Watts v. 84 Lumber Company et al

Filing 445

ORDER DENYING Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judgment filed by Excelsior Packing & Gaskets 362 . Signed by Judge Staci M. Yandle on 1/28/2016. (mah)

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

STEVEN WATTS,

)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
84 LUMBER COMPANY et al.,
Defendants.

Case No. 14-CV-327-SMY-DGW

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Steven Watts brings this action alleging he sustained injuries as a result of
exposure to asbestos-containing products attributable to Excelsior Packing & Gasket Company
(“Excelsior”) and various other defendants (see Doc. 2-1). Pending before the Court is the
Motion for Summary Judgment filed by Excelsior (Doc. 362). For the following reasons, the
motion is DENIED.
BACKGROUND
Plaintiff alleges he contracted lung cancer as a result of inhaling airborne asbestos fibers
during the course of his employment in the 1960s and 1970s (Doc. 2-1). He asserts he was
exposed to asbestos-containing products manufactured by Excelsior during his service as an
enlisted officer in United States Navy from 1970 to 1975. Id. Plaintiff enlisted in the Navy on
February 2, 1970 (Doc. 362-1, p. 38). Following basic training, Plaintiff served on the U.S.S.
Surfbird (“Surfbird”) for one year. Id. at pp. 41-42. After serving on the Surfbird, Plaintiff
transferred to the U.S.S. Hector (“Hector”), a repair ship. Id. at p. 44. Plaintiff served aboard the
Hector for approximately two years. Id.
1

While aboard both ships, Plaintiff’s duties included replacing gaskets on pumps, valves,
and boilers in the engine rooms of the ships (Doc. 362-1, pp. 42-45). He changed gaskets on
valves countless number of times. Id. at pp. 65-66. Regarding pumps, Plaintiff testified during
his deposition that 95% of his work on pumps involved changing flange gaskets. Id. at p. 58. He
estimated changing flange gaskets on pumps hundreds of times. Id. at p. 66. Plaintiff further
testified that the replacement gaskets were manufactured by Excelsior, Goodyear, and Durabla.
Id. at p. 76. He referred to the gaskets as “asbestos gaskets.” Id.
The process of removing a gasket was similar on valves, pumps, and boilers (Doc. 3621, pp. 58-59). Plaintiff described the old gaskets as “falling apart and cracked, dried.” Id. at p.
50. He used a scraper or chisel to remove old flange gaskets. Id. at pp. 60, 70. The removal
process created dust which went airborne. Id. at pp. 49, 59, 71. The replacement gaskets were
either prefabbed or cut from a sheet. Id. at pp. 50, 59, 72. When using sheet gaskets, Plaintiff
cut a square approximately the same size of the flange, poked holes in it where the bolts went,
used a razor to cut the gasket out, and then trimmed it. Id. This process also created visible dust
which Plaintiff inhaled. Id. Prefabbed gaskets came in packaging. Id. Plaintiff testified the
packaging always contained dust, which he inhaled. Id.
Excelsior’s primary customers were equipment manufacturers (Doc. 389-2).

The

asbestos gasket material came from various suppliers. Id. Excelsior did not know where its
asbestos- containing products were being utilized or for what purposes. Id. However, Excelsior
believes that it was not an approved supplier of products for the Navy and never sold products to
the Navy prior to February 2, 1973 (Doc. 362-2).
DISCUSSION
Summary judgment is proper only if the moving party can demonstrate that there is no

2

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).
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.
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. 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 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).
To prevail on a negligence claim in an asbestos case such as this, the plaintiff must
establish that the defendant's asbestos was a “cause” of the plaintiff's injuries. Thacker v. UNR
Industries, Inc., 603 N.E.2d 449, 455 (Ill. 1992). In cases such as this, plaintiffs often rely
heavily on circumstantial evidence in order to show causation. Id. at 456. In Thacker, the
Supreme Court of Illinois articulated what is understood to be the “frequency, regularity and
proximity test.” As prescribed by this test, in order to have the question of legal causation
submitted to the jury, the plaintiff must show (1) he regularly worked in an area where the
defendant's asbestos was frequently used, and (2) the plaintiff did, in fact, work sufficiently close
to an area where the defendant's asbestos was used, so as to come into contact with the
defendant's product. Id. at 457. A plaintiff cannot present his case to the jury unless there is

3

sufficient evidence for the jury to conclude the defendant's conduct was a cause of the injury.
Johnson v. Owens–Corning Fiberglass Corp., 672 N.E.2d 885, 890 (Ill. App. Ct. 1996).
Moreover, a plaintiff must prove more than just minimal contact with a defendant's asbestos
product. Id.
In Thacker, the Court found that the plaintiff satisfied the “frequency” and “regularity”
prongs of this test by establishing that, during the eight years the decedent worked at the facility
at issue, approximately three percent of the total dust in the plant was attributable to the
defendant. Id. at 459. Moreover, the Court determined that the plaintiff satisfied the “proximity”
element of this test by establishing that no matter where in the plant the defendant's asbestos was
processed, due to “fiber drift,” once inside the plant, the defendant's asbestos necessarily
contributed to the dust in the plant air. Id. In Thacker, the Court made this finding although the
plaintiff had not shown that he specifically handled any asbestos-product of the defendant. Id. at
453. The Court finds the reasoning in Thacker instructive in this case.
Excelsior asserts that there is no testimony or other evidence to create a genuine dispute
of fact regarding Plaintiff’s exposure to any asbestos-containing products attributable to
Excelsior.

The Court disagrees. Plaintiff has provided evidence establishing “frequency,

regularity, and proximity” to Excelsior asbestos-containing products.

Plaintiff specifically

recalled using Excelsior prefabbed and sheet gaskets during his naval service. He described
replacing countless number of gaskets on pumps, valves, and boilers. The process of installing
gaskets created dust which he inhaled.
Plaintiff’s testimony with respect to Excelsior gaskets establishes more than just minimal
contact. For approximately three years, Plaintiff regularly maintained, repaired, and installed
gaskets. Although Excelsior does not deny that it manufactured asbestos-containing gaskets, it

4

argues that it does not believe it was an approved supplier for the Navy (emphasis added). On
the other hand, Plaintiff has produced evidence that Excelsior did not know what its asbestoscontaining gaskets were being used for or in. In other words, the evidence is inconclusive as to
whether Excelsior gaskets were not supplied to the Navy. Based on the circumstantial evidence,
a reasonable jury could conclude that Excelsior gaskets were aboard the Surfbird and Hector. As
such, the Court finds that there are material factual issues remaining in this case and Excelsior’s
Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
DATED: January 28, 2016
s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

.

5