Sparkman v. A W Chesterton Company et al

Filing 191

ORDER granting 173 Motion for Reconsideration Signed by Honorable David C Norton on 2/19/15.(akob, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
TERENCE J. SPARKMAN AND
LEONARD SPARKMAN, personal
representatives of the estate of ELIJAH
SPARKMAN, JR., deceased,
Plaintiffs,
vs.
GOULDS PUMPS, INC. and
RESEARCH-COTTRELL, INC. n/k/a
AWT AIR COMPANY, INC;
Defendants.

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No. 2:12-cv-02957-DCN

ORDER

This matter is before the court on a motion for reconsideration filed by plaintiffs
Terence J. Sparkman and Leonard Sparkman (“plaintiffs”). On December 29, 2014, the
court entered an order granting defendant Goulds Pumps, Inc.’s (“Goulds”) motion for
summary judgment. The court based its ruling on plaintiffs’ failure to establish exposure
to asbestos-containing products manufactured or otherwise supplied by Goulds, and
further determined that Goulds was not subject to a duty to warn consumers about
potential dangers from exposure to parts of its product which it did not manufacture or
otherwise supply. For the reasons stated below, the court grants plaintiffs’ motion for
reconsideration.
I. BACKGROUND
From 1954 to 2000, decedent Elijah J. Sparkman (“Sparkman”) was employed in
various capacities at Westvaco Pulp and Paper Mill (“Westvaco”) in North Charleston,
South Carolina, including as a laborer, boiler operator, evaporator operator, and

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precipitator operator. Pls.’ Resp. to Def.’s Mot. for Summ. J. 2. Sparkman was
eventually diagnosed with mesothelioma and on September 14, 2012, he filed a personal
injury action in the Court of Common Pleas in Charleston County, alleging his
mesothelioma resulted from a prolonged exposure to asbestos while employed at
Westvaco. Id. Defendants then removed the action to this court on October 12, 2012,
alleging jurisdiction based on diversity of citizenship. Sparkman passed away from
mesothelioma on October 20, 2012. Id. On April 23, 2013, plaintiffs filed an amended
complaint as the legal beneficiaries of Sparkman’s estate. The amended complaint
alleges claims of breach of implied warranty, breach of post-sale duty to warn, false
representation, negligence, recklessness, strict liability in tort, and wrongful death.
On September 8, 2014, Goulds filed a motion for summary judgment, contending
that plaintiffs could not establish that Sparkman was exposed to an asbestos-containing
product manufactured or otherwise supplied by Goulds. Def.’s Mot. for Summ. J. 1.
Goulds further argued that South Carolina would not impose on Goulds a duty to warn
consumers of the dangers of asbestos-containing component parts used in connection
with its pumps. Id. at 10. This argument is known as the bare metal defense. The court
determined that plaintiffs could not establish exposure to asbestos-containing products
manufactured or otherwise supplied by Goulds, and that the South Carolina Supreme
Court would likely adopt the bare metal defense. Accordingly, the court entered an order
granting Goulds’s motion for summary judgment on December 29, 2014.
Plaintiffs now move for reconsideration of the December 29, 2014 order, arguing
that the order is inconsistent with the holding in Garvin v. Agco Corp., No. 2012-CP-406675 (Richland, S.C., Ct. Common Pleas, Dec. 10, 2014), a case brought to the court’s

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attention during a holiday when the courthouse was closed and after the order had already
been prepared. Plaintiffs assert that Garvin indicates that the South Carolina Supreme
Court would not adopt the bare metal defense; rather, it would impose a duty to warn
consumers about potential dangers from exposure to parts of its product which it did not
manufacture or otherwise supply. Pls.’ Mot. 6. They further contend that there is
sufficient evidence of exposure to asbestos-containing products manufactured or
otherwise supplied by Goulds. Id. at 2.
II. DISCUSSION
Plaintiffs ask the court to reconsider its decision on the basis that allowing
summary judgment to stand would be clear error that would result in manifest injustice.
Pls.’ Reply 2. Both parties analyze the present motion for reconsideration under the
standard that the Fourth Circuit has outlined for review of Rule 59(e) motions to alter or
amend a judgment. Rule 59(e) states that “A motion to alter or amend a judgment must
be filed no later than 28 days after the entry of the judgment.” Fed. R. Civ. P. 59(e).
Courts within the Fourth Circuit have determined that such a motion should be
granted only for the following reasons: “(1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not available at trial; or (3) to correct a
clear error of law or prevent manifest injustice.” Pac. Ins. Co. v. Am. Nat’l Fire Ins. Co.,
148 F.3d 396, 403 (4th Cir. 1998) (internal citations omitted) (explaining the standard of
review for Rule 59(e) motions); Slep-Tone Entm’t Corp. v. Garner, No. 11-cv-00122,
2011 WL 6370364, at *1 (W.D.N.C. Dec. 20, 2011) (describing the standard of review
for Rule 54(b) motions); Zurich Am. Ins. Co. v. Fieldstone, No. CCB-06-cv-2055, 2008
WL 941627, at *1 (D. Md. Mar. 24, 2008) (same).

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On December 10, 2014, nineteen days before this court granted Goulds’s motion
for summary judgment, Judge D. Garrison Hill entered an order in the Court of Common
Pleas denying in part and granting in part defendant Crane Co.’s (“Crane”) motion for
post-trial relief. Garvin v. Agco Corp., No. 2012-CP-40-6675, at *1. In its motion,
Crane made the same argument that Goulds made in its motion for summary judgment,
urging adoption of the bare metal defense. Id. at *10. In his order, Judge Hill held as
follows:
The term “bare metal” is misleading and, as used here, is semantic
advocacy rather than a useful doctrinal description. There is no evidence
Crane sold “bare metal” valves or pumps; in fact, the evidence is to the
contrary. . . . Crane contends that when its original asbestos parts wore
out, the pump or valve somehow disappeared from the stream of
commerce, even though it remained as an integral, working part of a
massive industrial plant. Crane argues its legal responsibility ceased when
the asbestos it supplied no longer accompanied the product. . . .
[However] . . . it was undisputed Crane placed into the stream of
commerce products that not only contained asbestos, but specified they be
replaced by asbestos parts. Such a scenario was explicitly mentioned by
O’Neil as a problem its ruling did not address. Viewed objectively, the
manufacturer’s product—defective when it left Crane’s hands because it
contained asbestos and specified asbestos for future use—remained
defective and unreasonably dangerous when its specifications were heeded
not only by its owner/user, but by another manufacturer. . . .
There was no evidence the replacement gaskets and packing manufactured
by others were different in material or design from Crane’s original
supplied products or specifications. The evidence showed Crane long
knew of the risk asbestos posed, and it occupied the best position in the
chain of distribution to warn consumers of those risks. Crane knew
asbestos gaskets and packing would not last as long as its bare metal
valves or pumps; consequently it knew those parts would have to be
replaced, and replaced with similar if not identical parts whose
manufacture was guided by Crane’s design and specifications. To say
Crane was no longer part of the “chain of distribution” when the original
gaskets and packing wore out on its still-functioning product would be
artificial, if not silly. . . .

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The Court finds evidence sufficient for the jury to conclude that when Mr.
Garvin worked on Crane valves, the valves were in “essentially the same
condition as when [they] left the hands of the defendant.” Bragg, 319 S.C.
at 539. Crane placed the injury-causing product in the stream of
commerce, and there was ample evidence that Mr. Garvin worked on
original Crane valves and gaskets. Crane’s liability arises because its own
valves caused injury as manufactured, supplied, and designed by Crane
with asbestos gaskets and packing. When the asbestos gaskets and
packing were replaced with the same materials that came with the valve, it
was not a “substantial change” in the condition of the product. The
product remained the same as when sold—valves containing asbestos
gaskets and packing.
Id. at *10–17.
Notably, Judge Hill is the “Administrative Judge for asbestos litigation in the
Circuit Courts for the State of South Carolina.” Pls.’ Mot. Ex. B at 1. The South
Carolina Supreme Court has granted Judge Hill the “jurisdiction in all circuits in this state
to dispose of all pretrial matters and motions, as well as trials, arising out of asbestosis
and asbestos litigation filed within the state court system.” Pls.’ Reply Ex. A. Therefore,
Judge Hill’s interpretation of the bare metal defense in Garvin is persuasive evidence that
the South Carolina Supreme Court would likewise reject the bare metal defense.
Plaintiffs correctly note that the court did not consider Garvin in its December 29,
2014 order. However, plaintiffs did not include this case in their briefings on Goulds’s
motion for summary judgment. Instead, they noted the case in a letter filed with the court
on December 22, 2014. The federal courthouse was closed from December 23 to
December 29, and the order had been prepared prior to December 22, 2014. Therefore,
the court did not have an adequate opportunity to consider Garvin prior to entering its
order.
Now that the court has reviewed Garvin, it agrees with plaintiffs that ignoring the
opinion amounts to manifest injustice. Similar to Crane’s specification of the use of
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asbestos with its products in Garvin, Goulds also specified the use of asbestos for packing
and gaskets in its pumps. Pls.’ Resp. to Def.’s Mot. for Summ. J. Ex. F at 10. In a 1963
bulletin, Goulds specified the use of blue African asbestos. Id. In addition, prior to
approximately 1985, Goulds sold some centrifugal pumps with asbestos-containing
casing gaskets and stuffing box packing. Id. Ex. E at 2. Given this factual similarity to
the state court case, and the persuasive weight of Judge Hill’s opinion, the court finds that
that the South Carolina Supreme Court would likely reject the bare metal defense and
find that a manufacturer is subject to a duty to warn about potential dangers from
exposure to parts of its product which it did not manufacture or otherwise supply.
Accordingly, the court grants plaintiffs’ motion to reconsider on this ground and denies
Goulds’s motion for summary judgment.
Plaintiffs also move the court to reconsider on the basis that there is sufficient
evidence of exposure to asbestos-containing products manufactured or otherwise supplied
by Goulds. Pls.’ Mot. 2. However, in so arguing, they merely rehash claims made in
their briefings on Goulds’s motion for summary judgment. Plaintiffs have not pointed to
any new evidence or law that requires the court to re-examine its findings on this issue.
Nor have they indicated sufficient danger of manifest injustice. Thus, the court directs
plaintiffs to its December 29, 2014 order to dispose of this aspect of their motion to
reconsider.

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III. CONCLUSION
For the foregoing reasons, the court GRANTS plaintiffs’ motion for
reconsideration. 
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE

February 19, 2015
Charleston, South Carolina

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