

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General Dynamics Corporation’s, Set One, attached as Exhibit B to

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the Declaration of Lisa M. Rickenbacher (“Plaintiffs’ Special

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Interrogatories Responses”), Dkt. 622-4, at 4:17-7:15.)

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Plaintiffs filed this action in the Superior Court for the

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County of Los Angeles, raising claims of negligence, breach of

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express and implied warranties, strict liability in tort, and

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premises owner/contractor liability. (See Dkt. 1.) The case was

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removed to federal court and, on January 30, 2015, Defendants

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General Dynamics and Electric Boat filed motions for summary

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judgment on each of Plaintiffs’ claims. (Dkt. Nos. 619 & 622.) On

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March 1, 2016, the court denied Defendants’ motions for summary

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judgment in full. (Dkt. 829.) It later issued a Memorandum of

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Decision (“Summ. J. Mem.”) explaining its reasoning. (Dkt. 845.)
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Among the issues raised in Defendants’ Summary Judgment Motion

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was whether a strict products liability claim could be brought

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against shipbuilders, such as Defendants, who built custom ships

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for the U.S. Navy. (Dkt. 622-1 at 6.) Relying on an out-of-circuit

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district court case, Defendants argued that a Navy ship should not

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be considered a “product” for purposes of a strict liability claim.

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(Id. (citing Mack v. General Electric Co., 896 F. Supp. 2d 333, 345

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(E.D. Pa. 2012)).) The court in Mack held that while strict

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liability could be imposed on manufacturers of a ship’s various

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component products, it could not be imposed on the builder of the

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ship itself. (Id.) Applied to the present case, the court

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acknowledged that Mack presented persuasive authority but denied

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summary judgment on the strict liability claims because it found

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that there was a genuine issue of material fact as to the

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involvement of other asbestos-containing products besides Navy

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ships.

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Defendants then filed this Motion for Reconsideration. (Dkt.

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852.)

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II. LEGAL STANDARD

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Under Central District of California Local Rule 7-18, a party

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may seek reconsideration of a decision on any motion on the grounds

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of:

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(a) a material difference in fact or law from that
presented to the Court . . . that . . . could not have been
known to the party moving for reconsideration at the time
of such decision, or (b) the emergence of new material
facts or a change of law occurring after the time of such
decision, or (c) a manifest showing of a failure to
consider material facts presented to the Court before such
decision.

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C.D. Cal. L.R. 7-18.

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however, “in any manner repeat any oral or written argument made in

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support of or in opposition to the original motion.”

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III. DISCUSSION

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A motion for reconsideration may not,

Id.

Defendants’ Motion for Reconsideration raises only a single

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issue: does the Ninth Circuit’s decision in McIndoe v. Huntington

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Ingalls, Inc., 817 F.3d 1170 (9th Cir. 2016), which was decided

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after the court issued its summary judgment order, require

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reconsideration of the court’s prior determination that Defendants

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were not entitled to summary judgment on Plaintiff’s strict

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liability claims.

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A.

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In McIndoe, the Ninth Circuit confronted the question of

The McIndoe Decision

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whether a Navy warship was a “product” for purposes of holding a

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shipbuilder “strictly liable for defects in materials originally

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installed on the ships they built.” Id. at 1173. The case, brought

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by the legal heirs of James McIndoe, raises a markedly similar fact

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pattern to the present case. In the 1960s, James McIndoe served on

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two U.S. Navy ships that contained pipe insulation made from

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asbestos. Id. at 1172. During McIndoe’s service, “[he] was

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allegedly present during maintenance work involving the removal of

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pipe insulation that causes asbestos fibers to float in the air he

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breathed.” Id. McIndoe eventually died from complications related

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to mesothelioma. Id. His heirs brought suit against the companies

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responsible for building the ships involved, arguing that McIndoe’s

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exposure to asbestos on the ships contributed to his death. Id. One

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of the claims raised by McIndoe’s heirs relied on a theory of

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strict products liability.
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According to the Ninth Circuit, resolving the strict liability

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question required determining whether Navy warships were “products”

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in the context of a products-liability claim brought under maritime

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law. Quoting the Restatement of Torts, the court explained that a

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“product” subject to strict liability is “‘tangible personal

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property distributed commercially for use or consumption.’” Id. at

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1173 (quoting Restatement (Third) of Torts: Prods. Liab. § 19(a)

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(Am. Law Inst. 1998) (emphasis in original)). Based on this

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definition, the Ninth Circuit concluded that “warships that were

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never ‘distributed commercially’” did not constitute products for

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the purpose of a strict liability claim. Id. The court further

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explained that allowing such a broad theory of liability would be

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inconsistent with the goal of “plac[ing] responsibility on the

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party most able to prevent harm” Id. Specifically, the court noted

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that “a ship built under government contract may not even be

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designed by the builder” and that the “shipbuilder[] does not

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manufacture–and has little ability to control the quality of–the

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many thousands of component parts installed on each ship.” Id. at

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1173-74.

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B.

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As an initial matter, it is important to clarify that the

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court’s prior decision regarding strict liability did not turn on a

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determination of whether a Navy ship constituted a “product” for

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purposes of stating a claim for strict products liability against

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the manufacturer of a Navy ship. Indeed, the court’s prior decision

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explained that Mack v. General Electric Co., 896 F. Supp. 2d 333,

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345 (E.D. Pa. 2012), which stood for precisely that proposition,

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was persuasive authority and further noted that “Plaintiffs

“Products” at Issue in the Court’s Prior Decision

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apparently do not challenge it.” (Summ. J. Mem. 5-6.) Instead, the

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court denied summary judgment on the grounds that there was a

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“genuine issue of material fact as to the involvement of other

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asbestos-containing products besides the Navy ships.” (Id. 6.)

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In the Motion for Reconsideration, Defendants argue that

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Plaintiffs have since admitted in discovery that the only products

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at issue in the case are the USS Lafayette and USS Gato, both Navy

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ships. (Defendants’ Motion for Reconsideration 6.) In support,

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Defendant’s cite to Plaintiffs’ Responses to Special

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Interrogatories where Plaintiffs explain that their claims against

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Defendants are premised on the fact that, while working on the USS

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Lafayette and the USS Gato, Defendants’ personnel “regularly

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installed various forms of asbestos-containing insulation in

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Decedent’s immediate presence and vicinity.” (Plaintiffs’ Special

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Interrogatories Responses at 21:9-24:3; Exhibit C to the

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Declaration of Lisa M. Rickenbacher in support of General Dynamic’s

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Mot. for Summ. J., ECF No. 619-4, at 21:9-24:3.) The interrogatory

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response further explains that Mr. Lund was also on the boat during

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test-firing of missiles, which heavily shook the submarine and

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resulted in dust being shaken loose from the insulation. (See

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Plaintiffs’ Special Interrogatories Responses at 22:7-13.)

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This purported admission does not justify reconsidering the

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court’s prior determination that there was a triable issue

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concerning the involvement of “other asbestos-containing products,”

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actually manufactured by the Defendants, under the requirements of

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Local Rule 7-18. (See Summ. J. Mem. 6.) It is not “a material

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difference in fact . . . from that presented to the Court” given

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that the assertions come directly from the evidence submitted with
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Defendants’ prior Motion for Summary Judgment nor was there a

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manifest “failure to consider material facts.” Furthermore, even

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reexamining the interrogatory responses identified by Defendants,

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does not lead to the conclusion that the statements constitute an

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admission that the only products at issue in this case are the Navy

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ships.

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In the Opposition to the Motion for Reconsideration,

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Plaintiffs reiterate that their case is premised not just on the

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allegation that Defendants manufactured the Navy ships at issue but

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also that they manufactured the piping insulation that was

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installed on the ship.1 (Opposition to Defendants’ Motion for

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Reconsideration 7.) In support, Plaintiffs identify excerpts from

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the deposition of Defendants’ 30(b)(6) witness who admits that

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insulation “would be prefabricated, premanufactured, or precut”

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before it was installed. (Deposition of Bradford Heil, attached as

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Exhibit B to Declaration of Josiah Parker at 82:23-83:2.)

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Defendants contend that this statement “does not establish that

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defendants ‘manufacture’ anything.” (Defendants’ Reply to Motion

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for Reconsideration 7 n.1.)2 While the court recognizes that this

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evidence does not prove Defendants manufactured the insulation at

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issue in the case, it does find that there continues to be a

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The parties have not adequately developed the issue of when
a product is properly considered “manufactured” as opposed to
merely “prefabricated” or “precut.”
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Defendants also challenge reliance on this evidence on the
grounds that the testimony was not presented in support of the
original Opposition to Defendants’ Motion for Summary Judgment.
(Defendants’ Reply to Motion for Reconsideration 7 n.1.). But the
deposition of Defendants’ 30(b)(6) witness took place on March 27,
2015, approximately one month after Plaintiffs’ opposition was due,
and thus could not reasonably have been expected to be included in
the original Opposition.
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triable issue of fact regarding whether other asbestos-containing

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products were “manufactured” by the Defendants. Specifically, there

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is a triable question of whether Defendants manufactured the

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insulation, and thus might still be held liable under a theory of

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strict products liability.

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C.

Applying McIndoe to “Products” at Issue

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It does not appear that McIndoe disturbs the basis of the

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court’s prior decision but, out of an abundance of caution, the

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court clarifies the effects of the McIndoe decision on the present

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strict liability claims. Defendants argue that, in light of

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McIndoe, Plaintiffs can no longer maintain a strict products

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liability claim against Defendants on the grounds that Defendants

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manufactured the ships at issue in the case or installed the

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component parts.

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Plaintiffs raise a number of responses that attempt to narrow

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the scope of McIndoe’s holding and suggest that it does not

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preclude their precise claims. First, they argue that McIndoe only

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holds that shipyard contractors cannot be held responsible for

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installing defective products “when their primary role in doing so

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is building the ship” and not when it is merely maintaining the

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ship. (Opp’n 2-3.) Thus, if Defendants installed asbestos-

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containing insulation when building the ship, there would be no

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claim for strict liability. But here, where Defendants installed

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the defective insulation as part of maintaining the ship, there is

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still a claim. This distinction finds no support in the McIndoe

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decision. Indeed, McIndoe himself was not exposed to asbestos

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during shipbuilding but instead during periods of maintenance. 817

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F.3d at 1172.
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Plaintiffs then argue that McIndoe does not disturb pre-

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existing Ninth Circuit precedent that shipyard contractors can be

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held strictly liable for supplying certain defective parts. (Opp’n

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5.) All but one of the cases Plaintiffs rely on concern commercial

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ships and not vessels built specifically for the Navy. Given that

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McIndoe turned expressly on the fact the warships “were never

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‘distributed commercially,’” the court cannot conclude that the

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ships at issue in this case are not squarely the sort McIndoe held

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were not “products” for the purposes of a strict products liability

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claim.
Plaintiffs do identify one case that involves a manufacturer

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building a craft for a military contract. See McKay v. Rockwell

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International Corp., 704 F.2d 444 (9th Cir. 1983). Plaintiffs state

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that under McKay, “shipyard contractors can be held strictly liable

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for defective products that injure navy serviceman.” (Opp’n 6.)

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McKay does not stand for so broad a proposition. Rather McKay,

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which involved a liability claim against the manufacturer of an

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ejection system for military aircrafts, concluded that strict

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liability is not available against a military supplier where the

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“United States established, or approved, reasonably precise

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specifications for the allegedly defective military equipment.” 704

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F.3d at 451. This holding is consistent with McIndoe’s explanation

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that the goal of strict liability is not advanced where the

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defective ship “may not even be designed by the builder but instead

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by the government itself or another outside professional.” 817 F.3d

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at 1174.

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Applying McIndoe to the facts of this case, the court
concludes that Defendants cannot be held strictly liable for
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manufacturing the Navy ship at issue in this case because the ships

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are not “products” in the sense required to state such a claim.

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McIndoe does not preclude the possibility that a manufacturer of a

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specific defective product, even when that product is supplied to

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the military, might still be held responsible under strict products

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liability. As the Ninth Circuit explained in McIndoe, its decision

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was based in part on the consideration that “the shipbuilder does

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not manufacture—and has little ability to control the quality

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of—the many thousands of component parts installed on each ship.”

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517 F.3d at 1174. This is not so where the shipyard contractor has

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actually manufactured a specific asbestos-containing product, and

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thus could control the quality of the product. Therefore, McIndoe

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does not require revising the court’s prior order to the extent

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that there continues to be a triable issue of fact whether

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Defendants manufactured specific products, rather than assembling a

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collection of component parts into a ship.

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IV. CONCLUSION
For the reasons set forth above, the court DENIES Defendant’s
Motion for Reconsideration.

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IT IS SO ORDERED.

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Dated: August 1, 2016
DEAN D. PREGERSON
United States District Judge

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