MacCormack et al v. The Adel Wiggins Group et al

Filing 310

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the motion of defendant BW/IP to dismiss [Doc. #298 ] is granted. Signed by District Judge Carol E. Jackson on 11/8/2016. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BERJ HOVSEPIAN
Plaintiff,
vs.
THE ADEL WIGGINS GROUP, et al.,
Defendants.

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Case No. 4:16-CV-414-CEJ

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant BW/IP, Inc.
(named in plaintiff’s complaint as Flowserve Corporation) to dismiss based on
collateral estoppel. The plaintiff has not filed a response and the time to do so has
expired.
I.

Background
Plaintiff Berj Hovsepian was a civilian employee of the United States Navy

from 1958 until 1964, in Boston, Massachusetts.
mesothelioma,

allegedly

as

a

result

of

He contracted asbestos-related

exposure

to

products

that

were

manufactured, sold, distributed or installed by the defendants, including BW/IP.
In December 2009, plaintiff brought an action against defendant BW/IP and
other entities in the Superior Court for the Commonwealth of Massachusetts. [Doc.
#298-1, at 6, 12].
1

Plaintiff asserted claims of common law negligence,1 breach of

Plaintiff’s common law negligence claims were based on (1) failure to warn “plaintiff of the dangers,
characteristics, and potentialities of the[] asbestos-containing product or products when the defendant
corporations knew or should have known that the exposure to their asbestos-containing products
would cause disease and injury,” (2) failure to “exercise reasonable care to warn the plaintiff of what
would be safe, sufficient, and proper protective clothing, equipment, and appliances when working
with or near or being exposed to their asbestos”, (3) failure to “test their asbestos and asbestos
products in order to ascertain the extent of dangers involved upon exposure to their asbestos,” (4)
failure to conduct “research as should have been conducted in the exercise of reasonable care, in
order to ascertain the dangers involved upon exposure to their asbestos,” (5) failure to “remove the

express and implied warranties,2 “malicious, willful, wanton and reckless conduct or
gross negligence.”3

In addition, plaintiff’s wife asserted a claim of loss of

consortium. [Doc. #298-1, at 17–24, 32–35].

Defendant BW/IP moved for

summary judgment, arguing that plaintiffs failed to prove (1) the identity of the
injury causing product or (2) the manufacturer of the injury causing product. [Doc.
#298-2, at 9]. In July 2012, the Superior Court granted defendant BW/IP’s motion
for summary judgment. [Doc. #298 at 2].
In December 2015, plaintiff alone initiated an action in the Circuit Court of
the City of St. Louis, Missouri, naming BW/IP and others as defendants, and
asserting claims identical to those in the Massachusetts case.

The action was

removed to this Court pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. In the
instant motion, defendant BW/IP argues that plaintiff’s claim against it is barred by
collateral estoppel.
II.

Legal Standards
a. Motion to Dismiss

product or products from the market when the defendant corporations knew or should have known of
the hazards of exposure,” (6) failure to “remove the product or products from the market when the
defendant corporations knew or should have known of the hazards of exposure,” (7) failure upon
“discovery of the dangers . . . to adequately warn and apprise plaintiff,” (8) failure upon “discovery of
the dangers . . . to package said asbestos . . . so as to eliminate said dangers,” (9) “specifying the use
of asbestos . . . in the installation, and expected routine maintenance of the defendants’ equipment
without providing adequate warning to those who would foreseeably come into contact with such
asbestos,” (10) failing “to provide an adequate warning to those who would foreseeably come into the
contact with asbestos,” and (11) “generally using unreasonable, careless, and negligent conduct in the
manufacture, fabricating, supply, or sale of their asbestos. . .” [Doc. #298-1, at 18–19].
2

Plaintiff asserted a claim of breach of warranty under Massachusetts General Laws ch. 106, § 2-318.
He argued that “the defendants expressly and impliedly warranted that the asbestos and asbestoscontaining products and equipment . . . were merchantable, safe, and fit for their ordinary and the
particular purposes and requirements of the plaintiff.” [Doc. #298-1, at 20].
3

Plaintiff alleges in the complaint that at least some of the defendants possessed “medical and
scientific data clearly indicating that asbestos and asbestos-containing products were hazardous.”
[Doc. 298-1 at 32].

2

Rule 12(c) provides that “[a]fter the pleadings are closed – but early enough
not to delay trial – a party may move for judgment on the pleadings.” Fed. R. Civ.
P. 12(c). A Rule 12(c) motion is analyzed under the same standards as one under
Rule 12(b)(6). Clemons v. Crawford, 585 F.3d 1119, 1124 (8th Cir. 2009) (citing
Ashley Cty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009)).
The purpose of a motion to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure is to test the legal sufficiency of the complaint. The factual
allegations of a complaint are assumed true and construed in favor of the plaintiff,
“even if it strikes a savvy judge that actual proof of those facts is improbable.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 508 n.1 (2002)); Neitzke v. Williams, 490 U.S. 319,
327 (1989) (“Rule 12(b)(6) does not countenance . . . dismissals

based on a

judge’s disbelief of a complaint’s factual allegations”); Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) (a well-pleaded complaint may proceed even if it appears “that a
recovery is very remote and unlikely”). The issue is not whether the plaintiff will
ultimately prevail, but whether the plaintiff is entitled to present evidence in
support of his claim. Id. A viable complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp., 550 U.S. at 570; see
also id. at 563 (“no set of facts” language in Conley v. Gibson, 355 U.S. 41, 45–46
(1957), “has earned its retirement.”). “Factual allegations must be enough to raise
a right to relief above the speculative level.” Id. at 555.
The Eighth Circuit has “implicitly endorsed the use of a motion to dismiss to
raise res judicata.” C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 763
(8th Cir. 2012). “For an affirmative defense such as res judicata to provide a basis

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for dismissal under Rule 12(b)(6), the affirmative defense must be apparent on the
face of the complaint.” A.H. ex rel. Hubbard v. Midwest Bus Sales, Inc., 823 F.3d
448, 453 (8th Cir. 2016) (internal citations and quotations omitted); see also C.H.
Robinson Worldwide, 695 F.3d at 763–64. This means that a district court may
consider public records or other materials connected with the pleadings in its
evaluation. Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 982 (8th Cir.
2008).
b. Collateral Estoppel
Res judicata encapsulates two preclusion concepts – issue preclusion and
claim preclusion. Lovilia Coal Co. v. Harvey, 109 F.3d 445, 449 (8th Cir. 1997)
(citing Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77 (1984)). Issue
preclusion, or collateral estoppel means that “‘once a court has decided an issue of
fact or law necessary to its judgment, ‘the determination is conclusive in a
subsequent action between the parties, whether on the same or a different claim.’”
Lovilia Coal Co. v. Harvey, 109 F.3d 445, 449–50 (8th Cir. 1997) (quoting Tyus v.
Schoemehl, 93 F.3d 449, 452 (8th Cir. 1996) (internal citations omitted); see also
Montana v. United States, 440 U.S. 147, 153 (1979). The same issues cannot be
re-litigated. Ideker v. PPG Indus., Inc., 788 F.3d 849, 852 (8th Cir. 2015).
Collateral estoppel is therefore critical for judicial efficiency and for “promot[ing]
the comity between state and federal courts that has been recognized as a bulwark
of the federal system.” Allen v. McCurry, 449 U.S. 90, 95–96 (1980) (citing
Younger v. Harris, 401 U.S. 37, 43–45 (1971)). Moreover, it “fosters reliance on
judicial action by minimizing the possibility of inconsistent decisions.” Montana, 440
U.S. at 154.

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28 U.S.C. § 1738 provides that “judicial proceedings of any court of any such
State . . . shall have the same full faith and credit in every court within the United
States . . . as they have by law or usage in the courts of such State.” 28 U.S.C. §
1738. Allen explained how § 1738 interacts with common law res judicata doctrine,
reasoning that “though the federal courts may look to the common law or to the
policies supporting res judicata and collateral estoppel in assessing the preclusive
effect of decisions of other federal courts, Congress has specifically required all
federal courts to give preclusive effect to state-court judgments whenever the
courts of the State from which the judgments emerged would do so.” Allen v.
McCurry, 449 U.S. 90, 96 (1980); see also Kremer v. Chem. Constr. Corp., 456
U.S. 461, 466 (1982) (reaffirming that federal courts should “give the same
preclusive effect to state court judgments that those judgments would be given in
the courts of the State from which the judgments emerged”). This rule still holds
when a federal question case (in federal court) follows a state court proceeding,
and even still when that federal question was not or could not actually be litigated
in state court. See Migra v. Warren City Sch. Dist. Bd. Of Educ., 465 U.S. 75, 85
(1984); see also Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367 (1996).
Accordingly, here, the law of Massachusetts is applicable in determining the
preclusive effect of the parties’ previous litigation.4
III.

Discussion

Under Massachusetts law, the doctrine of collateral estoppel applies when (1)
there was a final judgment on the merits in the previous adjudication, (2) the party

4

Defendant BW/IP’s motion to dismiss asserts that Missouri law should govern the application of
collateral estoppel in this case. The Court’s analysis shows otherwise. In any event, the relevant law
in Missouri does not significantly differ from Massachusetts law.

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against whom estoppel is asserted is a party (or in privity with a party) to the prior
adjudication, (3) the issue decided in the prior adjudication is identical with the one
presented in the action in question, and (4) the issue decided in the prior
adjudication was essential to the judgment. Alba v. Raytheon Co., 809 N.E.2d 516,
521 (Mass. 2004); Green v. Brookline, 757 N.E.2d 731 (Mass. App. Ct. 2001). “The
guiding principle in determining whether to allow defensive use of collateral
estoppel is whether the party against whom it is asserted ‘lacked full and fair
opportunity to litigate the issue in the first action or [whether] other circumstances
justify affording him an opportunity to relitigate the issue.’” Id. (internal citations
and quotations omitted).
In this case, there was in fact a final judgment on the merits in the previous
adjudication. “[T]he term ‘judgment’ refers to a final determination on the merits of
the proceeding.” Jarosz v. Palmer, 766 N.E.2d 482, 489 (Mass. 2002). And finality
under Massachusetts law “does not require a final judgment in a strict sense.” Id.
(citing Tausevich v. Board of Appeals of Stoughton, 521 N.E.2d 385 (1988)).
Finality requires that the “parties were fully heard, the judge’s decision is supported
by a reasoned opinion, and the earlier opinion was subject to review or was in fact
reviewed.” Tausevich v. Bd. of Appeals of Stoughton, 521 N.E.2d 385, 387 (Mass.
1988). Here, the Massachusetts Superior Court granted defendant BW/IP’s motion
for summary judgment following discovery. [Doc. #298 at 6]. This motion was
granted on the grounds that plaintiff had failed to establish causation. Id. Under
Massachusetts law, a summary judgment ruling constitutes a final judgment on the
merits. In re Goldstone, 839 N.E.2d 825, 832 (Mass. 2005) (reasoning that
“[s]ummary judgment decisions are entitled to preclusive effect where the parties

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were fully heard, the court’s decision is supported by a reasoned opinion, and the
opinion was subject to review or was in fact reviewed”); Jarosz v. Palmer, 766
N.E.2d 482, 488 (Mass. 2002) (noting that “an evidentiary hearing or trial is not
required before issue preclusion can apply. The appropriate question is whether the
issue was ‘subject to an adversary presentation and consequent judgment’ that was
not ‘a product of the parties’ consent.’” (internal quotations and citations omitted)).
Although plaintiff never responded to defendant BW/IP’s summary judgment
motion, he was afforded the full opportunity to be heard on the issues. And
accordingly, the grant of summary judgment in the Massachusetts Superior Court
constitutes a final judgment on the merits.
The second factor is also met here as the party against whom estoppel is
asserted was a party or in privity with a party to the prior adjudication. The same
parties were involved in both the Massachusetts case and the case before this
Court.
Moreover, the issues litigated in the previous action are identical with the
ones before the Court.

In the Massachusetts action, plaintiff alleged that he

developed asbestosis as a proximate result of the defendants’ negligence and their
failure to warn of and protect him from the dangers of asbestos-containing
products. [Doc. #298-1, at 18–19]. He makes the same allegations in the instant
case—that “as a direct and proximate result of said defective and unreasonably
dangerous conditions of such products, Petitioner was exposed to . . . great
amounts of asbestos fibers . . . causing Petitioner to develop [] asbestos-related
disease.” [Doc. #1-1, at 15].

The only difference between the two cases is that

here plaintiff adds that he may have been exposed to asbestos not only between

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1958 and 1964, but also from 1966 to 1969 and 1969 to 1997. [Doc. #1-1 at 3].
This factual difference is not significant, as plaintiff had a full and fair opportunity to
assert both time periods in the Massachusetts action. As such, there are no “new
facts” arising after the disposition of the first case. See, e.g., Martin v. Ring, 514
N.E.2d 663, 665 (Mass. 1987). Accordingly, the claims are substantially similar
such that this prong is satisfied. See Comm’r of the Dep’t of Emp’t & Training v.
Dugan, 697 N.E.2d 533, 537 (Mass. 1998) (reasoning that “[i]n some cases, even if
there is a lack of total identity between the issues involved in two adjudications, the
overlap may be so substantial that preclusion in plainly appropriate.”)
Lastly, the issue was essential to the judge’s decision in the previous case.
Massachusetts courts do not require that the issues be “strictly essential” to the
outcome of the prior litigation. Alba v. Raytheon Co., 809 N.E.2d 516, 523 (Mass.
2004). Rather, this prong is fulfilled when the issues were “treated as essential.”
Green v. Brookline, 757 N.E.2d 731, 736 (Mass. App. Ct. 2001). Otherwise stated,
“‘[i]t is necessary that such findings be the product of full litigation and careful
decision.’” Id. (quoting Dugan, 697 N.E.2d at 533). The plaintiff had a full and fair
opportunity to litigate his claim that defendant BW/IP’s products caused his injuries.
More precisely, the Massachusetts court determined that Hovsepian failed to
establish the element of causation—grounds upon which all of his claims rest. See
Martin v. Ring, 514 N.E.2d 663, 665 (Mass. 1987) (holding that the “causation
issue” in an injury claim was “essential to the findings” of the tribunal); see also
Supeno v. Equity Office Prop. Mgmt., LLC, 874 N.E.2d 660, 664 (Mass. App. Ct.
2007).

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For the above reasons, the Court concludes that plaintiff’s claims against
defendant BW/IP are barred by collateral estoppel.
Accordingly,
IT IS HEREBY ORDERED that the motion of defendant BW/IP to dismiss
[Doc. #298] is granted.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 8th day of November, 2016.

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