Hurley et al v. Alltite Gaskets et al

Filing 482

MEMORANDUM AND ORDER granting 449 Motion for Reconsideration; Granting ECF No. 356, Motion by Paramount for Summary Judgment with respect to Count III; Denying Plaintiffs Motion to Strike, ECF No. 451. Signed by Judge George Levi Russell, III on 8/1/14 (cags, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
Chambers of
George L. Russell, III
United States District Judge

101 West Lombard Street
Baltimore, Maryland 21201
410-962-4055

August 1, 2014
MEMORANDUM TO COUNSEL RE:

Carol Johnson Harper, et al. v. Anchor
Packing Company, et al.
Civil Action No. GLR-12-460
Ronald F. Hurley, et al. v. Anchor Packing
Company, et al.
Civil Action No. GLR-12-462

Dear Counsel:
Pending before the Court are Defendant’s, Paramount Packing & Rubber, Inc.
(“Paramount”), Federal Rule of Civil Procedure 54(b) Motions for Reconsideration of the
Court’s February 11 and March 6, 2014 Orders granting in part and denying in part Paramount’s
Motions for Summary Judgment. (Carol Johnson Harper, et al. v. Anchor Packing Company, et
al., No. GLR-12-460 [“Harper”], ECF No. 612); (Ronald F. Hurley, et al. v. Anchor Packing
Company, et al., No. GLR-12-462 [“Hurley”], ECF No. 449). Also pending before the Court are
Plaintiffs’ Motions to Strike Paramount’s Motions.1 The Court, having reviewed the Motions
and supporting documents, finds no hearing is necessary. See Local Rule 105.6 (D.Md. 2014).
The Court will grant Paramount’s Motions and enter summary judgment in their favor in order to
correct an error of law.
On February 11 and March 6, 2014, the Court issued Orders granting summary judgment
with respect to Counts I, II, IV, and V, but denying summary judgment with respect to Count III
(strict products liability), finding there was a genuine dispute as to whether exposure to JohnsManville pipecovering that Paramount supplied was a substantial factor in causing Mr. Harper’s
and Mr. Hurley’s injuries. (Harper, ECF No. 608); (Hurley, ECF No. 446). On March 13 and
April 1, 2014, Paramount filed Motions for Reconsideration of the Orders. (Harper, ECF No.
612); (Hurley, ECF No. 449). Plaintiffs have moved to strike the Motions (Harper, ECF No.
613); (Hurley, ECF No. 451), but Paramount has not responded.
Paramount argues the Court misread the invoices Plaintiffs submitted in support of their
oppositions to Paramount’s Motions for Summary Judgment and this misreading led the Court to
commit an error of law. Plaintiffs argue Paramount’s Motions are untimely and meritless.

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The Court will construe these Motions to Strike as memoranda in opposition to
Paramount’s Motions for Reconsideration.

Because the Court agrees it misread the invoices, which led to an error of law, it will not only
consider, but also grant, Paramount’s untimely Motions.
Local Rule 105.10 states that “except as otherwise provided in Fed. R. Civ. P. . . . 59 . . .
any motion to reconsider any order issued by the Court shall be filed with the Clerk not later than
fourteen (14) days after entry of the order.” Local Rule 105.10 (D.Md. 2014). It is undisputed
that Paramount filed its Motions for Reconsideration more than fourteen days after the Court’s
Orders. Local Rule 604, however, permits the Court to suspend the provisions of any of the
Local Rules “for good cause shown.” Local Rule 604 (D.Md. 2014). The Court’s error of law
constitutes good cause to consider Paramount’s untimely Motions because the “ultimate
responsibility of the federal courts, at all levels, is to reach the correct judgment under law.”
Am. Canoe Ass’n v. Murphy Farms, Inc., 326 F.3d 505, 515 (4th Cir. 2003)). Also, because this
Court uses the Rule 59(e) standard as guidance when evaluating Rule 54(b) motions, see, e.g.,
Beyond Sys., Inc. v. Kraft Foods, Inc., No. PJM-08-409, 2010 WL 3059344, at *2 (D.Md. Aug.
4, 2010), the Court’s error of law permits it to alter its prior Orders, see Pac. Ins. Co. v. Am. Nat.
Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998) (stating that pursuant to Rule 59(e), one of the
grounds under which a court may alter an earlier judgment is to “correct a clear error of law”).
The Court’s Error of Law
The Court’s reasoning for denying summary judgment with respect to Count III was
predicated upon reading Plaintiffs’ invoices as showing sales of Johns-Manville pipecovering.
Upon reexamining the invoices, however, they clearly show sales of Johns-Manville packing, not
Johns-Manville pipecovering. Consequently, there are three reasons why the Court committed
an error of law.
First, a defendant cannot be liable, under a strict products liability theory, for products
that it did not manufacture or supply. See Christian v. Minn. Mining & Mfg. Co., 126 F.Supp.2d
951, 958 (D.Md. 2001) (stating that under Maryland law, in order to hold the defendant liable for
strict products liability, the “Plaintiffs must prove that Defendant actually manufactured or
distributed the product which purportedly caused plaintiff’s injury”); see also Eagle-Picher
Indus., Inc. v. Balbos, 604 A.2d 445, 462 (Md. 1992) (finding no substantial factor causation
where there was no evidence that the defendant supplied the Johns-Manville material that
allegedly caused the plaintiff’s injuries). Therefore, because there is no evidence that Paramount
supplied Johns-Manville pipecovering, Paramount cannot be liable for any injuries that product
may have caused.
Second, although the invoices show sales of Johns-Manville packing, even assuming,
without finding, Plaintiffs produced evidence that Mr. Harper and Mr. Hurley were regularly
exposed to packing, no witness specifically identifies Johns-Manville packing as a product that
was used at the Shipyard. In order to raise a genuine dispute as to substantial factor causation,
the plaintiff or a witness must identify the specific type of asbestos-containing product the
defendant manufactured and/or supplied as a product that was frequently used in an area where
the plaintiff regularly worked. See Balbos, 604 A.2d at 461 (finding substantial factor causation
where a witness identified Eagle Picher’s Eagle 66 cement as a product that was frequently used
in the engine rooms where the plaintiff regularly worked); Owens-Corning Fiberglas Corp. v.
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Garrett, 682 A.2d 1143, 1156-57 (Md. 1996) (finding substantial factor causation where two
witnesses identified Owens-Corning’s Kaylo pipecovering and block insulation as two of the
specific products that were frequently used in the boiler room where the plaintiff regularly
worked); Roehling v. Nat’l Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d 1225, 1227-29 (4th
Cir. 1986) (finding substantial factor causation where three witnesses identified Owens-Illinois’s
Kaylo block insulation and National Gypsum’s Gold Bond cement as two of the specific
products that were frequently used in the boiler room where the plaintiff regularly worked);
Shetterly v. Raymark Indus., 117 F.3d 776, 781-82 (4th Cir. 1997) (finding substantial factor
causation where a witness testified that Raymark’s Raybestos cloth was frequently dispensed in
the storeroom where the plaintiffs regularly obtained materials). Here, no witness identifies
Johns-Manville packing as a product that was frequently used in the areas where Mr. Harper or
Mr. Hurley regularly worked.
Finally, invoices showing sales of a product are not sufficient to create a genuine dispute
as to substantial factor causation when there is “no evidence to show when or where [that]
product[] [was] used.” Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir.
1986). Here, Plaintiffs do not produce any evidence as to when or where Johns-Manville
packing was used at the Shipyard. Plaintiffs’ invoices only demonstrate that Paramount sold
Johns-Manville packing to the Shipyard during the years Mr. Harper and Mr. Hurley worked
there. “[W]hen one considers the size of a workplace such as Key Highway Shipyard, the mere
proof that the plaintiff and a certain asbestos product are at the shipyard at the same time,
without more, does not prove exposure to that product.” Id. at 1162.
Accordingly, because the Court committed an error or law, Paramount’s Motions for
Reconsideration (Harper, ECF No. 612); (Hurley, ECF No. 449) are GRANTED and
Paramount’s Motions for Summary Judgment (Harper, ECF No. 597); (Hurley, ECF No. 356)
are GRANTED with respect to Count III in both cases. Plaintiffs’ Motions to Strike (Harper,
ECF No. 613); (Hurley, ECF No. 451) are DENIED. Despite the informal nature of this
memorandum, it shall constitute an Order of the Court, and the Clerk is directed to docket it
accordingly and terminate Paramount from both cases.

Very truly yours,
/s/
_______________________
George L. Russell, III
United States District Judge

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