Bell v. ABB Group, Inc. et al

Filing 394

ORDER GRANTING Motion for Summary Judgment filed by John Crane, Inc. [Doc. 242]. Signed by Judge Staci M. Yandle on 11/24/2015. (mah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

SHARON BELL, Executor of the Estate
of Mr. Richard W. Bell, Deceased,

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Plaintiff,
vs.
THE ABB GROUP, INC., et al.,
Defendants.

Case No. 13-CV-1338-SMY-SCW

MEMORANDUM AND ORDER
YANDLE, District Judge:
Pending before the Court is the Motion for Summary Judgment filed by Defendant John
Crane Inc. (Doc. 242). For the reasons set forth below, the Motion is GRANTED.
FACTUAL BACKGROUND
Decedent Richard Bell served in the U.S. Navy from September 1960 to September 1964
(Doc. 283-1, p. 5). Bell served on the USS Franklin D. Roosevelt (“Roosevelt”) from January
1961 to November 1962 (see Doc. 283-1). Plaintiff’s principal fact witness is Michael Loveless
(see Doc. 283-2). 1 Loveless recalled working with an individual named Bell while on laundry
sorting detail aboard the Roosevelt (Doc. 243-3, p. 10). However, he did not know whether the
Bell he recalled was actually Richard Bell. Id. Loveless was assigned to “B” division (Doc.
243-3, p. 75). Loveless assumed that Bell also served in “B” division (Doc. 283-2, p. 2). The
seamen assigned to “B” division had various duties, including the operation of boilers and

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Although Plaintiff was also disclosed as a fact witness, she testified that she had no knowledge
regarding the products Bell worked with in the Navy. See Doc. 243-2, p. 70.

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evaporators, taking care of fuel, the loading of stores and ammo, firefighting, and other duties
(Doc. 243-3, pp. 79-80).
Loveless testified that packing was utilized aboard the Roosevelt on emergency feed
pumps and valves (Doc. 283-2, pp. 56-59). Loveless thought the packing was manufactured by
John Crane, Crane, and/or Garlock (Doc. 283-2, p. 59). However, Loveless was unable to offer
any further details regarding the packing utilized such as a description of the packaging or any
part numbers (Doc. 243-3, pp. 99-100). Loveless did not see Bell work with any packing nor did
he see Bell present while others worked with packing material (Doc. 243-3, p. 91).
ANALYSIS
Summary judgment is proper only if the moving party can demonstrate that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also
RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005);
Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th
Cir. 2005). The moving party bears the burden of establishing that no material facts are in
genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the
moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970). See also Lawrence v.
Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a
matter of law where the non-moving party “has failed to make a sufficient showing on an
essential element of her case with respect to which she has the burden of proof.” Celotex, 477
U.S. at 323. “[A] complete failure of proof concerning an essential element of a nonmoving
party's case necessarily renders all other facts immaterial.” Id. As the Seventh Circuit has noted,
summary judgment is “the put up or shut up moment in a lawsuit, when a party must show what

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evidence it has that would convince a trier of fact to accept its version of the events.” Steen v.
Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407
F.3d 852, 859 (7th Cir. 2005) (other citations omitted).
As an initial matter, the Court must determine what law governs this lawsuit: Illinois or
maritime law.

John Crane asserts that maritime law applies because Decedent’s alleged

exposure to its products occurred while he was onboard the Roosevelt. Plaintiff does not dispute
the applicability of maritime law. Rather, Plaintiff contends there is no conflict between Illinois
law and maritime law because the outcome is the same – John Crane is not entitled to summary
judgment.
Normally, federal courts apply the choice of law rules of the forum state to determine
what substantive law governs an action. See Various Plaintiffs v. Various Defendants (“Oil
Field Cases”), 673 F.Supp.2d 358, 362–63 (E.D.Pa.2009). If the case sounds in admiralty,
however, it would be inappropriate to apply Illinois law instead of federal admiralty law. See 28
U.S.C. § 1333(1). Therefore, “[t]he initial step in the choice of law analysis is to determine
whether this case “sounds in admiralty.” Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 131 (3rd
Cir. 2002). Whether maritime law is applicable is a threshold issue that is a question of federal
law governed by the law of the circuit in which the district court sits. Conner v. Alfa Laval, Inc.,
799 F.Supp.2d 455, 460 (E.D.Pa.2011) (citing U.S.C.A. Const. Art. III, § 2; 28 U.S.C. § 1333(1);
In re Asbestos Prods. Liab. Litig. (Oil Field Cases), 673 F.Supp.2d 358, 362 (E.D.Pa.2009)).
In order for maritime law to apply, a plaintiff's exposure underlying a products liability
claim must meet both a locality test and a connection test. In Jerome B. Grubart v. Great Lakes
Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), the Supreme
Court defined these tests as follows:

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A court applying the location test must determine whether the tort occurred on
navigable water or whether injury suffered on land was caused by a vessel on
navigable water. The connection test raises two issues. A court, first, must
“assess the general features of the type of incident involved,” to determine
whether the incident has “a potentially disruptive impact on maritime commerce
[.]” Second, a court must determine whether “the general character” of the
“activity giving rise to the incident” shows a “substantial relationship to
traditional maritime activity.”
Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (internal citations omitted).
The locality test requires that the tort occur on navigable waters or, for injuries suffered
on land, that the injury is caused by a vessel on navigable waters. Grubart, 513 U.S. at 534, 115
S.Ct. 1043. The locality test is satisfied as long as some portion of the asbestos exposure
occurred on a vessel on navigable waters. See Conner, 799 F.Supp.2d at 466. “In assessing
whether work was on ‘navigable waters' (i.e., was sea-based) it is important to note that work
performed aboard a ship that is docked at the shipyard is sea-based work, performed on
navigable waters.” Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990).
Here, Decedent’s alleged exposure to asbestos occurred during his naval service from 1960 until
1964. Specifically, Plaintiff alleges asbestos exposure from Decedent’s work aboard the
Roosevelt. This work occurred while the vessel traveled navigable waters as well as while the
ship was dry-docked. Thus, the locality test is met.
The connection test requires that “the type of incident involved has a potentially
disruptive impact on maritime commerce and that the general character of the activity giving rise
to the incident shows a substantial relationship to traditional maritime activity.” Grubart, 513
U.S. at 534, 115 S.Ct. 1043 (quoting Sisson, 497 U.S. at 364, 365 & n. 2, 110 S.Ct. 2892). If an
allegedly defective product was produced for use on a naval vessel, an ensuing tort inflicted on a
sea-based service member working on that vessel is governed by maritime law. See Quirin v.
Lorillard Tobacco Co., 17 F. Supp. 3d 760, 767 (N.D. Ill. 2014). The Court finds that the
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products at issue in this case were essential for the proper functioning of ships and bear a
substantial relationship to traditional maritime activity. Therefore, the connection test is also
satisfied. Accordingly, maritime law is applicable to Plaintiff’s claims against John Crane.
In determining whether a defendant is liable under maritime law for injuries caused by
asbestos used in its products, a plaintiff must establish causation. See Lindstrom v. A–C Prod.
Liab. Trust, 424 F.3d 488, 492 (6th Cir.2005). Causation is established under maritime law by
showing that (1) the plaintiff was exposed to the defendant’s product and (2) the product was a
substantial factor in causing the plaintiff’s injury. See Conner, 842 F. Supp. 2d at 797. There
must be evidence of more than a “minimal contact” or “minimal exposure” to the defendant’s
product. Lindstrom, 424 F.3d at 492. A plaintiff may raise a genuine issue of material fact by
presenting direct evidence that he worked on or near the asbestos-containing components of
specific products. Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1037-38 (D. Haw. 2013). A
plaintiff may also present circumstantial evidence of exposure; evidence regarding the
prevalence of a defendant's product, combined with evidence of a plaintiff’s regular duties, may
support the reasonable inference that a plaintiff worked on a particular product. Id.; see also
Tragarz v. Keene Corp., 980 F.2d 411, 418 (7th Cir. 1992). A plaintiff does not have to present
direct evidence that he recalled working on a particular product by the defendant or recall the
particular vessel upon which it was installed. Id.
John Crane asserts that the proffered evidence does not prove the Decedent was exposed
to any of John Crane’s asbestos-containing products or that these products were a substantial
factor in the Decedent’s lung cancer. The Court agrees. There is insufficient evidence to
connect Bell with any John Crane products or to connect a John Crane product with asbestos that
caused Bell’s lung cancer. Plaintiff’s sole witness was unsure whether he worked with Bell.

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Loveless only worked with a Bell while serving in laundry sorting detail. Although Loveless
testified that he may have used packing manufactured by John Crane, there is no evidence that
Bell also worked with or around any packing materials.

Loveless testified that he never

witnessed Bell working with or around any packing material. Plaintiff also did not know
whether Bell worked with packing while in the military.
While all reasonable inferences must be drawn in favor of Plaintiff, Plaintiff cannot
create a genuine issue of material fact through mere speculation or the building of inference upon
inference. Instead, inferences must be supported by facts in the record, not by speculation or
conjecture. See Lindstrom, 424 F.3d at 492 (“[A] mere showing that defendant's product was
present somewhere at plaintiff's place of work is insufficient [to establish causation]). Here, the
record does not contain enough circumstantial evidence to create a genuine issue of material fact.
Accordingly, summary judgment is GRANTED.
IT IS SO ORDERED.
DATED: November 24, 2015
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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