Cabasug et al v. Crane Company et al
ORDER ADDRESSING VARIOUS MOTIONS FOR SUMMARY JUDGMENT RAISING ISSUES OF CAUSATION AND THE DUTY TO WARN (DOC. NOS. 674, 676, 678, 683, AND 690) re 674 , 676 , 678 , 683 , 690 - Signed by JUDGE J. MICHAEL SEABRIGHT on 11/26/13. &quo t;Based on the above, the court: (1) DENIES Defendant Cleaver-Brooks, Inc.'s Amended Motion for Summary Judgment, Doc. No. 674 ; (2) GRANTS Defendant Ametek Inc.'s Motion for Summary Judgment, Doc. No. 676 ; (3) GRANTS in part and DENIES in part Defendant Aurora Pump Company's Motion for Summary Judgment, Doc. No. 678 ; (4) DENIES Plaintiffs' Motion for Summary Adjudication on the Duty to Warn Under Maritime Law, Doc. No. 683 ; and (5) GRANTS in part and DENIES in part Crane Company's Motion for Summary Judgment, Doc. No. 690 ." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
ROBERT A. CABASUG and JOYCE C. )
CRANE COMPANY, et al.,
CIVIL NO. 12-00313 JMS/BMK
ORDER ADDRESSING VARIOUS
MOTIONS FOR SUMMARY
JUDGMENT RAISING ISSUES OF
CAUSATION AND THE DUTY TO
WARN (DOC. NOS. 674, 676, 678,
683, AND 690)
ORDER ADDRESSING VARIOUS MOTIONS FOR SUMMARY
JUDGMENT RAISING ISSUES OF CAUSATION AND THE DUTY TO
WARN (DOC. NOS. 674, 676, 678, 683, AND 690)
On June 1, 2012, Plaintiffs Robert and Joyce Cabasug (“Plaintiffs”)
filed this action asserting claims for negligence, strict liability, breach of warranty,
loss of consortium, and punitive damages based on a failure to warn theory against
twenty-five Defendants that manufactured, sold and/or supplied various products
containing asbestos to the United States Navy. As alleged in the Third Amended
Complaint (“TAC”), Robert Cabasug (“Cabasug”) was exposed to asbestos
contained in Defendants’ products while working as a pipefitter and nuclear
engineer at the Pearl Harbor Naval Shipyard (“PHNS”) from 1973 through 2006,
causing him to develop mesothelioma and other asbestos-related diseases.
Currently before the court are a number of motions raising interrelated
issues regarding causation, including (1) what evidence Plaintiffs must present to
raise a genuine issue of material fact that each of Defendant’s products was a
substantial factor in causing Cabasug’s injuries; and (2) whether Defendants may
be held liable for asbestos containing replacement parts which they did not
themselves place into the stream of commerce.
The court previously determined that maritime law applies to this
dispute. See Cabasug v. Crane Co., --- F. Supp. 2d ----, 2013 WL 3855548 (D.
Haw. July 25, 2013), Doc. No. 657. Applying maritime law, the court joins those
courts that have already addressed these issues and finds that (1) on causation,
Cabasug must establish, for each Defendant, a substantial exposure for a
substantial period of time to a Defendant’s product; and (2) on the duty to warn, a
Defendant has no duty to warn regarding asbestos-containing replacement parts
that it did not manufacture and/or distribute.
Cabasug worked at PHNS from 1973 through 2006, and held
positions as a pipefitter; pipefitter limited; pipefitter journeyman; nuclear
inspector, Code 139; General Engineer, Code 365; and Test Engineer and Risk
Control. Plaintiffs asserts that he was exposed to asbestos up until 1986 when he
was promoted to an office job. See Cabasug, 2013 WL 3855548, at *1.
Prior to this promotion, Cabasug asserts that he was exposed to
asbestos within PHNS working on various ships and submarines under repair and
inside Building No. 4 (Shop 56). Id. Cabasug asserts that he spent seventy-five
percent of his time on ships in dry dock, and explains he was “assigned jobs on
these ships that included the repair, fabrication, reinstallation, modification,
alteration, and testing of components on the equipment, machinery, and valves.”
See, e.g., Doc. No. 677-2, Ametek Ex. 2 at 18. Cabasug recalls working “on a
daily basis” with and around a panoply of equipment, machinery, and valves, and
recalls seeing the names of Defendants on such products. Id. at 18-19. Cabasug
generally explains his work as follows:
When we were doing repair and fabricating, we removed
a great deal of equipment that required us to remove and
replace the exterior insulation, as well as asbestos gaskets
and packing. We removed piping that was integral to
turbines, pumps and valves. Most of the piping had
insulation on it. As part of my job, I also helped the
machinists of Shop 38 by removing interferences so that
equipment could be removed or worked on. I worked
throughout the ships and submarines. On the surface
ships, I mainly worked in the fire rooms and boiler
rooms. There was little to no ventilation and no exhaust.
Whatever the ship or submarine that I worked on, we
worked in very tight spaces with minimal ventilation.
Id. at 19. In total, Cabasug has identified thirty-eight ships and submarines that he
worked on at PHNS.1 See Doc. No. 608-2, Ex. A.
On January 23, 2012, Cabasug was diagnosed with mesothelioma.
Doc. No. 406-6, Pls.’ Ex. D. On June 1, 2012, Plaintiffs filed this action alleging
claims for negligence, strict liability, breach of warranty, loss of consortium, and
punitive damages against Defendants based on their design, manufacture, sale,
and/or supply of various products containing asbestos to the United States Navy.
The TAC asserts that Defendants:
sold and supplied certain equipment to the United States
Navy and [PHNS] and other shipyards, which contained
asbestos gaskets and/or packing and asbestos packing and
gaskets were sold by said defendants as spare
replacement parts with the sale of said equipment and
which required asbestos insulation, or required other
asbestos containing parts to function properly, and
Defendants also sold replacement aftermarket component
parts to the Navy for use with their equipment, including
asbestos gaskets and packing which were identical to
their commercial counterparts.
Doc. No. 661, TAC ¶ 4. The TAC further asserts:
Defendants and each of them, negligently designed,
manufactured, selected materials, assembled, inspected,
tested, maintained for sale, marketed, distributed, leased,
sold, recommended and delivered the hereinabove
described certain asbestos products in such manner so as
to cause said asbestos products to be in a defective and
unsafe condition, and unfit for use in the way and manner
In this background section, the court outlines only the general facts to provide context
to the issues raised. In its analysis, the court outlines specific facts as to each Defendant.
such products are customarily treated, used and
employed; and, that said Defendants, and each of them,
negligently failed to discover said defects and/or failed to
warn and/or adequately test and give adequate warning of
known or knowable dangers of asbestos products to users
of said products of said defects and dangers and/or failed
to find or use a safe substitute insulating material.
Id. ¶ 7.
On July 25, 2013, the court determined that maritime law, not Hawaii
substantive law, applies to this dispute. Cabasug, 2013 WL 3855548.
From August 28-30, 2013, Cleaver Brooks, Inc. (“Cleaver Brooks”),
Ametek, Inc. (“Ametek”), Aurora Pump Company (“Aurora”), and Crane
Company (“Crane”) filed Motions for Summary Judgment arguing that they are
entitled to summary judgment on the issue of causation (whether based on a
substantial factor, replacement part, and/or duty to warn theory).2 See Doc. Nos.
674, 676, 678, 690. On August 30, 2013, Plaintiffs filed their Motion for
Summary Adjudication on the Duty to Warn Under Maritime Law. Doc. No. 683.
On October 4, 2013, Plaintiffs filed an Omnibus Opposition regarding product
The William Powell Company (“William Powell”) filed a similar Motion for Summary
Judgment, Doc. No. 672, which it withdrew. Doc. No. 709. The court also initially set the
briefing schedule and hearing date on Viad Corp.’s (“Viad”) Motion for Summary Judgment,
Doc. No. 694, on this same schedule. Given that Viad raised additional dispositive issues, the
court will address its Motion for Summary Judgment (as well as the related Objections to
evidence, Doc. Nos. 741-46 and Plaintiffs’ Motion to Strike Objections, Doc. No. 753) in the
second group of Motions set for hearing on December 23, 2013. Plaintiffs and Viad should
come to the December 23, 2013 hearing prepared to argue the issue of successor liability.
exposure and causation, Doc. No. 707, and filed Oppositions to specific Motions
on October 10-15, 2013. Doc. Nos. 710, 712, 717, 720. On October 15, 2013,
Defendants Air & Liquid Systems Corp., Grissom Russell Company, Crane,
Cleaver Brooks, Ametek, and Aurora filed Oppositions to Plaintiffs’ Motion on the
Duty to Warn. Doc. Nos. 716, 719, 721, 726, 727, 729. Replies were filed on
October 22, 2013. Doc. Nos. 733-38, 741-47. A hearing was held on November
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward
with specific facts showing that there is a genuine issue for trial.” Matsushita
Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor” (citations omitted)).
Plaintiffs assert negligence and strict liability claims based on
Defendants’ failure to warn regarding the dangers of asbestos. Under either theory
of liability, basic maritime tort law requires that Plaintiffs “show that the
defendant’s action was a ‘substantial factor in bringing about [the] harm.’”
Sementilli v. Trinidad Corp., 155 F.3d 1130, 1135 (9th Cir. 1998) (quoting
Benefiel v. Exxon Corp., 959 F.2d 805, 807 (9th Cir. 1992)); see also Conner v.
Alfa Laval, 842 F. Supp. 2d 791, 797 (E.D. Pa. 2012) (discussing causation under
maritime law for both negligence and strict liability claims); Restatement (Second)
of Torts § 431 (1965) (providing that actor’s negligent conduct is the legal cause of
harm, in part, when “his conduct is a substantial factor in bringing about the
harm”). The parties raise several arguments regarding causation, including
(1) what evidence Plaintiffs must present to raise a genuine issue of material fact
that each of Defendant’s products was a substantial factor in causing Cabasug’s
injuries; and (2) whether Defendants may be held liable for asbestos containing
replacement parts which they did not themselves place into the stream of
commerce. The court first determines the proper legal framework for these issues
under maritime law, and then addresses the parties’ specific arguments as to each
Legal Principles Under Maritime Law
As many courts have recognized, asbestos actions present unique
issues for purposes of causation -- asbestos diseases may take decades for the
exposure to cause diagnosable effects; there are usually numerous possible sources
of asbestos found in the plaintiff’s workplace (which may encompass a large area
such as a shipyard); and due to the passage of time, a plaintiff may be unable to
recall with specificity the asbestos-containing products to which he was exposed.
See, e.g., Jackson v. Anchor Packing Co., 994 F.2d 1295, 1301 (8th Cir. 1993)
(“The courts have recognized that, given the nature of asbestos exposure in large
industrial settings and the long latency periods for asbestos-related diseases,
plaintiffs (especially bystanders) face a formidable task in showing, after many
intervening years, exposure to a particular defendant’s asbestos product and that
exposure’s causation of the plaintiff’s injuries.”). As a result, a plaintiff may not
be able to present for each defendant direct evidence establishing that a plaintiff
has been exposed to a particular product containing asbestos and that such product
was a substantial factor in causing injury.
In recognition of these issues, courts have developed various tests in
determining whether a plaintiff’s circumstantial evidence raises a genuine issue of
material fact that a particular defendant’s product was a substantial factor in
causing his injuries. The Ninth Circuit has not addressed causation under maritime
law in the asbestos context, and the parties dispute what evidence is necessary to
raise a genuine issue that each of Defendant’s products was a substantial factor in
causing Cabasug’s injuries. The court therefore considers the various tests adopted
by other courts to discern what test best comports with the Ninth Circuit’s view
under maritime law.
Defendants urge this court to follow Lindstrom v. A-C Product
Liability Trust, 424 F.3d 488 (6th Cir. 2005), the only circuit court to consider
causation for asbestos exposure under maritime law. In Lindstrom, a merchant
seaman who worked in the engine department aboard several vessels brought
products liability claims against various manufacturers for compensation for
mesothelioma allegedly caused by the many pieces of equipment containing
asbestos to which he was exposed. Lindstrom explained that a plaintiff must show,
“for each defendant, that (1) he was exposed to the defendant’s product, and (2) the
product was a substantial factor in causing the injury he suffered.” Id. at 492
(citing Stark v. Armstrong World Indus., 21 Fed. Appx. 371, 375 (6th Cir. 2001)
(unpublished)). Lindstrom explains:
[W]e have permitted evidence of substantial exposure for
a substantial period of time to provide a basis for the
inference that the product was a substantial factor in
causing the injury. [Stark, 21 Fed. Appx.] at 376.
“Minimal exposure” to a defendant’s product is
insufficient. Id. Likewise, a mere showing that
defendant’s product was present somewhere at plaintiff’s
place of work is insufficient. Id. Rather, where a
plaintiff relies on proof of exposure to establish that a
product was a substantial factor in causing injury, the
plaintiff must show “‘a high enough level of exposure
that an inference that the asbestos was a substantial factor
in the injury is more than conjectural.’” Id. (quoting
Harbour v. Armstrong World Indus., Inc., 1991 WL
65201, at *4 (6th Cir. Apr. 25, 1991)). In other words,
proof of substantial exposure is required for a finding
that a product was a substantial factor in causing injury.
Applying this “substantial exposure” framework, Lindstrom granted
summary judgment to Garlock Sealing Technologies (“Garlock”), where
(1) Garlock manufactured both asbestos-containing and non-asbestos containing
products; (2) the plaintiff failed to identify Garlock as a manufacturer of sheet
packing material aboard the vessels and did not identify any exposure to asbestos
in connection with Garlock’s products; and (2) other witness testimony established
that some Garlock sheet packing contained asbestos, yet the witness could not
affirm whether all of the Garlock sheet packing on the vessel on which the plaintiff
worked contained asbestos. Id. at 497. Lindstrom determined that summary
judgment was appropriate because the plaintiff “did not specifically testify
regarding Garlock at all, and his other two deponents admitted that they could not
tell whether any sheet packing material handled by [the plaintiff] contained
asbestos.” Id. at 498. Thus, there was no evidence supporting the reasonable
inference that the plaintiff had substantial exposure to Garlock’s asbestoscontaining products.
Since Lindstrom, the MDL asbestos action has adopted and applied
this standard in asbestos cases applying maritime law. See, e.g., Hall v. A.W.
Chesterton Co., 2013 WL 2477160 (E.D. Pa. May 7, 2013); Bolton v. Air & Liquid
Sys. Corp., 2013 WL 2477169 (E.D. Pa. Apr. 30, 2013); Pace v. 3M Co., 2013 WL
1890341 (E.D. Pa. Apr. 22, 2013). Lindstrom also appears in line with many state
court decisions, requiring that there must be evidence of exposure to a specific
product on a regular basis over some extended period of time in proximity to where
the plaintiff actually worked (i.e., the “regularity, frequency, and proximity” test).3
A review of Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156
See, e.g., Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 716 (4th Cir. 1995)
(North Carolina law); Jackson v. Anchor Packing Co., 994 F.2d 1295, 1303 (8th Cir. 1993)
(Arkansas law); Slaughter v. S. Talc Co., 949 F.2d 167, 171 (5th Cir. 1991) (Texas law);
Robertson v. Allied Signal, Inc., 914 F.2d 360, 367 (3d Cir. 1990) (Pennsylvania law); Menne v.
Celotex Corp., 861 F.2d 1453, 1464 (10th Cir. 1988) (Nebraska law); Lohrmann v. Pittsburgh
Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986) (Maryland law); Phillips 66 Co. v. Lofton,
94 So.3d 1051, 1063 (Miss. 2012) (Mississippi law); James v. Bessemer Processing Co., 714
A.2d 898, 911 (N.J. 1998) (New Jersey law); Henderson v. Allied Signal, Inc., 644 S.E.2d 724,
727 (S.C. 2007) (South Carolina law); see also David E. Bernstein, Getting to Causation in
Toxic Tort Cases, 74 Brook. L. Rev. 51, 55-56 n.16 (2008) (noting that this standard has been
adopted by statute in Florida, Georgia, and Ohio).
(4th Cir. 1986), which is widely cited for the “regularity, frequency, and
proximity” test, shows certain parallels with Lindstrom. Lohrmann explains that
its test prevents a plaintiff from defeating summary judgment merely by
“present[ing] any evidence that a company’s asbestos-containing product was at
the workplace while the plaintiff was at the workplace,” which would be contrary
to the requirement that a plaintiff establish that defendant’s product was a
substantial factor in bringing about the harm. Id. at 1162. Rather, requiring
evidence of the frequency, regularity, and proximity of exposure to a defendant’s
asbestos-containing product reflects the substantial factor causation requirement by
mandating that a plaintiff “prove more than a casual or minimum contact with the
product.” Id. Lohrmann reasoned that this rule is reasonable in light of the
substantial factor causation requirement, combined with the “unusual nature of the
asbestosis disease process, which can take years of exposure to produce the
disease.” Id. Also, given the size of the workplace at issue (a shipyard), “the mere
proof that the plaintiff and certain asbestos products are at the shipyard at the same
time, without more, does not prove exposure to that product.” Id.
Despite the numerous courts that have adopted the frequency,
regularity, and proximity test, cases do not apply this test by rote and its
application depends on the particular facts presented. Indeed, Lohrmann explained
that this test was “in keeping with the opinion of the plaintiff’s medical expert who
testified that even thirty days exposure, more or less, was insignificant as a causal
factor in producing the plaintiff’s disease.” Id. at 1163. And although there was
testimony that some of defendants’ products were used in the shipyard, there was
no testimony establishing that the plaintiff was actually exposed to them. Id. at
1163-64. In comparison, Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992)
(applying Illinois law), acknowledged that the frequency and regularity prongs
“become less cumbersome when dealing with cases involving diseases, like
mesothelioma, which can develop after only minor exposures to asbestos fibers.”
Id. at 420 (citations omitted); see also Jackson v. Anchor Packing Co., 994 F.2d
1295, 1303 (8th Cir. 1993) (applying Arkansas law and acknowledging that a
“plaintiff’s evidence of ‘fiber drift’ may be used to widen the area of probable
exposure surrounding the plaintiff’s work station,” effectively widening the
proximity prong of the analysis (citing Robertson v. Allied Signal, Inc., 914 F.2d
360, 367 (3d Cir. 1990))). Finally, Slaughter v. Southern Talc Co., 949 F.2d 167
(5th Cir. 1991) (applying Texas law), summarized the test as requiring a plaintiff
simply to “prove that, more probably than not, he actually breathed asbestos fibers
originating in defendants’ products,” and determined that the plaintiff had
established a genuine issue of fact where he asserted that defendant’s products had
been used “all over the plant” yet could not specifically show their use near the
plaintiff’s work area. Id. at 171-72.
On the other side of the spectrum, Plaintiffs argue that the Ninth
Circuit would adopt the test outlined in Lockwood v. AC&S, Inc., 744 P.2d 605
(Wash. 1987) (en banc), which held that the plaintiff established his prima facie
case by presenting evidence that the defendant’s asbestos-containing products were
in the same workplace, that asbestos dust can remain in the air and drift with air
currents for a long period of time, and that exposure to asbestos has a cumulative
effect in contributing to asbestosis. Lockwood explained that even though the
plaintiff did not work directly with the defendant’s product, “it is reasonable to
infer that since the product was used on that ship when [the plaintiff] worked there,
[the plaintiff] was exposed to it.” Id. at 613. Combined “with the expert testimony
that all exposure to asbestos has a cumulative effect in contributing to the
contraction of asbestosis,” Lockwood held that it would be reasonable for a jury to
infer that the plaintiff’s exposure was a proximate cause of his injury. Id.
Since Lockwood, In re Hawaii Federal Asbestos Cases, 960 F.2d 806
(9th Cir. 1992), predicted that the Hawaii courts would adopt this approach in light
of Hawaii’s policy of providing “the maximum possible protection that the law can
muster against dangerous defects in products.” Id. at 817-18. With that said,
however, Lockwood has been criticized as creating a “‘non traditional’ result in
finding that the mere presence of the defendant’s product in the workplace coupled
with ‘fiber drift’ evidence was sufficient to justify submission of the issue of
causation to the jury.” See Robertson, 914 F.2d at 381. Rather, “the vast majority
of the cases addressing circumstantial evidence in the context of asbestos litigation
requires more, i.e., some concrete demonstration of a link between the alleged
injury and a defendant’s particular asbestos-containing product.” Id. at 382. See
also Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir.
1985) (declining to “create a judicial presumption that a plaintiff was exposed to
the asbestos in a defendant’s products by simply showing that he worked at a job
site at a time when the defendant’s asbestos-containing products were used”).
What this review of the caselaw establishes is that courts have taken
different views -- based on the particular evidence presented and/or in recognition
of the unique issues presented of asbestos products liability cases -- of what
evidence is sufficient to raise a genuine issue of material fact as to causation.4
With this background, the court’s task is to determine the appropriate framework
Indeed, even Lockwood recognized that “the sufficiency of the evidence of causation
will depend on the unique circumstances of the case,” including evidence of the plaintiff’s
proximity to the asbestos when exposure occurred, the expanse of the workplace where asbestos
fibers were released, the extent of time the plaintiff was exposed, the types of asbestos products
to which the plaintiff was exposed, and how those products were handled, and evidence of
medical causation. 744 P.2d at 613.
under maritime law, the very purpose of which is to create “a uniform and
specialized body of federal law” applicable to the maritime shipping industry. See
Adams v. Montana Power Co., 528 F.2d 437, 439 (9th Cir. 1975); see also Aqua
Log, Inc. v. Lost & Abandoned Pre-Cut Logs & Rafts of Logs, 709 F.3d 1055, 1061
(11th Cir. 2013) (“When admiralty jurisdiction is invoked, a uniform body of
federal maritime law applies.” (citations omitted)). Indeed, as the Supreme Court
One thing . . . is unquestionable; the Constitution must
have referred to a system of law coextensive with, and
operating uniformly in, the whole country. It certainly
could not have been the intention to place the rules and
limits of maritime law under the disposal and regulation
of the several States, as that would have defeated the
uniformity and consistency at which the Constitution
aimed on all subjects of a commercial character affecting
the intercourse of the States with each other or with
Am. Dredging Co. v. Miller, 510 U.S. 443, 451 (1994) (quoting The Lottawanna,
21 Wall. 558, 575 (1875)).
Lindstrom and the MDL action have spoken as to how causation is
determined under maritime law, and their view is generally consistent with a
majority of state law cases addressing this issue. See Saratoga Fishing Co. v. J.M.
Martinac & Co., 520 U.S. 875, 878 (1997) (explaining that maritime law “‘is an
amalgam of traditional common-law rules, modifications of those rules, and newly
created rules,’ drawn from both state and federal sources” (citing East River S.S.
Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 865 (1986)). And the court
further finds that this view is consistent with the Ninth Circuit’s guidance on tort
law in the maritime context. The ultimate focus of the analysis under maritime law
is whether the plaintiff has shown “that the defendant’s action was a ‘substantial
factor in bringing about [the] harm,’” Sementilli, 155 F.3d at 1135 (quoting
Benefiel, 959 F.2d at 807), and a plaintiff must establish a genuine issue of material
fact as to this element to survive summary judgment. Thus, to the extent that
Lockwood “eased the strict requirements” of causation due to the problems with
product identification, see 744 P.2d at 612 n.6, the court believes that the Ninth
Circuit would reject such formulation as counter to the substantial factor
requirement, and counter to the established caselaw under maritime law requiring
that Plaintiffs come forward with evidence raising a genuine issue of material fact
that Cabasug was exposed to a particular Defendant’s product and that such
exposure was a substantial factor in causing Plaintiffs’ injuries.
The court therefore finds that the Ninth Circuit, in applying maritime
law, would follow Lindstrom’s guidance that to survive summary judgment
Plaintiffs must come forward with evidence raising a genuine issue of material fact
that (1) Cabasug was exposed to each Defendant’s product(s); and (2) such product
was a substantial factor in causing Cabasug’s injury. See Lindstrom, 424 F.3d at
492. Thus, “a mere showing that defendant’s product was present somewhere at
plaintiff’s place of work is insufficient.” Id. Rather, Plaintiffs must show “a high
enough level of exposure that an inference that the asbestos was a substantial factor
in the injury is more than conjectural.” Id.
Determining what level of exposure is necessary to raise a genuine
issue of material fact will ultimately depend on the particular facts as to the
particular Defendant. Put simply, context matters -- the parties should not interpret
the court’s adoption of Lindstrom as creating some sort of artificial check-list
regarding what evidence is necessary to defeat summary judgment as to causation
in a maritime asbestos product liability case. Rather, the court’s analysis will be
guided by the particular facts to determine whether Plaintiffs have presented
evidence to support a reasonable inference that the asbestos from a particular
Defendant’s product was a substantial factor in the injury.5
For example, evidence that Cabasug worked on a vessel in which a
A reasonable inference may be the product of either direct or circumstantial evidence.
Circumstantial evidence is sufficient to withstand summary judgment, particularly where direct
proof is difficult to obtain. See, e.g., Conn v. City of Reno, 591 F.3d 1081, 1097 (9th Cir. 2010)
cert. granted, judgment vacated sub nom. City of Reno, Nev. v. Conn, 131 S. Ct. 1812 (2011) and
opinion reinstated, 658 F.3d 897 (9th Cir. 2011) (involving awareness of a defendant’s serious
medical need); Gray v. First Winthrop Corp., 82 F.3d 877, 884 (9th Cir. 1996) (involving
securities fraud); Baxter v. MCA, Inc., 812 F.2d 421 (9th Cir. 1987) (involving copyright
Defendant’s products were present, on its own, is insufficient to raise a genuine
issue of material fact that Cabasug was exposed to such products. See id.
Plaintiffs may, however, raise a genuine issue of material fact by presenting direct
evidence that Cabasug worked on (or, depending on the particular fact, near) the
asbestos-containing components of specific products. Alternatively, Plaintiffs may
present circumstantial evidence of exposure by presenting evidence that the
Defendant’s products were prevalent on the vessels on which Cabasug worked and
that Cabasug regularly worked on those types of products. In this latter case,
evidence of regarding the prevalence of a Defendant’s product, combined with
evidence of Cabasug’s regular duties, may support the reasonable inference that
Cabasug worked on a particular product. Under either alternative, however, the
court rejects Defendants’ arguments that Plaintiffs must present direct evidence
that Cabasug recalled working on a particular product by the Defendant and
recalled the particular vessel upon which it was installed.
As to whether a Defendant’s product was a substantial factor in
causing Plaintiffs’ injuries, the court again stresses that context matters.
Specifically, although Lindstrom instructs that “minimal exposure is insufficient,”
id., what exposure constitutes “minimal” as opposed to “substantial” exposure
depends on the particular circumstances of each case. For example, where
Plaintiffs have raised a genuine issue that Cabasug was exposed to the asbestos
components of a product in the course of his regular duties, expert testimony that
every asbestos exposure increases the individual’s risk of developing mesothelioma
may support the reasonable inference that asbestos from the Defendant’s product
was a substantial factor in causing Plaintiffs’ injuries.
In providing these examples, the court stresses that they are not meant
to be read as hard rules regarding when a plaintiff may establish a reasonable
inference of substantial exposure. Rather, each case depends on the particular facts
presented, and the court will consider both direct and circumstantial evidence in
determining whether Plaintiffs have raised a genuine issue of material fact.
Duty to Warn
Where a defendant provides a product that is unreasonably dangerous
(such as a product including asbestos-containing components), the duty to warn
arises. The Restatement (Second) of Torts § 402A (1965) (the “Restatement”),
which both the Supreme Court and Ninth Circuit have cited in maritime products
liability cases, see Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875,
879 (1997); Pan-Alaska Fisheries, Inc. v. Marine Const. & Design Co., 565 F.2d
1129, 1134 (9th Cir. 1977), provides that liability attaches to “[o]ne who sells any
product in a defective condition unreasonably dangerous to the user or consumer or
to his property.”
This duty to warn extends to all components of the product that a
defendant places into the stream of commerce. See Restatement § 402A cmt. h
(“The defective condition may arise not only from harmful ingredients, not
characteristic of the product itself either as to presence or quantity, but also from
foreign objects contained in the product, from decay or deterioration before sale, or
from the way in which the product is prepared or packed.”); see also Exxon
Shipping Co. v. Pac. Res., Inc., 789 F. Supp. 1521, 1526 (D. Haw. 1991)
(explaining that under maritime law, strict liability is imposed “upon a
manufacturer or an assembler who incorporates a defective component part into its
finished product and places the finished product into the stream of commerce”).
Asbestos may be incorporated into a defendant’s products in several
potential ways -- for example, a defendant may supply and install the asbestos
component contained in the final product; a defendant may specifically design its
product to contain specific asbestos components, but those asbestos components
are incorporated into the product after it leaves the defendant’s possession; or,
as a replacement part, where the asbestos component is supplied by the same
defendant or a different manufacturer (regardless of whether the defendant
supplied the original asbestos component or designed its product to contain
asbestos components). The pending Motions address replacement parts only, many
supplied years (if not decades) after the original manufacture date. And this leads
to what the parties dispute -- whether a defendant has a duty to warn where a
defendant did not provide the replacement asbestos components to which the
plaintiff was exposed. The court now answers that question.
Although the Ninth Circuit has not addressed this issue under
maritime law, the Restatement, as provided above, suggests that a defendant is not
liable for third-party replacement parts -- instead, it is liable for only its products.
See also 1 Thomas J. Schoenbaum, Admiralty & Maritime Law § 5-7 (5th ed.
2011) (explaining that the Restatement “requires the plaintiff to prove: (1) that the
defendant sold or manufactured the product; (2) that the product was unreasonably
dangerous or was in a defective condition when it left the defendant’s control; and
(3) that the defect resulted in injury to the plaintiff.”). More definitively answering
this question, however, is the MDL court in Conner, which persuasively analyzed
both Lindstrom and several state law cases to hold that under maritime law, a
defendant does not have a duty to warn regarding replacement parts it did not place
Conner started its analysis with Lindstrom, which although did not
expressly address the duty to warn, is nonetheless instructive for its determination
that a manufacturer is not liable for a third party’s replacement asbestos products.
See Lindstrom, 424 F.3d at 493-97. For example, although manufacturer Henry
Vogt admitted that its valves and gaskets originally included asbestos components,
the undisputed evidence established that these components were replaced twice a
year, Henry Vogt did not supply any of these replacement parts, and the plaintiff
boarded the ship four years after the Henry Vogt equipment was installed on the
ship. Lindstrom concluded that “there was insufficient evidence to connect [the
plaintiff] with any Henry Vogt product or to connect a Henry Vogt product with
asbestos that caused [the plaintiff’s] illness,” where the plaintiff did not handle the
original packing or gasket material, and “any asbestos that he may have been
exposed to in connection with a Henry Vogt product would be attributable to some
other manufacturer.” Id. at 495. Thus, Lindstrom held that “Henry Vogt cannot be
held responsible for material ‘attached or connected’ to its product on a claim of a
manufacturing defect.” Id. (citing Stark, 21 Fed. Appx. at 381, and Koonce v.
Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 715 (5th Cir. 1986) (“The
component part manufacturer is protected from liability when the defective
condition results from the integration of the part into another product and the
component part is free from defect.”)).
Conner outlined that Lindstrom’s determination that a manufacturer is
liable only for its products is consistent with several state court decisions
addressing replacement parts, including Simonetta v. Viad Corp., 197 P.3d 127
(Wash. 2008) (en banc); Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wash.
2008) (en banc); and O’Neil v. Crane Co., 266 P.3d 987 (Cal. 2012).
For example, Simonetta affirmed summary judgment against a former
Navy machinist who brought product liability claims where the defendant’s
product, an evaporator, did not itself contain asbestos, but required insulation to
function properly which was provided by a third party and replaced regularly. 197
P.3d at 129-31. Simonetta viewed the asbestos insulation and not the evaporator as
the harmful product, and concluded that the duty to warn is “limited to those in the
chain of distribution of the hazardous product.” Id. at 134, 137.
Braaten further extended this reasoning in determining that a
defendant does not have a duty to warn regarding asbestos in replacement packing
and gaskets that the defendants did not manufacture, sell or supply. 198 P.3d at
495. Braaten reasoned that “[t]he defendants did not sell or supply the
replacement packing or gaskets or otherwise place them in the stream of
commerce, did not specify asbestos-containing packing and gaskets for use with
their valves and pumps, and other materials could have been used.” Id. at 495-96.
Thus, Braaten held that “a manufacturer does not have an obligation to warn of the
dangers of another manufacturer’s product.” Id. at 504.
Finally, O’Neil similarly held that even where Crane originally used
asbestos in its valves and packing, it did not have a duty to warn where these parts
were later replaced by components from other manufacturers. O’Neil explained
that California law has “never held that a manufacturer’s duty to warn extends to
hazards arising exclusively from other manufacturer’s products.” 266 P.3d at 997.
Although Crane gave no warning regarding the asbestos components originally
included in its products, O’Neil determined that Crane did not have a continuing
duty to warn regarding replacement parts it did not manufacture given that “[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.” Id. at 998 (quoting In re
Deep Vein Thrombosis, 356 F. Supp. 2d 1055, 1068 (N.D. Cal. 2005)). O’Neil
concluded that “expansion of the duty of care as urged here would impose an
obligation to compensate on those whose products caused the plaintiffs no harm.
To do so would exceed the boundaries established over decades of product liability
law.” Id. at 1007.
Conner explained that these cases determining that manufacturers can
be liable only for harm caused by their own products and not those of others is
confirmed by the policy motivating products liability law:
Indeed, 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
On whatever theory, the justification for the
strict liability has been said to be that the seller, by
marketing his product for use and consumption,
has undertaken and assumed a special
responsibility toward any member of the
consuming public who may be injured by it; that
the public has the right to and does expect, in the
case of products which it needs and for which it is
forced to rely upon the seller, that reputable sellers
will stand behind their goods; that public policy
demands that the burden of accidental injuries
caused by products intended for consumption be
placed upon those who market them, and be
treated as a cost of production against which
liability insurance can be obtained; and that the
consumer of such products is entitled to the
maximum of protection at the hands of someone,
and the proper persons to afford it are those who
market the products.
Restatement (Second) of Torts § 402A, cmt. c (1965)
And various courts that have considered the issue
have similarly noted 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.
842 F. Supp. 2d at 800-01 (citing various cases); see also Faddish v. Buffalo
Pumps, 881 F. Supp. 2d 1361, 1372 (S.D. Fla. 2012) (adopting the “bare metal”
defense under Florida law and explaining that “the duty to act is limited to entities
within a product’s chain of distribution on theory that these are the entities best
motivated and capable of controlling the risk”). Thus, considering this caselaw and
these policy considerations, Conner held “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.” 842
F. Supp. 2d at 801.
The court finds this reasoning sound and believes the Ninth Circuit
would determine that under maritime law, a manufacturer is not liable for
replacement parts that it did not place into the stream of commerce, whether the
manufacturer’s product originally contained asbestos components or was designed
to include asbestos components. As outlined in Conner, this rule is in line with the
Restatement, which suggests that the duty to warn is limited to entities within a
product’s chain of distribution because such entities are in the best position to
absorb the costs of such warnings into the cost of the replacement parts. Id.
Following this reasoning, a manufacturer should not be held liable for replacement
parts provided by third parties (often provided years later). And as with the
causation analysis above, the court believes that the Ninth Circuit would also find
Lindstrom and Conner persuasive in ensuring the creation of a uniform body of
law to govern maritime actions.
In opposition, Plaintiffs criticize Lindstrom (and therefore Conner’s
reliance upon it) because Lindstrom (1) did not rely upon the Restatement;
(2) relied only upon Stark, an unpublished case, to determine maritime law;
(3) extended Stark beyond the facts Stark addressed; and (4) limited its holding to
causation and did not address the duty to warn. Doc. No. 683, Mot. at 16-17.
These criticisms lack merit. Lindstrom does not conflict with the Restatement, and
its reliance on Stark is unsurprising given that its facts were analogous and Stark
also addressed maritime law. Further, although Stark is unpublished, Lindstrom
ultimately made its own determination as to the law, and its reasoning, as shown in
Conner and subsequent cases, is well-supported. And finally, Lindstrom clearly
addressed whether a defendant is liable for replacement parts, determining that a
defendant cannot be held responsible for the asbestos contained in another’s
products. 424 F.3d at 496. This is the case, whether based on the reasoning that a
defendant is not the cause of the injury where it did not supply the asbestos, or that
a defendant has no duty to warn regarding products it did not supply. In other
words, both Lindstrom and Conner stem from the same legal principle that a
defendant is not liable for components outside its chain of distribution.6
In further opposition, Plaintiffs seemingly invite this court to ignore
Lindstrom and Conner and follow the various (mostly state law) cases cited by
Plaintiffs. See generally Doc. No. 683. There is certainly no lack of caselaw
addressing the duty to warn and asbestos product liability, but Plaintiffs can hardly
suggest that Lindstrom and Conner are outliers in their conclusions where they too
cited state law cases in support of their analyses. And the facts of Conner and
Lindstrom are analogous to this action, whereas Plaintiffs’ cases mostly address
very different facts such that application of their holdings to this case is tenuous at
best.7 Indeed, at the November 12, 2013 hearing, the court requested Plaintiffs to
Plaintiffs further argue that Conner extended Braaten and O’Neil beyond their holdings
because neither case addressed the situation where the defendant’s product required the use of
asbestos and/or the defendant specified the use of asbestos. Doc. No. 683-1, Pls.’ Mot. at 18.
Nothing prevented Conner from extending their reasoning to such cases, and Conner’s reasoning
is in line with Lindstrom and the Restatement. And in any event, as provided above, the court
addresses only the issue of replacement parts at this time.
See, e.g., Macias v. Saberhagen Holdings, Inc., 282 P.3d 1069, 1076 (Wash. 2012)
(determining under Washington law that respirator manufacturer had a duty to warn where the
respirators were “specifically designed to and intended to filter contaminants from the air
breathed by the wearer, including asbestos, welding fumes, paint fumes, and dust,” and
distinguishing Simonetta and Braaten on the basis that their products were not “designed as
equipment that by its very nature would necessarily involve exposure to asbestos”); In re
Asbestos Products Liab. Litig. (No. VI), 2011 WL 5881008, at *1 n.1 (E.D. Pa. July 29, 2011)
(determining under Pennsylvania law that Ford had a duty to warn regarding asbestos-containing
brake pads on vehicles); Shields v. Hennessy Indus., Inc., 140 Cal. Rptr. 3d 268, 280 (Cal. App.
2012), as modified (May 3, 2012) (determining under California law on motion for judgment on
the pleadings that duty was sufficiently pled where the “sole intended use” of defendants’
product, a grinder for asbestos-containing brake shoe linings, “was for an activity known to [the
identify cases under maritime law addressing the duty to warn for third-party
components, and the only case remotely on point is Kummer v. Allied Signal, Inc.,
2008 WL 4890175 (W.D. Pa. Oct. 31, 2008), which denied summary judgment to a
turbine manufacturer who did not include any asbestos with its turbine, but which
specifically designed the turbine to be insulated with asbestos.8 Id. at *3-4.
defendant] to pose an unreasonable risk of harm, and using these facts to distinguish the case
Certainly, asbestos cases exist that have determined, based on the particular state law at
issue, that a duty to warn exists under circumstances similar to those presented here. See, e.g.,
Chicano v. Gen. Elec. Co., 2004 WL 2250990, at *6 (E.D. Penn. Oct. 5, 2004) (determining that
turbine manufacturer had a duty to warn where it designed and knew that its turbine would be
insulated with asbestos, even if the manufacturer itself did not supply or insulate the turbine with
asbestos). The court is not applying state law, however, and the court finds the reasoning of
Conner and Lindstrom persuasive for all the reasons explained above.
At the November 12, 2013 hearing, Plaintiffs also identified Emerson G.M. Diesel, Inc.
v. Alaskan Enter., 732 F.2d 1468 (9th Cir. 1984), Exxon Shipping Co. v. Pacific Resources, Inc.,
789 F. Supp. 1521 (D. Haw. 1991), and Conticarriers & Terminals, Inc. v. Borg-Warner Corp.,
593 F. Supp. 400 (E.D. Mo. 1984), as establishing a duty to warn under maritime law. Contrary
to Plaintiffs’ argument, these cases are not helpful. These cases concern a defect in the
characteristic of the defendant’s product and not a third-party replacement part.
For example, Emerson did not address replacement parts at all, instead determining that
the defendant was liable for a defective hose it supplied which caused overheating of an engine.
732 F.2d at 1475. The only discussion even arguably relevant to the replacement part issue is
dicta in which Emerson asserts that even if the defendant did not supply the hose, it would be
liable for shipping separately a temperature-sensing device without instructions warning the
purchaser to install it because this device could have prevented the damage. Id. Even under this
alternative, the product at issue was the defendant’s and not a third party’s.
Exxon is a little closer -- it determined that a negligence claim could stand against the
supplier of a chafe chain that broke, where it was unclear whether the particular chain came from
the supplier or a third party. 789 F. Supp. at 1528. Exxon allowed this claim based on facts that
(1) the supplier had a duty to conduct tests on the chain based on contract, (2) the tests may have
revealed the defects in both the supplier and third party chains, and (3) the plaintiff purchased
the second chain from the third party by relying on the supplier’s determination that the third
party was an appropriate supplier. Id. at 1528-29. Plaintiffs do not assert that such facts exist
Kummer is not binding on this court and to the extent it conflicts with Conner and
Lindstrom, the court rejects it. Plaintiffs’ cases therefore fail to sway the court that
the Ninth Circuit would eschew the developed caselaw addressing the duty to warn
under maritime law.
In sum, the court agrees with Conner and Lindstrom, and therefore
holds 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-containing replacement
parts that the manufacturer did not manufacture or distribute.
Based on the principles outlined above, a plaintiff establishes
causation under maritime law by showing, for each defendant, that he was exposed
to the defendant’s product, and the product was a substantial factor in causing the
injury he suffered. Further, where the asbestos-containing components of a
defendant’s product have been replaced, a plaintiff must establish that the
Finally, ContiCarriers determined that manufacturers of rubber-lined bearings breached a
duty to warn customers about the dangers of using dry ice to shrink the bearings for installation,
which caused the rubber to crack. 593 F. Supp. at 402. ContiCarriers does not address
replacement parts, and is otherwise wholly distinguishable -- as Conner explains, the failure to
warn in ContiCarriers proximately caused the damage to the bearings, whereas Plaintiffs in this
action allege that asbestos-containing components caused harm to Plaintiffs. See Conner, 842 F.
Supp. 2d at 802. And even if ContiCarriers’ holding could be extended to personal injury as in
this case, again, it is not persuasive to the issue of replacement parts and otherwise is not binding
on this court.
defendant placed those replacement parts into the stream of commerce. The court
addresses these elements as argued in the various pending Motions.
Plaintiffs’ Motion for Summary Adjudication on the Duty to Warn
Under Maritime Law, Doc. No. 683
Plaintiffs’ Motion for Summary Adjudication on the Duty to Warn
Under Maritime Law asks the court to make the legal determination that a
defendant has a duty to warn so long as it “knew or specified or designed asbestos
components and/or it was known that asbestos exposure would occur in the
inevitable maintenance and repair of its equipment.” Doc. No. 683, Pls.’ Mot. at 3.
This Motion, seeking a legal determination on the duty to warn, places the
proverbial cart before the horse -- the duty to warn is only an issue if Plaintiffs first
establish that Cabasug was exposed to asbestos attributable to a particular
Defendant’s product. Rather, the court finds that a Defendant’s duty to warn is
best addressed in context of the particular facts presented as to each Defendant in
context of each of their Motions addressed below. The court therefore DENIES
Plaintiffs’ Motion, Doc. No. 683, but will consider its arguments in the context of
specific motions for summary judgment.9
As a result, the court further DEEMS MOOT Crane’s Objections to various of
Plaintiffs’ exhibits in support of their Motion, Doc. No. 723.
Ametek’s Motion for Summary Judgment, Doc. No. 676
Plaintiffs assert claims against Ametek as the successor-in-interest to
Schutte & Koerting Company (“S&K”), which as alleged in the TAC, supplied to
PHNS various products containing asbestos gaskets and/or packing, and/or
asbestos-containing replacement parts for this equipment. Doc. No. 661, TAC ¶ 4.
Ametek argues that summary judgment should be granted on Plaintiffs’ claims
because S&K did not supply or manufacture any asbestos-containing components
that may have been used in conjunction with its products.
Viewing the facts in a light most favorable to Plaintiffs, the court
finds that Plaintiffs have established a genuine issue of material fact that Cabasug
worked on S&K combined exhaust and relief valves and desuperheaters.
Specifically, Cabasug testified that he worked on (1) S&K combined exhaust and
relief valves “routinely and regularly” by replacing their gaskets and packing, Doc.
No. 713-18, Ametek Ex. E at 393-94; and (2) S&K desuperheaters by removing the
bonnets and replacing the gaskets. Id. at 401. According to Plaintiffs’ expert,
Andrew Ott,10 S&K provided external desuperheaters to eight vessels on which
Although Ametek and other Defendants generally object to the Ott Declarations on the
basis that he is unqualified to assess the hazards of asbestos and that certain of his opinions are
“based on rank speculation,” see, e.g., Doc. No. 736, Ametek Reply at 12, such generalized
objection is ultimately unhelpful.
Specifically, to the extent Defendants argue that the Ott Declarations are not admissible
Cabasug worked, and auxiliary exhaust and relief valves “for a major portion of
Navy steam ships of the period.” Doc. No. 713-1, Ott Decl. ¶¶ 17, 22.
Plaintiffs have not established, however, that Cabasug was exposed to
S&K air ejectors, distilling plant air ejector condensers, sea water heaters, and
hydraulic trip valves, which Ott identified as being located on a total of eighteen
Cabasug vessels. See id. ¶¶ 18-21. Plaintiffs came forward with no evidence
suggesting that Cabasug worked on sea water heaters or hydraulic trip valves, and
the mere fact that these products were on the same vessels as Cabasug is
pursuant to Federal Rule of Evidence 702, the parties have not briefed the issue in anything more
than a cursory way as part of their summary judgment arguments, and the court declines to
resolve the expert admissibility issues on the record before it. See Cortes-Irizarry v.
Corporacion Insular De Seguros, 111 F.3d 184, 188 (1st Cir. 1997) (“We conclude, therefore,
that at the junction where Daubert intersects with summary judgment practice, Daubert is
accessible, but courts must be cautious -- except when defects are obvious on the face of a
proffer -- not to exclude debatable scientific evidence without affording the proponent of the
evidence adequate opportunity to defend its admissibility.”); In re Paoli R.R. Yard PCB Litig.,
35 F.3d 717 (3d Cir. 1994) (“Given the ‘liberal thrust’ of the federal rules it is particularly
important that the side trying to defend the admissibility of evidence be given an adequate
chance to do so.”) (internal citation omitted).
And to the extent Defendants argue that Ott’s opinions are not supported by evidence,
Ott cites to evidentiary support for many of them. In any event, the court need not address every
opinion offered by Ott in addressing the issues raised by the parties. Rather, the court cites to
those portions of the Ott Declarations where relevant to the court’s determination and supported
by evidence. The court does not rely on those portions of the Ott Declarations that offer no basis
for his opinions. See Walton v. U.S. Marshals Serv., 492 F.3d 998, 1008 (9th Cir. 2007)
(explaining that even an expert opinion requires a factual basis for any opinion offered in an
affidavit); United States v. Rushing, 388 F.3d 1153, 1156 (8th Cir. 2004) (“Expert testimony
should not be admitted when it is speculative, it is not supported by sufficient facts, or the facts
of the case contradict or otherwise render the opinion unreasonable”); Guidroz-Brault v. Mo.
Pac. R. Co., 254 F.3d 825, 831 (9th Cir. 2001) (“[I]n the context of a motion for summary
judgment, an expert must back up his opinion with specific facts.” (citation omitted)).
insufficient to raise a genuine issue of material fact. See Lindstrom, 424 F.3d at
Further, although Cabasug testified that he generally worked on
distilling plant air ejector condensers, Doc. No. 718-18, Pls.’ Ex. E at 373-76, it is
mere speculation whether Cabasug worked on S&K distilling plant air ejector
condensers where (1) he did not identify the manufacturer of these air ejector
condensers, id.; (2) Ott asserts that this S&K equipment was aboard only six of the
thirty-eight vessels on which Cabasug worked, Doc. No. 713-1, Ott Decl. ¶ 19; and
(3) Plaintiffs provide no details regarding the total number of distilling plant air
ejector condensers on each vessel and/or the other manufacturers who provided
this equipment. Without such information, the court is left to speculate whether
Cabasug might have come into contact with an air ejector condenser supplied by
S&K. Finally, as to air ejectors, Cabasug testified that he worked on Foster
Wheeler air ejectors, and did not mention S&K. See Doc. No. 713-18, Pls.’ Ex. E
at 291-293. Thus, the court finds that Plaintiffs have established a genuine issue of
material fact that Cabasug worked on only S&K combined exhaust and relief
valves and desuperheaters.
As to the desuperheaters and combined exhaust and relief valves, the
evidence does not establish that S&K included any asbestos-containing
components with these products. First, it is undisputed that S&K did not
manufacture or supply exterior thermal insulation, much less any external
insulation that included asbestos. Doc. No. 677, Ametek CSF ¶ 19. Further,
Richard Moore, a former S&K lead engineer for the valve group, asserts that S&K
“did not manufacture or supply asbestos to the Navy and did not use raw asbestos
in the manufacture of its products. To the extent that any [S&K product] contained
asbestos, it did so because one of its components, manufactured by another entity,
contained asbestos.” Doc. No. 677-7, Moore Decl. ¶ 17. And although Ametek’s
corporate witness seemed to contradict Moore by admitting that S&K “did sell
certain products that may have included asbestos-containing components, such as
gaskets and packing,” see Doc. No. 713-14, Pls.’ Ex. A at 98, there is no evidence
supporting a reasonable inference that S&K manufactured or supplied any asbestos
components contained in desuperheaters and combined exhaust and relief valves
for the vessels on which Cabasug worked.
Rather, the only evidence Plaintiffs have presented are (1) Ott’s
assertion that “[m]ost equipment provided by [S&K] incorporated asbestos gaskets
that were routinely removed and replaced during the overhaul and repair of their
equipment,” Doc. No. 713-1, Ott Decl. ¶ 29; and (2) an S&K technical manual
titled “Combined Exhaust and Relief Valves for Auxiliary Steam Turbines and
Port Feed Pump,” which lists the building yard as Bethlehem Sparrows Point
Shipyard (“BSPS”), provides under “vessels applicable” “AE 23-25,” and indicates
that some gaskets are comprised of compressed asbestos. See Doc. No. 713-19,
Pls.’ Ex. F at 3273, 3281, p. 2 (listing material for gasket as “comp. asb.”). This
evidence does not support the reasonable inference that the S&K equipment
Cabasug that worked on contained asbestos components -- Ott provides no basis
for his bare assertion that S&K products, and in particular those that Cabasug
worked on, included asbestos, and Plaintiffs have failed to explain whether and
how this technical manual applies to any vessels at PHNS, much less the combined
exhaust and relief valves on which Cabasug worked.
At the November 12, 2013 hearing, Plaintiffs again failed to identify
any evidence establishing that the S&K products Cabasug worked on contained
asbestos. For example, Plaintiffs referred the court to the Moore Declaration,
which explains the back-and-forth product design process between S&K and the
Navy, and asserts that “to the extent that any designs for [S&K] products required
the use of asbestos-containing components, the Navy expressly reviewed and
approved the use of such components.” Doc. No. 677-7, Ametek Ex. F, Moore
Decl. ¶ 9. This statement, however, does not address any specific S&K products
and therefore does not support the reasonable inference that the products Cabasug
worked on contained asbestos. Plaintiffs also pointed to a technical manual for a
“1200 PSI Pressure Fired Boiler” from the Foster Wheeler Corporation, which was
installed on two of the vessels on which Cabasug worked. See Doc. No. 713-6, Ott
Ex. 4. Although this technical manual indicates that S&K was listed as the
supplier for Flexitallic gaskets for hydraulic trip valves, as explained above, there
is no evidence that Cabasug worked on hydraulic trip valves. This manual
therefore fails to support the reasonable inference that Cabasug was exposed to
asbestos provided by S&K. Thus, viewing the evidence in a light most favorable
to Plaintiffs, the court would be left to speculate whether any of the S&K products
on Cabasug vessels contained asbestos provided by S&K.
Finally, even if S&K initially included asbestos-containing
components in its products, Plaintiffs have failed to raise a genuine issue of
material fact that by the time Cabasug worked on the S&K products, they still
contained asbestos supplied by S&K. Rather, Plaintiffs again rely on wholly
circumstantial evidence, which simply does not support the reasonable inference
that PHNS ordered asbestos-containing components from S&K to which Cabasug
Specifically, Ott conceded that most of the original component
gaskets and packing associated with S&K products would have been replaced prior
to 1973 when Cabasug began work at PHNS. See Doc. No. 677-9, Ametek Ex. H
at 416-17. He therefore asserts that “manufacturers such as S&K typically
provided additional asbestos gaskets and asbestos packing as on-board repair parts
with the initial outfitting,” and “routinely and typically supplied repair parts.”
See Doc. No. 713-1, Ott Decl. ¶¶ 37-38; see also Doc. No. 713-9, Melvin Wortman
Decl. (asserting that fifty percent of the replacement parts obtained by the Puget
Sound Naval Shipyard came from the original manufacturer); Doc. No. 713-18,
Pls.’ Ex. E at 334-35 (Cabasug discussing that Job Material List forms were used
to order OEM replacement parts, but providing no testimony regarding S&K in
particular). These bare, conclusory assertions -- absent evidence that S&K in fact
offered asbestos-containing gaskets for equipment Cabasug worked on -- are
insufficient to raise a genuine issue of material fact.
The only concrete evidence Plaintiffs offer on S&K replacement parts
is (1) the S&K technical manual titled “Combined Exhaust and Relief Valves for
Auxiliary Steam Turbines and Port Feed Pump,” which states that “Supply Parts
may be ordered directly from [S&K],” Doc. No. 713-19, Pls.’ Ex. F at 3276, and
lists gaskets as included in the “On Board Repair Parts,” id. at 3279; (2) an invoice
establishing that Bath Iron Works purchased from S&K two gaskets for a hydraulic
trip valve, see Doc. Nos. 713-6, -7, Pls.’ Exs. 4-5; and (3) an invoice establishing
that PHNS ordered from S&K a rotameter with asbestos gaskets for the USS
Reeves. Doc. No. 713-8, Pls.’ Ex. 6.11 Again, this S&K manual is unhelpful where
Plaintiffs fail to explain whether it even applies to any vessels or the particular
auxiliary exhaust and relief valves on which Cabasug worked. Nor are the invoices
helpful -- Plaintiffs failed to establish that Cabasug worked on S&K hydraulic trip
valves (they were present on only two vessels Cabasug worked on, Doc. No. 7131, Ott Decl. ¶ 21); and Plaintiffs have never asserted that Cabasug worked on
rotameters. At most, Plaintiffs’ evidence suggests that S&K might have provided
some replacement parts in some limited circumstances. But this limited evidence
requires too many inferential leaps to conclude that S&K supplied asbestoscontaining repair parts to which Cabasug was exposed.
Plaintiffs further assert that Ametek’s corporate witness testified that S&K “on rare
occasion . . . supplied repair parts or replacement parts to the Navy.” Doc. No. 712, Pls.’ Opp’n
at 20 (citing Pls.’ Ex. A at 28). Plaintiffs’ Exhibit A does not include a page 28. But in any
event, this testimony supports only that S&K provided replacement parts on occasion, and does
not support a reasonable inference that S&K provided asbestos-containing gaskets to PHNS for
the equipment on which Cabasug worked. The court further finds the caselaw that Plaintiffs cite
to -- Grammer v. Advocate Mines, Ltd., 2012 WL 7760439 (E.D. Pa. Oct. 17, 2012), and Abbay
v. Armstrong Int’l, Inc., 2012 WL 975832 (E.D. Pa. Feb. 29, 2012) -- ultimately unhelpful.
Although these cases are from the MDL court, their discussions of the facts are too brief to
provide meaningful guidance. And in any event, the brief discussion of facts in these cases
suggests they have little application here. See Grammer, 2012 WL 7760439 (finding a genuine
issue where “Defendant admitted that it ‘on some occasions provided small numbers of gaskets
and packing to certain customers along with other replacement parts for certain pumps,’”
documents established that it sold gaskets, and the instruction manual explained that replacement
parts from Defendant should be used); Abbay, 2012 WL 975832 (acknowledging that Crane’s
corporate witness testified that “it also would sell replacement parts sometimes,” and Crane
produced documents reflecting “multiple sales” of Crane’s replacement parts).
In sum, the court finds that when construing the evidence in the light
most favorable to Plaintiff, no reasonable jury could conclude that Plaintiff was
exposed to asbestos from original or replacement gaskets or packing manufactured
or supplied by S&K, as any such finding would be impermissibly conjectural. In
particular, the evidence presented fails to raise a genuine issue of material fact that
(1) Cabasug was exposed to any S&K products that contained asbestos; or
(2) even if the S&K products Cabasug worked on originally contained asbestos,
Cabasug was exposed to any asbestos-containing replacement parts provided by
S&K. The court therefore GRANTS Ametek’s Motion for Summary Judgment,
Doc. No. 676.12
Ametek further requests that the court enter final judgment in favor of Ametek and
against Plaintiffs and all Defendants with cross-claims against Ametek. See Doc. No. 676,
Ametek Mot. at 3. The court DENIES this request. This action presents numerous overlapping
legal issues such that entering final judgment at this time would likely lead to an appeals court
having to decide issues more than once. See Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1,
8 (1980) (explaining that factors to consider in determining whether to enter a Rule 54(b)
judgment include “whether the claims under review were separable from the others remaining to
be adjudicated and whether the nature of the claims already determined was such that no
appellate court would have to decide the same issues more than once even if there were
subsequent appeals”); see also 10 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane,
Federal Practice & Procedure: Civil 3d § 2659 (1998) (“It is uneconomical for an appellate court
to review facts on an appeal following a Rule 54(b) certification that it is likely to be required to
consider again when another appeal is brought after the district court renders its decision on the
remaining claims or as to the remaining parties.”).
Aurora Pump’s Motion for Summary Judgment, Doc. No. 678
Plaintiffs assert that Aurora supplied PHNS with various types of
pumps containing asbestos gaskets and/or packing, and/or asbestos-containing
replacement parts for this equipment. Doc. No. 661, TAC ¶ 4. Aurora argues that
summary judgment should be granted on Plaintiffs’ claims because Plaintiffs have
failed to raise a genuine issue of material fact that Cabasug was exposed to any
asbestos from an Aurora pump.
As an initial matter, the court finds that Plaintiffs have raised a
genuine issue of material fact that Cabasug was exposed to Aurora pumps, and in
particular their gaskets, while working at PHNS. Cabasug asserts in his
interrogatory responses that he recalls “working on many [Aurora] pumps,” which
included “all types of pumps.” Doc. No. 711-43, Pls.’ Ex. B at No. 18. Cabasug
further explained during his deposition that in general he was involved in the
overhaul of pumps, which involved removal and replacement of insulation,
gaskets, and packing. Id.; see also Doc. No. 711-45, Pls.’ Ex. D at 384-86.
Although Cabasug did not provide specifics regarding which types of Aurora
pumps he worked on and on which vessels (other than stating that he especially
recalled working on the “main feed pumps,” see Doc. No. 711-43, Pls.’ Ex. B at
No. 18), Ott explains that Aurora provided “at least 198 pumps for at least 19 of
the ships and submarines on which Mr. Cabasug worked,” and that these pumps
covered a broad range “in terms of size, capacity, operating pressure and
temperatures, and function.” Doc. No. 711-12, Ott Decl. ¶ 13.
The court further finds that Plaintiffs have raised a genuine issue of
material fact that the gaskets and packing contained within Aurora pumps aboard
vessels Cabasug worked on were comprised of asbestos. For example, technical
manuals for Type GNC pumps, the main category of end suction pumps, see Doc.
No. 711-14, Ott Ex. 2 at 36, disclose the use of asbestos gaskets and packing,
indicate that additional asbestos packing was included as on-board spare parts, and
provide individual Aurora Service Part Numbers to order replacements gaskets.
See Doc. No. 711-15, Ott Ex. 3; Doc. No. 711-16, Ott Ex. 4; Doc. No. 711-30, Ott
Ex. 18; see also Doc. No. 711-12, Ott Decl. ¶¶ 18-23. Ott asserts that he reviewed
eight Aurora technical manuals for Type GNC pumps related to the time frame in
which the vessels on which Cabasug worked were built, and that they all disclose
the exclusive use of asbestos packing and gaskets. See Doc. No. 711-12, Ott Decl.
¶¶ 19-20.13 As another example, technical manuals for turbine-driven pumps show
These asbestos gaskets are within the pumps, and Ott conceded that no evidence
indicates that Aurora sold asbestos-containing flange gaskets, portable pads, or insulation. See
Doc. No. 734-1, Aurora Ex. A at 321.
Aurora nonetheless argues that Ott cannot link the absestos gaskets described in the
technical manuals to the particular pumps Cabasug might have worked on given that the manuals
that they included 33 asbestos gaskets and that Aurora offered onboard repair parts
and spare parts. Doc. No. 711-18, Ott Ex. 6; Doc. No. 711-21, Ott Ex. 9; see also
Doc. No. 711-12, Ott Decl. ¶¶ 34-36. These turbine-driven pumps were aboard
two of Cabasug’s vessels. Doc. No. 711-12, Ott Decl. ¶ 36.
Finally, although there appears to be no dispute that the gaskets for
these pumps were routinely removed and replaced, Plaintiffs have provided
evidence that Aurora provided asbestos-containing replacement parts to which
Cabasug was exposed. As described above, technical manuals establish that
Aurora included on-board repair parts that included asbestos. Further, Ott asserts
that the Navy’s standard practice was to obtain repair parts from the original
equipment manufacturer. Id. ¶ 58; see also Doc. No. 711-45, Pls.’ Ex. D at 334-35
(Cabasug discussing that Job Material List forms were used to order OEM
Although Ott’s generalized assertions regarding Navy practice are
insufficient on their own to raise a genuine issue, Ott provides factual support for
were not for the specific Cabasug vessels. See Doc. No. 734, Aurora Reply at 8-9. The court
rejects this argument -- Ott asserts that he reviewed eight Aurora technical manuals for Type
GNC pumps (whereas Ott’s deposition testimony provided by Aurora addresses only three, see
Doc. No. 734-1, Aurora Ex. A), and according to Ott, all of them disclose the use of asbestos
gaskets and packing. See Doc. No. 711-12, Ott Decl. ¶¶ 19-20. This evidence is sufficient to
raise the reasonable inference that Aurora used asbestos in its Type GNC pumps, which were
present on Cabasug vessels.
the reasonable inference that PHNS obtained replacement gaskets from Aurora -according to Ott, Aurora’s technical manuals did not provide sufficient technical
information for others to manufacturer the repair parts, and the precise dimensions
and thickness of gasketing material was proprietary information held by Aurora.
Doc. No. 711-12; Ott Decl. ¶¶ 55-56; Doc. No. 711-27, Ott Ex. 15. Viewed in a
light most favorable to Plaintiffs, this evidence -- combined with the facts that
Aurora’s corporate representative testified that it was part of Aurora’s business to
keep asbestos-containing replacement gaskets and packing in inventory for its
customers, Doc. No. 711-48, Pls.’ Ex. F, and PHNS ordered some asbestoscontaining gaskets for at least one vessel on which Cabasug worked, Doc. No. 71127, Ott Ex. 1514 -- supports the reasonable inference that Cabasug was exposed to
asbestos gaskets supplied by Aurora.
But to the extent that Plaintiffs assert that Aurora is liable for the
external insulation applied to its pumps, the court rejects such argument as
unsupported in law and fact. All the evidence presented suggests that Aurora did
not supply external insulation. See Doc. No. 679-5, Aurora Ex. D at 321. As a
In Reply, Aurora argues that Ott was unable to identify for each Aurora purchase order
the particular vessel to which it applied and therefore failed to establish that any Aurora
replacement parts were aboard Cabasug vessels. See Doc. No. 734, Aurora Reply at 9-10. This
argument ignores Ott’s Exhibit 15, as well as the fact that a reasonable inference can be drawn
from the other evidence presented.
result, the fact that Aurora’s products were later insulated with asbestos is
insufficient to hold Aurora liable for asbestos it did not manufacture or distribute.
In sum, viewed in a light most favorable to Plaintiffs, there is ample
evidence supporting the reasonable inference that Cabasug was exposed to asbestos
gaskets from Aurora pumps, including that (1) Cabasug testified that he replaced
gaskets from pumps and that he recalled working on Aurora pumps; (2) there were
198 Aurora pumps aboard 19 different vessels upon which Cabasug worked;
(3) Aurora included asbestos gaskets in its pumps; (4) Aurora provided on-board
repair parts containing asbestos and also kept replacement parts in inventory;
(5) the dimensions of the gaskets were proprietary information, suggesting that
other manufacturers could not easily provide replacement parts; and (6) PHNS
ordered gaskets from Aurora.15 And Aurora offers no direct evidence that it did
not include asbestos gaskets in its products and/or did not provide replacement
gaskets, instead merely relying on evidentiary gaps apparently caused by the
Aurora did not argue in its initial Motion that Plaintiffs failed to establish that
Cabasug’s exposure to Aurora gaskets was a substantial factor in causing Plaintiffs’ injuries.
Although Aurora argues in Reply that “Plaintiffs need to show that the gasket or packing would
have been manipulated near Mr. Cabasug in such a way as to release asbestos dust he breathed,”
the court does not address arguments raised for the first time in reply. See, e.g., Hi-Tech
Rockfall Const., Inc. v. Cnty. of Maui, 2009 WL 529096, at *18 n.9 (D. Haw. Feb. 26, 2009)
(“Local Rule 7.4 provides that ‘[a]ny arguments raised for the first time in the reply shall be
disregarded.’”); Coos Cnty. v. Kempthorne, 531 F.3d 792, 812 n.16 (9th Cir. 2008) (declining to
consider an argument raised for the first time in a reply brief).
decades that have passed since Cabasug worked at PHNS. The court therefore
DENIES Aurora’s Motion for Summary Judgment as to asbestos gaskets, and
GRANTS the Motion for Summary Judgment as to flange gaskets, portable pads,
and external insulation. See supra n.13.
Crane’s Motion for Summary Judgment, Doc. No. 690
Plaintiffs assert claims against Crane based on its manufacture and
supply to PHNS of valves containing asbestos gaskets and/or packing, and/or
asbestos-containing replacement parts for this equipment. Doc. No. 661, TAC ¶ 4.
Crane argues that Plaintiffs have failed to raise a genuine issue of material fact that
Cabasug was exposed to any asbestos that Crane placed into the stream of
commerce, or that such asbestos caused Plaintiffs’ injuries.
As an initial matter, there is no dispute that Cabasug worked on Crane
valves during his tenure at PHNS -- he testified that he worked on and observed
others working on Crane valves “very routinely and regularly” while at PHNS,
Doc. No. 691, Crane CSF ¶ 3, and that his job duties included replacing the
internal gaskets and packing contained within the valves. See Doc. No. 724-4,
Pls.’ Ex. C at 26-29. According to Conrad Palafox, one of Cabasug’s co-workers,
Crane valves were “on every ship” at PHNS. Doc. No. 724-2, Pls.’ Ex. A at 109.
Ott also opines that Crane is “one of the largest suppliers of valves and valve
replacement parts to the Navy, and that Crane sold an “extensive array of valve and
valve parts” for thirty-four Cabasug vessels. Doc. No. 724-15, Ott Decl. ¶ 14.
Plaintiffs have also presented evidence that Cabasug worked on Crane
valves containing asbestos gaskets and packing. Although the Navy specified the
use of both asbestos containing and non-asbestos containing materials for gaskets,
see Doc. No. 691-4, Crane Ex. C at 9, Ott explains that the steam piping systems of
steam vessels “required the use of asbestos gaskets to seal the mechanical bonnet
joints [and] asbestos packing to seal valve systems from leakage,” Doc. No. 72515, Ott Decl. ¶ 17, and that many of the vessels Cabasug worked on included these
high-pressure steam valves with asbestos components. Id. ¶¶ 25-31. Given that
Cabasug testified that he worked on steam valves, see Doc. No. 724-4, Pls.’ Ex. C
at 28, this evidence supports the reasonable inference that Cabasug worked on
Crane valves containing asbestos components.
Plaintiffs have also presented evidence that Cabasug was exposed to
replacement gaskets and packing containing asbestos provided by Crane. Crane
technical manuals show that Crane provided on-board repair parts containing
asbestos with the original sale of the valves, see Doc. No. 723-23, Ott Ex. 7; Doc.
Nos. 723-50 - 723-53, Ott Exs. 31-33, and Crane advertised its ability to “provide
the exact replacement match, based on original specifications.” Doc. No. 724-31,
Ott Ex. 12. Further, both Ott and Cabasug assert that it was the preferred practice
to order replacement parts from the original manufacturer, Doc. No. 724-6, Pls.’
Ex. D at 270-71, Doc. No. 725-15, Ott Decl. ¶ 52, and Ott asserts that Crane’s
technical manuals did not provide sufficient technical information for others to
manufacture the replacement parts. Doc. No. 724-15; Ott Decl. ¶ 63. That PHNS
obtained replacement parts from Crane is confirmed by evidence that (1) the
Navy’s Ships Parts Control Center purchased 7,021 gaskets and 1,232 packing
rings, which the Navy would keep as back inventory and distribute to various
shipyards, see Doc. No. 724-15, Ott Decl. ¶ 61; Doc. No. 724-37, Ott Ex. 18; and
(2) material inspection and laboratory service requests show that PHNS purchased
Crane asbestos replacement parts for Cabasug vessels. See Doc. No. 724-15, Ott
Decl. ¶¶ 56-60 (discussing Ott Exs. 10, 21, 22 to explain that these material
inspection and laboratory service requests were for asbestos components and for
vessels on which Cabasug worked). Viewed in a light most favorable to Plaintiffs,
this evidence supports the reasonable inference that Cabasug was exposed to
asbestos gaskets and/or packing provided by Crane.
Finally, Plaintiffs have presented evidence that this exposure was a
substantial factor in causing Plaintiffs’ injuries. As opined by Plaintiff’s expert
William E. Longo, Ph.D, the removal of gaskets and packing from steam
equipment creates airborne asbestos dust. Doc. No. 724-10, Pls.’ Ex. H at 26-30.
And according to another of Plaintiffs’ experts, Richard Lemen, Ph.D., all sources
of asbestos exposure increase the individual’s risk of developing an asbestosrelated disease, including mesothelioma. Doc. No. 724-9, Pls.’ Ex. G, Lemen
Decl. ¶¶ 20, 22.16 Thus, the evidence presented supports the reasonable inference
that Cabasug was exposed to respirable asbestos fibers from Crane products, and
that such exposure was a substantial factor in causing Cabasug’s injuries.
In opposition, Crane argues that even if there is a question of fact
whether Cabasug encountered an asbestos-containing gasket or piece of packing
placed into the stream of commerce by Crane, there is no evidence establishing
how routinely he encountered asbestos-containing materials supplied by Crane as
opposed to by others. See Doc. No. 733, Crane Reply at 6-7. According to Crane,
such evidence is necessary to establish substantial exposure over a substantial
period of time as required by Lindstrom. Again, the court rejects that Plaintiffs
The court’s reliance on the Lemen Declaration is not contrary to Lindstrom, which
rejected that an expert declaration opining in “conclusory fashion that every exposure to asbestos
was a substantial factor in Lindstrom’s illness” was sufficient to defeat summary judgment.
See 424 F.3d at 493. Lindstrom reasoned that “[a] holding to the contrary would permit
imposition of liability on the manufacturer of any product with which a worker had the briefest
of encounters on a single occasion.” Id. Unlike in Lindstrom, the court finds that evidence that
Cabasug was exposed to asbestos from a particular Defendant’s product, combined with expert
testimony that such exposure is sufficient to contribute to asbestos-related diseases, is sufficient
to raise a genuine issue of material fact that the product was a substantial factor in causing
must come forward with direct evidence establishing some magic number of
exposures to survive summary judgment. Indeed, Crane’s argument ignores that
Lindstrom does not define what substantial, as opposed to minimal, exposure
means. Rather, as this court explained above, context matters.
And viewed in a light most favorable to Plaintiffs, the court finds that
the evidence supports a reasonable inference that asbestos-containing components
supplied by Crane were a substantial factor in causing Plaintiffs’ injuries where:
(1) Crane valves were prevalent throughout Cabasug vessels; (2) Cabasug worked
on Crane valves “very routinely and regularly” by replacing the internal gaskets
and packing contained within the valves; (3) Cabasug worked on Crane steam
valves, which required and included asbestos components; (4) Crane advertised its
ability to provide replacement parts; (5) the Navy had a preferred practice to order
replacement parts from the original equipment manufacturer; (6) Crane did not
provide sufficient technical information for others to manufacturer the replacement
parts; (7) PHNS purchased Crane asbestos replacement parts for Cabasug vessels;
(8) Cabasug’s work on valves created airborne asbestos dust; and (9) each
exposure to respirable asbestos fibers increases the risk of contacting
mesothelioma. In other words, this evidence suggests that Cabasug was exposed to
some number of Crane replacement parts containing asbestos and that such
exposure was a substantial factor in causing Plaintiffs’ injuries.
The court therefore DENIES Crane’s Motion for Summary Judgment
as to the gaskets and packing provided by Crane. To the extent Plaintiffs asserted
any claims on external insulation, however, there is no evidence that Crane
provided such components. The court therefore GRANTS Crane’s Motion as to
any external insulation.
Cleaver Brooks’ Motion for Summary Judgment, Doc. No. 674
Plaintiffs assert claims against Cleaver Brooks based on its former
parent company, Aqua Chem, Inc.’s manufacture and supply to PHNS distilling
plants, including their various components. See Doc. No. 661, TAC ¶ 4. Cleaver
Brooks argues that summary judgment should be granted on Plaintiffs’ claims
because Plaintiffs have failed to raise a genuine issue of material fact that Cabasug
was exposed to any asbestos that Aqua Chem placed into the stream of commerce.
Viewing the evidence in a light most favorable to Plaintiffs, the court
finds that Plaintiffs have established a genuine issue of material fact that Cabasug
was exposed to Aqua Chem distilling plants. According to Ott, there were a total
of twenty-one Aqua Chem distilling plants on eleven of the vessels on which
Cabasug worked. Doc. No. 718-1, Ott Decl. ¶ 15. Cabasug has asserted in both
his interrogatory responses and his deposition testimony that he specifically
recalled working on Aqua Chem distillers. For example, in Plaintiffs’ January 31,
2013 Amended Answer to Interrogatories, Cabasug stated that he worked on Aqua
Chem distillers, explaining that he “did a lot of work on all parts of the distillers,
including the associated piping and valves, all of which involved the removal and
replacement of the insulation and the gaskets and packing.” Doc. No. 718-33, Pls.’
Ex. 3 at 10. And during his February 27, 2013 deposition, Cabasug testified that
he worked on Aqua Chem distillers by replacing their gaskets and packing, that an
overhaul would take four to six months, and that he performed this overhaul work
“routinely and regularly.” Doc. No. 718-31, Pls.’ Ex. 1 at 373-75. This testimony
is echoed by Cabasug’s former supervisor, Richard Felimer, who asserts that they
spent forty-percent of their time overhauling Aqua Chem distillers, and that
Cabasug, Felimer, and other coworkers were part of a “cooler gang” that was
repeatedly given this work maintaining distillers. Doc. No. 718-10, Ott Ex. 6,
Felimer Decl. ¶¶ 3-4.
Plaintiffs have also presented evidence that these distillers contained
asbestos components. Both Ott and Felimer explained that these distillers
contained asbestos components including insulation, packing, and gaskets, see
Doc. No. 718-1, Ott Decl. ¶¶ 18-23, Doc. No. 718-10, Ott Ex. 6, Felimer Decl.
¶¶ 8, 10, 12, and Cleaver Brooks’ technical manuals confirm this assertion. See,
e.g., Doc. Nos. 718-3 - 718-5, Ott Exs. 2-4.
Finally, Plaintiffs have presented evidence which raises the reasonable
inference that the asbestos components to which Cabasug was exposed were
supplied by Aqua Chem and/or Cleaver Brooks. Although the original asbestos
components may have been replaced by the time Cabasug started working at
PHNS, Ott, Felimer, and Cabasug all assert that it was standard practice for the
Navy (and PHNS in particular) to order replacement parts from the original
equipment manufacturer. See Doc. No. 718-1, Ott Decl. ¶ 25(d); Doc. No. 718-10,
Ott Ex. 6, Felimer Decl. ¶¶ 13-14; Doc. No. 718-31, Pls.’ Ex. 1 at 37. And there
appears to be little dispute that Cleaver Brooks offered replacement parts -Cleaver Brooks provided instructions in its technical manuals for ordering
replacement parts from Cleaver Brooks, see Doc. No. 718-1, Ott Decl. ¶ 25(e), (f);
Doc. No. 718-7, Ott Ex. 3 (technical manual); and Cleaver Brooks’ corporate
representative testified that Cleaver Brooks provided these instructions with the
hope that customers would order from Cleaver Brooks, and that “Cleaver Brooks
has always sold replacement gaskets.” Doc. No. 718-41, Pls.’ Ex. 10 at 44, 69; see
also Doc. No. 718-42, Pls.’ Ex. 11 at 46 (admitting that Cleaver Brooks sold
asbestos-containing gaskets as replacement parts); Doc. No. 718-9, Ott Ex. 5
(purchase orders for replacement gaskets from Cleaver Brooks by Bath Iron
Works). Indeed, Cleaver Brooks offers no evidence suggesting that it did not sell
replacement gaskets as a regular part of its business. Viewed in a light most
favorable to Plaintiffs, this evidence supports the reasonable inference that
Cabasug was exposed to asbestos components that were supplied by Aqua Chem
and/or Cleaver Brooks.
In opposition, Cleaver Brooks argues that the court should disregard
Cabasug’s and Felimer’s testimony that Cabasug worked extensively on distillers
as “sham testimony” in contradiction of their earlier statements. See Doc. No. 747,
Cleaver Brooks Reply at 10-12. As to Cabasug, Cleaver Brooks asserts that
Cabasug’s recent testimony regarding distillers contradicts (1) his first deposition
on December 3, 2013 in which he never described that his work at PHNS involved
distillers, see Doc. No. 747-4, Cleaver Brooks Ex. C (mentioning the word
“distiller” only once); and (2) paperwork called “Standard Form 171s” that
Cabasug filled out at PHNS from 1973 through 1975, and in which he described
his work as a pipefitter yet never mentioned distillers. See Doc. Nos. 747-2, 747-3,
Cleaver Brooks Exs. A-B. As to Felimer, Cleaver Brooks asserts that his
testimony contradicts: (1) Felimer’s interrogatory responses he provided in his own
asbestos products liability action in which failed to mention any work on distillers,
Doc. No. 747-5, Cleaver Brooks Ex. D; and (2) Felimer’s Standard Form 171
signed on February 10, 1979 and describing his work from 1966 to 1979, which
does not mention any work on distillers despite listing a number of “pertinent
machinery” on which he worked. Doc. No. 747-6, Cleaver Brooks Ex. E. Cleaver
Brooks further asserts that Cabasug’s and Felimer’s testimony contradicts
assertions by other Shop 56 pipefitters, who never named any distiller
manufacturers in their asbestos actions and never asserted they did any work on
distillers. See Doc. Nos. 747-8 - 747-11, Cleaver Brooks Exs. G-J (Conrad Palafox
and Clifford Mattos).
Although this evidence certainly calls into question the credibility of
Felimer’s and Cabasug’s recent assertions that Cabasug worked on distillers, the
sham testimony rule applies in limited circumstances. Yeager v. Bowlin, 693 F.3d
1076, 1080 (9th Cir. 2012), recently explained that this rule:
prevents “a party who has been examined at length on
deposition” from “rais[ing] an issue of fact simply by
submitting an affidavit contradicting his own prior
testimony,” which “would greatly diminish the utility of
summary judgment as a procedure for screening out sham
issues of fact.” [Kennedy v. Allied Mut. Ins. Co., 952
F.2d 262, 266 (9th Cir. 1991)] (internal quotation marks
omitted); see also [Van Asdale v. Int’l Game Tech., 577
F.3d 989, 998 (9th Cir. 2009)] (stating that some form of
the sham affidavit rule is necessary to maintain the
principle that summary judgment is an integral part of the
federal rules). But the sham affidavit rule “‘should be
applied with caution’” because it is in tension with the
principle that the court is not to make credibility
determinations when granting or denying summary
judgment. Id. (quoting Sch. Dist. No. 1J v. ACandS, Inc.,
5 F.3d 1255, 1264 (9th Cir. 1993)). In order to trigger
the sham affidavit rule, the district court must make a
factual determination that the contradiction is a sham,
and the “inconsistency between a party’s deposition
testimony and subsequent affidavit must be clear and
unambiguous to justify striking the affidavit.” Id. at 99899.
Applying this framework, much of the evidence Cleaver Brooks
points to as contradicting Cabasug’s and Felimer’s recent statements regarding
distillers is not the proper subject for the sham affidavit rule. The rule applies
where a party’s affidavit, submitted to oppose summary judgment, contradicts that
party’s prior deposition testimony. Id. The rule does not extend to statements
made by the parties outside the context of litigation, much less to statements made
to those other than the declarant. Weighing such evidence -- in this case, the
Standard Form 171s and statements of other coworkers -- is the province of the
jury, not the judge. See Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009)
(“[W]e decline to extend our sham affidavit jurisprudence to preclude the
consideration of testimony from third parties that is arguably inconsistent with a
party’s own testimony.”).
As to Felimer, he is not a party in this action, and by its plain terms
the sham affidavit rule applies where a party provides conflicting testimony to
avoid summary judgment. Generally, third parties such as Felimer are not
motivated to create “sham” testimony such that conflicts in third-party testimony
are for the jury to resolve. See Lane v. Celotex Corp., 782 F.2d 1526, 1530 (11th
Cir. 1986) (refusing to apply sham affidavit rule to third party testimony because
although “a district court may find that a party’s contradictory affidavit constitutes
a sham . . . we would be unable, absent great trepidation, to affirm a similar finding
with respect to a disinterested witness’ contradictory affidavit”). But even if the
court applied the sham affidavit rule to Felimer, his interrogatory responses in his
own asbestos action are not detailed such that the court cannot determine whether
they were intended to be a full and complete description of all work he performed
on all types of equipment at PHNS. As a result, his interrogatory responses do not
create a clear and unambiguous inconsistency with his later deposition testimony
and declaration in this action.
Finally, as to Cabasug, it is true that Cabasug did not mention his
work on distillers during his first deposition. But it is also true that Cabasug was
not specifically asked about his work on distillers, and the court cannot discern
whether Cabasug was asked at this first deposition to otherwise describe all work
on all equipment he did at PHNS. The sham affidavit rule applies where there is a
clear inconsistency in testimony, not where the possibility of memory lapses exists.
Given these gaps and open questions, the inconsistency with Cabasug’s later
deposition testimony and interrogatory responses is not so clear and unambiguous
to justify striking this evidence under the sham affidavit rule.
In sum, the court finds that a reasonable inference may be drawn that
Cabasug was exposed to asbestos gaskets and packing from Aqua Chem and/or
Cleaver Brooks based on the evidence that: (1) Cabasug specifically recalled
working on Aqua Chem distillers by replacing their gaskets and packing; (2) both
Ott and Felimer assert that the gaskets and packing of the distillers contained
asbestos; (3) Cleaver Brooks provided instructions for ordering replacement parts;
and (4) selling replacement parts, including asbestos gaskets, was a regular part of
Cleaver Brooks’ business. The court therefore DENIES Cleaver Brooks’ Motion
for Summary Judgment.
Based on the above, the court: (1) DENIES Defendant
Cleaver-Brooks, Inc.’s Amended Motion for Summary Judgment, Doc. No. 674;
(2) GRANTS Defendant Ametek Inc.’s Motion for Summary Judgment, Doc. No.
676; (3) GRANTS in part and DENIES in part Defendant Aurora Pump
Company’s Motion for Summary Judgment, Doc. No. 678; (4) DENIES Plaintiffs’
Motion for Summary Adjudication on the Duty to Warn Under Maritime Law,
Doc. No. 683; and (5) GRANTS in part and DENIES in part Crane Company’s
Motion for Summary Judgment, Doc. No. 690.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 26, 2013.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Cabasug et al. v. Crane Co. et al., Civ. No. 12-00313 JMS/BMK, Order Addressing Various
Motions for Summary Judgment Raising Issues of Causation and the Duty to Warn (Doc. Nos.
674, 676, 678, 683, and 690)
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