Johansen v. Air & Liquid Systems Corporation et al

Filing 184

REPORT AND RECOMMENDATIONS- re #145 MOTION for Summary Judgment. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 2/8/2019. Signed by Judge Sherry R. Fallon on 1/25/2019. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

WILLIAM J. JOHANSEN
Plaintiff,

v.
AIR & LIQUID SYSTEMS
CORPORATION et al
Defendants.

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Civil Action No. 17-452-MN-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION

Presently before the court in this asbestos-related personal injury action is a motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56 filed by Ford Motor
Company ("Ford" or "defendant"). (D.I. 145) For the following reasons, I recommend
GRANTING defendant's motion for summary judgment. 1

II.

BACKGROUND

A. Procedural History
On February 15, 2017, William J. Johansen ("Mr. Johansen" or "plaintiff') originally
filed this personal injury action against multiple defendants in the Superior Court of Delaware,
asserting claims arising from his alleged harmful exposure to asbestos. (D .I. 1, Ex. 1) On April
20, 2017, the case was removed to this court by defendant Crane Co. pursuant to 28 U.S.C. §§

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Ford's opening brief in support of its motion for summary judgment is D .I. 146, plaintiffs
answering brief is D.I. 172, and Ford's reply brief is D.I. 179.

1442(a)(l), the federal officer removal statute, 2 and 1446. (D.I. 1) On August 1, 2018, Ford
filed its pending motion for summary judgment. (D.I. 145)

B. Facts
Mr. Johansen alleges that he developed mesothelioma as a result of exposure to asbestoscontaining materials during his service as a machinist mate in the United States Navy, his
civilian work as a pipefitter, and his work on cars. (D.I. 1, Ex. 1 at ,r,r 3-6) Mr. Johansen
contends that he was injured due to exposure to asbestos-containing products that Ford
manufactured, sold, distributed, licensed, or installed. (Id. at ,r,r 4-14) Accordingly, plaintiff
asserts claims for negligence, willful and wanton conduct, and strict product liability. (Id. at ,r,r
15-31)
Mr. Johansen was deposed on March 14 and 15, 2017. (D.I. 135) He was deposed again
on July 11, 2018. (Id.) Plaintiff did not produce any other fact or product identification
witnesses for deposition.
Mr. Johansen purchased a used 1966 F-150 Ford pickup in the late 1960s and owned it
for one year. (D.I. 172, Ex. A at 136:3-12; D.I. 146, Ex. 3 at 230:21-231: 1,231: 14-22) He
cannot recall how many miles the vehicle had at the time of purchase, and does not know its
maintenance history. (D.I. 146, Ex. 3 at 231:8-10, 232:4-7) He performed one brake job on this
vehicle. (DJ. 172, Ex. A at 136: 13-16) He then purchased a 1963 F-250 Ford pickup in
approximately 1970 that he owned for sixteen years. (Id. at 136:20-137:1; Ex.Bat 234:23235:3) He does not recall how many miles the vehicle had at the time of purchase, and does not

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The federal officer removal statute permits removal of a state court action to federal court
when, inter alia, such action is brought against "[t]he United States or an agency thereof or any
officer (or any person acting under that officer) of the United States or of any agency thereof,
sued in an official or individual capacity for any act under color of such office." 28 U.S.C. §
1442(a)(l).
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know its maintenance history. (Id, Ex.Bat 235:4-6, 236:25-237:3) He estimated that he
performed four brake jobs on this vehicle. (Id, Ex. A at 13 7 :2-13)
Mr. Johansen described how, when changing brakes on his Ford cars, he would remove
the wheel, hub, and springs. (Id at 137:24-138:3) He would then slide off the old brake, clean
the area, and sand the new brake before installing the replacement brake. (Id at 13 8 :4-13,
138:23-139:2) Mr. Johansen testified that he believes he was exposed to asbestos by sanding the
replacement brakes and inhaling the resulting dust. (Id at 138:9-22, 139:14-17) He also noted
that he was able to identify whether he was removing and installing Ford brakes because the
brakes were labelled with the name "Ford" or "FOMC." (Id, Ex.Bat 232:12-21, 234:2-7,
237: I 0-23, 240:2-9) Mr. Johansen could not remember the packaging for the new brakes. (Id. at
23 3: 16-19) He could not identify whether the old brakes he removed were installed as new
brakes or remanufactured brakes. (Id. at 237:24-238:2)
Mr. Johansen was diagnosed with mesothelioma in December 2016. (Id., Ex. A at 145:811)

III.

LEGAL ST AND ARD
A. Summary Judgment

"The court shall 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 oflaw." Fed.

R. Civ. P. 56(a). Material facts are those that could affect the outcome of the proceeding, and "a
dispute about a material fact is 'genuine' if the evidence is sufficient to permit a reasonable jury
to return a verdict for the nonmoving party." Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir.
2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986); Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986)).

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The moving party bears the initial burden of proving the absence of a genuinely disputed
material fact. See Celotex, 477 U.S. at 321. The burden then shifts to the non-movant to
demonstrate the existence of a genuine issue for trial, and the court must view the evidence in the
light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458,
460-61 (3d Cir. 1989); Scott v. Harris, 550 U.S. 372, 380 (2007). An assertion of whether or not
a fact is genuinely disputed must be supported either by citing to "particular parts of materials in
the record, including depositions, documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials," or by "showing that the materials cited do not
establish the absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l)(A) & (B). To defeat a motion
for summary judgment, the nonmoving party must "do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. The "mere existence
of some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment;" rather, there must be enough evidence to enable a
jury to reasonably find for the non-moving party on the issue. See Anderson, 477 U.S. at 247-49.
"If the evidence is merely colorable, or is not significantly probative, summary judgment may be

granted." Id. at 249-50 (internal citations omitted); see also Celotex, 477 U.S. at 322. If the nonmovant fails to make a sufficient showing on an essential element of its case on which it bears
the burden of proof, then the movant is entitled to judgment as a matter oflaw. See Celotex, 477
U.S. at 322.
If a party fails to address another party's assertion of fact, the court may consider the fact

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undisputed, or grant summary judgment if the facts show that the movant is entitled to it. Fed. R.
Civ. P. 56(e)(2)-(3). 3

B. Washington Law
The parties do not dispute that Washington law applies to the instant motion. (D.I. 105)
Under Washington law, a plaintiff asserting a claim for asbestos-related injuries must "establish
a reasonable connection between the injury, the product causing the injury, and the manufacturer
of that product. In order to have a cause of action, the plaintiff must identify the particular
manufacturer of the product that caused the injury." Lockwood v. AC & S, Inc., 744 P.2d 605,
612 (Wash. 1987) (citing Martin v. Abbott Labs., 102 Wash. 2d 581,590 (1984)). Washington
law requires plaintiffs to establish that exposure to asbestos from a particular product was a
"substantial factor" in causing the plaintiff's injuries. See Barabin v. Albany Intern. Corp., 2009
WL 2578967, at *5-6 (W.D. Wash. Aug. 18, 2009); Barabin v. AstenJohnson, Inc., 2010 WL
11613472, at *2-3 (W.D. Wash. Dec. 10, 2010). In identifying manufacturers, plaintiffs may

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This section was added to Rule 56 to overcome cases in the Third Circuit that impaired the
utility of the summary judgment device:
A typical case is as follows: A party supports his motion for summary judgment
by affidavits or other evidentiary matter sufficient to show that there is no genuine
issue as to a material fact. The adverse party, in opposing the motion, does not
produce any evidentiary matter, or produces some but not enough to establish that
there is a genuine issue for trial. Instead, the adverse party rests on averments of
his pleadings which on their face present an issue.

Fed. R. Civ. P. 56(e) advisory committee's note. Before the amendment, the Third Circuit would
have denied summary judgment if the averments were "well-pleaded," and not conclusory. Id.
However, the Advisory Committee noted that summary judgment is meant to pierce the
pleadings and to assess proof to see whether there is a genuine need for trial. Id. Accordingly,
the pre-amendment Third Circuit precedent was incompatible with the basic purpose of the rule.
Id. The amendment recognizes that, "despite the best efforts of counsel to make his pleadings
accurate, they may be overwhelmingly contradicted by the proof available to his adversary." Id.
The amendment, however, was not designed to affect the ordinary standard applicable to
summary judgment. Id.

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rely on witness testimony, but the burden remains on the plaintiff to make this identification and
establish a causal connection between the injury, product, and manufacturer of that product.
Lockwood, 744 P.2d at 612-13. In determining whether there is evidence that defendant's
conduct was a substantial factor in causing plaintiff's injury, courts consider:
the evidence of plaintiff's proximity to the asbestos product when the exposure
occurred and the expanse of the work site where asbestos fibers were released.
They should also take into account the extent of time that the plaintiff was
exposed to the product. ... Courts should also consider the types of asbestos
products to which the plaintiff was exposed and the ways in which such products
were handled and used . . . . In addition, trial courts must consider the evidence
presented as to medical causation of the plaintiff's particular disease.
Id. at 613. See also Estate <~fBrandes v. Brand Insulations, Inc., 2017 WL 325702, at * 5 (Wash.
Ct. App. Jan. 23, 2017); Morgan v. Aurora Pump Co., 248 P.3d 1052, 1057 (Wash. 2011).

IV.

DISCUSSION
A. Negligence Claim

Ford argues that summary judgment should be granted because there is no evidence that
plaintiff worked with or around an original Ford asbestos-containing brake or replacement brake.
(D.I. 146 at 5) To bolster this argument, Ford asserts that plaintiff was unable to remember the
packaging ofreplacement brakes, and that he did not purchase replacement parts from a Ford
dealership. (Id.) Plaintiff argues, however, that he specifically identified that in every instance
ofremoving or installing brakes on his Ford vehicles, he encountered products labelled with the
name "Ford" or "FOMC." (D.I. 172 at 11)
Mr. Johansen owned two Ford vehicles and performed five brake removals and
installations, in the aggregate, over the course of seventeen years of maintenance on these
vehicles. (D.I. 172, Ex. A at 136:13-16, 137:2-13) Viewing the facts in a light favorable to the
plaintiff, brakes identified by their label of "Ford" or "FOMC" were removed and installed on

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plaintiffs Ford vehicles, establishing a sufficient identification of Ford's products. (Id., Ex.Bat
232:12-21, 234:2-7, 237:10-23, 240:2-9) Additionally, plaintiff presented evidence from the
record to support his contention that the factfinder could reasonably determine that any Ford
brakes purchased in the 1960s or 1970s would have contained asbestos. (Id., Ex. C; Ex. D)
Plaintiff testified that in changing the brakes on his vehicles, he routinely sanded the replacement
brakes before installing them and inhaled the resulting dust. (Id., Ex. A at 138:9-22)
Ford claims that Mr. Johansen did not know whether the brakes he removed were original
or remanufactured brakes. (D.I. 146 at 5) However, Mr. Johansen's testimony is that the brakes
he removed had Ford's label. (Id., Ex. 3 at 232:12-21) Ford further asserts that Mr. Johansen
could not recall where he purchased the replacement brakes, and therefore there is no evidence
that he worked with a Ford asbestos-containing replacement brake. (D.I. 146 at 5) Although Mr.
Johansen could not recall where he purchased replacement brakes, he testified that he replaced
his brakes with the same product as what he removed, and knew this was the case because both
the removed and installed brakes were labelled with the name "Ford" or "FOMC." (D.I. 172,
Ex. A at 141: 14-21; Ex.Bat 233:7-15) Plaintiffs "need not offer a detailed recollection of facts
surrounding the exposure to the asbestos-containing product." Jack v. Borg-Warner Morse Tee,
LLC, 2018 WL 4409800, at *15 (W.D. Wash. Sept. 17, 2018) (quoting Morgan v. Aurora Pump

Co., 248 P.3d 1052, 1056 (Wash. Ct. App. 2011)). Jack involved an automobile mechanic's
claim of alleged asbestos exposure from Ford brake products. Id. The plaintiff in Jack stated
that he worked with Ford brakes, grinded them when working on his cars, and could not
remember whether he purchased these brakes from a Ford dealership. Id. However, unlike the
plaintiff in Jack, Mr. Johansen was not regularly exposed to brakes over three decades of
automotive work. Id.

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Ford argues that even if it assumed that Mr. Johansen worked with asbestos-containing
Ford brakes, his exposure is de minimis and should not defeat summary judgment. (D.I. 146 at
6) Ford has cited and included a transcript and three orders from the Superior Court of
Washington, granting defendants' motions for summary judgment where exposure was de
minimis. 4 (D.I. 179 at 5-6; Ex. 4; Ex. 5; Ex. 6; Ex. 7) The court is informed by the persuasive
authority of the Delaware Superior Court in In re Asbestos Litig., 2011 WL 6058302 (Del. Super.
Ct. Nov. 16, 2011) ("Gordon") and In re: Asbestos Litig., 2017 WL 237617, at *2 (Del. Super.
Ct. Jan. 17, 2017) ("Hastings"). Plaintiffs must "show 'some evidence' of both 'daily and
continuous proximity' to defendant's product for more than a de minimis period of time."
Hastings, 2017 WL 237617, at *2 (citing Collins v. Ashland, Inc., 2009 WL 81297 (Del. Super.
Ct. Jan. 6, 2009)). The court in Gordon applied a de minimis standard to a plaintiff who
interacted with defendant's product approximately fifty times for one hour each over forty-seven
years. Gordon, 2011 WL 6058302, at *1-2. The court found there was insufficient evidence of
frequent or regular exposure to asbestos, summarizing that "[o]ver the course of a lifetime, this
averages out to a little over an hour per year that Gordon spent replacing automotive gaskets."
Id. at *3. Mr. Johansen's exposure similarly does not exceed a de minimis standard. Mr.
Johansen claimed exposure to five brake jobs over the course of seventeen years of maintenance
on his vehicles. (D.I. 172, Ex. A at 136:13-16, 137:2-13) Such exposure does not meet the
substantial factor causation standard, and the court recommends granting Ford's motion for
summary judgment with respect to plaintiffs negligence claim.

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The Superior Court of Washington transcript and orders do not include a factual summary
quantifying the amount of exposure deemed de minimis by the court.
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B. Failure to Warn Claim

Ford moves for summary judgment on the basis that it did not have a duty to warn of
asbestos hazards associated with the replacement parts manufactured by third parties. Plaintiff
has failed to provide any argument that would raise a dispute of fact regarding Ford's alleged
negligence for failure to warn of the alleged hazards associated with replacement parts
manufactured by third parties. (See D.I. 172) The court in Braaten v. Saberhagen Holdings, 198
P.3d 493 (Wash. 2008) recognized the general rule that "a manufacturer does not have an
obligation to warn of the dangers of another manufacturer's product." Braaten, 198 P .3d at 501.
Therefore, the court recommends granting Ford's motion for summary judgment with regard to
its alleged negligence for failure to warn of asbestos hazards for replacement parts it did not
manufacture.

C. Punitive Damages Claim
Under Washington law, punitive damages are not awarded unless expressly authorized by
the legislature. See Barr v. lnterbay Citizens Banko/Tampa, Fla., 635 P.2d 441, 443-44 (Wash.
1981) (citing Maki v. Aluminum Bldg. Prods., 436 P.2d 186 (Wash. 1968); Spokane Truck &

Dray Co. v. Hoefer, 25 P. 1072 (Wash. 1891)); Randles v. Platypus Marine, Inc., 2014 WL
3925406, at *2 (W.D. Wash. Aug. 12, 2014). Plaintiff has failed to provide any argument or
citation to authority in opposition to Ford's motion to dismiss punitive damages as a matter of
law. (See D.I. 172) Consequently, the court recommends granting defendant's motion for
summary judgment with regard to plaintiffs punitive damages claim.

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V.

CONCLUSION

For the foregoing reasons, the court recommends granting-in-part and denying-in-part
defendant's motion for summary judgment. (D.I. 145)
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(1 ), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b )(2). The objection and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.l
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.
Dated: January25_, 2019

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