Chesher et al v. 3M Company et al
ORDER granting 313 Motion for Summary Judgment Signed by Honorable David C Norton on March 29, 2018.(cban, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
JAMES WILSON CHESHER, and
CHERYL ANN CHESHER,
3M COMPANY, et al.,
This matter is before the court on defendant Crane Co.’s (“Crane”) renewed
motion for summary judgment, ECF No. 313. For the reasons stated below, the court
grants the renewed motion for summary judgment.
James Wilson Chesher (“Chesher”) is a former machinist mate and a
commissioned officer in the U.S. Navy. He and his wife, Cheryl Ann Chesher,
(collectively, “plaintiffs”) allege that Chesher’s exposure to asbestos throughout his
Naval career caused him to develop mesothelioma. Compl. ¶¶ 31–34. Chesher served in
the Navy from 1965 to 1989. For a significant portion of his career, Chesher conducted
or oversaw maintenance and repair work on various types of equipment, including valves
and de-aerating feed tanks—large tanks which remove dissolved oxygen from the water
before it is sent to the boiler. ECF No. 226-1, Chesher Video Dep. at 21:21–22:17,
26:10–22; ECF No. 226-2, Chesher First Dep. at 147:7–14. Chesher’s work on valves
required him, or his subordinate, to remove and replace internal packing and bonnet
gaskets, which were frequently made from asbestos-containing materials. Chesher Video
Dep. at 26:10–22 (describing work on internal packing and bonnet gaskets); ECF No.
226-9, Pantaleoni Dep. at 24:5–26:24, 57:7–25, 63:3–64:22, 72:9–18 (discussing
drawings of valves approved for use by the Navy that specified the use of asbestoscontaining materials); ECF No. 226-10, Moore Aff. ¶ 17 (noting that Crane drawings
specified use of asbestos containing internal packing and bonnet gaskets for certain
valves installed on the USS Henderson and USS Fox). This work produced dust which
Chesher breathed in. Pantaleoni Dep. at 27:20–28:25, 30:1–30:21. Chesher’s work on
de-aerating feed tanks required him to access nozzles inside the tank by crawling through
a manhole. Chesher First Dep. at 53:11–15. The record contains evidence that this
manhole was sealed by an asbestos-containing gasket, Moore Aff. ¶ 19, which needed to
be removed and replaced whenever the tank was inspected. ECF No. 226-3, Chesher
Second Dep. at 456:13–18.
Crane supplied valves for use on board the ships where Chesher performed, or
closely supervised, valve maintenance.1 ECF No. 226-8, Crane Answers to Interrogs. at
20. Indeed, Chesher recalls working on Crane valves frequently throughout his career.
Chesher Second Dep. at 420:4–15. Though Crane did not manufacture asbestoscontaining sheet packing or gaskets, these products were installed in Crane’s valves at the
time they were supplied to the Navy, see Pantaleoni Dep. at 24:5–11, 24:24–25:5
(indicating that Crane would have to provide component parts as specified in design
Crane admits to supplying valves to the USS Cadmus, USS Fox, USS Mahan,
and USS Pratt. ECF No. 226-8, Answers to Interrogs. 20. Crane cannot confirm whether
it sold valves for use on the USS Henderson and USS Kraus, but has found
documentation indicating that its valves were approved for use on those ships. Id.
Additionally, plaintiffs’ expert contends that Crane’s documents show that it supplied
valves used on the USS Henderson, USS Fox, and USS Kraus. Moore Aff. ¶ 17. The
court finds this evidence sufficient to raise a genuine issue of fact as to whether Crane
valves were used on all the ships Chesher served on during the relevant portion of his
drawings at time of delivery), and Crane was aware that the valves’ sheet packing and
gaskets would need to be replaced periodically. ECF No. 226-5, Crane Catalog No. 60 at
10–11. Crane is also alleged to be the successor-in-interest to Cochrane Corp.
(“Cochrane”), which manufactured the de-aerating feed tanks for two of the ships on
which Chesher served. Moore Aff. ¶ 19. Like the gaskets used in Crane valves, the
gaskets used to seal the manhole on the de-aerating feed tanks would have been replaced
periodically—namely, each time the tanks were opened. Id. ¶ 20.
On April 15, 2015, plaintiffs brought the instant action in the Court of Common
Pleas in Richland County, South Carolina, alleging claims for negligence, grossnegligence, negligence per se, conscious pain and suffering, punitive damages, and loss
of consortium against a number of defendants. The action was removed to this court on
May 22, 2015. ECF No. 1. On March 4, 2016, Crane filed a Daubert motion to preclude
specific causation testimony from plaintiffs’ expert, Dr. Carlos Bedrossian (“Dr.
Bedrossian”). ECF No. 181. The court held an evidentiary hearing on the matter on
February 28, 2017, ECF No. 311, and issued an order granting Crane motion on July 21,
2017, ECF No. 312. On August 9, 2017, plaintiffs filed a motion for reconsideration of
the order excluding Dr. Bedrossian’s specific causation testimony. ECF No. 314. On
August 1, 2017, Crane filed a renewed motion for summary judgment, ECF No. 313, and
plaintiffs filed a response on August 10, 2017, ECF No. 315. On December 12, 2017, the
court held a hearing on the motion for reconsideration and the renewed motion to
dismiss, at which it denied Chesher’s motion for reconsideration. ECF No. 321. The
renewed motion for summary judgment has been fully briefed and is ripe for the court’s
Summary judgment shall be granted “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “By its very terms, this standard provides that 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 v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Id. “[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Id. at 249. The court should view the evidence in the light most
favorable to the non-moving party and draw all inferences in its favor. Id. at 255.
Jurisdiction and Choice of Law
At the outset, the court notes that the parties agree that the issues presented by
Crane’s motion fall within the court’s admiralty jurisdiction and that this case is therefore
governed by maritime law. Def.’s Mot. 5–7; Pls.’ Resp. 9. Nevertheless, the court
briefly addresses the issue below in order to more authoritatively establish the basis of the
court’s jurisdiction and the source of the appropriate substantive law.
The court has federal admiralty jurisdiction over a tort claim if conditions of
location and “connection with maritime activity” are met. Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). The location test is met if
either “the tort occurred on navigable water” or the “injury suffered on land was caused
by a vessel on navigable water.” Id. The connection test has two prongs: (1) “whether
the incident involved was of a sort with the potential to disrupt maritime commerce”; and
(2) “whether the general character of the activity giving rise to the incident shows a
substantial relationship to traditional maritime activity.” Id. at 539.
In asbestos cases, courts applying the location test look to where the plaintiff was
exposed to asbestos. See, e.g., Conner v. Alfa Laval, Inc., 799 F. Supp. 2d 455, 466-67
(E.D. Pa. 2011); Bartel ex rel. Estate of Rich v. A-C Prod. Liab. Trust, 461 F. Supp. 2d
600, 604-05 (N.D. Ohio 2006). Here, all of Chesher’s work with Crane valves and
Cochrane de-aerating feed tanks occurred when he was serving as a machinist mate and
commissioned officer aboard ships in navigable water. Therefore, the location test is
With respect to the first prong of the connection test—whether the incident
involved was of a sort with the potential to disrupt maritime commerce—the court must
look to the “potential effects” of the incident on maritime commerce and ask “whether
the incident could be seen within a class of incidents that posed more than a fanciful risk
to commercial shipping.” Grubart, 513 U.S. at 539. Asbestos MDL Judge Eduardo C.
Robreno of the Eastern District of Pennsylvania has held that “claims involving plaintiffs
who were sea-based Navy workers” as well as the claims of “shipyard workers” who
were “primarily sea-based during the asbestos exposure” meet this test. Conner, 799 F.
Supp. 2d at 466–68. Here, it is undisputed that any asbestos exposures related to Crane’s
valves or Cochrane’s deaerating feed tanks were primarily sea-based. Thus, the first
prong of the connection test is met.
Then, the court must determine whether the tortfeasor’s activity has a substantial
relationship to traditional maritime activity. Grubart, 513 U.S. at 539–40. Judge
Robreno has found a substantial relationship to maritime activity where “the allegedly
defective product was produced for use on a vessel.” Id. at 466. Here, the valves and
deaerating feed tanks at issue were all produced for Navy vessels, thus satisfying the
second prong of the connection test. Having established that both the “location” and
“connection” tests are satisfied, the court has admiralty jurisdiction over the claims
against Crane. Because the Court has admiralty jurisdiction over these claims, it must
apply maritime law. See E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S.
858, 864 (1986) (“With admiralty jurisdiction comes the application of substantive
admiralty law.”). “Drawn from state and federal sources, the general maritime law is an
amalgam of traditional common-law rules, modifications of those rules, and newly
created rules.” Id. at 864–65.
“The role of state law in maritime cases is significant and complex.” Wells v.
Liddy, 186 F.3d 505, 524 (4th Cir. 1999). A “fundamental feature of admiralty law” is
that “federal admiralty courts sometimes do apply state law.” Grubart, 513 U.S. at 546.
State law may be used to supplement federal maritime law as long as state law is
“compatible with substantive maritime policies” and is not “inconsonant with the
substance of federal maritime law.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199, 202 (1996); see also Askew v. Am. Waterways Operators, Inc., 411 U.S. 325, 341
(1973) (“Even though Congress has acted in the admiralty area, state regulation is
permissible, absent a clear conflict with the federal law.”); Princess Cruises, Inc. v. Gen.
Elec. Co., 143 F.3d 828, 834 (4th Cir. 1998) (“When no federal statute or
well-established rule of admiralty exists, admiralty law may look to the common law or
to state law, either statutory or decisional, to supply the rule of decision.”); Byrd v. Byrd,
657 F.2d 615, 617 (4th Cir. 1981) (“[A]dmiralty law, at times, looks to state law, either
statutory or decisional, to supply the rule of decision where there is no admiralty rule on
point.”). However, “state law may not be applied if it conflicts with, or seeks to
materially change, federal maritime law.” see e.g., State of Md. Dep’t of Natural Res. v.
Kellum, 51 F.3d 1220, 1226 (4th Cir. 1995).
Thus, the court applies substantive maritime law supplemented by state law to the
extent that it does not conflict with well-established maritime law.
B. Plaintiffs’ Motion for Reconsideration of the Court’s Exclusion of Dr.
The court provides a basic summary of its order from the bench denying
plaintiffs’ motion to reconsider the court’s earlier order excluding the expert testimony of
Dr. Bedrossian, as it relates to the court’s decision to grant Crane’s motion for summary
judgment. The court granted the motion to exclude Bedrossian’s specific causation
testimony because it found that under Federal Rule of Evidence 403, the probative value
of the testimony is substantially outweighed by a danger of unfair prejudice, confusing
the issues, and misleading the jury. ECF No. 312, at 15. Federal Rule of Evidence 403
empowers the court to “exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. Courts are afforded broad discretion in
deciding evidentiary matters, particularly under Rule 403, which “requires an ‘on-thespot balancing of probative value and prejudice, potentially to exclude as unduly
prejudicial some evidence that already has been found to be factually relevant.’”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384. (2008) (quoting 1 S.
Childress & M. Davis, Federal Standards of Review § 4.02, p. 4–1 (3d ed. 1999)).
In a products liability action under maritime law, the plaintiff must show “that (1)
he was exposed to the defendant’s product, and (2) the product was a substantial factor in
causing the injury he suffered.” Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492
(6th Cir. 2005) (emphasis added). Plaintiffs offered Dr. Bedrossian as an expert to give
specific causation testimony that Chesher’s exposure to Crane’s products was a
substantial factor in causing his mesothelioma. The court granted Crane’s motion to
exclude Dr. Bedrossian’s specific causation testimony, because it found that his opinions
amounted to the “every exposure” theory—a theory about the causal link between
exposure to asbestos and mesothelioma. ECF No. 312. This theory was rejected by
Lindstrom as an insufficient basis from which to demonstrate that a product was a
substantial factor in causing mesothelioma.
The court’s original order offered an extensive analysis in support of its
conclusion that Bedrossian’s opinions amounted to the “every exposure” theory that had
been rejected by Lindstrom. “The trouble with Bedrossian’s opinions is his application
of these principles to conclude that, because Haskins and Chesher’s exposures to the
defendants’ asbestos-containing products were—by definition—part of their respective
‘cumulative doses,’ such exposures significantly contributed to their development of
mesothelioma.” Id. at 12. “Bedrossian openly admits that he did not even need to know
Haskins or Chesher’s actual level of exposure to defendants’ products in order to render
his opinion.” Id. citing Tr. 79:16–22. “Instead it appears that Bedrossian assumes that,
because every ‘occupational’ exposure contains exponentially more fibers than any
background exposure, every ‘occupational’ exposure significantly contributes to the total
cumulative dose. Thus, in Bedrossian’s view, whenever the total cumulative dose results
in mesothelioma, every ‘occupational’ exposure should be considered causative, no
matter how small.” Id. at 313. “Bedrossian’s opinions on specific causation essentially
amount to the ‘every exposure’ theory that Lindstrom rejected—a position that has been
affirmed in subsequent decisions applying maritime law.” Id. at 14. The court found that
if the total cumulative exposure causes mesothelioma, then a single exposure or set of
exposures—for example, Chesher’s work with Crane’s products—should not be
considered a “substantial cause” of the disease. Id. at 17. Because Bedrossian’s opinions
are based on a method that has been rejected by the courts, the court found that they are
not relevant, and any probative value they may have is easily outweighed by their
tendency to confuse or mislead the jury. Id. at 15. Thus, the court denied plaintiffs’
motion to reconsider.
C. Crane’s Renewed Motion for Summary Judgment
Crane’s renewed motion for summary judgment argues that plaintiffs lack the
evidence necessary to make out a prima facie claim at trial without Bedrossian’s specific
causation testimony. ECF No. 313, at 1. The court agrees.
Products liability claims under maritime law require a plaintiff to show that: “(1)
he was exposed to the defendant’s product, and (2) the product was a substantial factor in
causing the injury he suffered.” Lindstrom, 424 F.3d at 492. Plaintiffs must “bring
forward some evidence of actual cause; the mere showing that the asbestos
manufacturer’s product was present somewhere at his place of work is insufficient.”
Stark v. Armstrong World Indus., Inc., 21 F. App’ x 371, 376 (6th Cir. 2001). Courts “do
not require that cause necessarily be established by expert testimony.” Id. In fact,
plaintiffs can prove that a product was a substantial factor in causing a plaintiff’s injury
by offering evidence of substantial exposure to a defendant’s product for a substantial
period of time. Lindstrom, 424 F.3d at 492. However, the substantial factor test requires
“a plaintiff relying on circumstantial evidence of exposure to prove causation to show a
high enough level of exposure that an inference that the asbestos was a substantial factor
in the injury is more than conjectural.” Stark, 21 F. App’x at 376.
A review of the case law reveals that Chesher has not sufficiently demonstrated
that his exposure to defendant’s asbestos-containing products can satisfy the substantial
factor test. Stark involved a maritime action alleging that the plaintiff was harmed by
exposure to asbestos. Id. at 372. Stark, the plaintiff, sailed as a merchant mariner for
over forty years, during which time he claimed to have worked with numerous pieces of
equipment that contained asbestos. Id. at 373. Stark alleged that during his work in the
engine and boiler rooms he frequently breathed in asbestos that was released into the air,
which caused him to develop mesothelioma. Id. The Sixth Circuit summarized the
“substantial factor” test by noting that “the plaintiff must [ ] bring forward some evidence
of actual cause” and that “the mere showing that the asbestos manufacturer’s products
was present somewhere at his place of work is insufficient.” Id. at 375 (internal
quotation marks omitted). Although admitting that it is not absolutely necessary that
cause be established by expert testimony, the court noted its “concern that defendants not
be subjected to open-ended liability based solely on a jury’s inexpert speculation.” Id.
(internal quotation marks omitted). Stark chose to rely on his own testimony to put forth
a circumstantial case, rather than using expert testimony. Id. at 380. With respect to
Stark’s claim to have been exposed to asbestos for two months, the court found that,
“without testimony that the type of exposure he suffered was particularly harmful, this
would seem to be insufficient for a rational jury to find this exposure was a ‘substantial
factor’ in Stark’s mesothelioma.” Id.
While the Sixth Circuit found that two months of exposure was insufficient was
be a substantial factor, the Michigan Supreme Court found that proof of a plaintiff’s
“repeated and heavy exposure” for six to nine months to pipe materials containing
asbestos, which generated large quantities of visible dust upon removal, could reasonably
lead a jury to conclude that this exposure was a substantial factor in causing the
plaintiff’s mesothelioma. Brisboy v. Fibreboard Corp., 418 N.W.2d 650, 654 (M.I.
1988). Notably in Brisboy, the plaintiff also presented expert testimony from a physician
that “the presence of the [asbestos] fibers [in the plaintiff’s lungs] and the resulting
asbestosis were the major factors causing [the plaintiff’s] lung cancer. Id.
Recently, the Ninth Circuit has refined the substantial factor test. McIndoe v.
Huntington Ingalls, Inc., 817 F.3d 1170 (9th Cir. 2016), involved a suit brought on behalf
of a deceased naval serviceman, James McIndoe (“McIndoe”), who spent several years
aboard various ships containing pipes laden with asbestos insulation. McIndoe, 817 F.3d
at 1172. McIndoe claimed to have been present when the insulation was removed,
causing asbestos fibers to float through the air he breathed. Id. He ultimately died from
complications related to mesothelioma. Id. In analyzing whether the asbestos was a
cause of McIndoe’s injuries, the Ninth Circuit first echoed the traditional rule that “absent
direct evidence of causation, a party may satisfy the substantial-factor test by
demonstrating that the injured person had substantial exposure to the relevant asbestos for
a substantial period of time.” McIndoe, 817 F.3d at 1176. The court found that the
evidence of McIndoe’s being “frequently present” during the removal of the insulation
failed to meet this test, because there was “no evidence regarding the amount of exposure
to dust from [the] originally installed asbestos, or critically, the duration of such exposure
during any of these incidents.” Id. The court concluded that without this evidence, the
plaintiffs “can only speculate to the actual extent of his exposure to asbestos.” Id.
The instant action resembles Stark in that neither plaintiff offered direct evidence
of specific causation through expert medical testimony. Unlike Stark, however, Chesher
seems to claim to have been exposed to defendant’s asbestos product for more than two
months, and as such, the Stark court’s decision that the plaintiff’s exposure was not
substantial enough does not necessarily foreclose plaintiffs’ claims. Chesher may argue
that he was exposed to asbestos in the same manner as the plaintiff in Brisboy. However,
in Brisboy, the plaintiff presented evidence of consistent exposure to clearly visible
asbestos particles for six to nine months and had an expert testify that the plaintiff’s
breathing in of asbestos particles was the specific cause of his mesothelioma. By
contrast, Chesher cannot rely on any such expert testimony, nor has he alleged six
straight months of continuously breathing in asbestos-laden air.
Although Chesher has alleged more exposure than the plaintiff in Stark, he has
not presented any evidence regarding the actual amount of asbestos dust he was exposed
to or the duration of his exposure. As McIndoe makes clear, if a plaintiff does not
present specific causation testimony, then he must provide evidence on the amount of
asbestos dust he was exposed to and approximately how long he actually breathed in this
asbestos-laden air in order for him to sufficiently allege that an exposure was substantial
enough to constitute a “substantial factor” in causing his injury. Chesher alleged that for
over twenty years in the Navy he conducted or oversaw maintenance work on equipment
which contained asbestos and that this work released asbestos into the air that he
breathed. ECF No. 226-1, Chesher Video Dep. at 21:21–22:17, 26:10–22; ECF No. 2262, Chesher First Dep. at 147:7–14; ECF No. 226-3, Chesher Second Dep. at 456; ECF
No. 226-9, Pantaleoni Dep. at 24:5–26:24, 27:20–28:25, 30:1–30:21, 57:7–25, 63:3–
64:22, 72:9–18. However, none of this deposition testimony alleges specifically how
much asbestos dust he was exposed to or approximately how long he was exposed to it.
Allegations of periodic exposure over the course of twenty-four years of work is not
sufficient “evidence of substantial exposure for a substantial period of time to provide a
basis for the inference that the product was a substantial factor in causing the injury.”
Lindstrom, 424 F.3d at 492.
Because Chesher has failed to put forth sufficiently specific evidence of
substantial exposure, the court finds that he has failed to establish that Crane’s product
was a substantial factor in causing the injury he suffered. Having failed the substantial
factor test, and having no expert testimony on specific causation, Chesher has not
established a prima facie case under maritime law for a products liability mesothelioma
action. Accordingly, the court grants defendant’s motion for summary judgment.
For the foregoing reasons, the court GRANTS Crane Co.’s renewed motion for
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 29, 2018
Charleston, South Carolina
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