BRAUN v. MANVILLE CORPORATION ASBESTOS DISEASE COMPENSATION FUND et al

Filing 97

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/5/17. 1/6/17 ENTERED AND COPIES MAILED AND E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CREIGHTON E. MILLER
(Administrator for Estate of
Joseph F. Braun),

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:
Plaintiffs,
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v.
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MANVILLE CORPORATION ASBESTOS :
DISEASE COMPENSATION FUND,
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ET AL.,
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Defendants.
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CONSOLIDATED UNDER
MDL 875

E.D. PA CIVIL ACTION NO.
2:11-33896-ER

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

January 5, 2017

Presently before the Court is the Thompson Hine Defendants’
motion for summary judgment based upon their argument that
Plaintiff’s Jones Act claims have abated as there is no
statutory beneficiary. For the reasons that follow, the motion
will be denied.
This case was transferred in April of 2011 from the United
State District Court for the Northern District of Ohio to the
United States District Court for the Eastern District of
Pennsylvania, where it became part of the consolidated asbestos
products liability multidistrict litigation (MDL 875). The case
was assigned to the Court’s maritime docket (“MARDOC”). See
2:02-md-0875. The Thompson Hine Defendants include: (1) American

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President Lines, Ltd., (2) Matson Navigation Company, Inc., and
(3) The Oceanic Steamship Company. (ECF No. 43-1.)
Plaintiff, the administrator of the estate of decedent
Joseph F. Braun (“Decedent” or “Mr. Braun”), alleges that
Decedent was exposed to asbestos while working aboard ships
owned by Defendants (and, in at least some instances, as an
employee of Defendant(s)), and that he developed an asbestosrelated illness(es) as a result of this asbestos exposure, which
caused his death. This action was filed in 1989, asserting
claims against Defendants under the Jones Act and the general
maritime common law. (See ECF No. 77-5 at 25-28.) Mr. Braun died
in October of 1986. (ECF No. 77-5 at 25.) He was survived by his
wife, Helen Braun (“Mrs. Braun” or “Decedent’s Widow”). (See ECF
Nos. 50 and 50-1.) Thereafter, however, during the pendency of
this action, on November 28, 2000, Mrs. Braun also died. (ECF
No. 50-1.) (The Court notes that there is information in the
record that Mr. Braun also had a son, Richard Braun, who is
apparently also now deceased, but who may also have survived his
father, and who is perhaps now survived by a spouse and/or child
(which may include, specifically, a Demetria Braun, who has been
identified as a dependent of Decedent Mr. Braun and for whom
there is no indication in the record of death). See ECF No. 43-2
at 4-5, Responses to Interrog. Nos. 5 and 6.)

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The Thompson Hine Defendants have moved for summary
judgment, arguing that Plaintiff’s Jones Act claims have abated
because there is no statutory beneficiary. Although these
Defendants initially asserted that all of Plaintiff’s Jones Act
claims have abated, their reply brief contends that it is only
the survival claims (and not the wrongful death claims) that
have abated. (ECF No. 52.)
The Court also notes that the motion addresses only
Plaintiffs’ Jones Act claims (which sound in negligence) and
does not address Plaintiffs’ claims for unseaworthiness brought
pursuant to the general maritime common law. (See ECF No. 77-5
at 25-28 (Ex. 4 to Def. Mot. Dismiss (Complaint)); see also,
e.g., 2:02-md-00875, ECF No. 1827-1 at 2-6, ¶¶ 7-9
(representative MARDOC complaint asserting both statutory and
common law claims)). Therefore, even if the motion were granted
in its entirety, it does not necessarily follow that it would
entitle Defendants to dismissal from the action. As such, the
motion is properly identified as one for partial (rather than
full) summary judgment.
I.

The Applicable Law
A. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine

dispute as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion
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for summary judgment will not be defeated by ‘the mere
existence’ of some disputed facts, but will be denied when there
is a genuine issue of material fact.” Am. Eagle Outfitters v.
Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248, 106 S.
Ct. 2505, 91 L. Ed. 2d 202 (1986)). A fact is “material” if
proof of its existence or non-existence might affect the outcome
of the litigation, and a dispute is “genuine” if “the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.
In undertaking this analysis, the court views the
facts in the light most favorable to the non-moving party.
“After making all reasonable inferences in the nonmoving party's
favor, there is a genuine issue of material fact if a reasonable
jury could find for the nonmoving party.” Pignataro v. Port
Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.
1997)). While the moving party bears the initial burden of
showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the non-moving party who
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 250.

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B. Substantive Law
The parties agree that the claims in this case are governed
by maritime law, and that there are Jones Act claims against the
Thompson Hine shipowner defendants. Because the claims all arise
from alleged asbestos exposure aboard ships, it is clear that
maritime law applies because the “connection” and “locality”
tests are satisfied. See Conner v. Alfa Laval, Inc., 799 F.
Supp. 2d 455 (E.D. Pa. 2011) (Robreno, J.); Deuber v. Asbestos
Corp. Ltd., No. 10-78931, 2011 WL 6415339, at *1 n.1 (E.D. Pa.
Dec. 2, 2011) (Robreno, J.).
II.

Defendants’ Lack of Statutory Beneficiary Motion
A. Defendants’ Motion

Defendants’ initial motion contends that they are entitled
to summary judgment as to Plaintiff’s wrongful death and
survival claims because Mr. Braun’s claims lack an identified
beneficiary (as defined by the applicable statutes).
Specifically, Defendants contend that the Jones Act only permits
claims to proceed where the recovery has been identified to be
distributed to a surviving spouse, child, parent, or next of kin
who is dependent upon the decedent. Defendants contend that
Plaintiffs have not identified a person who falls into this
definition of a beneficiary.

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As legal authority for this position, Defendants state that
the Jones Act (46 U.S.C. ' 30104) incorporates FELA’s substantive
recovery provisions. The wrongful death provision reads:
Every common carrier . . . shall be liable in damages
to any person suffering injury while he is employed by
such carrier in such commerce, or, in case of the
death of such employee, to his or her personal
representative, for the benefit of the surviving widow
or husband and children of such employee; and, if
none, then of such employee’s parents; and, if none,
then of the next of kin dependent upon such employee,
for such injury or death resulting in whole or in part
from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect
or insufficiency, due to its negligence, in its cars,
engines, appliances, machinery, track, roadbed, works,
boats, wharves, or other equipment.
45 U.S.C. ' 51 (emphasis added). The survival provision reads:
Any right of action given by this chapter to a person
suffering injury shall survive to his or her personal
representative, for the benefit of the surviving widow
or husband and children of such employee, and, if
none, then of such employee’s parents; and, if none,
then of the next of kin dependent upon such employee,
but in such cases there shall be only one recovery for
the same injury.
45 U.S.C. ' 59 (emphasis added). Defendants rely upon Lindgren v.
United States, 281 U.S. 38, 41 (1929), which they contend sets
forth the well-established principle that, without any of the
statutory beneficiaries, there can be no action, and which
reads:
By this section [Section 51] if the injury to the
employee results in death his personal representative
– while not given any right of action in behalf of the
estate – is invested, solely as trustee for the
designated survivors, with the right to recover for
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their benefit such damages as will compensate them for
any pecuniary loss which they sustained by the death.
281 U.S. at 41 (emphasis added). In contending that other courts
have recognized this principle, as set forth in Lindgren, they
cite Pittsburgh Nat’l Bank v. Pennsylvania R.R. Co., 315 F.2d
606, 607 (3d Cir. 1963); Glod v. American President Lines, Ltd.,
547 F. Supp. 183, 185 (N.D. Cal. 1982); Petition of United
States, 92 F. Supp. 495, 497 (S.D.N.Y. 1950); Bailey v.
Baltimore Mail S.S. Co., 43 F. Supp. 243, 245 (S.D.N.Y. 1941);
and Auld v. Terminal R.R. Ass’n of St. Louis, 463 S.W.2d 297,
299 (Mo. 1970).
B. Plaintiff’s Opposition
In response to Defendants’ motion, Plaintiff identified a
statutory beneficiary who was alive at the time of the filing of
the action and at (and after) the time of Decedent’s death
(specifically, his wife, Mrs. Braun). (See ECF No. 50.) During
the pendency of the action, however, this statutory beneficiary
(Mrs. Braun) passed away. (See ECF Nos. 50 and 50-1.) (The Court
has also noted identification in the record by Plaintiff of a
son of Mr. Braun (Richard Braun), who is apparently now deceased
but who may have also survived his father, and who is perhaps
still now survived by a spouse and/or child (which may include,
specifically, a Demetria Braun, who has been identified as a
dependent of Decedent Mr. Braun, and for whom there is no

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indication in the record of death). See ECF No. 43-2 at 4-5,
Responses to Interrog. Nos. 5 and 6.) Plaintiff contends that
the death of a statutory beneficiary during the pendency of a
Jones Act action (even if the sole statutory beneficiary) does
not extinguish the cause of action. Plaintiff relies upon Van
Beeck v. Sabine Towing Co., 300 U.S. 342 (1937), which he
contends held that a Jones Act wrongful death action does not
abate where the sole beneficiary of the cause of action dies
during the pendency of the suit, but might be continued by the
administrator for recovery of loss up to the beneficiary’s
death, with the damages to be paid to the beneficiary’s estate.
He also relies upon Dellaripa v. New York, New Haven & Hartford
R.R. Co., 257 F.2d 733, 735 (2d Cir. 1958), which he contends
held that the death of a decedent’s sole statutory beneficiary
during the pendency of a case did not terminate an
administrator’s right of recovery under a survival action
brought pursuant to FELA – and stated that “[i]t is difficult to
discern any reason why a survival action should abate where a
wrongful death action does not.” 257 F.2d at 734. For the
proposition that the death of a sole statutory beneficiary to a
Jones Act action does not serve to extinguish either a wrongful
death or survival claim, Plaintiff cites Wade v. Rogala, 270
F.2d 280 (3d Cir. 1959).

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Plaintiff contends that Lindgren is not relevant precedent
for cases in which a Jones Act statutory beneficiary dies during
the pendency of the action because Lindgren involved a seaman
who had no statutory beneficiary at the time of his death
(whereas Mr. Braun had at least one, and possibly more,
statutory beneficiaries at the time of his death). Plaintiff
thus contends that his Jones Act claims do not abate under the
circumstances of these cases.
C. Defendants’ Reply
In their reply brief, Defendants concede that a Jones Act
wrongful death claim does not abate where a beneficiary (even

a

sole beneficiary) is alive at the time of the Decedent’s death
but later dies during the course of the action (as clarified by
Van Beeck). Defendants, however, contend that a Jones Act
survival claim does abate under these same circumstances (as
established by Dooley v. Korean Air Lines Co., 524 U.S. 116, 123
(1998) and Rogers v. Ft. Worth & D.C.R. Co., 91 S.W.2d 458 (Tex.
Civ. App. 1936)). They assert that the survival claim is for the
benefit of the surviving statutory beneficiary (during the
course of their lifetime) – and not for the benefit of the
estate of that beneficiary after his or her death.
Defendants acknowledge that Plaintiff has correctly
summarized Dellaripa, however, Defendants contend that Dellaripa
has been superseded by the Supreme Court’s holding in Dooley.
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Defendants further contend that Dooley confirmed a
principle established in Mobil Oil Corp. v. Higginbotham, 436
U.S. 618, 625 (1978), that, where Congress authorizes only
certain classes of beneficiaries in a statute, courts may not
add additional classes to permit recovery by persons who are not
themselves statutory beneficiaries – and that allowing Plaintiff
to recover for the Decedent’s injury/survival claim would
necessarily and improperly add a new class of beneficiaries
under the Jones Act.
III. Analysis
The parties agree that Plaintiff’s Jones Act wrongful death
claims do not abate under the circumstances of these cases.
Accordingly, the Court must decide whether Defendants are
entitled to summary judgment on Plaintiff’s Jones Act survival
claims, which in this case raises two issues: (1) have
Defendants established that there is no living statutory
beneficiary who is entitled to recover on Plaintiff’s survival
claims, and (2) can the survival claims be pursued for the
benefit of a statutory beneficiary’s estate (including,
specifically, Mrs. Braun’s estate, and perhaps also the estate
of Decedent’s now-deceased son (if he was alive at the time of
Decedent’s passing)) even though that statutory beneficiary is
now deceased.

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At the summary judgment stage, Defendants bear the burden
of establishing that Plaintiff's claims are barred. Anderson,
477 U.S. at 250. The first issue raised by Defendants’ motion in
this case is whether Defendant has established the absence of a
living statutory beneficiary. Plaintiff’s interrogatory
responses identify a Demetria Braun as a (non-child, non-spouse)
dependent of Decedent’s. (ECF No. 43-2 at at 4-5, Responses to
Interrog. Nos. 5 and 6.) (It would appear, based on the
information provided in the record, that Demetria is likely
either the widow of Decedent’s now-deceased son, Richard, or
perhaps a granddaughter or niece of Decedent. Given her last
name and her listing by Plaintiff as a “dependent” of
Decedent’s, the Court recognizes the probability that she is a
“next of kin.”) There is no evidence in the record (from
Defendants or otherwise) that Demetria is not still living – or
that Demetria is not a “next of kin dependent” who is entitled
to recover on the survival claims pursuant to the statute. See
45 U.S.C. ' 59. As such, Defendants have failed to establish that
(partial) summary judgment on grounds of lack of a living
statutory beneficiary is warranted due to the lack of a living
statutory beneficiary. Anderson, 477 U.S. at 250.
However, even if it were determined that there is no living
statutory beneficiary, Defendants’ motion fails for reasons
surrounding the second issue raised by the motion. With respect
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to the second issue, Defendants primarily rely on Dooley for the
proposition that a Jones Act survival claim abates when the
statutory beneficiary passes away during the pendency of the
action. Dooley was brought under the Death on the High Seas Act
(DOHSA) by personal representatives of passengers who were
aboard an airplane that was shot down over the Sea of Japan and
who brought claims pursuant to the Warsaw Convention to recover
damages for, inter alia, pre-death pain and suffering of the
decedent-passengers. In construing DOHSA, the Supreme Court
stated:
Petitioners argue that general maritime law recognizes
a survival action, which permits a decedent’s estate
to recover damages that the decedent would have been
able to recover but for his death, including pre-death
pain and suffering. And, they contend, because DOHSA
is a wrongful-death statute – giving surviving
relatives a cause of action for losses they suffered
as a result of the decedent’s death – it has no
bearing on the availability of a survival action.
We disagree. DOHSA expresses Congress’ judgment that
there should be no such cause of action in cases of
death on the high seas. By authorizing only certain
surviving relatives to recover damages, and by
limiting damages to the pecuniary losses sustained by
those relatives, Congress provided the exclusive
recovery for deaths that occur on the high seas.
.

.

.

.

.

The comprehensive scope of DOHSA is confirmed by its
survival provision, see supra, at 1894, which limits
the recovery in such cases to the pecuniary losses
suffered by surviving relatives. The Act thus
expresses Congress’ “considered judgment,” Mobil Oil
Corp. v. Higginbotham, supra, at 625, 98 S. ct., at
2015, on the availability and contours of a survival
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action in cases of death on the high seas. For this
reason, it cannot be contended that DOHSA has no
bearing on survival actions; rather, Congress has
simply chosen to adopt a more limited survival
provision. Indeed, Congress did so in the same year
that it incorporated into the Jones Act, which permits
seaman injured in the course of their employment to
recover damages for their injuries, a survival action
similar to the one petitioners seek here. See Act of
June 5, 1920, ' 33, 41 Stat. 1007 (incorporating
survival action of the Federal Employers’ Liability
Act, 45 U.S.C. ' 59). Even in the exercise of our
admiralty jurisdiction, we will not upset the balance
struck by Congress by authorizing a cause of action
with which Congress was certainly familiar but
nonetheless declined to adopt.
524 U.S. at 123-24.
Defendants thus argue that the Jones Act only authorizes a
certain class of beneficiaries, and the Court cannot recognize a
new class of beneficiaries – that proposed class being the
statutory beneficiary’s estate. To the extent that Dooley
supports Defendants’ argument, it is only insofar as it sets
forth the general proposition that the Court cannot expand the
class of beneficiaries statutorily permitted by Congress. The
crucial question, however, remains unanswered: whether the
estate of a Decedent’s statutory beneficiary (i.e., the estate
of Mrs. Braun and perhaps also the estate of Decedent’s nowdeceased son, Richard (if he was alive at the time of Decedent’s
passing)) is considered an expansion of the class of
beneficiaries, or whether the estate may recover/inherit the
damages owed to the now-deceased statutory beneficiary.

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Defendants have failed to identify any authority that
establishes that an estate may not recover these amounts.
Defendants cite to Rogers, 91 S.W.2d at 458, in support of their
argument. However, Defendants admit that the decision was
overruled in part by the Supreme Court in Van Beeck. In
recognizing the apparent lack of authority for their position,
Defendants appeal to the “statutory purpose” of a survival
claim:
The survival claim does not compensate the beneficiary
for the beneficiary’s own loss, but rather it is the
injured employee’s claim that survives, and which is
brought for the purpose of benefitting the beneficiary
during her lifetime. If the sole beneficiary dies
during pendency of the suit, that statutory purpose
cannot be accomplished, and there is no statutory
beneficiary on whose behalf the action can be
maintained.
Reply at 4 (internal citation omitted). (ECF No. 79.)
In contrast, Plaintiff cites to Dellaripa, which states
that Van Beeck’s holding logically extends to survival actions.
The Court agrees with the reasoning in Dellaripa, and this Court
does not construe Dooley to supersede Dellaripa. First, the
Court notes that the categories of beneficiaries established in
sections 51 and 59 are identical. Accordingly, this Court would
be in direct conflict with Van Beeck if it determined that the
estate of a statutory beneficiary qualified as a “new” class of
beneficiary. Second, other courts have reached similar
conclusions about the survivorship of claims where the named
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beneficiary dies during the pendency of the action. See, e.g.,
White v. United States, 543 F.3d 1330 (Fed. Cir. 2008) (holding
that even though estates are not among the beneficiaries
enumerated in the Public Safety Officers Benefits Act, the
estate of a claimant who died before her claim had been
processed could collect the statutory benefit). Finally, it
would be an especially absurd and unfair result where, as here,
the instant claims were effectively held in abeyance for decades
because of a judicial backlog of asbestos cases. See, e.g.,
Labrache v. A-C Product Liability Trust, 2014 WL 10390332, at *1
n.2 (Sept. 8, 2014) (Robreno, J.) (setting forth the history of
MDL-875 and the staying/administrative dismissal of thousands of
asbestos cases in the 1990s). Mrs. Braun died fairly recently,
and the instant motion would have been moot if the Court had had
the resources to handle the case (and the thousands of other
asbestos cases held in abeyance) when they were first filed.
See, e.g., Dziesinski v. Alcoa Steamship Co., No. 09-30136, ECF
Nos. 130 and 162 (brief of plaintiffs noting that statutory
beneficiary Alice Dziesinski, mother of deceased seaman Leon
Dziesinski, died during the pendency of his action in February
of 2012, and Order of this Court dated April 21, 2015, denying a
motion for summary judgment on the asserted ground that the
estate of Mrs. Dziesinski could not recover on a survival claim
for which she would have collected if still alive, and
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identifying dozens of other MARDOC cases with similar fact
patterns (i.e., recently-deceased sole statutory beneficiaries)
in which the same Order was entered).
IV.

Conclusion

Defendants have failed to (1) show that there is no genuine
dispute as to a material fact as to whether there is a living
statutory beneficiary (e.g., that the Demetria Braun identified
by Plaintiff is not a “next of kin dependent” as provided for in
the survival statute), or (2) identify any authority that
establishes that Plaintiff’s Jones Act claims (either wrongful
death claims or survival claims) abate even if there is an
absence of a living statutory beneficiary (i.e., because the
beneficiary(ies) living at the time of Decedent’s death
(specifically, his wife – and possibly also his son) have since
passed away during the pendency of this action). See Anderson,
477 U.S. at 248-50. For these reasons, Defendants’ motion for
(partial) summary judgment is denied.
An appropriate Order follows.

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