Greenleaf v. Atlas Copco Compressors, L.L.C. et al
Filing
377
ORDER DENYING Motion for Summary Judgment filed by Ingersoll-Rand Company [Doc. 199]. Signed by Judge Staci M. Yandle on 9/25/15. (mah)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KENNETH R. GREENLEAF
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Plaintiff,
vs.
ATLAS COPCO COMPRESSORS, LLC,
et al.,
Case No. 14-CV-51-SMY-SCW
Defendants.
MEMORANDUM AND ORDER
YANDLE, District Judge:
Pending before the Court is the Motion for Summary Judgment filed by Defendant IngersollRand Company (Doc. 199). For the reasons set forth below, the Motion is DENIED.
BACKGROUND
Plaintiff Kenneth Greenleaf filed this action alleging he sustained injuries as a result of
exposure to asbestos-containing products attributable to John Crane and various other defendants
(see Doc. 3-1). More specifically, Plaintiff alleges he contracted bilateral pulmonary asbestosis as a
result of inhaling airborne asbestos fibers while serving aboard United States Navy ships as an
enlisted officer between 1957 and 1980 (Doc. 3-1; Doc. 239-4).
Plaintiff served aboard the USS Roosevelt (“Roosevelt”) as a fireman and helper to machinist
mates from 1958 until 1962 (Doc. 239-1, pp. 41-43). From 1963 until 1969, Plaintiff served aboard
the USS Ault (Id. at p. 47). In 1969, Plaintiff was stationed on the USS Tweedy and USS Ingraham
(Id. at pp. 48-50). In 1970, Plaintiff was promoted to Chief Petty Officer (Id. at p. 51). From 1974
until 1976, Plaintiff was assigned to staff duty in DESRON 22 where he served as the engineer
representative for the squadron and rode on numerous ships (Id. at pp. 53-54). In 1976, Plaintiff was
assigned to the USS Donald B. Beary and served as the Senior Chief of Command in the engineering
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department (Doc. 239-1, p. 57). From 1978 until 1980, Plaintiff served aboard the USS Henry B.
Wilson (“Wilson”), where he spent half of each day on watch in the engine room (Id. at pp. 58-60).
As a fireman apprentice on the Roosevelt, Plaintiff worked in the engine and boiler rooms
(Doc. 239-1, pp. 43-44). On several other vessels, Plaintiff worked in the engineering spaces (Doc.
239-1, pp. 96-97, pp. 99-100). The temperature in the engineering spaces was between 120 and 140
degrees Fahrenheit (Doc. 239-3, p. 151). The machinery required asbestos insulation to enable the
men to work in the space and to prevent individuals from getting burned (Id. at pp. 153-154).
The Roosevelt had four engine rooms, four generating rooms, four pump rooms, twelve
boiler rooms, and a couple of auxiliary spaces (Id. at p. 74). On the Roosevelt, Plaintiff was assigned
to the No. 1 engine group, where there was a high and low pressure turbine, oil pumps, condensate
pumps, a main condenser and the reduction gears (Id. at pp. 74-75). During his service aboard the
Roosevelt, Plaintiff replaced packing and gaskets on Ingersoll-Rand screw-style lube oil pumps and
steam pumps (Doc. 239-1, pp. 286-288, p. 311, p. 317). He replaced Garlock asbestos-containing
gaskets every nine months to a year (Id.). Ingersoll-Rand’s manual specified its replacement gasket
material (Id. at p. 72). Plaintiff also replaced the packing on Ingersoll-Rand pumps every six months
(Id.). The old insulation was cut off with a hacksaw (Doc. 239-1, pp. 282-284; Doc. 239-3, p. 128).
The asbestos-containing gaskets were then scraped or wire brushed off the flanges of the machinery
(Id.). The lagging was made of diatomaceous earth with asbestos and asbestos cloth over the top of it
(Id. at pp. 290-291). Plaintiff breathed in the dust (Id.; see also Doc. 239-5, pp. 121-123).
Plaintiff was never warned of the dangers of asbestos in the manufacturer manuals provided
(Doc. 239-1, p. 301). Ingersoll-Rand specified the replacement of gaskets using asbestos-containing
Garlock sheet gasket material (Doc. 239-1, p. 283). Ingersoll-Rand was aware that its equipment
needed asbestos-containing gaskets (Doc. 239-3, p. 133; Doc. 239-2; Doc. 239-4).
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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 noted, summary judgment is “the put up or shut up moment in a lawsuit, when a
party must show what 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).
Applicable Law
As an initial matter, the Court must determine what law governs this lawsuit: Illinois or
maritime law. Ingersoll-Rand asserts that maritime law applies because Plaintiff’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 – Ingersoll-Rand 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”),
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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:
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, Plaintiff’s alleged exposure to asbestos
occurred exclusively during his naval service from 1957 until 1980. Specifically, Plaintiff alleges
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asbestos exposure from his work in the engineering spaces of various vessels. This work occurred
while the vessels traveled navigable waters as well as while the ships were 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 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 this Defendant.
Causation
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
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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.
Here, Plaintiff testified that he changed out packing and gaskets on Ingersoll-Rand pumps
during his tenure on the Roosevelt. The gaskets he utilized contained asbestos. Plaintiff further
testified that Ingersoll-Rand’s manual specified its replacement gasket material.
Plaintiff also
replaced packing on Ingersoll-Rand pumps every six months. Replacing packing and removing old
gasket material was a dusty process. Thus, there is sufficient circumstantial evidence of asbestos
exposure to avoid summary judgment.
Duty to Warn
Ingersoll-Rand next argues that it is not liable for injuries caused by products it neither
manufactured nor distributed and that “it is undeniable in this case that a metal pump does not
contain or give off any asbestos dust or asbestos fibers.” This is sometimes referred to as the “bare
metal defense.” See Quirin, 17 F.Supp.3d at 769-770. In Quirin, the Northern District of Illinois
noted:
In general, consistent with the bare metal defense, a manufacturer is not liable for
materials it did not supply. But a duty may attach where the defendant manufactured
a product that, by necessity, contained asbestos components, where the asbestoscontaining material was essential to the proper functioning of the defendant's product,
and where the asbestos-containing material would necessarily be replaced by other
asbestos-containing material, whether supplied by the original manufacturer or
someone else.
Quirin, 17 F. Supp. 3d at 769-70. The Quirin court denied summary judgment to the defendant,
finding the record contained sufficient evidence for a reasonable jury to conclude that the defendant’s
valves required asbestos-containing components to function in the high heat applications for which
they were marketed. On those facts, the court reasoned that a duty to warn of foreseeable risks could
attach.
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In this case, Plaintiff points to evidence indicating that Ingersoll-Rand products required
asbestos-containing components to function properly in the high-heat applications for which they
were supplied. The temperature in the engineering spaces where Plaintiff worked was between 120
and 140 degrees Fahrenheit. Additionally, Ingersoll-Rand’s manual specified its replacement gasket
material – which contained asbestos. Ingersoll-Rand was aware that asbestos-containing materials
were used with its products. Plaintiff further testified that he was never warned about the dangers of
asbestos nor did the manuals contain warnings. Ingersoll-Rand has not put forth any evidence to the
contrary.
Like the Quirin court, this Court is not convinced that a manufacturer should avoid liability
on a failure to warn theory where it designed its products to be used with asbestos-containing
materials. A jury could certainly conclude it was foreseeable that the product would subject those
working with it to the possible hazards of asbestos exposure. Accordingly, summary judgment is
denied.
IT IS SO ORDERED.
DATED: September 25, 2015
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge
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