MacCormack et al v. The Adel Wiggins Group et al

Filing 350

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the motion of defendant Crane Co. to dismiss [Doc. #332 ] is granted. An order of partial dismissal will be entered separately. Signed by District Judge Carol E. Jackson on 3/8/17. (KXS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DIANE MACCORMACK, NANCY BROUDY
and KAREN LOFTUS, as Special Personal
Representatives of BERJ HOVSEPIAN,
deceased,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
THE ADEL WIGGINS GROUP, individually )
and as a wholly-owned subsidiary of the )
TRANSDIGM GROUP, INC., et al.,
)
)
Defendants.
)

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

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendant Crane Co. to
dismiss based on collateral estoppel. The plaintiffs have filed a memorandum in
opposition. The issues are fully briefed and ripe for disposition.
I.

Background
Plaintiffs

are

the

special personal representatives

of Berj Hovsepian

(Hovsepian), now deceased. Hovsepian was a civilian employee of the United States
Navy from 1958 until 1964, in Boston, Massachusetts. He contracted asbestosrelated mesothelioma, allegedly as a result of exposure to products that were
manufactured, sold, distributed or installed by the defendants, including Crane Co.
In December 2009, Hovsepian brought an action against defendant Crane
Co.

and

other

entities

in

the

Superior

Court

for

the

Commonwealth

of

Massachusetts. He asserted claims of common law negligence,1 breach of express
1

Hovsepian’s common law negligence claims were based on (1) failure to warn “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

and implied warranties,2 and “malicious, willful, wanton and reckless conduct or
gross negligence.”3 Defendant Crane Co. moved for summary judgment, arguing
that plaintiff failed to (1) “present evidence that Berj Hovsepian worked with or
around a Crane Co. product,” (2) “present evidence that Berj Hovsepian worked
with or around asbestos-containing original or replacement parts that were
manufactured or supplied by Crane Co.,” (3) “prove that any materials used with a
Crane Co. product actually contained asbestos,” (4) “prove that any work with or
around a Crane Co. product substantially contributed to Berj Hovsepian’s disease,”
among other arguments. [Doc. #333-2 at 4–5 (emphasis in original)]. On August
10, 2012, the Superior Court granted Crane Co.’s motion for summary judgment.
In December 2015, Hovsepian initiated an action in the Circuit Court of the
City of St. Louis, Missouri, against defendant Crane Co. and others, and asserting
claims identical to those in the Massachusetts case. The action was removed to this

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
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. #333-1, at 18–19].
2

Hovsepian claimed 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. #333-1, at 20].
3

Hovsepian claimed that at least some of the defendants possessed “medical and scientific data
clearly indicating that asbestos and asbestos-containing products were hazardous.” [Doc. #333-1 at
32].

2

Court pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. After Hovsepian’s death, the
plaintiffs continued the lawsuit as his special personal representatives.
II.

Legal Standards
Motion to Dismiss
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). “Indeed, [i]f an affirmative defense . . . is apparent on the face of
the complaint . . . that [defense] can provide the basis for dismissal under Rule
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12(b)(6).” Id. at 764 (internal quotation marks and citations omitted). 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). Plaintiffs challenge the use of a motion to dismiss to raise collateral estoppel
or res judicata. [Doc. #336 at 2]. They cite no authority for this contention. But,
ample Eighth Circuit precedent demonstrates otherwise. See, e.g., Nance v.
Humane Soc’y of Pulaski Cty., No. 15-3512, 2016 WL 4136972 (8th Cir. Aug. 4,
2016) (affirming a district court’s 12(b)(6) dismissal premised on collateral estoppel
grounds); A.H. ex. rel. Hubbard v. Midwest Bus Sales, Inc., 823 F.3d 448 (8th Cir.
2016) (affirming a district court’s dismissal on the grounds of res judicata);
Johnson v. Vilsack, 833 F.3d 948, 951 n.4, 953–54

(8th Cir. 2016) (discussing

whether an administrative agency determination justified a motion to dismiss on
res judicata grounds, and noting that “[e]ach of the documents the district court
considered was a public record, which a court can rely on even at the motion to
dismiss stage”); Jaakola v. U.S. Bank Nat’l Trust Ass’n, 609 Fed. Appx. 877 (8th
Cir. 2015) (affirming a district court’s dismissal under Rule 12(b)(6) on res judicata
grounds). Accordingly, the Court disagrees with the plaintiffs’ argument that a
summary judgment motion is required to assert a res judicata argument, and the
Court will proceed with its analysis.
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

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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.’”
Id. at 449–50 (quoting Tyus v. Schoemehl, 93 F.3d 449, 452 (8th Cir. 1996)
(internal citations omitted) (abrogated on separate grounds)); 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.
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

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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, in the instant case, the law of Massachusetts will determine the
preclusive effect of the parties’ previous litigation.
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
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, 734 (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.’” Alba, 809 N.E.2d at 521
(internal citations and quotations omitted).
In this case, there was a final judgment on the merits in the Massachusetts
case. “[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. Bd. of Appeals of Stoughton, 521 N.E.2d 385, 387 (1988)).

6

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, 521 N.E.2d at 387. Here, the Massachusetts Superior Court
granted defendant Crane Co.’s motion for summary judgment following discovery.
[Doc. #333 at 1, 3; Doc. #333-5]. According to defendant Crane Co., this motion
was granted on the grounds that Hovsepian had failed to establish causation. [Doc.
#333 at 7 n.3]. Plaintiffs, for their part, do not contest that summary judgment was
granted in the Massachusetts case. And 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 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 Hovsepian never
actually responded to defendant Crane Co.’s summary judgment motion, he was
afforded the full opportunity to be heard on the issues. See Treglia v. MacDonald,
717 N.E.2d 249, 254 (Mass. 1999) (noting that even in the case of default, where a
party actively participated in the litigation previously, collateral estoppel would
apply). Therefore, the grant of summary judgment by the Massachusetts Superior
Court constituted a final judgment on the merits.

7

The second element of collateral estoppel is also met, as the party against
whom estoppel is asserted was a party or in privity with a party to the prior
adjudication. “There is no generally prevailing definition of privity which can be
automatically applied to all cases.” Degiacomo v. City of Quincy, 63 N.E.3d 365,
370 (Mass. 2016) (internal quotation marks, formatting, and citation omitted).
“[P]rivity is best understood simply as a legal conclusion that follows from an
analysis of the relationship between the parties to a prior adjudication and the party
to be bound.” Id. “A nonparty to a prior adjudication can be bound by it ‘only where
[the nonparty’s] interest was represented by a party to the prior adjudication.” TLT
Constr. Corp. v. A. Anthony Tappe and Assocs., Inc., 716 N.E.2d 1044, 1050 (Mass.
App. Ct. 1999). Accordingly, the current plaintiffs, as the special representatives of
Hovsepian, are parties in privity with a party to the prior adjudication.
With respect to the third element, Hovsepian alleged in the Massachusetts
case 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. He makes the same allegations here: 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]. There are, however, two differences between the two cases. First is
the allegation that Hovsepian may have been exposed to asbestos not only between
1958 and 1964, but also from 1966 to 1969 and 1969 to 1997.

However, this

factual difference is not significant, as plaintiff had a full and fair opportunity to
assert both time periods in the Massachusetts action.

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The second distinction

between the cases is the allegation in the amended complaint that Hovsepian died
as a result of exposure to asbestos. But this additional information does not alter
the nature of the claims.

The Court disagrees with plaintiffs’ assertion that

defendant Crane Co. has provided insufficient information regarding the identity of
the claims presented in both cases. See [Doc. #336 at 3].4 Instead, the Court finds
the claims in both cases are substantially similar. 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.”)
With respect to the fourth element, 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). Hovsepian had a full and fair opportunity to litigate the claim that
defendant Crane Co.’s products caused his injuries. And the Massachusetts court
determined that Hovsepian failed to establish the element of causation – a ground
on which all of his claims depend. See Martin v. Ring, 514 N.E.2d 663, 665 (Mass.
4

Plaintiffs contend that defendants should have provided testimony from the Massachusetts and
Missouri cases. [Doc. #336 at 3]. The Court does not agree that such testimony is necessary here.
The respective complaints from each case demonstrate that the claims asserted are virtually identical.
See Willett v. Webster, 148 N.E.2d 267, (Mass. 1958) (reasoning that res judicata applied where “it is
apparent from comparison of the pleadings that they set forth in substance and in effect the same
cause of action.”) The Court also finds that plaintiffs do not “meaningfully contest the authenticity” of
the public records provided by defendant, and therefore accepts defendant Crane Co.’s exhibits and
statements regarding the summary judgment motion and decision in the Massachusetts Superior
Court. See Johnson v. Vilsack, 833 F.3d 948, 951 n.4 (8th Cir. 2016).

9

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).
***
For the above reasons, the Court concludes that plaintiffs’ claims against
defendant Crane Co. are barred by collateral estoppel.
Accordingly,
IT IS HEREBY ORDERED that the motion of defendant Crane Co. to dismiss
[Doc. #332] is granted.
An order of partial dismissal will be entered separately.

CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 8th day of March, 2017.

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