Bell v. Foster Wheeler Energy Corporation, et al

Filing 436

ORDER AND REASONS - IT IS ORDERED that the motions ( 396 , 397 , 398 , 399 , 400 , 401 , 404 , and 405 ) filed by General Electric Company, Crane Company, Buffalo, Aurora Pump Company, Atwood & Morill Co., Inc., CBS Corporation, IMO Industries , Inc., and Warren Pumps, LLC are DENIED. IT IS FURTHER ORDERED that the motions ( 395 & 403 ) filed by York International Corporation and Foster Wheeler Energy Corporation are GRANTED and that all of plaintiffs' claims against York International Corporation and Foster Wheeler Energy Corporation in the above-captioned matter are DISMISSED WITH PREJUDICE. Signed by Judge Lance M Africk. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM C. BELL ET AL.

CIVIL ACTION

VERSUS

No. 15-6394

FOSTER WHEELER ENERGY
CORP. ET AL.

SECTION I

ORDER AND REASONS
Before the Court is the second round of motions for summary judgment filed
by each of the defendants. The Court denied the first motions without prejudice
because they were filed when defendants anticipated that this Court would adopt the
Sixth Circuit’s version of the bare metal defense. As explained in a previous order
and reasons, see R. Doc. No. 352, this Court disagrees with the Sixth Circuit’s
approach and it concludes that the bare metal defense should immunize only a
narrower range of conduct.
The Court allowed defendants to file new summary judgment motions
premised on the liability scheme the Court described in its previous order. In a
December 8, 2016 email to counsel, the Court instructed counsel that: “Any motions
filed must be entirely new motions -- i.e., they should not be additional briefs in
support of arguments made in earlier motions. Any arguments not raised in the new
motions will not be considered.” Several of the defendants ignored that directive and
attempted to incorporate arguments from the original motions into the new motions.
Those arguments will not be considered.

With that understanding in mind, the Court addresses each motion in turn.
For the reasons that follow, the Court grants summary judgment in favor of York
International Corporation and Foster Wheeler Energy Corporation, and denies
summary judgment to all other defendants.
I.
Summary judgment is proper when, after reviewing the pleadings, the
discovery and disclosure materials on file, and any affidavits, the court determines
there is no genuine dispute of material fact. See Fed. R. Civ. P. 56. “[A] party seeking
summary judgment always bears the initial responsibility of informing the district
court of the basis for its motion and identifying those portions of [the record] which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The party seeking summary judgment need not
produce evidence negating the existence of material fact, but need only point out the
absence of evidence supporting the other party’s case. Id.; Fontenot v. Upjohn Co.,
780 F.2d 1190, 1195 (5th Cir. 1986).
Once the party seeking summary judgment carries its burden pursuant to Rule
56, the nonmoving party must come forward with specific facts showing that there is
a genuine dispute of material fact for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). The showing of a genuine dispute is not
satisfied by creating “some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence.” Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (citations omitted). Instead, a
genuine dispute of material fact exists when the “evidence is such that a reasonable
2

jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The party responding to the motion for summary judgment
may not rest upon the pleadings, but must identify specific facts that establish a
genuine dispute. Id. The nonmoving party’s evidence, however, “is to be believed,
and all justifiable inferences are to be drawn in [the nonmoving party’s] favor.” Id.
at 255; see also Hunt v. Cromartie, 526 U.S. 541, 552 (1999).
II.
As many of the defendants’ briefs are similar or even identical in certain
respects, the Court makes several broad rulings before addressing each motion
individually.
A.
First, a number of defendants ask the Court to reconsider its decision in R.
Doc. No. 352. The Court declines to do so. Defendants advance essentially the same
arguments the Court considered and rejected in reaching its original decision. The
Court recognizes that its “third view” of the appropriate scope of liability in these
circumstances is somewhat unique, however this Court is not the first to reject the
strict version of the bare metal defense articulated by the Sixth Circuit in Lindstrom
v. A-C Prods. Liability Trust, 424 F.3d 488, 492 (6th Cir. 2005). See, e.g., Quirin v.
Lorillard Tobacco Co., 17 F. Supp. 3d 760, 769-70 (N.D. Ill. 2014); In re N.Y.C.
Asbestos Litig., ___ N.E.3d ___, 27 N.Y.3d 765, 790-99 (2016). The Court is not
convinced that its decision constituted a manifest error of law.
Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004).

3

See Templet v.

B.
Second, many of the defendants attempt to escape liability by asserting the
government contractor defense. That defense provides immunity to contractors for
conduct that complies with the specifications of a federal contract. Crutchfield v.
Sewerage & Water Bd. of New Orleans, 829 F.3d 370, 375 (5th Cir. 2016) (citing Boyle
v. United Techs. Corp., 487 U.S. 500 (1988)). The defense applies when (1) the
government approved reasonably precise specifications; (2) the equipment conformed
to those specifications; and (3) the contractor warned the government about the
dangers in the use of the equipment that were known to the contractor but not to the
government. Stout v. Borg-Warner Corp., 933 F.2d 331, 334 (5th Cir. 1991) (citing
Boyle, 487 U.S. at 511). The first two elements assure that “the government, and not
the contractor, is exercising discretion in selecting the design.” Id. The third element
is necessary to eliminate any incentive that this defense may create for contractors
to withhold knowledge of risks. Id.
After reviewing the evidence submitted by the parties, the Court is unable to
conclude at this stage that the first two prongs of the government contractor defense
have been satisfied as a matter of law. Further, the Court faces conflicting evidence
regarding the third element of the defense—whether the dangers in the use of the
equipment were known to the defendants but not to the government. These issues
are better left for the jury. See Boyle, 487 U.S. at 514 (“[W]hether the facts establish
the conditions for the defense is a question for the jury.”).

4

C.
Most of the defendants also argue that summary judgment is appropriate
because the plaintiffs cannot prove causation. “Whether the defendant’s conduct was
a substantial factor is a question for the jury, unless the court determines that
reasonable men could not differ.” Borel v. Fibreboard Paper Prods Corp., 493 F.2d
1076, 1094 (5th Cir. 1974). Several of the defendants argue that William Bell does
not offer sufficient specifics or detail in his deposition testimony to conclude that he
was exposed to asbestos in or on the defendant’s products. But the Fifth Circuit “has
inferred proximity to products from purely circumstantial evidence similar to the
evidence in this case.” See Slaughter v. S. Talc Co., 949 F.2d 167, 172 (5th Cir. 1991).
“In Whatley v. Armstrong World Industries, 861 F.2d 837 (5th Cir. 1988), for instance,
[the Fifth Circuit] upheld a jury’s allocation of fault for plaintiff’s asbestos-related
injury, even though there was no direct evidence that the plaintiff had worked with
the defendants’ products.” Id. Except with respect to York International Corporation
and Foster Wheeler Energy Corporation, there is sufficient evidence in the record to
create a genuine material fact dispute as to the extent of William Bell’s exposure to
each defendant’s products. The causation issue is best left for trial, where the jury
can decide for itself the extent of William Bell’s exposure and the jury can benefit
from detailed expert testimony from both sides regarding the nature of asbestos
exposure.

5

There is one additional causation issue worth addressing with respect to expert
testimony. IMO Industries, Inc. argues 1 that a plaintiff cannot meet his burden of
proof on causation in a toxic tort case without expert testimony as to specific
causation. See R. Doc. No. 404-2, at 4. But the cases cited by IMO Industries, see R.
Doc. No. 404-2, at 4 n.12, only establish that expert testimony on causation is
required—not that an expert opinion as to specific causation is required. See, e.g.,
Seaman v. Seacor Marine L.L.C., 326 F. App’x 721, 729 (5th Cir. 2009) (“And, without
admissible expert evidence in this toxic-tort case, Seaman cannot prove causation.”).
IMO Industries essentially alleges that if an expert cannot render a reliable
opinion as to specific causation, then a jury cannot find that the plaintiff proved
specific causation as a matter of law. But that is incorrect. The standard for offering
an opinion as an expert is wholly distinct from the standard by which a jury must
judge the plaintiff’s case. Expert testimony regarding general causation combined
with specific evidence regarding the nature of the decedent’s exposure may be
sufficient to permit the jury to conclude that a particular defendant’s product was a
substantial factor in causing William Bell’s mesothelioma.
D.
1.
There are a couple of global points to address with respect to component part
manufacturers. The party seeking summary judgment need not produce evidence
negating the existence of material fact, but need only point out the absence of

1

Warren Pumps also advances this argument. See R. Doc. No. 405-3, at 4.
6

evidence supporting the other party’s case. Celotex Corp., 477 U.S. at 323. Once the
party seeking summary judgment carries its burden pursuant to Rule 56, the
nonmoving party must come forward with specific facts showing that there is a
genuine dispute of material fact for trial. Matsushita Elec. Indus. Co., 475 U.S. at
587.
The defendants do not suggest an absence of evidence as to whether defendants
(1) knew or had reason to know that asbestos was harmful, 2 (2) knew or had reason
to know that adequate warnings regarding asbestos would not be provided, or (3)
provided warnings. Accordingly, when deciding whether defendants are entitled to
summary judgment, the Court assumes that a genuine dispute of material fact exists
as to each of those issues. As articulated by this Court, a bare metal component part
manufacturer that knows that asbestos is harmful and that insufficient asbestos
warnings would be provided, but nonetheless does not provide a warning regarding
asbestos, may be held liable under general maritime law in three situations. See R.
Doc. No. 352, at 17-18.
First, if the bare metal component manufacturer substantially participated in
the integration of its bare metal part with the asbestos-containing finished product,
the component manufacturer is treated like the manufacturer of the finished product
and may be held liable when the defective finished product causes injury. Second,

The Court notes that the question of whether defendants knew or had reason to
know that asbestos was harmful is legally distinct from the questions raised pursuant
to a government contractor defense such as whether the Navy had greater knowledge
of the hazards of asbestos. The Court declines to transform defendants’ government
contractor defense arguments into something else.

2

7

the bare metal component manufacturer may be liable under certain circumstances
where it supplies its bare metal component to a known incompetent. Liability under
that theory is likely to be rare, and in any event such theory is inapplicable to this
case. Third, if the bare metal component manufacturer recommends that asbestos be
used in conjunction with its bare metal part, the component manufacturer may be
held liable where the recommendation “negligently gives false information to
another,” and “harm results” to either (1) the recipient of the information or (2) “third
persons” that the component manufacturer “should expect to be put in peril by the”
negligent recommendation. Restatement (Second) of Torts § 311.
Because the defendants do not argue in their motions that they did not know
asbestos was harmful, that they did not know insufficient warnings regarding
asbestos would be provided, or that they provided warnings regarding asbestos, the
bare metal component manufacturers can only win summary judgment by
demonstrating (1) that they did not substantially participate in the integration of
their bare metal part with the asbestos-containing finished product, and (2) that they
did not recommend the use of asbestos in conjunction with their product. 3 If the
plaintiffs can direct the Court to a genuine dispute of material fact on either point,
summary judgment would be inappropriate.

As already explained, the Court has rejected summary judgment arguments
premised on the government contractor defense and on a lack of causation, as there
are genuine fact disputes regarding those issues.

3

8

2.
With regard to manufacturers of finished products, if the plaintiffs can
establish that a failure to warn regarding a product as originally manufactured is a
proximate cause of a subsequent asbestos-related injury, then a defendant that
included asbestos components in a finished product without a sufficient warning as
to those components must demonstrate that an aftermarket product was a
superseding cause of any injury. Defendants have not at this stage demonstrated any
superseding causes as a matter of law. Accordingly, given that the Court is deferring,
for now, the issue of whether any manufacturer’s failure to warn was a substantial
factor in causing Mr. Bell’s mesothelioma, plaintiffs can overcome the bare metal
defense simply by demonstrating that a defendant did not ship a bare metal
product—i.e., the defendant shipped a finished product with asbestos components.
The same holds true for manufacturers of non-bare metal components.
III.
The Court first considers the motion 4 for summary judgment filed by York
International Corporation. York supplied the refrigeration compressors for the USS
Noble. 5 York also supplied valves to be used in conjunction with the compressor unit.
Mr. Bell admitted that he did not work on the compressors themselves. 6 Rather, the
plaintiffs claim that Mr. Bell was exposed to asbestos insulation while changing

R. Doc. No. 395.
While York also supplied compressors for another vessel on which Mr. Bell worked,
the USS Grapple, Mr. Bell admitted that no asbestos exposure occurred on the USS
Grapple. See R. Doc. No. 395-3, at 188:12-188:13.
6 R. Doc. No. 395-3, at 188:24-190:3.
4
5

9

valves on pipes connected to the York compressors because Mr. Bell was required to
remove asbestos insulation on the pipes in order to change the valves. 7
A manufacturer is not liable simply upon a showing that asbestos ended up on
the manufacturer’s product many years after a product is manufactured. “When a
claim runs against a manufacturer of a bare metal component part that was used in
conjunction with an asbestos product, then the manufacturer’s liability turns on
whether the manufacturer did something beyond manufacturing the component part
that was used in conjunction with the asbestos.” R. Doc. No. 352, at 17. Because the
plaintiffs point to no genuine dispute of material fact that York has any legal
responsibility whatsoever for the insulation on the compressors, the Court grants
summary judgment in favor of York.
York simply had no connection to any asbestos products with which Mr. Bell
allegedly came into contact. Mr. Bell did not work on the compressors themselves.
The valves supplied by York were delivered in shredded lead packing, not asbestos
packing. 8 Mr. Bell testified that York’s manuals did not specifically call for the use
of asbestos insulation on the pipes to the compressors, 9 and that he did not know the
manufacturer of the insulation on the salt-water lines 10 which connected to York’s

See, e.g., R. Doc. No. 421-4, at 189:24-191:22.
See R. Doc. No. 395-6.
9 See, e.g., R. Doc. No. 421-4, at 191:11.
10 Plaintiffs’ case focuses on the salt-water lines, rather than the refrigerant lines,
because Mr. Bell’s testimony suggests that only the salt-water lines on the ship at
issue had asbestos insulation. See R. Doc. No. 421, at 3 (plaintiffs’ brief noting that
Mr. Bell “stated the black insulation was for the refrigerant lines and that the
asbestos insulation was for the seawater lines” (emphasis added)). York’s expert
report suggests the black insulation on the refrigerant lines was compressed molded
cork, see R. Doc. No. 395-6, at 2-3, and York submits evidence that the Navy
7
8

10

compressors. 11

All he knew was that there was asbestos on and around the

compressors because he knew what asbestos looked like. Mr. Bell’s only basis for
asserting that the asbestos was installed by York was his speculation that “it had to
be” because he did not “think the equipment would work without insulation.” 12 But
Mr. Bell contradicts himself on the latter point in his second deposition when he
testified that the insulation was simply a safety measure. 13

Moreover, even if

insulation was necessary for the compressors to function, that fact neither establishes
that asbestos insulation was required nor that York would even suspect that asbestos
insulation would be used by the Navy.
But even if the use of asbestos insulation on the salt-water piping was
foreseeable to York, this Court has already rejected the notion that a bare metal
component manufacturer has a duty to warn regarding asbestos simply because the
use of asbestos with its product is foreseeable. See R. Doc. No. 352, at 8 (noting that
“such a duty would be impossibly broad”). Accordingly, the plaintiffs simply lack the
necessary evidence that York either supplied, or recommended, or had any connection

regulations mandated that insulation for refrigerant lines was to be made of cork, not
asbestos, see R. Doc. No. 395-7, at 30.
11 See, e.g., R. Doc. No. 310-4, at 196:25. Mr. Bell’s testimony in his second deposition
does not resolve this issue. Mr. Bell’s testimony was not specific as to whether the
asbestos—rather than the compressors—was manufactured by York, see R. Doc. No.
310-5, at 60:5-60:9, and, as such, provides no basis for disregarding Mr. Bell’s
testimony at his first deposition that he did not know who manufactured the asbestos.
12 See, e.g., R. Doc. No. 421-4, at 191:17-18.
13 See, e.g., R. Doc. No. 310-5, at 58:16-22.
11

at all 14 to the asbestos insulation to which Mr. Bell claims to have been exposed to on
the exterior of York’s compressors. 15
There is no genuine dispute of material fact to preclude the Court from
determining that York is not liable in this case. The Court grants York’s motion for
summary judgment and dismisses all claims against York with prejudice.
IV.
The Court now turns to the motion 16 for summary judgment filed by General
Electric Company. Plaintiffs have demonstrated a genuine dispute of material fact
as to whether General Electric supplied products with asbestos components, 17 as to
whether General Electric substantially participated in the integration of its turbine
with asbestos, 18 and as to whether General Electric specified the use of replacement

See, e.g., R. Doc. No. 421-12, at 30:19 (York corporate representative testifying York
compressor did not have asbestos in it).
15 Plaintiffs’ briefing is unclear as to whether plaintiffs allege that Mr. Bell was
exposed to asbestos from a York-supplied or recommend valve, or whether Mr. Bell
was simply exposed to asbestos insulation while changing valves. Regardless,
plaintiffs point to no evidence at all establishing that the York-supplied or
recommended valves on Mr. Bell’s ship had asbestos in them. The best plaintiffs do
is to demonstrate that some York valves that were used for warehouses—and not U.S.
Navy vessels—contained asbestos, see R. Doc. No. 421-12, at 38:2-19, and that is not
sufficient to defeat summary judgment.
16 R. Doc. No. 396.
17 See, e.g., R. Doc. No. 419-6, at 41:17-42:24 (General Electric corporate
representative testifying that General Electric supplied original and replacement
asbestos throttle valve gaskets).
18 See R. Doc. No. 419-9, at 2-3 (declaration from expert that General Electric was
“involved in the design and the development of military specifications for their
equipment, as well as the use and incorporation of asbestos-containing products for
use on and with their equipment”); R. Doc. No. 419-21, at 107:21-24 (testimony from
plaintiff’s expert that “the manufacturer is the guy that is leading the pack when he
is designing a new turbine”); cf. R. Doc. No. 419-6, at 67 (General Electric corporate
representative testifying regarding GE’s participation).
14

12

asbestos parts with its turbines. 19 As such, the motion for summary judgment is
denied.
V.
The Court next considers the motion 20 for summary judgment filed by Crane
Company. Plaintiffs have demonstrated a genuine dispute of material fact as to
whether Crane specified the use of asbestos with its valves, 21 and as to whether
Crane’s incorporation of asbestos components into its valves proximately caused Mr.
Bell’s injury. 22 To be sure, the Court recognizes that Crane may disagree with the
plaintiffs’ view of the evidence, 23 but that is an issue for trial. See, e.g., Tolan v.
Cotton, 134 S. Ct. 1861, 1866 (2014) (court cannot weigh evidence and resolve
disputed issues in favor of party moving for summary judgment).
VI.
The Court now turns to the motion24 for summary judgment filed by Air &
Liquid Systems Corporation (“Buffalo”). 25 Plaintiffs have demonstrated a genuine
dispute of material fact as to whether Buffalo specified the use of asbestos with its

See, e.g., R. Doc. No. 419-21, at 101:19-24 (testimony from plaintiff’s expert that
manufacturers had responsibility for developing spare parts list to be used with
turbines).
20 R. Doc. No. 397.
21 See, e.g., R. Doc. No. 413-9, at 3 (expert declaration that Crane specified the use of
asbestos products with their valves); R. Doc. No. 413-5, at 51:20-52:8 (plaintiff
testifying at deposition that Crane specified the use of asbestos).
22 See, e.g., R. Doc. 413-10, at 27:15-20 (Crane corporate representative testifying that
Crane would assemble products with asbestos components.).
23 See, e.g., R. Doc. No. 397-2.
24 R. Doc. No. 398.
25 Air & Liquid Systems Corporation is the successor by merger to Buffalo Pumps,
Inc. and all of the parties refer to it as “Buffalo.” The Court does the same.
19

13

pumps, 26 and as to whether Buffalo would ship asbestos components with the final
pumps it assembled. 27
VII.
The Court now considers the motion 28 for summary judgment filed by Aurora
Pump Company. Plaintiffs have demonstrated a genuine dispute of material fact as
to whether Aurora specified the use of asbestos components, 29 and as to whether
Aurora would ship asbestos components with the final pumps it assembled. 30
VIII.
Next the Court considers the motion31 for summary judgment filed by Atwood
& Morrill Co., Inc. Plaintiffs have demonstrated a genuine dispute of material fact
as to whether Atwood specified the use of asbestos components in its valves, 32 and as

See, e.g., R. Doc. No. 416-6, at 57:4-12 (Buffalo corporate representative testifying
that Buffalo specified the type of packing to be used); see also R. Doc. No. 416-9, at 3
(expert declaration that Buffalo specified the use of asbestos with its pumps).
27 See, e.g., R. Doc. No. 416-33 (military specification indicating pump manufacturer
needed to provide one replacement set of packing to the military).
28 R. Doc. No. 399.
29 See, e.g., R. Doc. No. 417-9, at 3 (expert declaration that Aurora specified the use
of asbestos with its pumps); R. Doc. No. 417-9, at 21 (expert report that Aurora
specified the use of asbestos with its pumps); see also R. Doc. No. 417-6, at 42:2344:19 (Aurora corporate representative indicating that Aurora technical manuals
would specify the proper replacement parts to use).
30 See, e.g., R. Doc. No. 417-17 (military specification indicating pump manufacturer
needed to provide one replacement set of packing to the military).
31 R. Doc. No. 400.
32 See, e.g., R. Doc. No. 418-9, at 3 (expert declaration that Atwood specified the use
of asbestos products with its valves); R. Doc. No. 418-9, at 23 (expert report indicating
expert will testify that Atwood specified the use of asbestos with its products); see
also R. Doc. No. 418-6, at 45:14-18 (Atwood corporate representative indicating that
Atwood instruction manual would specify proper replacement parts).
26

14

to whether Crane’s incorporation of asbestos components into its valves proximately
caused Mr. Bell’s injury. 33
IX.
The Court now considers the motion 34 for summary judgment filed by CBS
Corporation. Plaintiffs have demonstrated a genuine dispute of material fact as to
whether CBS substantially participated in the integration of its shipboard turbines
with asbestos. 35
X.
The Court next considers the motion 36 for summary judgment filed by Foster
Wheeler Energy Corporation. Plaintiffs allege that Mr. Bell was exposed to asbestos
multiple times when asbestos insulation on Foster Wheeler condensers was chipped
off in order to service parts of the condensers. 37 However, plaintiffs point to no facts
establishing that Foster Wheeler has any legal responsibility for the insulation on
the condensers, and plaintiffs have not demonstrated that the use of asbestos to
insulate the condensers was foreseeable to Foster Wheeler.

See, e.g., R. Doc. No. 418-6, at 44:13-24 (Atwood corporate representative testifying
that Atwood employees would incorporate asbestos products into final Atwood
products); see also R. Doc. No. 418-6, at 67:22-69:3 (Atwood corporate representative
testifying he believed that Atwood glove valves had asbestos components).
34 R. Doc. No. 401.
35 See, e.g., R. Doc. No. 420-29, at 107:21-24 (testimony from plaintiff’s expert that
“the manufacturer is the guy that is leading the pack when he is designing a new
turbine”); see also R. Doc. No. 420-6, at 11:19-12:12 (CBS corporate representative
testifying that CBS designed and manufactured turbines); cf. R. Doc. No. 420-6, at
13:22-23 (CBS representative noting that “a significant design process . . . goes [in]to
building the turbine”).
36 R. Doc. No. 403.
37 See, e.g., R. Doc. No. 422-4, at 91:5-20; 93:9-94:10; 95:5-13.
33

15

Plaintiffs neither point to actual evidence that the condensers were delivered
with asbestos from Foster Wheeler, 38 nor demonstrate that Foster Wheeler specified
that the Navy should use asbestos insulation with the condensers. Instead, the best
plaintiffs do is a passing reference from Mr. Bell that the “condensers wouldn’t work
if they weren’t insulated” and the “[condenser] come[s] from the manufacturer with
all of that on it.” 39 Those isolated statements are insufficient to defeat summary
judgment.
In the first place, this Court has doubts about the accuracy of Mr. Bell’s
testimony on this particular point given that plaintiffs’ own expert testified that he’s
“never seen condensers insulated in my work.” 40 But even when the Court credits
Mr. Bell’s testimony—as it must on summary judgment—Mr. Bell conceded that he
had no personal knowledge as to whether the condensers were delivered with
asbestos. 41 As such, Mr. Bell’s passing statement that the condensers come from the
manufacturer with insulation on them does not create a genuine dispute of fact as to
whether the condensers at issue were delivered with asbestos insulation. See Little,
37 F.3d at 1075 (genuine dispute of material fact precluding summary judgment is
not created by “some metaphysical doubt as to the material facts, by conclusory
allegations, by unsubstantiated assertions, or by only a scintilla of evidence”).

Foster Wheeler’s corporate representative testified that Foster Wheeler condensers
were shipped “bare metal.” R. Doc. 403-7, at 79:18.
39 R. Doc. No. 422-5, at 26:4-8.
40 R. Doc. No. 403-8, at 24:4-5.
41 R. Doc. No. 422-4, at 96:25-97:7.
38

16

Likewise, Mr. Bell’s statement that the condensers required insulation does
not establish that a condenser required asbestos insulation, and plaintiffs’ own expert
noted that multiple other types of insulation—such as fiberglass and mineral
wool 42—could be used with a condenser.

As such, plaintiffs cannot establish a

genuine dispute of material fact as to whether it was even foreseeable to Foster
Wheeler that asbestos would be used in conjunction with its product.

Without

showing that the use of asbestos was foreseeable, plaintiffs cannot hope to
demonstrate that Foster Wheeler breached any applicable duty to warn.
Plaintiffs are left only with the point that some Foster Wheeler representatives
were “[a]lmost certainly” present while work was being done on Foster Wheeler
condensers. 43 But without knowing whether there actually were Foster Wheeler
representatives present, or what they were doing, or what their responsibilities were,
the Court is left without the information it needs to determine whether Foster
Wheeler had any duties under tort law, or whether there was any applicable breach
of a duty.
The party seeking summary judgment need not produce evidence negating the
existence of material fact, but need only point out the absence of evidence supporting
the other party’s case. Celotex Corp., 477 U.S. at 323. Once the party seeking
summary judgment carries its burden pursuant to Rule 56, the nonmoving party
must come forward with specific facts showing that there is a genuine dispute of
material fact for trial. Matsushita Elec. Indus. Co., 475 U.S. at 587. The lack of any

42
43

R. Doc. No. 403-8, at 23:6-7.
R. Doc. No. 422-4, at 98:3-5; see also R. Doc. No. 422-5, at 20:21-22:5.
17

evidence that Foster Wheeler was involved in the decision to use asbestos insulation
on the compressors is dispositive of plaintiffs’ claims given that plaintiffs have the
burden of demonstrating a genuine material fact issue for trial. The Court grants
Foster Wheeler’s motion for summary judgment and dismisses all claims against
Foster Wheeler with prejudice. 44
XI.
The Court now turns to the motion 45 for summary judgment filed by IMO
Industries, Inc. Plaintiffs have demonstrated a genuine dispute of material fact as to
whether IMO specified the use of asbestos components with its pumps, 46 and as to
whether IMO’s incorporation of asbestos components into its pumps proximately
caused Mr. Bell’s injury. 47
XII.
Finally, the Court considers the motion48 for summary judgment filed by
Warren Pumps, LLC. Plaintiffs have demonstrated a genuine dispute of material
fact as to whether Warren specified the use of asbestos components in its pumps, 49

Plaintiffs do not raise any allegations of additional exposures with respect to Foster
Wheeler products. See R. Doc. No. 422-4, at 95:14-96:11, 98:23-99:7.
45 R. Doc. No. 404.
46 See, e.g., R. Doc. No. 414-6, at 58:19-59:8 (IMO corporate representative testifying
that technical manuals generally specified the proper replacement parts to use); see
also R. Doc. No. 414-9, at 2 (expert declaration that IMO specified the use of asbestoscontaining materials with their pumps).
47 See, e.g., R. Doc. No. 414-6, at 65:20-66:3 (IMO corporate representative testifying
that certain pumps were designed and manufactured with asbestos components); R.
Doc. No. 414-6, at 71:2-10 (same).
48 R. Doc. No. 405.
49 See, e.g., R. Doc. No. 415-6, at 67:2-5 (Warren corporate representative testifying
that Warren would provide technical manuals specifying the use of asbestos
44

18

and as to whether Warren’s incorporation of asbestos components into its pumps
proximately caused Mr. Bell’s injury. 50
XIII.
Based on the Court’s review of the motions for summary judgment and for the
foregoing reasons,
IT IS ORDERED that the motions filed by General Electric Company, Crane
Company, Buffalo, Aurora Pump Company, Atwood & Morill Co., Inc., CBS
Corporation, IMO Industries, Inc., and Warren Pumps, LLC are DENIED.
IT IS FURTHER ORDERED that the motions filed by York International
Corporation and Foster Wheeler Energy Corporation are GRANTED and that all of
plaintiffs’ claims against York International Corporation and Foster Wheeler Energy
Corporation in the above-captioned matter are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, March 6, 2017.

_________________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

components); R. Doc. No. 415-9, at 3 (declaration from expert that Warren specified
the use of asbestos components with Warren pumps).
50
See, e.g., R. Doc. No. 415-6, at 52:22-53:5 (Warren corporate representative
testifying that Warren would assemble pumps with asbestos components).
19