Larry Armstrong et al v. 3M Company et al

Filing 317

ORDER by Judge William G Young re 184 Rockwell Automation, Inc.'s Motion for Summary Judgment. This Court GRANTS Rockwell's motion for summary judgment. SEE ORDER FOR FURTHER AND COMPLETE DETAILS. (jre)

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

LARRY ARMSTRONG,
INDIVIDUALLY; CAROLYN
ARMSTRONG, INDIVIDUALLY
Plaintiffs,

Case No. 2:14-CV-OI039-WGY-AJW
ORDER GRANTING DEFENDANT ROCKWELL
AUTOMATION, INC.'s MOTION FOR
SUMMARY JUDGMENT [ECF NO. 184]

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

YOUNG, D. J.

April 9, 2015

1

ORDER
At a motion session on March 6, 2014, this Court heard
argument on Rockwell Automation, Inc.'s Motion for Summary
Judgment.

Elec. Clerk's Notes, Mar. 6, 2015, ECF No. 303.

The

matter was taken under advisement in anticipation of
supplemental briefing from the parties.

I.

INTRODUCTION
In this action, Larry Armstrong and Carolyn Armstrong bring

suit to recover for injuries inflicted upon Larry Armstrong
("Armstrong") due to his alleged exposure to asbestos stemming
from Defendant Rockwell Automation Inc.'s ("Rockwell") products.
Of the United States District Court for the District of
Massachusetts, visiting judge for pre-trial purposes by order of
Chief Judge George H. King.
See Order Chief Judge, May 1, 2014,
ECF No. 99.
1

1

Currently before this Court is Rockwell's motion for summary
judgment.

Def. Rockwell's Mot. Summ. J.

("Rockwell Mot.") , ECF

No. 184.

A.

Procedural Background

Armstrong initially filed his complaint in California state
court on January 7, 2014.

Compl. Personal Injury - Asbestos

(Negligence; Breach of Express and Implied Warranties; Strict
Liability & Loss Consortium), Ex. B, ECF No.1.

Armstrong

asserted claims based on negligence, strict liability, and
breach of warranty.

Id.

In addition, Carolyn Armstrong brought

a loss of consortium claim.

Id.

Rockwell timely removed the

case to the Central District of California on February 10, 2014,
on federal officer grounds.
No.1.

Def. Rockwell's Not. Removal, ECF

Plaintiffs filed an Amended Complaint on April 14, 2014.

Compl. Personal Injury - Asbestos

(Negligence; Breach of Express

and Implied Warranties; Strict Liability & Loss Consortium), ECF
No. 96.
Rockwell filed a motion for summary judgment, along with a
supporting memorandum, on December 22, 2014.
Mot. Summ. J.

("Rockwell Mot."), ECF No. 184.

their opposition on January 12, 2015.

Plaintiffs filed

PIs.' Mem. Points &

Auths. Opp'n Def. Rockwell's Mot. Summ. K.
Rockwell"), ECF No. 187.

Def. Rockwell's

("PIs.' Opp'n

Rockwell replied on January 27, 2015.

2

DeL Rockwell's Reply Supp. Mot. Summ.

J.

("Rockwell Reply"),

ECF No. 215.
Both parties filed supplemental briefing after the March 6,
2015 hearing on Rockwell's motion for summary judgment.
Def. Rockwell's Supp. Brief Supp. Mot. Summ.
Pls.' Supp. Opp. Rockwell's Mot. Summ.

II.

See

J., ECF No. 304;

J., ECF No. 305.

ANALYSIS
A.

Standard of Review

A court must grant summary judgment 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."
Civ. P. 56 (a) .

Fed. R.

If sufficient evidence exists such that a trier

of fact could find for the non-moving party, an issue of fact is
"genuine."

Anderson v. Liberty Lobby, 477 u.S. 242, 248

(1986).

If a fact will affect the outcome of the case, the fact is
"material."

Id.

The burden is on the moving party to demonstrate that no
genuine issue of material fact exists.
Catrett, 477 U.S.

317, 323

(1986).

Celotex Corp. v.

"If.

. a

moving party

carries its burden of production, the nonmoving party must
produce evidence to support its claim or defense.

If the

nonmoving party fails to produce enough evidence to create a
genuine issue of material fact,
for summary judgment."

the moving party wins the motion

Nissan Fire & Marine Ins. Co., Ltd. v.
3

Fritz Cos.,

Inc., 210 F.3d 1099, 1102 (9th Cir. 2000)

citation omitted)
317, 322

(internal

(citing Celotex Corp. v. Catrett, 477 U.S.

(1986)).

All justifiable inferences should be drawn in favor of the
non-movant.

Anderson, 477 U.S. at 255.

However, the court must

disregard all evidence upon which a party bears the burden of
proof, which the jury is free to reject, unless the facts are
admitted by both parties.

Reeves v. Sanderson Plumbing Prods.,

Inc., 530 U.S. 133, 151 (2000).

Further, the court may consider

only admissible evidence and must disregard conclusory or
speculative testimony.
F.3d 978, 984

Soremekun v. Thrifty Payless, Inc., 509

(9th Cir. 2007); see Orr v. Bank of Am., NT & SA,

285 F.3d 764, 774

(9th Cir. 2002).

The California Supreme Court established the "controlling
two-part test for determining whether exposure to asbestos from
a particular product was a legal cause of a plaintiff's injury
in an asbestos-induced personal injury case."

Sclafani v. Air &

Liquid Sys. Corp., No. CV 12-3013 SVW, 2014 WL 1613912, at *2
(C.D. Cal. Apr. 17, 2014)

(Wilson, J.)

(quoting Miranda v. Bomel

Const. Co., 187. Cal. App. 4th. 1326, 1338

(2010)).

The

plaintiff must first establish a threshold exposure to
defendants' asbestos-containing products.
Illinois, Inc., 16 Cal. 4th 953, 982

Rutherford v. Owens­

(1997).

The plaintiff must

further establish that exposure to defendants' asbestos­
4

containing products was a substantial factor in causing the
injury.

Id.

"Plaintiffs [bear] the burden of proof on the issue of
exposure to the defendant's product."
at 975.

Rutherford, 16 Cal. 4th

Mere speculation or possibility of exposure is

insufficient to demonstrate a triable issue of fact.

McGonnell

v. Kaiser Gypsum Co., 98 Cal. App. 4th 1098, 1105 (2002)
(rejecting testimony that plaintiff might have cut into wall
that might have contained asbestos-containing product is
insufficient evidence).

The sufficiency of evidence of exposure

depends on the factual circumstances of each case.
Perini Corp., 206 Cal. App. 4th 1222, 1237

Casey v.

(2012).

At the very least, "there must be proof that the
defendant's asbestos products or activities were present at the
plaintiff's work site."

Nelson v. Air & Liquid Sys. Corp., 926

F. Supp. 2d 1120, 1124-25 (C.D. Cal. 2013)

(quoting Smith v.

ACandS, Inc., 31 Cal. App. 4th 77, 89 (1994)).

Testimony that

plaintiff worked with defendant's asbestos-containing product
can satisfy plaintiff's burden.

See, e.g., Lineaweaver v. Plant

Insulation Co., 31 Cal. App. 4th 1409, 1419-20 (1995) (evidence
that defendant distributed asbestos-containing product to
workplace and plaintiff repeatedly worked around asbestos
insulation sufficient to avoid summary judgment); Hernandez v.
Amcord, Inc., 215 Cal. App. 4th 659,
5

673-74

(2013)

(testimony

that plaintiff used product "'a lot of times,' or 'all the
time'U is sufficient).
Plaintiff must do more than demonstrate that he was exposed
to defendant's products which, in general, contained asbestos.
Bell v. Arvin Meritor, Inc., MDL No. 875, No. 2:12-60143-ER,
2013 WL 5549540, at *1 n.1

(E.D.

Pa. Oct. 4, 2013) (applying

California law) (holding evidence that plaintiff was exposed to
defendant's products, some of which may have contained asbestos
components, insufficient to identify exposure to asbestoscontaining product) .

Plaintiff must demonstrate exposure to

defendant's products, as well as evidence that the specific
products he was exposed to contained asbestos.

See Rutherford,

16 Cal. 4th at 975.

B. Exposure Application
Armstrong testified that Allen-Bradley was one of the four
brands of motor controllers that he worked on during his time as
a Navy electrician.

Armstrong knew he was working on an Allen­

Bradley motor controller because the logo was a "stop-sign shape
with 'AB' in the middle of it.

u

Union Carbide Mot. Summ. J.,

Ex. H, Larry Armstrong Deposition ("Armstrong Dep.U)
No. 163-10.

56:6-9, ECF

Armstrong recognized the logo to mean "the brand

that produced u the product.

Id. at 54:19-20.

Defendant Rockwell is the successor to Allen-Bradley
PIs.' Opp'n. Rockwell, Ex. B,

Company and Rostone Corporation.

6

Def. Rockwell's Supplemental Responses to Pls.' Standard
Interrog.

(In re: Complex Asbestos Litigation)

4, ECF No. 187-4.

Rostone became a wholly owned subsidiary of Allen-Bradley in
1964 and merged with Allen-Bradley in 1978.

Id.

Rostone

manufactured "cold-molded" electrical components starting in the
1930s.

Pls.' Opp. Rockwell, Ex. C, Charles Germain Deposition

("Germain Dep.")

(Whitmire v. Laval)

112:10-16, ECF No. 187-5.

All cold-molded materials sold by Rostone through August 1980
contained asbestos.

Id. at 113:16-24.

From the 1960s to 1980, Allen-Bradley manufactured some
brands of motor starters and motor controllers with asbestoscontaining arc chutes sold by Rostone.
R, Stanley Ho Dep.
187-20.

P1s.' Opp. Rockwell, Ex.

(Vernon v. 3M Company) 112:3-114:15, ECF No.

Allen-Bradley motor controllers were mounted on slate

or metal plates, not in asbestos-containing Bakelite. Rockwell
Mot., Ex. C, Engineers Report Prepared by Peter F. Coste ("Coste
Report") 1-5, ECF No. 184-5; Rockwell Mot., Ex. E, McCaffery
Historical Research Report 1-26, ECF No. 184-7; Rockwell Mot.,
Ex. F,

Declaration of Stan Ho (Bell v. Borg-Warner), ECF No.

184-8.
Other motor controller manufacturers previously involved in
this action also purchased asbestos-containing components from
Rostone.

Rostone was the only known supplier of asbestos­

containing cold-molded arc chutes and shields to Cutler-Hamer
7

between 1940 and 1980.

P1s.' Opp. Rockwell, Ex. D, Fred Boness

Deposition ("Boness Dep.")

(In re: Hawaii State Asbestos Cases)

47:9-51:6, ECF No. 187-6.

Westinghouse and Square D also

incorporated Rostone's asbestos-containing materials into motor

controllers.
Dep.

See Pls.' Opp'n. Rockwell, Ex. E,

Robert Barbaglia

(Riley v. Alcoa) 103:18-104:4, 121:13-23, ECF No. 187-7;

Ex. 0, Defendant CBS Corp.'s Responses to Standard Interrog.

("CBS Resp. Interrog.")

(Fox v. ABB Inc.) 5, ECF No. 187-17.

On the issue of exposure, Rockwell first argues that
Armstrong could not have been exposed to an asbestos-containing
Allen-Bradley product because Allen-Bradley was not an
authorized provider of asbestos-containing products to the Navy.
Rockwell Mot. 2.

The parties have introduced disputing expert

testimony as to whether a product not on the Navy's "Qualified
Products List" ("QPL") could have been on a Navy ship.
Rockwell's expert states that strict conformance to Navy and
Military Specifications was mandatory for ship repair parts.
Coste Report 4.

Plaintiff's expert, on the other hand, stated

that the QPL was a list of pre-qualified products, but other
products could be used and the QPL was more of a guideline than
a rule.

Pls.' Opp'n. Rockwell, Ex. U, Rebuttal Expert Report of

Francis Burger 17-22, ECF No. 187-23.
With all inferences made in favor of the Plaintiffs, there
is a question of material fact as to whether Armstrong was
8

exposed to a Rockwell product.

There is evidence in the record

that some Allen-Bradley motor controllers included asbestos­
containing materials such as arc chutes and shields.
Dep. 112:3-114:15.

See Ho

There is no evidence in the record, however,

that the Allen-Bradley motor controllers Plaintiff inspected,
repaired, or replaced contained asbestos-containing material.
Further, even though there is evidence that other motor
controller manufacturers purchased asbestos-containing
components from Rostone,

Plaintiff presents no evidence that the

motor controllers he worked on contained or were likely to
contain asbestos-containing arc chutes or shields manufactured
by Rostone.

See Boness Dep. 47:9-51:6; Barbaglia Dep. 103:18­

104:4, 121:13-23; CBS Resp.

Interrog. 5.

Armstrong testified to inhaling dust when he "blew out" the
motor controller and electrical boxes, but only specifically
testified to seeing Bakelite "turn to dust" and fall into the
box.

See Armstrong Dep. 87:20-88:4, 92:16-22, 122:1-3.

He did

not testify to other components, such as arc chutes and shields,
creating dust.

There is plentiful evidence in the record that

Allen-Bradley controllers did not use Bakelite backboards after
1937.

See Coste Report 1-5, ECF No. 184-5; Rockwell Motion, Ex.

E McCaffery Historical Research Report 1-26, ECF No. 184-7;
Rockwell Mot., Ex. F Declaration of Stan Ho (Bell v. Borg­
Warner), ECF 184-8.

Plaintiffs' only rebuttal is that Armstrong
9

recalls all brands of motor controllers, including Allen-Bradley
motor controllers, having Bakelite backboard.
Dep. 56:23-57:3.

See Armstrong

If a third-party affixed or replaced parts of

an Allen-Bradley motor controller with Bakelite sheets or
backboards, Defendant Rockwell Automotive would not be liable
for these third-party products.

See O'Neil v. Crane Co., 53

Cal.4th 335, 347-66 (2012).
Accordingly, since - taking all inferences in favor of
Armstrong - there is no genuine issue of material fact as to
whether Plaintiff was exposed to asbestos-containing material
manufactured by Rockwell Automotive, this Court GRANTS summary
judgment on this ground.
III. CONCLUSION

For the foregoing reasons, this Court GRANTS Rockwell's
motion for summary judgment.
SO ORDERED.

WILLIAM G.
DISTRICT JU

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