Haney v. 3M Company et al

Filing 956

MEMORANDUM AND ORDER granting Defendant Crane Co.'s 847 Motion for Summary Judgment as to all Direct Claims, Cross-Claims, and Third-Party Claims. Signed by Judge Marvin J. Garbis on 7/16/2015. (dass, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CHARLES DEAN HANEY,
*
Individually, and as Personal
Representative of the Estate of *
Charles Ambrose Haney, et al.,
*
Plaintiffs
*
vs.
*
3M COMPANY, et al.,
*
Defendants
*
*
*
*
*
*

CIVIL ACTION NO. MJG-12-1396

*

*

*

*

MEMORANDUM AND ORDER RE: SUMMARY JUDGMENT [CRANE CO.]
The Court has before it Defendant Crane Co.'s Motion for
Summary Judgment As to All Direct Claims, Cross-Claims, and
Third-Party Claims [Document 847] and the materials submitted
relating thereto.

I.

The Court finds a hearing unnecessary.

BACKGROUND
On February 8, 2012, Charlie Ambrose Haney ("Haney") filed

the instant lawsuit in the Circuit Court for Baltimore City,
Maryland against eighty-four Defendants (one of which was
Defendant Crane Co.) alleging damages due to exposure to
asbestos.

On May 8, 2012, the case was removed to this Court

based upon the federal officer removal provision, 28 U.S.C. §
1442(a)(1).

Haney died on July 1, 2012 from malignant mesothelioma
caused by exposure to asbestos.

On October 13, 2013, Plaintiffs

Charles Dean Haney, individually and as personal representative
of the Estate of Haney, Jeffrey William Haney, and John Henry
Haney (collectively "Plaintiffs"), filed the First Amended
Complaint against fifty-six Defendants (one of which was Crane
Co.) asserting claims in five Counts.

Claims in three Counts

remain pending1 against Crane Co.:
Count I

Strict Liability

Count III

Negligence

Count V

Wrongful Death

By the instant Motion, Crane Co. seeks summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.

1

In the Order Granting Summary Judgment Motions [Document
948], the Court granted summary judgment to Crane Co. on Count
II (Breach of Warranty), [Document 850], and Count IV (Aiding
and Abetting and Conspiracy), [Document 853]. The Court also
granted summary judgment to Crane Co. on Plaintiffs' claims for
punitive damages, [Document 854].
2

II.

SUMMARY JUDGMENT STANDARD
A motion for summary judgment shall be granted if the

pleadings and supporting documents "show[] 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).
The well-established principles pertinent to summary
judgment motions can be distilled to a simple statement:

The

Court may look at the evidence presented in regard to a motion
for summary judgment through the non-movant's rose-colored
glasses, but must view it realistically.

After so doing, the

essential question is whether a reasonable fact finder could
return a verdict for the non-movant or whether the movant would,
at trial, be entitled to judgment as a matter of law.

See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).
Thus, in order "[t]o defeat a motion for summary judgment,
the party opposing the motion must present evidence of specific
facts from which the finder of fact could reasonably find for
him or her."

Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md.

1999) (emphasis added).

However, "self-serving, conclusory, and

uncorroborated statements are insufficient to create a genuine
issue of material fact."

Int'l Waste Indus. Corp. v. Cape

3

Envtl. Mgmt., Inc., 988 F. Supp. 2d 542, 558 n.11 (D. Md. 2013);
see also Wadley v. Park at Landmark, LP, 264 F. App'x 279, 281
(4th Cir. 2008).
When evaluating a motion for summary judgment, the Court
must bear in mind that the "[s]ummary judgment procedure is
properly regarded not as a disfavored procedural shortcut, but
rather as an integral part of the Federal Rules as a whole,
which are designed 'to secure the just, speedy and inexpensive
determination of every action.'"

Celotex, 477 U.S. at 327

(quoting Fed. R. Civ. P. 1).

III. DISCUSSION
Crane Co. contends that Plaintiffs have failed to present
admissible evidence sufficient to permit a reasonable jury to
find that Haney was exposed to asbestos from any product for
which Crane Co. is liable.
In their Response to the instant Motion, Plaintiffs state
generally that "Haney was exposed to asbestos while serving as a
machinist in the U.S. Navy and while working as a machinist
during the new construction of naval and merchant ships at the
Bethlehem Steel Sparrows Point Shipyard." [Document 923] at 1-2.
Specifically as to Crane Co., Plaintiffs state:
During his service in the U.S. Navy, Mr.
Haney installed and removed "hundreds and
hundreds" of Crane Co. [Cranite] asbestos-

4

containing sheet packing gaskets ("asbestos
gaskets") while serving aboard the USS
Breckinridge
from
1951
to
1955
as
a
machinist mate.
Id. at 1.
Accordingly, the claims against Crane Co. are based solely
upon alleged exposure to asbestos-containing sheet packing
material supplied by Crane Co. in connection with Mr. Haney's
service aboard the USS Breckinridge between 1951 and 1955.2
In their Response to the instant Motion, Plaintiffs state:
[T]here is direct evidence from Mr. Haney
that he worked with Crane Co. asbestoscontaining gaskets on hundreds of occasions
in circumstances that created visible dust.
In addition, there is ample testimony from
Mr. Haney that he worked with asbestoscontaining Crane sheet packing gaskets on
hundreds of occasions and used a wire brush,
which created visible dust in the air.
[Document 923] at 9 (internal citation omitted).
Plaintiffs' contentions regarding the Crane Co. valves and
gaskets on which Haney worked on the USS Breckinridge are based
upon allegations that the sheet packing used to protect the

2

Crane Co. asserts in the Motion that it "is not liable for
asbestos-containing products that it neither manufactured, nor
supplied that were associated with any Pacific steel boiler or
Crane valves." See [Document 903] at 17-18. In their Response,
Plaintiffs do not present any contention or evidence relating to
the Pacific boiler. Moreover, in the Order Granting Unopposed
Summary Judgment Motion, [Document 950], the Court granted Crane
Co.'s Motion for Partial Summary Judgment on All Claims Relating
to Exposure to Asbestos-Containing Products Crane Co. Neither
Manufactured Nor Supplied, [Document 848].
5

gaskets and valves was Cranite sheet packing (gasket material)
supplied by Crane Co.3

See [Document 923] at 3-6, 9-12.

Crane Co. states in its Memorandum of Points and
Authorities in Support of Its Motion for Summary Judgment:
At no time did Crane Co. ever manufacture
"Crane" brand packing material, sheet gasket
material, or pre-formed gaskets. It is wellknown in asbestos litigation that valves
identified with the name "Crane" are Crane
Co. products, whereas packing and gaskets
identified
with
the
name
"Crane"
are
products manufactured by John Crane Inc., an
entirely separate and distinct company.
Misidentification of valves as "John Crane"
products or packing and gaskets as "Crane
Co." products frequently occurs. However, it
is well-understood by attorneys on both
sides of the bar, as well as by courts that
routinely handle asbestos matters, that
these
are
two
separate
entities
that
manufactured entirely distinct products.
[Document 903] at 3 n.1 (emphasis added).

A.

The Proffered Evidence

The only proffered evidence referring to alleged exposure
of Haney to Cranite, a product svgupplied by Crane Co., rather
than to a John Crane, Inc. product, is provided by testimony
from Haney that the Court finds inadmissible in evidence.

3

Cranite sheet packing was supplied, but not manufactured,
by Crane Co.
6

In his discovery deposition on May 9, 2012, Haney referred
to

"Crane"

products

but

did

not

distinguish

between

supplied by Crane Co. and John Crane, Inc.'s products.
Questioning by counsel for Crane Co.:
Q.

Do
you
know
the
brand
name
or
manufacturer of the packing that you
would have used while working in the
distilling plant on the Breckenridge as a
third class machinist mate?
. . . .
A. Well, I will say that you got – you get
Crane packing.
Q. Okay.
A. You got sheet.
. . . .
A. It was Crane packing.
Q. Was the – was Crane the manufacturer of
the packing?
A. I'd say it was because spools of it would
be
that
a
big
around
(indicating)
according to the diameter of the rope we
will call it.
. . . .
A. All the other trade names I can't
remember. Biggest part on there is just
what I got through saying.
Q. Crane?
A. Crane.
Haney Disc. Dep. May 9, 2012, 86:16-88:2, 91:6-21.

Q.

A.

Okay. And the packing material that you
talked about, were there other brands
that you used besides Crane?
Not to my know – knowledge.

Id. 95:10-13 (emphasis added).

7

Cranite

Q.

A.

Did you say the valves were manufactured
by Crane or were you talking about the
packing?
The valves was Crane.

Id. 163:18-21.

Q.

. .
A.

. .
Q.
A.
Q.
A.
. .
Q.
. .
Q.
A.

I guess – just why don't you describe
that
packing-gland
material.
Just
describe it.
. .
It's sheets, different sizes. You cut it
to fit the flange that you are going to
seal the leak off.
. .
And do you know who made the – the – was
there any names on that material?
Crane.
Okay. Were there any other names on that
material?
Lordy. Let's see. I didn't know that's my
– again, they wasn't – they wasn't –
. .
I mean, it was a packing – you called it
a packing material, right?
. .
Sheet packing.
Yeah, sheet packing.

Id. 175:2-177:15.
Later that day, questioning by counsel for John Crane, Inc.:
Q.

MR.
. .
A.
Q.

. .
Q.
. .

Mr. Haney, could you describe the writing
that you testified that you saw on the
sheet packing?
PALMIOTTO (then-counsel for Crane Co.):
Objection.
. .
I have seen Crane.
Sir, do you know was there any – could
you describe the style of the lettering
that you saw on the sheet packing?
. .
Was it in block writing do you recall?
. .

8

A.

Print. First letter was bigger. And it
got smaller as it come – come – come on
out to Crane.

Id. 210:5-211:8 (emphasis added).
In evidence – from Plaintiffs – is a picture of Cranite
sheet packing material from Crane Co.'s 1953 catalog. See
[Document 923-3].

The sheet packing in the picture contains the

name "Cranite" in large, uniform capital letters and the name
"Crane" below it in smaller, uniform capital letters. Id.

This

picture is not consistent with Haney's description of the
lettering that he said he observed.
The next day, May 10, 2012, during discovery deposition
questioning, Haney was led by his counsel and answered, over
objections to leading by Crane Co.'s counsel, to state the name
"Cranite."
Q.

(by Plaintiff's counsel): You were asked
how you – you knew it was Crane sheet
packing yesterday. And you said it – it
said – you remember the name Crane. And
you – you said there was also another
name
and
you
were
having
trouble
remembering it.
Do you remember what
that name was?
. . . .
A. Do I remember the name of the – the
packing?
Q. No. You – you identified today and – and
yesterday Crane sheet packing. And you
were asked a bunch of questions. And at
one point you said – you thought there
was another name that went with the Crane
sheet packing. Do you remember today what
that was?
. . . .

9

A.
Q.
MR.
A.
Q.

You would – I will – I will say no.
Okay. Have you ever heard of Cranite?
PALMIOTTO: Objection to the form. Leading.
Right.
Have you heard of – is that the name you
were thinking of?
MR. PALMIOTTO: Objection to the form. Leading.
A. That is right.

Haney Disc. Dep. May 10, 2012, 374:6-376:4 (emphasis added).
This was followed by questioning from counsel for Crane Co.
Q.

I just have a few follow-up questions
based on what your – your attorney, Mr.
Kiely, had asked you about the packing
and primarily the sheet packing material
which I believe, my understanding from
your testimony, that you would use
between flanges.
A. True.
Q. All right. Mr. Kiely suggested a name to
you by the name of Cranite. And it's my
understanding you just simply could not
remember that name before he led you into
that, before he suggested that to you,
correct?
. . . .
A. Correct.
Q. Okay. And in fact, I am looking through
your Exhibit 3, which is your handwritten
notes, and I don't see that name anywhere
on here; is that correct?
You can look
at it, but I might have missed it, but I
don't see it anywhere. Am I missing it?
A. I don't believe so.
MR. KIELY: I didn't see it either.
Id. 383:19-385:3 (emphasis added).

10

In his de bene esse deposition,4 held on May 24, 2012, Haney
was again questioned about the sheet packing material.
Q.

(by Plaintiff's counsel):
Now, let's
shift gears. You started talking about
these – the sheet packing that you would
fabricate.
Now,
in
your
discovery
deposition, you described two kinds of
sheet packing. One was pre-made. It was
prefabricated, and it would fit on. And
the other was a sheet, and you would have
to make it yourself; is that right?
. . . .
A. That is the packing. That is the – that
is the -nite.
Q. Right. What is it called?
A. Cranite.
. . . .
Q. Was the Cranite the sheet packing?
A. Sheet packing, yes.
Q. When you would – when you would fabricate
the Cranite sheet packing, can you
describe how you did that?
A. Scrape it off. Some of it wouldn't come
off, you use and electric wire brush
whatever and grind it off.
. . .
Q. All right. And how often do you think you
did that during your –
A. Hundreds of times.
Haney De Bene Esse Dep. May 24, 2012, 34:6-35:19.

4

The United States Court of Appeals for the Fourth Circuit
has stated that "[t]he Federal Rules of Civil Procedure make no
distinction for use of a deposition at trial between one taken
for discovery purposes and one taken for use at trial (de bene
esse)." Tatman v. Collins, 938 F.2d 509, 510-11 (4th Cir.
1991). The court explained that "Fed.R.Civ.P. 32 provides that
a deposition may be offered at trial, subject to the rules of
evidence, as though the witness were present and testifying
. . . . It is irrelevant . . . that [the deposition] was
initiated only for discovery purposes, or that it was taken
before other discovery was completed." Id. at 511.
11

B.

The Evidence Is Inadmissible

"On a motion for summary judgment, a district court may
only consider evidence that would be admissible at trial."
Solis v. Prince George's Cnty., 153 F. Supp. 2d 793, 798 (D. Md.
2001).
Rule 611(c) of the Federal Rules of Evidence states:
Leading questions should not be used on
direct examination except as necessary to
develop the witness's testimony. Ordinarily,
the court should allow leading questions:
(1) on cross-examination; and
(2) when a party calls a hostile witness,
an
adverse
party,
or
a
witness
identified with an adverse party.
The United States Court of Appeals for the Fourth Circuit
has explained:
The essential test of a leading question is
whether it so suggests to the witness the
specific tenor of the reply desired by
counsel that such a reply is likely to be
given irrespective of an actual memory. The
evil to be avoided is that of supplying a
false memory for the witness.
United States v. Durham, 319 F.2d 590, 592 (4th Cir. 1963).
"The right of a cross-examiner to employ leading questions
is not absolute under Rule 611(c).

If the witness is friendly

to the examiner, there is the same danger of suggestiveness as
on direct; and consequently the court may, in its discretion,
forbid the use of leading questions."

Morvant v. Constr.

Aggregates Corp., 570 F.2d 626, 635 n.12 (6th Cir. 1978).

12

"Generally, when a witness identified with an adverse party is
called, the roles of the parties are reversed. Leading questions
would be appropriate on direct examination but not on crossexamination."5

Alpha Display Paging, Inc. v. Motorola Commc'ns &

Elecs., Inc., 867 F.2d 1168, 1171 (8th Cir. 1989).

Ultimately,

however, "the extent to which the use of leading questions may
be indulged or limited is a matter primarily for the discretion
of the trial judge."

Durham, 319 F.2d at 592.

The Court finds that, in the context of his counsel's
questioning, the inquiry that resulted in Haney stating the name
"Cranite" was impermissibly leading, suggesting the desired
answer.

See, e.g., Powell v. State, 995 P.2d 510, 530 (Okla.

Crim. App. 2000) ("[T]he prosecutor asked, 'Have you ever heard
hard shifting automatics before?' This was obviously asked in
order to get Smith to say yes, thereby suggesting the car Smith
had identified could have been an automatic rather than a
standard shift. This was an improper leading question."); see
also Bishop v. Peppertree Resorts, Ltd., 212 F. Supp. 2d 518,
523-24 (W.D.N.C. 2002) ("The Plaintiff offers only one piece of

5

But see "While Federal Rule of Evidence 611(c) permits the
use of leading questions when a party calls a witness identified
with an adverse party, there is no complementary provision
requiring such a witness to be cross-examined without the use of
leading questions by the party to whom that witness is
friendly." Morvant v. Constr. Aggregates Corp., 570 F.2d 626,
635 (6th Cir. 1978).

13

evidence from his deposition as direct evidence of
discrimination. However, that evidence is not admissible. . . .
Plaintiff points to the following exchange: 'Q: [By Bishop's
Attorney]: During the time that you worked there, did anyone
make any statements to you about you were too old?

A: Earl

Wallace . . . called me spacey. I took that as absent minded,
maybe- Q: Meaning you were too old?

A: Too old.'

is a textbook example of leading a witness.

This exchange

Under the Federal

Rules, a plaintiff's attorney is not permitted to lead the
plaintiff. . . . Thus, the Plaintiff has presented no
admissible, direct evidence of discrimination." (internal
citations omitted)).
Plaintiffs contend that a reference in Haney's deposition
testimony to "Ike" referred to "Cranite." See [Document 923] at
10 n.6.

However, Haney's attorney – with ample opportunity to

do so – did not in any way seek to have Haney so testify during
his discovery or de bene esse depositions.

Moreover, Haney's

deposition testimony indicates that when Haney mentioned "Ike,"
he referred to something other than just sheet packing material.
Q.

Okay. Do you know the brand name or
manufacturer of that gasket material?
A. Well, one of it was a Ike– Ike
(phonetic).
MR. KIELY (counsel for Haney): Ike?
MR. BRISKER: That's what I heard.
. . . .

14

Q.

A.

Q.
A.

The gaskets that were premade by
factory, do you know the brand name or
manufacturer of those gaskets?
Oh, that was a Gill (phonetic). Not
Gill, but – yeah, that was Ike
(phonetic).
Okay.
That was– that was Ike (phonetic). Who
could not forget Ike?

. . . .
Q.

Okay.
And the ceilings of the—the
Breckenridge that were insulated, do you
know the brand name or manufacturer of
that insulation material?
MR. KIELY: Objection. Go ahead. You can go
ahead and answer his question.
THE WITNESS:
Oh, okay.
It – it was the –
it was asbestos.
It was Ike– Ike-type
(phonetic) insulation.
I mean, I am no
specialist.

Haney Disc. Dep. May 9, 2012, 110:2-7, 117:1-8, 150:8-18.
The "bottom line" is that Plaintiffs have presented no
evidence admissible at trial adequate to prove that Haney was
exposed to asbestos in any product for which Crane Co. is
liable.

15

IV.

CONCLUSION
For the foregoing reasons, Defendant Crane Co.'s Motion for

Summary Judgment As to All Direct Claims, Cross-Claims, and
Third-Party Claims [Document 847] is GRANTED.

SO ORDERED, on Thursday, July 16, 2015.

/s/___
__ _
Marvin J. Garbis
United States District Judge

16