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

Filing 416

ORDER DENYING 308 Motion for Summary Judgment and Memorandum of Law filed by Ingersoll Rand Company. Plaintiff's Motion for Extension of Time to File Response/Reply 362 is GRANTED. Signed by Judge Staci M. Yandle on 8/28/15. (mah)

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

GERALD D. MCALVEY,

)
)
Plaintiff,
)
)
vs.
)
)
ATLAS COPCO COMPRESSORS, L.L.C., )
et al.,
)
)
Defendants.

Case No. 14-CV-64 –SMY-SCW

MEMORANDUM AND ORDER
YANDLE, District Judge:
This matter comes before the Court on Defendant Ingersoll-Rand Company’s Motion for
Summary Judgment (Doc. 308). Plaintiff’s Motion for Extension of Time to File Response to
the Motion (Doc. 362) is GRANTED and the response (Doc. 389) is deemed timely filed. For
the following reasons, Defendant’s Motion for Summary Judgment is DENIED.
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 argues that Plaintiff’s claims are barred by Statute of Limitations.

Defendant further argues that Plaintiff fails to offer evidence that it manufactured or distributed
asbestos-containing components attached to or within pumps used at Plaintiff’s work sites.
Additionally, Defendant 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). Defendant further argues that it had no duty to Plaintiff for third party products.
Plaintiff served in the U.S. Navy from July 1954 to October 1958 (Doc. 389, Ex. A).
Plaintiff served on the USS Bremerton from November 8, 1954 to February 1956 (Doc. 389, Ex.
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A). He served on the USS Franklin D. Roosevelt from February 14, 1956 until July 1957 (Doc.
389, Ex. A). The last ship he served on was the USS Intrepid, which he boarded on June 25,
1957 and left on May 5, 1958 (Doc. 389, Ex. A). Aboard the Bremerton, Plaintiff only worked
in the boiler rooms (Doc. 389, 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. 389, 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 392, 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).
Plaintiff’s claims are not barred by the Statute of Limitations under either Illinois Law or
Maritime Law. Where an injury occurs gradually, the discovery rule in Illinois provides that a
cause of action accrues when a person knows or should have known, through reasonable
investigation, of the injury and it wrongful causation. See Nolan v. Johns-Manville Asbestos,
421 N.E.2d 864, 868 (Ill. 1981). The question of whether the plaintiff “knew or reasonably
should have known” is a question of fact. Id. at 869.

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In this case, Plaintiff was treated by Dr. Richard Felt, a respiratory therapist, since the
1970’s (Doc. 389, Ex. B). While a notation under the heading of “past medical history” in a
report by Dr. Felt dated July 3, 2002, states “history of pneumoconiosis, asbestosis,” Plaintiff
was not diagnosed with asbestosis at that time (Doc. 389, Exs. B, G). Plaintiff testified that he
did not believe he had an asbestos related disease until March 2013, and he was not diagnosed
with asbestosis until May 1, 2013 (Doc. 389, Exs. B, H). When viewing the evidence in the light
most favorable to Plaintiff, a reasonable juror could find that Plaintiff did not know or should not
have known about his injury until his diagnosis on May 1, 2013. See Nolan v. Johns-Manville
Asbestos, 421 N.E.2d 864, 869 (Ill. 1981); Martin v. A & M Insulation Co., 566 N.E.2d 375, 379
(Ill. App. Ct. 1990); Salisbury v. Asbestos Corporation Ltd., 2014 WL 345214 (E.D. Pa. 2014)
(applying maritime law to hold a question of material fact as to the statute of limitations issue
existed in an asbestos injury claim). Given this claim was filed within two years of Plaintiff’s
diagnosis and there are issues of material fact regarding when Plaintiff knew or should have
known of his injury, a grant of summary judgment on the issue of the statute of limitations is
inappropriate.
Here, while Defendant argues that Plaintiff 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, there is sufficient direct and
circumstantial evidence of such exposure to avoid summary judgment.

In his deposition,

Plaintiff testified that Ingersoll-Rand was the manufacturer of pumps he worked with during his
Naval service (Doc. 389, Ex. B). He recalled that the Ingersoll-Rand pumps needed maintenance
frequently (Doc. 389, Ex. B). Plaintiff replaced packing on the Ingersoll-Rand pumps as needed,
and the packing contained asbestos (Doc. 389, Ex. B). Plaintiff changed packing aboard both the

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Bremerton and the Roosevelt (Doc. 389, Ex. B). The process of replacing the packing produced
dust, and Plaintiff breathed in the dust (Doc. 389, Ex. B). Not only did Plaintiff work with the
pumps directly, he was also around others working with the pumps, and witnesses have
corroborated his testimony, stating that Ingersoll-Rand pumps and air compressors were aboard
at least one ship that Plaintiff worked on (Doc. 389, Exs. B, D, E, and F). The manual provided
by Ingersoll-Rand for the equipment specified that packing and gaskets be used on the
machinery, and the specified materials included asbestos (Doc. 389, Exs. B, F). 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.
Regarding Defendant’s argument that it had no duty to Plaintiff, it is true that a
manufacturer has no liability for harm caused by, and no duty to warn about, the hazards
associated with asbestos-containing products it did not manufacture or supply. See Conner v.
Alfa Laval, Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012). However, in a negligent failure-towarn action, “a duty may attach where the defendant manufactured a product that, by necessity,
contained asbestos components, where the asbestos-containing 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 v. Lorillard Tobacco Co., No. 13 C 2633, 2014 WL
585090, *8 (N.D. Ill. Feb. 14, 2014).
Here, Plaintiff has produced sufficient evidence to withstand summary judgment on this
issue. There is testimony identifying Defendant from its name on pumps seen by Plaintiff while
employed by the Navy. The manual for the pumps indicated that asbestos containing materials

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were used in conjunction with the pumps, and Plaintiff changed packing on the pumps and
inhaled asbestos dust while doing so.
Accordingly, Defendant Ingersoll-Rand Company’s Motion for Summary Judgment
(Doc. 308) is DENIED.
IT IS SO ORDERED.
DATED: August 28, 2015
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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