Yates v. Air & Liquid Systems Corporation, Inc., et al
Filing
451
MEMORANDUM OPINION following June 1, 2015 Text Order denying #377 MOTION to Amend Complaint - Signed by District Judge Louise Wood Flanagan on 06/26/2015. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:12-CV-752-FL
GRAHAM YATES and BECKY
YATES,
Plaintiffs,
v.
FORD MOTOR COMPANY and
HONEYWELL INTERNATIONAL,
INC., successor-in-interest to Bendix
Corporation, f/k/a Allied Signal, Inc.
Defendants.
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MEMORANDUM OPINION
This matter came before the court previously on plaintiff’s first motion to amend complaint,
filed April 28, 2015 (DE 377). Defendants responded in opposition, and the court denied the motion
by text order entered June 1, 2015. The instant memorandum opinion sets for the court’s reasons
for the decision.
BACKGROUND
In their complaint filed November 16, 2012, plaintiffs state that they seek “monetary
damages as a result of Plaintiff Graham Yates contracting an asbestos-related disease,”
mesothelioma. (Compl. ¶3). Plaintiffs assert that plaintiff Graham Yates’s “exposure to asbestos
and/or asbestos-containing products occurred during his employment at sites listed on the attached
Schedule I,” incorporated by reference in the complaint. (Compl. ¶4).
Schedule I provides, as an “employer/worksite,” the “U.S. Navy – USS JONAS INGRAM
(DD-938) [and] USS CLARENCE K. BRONSON (DD-668),” during approximately 1957 to 1960,
among other sites of asbestos exposure from approximately 1956 to 1970. (Compl. p. 19). It also
lists the following “products containing asbestos”: “Pumps, Purifiers, Steam Traps, Clutches,
Blowers, Turbines, Valves, Insulation, Cement, Pipe Covering, Gaskets, Feed Systems, Friction
Products, Boilers, Condensers, Belts and Hoses, Ship’s Service Generators, Engines, Welding Rods
and Machines, Brakes, Marinite and Micarta Board, Gaskets and Packing, roof coating, Filters.”
(Id.).
Plaintiffs allege that defendants, comprising 29 corporations, “manufactured, distributed,
sold, supplied, and/or otherwise placed into the stream of commerce asbestos and/or asbestoscontaining products, materials, or equipment, . . . so that these materials were caused to be used at
the Plaintiff Graham Yates’ job sites.” (Compl. ¶6).
In the first cause of action in the complaint, based on negligence, plaintiffs claim that all
defendants, except one (Metropolitan Life Insurance Company), acted negligently in placing
asbestos or asbestos-containing materials, products or equipment into interstate commerce without
adequate warnings, “with the result that said asbestos and asbestos-containing materials, products
or equipment came into use by Plaintiff Graham Yates.” (Compl. ¶¶ 15, 22). Plaintiffs allege that
“[d]uring the course and scope of his employment, Plaintiff Graham Yates was exposed to
Defendants’ asbestos and asbestos-containing materials, products or equipment, which exposure
directly and proximately caused him to develop an illness known and designated as mesothelioma.”
(Compl. ¶17).
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Plaintiffs further allege that “Plaintiff Graham Yates, whose livelihood was dependent upon
the work that he did for the various employers listed in Schedule I, was required to work with and
around asbestos and/or asbestos-containing products, materials or equipment that were
manufactured, processed, distributed, supplied, and/or sold by Defendants.”
(Compl. ¶19).
Plaintiffs also allege that “Defendants knew or should have known that persons employed like
Plaintiff Graham Yates would be required to and would come into contact with and would work in
close proximity to said products.” (Id.).
In November 2013, eight defendants filed motions for summary judgment: IMO Industries,
Inc. (“IMO”) (DE 166); FMC Corporation (“FMC”) (DE 168); Ford Motor Company (“Ford”) (DE
171); Honeywell International, Inc. (“Honeywell”) (DE 173); Dana Companies, LLC (“Dana”) (DE
176); General Electric Company (“GE”) (DE 177); Foster Wheeler Energy Corporation (“Foster
Wheeler”) (DE 178); and Crown Cork & Seal Company, Inc. (“Crown”) (DE 179).1
Plaintiffs opposed only the motions for summary judgment by defendants Ford and
Honeywell. As pertinent here, on January 31, 2014, the court granted the unopposed motion for
summary judgment by defendant FMC, noting that while an alleged FMC predecessor supplied a
pump that “plaintiff Graham Yates worked around while employed in the Navy,” plaintiffs provided
“no other evidence of the frequency, proximity, or manner of exposure.” (DE 194 at 11). The court
granted the unopposed motion for summary judgment by defendant Foster Wheeler, noting that
while Foster Wheeler “manufactured a condenser that plaintiff Graham Yates worked around,”
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Thirteen other defendants were dismissed previously upon joint motions to dismiss or notices of voluntary
dismissal. Eight additional defendants did not raise any issue for decision on summary judgment, (see DE 196 at 5), but
were subsequently terminated from the action upon joint motions to dismiss or stipulation of dismissal.
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plaintiffs did not present any evidence “detailing the manner of exposure of the level of asbestos in
the product.” (Id. at 12).
The court granted the unopposed motion for summary judgment by defendant IMO, noting
that while an alleged IMO predecessor supplied “‘asbestos materials’ that plaintiff Graham Yates
worked around,” plaintiffs provided no evidence “identify[ing] the manufacturer of any equipment,
or the brand or trade name of any product in the Bronson engine room.” (Id. at 13). Finally, the
court granted the unopposed motion for summary judgment by defendant GE, noting that while the
“only potential place of exposure to GE products was on board the Bronson,” plaintiffs provided no
evidence that “a GE product exposed him to asbestos.” (Id.).
DISCUSSION
Plaintiffs moved to amend their complaint to remove all aspects of Schedule I that relate to
plaintiff Graham Yates’ asbestos exposure while in the Navy, and corresponding allegations in the
claims that such exposure caused plaintiff Graham Yates’ mesothelioma.2 Plaintiffs suggest that the
court’s summary judgment decisions provide a basis for removing any such allegations.
The Federal Rules of Civil Procedure require “a short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). “Even though the requirements
for pleading a proper complaint are substantially aimed at assuring that the defendant be given
adequate notice of the nature of a claim being made against him, they also provide criteria for
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Plaintiffs also seek to amend the complaint to (1) reflect only existing claims against Ford and Honeywell;
(2) to remove all parties from the case caption, who are not longer parties to this action; and (3) to remove all causes of
action for which the court granted motions for summary judgment, including plaintiffs’ claim for punitive damages.
Amendment for these reasons is unduly delayed and unnecessary in light of alternative procedures for presenting
accurately claims and defendants remaining in the case to the jury. The court’s analysis above thus focuses on the
substantive amendment sought by plaintiffs.
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defining issues for trial.” Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). A properly
pleaded complaint provides to an opponent “illumination as to the substantive theory under which
[plaintiff] [i]s proceeding, which is the function of pleadings under the Federal Rules.” Atl.
Purchasers, Inc. v. Aircraft Sales, Inc., 705 F.2d 712, 717 (4th Cir. 1983).
While “leave [to amend] shall be freely given when justice so requires,” Fed. R. Civ. P.
15(a), a “motion to amend may be denied when it has been unduly delayed and when allowing the
motion would prejudice the nonmovant.” Lone Star Steakhouse & Saloon v. Alpha of Va., Inc., 43
F.3d 922, 940 (4th Cir.1995). “Whether an amendment is prejudicial will often be determined by
the nature of the amendment and its timing . . . . [T]he further the case progressed before judgment
was entered, the more likely it is that the amendment will prejudice the defendant or that a court will
find bad faith on the plaintiff’s part.” Laber v. Harvey, 438 F.3d 404, 427 (4th Cir.2006). For
example, in Newport News Holdings Corp. v. Virtual City Vision, Inc., 650 F.3d 423, 439, 440 (4th
Cir. 2011), the Fourth Circuit held that the district court did not abuse its discretion in denying
amendment to a counterclaim where the amendment was not fully briefed until “two weeks before
the scheduled trial date” and, if allowed, “would likely have required further discovery,” and “would
substantially change the nature and scope of trial.”
In this case, the amendment proposed by plaintiffs is improper for several reasons. First, the
motion to amend is unduly delayed. Plaintiffs could have sought leave to amend to remove
allegations regarding alternative theories of exposure and causation after the court granted summary
judgment on their claims against defendants FMC, Foster Wheeler, GE and IMO in January 2014.
Indeed, since such motions were unopposed, plaintiffs could have sought leave to amend even prior
to the court’s order on summary judgment. By seeking to amend the complaint shortly before trial,
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when they could have sought to amend much earlier, the amendment is unduly delayed. See Laber,
438 F.3d at 427; Newport News, 650 F.3d at 439, 440.
Second, the proposed amendment is unduly prejudicial because defendants are entitled to
rely upon the claims and allegations in the complaint as a basis for preparing for and presenting their
defense at trial. See Francis, 588 F.3d at 192; Atl. Purchasers, Inc., 705 F.2d at 717.
Third, and relatedly, the proposed amendment is unduly prejudicial because defendants may
rely upon factual allegations in the complaint as judicial admissions. “Factual assertions in pleadings
and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the
party who made them.” Amgen Inc. v. Connecticut Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1197
n.6 (2013) (quotations omitted). “It is well established that even if the post-pleading evidence
conflicts with the evidence in the pleadings, admissions in the pleadings are binding on the parties.”
Bright v. QSP, Inc., 20 F.3d 1300, 1305 (4th Cir. 1994) (quotations omitted).
Allowing plaintiffs to remove judicial admissions in the original complaint would be
prejudicial to defendants, because they have no time remaining for discovery to develop additional
evidentiary support for facts otherwise supported by judicial admissions. See New Amsterdam Cas.
Co. v. Waller, 323 F.2d 20, 24 (4th Cir. 1963) (“A judicial admission is usually treated as absolutely
binding, [and] such admissions go to matters of fact which, otherwise, would require evidentiary
proof.”).
Although the parties dispute the full extent and effect of the judicial admissions in the
complaint, the court need not at this juncture determine conclusively their full extent and effect. It
suffices for the present decision that those portions of the complaint impacted by the proposed
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amendment contain judicial admissions in the form of factual assertions regarding plaintiff Graham
Yates’ exposure to asbestos while in the Navy.
For example, plaintiffs allege in the complaint that plaintiff Graham Yates’s “exposure to
asbestos and/or asbestos-containing products occurred during his employment at sites listed on the
attached Schedule I,” including as “employer/worksite,” the “U.S. Navy – USS JONAS INGRAM
(DD-938) [and] USS CLARENCE K. BRONSON (DD-668),” during approximately 1957 to 1960
(Compl. ¶4; Schedule I). Plaintiffs also allege that all named defendants’ “asbestos and asbestoscontaining materials, products or equipment came into use by Plaintiff Graham Yates.” (Compl.
¶15). Similarly, plaintiffs allege that all named defendants failed to warn “persons such as Plaintiff
Graham Yates of the dangers . . . [in] breathing said asbestos fibers from asbestos and/or asbestoscontaining materials, products or equipment.” (Id. ¶ 22(e)). In addition, “persons employed like
Plaintiff Graham Yates would be required to and . . . would work in close proximity to said
products.” (Id. ¶19).
By contrast, some statements in the complaint pertaining to elements of claims may be more
in the nature of assertions of mixed fact and law, not properly treated as judicial admissions for
purposes of the instant decision. For example, Plaintiffs allege that “[d]uring the course and scope
of his employment, Plaintiff Graham Yates was exposed to Defendants’ asbestos and asbestoscontaining materials, products or equipment, which exposure directly and proximately caused him
to develop an illness known and designated as mesothelioma.” (Compl. ¶17) (emphasis added).
Generally, “courts are reluctant to treat opinions and legal conclusions as binding judicial
admissions,” except in the case of “deliberate, clear, and unambiguous statements by counsel,” or
“intentional and unambiguous waivers.” Meyer v. Berkshire Life Ins. Co., 372 F.3d 261, 264 & 265
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n.2 (4th Cir. 2004). The above-emphasized portion of this statement contains a legal conclusion
regarding whether causation was direct and proximate. It is also ambiguous as to differences in
causation, if any, as between defendants and terms of employment. As such, the statement is not so
deliberate, clear, and unambiguous, as to constitute a binding judicial admission that plaintiff
Graham Yates’s exposure to asbestos in the Navy was a direct and proximate cause of his
mesothelioma.
Plaintiffs argue that they should be relieved of any judicial admissions in the complaint on
the basis of the evidence developed since the complaint was filed, and on the basis of plaintiffs’ lack
of opposition to summary judgment in favor of FMC, Foster Wheeler, IMO, and GE. Both grounds
are without merit. A court “has the right to relieve a party of his judicial admission if it appears that
the admitted fact is clearly untrue and that the party was laboring under a mistake when he made the
admission.” New Amsterdam Cas. Co. v. Waller, 323 F.2d 20, 24 (4th Cir. 1963); see Coral v.
Gonse, 330 F.2d 997, 999 n. 1 (4th Cir.1964) (noting court can relieve party from judicial admission
if “convinced that an honest mistake had been made, the original allegation was untrue and that
justice required relief”).
Evidence cited by plaintiffs, including bankruptcy claim forms, deposition testimony, and
other statements in the record (see DE 375 at 4-9), is insufficient to establish that factual admissions
in the complaint are “clearly untrue” or that plaintiffs made an “honest mistake” in asserting
allegations as to exposure to asbestos in the Navy. New Amsterdam, 323 F.2d at 24. In addition,
plaintiffs’ lack of opposition to summary judgment in favor of FMC, Foster Wheeler, IMO, and GE,
is insufficient to meet this standard. As an initial matter, a lack of opposition to summary judgment
may be attributed to any number of reasons, including strategic ones, unrelated to availability of
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evidence to support a claim against a particular defendant. In any event, the court’s reasons for
granting the unopposed motions for summary judgment related to the failure to present evidence
pertaining to each defendants’ products, rather than exposure to asbestos in the Navy overall. (e.g.,
DE 194 at 11, 12, 13).
In sum, plaintiffs are bound by their judicial admissions in the nature of factual assertions
regarding asbestos exposure in the Navy. Plaintiffs’ proposed amendment seeking to delete these
and other assertions, at this late juncture, after discovery has closed, is untimely and unduly
prejudicial. Therefore, on the basis of the foregoing, the court denied plaintiffs’ motion to amend
complaint.
This the 26th day of June, 2015.
________________________________
LOUISE W. FLANAGAN
United States District Judge
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