Crews et al v. Air & Liquid Systems Corporation et al
MEMORANDUM-DECISION and ORDER granting 112 Motion by Crane Co. for Summary Judgment and further it is ORDERED that the remaining defendants shall file their responses to 159 Motion for leave to file an Amended Complaint by 3/4/2014 or, in the alternative, file a letter stating that they do not oppose the motion. If any opposition responses are filed, replies are due by 3/18/2014.. Signed by Senior Judge Frederick J. Scullin, Jr on 2/18/2014. (bjw, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DWIGHT CREWS and PEGGY CREWS,
AIR & LIQUID SYSTEMS CORPORATION;
ARMSTRONG INTERNATIONAL, INC.;
BW/IP INTERNATIONAL, INC., individually
and as successor-in-interest to Byron Jackson
Pumps; CARVER PUMP COMPANY; CBS
CORPORATION, formally known as Viacom,
Inc., successor-by-merger to CBS Corporation
formerly known as Westinghouse Electric
Corp.; CLARK RELIANCE CORPORATION;
CRANE CO.; ELLIOT TURBOMACHINERY
COMPANY; FLOWSERVE CORPORATION,
also known as BW/IP International, Inc., as
successor-in-interest to Byron Jackson Pumps;
FOSTER WHEELER ENERGY CORPORATION;
GENERAL ELECTRIC COMPANY; ICON
MANAGEMENT SERVICES, LLC, individually
and as successor in interest to Jerguson
Valve and Gauge Company; IMO INDUSTRIES,
INC., individually and as successor-in-interest to
Delaval Steam Turbine, Inc.; INGERSOLL-RAND
COMPANY; JOHN CRANE, INC.; NATIONAL
SERVICE INDUSTRIES, INC., formerly known
as North Brothers, Inc.; PNEUMO ABEX
CORPORATION; ROCKWELL INTERNATIONAL
CORP.; SEQUOIA VENTURES, INC. also known
as Bechtel Corporation; UNION CARBIDE
CORPORATION; WARREN PUMPS, LLC;
WEINMAN PUMP AND SUPPLY COMPANY;
and YARWAY CORPORATION,
NAPOLI BERN RIPKA
SHKOLNIK & ASSOCIATES LLP
350 Fifth Avenue, Suite 7413
New York, New York 10118
Attorneys for Plaintiffs
MICHAEL COHAN, ESQ.
KARDON A. STOLZMAN, ESQ.
K & L GATES LLP
599 Lexington Avenue
New York, New York 10020-6030
Attorneys for Defendant Crane Co.
ANGELA DIGIGLIO, ESQ.
ERIC R.I. COTTLE. ESQ.
NICOLE M. KOZIN, ESQ.
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
Although Plaintiffs' complaint contains six causes of action, only their first cause of
action for negligence, their third cause of action for failure to warn as it relates to Plaintiff
Dwight Crews' exposure to asbestos aboard a military vessel, and their sixth cause of action for
loss of consortium apply to Defendant Crane Co. Currently before the Court is Defendant Crane
Co.'s motion for summary judgment.1 See Dkt. No. 112. Plaintiffs oppose this motion. See Dkt.
No. 138. The Court heard oral argument in support of, and in opposition to, this motion on
December 11, 2013, and reserved decision at that time. The following is the Court's written
disposition of the pending motion.
Plaintiff Dwight Crews (hereinafter referred to as "Plaintiff") suffers from malignant
In addition to Defendant Crane Co., there are three other Defendants that remain in this
case: IMO Industries Inc., Ingersoll-Rand Company, and Warren Pumps, LLC.
mesothelioma. Plaintiff served in the U.S. Navy from 1965 to 1971. He served aboard the USS
Wright for six months in 1966. He entered as a fireman apprentice and was promoted to fireman.
Aboard the USS Wright, Plaintiff worked in close proximity to senior officers in the engine room
who performed maintenance on pumps and valves.
Plaintiff achieved the rank of Second Class Petty Officer
Machinist Mate. After
completing nuclear training, he served as a Machinist Mate Second Class aboard the USS
Bainbridge from approximately 1968 to 1971. Aboard the USS Bainbridge, Plaintiff was
responsible for maintenance and repair of equipment that included pumps and valves.
Plaintiff alleges that he was exposed to asbestos while he worked on, and in the direct
vicinity of other naval officers who performed work on, asbestos-containing Crane gaskets on
both the USS Wright and USS Bainbridge. Plaintiff states that he knew the gaskets were
asbestos through his experience and training in the Navy. He asserts that he worked with gaskets
that Defendant Crane manufactured at least once a day. He knew that they were Crane gaskets
because the name "Crane" was written on the gasket material. He describes the gasket as a
"fibrous material" put in between flanges, or valve casings, where the two halves of the casing
come together in order to prevent leakage. Plaintiff cut the gaskets with a ball-peen hammer,
which created dust that he breathed. He also removed gaskets from Crane valves with either a
paint scraper or a wire brush, which created dust that he breathed.
Furthermore, Plaintiff asserts that he knew that the valves with which he worked were
Crane valves because the name Crane was on the valve casing. Plaintiff removed and was in
direct vicinity of other officers who removed Crane gaskets from the internal bonnet of Crane
valves, which created dust that he breathed on many occasions. Finally, Plaintiff states that he
was exposed to asbestos-containing packing materials through his work with Crane valves. He
pulled asbestos packing from the packing glands of Crane valves, which created dust that he
breathed. He performed this work numerous times, as well as working in the direct vicinity of
others who removed packing from Crane valves that created dust that he breathed.
Whether maritime law or New York law applies to Plaintiff's claims against Defendant
Crane Co. is a threshold determination that is a question of federal law[.] See Floyd v. Air &
Liquid Sys. Corp., MDL No. 875, 2012 WL 975615, *1 (E.D. Pa. Feb. 8, 2012) (citing U.S.
Const. art. III, § 2; 28 U.S.C. § 1333(1)). For maritime law to apply, "a plaintiff's exposure
underlying a products liability claim must meet both a locality test and a connection test." Id.
(citation omitted). "The locality test requires that the tort occur on navigable waters or, for
injuries suffered on land, that the injury be caused by a vessel on navigable waters." Id. (citation
omitted). In determining whether the work was on "navigable waters," "work performed aboard
a ship that is docked at the shipyard is sea-based work, performed on navigable waters." Id.
In this case, the parties agree that maritime law applies to Plaintiff's claims against
Defendant Crane Co. Plaintiff served in the Navy from 1965 to 1971 and alleges that he was
exposed to asbestos related to Defendant Crane Co.'s products on both the USS Wright and the
USS Bainbridge. Based on these assertions, the Court concludes that Plaintiff's claims against
Defendant Crane Co. satisfy both the locality and the connection test; and, therefore, the Court
will apply maritime law to Plaintiff's claims.
Summary judgment standard
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "[t]he court shall grant
summary judgment if the movant shows 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). At the
summary judgment stage, the court's role is to determine "whether there is the need for a trial
whether, in other words, there are any genuine factual issues that properly can be resolved only
by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). In making this determination, the court must
view the evidence in the record and draw all reasonable inferences in the light most favorable to
the non-moving party. See Consol. Risk Servs., Inc. v . Auto. Dealers WC Self Ins. Trust, No.
1:06-CV-871, 2010 U.S. Dist. LEXIS 68401, *10 (N.D.N.Y. July 9, 2010) (citation omitted).
Summary judgment is appropriate if the party that bears the burden of proof at trial fails
to establish an essential element of its case. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Moreover, "the mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48. Thus,
"[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue
of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted).
Strict liability and negligence claims
"Absent a controlling statute, maritime law is 'developed by the judiciary' and is 'an
amalgam of traditional common-law rules, modifications of those rules, and newly created
rules.'" Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 796 (E.D. Pa. 2012) (quoting E. River
Steamship, 476 U.S. at 864-65, 106 S. Ct. 2295). Thus, courts look to both admiralty and state
common law when analyzing products liability claims under maritime law. See id. In products
liability cases under maritime law, a plaintiff may proceed under both negligence and strict
liability theories. See Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005).
Under either theory, a plaintiff is required to establish causation. See id. (citing Stark v.
Armstrong World Indus., Inc., 21 Fed. Appx. 371, 375 (6th Cir. 2001)). In order to prove such
causation, "a plaintiff [must] show, for each defendant, that (1) he was exposed to the defendant's
product, and (2) the product was a substantial factor in causing the injury he suffered." Id.
(citation omitted). In addition, as one court has noted, "there is also a requirement (implicit in
the test set forth in Lindstrom and Stark) that a plaintiff show that (3) the defendant manufactured
or distributed the asbestos-containing product to which exposure is alleged." Cardaro v. Aerojet
Gen. Corp., MDL No. 875, 2012 WL 3536243, *1 (E.D. Pa. July 27, 2012) (citing Abbay v.
Armstrong Int'l., Inc., No. 10-83248, 2012 WL 975837, at *1 n.1 (E.D. Pa. Feb. 29, 2012)
Resolution of the present motion rests on whether Plaintiff has come forward with
sufficient evidence to demonstrate that there is a dispute about a material issue of fact as to
whether he was exposed to any of Defendant Crane Co.'s products and, if so, whether any of
those products were a substantial factor in causing his injury. In this case, Plaintiff appears to
argue that he was exposed to the original valves that Defendant Crane Co. manufactured and
supplied to the Navy for use on the USS Wright and the USS Bainbridge at the time those vessels
were built. He also appears to argue that these "original" valves included asbestos-containing
gaskets and packing materials at the time that Defendant Crane Co. supplied them to the Navy.
Finally, Plaintiff asserts that he was exposed to asbestos-containing replacement gaskets and
packing materials that Defendant Crane Co. supplied to the Navy for use on the USS Wright and
the USS Bainbridge during the times that Plaintiff was aboard those ships.
1. The original valves that Defendant Crane Co. supplied to the Navy
There is apparently no dispute that Defendant Crane Co. manufactured valves or that
Defendant Crane Co. supplied valves to the Navy for use on the USS Wright and the USS
Bainbridge at the time those vessels were built. However, Plaintiff has not pointed to any
evidence that he was exposed to those original valves or, even if he were, that he was exposed to
the original packing or gasket materials that were allegedly part of those original valves.
Moreover, given the timing of events, it is highly unlikely that he would have been. The USS
Wright was built during World War II, nearly forty years prior to the time that Plaintiff was
aboard that vessel. Likewise, the USS Bainbridge was commissioned in the early 1960s, a
minimum of five years prior to Plaintiff's service on that ship.
Based on the lack of any evidence in the record to show that Plaintiff was exposed to any
asbestos-containing materials that might have been part of the original valves that Defendant
Crane Co. manufactured and supplied to the Navy for use on the USS Wright and USS
Bainbridge at the time those ships were built, the Court grants Defendant Crane Co.'s motion for
summary judgment with respect to Plaintiff's negligence and strict products liability claims
insofar as those claims relate to Defendant Crane Co.'s valves.
2. Replacement gaskets and packing materials
Plaintiff asserts that Defendant Crane Co. supplied the replacement gaskets and packing
materials to which he was exposed. He also asserts that he knew these materials were Defendant
Crane Co.'s products because the word "Crane" appeared on them. Finally, he contends that he
was exposed to these products on a regular basis while he was aboard the USS Wright and the
In his original deposition, Plaintiff stated that he did not know the manufacturer of the
materials with which he worked. At his later videotaped deposition, however, he testified that
the word "Crane" appeared on these materials. Now, for the first time, in opposition to
Defendant Crane Co.'s motion for summary judgment, Plaintiff states in his memorandum of law
that he was exposed to "Cranite," a product that was manufactured exclusively for Defendant
Crane Co. and which Defendant Crane Co. supplied to the Navy.
In response, Defendant Crane Co. asserts that "Cranite" is not at issue in this case because
Plaintiff has never testified that he was exposed to "Cranite" or that any product to which he was
exposed had the word "Cranite" on it. Furthermore, Defendant Crane Co. argues that Plaintiff
has not presented any evidence to show that Defendant Crane Co. supplied "Cranite" to the Navy
or, even if it had provided "Cranite" to the Navy at one time, that it had supplied "Cranite" to the
Navy for use on the USS Wright or the USS Bainbridge during the time that Plaintiff was aboard
There is no evidence in the record that Defendant Crane Co. manufactured replacement
gaskets or packing materials. Plaintiff, however, argues that it is not necessary for him to
demonstrate that Defendant Crane Co. manufactured such materials because he has at least raised
an issue of fact as to whether Defendant Crane Co. supplied these materials to the Navy and,
thus, had a duty to warn users like Plaintiff about the dangers of exposure to asbestos-containing
There are two "Crane" Defendants in this action: Defendant Crane Co. and Defendant
John Crane, Inc. There is no evidence in the record that Plaintiff has been able to identify
whether the replacement gaskets and packing materials to which he was exposed were products
that Defendant Crane Co. supplied or were products that Defendant John Crane, Inc.
manufactured and/or supplied. With respect to this issue, the evidence is limited to Plaintiff's
testimony that the word "Crane" appeared on these products.
Plaintiff, possibly realizing that his inability to identify which of the Crane Defendants
manufactured and/or supplied the asbestos-containing products to which he was exposed might
be problematic, now, for the first time, asserts in his memorandum of law that the product to
which he was exposed was "Cranite." However, there is nothing in the record to support this
assertion. Although Plaintiff has produced what appears to be Defendant Crane Co.'s product
catalog for 1953, in which there is a picture of a product called "Cranite,"2 this evidence does not
demonstrate that Defendant Crane Co. supplied "Cranite" to the Navy at any time, let alone for
the Navy's use on the USS Wright or the USS Bainbridge during the relevant time frame.
The Court also notes that in this picture of the product "Cranite," the word "Cranite" is
prominently displayed on the product, whereas the word "Crane" if it appears at all (it is difficult
to see in the picture) is in much smaller letters.
Furthermore, during neither of his depositions did Plaintiff ever mention that he was exposed to
or worked with a product called "Cranite."
Given the facts of this case and the lack of sufficient evidence to indicate that Defendant
Crane Co., rather than Defendant John Crane, Inc., supplied the allegedly asbestos-containing
materials to which Plaintiff was exposed aboard the USS Wright and the USS Bainbridge, the
Court finds that Plaintiff has come forward with nothing more than conclusory allegations and
speculation, which are insufficient to create a genuine issue of fact as to whether Defendant
Crane Co. supplied the asbestos-containing replacement gaskets and packing materials to which
Plaintiff was exposed. See Lindstrom v. AC Prods. Liab. Trust, 264 F. Supp. 2d 583, 594 (N.D.
Ohio 2003) (granting Crane Co.'s motion for summary judgment where the plaintiff had sued
both Crane Co. and John Crane and was unable to "clearly establish that Crane Co. was the
manufacturer or supplier of a specific asbestos-containing product"). Thus, because Plaintiff
cannot, based on these conclusory and speculative assertions, establish an issue of fact with
regard to the causation element of his products liability and negligence claims, the Court
concludes that summary judgment is appropriate. Furthermore, because Plaintiff has not come
forward with sufficient evidence to demonstrate that Defendant Crane Co. supplied these
products, the Court also concludes that Defendant Crane Co. had no duty to warn Plaintiff about
the dangers of third-party products that were used with its valves because it neither had any
control over the production of these products nor placed them into the stream of commerce. See
Surre v. Foster Wheeler LLC, 831 F. Supp. 2d 797, 801 (S.D.N.Y. 2011) (citations omitted).
For all these reasons, the Court grants Defendant Crane Co.'s motion for summary
judgment with respect to Plaintiff's failure-to- warn claims.3
Having reviewed the entire file in this matter, the parties' submissions and oral arguments
and the applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Defendant Crane Co.'s motion for summary judgment is GRANTED; and
the Court further
ORDERS that, with respect to the motion for leave to amend their complaint that
Plaintiffs filed on January 7, 2014, see Dkt. No. 159, the remaining Defendants in this case shall
file their responses in opposition to that motion or, if they have no opposition, shall file a letter
with the Court stating that they do not oppose Plaintiffs' motion on or before March 4, 2014. If
any of the remaining Defendants file papers in opposition to Plaintiffs' motion, Plaintiffs may, if
they wish, file a reply in further support of their motion on or before March 18, 2014.
IT IS SO ORDERED.
Dated: February 18 , 2014
Syracuse, New York
The result is the same whether Plaintiff relies on a negligence or strict products liability
theory for his failure-to-warn claims.
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