McCalvey v. Atlas Copco Compressors, L.L.C. et al

Filing 404

ORDER: Defendant Owens-Illinois, Inc.'s Motion for Summary Judgment (Doc. 328) is DENIED. Signed by Judge Staci M. Yandle on 7/1/15. (cmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GERALD D. MCALVEY,
Plaintiffs,
vs.

Case No. 14-cv-00064-SMY-SCW

ATLAS COPCO COMPRESSORS, L.L.C..,
ET AL.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Owens-Illinois, Inc.’s Motion for
Summary Judgment (Doc. 328). Plaintiff’s Motions for Extension of Time to File Response
(Docs. 362 and 375) are GRANTED, and his response (Doc. 393) is deemed timely filed. For
the following reasons, the motion is DENIED.
In this case, Plaintiff claims he was exposed to asbestos from Defendant's products
during his employment with the United States Navy and that said exposure resulted in his current
asbestosis diagnosis. Defendant filed its Motion for Summary Judgment arguing that Plaintiff
fails to offer evidence that Defendant manufactured or distributed asbestos-containing
components attached to or within pumps used at Plaintiff’s work sites. Defendant further states
that Plaintiff has not provided evidence to meet the “frequency, regularity, and proximity test”
outlined in Thacker v. UNR Industries, Inc., 603 N.E.2d 449 (1992).
Plaintiff served in the U.S. Navy from July 1954 to October 1958. (Doc. 393, Ex. A).
Plaintiff served on the USS Bremerton from November 8, 1954 to February 1956. (Doc. 393, Ex.
A). He served on the USS Franklin D. Roosevelt from February 14, 1956 until July 1957. (Doc.
393, Ex. A). The last ship he served on was the USS Intrepid, which he boarded on June 25,

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1957 and left on May 5, 1958. Id. at 25, 29. Aboard the Bremerton, Plaintiff only worked in the
boiler rooms. (Doc. 393, Ex. B). When Plaintiff boarded the Roosevelt in February of 1956, he
worked on the auxiliary equipment, specifically the air compressors and the fire and flushing
pumps. (Doc. 393, Ex. B).
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 393, 396 (7th Cir. 2000). The reviewing court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v.
Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. In responding to a
summary judgment motion, the nonmoving party may not simply rest upon the allegations
contained in the pleadings but must present specific facts to show that a genuine issue of material
fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26; Johnson v. City of Fort Wayne,
91 F.3d 922, 931 (7th Cir. 1996). In the instant case, Defendant argues that Plaintiff has
produced insufficient evidence to support his allegation of exposure to asbestos fibers from its
products with the regularity, frequency, and proximity required to be a substantial factor to his
injury.
Plaintiffs in asbestos cases may have to rely on circumstantial evidence, especially given
the long latency periods for diseases like mesothelioma. See, e.g., Cabasug v. Crane Co., 989 F.
Supp. 2d 1027, 1033 (D. Haw. 2013). Under both Illinois and maritime law, the plaintiff may
present direct evidence that coworkers saw the plaintiff working with or around the defendant’s
asbestos products, or the plaintiff may produce circumstantial evidence that the plaintiff worked

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in proximity to someone who remembers using the defendant’s product. See Tragarz v. Keene
Corp., 980 F.2d 411, 418 (7th Cir. 1992). Furthermore, evidence that the defendant’s products
were prevalent on the vessel, combined with evidence of the plaintiff’s duties placing him in
close proximity to the product qualify as sufficient circumstantial evidence of exposure. See
Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1038 (D. Haw. 2013).
In this case, there is sufficient circumstantial evidence of such exposure to avoid
summary judgment. Other witnesses present on the ships at or around the same time Plaintiff was
on the ships have testified that Owens-Illinois insulation contained asbestos and was used in
work on machinery and equipment, specifically that on the Roosevelt. (Doc. 393, Ex. E & F).
Plaintiff worked with such insulation aboard both the Bremerton and the Roosevelt. (Doc. 393,
Ex. B). The process produced dust, and Plaintiff breathed in the dust. (Doc. 393, Ex. B). Not
only did Plaintiff work with the packing directly, he was also around others working with the
insulation. (Doc. 393, Ex. B). Additionally, Plaintiff’s experts provide opinions supporting the
assertion that exposure to asbestos dust was a substantial factor in the development of Plaintiff’s
injury. Based on this evidence, a fair-minded jury could indeed return a verdict in favor of the
Plaintiff. Plaintiff’s claim does not fail simply because there is no direct evidence specifically
identifying the maker of the replacement parts that Plaintiff worked with over forty years ago.
See Quirin v. Lorillard Tobacco Co., 2014 WL 585090 (N.D. Ill. Feb. 14, 2014).
Accordingly, Defendant Owens-Illinois, Inc.’s Motion for Summary Judgment (Doc.
328) is DENIED.
IT IS SO ORDERED.

_/s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

DATED: July 1, 2015

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