Holzworth, Cheyenne v. Alfa Laval, Inc. et al

Filing 59

MEMORANDUM OPINION & ORDER re: 53 MOTION for Summary Judgment . filed by Ingersoll-Rand Company. For the foregoing reasons, Defendant Ingersoll's unopposed motion for summary judgment is granted. The Court therefore directs the Clerk to enter judgment in Defendant Ingersoll's favor in accordance with this order. (As further set forth in this Order.) (Signed by Judge John F. Keenan on 1/21/2016) (kgo)

Case 1:09-md-02013-PAC Document 57

Filed 09/30/10 Page 1 of 45

USDC SDNY
UNITED STATES DISTRICT COURT
DOCUMENT
SOUTHERN DISTRICT OF NEW YORK
ELECTRONICALLY FILED
-----------------------------------X
DOC #: _________________
CHEYANNE HOLZWORTH,
:
DATE FILED: 01/21/2016
UNITED STATES DISTRICT COURT
as Personal Representative for the :
SOUTHERN DISTRICT OF NEW YORK
Estate of William Andrew Holzworth :
-----------------------------------------------------------x
:
In re FANNIE MAE 2008 SECURITIES
08 Civ. 7831 (PAC)
Plaintiff,
::
::
No. 09 MD 2013 06088 (JFK)
12 Civ. (PAC)
LITIGATION
-against::
::
MEMORANDUM
OPINION & ORDER
:
OPINION & ORDER
-----------------------------------------------------------x
ALFA LAVAL INC., et al.
:
:
Defendants.
:
-----------------------------------X District Judge:
HONORABLE PAUL A. CROTTY, United States
APPEARANCES
FOR PLAINTIFF CHEYANNE HOLZWORTH:
BACKGROUND1
Derell Dereck Wilson, Esq.
The early years of this decade saw a boom
FOR DEFENDANT INGERSOLL-RAND COMPANY: in home financing which was fueled, among
Lisa M. Pascarella, Esq.
other things, byO’Connor,rates and lax credit conditions. New lending instruments, such as
Keith M. low interest Esq.
JOHNsubprime mortgages (high credit risk loans) and Alt-A mortgages (low-documentation loans)
F. KEENAN, United States District Judge:
kept the boom going. Borrowers played a role too; motion on unmanageable risks on the
Before the Court is an unopposed they took for summary
assumption Defendant would continue to rise and that refinancing options would
judgment by that the market Ingersoll-Rand Company (“Ingersoll”). always be
available in Rule 56 of the Federal lacking of Civil Mortgage originators did
Pursuant to the future. Lending discipline wasRules in the system.Procedure,
not hold seeks summary judgment as than carry of Plaintiff’s six
Ingersoll these high-risk mortgage loans. Rather to each the rising risk on their books, the
originators sold their loans into in the Amended Complaint. securitized
causes of action alleged the secondary mortgage market, often asFor the packages
known as mortgage-backed securities (“MBSs”). MBS markets grew almost exponentially.
reasons stated below, the motion is granted.
I. Background
But then the housing bubble burst. In 2006, the demand for housing dropped abruptly
It is undisputed that the the changing Mr. William Andrew
and home prices began to fall. In light ofdecedent, housing market, banks modified their
Holzworth practices and became unwilling“Decedent”), served as a sonarman
lending (“Mr. Holzworth” or to refinance home mortgages without refinancing.
in the U.S. Navy between 1952 and 1955. (See Holzworth Dep.,
1

Unless otherwise 9, 2012; O’Connor Ex. B the “Complaint” are to D, at 8;
758:8-23, Aug. indicated, all references cited as “(¶ _)” or to¶ 10; id. Ex. the Amended Complaint,
dated June 22, 2009. For purposes of this Motion, all allegations in the Amended Complaint are taken as true.

1
1

id. Ex. E, at 1.)

Thereafter, Mr. Holzworth worked as a

construction manager and project manager at various construction
sites between May 1963 and November 2007. (O’Connor Ex. E, at 14.)
At his deposition, Mr. Holzworth testified that he
encountered Ingersoll products in the form of pumps on the two
naval vessels where he served, the U.S.S. Edisto (AGB 2) and the
U.S.S. Sheldrake (AGS 19). (See Holzworth Dep., 753:16-758:4.)
Generally, Mr. Holzworth testified that he was exposed to pumps
like those manufactured by Ingersoll in two different ways.
First, Mr. Holzworth was exposed to Ingersoll pumps as a
bystander in the seamans’ sleeping quarters and when ordered to
the engine room to find other seamen while on watch. (See id.
753:20-54:4, 761:23-62:3.)

Second, Mr. Holzworth was exposed to

pumps when he volunteered to clean them as a favor to his
friend, a fellow seaman. (See Holzworth Dep. 849:5-20; 852:6-9;
863:23-64:3, Aug. 14, 2012).
Mr. Holzworth did not specifically describe the composition
of Ingersoll pumps.

Describing similar pumps made by Viking

Pump, Inc., however, Mr. Holzworth identified the types of pumps
in question as forged from cast iron. (See id. 846:3-12.)

When

assisting his friend, Mr. Holzworth testified that he scraped
asbestos material from flange gaskets and valves, which are
component parts to the pumps. (See id. 849:5-20; 863:9-64:3;
2

865:18-22.)

Additionally, Mr. Holzworth testified that the

gaskets contained packing—a long, continuous piece of rope
ringed around the gasket—and, sometimes, the valves were encased
in a “jacket” or “diaper.”

Mr. Holzworth testified that the

packing and jackets contained asbestos. (See id. 853:3-24;
866:2-14; 869:5-20; 874:17-21.)

Mr. Holzworth testified,

however, that many valves and pumps were refurbished and
replaced, that he could not identify the manufacturer of the
packing or jackets, and that he was unaware of the maintenance
history of the pumps or whether the pieces he cleaned were
original or replacements. (See id. 756:15-57:5, Aug. 9, 2012;
id. 851:2-52:9; 862:14-17; 868:4-19; 874:6-21, Aug. 14, 2012.)
II.

Procedural History

Mr. Holzworth initially filed the complaint in this action
in New York Supreme Court on July 9, 2012. (O’Connor Decl. Ex.
B.)

On August 9, 2012, former Defendant Crane Co. removed the

action to this Court under 28 U.S.C. § 1442(a)(1), which
provides for federal jurisdiction in cases involving persons
acting under the direction of a federal officer. (ECF No. 1.)
On September 7, 2012, pursuant to 28 U.S.C. § 1407, the
U.S. Judicial Panel on Multidistrict Litigation transferred this
action to the Eastern District of Pennsylvania for consolidated
pretrial proceedings before the Honorable Eduardo C. Robreno.
(ECF No. 10.)

On October 31, 2013, Judge Robreno determined
3

that this action was ready for trial and remanded it to this
Court. (ECF No. 13-99).
While this action was pending in the Eastern District of
Pennsylvania, on December 8, 2012, Mr. Holzworth passed away.
(ECF No. 27-2.)

Mr. Holzworth’s Certification of Death listed

the cause of death as lung cancer-mesolthelioma. (Id.)

On

February 4, 2014, the Orange County, Florida Circuit Court
Probate Division declared Mr. Holzworth’s daughter, Cheyanne
Holzworth (“Ms. Holzworth” or “Plaintiff”), duly qualified under
the laws of the State of Florida to act as personal
representative of Mr. Holzworth’s estate. (ECF No. 27-3.)
On March 7, 2014, Mr. Holzworth’s counsel moved to amend
the summons and complaint to add a cause of action for wrongful
death and to substitute Ms. Holzworth as Plaintiff in her
capacity as the personal representative of Mr. Holzworth’s
estate. (ECF No. 27.)

This Court granted the motion on March

11, 2014, (ECF No. 31), and Ms. Holzworth filed the amended
complaint on March 27, 2014. (ECF No. 42.)
The Amended Complaint makes no specific allegations about
Ingersoll.

In the Amended Complaint, the Plaintiff alleges that

the Decedent was exposed to various asbestos-containing products
during two periods.

First, between 1952 and 1955,1 while the

1

The actual years listed in the Amended Complaint are 1950
through 1954. As part of his interrogatory responses, however,
4

Decedent served in the U.S. Navy aboard the U.S.S. Edisto (AGB
2) and the U.S.S. Sheldrake (AGS 19).

Second, between 1963 and

2007,2 while working as a construction manager and project
manager. (O’Connor Decl. Ex. B ¶¶ 5, 10.)
asserts six causes of action:

The Amended Complaint

failure to warn (Count 1);

negligence (Count 2); strict liability (Count 3); wrongful death
based on negligence (Count 4); wrongful death based on strict
liability (Count 5); and wrongful death based on breach of
warranty (Count 6). (See generally O’Connor Decl. Ex. B; ECF No.
42).
On May 15, 2015, Defendant Ingersoll moved for summary
judgment. (ECF Nos. 53-55.)

Ingersoll asserts that there is no

genuine dispute of material fact that (1) Plaintiff has failed
to identify Ingersoll products that caused Decedent’s
mesothelioma and resultant death, (2) Defendant Ingersoll has no
duty under the applicable law to warn of hazards associated with
another manufacturer’s product, and (3) Defendant Ingersoll is
entitled to the “bare metal” defense. (ECF No. 55.)

Plaintiff

Mr. Holzworth indicated that his service was from 1952 to either
1954 or 1955. (See O’Connor Decl. Ex. E, at 1.) These later
dates are confirmed by Mr. Holzworth’s DD-214, which states that
he completed 3 years, 11 months, and 14 days of service on
December 16, 1955. (See id. Ex. F, at 5.)
2 The actual years in the Amended Complaint are 1982 through
2007. Mr. Holzworth’s interrogatory responses, however,
indicate that his construction work began nearly two decades
earlier in 1963. (See id. Ex. E, at 2.)
5

did not oppose this motion.

For the reasons stated below, the

motion is granted.
III.
A.

Discussion

Standard of Review3

A 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).

For summary judgment purposes, a genuine dispute as to

any material fact exists “where the evidence is such that a
reasonable jury could decide in the non-movant’s favor.” Delaney
v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014).

In

ruling on a motion for summary judgment, “the nonmoving party’s
evidence is to be believed, and all justifiable inferences are
to be drawn in that party’s favor.” Curry v. City of Syracuse,
316 F.3d 324, 329 (2d Cir. 2003).

3

The movant failed to include a separate, short and concise
statement of the material facts as to which it contends there is
no genuine issue to be tried, as required by Local Civil Rule
56.1. Under the Local Civil Rule, the Court may deny the motion
for summary judgment on these grounds. See S. & E.D.N.Y. LOCAL CIV.
R. 56.1(a). Nevertheless, because the Court “may in its
discretion opt to conduct an assiduous review of the record even
where one of the parties has failed to file such a statement,”
Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d. Cir. 2001)
(internal quotation marks omitted), abrogated on other grounds
by Gross v. FBL Fin. Servs., 557 U.S. 167 (2009), and, on an
unopposed motion, is in fact required to conduct such a review,
see Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244
(2d Cir. 2004), the court declines to deny the motion solely on
these grounds.
6

Where, as here, the summary judgment motion is unopposed,
it “does not, of course, mean that the motion is to be granted
automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.
1996) (per curiam).

Rather, the Court must “examin[e] the

moving party’s submission to determine if it has met its burden
of demonstrating that no material issue of fact remains for
trial.” Amaker v. Foley, 274 F.3d 677, 681 (2d Cir. 2001).

The

Court does so by, first, determining whether any material facts
are genuinely disputed in the record presented on the motion,
and, second, assuring itself that the “facts as to which there
is no genuine dispute show that the moving party is entitled to
a judgment as a matter of law.” Champion, 76 F.3d at 486
(internal quotation marks omitted).

If the evidence submitted

in support of the summary judgment motion does not meet the
movant’s burden of production, or if the undisputed facts fail
to show that the movant is entitled to judgment as a matter of
law, then summary judgment must be denied even if no opposing
evidentiary matter is presented. Vt. Teddy Bear Co. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
B.

Governing Law

As noted above, Mr. Holzworth’s exposure to Ingersoll’s
products occurred during his naval service.

Accordingly, the

Court normally would need to consider whether maritime or New

7

York law should apply.4

On this motion, however, the relevant

maritime law and state law are congruous, as shown below.
C.

The Plaintiff Has Not Raised a Genuine Issue of Material
Fact Concerning Mr. Holzworth’s Exposure to Ingersoll’s
Asbestos-Containing Products
Essential to the Plaintiff’s negligence, strict liability,

and breach of warranty theories is that Mr. Holzworth was
exposed to asbestos-containing products manufactured by
Ingersoll.

For negligence and strict liability theories, the

plaintiff must prove, “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.” See
Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir.
2005) (general maritime law); In re Joint E. & S. Dists.
Asbestos Litig., No. 92 Civ. 1113 (RWS), 1993 WL 97301, at *1
(S.D.N.Y. Mar. 30, 1993) (New York law); see also Perkins v. Air
& Liquid Sys. Corp., No. 13 Civ. 8561 (CM), 2015 WL 4610671, at

4

In its brief, the movant implies that the transferee court’s
decision in Conner v. Alfa Laval, Inc., 799 F. Supp. 2d 455
(E.D. Pa. 2011) controls here. (See ECF No. 55, at 18-23.)
While doctrines such as law of the case and collateral estoppel
should apply when a transferee court has made decisions in the
same case, see MANUAL FOR COMPLEX LITIGATION § 20.133, at 226 (4th ed.
2004); Deutsch v. Novartis Pharms. Corp., 768 F. Supp. 2d 420,
428 (E.D.N.Y. 2011), the Conner opinion did not involve Mr.
Holzworth or the Plaintiff. Accordingly, this Court has
considered the Conner opinion, but does not view it as directing
any specific result in this case. See Johnson v. FedEx Home
Delivery, No. 04-CV-4935(JG)(VVP), 2011 WL 6153425, at *7
(E.D.N.Y. Dec. 12, 2011).
8

*6-7 (S.D.N.Y. July 30, 2015) (comparing maritime law and New
York law on this point and finding them congruent).5
The Plaintiff has not provided any evidence that the
Decedent was exposed to any asbestos-containing products
produced by Ingersoll.

While the Decedent testified that he was

exposed to cast-iron pumps produced by Ingersoll, his deposition
testimony and his interrogatory responses fail to identify
Ingersoll as the manufacturer of the asbestos-containing gaskets
or other pump pieces.

Ms. Holzworth “cannot prevail, under

either New York or maritime law, simply by showing that Mr.
[Holzworth] was present on a ship that contained [Ingersoll]
products that were wrapped in asbestos.” Perkins, 2015 WL
4610671, at *8; see also Crews v. Air & Liquid Sys. Corp., No.
7:12-cv-1678, 2014 WL 639685, at *4-5 (N.D.N.Y. Feb. 18, 2014)
(granting summary judgment to a valve manufacturer where there
was no evidence in the record that the plaintiff had been able
to identify whether the replacement gaskets and packing

5

Breach of warranty claims are governed exclusively by state
law. See E. River S.S. Corp. v. Transamerica Delaval, Inc., 476
U.S. 858, 872 n.7 (1986). Like negligence and strict liability,
New York’s breach of warranty cause of action requires plaintiff
to prove that the product was a substantial factor in causing
the injury and, thus, that he encountered the allegedly
defective product. See Donovan v. Centerpulse Spine Tech, Inc.,
416 F. App’x 104, 106 (2d Cir. 2011) (“Under New York law,
whether the action is pleaded in strict products liability,
breach of warranty or negligence, it is a consumer’s burden to
show that a defect in the product was a substantial factor in
causing the injury.” (internal quotation marks omitted)).
9

materials to which he was exposed were products supplied by the
defendant).
Ultimately, the Plaintiff has offered no evidence that the
Decedent was exposed to Ingersoll’s asbestos-containing
products, much less that any exposure to Ingersoll products was
a substantial factor in the Decedent’s injuries.

As a result,

even drawing all justifiable inferences in the Plaintiff’s
favor, a reasonable jury could not find that Ingersoll caused
the Decedent’s injuries under either a negligence, strict
liability, or breach of warranty theory.
D.

The Plaintiff Has Not Raised a Genuine Issue of Material
Fact Concerning Ingersoll’s Failure to Warn
Because there is no evidence that the Decedent was exposed

to Ingersoll’s asbestos-containing products, Ingersoll’s
liability for failure to warn is limited to its duty—to the
extent that any exists—to warn Mr. Holzworth about the danger of
third-party products used in connection with Ingersoll’s pumps.
In such cases, “where there is no evidence that a
manufacturer had any active role, interest, or influence in the
types of products to be used in connection with its own product
after it placed its product into the stream of commerce, it has

10

no duty to warn.” In re N.Y.C. Asbestos Litig., 121 A.D.3d 230,
250 (1st Dep’t 2014).6
The Plaintiff has not provided any evidence to suggest that
Ingersoll had any role, interest, or influence whatsoever in the
products that the Navy used in connection with its pumps, much
less that Ingersoll actively participated in, knew of, or
manufactured products that necessitated the use of third-party
asbestos-containing products.

The Decedent’s deposition

testimony and interrogatory responses state only that Ingersoll
manufactured cast-iron pumps.

This evidence, standing alone,

does not raise a genuine dispute as to whether Ingersoll placed
the asbestos-containing components into the stream of commerce,

6

District courts applying maritime law have varied in the standard
they have applied. Compare Conner v. Alfa Laval, Inc., 842 F. Supp.
2d 791, 801 (E.D. Pa. 2012) (“[U]nder maritime law, a manufacturer
is not liable for harm caused by, and owes no duty to warn of the
hazards inherent in, asbestos products that the manufacturer did
not manufacture or distribute.”), with Quirin v. Lorillard Tobacco
Co., 17 F. Supp. 3d 760, 769-70 (N.D. Ill. 2014) (“[A] duty may
attach where the defendant manufactured a product that, by
necessity, contained asbestos components, where the asbestoscontaining material was essential to the proper functioning of the
defendant’s product, and where the asbestos-containing material
would necessarily be replaced by other asbestos-containing
material, whether supplied by the original manufacturer or someone
else.”) These standards are either equally or more burdensome for
the plaintiff than New York law. Because the Plaintiff has failed
to demonstrate that Ingersoll manufactured or distributed
asbestos-containing materials, that Ingersoll’s pumps required
asbestos-containing materials, or that Ingersoll played an active
role in the use of asbestos-containing materials, she has not shown
there is a genuine dispute of material fact under any of these
standards.
11

played an active role in their use, or manufactured pumps that
required such components. Cf. In re N.Y.C. Asbestos Litig., 121
A.D. 3d at 251 (finding that the defendant owed a duty to warn
regarding third party products where “the evidence
demonstrate[d] that [the defendant] influenced the Navy’s choice
of valve components following the initial shipment, and played a
leading role in creating the culture and regulations that
encouraged and eventually mandated the use of asbestos for
insulation”); Berkowitz v. A.C. & S., Inc., 288 A.D.2d 148, 149
(1st Dep’t 2001) (finding that the defendant owed a duty to warn
regarding third-party products where evidence showed that the
government provided certain specifications regarding pump
insulation and that the defendant “knew [the insulation] would
be made out of asbestos”).
As Plaintiff has produced no evidence that Ingersoll knew
of or otherwise influenced the Navy’s use of asbestos-containing
materials produced by third parties, there is no genuine dispute
as to any material fact relating to Ingersoll’s lack of a duty
to warn Mr. Holzworth of the dangers of third-party products.
E.

The Plaintiff’s Wrongful Death Causes of Action Against
Ingersoll Fail As a Matter of Law
Finally, the Plaintiff’s wrongful death causes of action

must fail as a matter of law because the Plaintiff did not

12

produce any evidence that the Decedent was exposed to asbestoscontaining materials manufactured by Ingersoll.
New York’s wrongful death statute allows for recovery “for
a wrongful act, neglect or default which caused the decedent’s
death against a person who would have been liable to the
decedent by reason of such wrongful conduct if death had not
ensued.” N.Y. ESTATES, POWERS, & TRUSTS LAW § 5-4.1(1); see also Chong
v. N.Y.C. Transit Auth., 83 A.D.2d 546, 547 (2d Dep’t 1981).7
Because the Plaintiff’s wrongful death actions arise from
the same conduct that is insufficient to establish Ingersoll’s
liability under theories of negligence, strict liability, and
breach of warranty, her wrongful death claims—which require
Ingersoll to be liable for the injury causing Mr. Holzworth’s
death—are equally insufficient.
III.

Conclusion

For the foregoing reasons, Defendant Ingersoll’s unopposed
motion for summary judgment is granted.

7

The Court therefore

General maritime law does not preclude seeking recovery under
state wrongful death statutes where, as here, Congress has not
expressly preempted them. See Yahama Motor Corp, U.S.A. v.
Calhoun, 516 U.S. 199, 215-16 (1996). Plaintiff does not
indicate whether she pursues her wrongful death claims under New
York law or maritime law. To the extent that the Plaintiff
brings her wrongful death claims exclusively under general
maritime law, consistent with New York law, she must prove an
underlying wrongful act or breach of duty. See Norfolk
Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820
(2001).
13

.------------------------·---------~-~---·-·----------~-------~----------

directs the Clerk to enter judgment in Defendant Ingersoll's
favor in accordance with this order.
SO ORDERED.

Dated:

New York, New York
January 1/, 2016

~vJ1~~

John F.
eenan
United States District Judge

14