Anderson et al v. Ford Motor Company et al

Filing 328

MEMORANDUM DECISION denying #262 Motion for Reconsideration ; denying #267 Motion for Reconsideration ; denying #276 Motion for Reconsideration ; denying #268 Motion for Partial Reconsideration and Clarification. The Court will refer the parties to a settlement conference by separate Order. Signed by Judge Ted Stewart on 07/15/2013. (asp)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

ARVA ANDERSON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANTS’
MOTIONS FOR
RECONSIDERATION AND
CLARIFICATION

vs.

FORD MOTOR COMPANY, et al.,

Case No. 2:06-CV-741 TS

Defendants.

This matter is before the Court on Defendant Sepco Corporation’s (“Sepco”) Motion for
Reconsideration, Defendant York International Corporation’s (“York”) Motion for Summary
Judgment, Defendant Goulds Pumps’ (“Goulds”) Motion for Summary Judgment, and Defendant
Crane Co.’s Renewed Motion for Partial Reconsideration and Clarification Regarding its Motion
for Summary Judgment. For the reasons discussed more fully below, the Court will deny
Defendants’ Motions.

1

I. BACKGROUND
This matter was initially filed in state court by Joseph Alexander Anderson, Jr., and was
removed to this Court on September 1, 2006. Plaintiff’s complaint alleged that Mr. Anderson
had been diagnosed with asbestos-caused Mesothelioma. Mr. Anderson died of Mesothelioma
on June 7, 2008, and his wife and the executor of his estate, Arva Anderson, was substituted as
Plaintiff. On October 20, 2006, the United States of America Judicial Panel on Multidistrict
Litigation (“MDL”) issued Conditional Transfer Order 269,1 which transferred Plaintiff’s case to
the United States District Court for the Eastern District of Pennsylvania (the “Pennsylvania
Court”).
While before the Pennsylvania Court, each of the Defendants filed a motion for summary
judgment. The Pennsylvania Court denied each of these motions in whole or in part in separate
opinions on April 27, 2011.2 Defendant Crane Co. filed a motion for reconsideration before the
Pennsylvania Court, and the Pennsylvania Court denied the motion on September 26, 2012.3
On that same day, the Pennsylvania Court issued a Suggestion of Remand, suggesting
that the case be remanded to this Court because all discovery had been completed and the case

1

See Docket No. 143.

2

Anderson v. Ford Motor Co., 2011 WL 5505456 (E.D. Pa. Apr. 29, 2011) (order denying
Sepco’s motion); Anderson v. Ford Motor Co., 2011 WL 5505437 (E.D. Pa. Apr. 29, 2011)
(order denying York’s motion); Anderson v. Ford Motor Co., 2011 WL 5505462 (E.D. Pa. Apr.
29, 2011) (order denying Crane Co.’s motion); Anderson v. Ford Motor Co., 2011 WL 5505458
(E.D. Pa. Apr. 29, 2011) (order denying Goulds’ motion).
3

Docket No. 268-13.
2

was ready for trial.4 On October 12, 2012, a Clerk’s Order of Conditional Remand was signed,
remanding the case back to this Court for trial and severing all claims for punitive or exemplary
damages.5
II. LEGAL STANDARD
“[E]very order short of a final decree is subject to reopening at the discretion of the
district judge.”6 Federal Rule of Civil Procedure 54(b) expressly allows for revision of an
interlocutory order before entry of final judgment. Rule 54(b) provides, in pertinent part that
any order or other decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and all the parties’ rights and
liabilities.
This inherent power to review is informed by the long-standing rule that an issue decided
should remain decided. However, “[c]ourts have generally permitted a modification of the law of
the case when substantially different, new evidence has been introduced, subsequent,
contradictory controlling authority exists, or the original order is clearly erroneous.”7 “Thus, a
motion for reconsideration is appropriate where the court has misapprehended the facts, a party’s

4

Docket No. 254.

5

Id.

6

Elephant Butte Irrigation Dist. v. U.S. Dep’t of Interior, 538 F.3d 1299, 1306 (10th Cir.
2008) (internal quotation marks and citation omitted).
7

Major v. Benton, 647 F.2d 110, 112 (10th Cir. 1981) (citing Furhman v. U.S. Steel
Corp., 479 F.2d 489, 494 (6th Cir. 1973), cert. denied, 414 U.S. 859 (1973)).
3

position, or the controlling law. . . . It is not appropriate to revisit issues already addressed or
advance arguments that could have been raised in prior briefing.”8
Although the Tenth Circuit has not decided whether the law of the case doctrine applies
when a court reviews a prior MDL order in the same case, it has generally applied the doctrine in
other circumstances where a case has been transferred.9 As other courts have recognized, “[i]n
reviewing transferee court decisions under the law of the case doctrine, transferor courts should
rarely reverse, because any widespread overturning of transferee court decisions would frustrate
the principle aims of the MDL process and lessen the system’s effectiveness.”10 “The law of the
case doctrine ‘requires attention to the special authority granted to the multidistrict transferee
judge’ and ensures that transferor courts respect the transferee court’s decisions.”11
III. DISCUSSION
Defendants do not justify their Motions by pointing to any new evidence or contradictory
controlling authority. Instead, they claim the Pennsylvania Court’s orders were clearly
erroneous. Although the Pennsylvania Court specializes in asbestos litigation and issued its
orders a year and a half before the case was transferred back to this Court, only Defendant Crane
Co. alleged clear error and filed a Motion for Reconsideration before the Pennsylvania Court
during that time. In this respect, it appears that, rather than becoming aware of a clear error at
8

Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).

9

Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991).

10

In re Ford Motor Co., 591 F.3d 406, 411 (5th Cir. 2009).

11

Id. (quoting In re Multi-Piece Rim Prods. Liab. Litig., 653 F.2d 671, 678 (D.C. Cir.

1981)).
4

this later date, Defendants are attempting to appeal the Pennsylvania Court’s Opinion in the
hopes that this Court will decide the issues differently. However, the Court is “limited to the
question of whether the transferor court’s rulings were ‘clearly erroneous and would work a
manifest injustice.’”12 “Certainly, this standard is far more deferential than direct appellate
review.”13 This Court “should not overrule the earlier judge’s order or judgment merely because
the later judge might have decided matters differently.”14 Each Defendant’s Motion will be
considered in turn below.
A.

DEFENDANT SEPCO’S MOTION
Defendant Sepco claims that the Pennsylvania Court’s was clearly erroneous in two

respects. First, it found that, even though Plaintiff did not timely amend the deposition
transcript, which read “Setco,” Mr. Anderson’s deposition testimony “should be considered as
identifying Sepco,”15 Second, Sepco contends that the Pennsylvania Court should have granted
summary judgment on the grounds that Plaintiff did not testify that Sepco packing contained
asbestos during his deposition, and failed to identify a Sepco product after his deposition when
asked to identify “each asbestos-containing product from which asbestos exposure is claimed.”16

12

Chrysler Credit Corp., 928 F.2d at 1518 (quoting Arizona v. California, 460 U.S. 605,
619 n.8 (1983)).
13

Id.

14

In re Ford Motor Co., 591 F.3d at 411.

15

Anderson v. Ford Motor Co., 2011 WL 5505456, at *1 n.1.

16

Docket No. 262 Ex. 4.
5

Each of Defendant’s arguments was briefed in full in its motion for summary judgment
before the Pennsylvania Court. In its order, the Pennsylvania Court addressed Defendant’s
arguments as follows:
SEPCO admitted that it manufactured, sold, and distributed asbestos-containing
products as part of its fluid sealing lines, including gaskets and packing.
Defendant asserts Mr. Anderson never identified SEPCO in his deposition.
Defendant alleges that pursuant to Federal Rule of Civil Procedure 32(d)(4), since
the 2007 deposition transcript was reviewed by Plaintiff’s counsel to prepare
Plaintiff’s April 8, 2008 Notice of Exposure Evidence Against Defendants, it is
too late to now contest the deposition testimony. Plaintiff contends that the name
SEPCO was improperly transcribed at “Setco” in the deposition.17
After quoting Fed. R. Civ. P. 32(d)(4), the Pennsylvania Court found that
in the interests of justice, Mr. Anderson’s testimony should be considered as
identifying SEPCO. Setco was never a defendant in this case and Setco was not
present at the deposition. SEPCO has not shown that it suffered prejudice
because the deposition transcript read Setco. SEPCO was present at the
deposition and has not shown that it was misled into believing that Mr. Anderson
did not identify SEPCO in his testimony. Mr. Anderson’s deposition was
videotaped, so the issue of whether Mr. Anderson identified SEPCO in his
deposition can be submitted to a jury.18
Finally, the Court concluded that
[i]n his deposition, Mr. Anderson testified that he worked with SEPCO packing
material and that he inhaled dust when he worked with this packing material. . . .
The quality of the evidence presented in this case is not strong since the only
product identification evidence is from Mr. Anderson’s testimony where he
identified SEPCO only in response to leading questions. Also, Mr. Anderson
could not provide evidence as to any specific site where he worked with SEPCO
packing material. Mr. Anderson testified that he was exposed to dust when he
worked with SEPCO packing material and that he inhaled this dust. Viewing the
evidence in the light most favorable to Plaintiff, since Plaintiff has presented

17

Anderson v. Ford Motor Co., 2011 WL 5505456, at *1 n.1.

18

Id.
6

evidence that Mr. Anderson was exposed to dust from SEPCO packing material,
Plaintiff has raised a genuine issue of material fact as to whether exposure to
SEPCO packing material was a substantial factor in causing Mr. Anderson’s
development of mesothelioma. Accordingly, Defendant’s Motion for Summary
Judgment is denied.19
1. Identification of Sepco
Although Plaintiff did not amend his deposition within the time requirements provided
for in the Federal Rules of Civil Procedure, and although the Federal Rules do not provide for an
exception in the interests of justice, the Pennsylvania Court nonetheless found that it was in the
interests of justice to deem Mr. Anderson’s testimony to read “Sepco” instead of “Setco.” In
light of all of the circumstances in this case, including the evidence that the attorneys and parties
at the deposition understood “Sepco” at the deposition, the lack of any evidence that Defendant
did not understand that it was identified or a party to this case, and the fact that the deposition
was taken by video so that the jury will be able to judge the words spoken for themselves, this
Court does not find that the Pennsylvania Court was clearly erroneous in considering Mr.
Anderson’s testimony as identifying Sepco.
2. Identification of Sepco Products
The Pennsylvania Court found that Sepco had admitted that it produced and sold asbestos
containing packing and gaskets during the relevant time period. Additionally, the Pennsylvania
Court found that Mr. Anderson testified to breathing in the dust from Sepco packing materials.
In light of this evidence, the Court does not find that the Pennsylvania Court was clearly

19

Id.
7

erroneous in concluding that Plaintiff raised a material issue of fact as to whether Sepco packing
material was a substantial factor in causing Mr. Anderson’s mesothelioma.
For the reasons discussed above, the Court will deny Defendant Sepco’s Motion.
B.

DEFENDANT YORK’S MOTION
Defendant York argues that the Pennsylvania Court was clearly erroneous in denying

York’s motion for summary judgment because Plaintiff failed to provide sufficient evidence that
Mr. Anderson was exposed to an asbestos-containing product manufactured by York. York
argues that Mr. Anderson failed to identify any York products during his deposition. York cites
to Mr. Anderson’s deposition testimony, in which he stated, “I think ‘York’ was air compressors.
I think that’s what they made.”20 Mr. Anderson then further described the compressors as
“refrigerated air compressors. They were full of oil and they don’t work like a regular air
compressor. But I think that’s what they made.”21
However, York has supplied the Court with the affidavit of a former York employee,
Frederick Ziffer, who declares
York never made or supplied any air compressors of any type. Instead, York
manufactured and supplied refrigeration and air conditioning equipment, which
included compressors as a component of the units. Those compressors
compressed refrigerants, such as ammonia or Freon, for cooling purposes. The
refrigeration and air conditioning compressors do not compress air, and could not
be used for the same purpose as air compressors.22

20

Docket No. 262-1, at 119.

21

Id.

22

Docket No. 267 Ex. 2, at 2.
8

Because York did not manufacture air compressors, York argues that Plaintiff has not raised a
genuine issue of material fact as to whether Mr. Anderson was exposed to York products.
Plaintiff argues that Defendant has admitted to selling compressors, air conditioning, and
refrigeration equipment, and that some of these products contained asbestos. Defendant argues
that the question of whether Mr. Anderson identified a York compressor is a question of fact for
a jury to decide.
These arguments were fully briefed before the Pennsylvania Court, which found that, “in
its answers to interrogatories, York admitted that its ‘Applied Systems Division and its
predecessors sold compressors, air conditioning and refrigeration equipment.’ York also admitted
that some of its products contained asbestos.”23 The Pennsylvania Court then examined
Defendant’s arguments as follows:
Defendant has presented evidence, through the deposition of Mr. Ziffer, that York
International Corp. did not manufacture the air compressors which Mr. Anderson
testified about in his deposition. In response, Plaintiff has pointed to Defendant’s
answers to interrogatories where Defendant admitted that York’s Applied Systems
Division did manufacture compressors. In applying the substantial factor test, this
Court considers the factors enumerated by Judge Iwasaki in his March 12, 2006
memorandum decision. As to the nature of the disease, Mr. Anderson passed
away due to his development of mesothelioma. The quality of the evidence
presented in this case is not strong . . . . As to the other factors, Mr. Anderson
testified that he tore gaskets off of York compressors, that dust was released into
the air in this process, and that he breathed in that dust. Accordingly, viewing the
evidence in the light most favorable to Plaintiff, Plaintiff has raised a genuine
issue of material fact as to whether exposure to York International Corp.

23

Anderson v. Ford Motor Co., 2011 WL 5505437, at *1 n.1 (quoting Docket No. 284-2,

at 6).
9

asbestos-containing products was a substantial factor in causing Mr. Anderson’s
development of mesothelioma.24
Finally, the Pennsylvania Court found that “[t]he credibility of Mr. Anderson’s testimony
identifying York International Corp. should be submitted to a jury.”25
As the Pennsylvania Court acknowledged, the evidence presented in this case is not
strong. However, given Mr. Anderson’s identification of York air compressors, the evidence that
York produced compressors and refrigeration equipment, and the evidence that this equipment
contained asbestos, this Court does not find that the Pennsylvania Court was clearly erroneous in
holding that it was a material issue of fact whether or not Plaintiff identified York equipment that
was a substantial factor in causing his mesothelioma. Therefore, the Court will deny Defendant
York’s Motion.
C.

DEFENDANT GOULDS’ MOTION
Defendant Goulds argues that the Pennsylvania Court was clearly erroneous in relying on

inadmissable evidence and in finding that Plaintiff has presented sufficient evidence that Mr.
Anderson worked with Goulds’ pumps for Plaintiff’s claims to survive Defendant’s motion for
summary judgment. Defendant’s argument stems from the following deposition exchange
between Mr. Anderson and his counsel:
Q. Let’s go back to pumps. What names do you recall, other than Crane, what
brand names or manufacturers’ names do you recall pumps you worked on during
your work?
A. Dirco.

24

Id.

25

Id.
10

MR. KEAHEY: What did you say? “Gouls”?
A. “Goulds.”
Q. “Goulds,” all right. And what was the other name you recall?26
Mr. Anderson then proceeded to explain the process of rebuilding pumps, including incidents of
breathing in dust during the process. Mr. Anderson’s responses were often in response to
questions from his counsel regarding what he would do with a “Goulds’ pump.”27 However, on
cross examination, Mr. Anderson testified that his earlier testimony concerning his experiences
rebuilding pumps was regarding pumps in general, not any specific type of pump.28 Furthermore,
Mr. Anderson was unable to identify any specific project when he worked on a Goulds’ pump.29
Defendant argues that Mr. Anderson’s identification of Goulds is inadmissable as it came
as the result of a leading question from Plaintiff’s counsel. Defendant further argues that since
Mr. Anderson was unable to testify regarding any specific instances of working on a Goulds’
pump, Plaintiff has not proffered sufficient evidence to survive a motion for summary judgment.
Plaintiff responds by arguing that although Mr. Anderson’s description of the rebuilding
process was about pumps in general, he did testify that he specifically worked on Goulds’ pumps.
Plaintiff points to the following testimony from Mr. Anderson:
Q. How often did you work on a Goulds pump in this way?
A. Well, it – this plant had probably twenty pumps in it and I would imagine we
would rebuild one every week.

26

Docket No. 262 Ex. 2, at 82.

27

Id. at 82-85.

28

Docket No. 262 Ex. 3, at 388-89.

29

Id. at 389-90.
11

Q. I’m not asking you just about that plant. But throughout your work career, how
many times do you think you worked on a Goulds pump in the way you just
described?
A. Probably a dozen times.
Q. And each time you worked on a Goulds pump like that, did you see dust
created?
A. Yes.
Q. Did you breathe that dust?
A. Yes.30
These arguments were fully briefed before the Pennsylvania Court. In its order, the Court
focused on Defendant’s argument that Mr. Anderson’s deposition testimony would be
inadmissable at trial, finding that
[i]n order to determine whether Defendant’s objection should be sustained,
this Court must first determine whether plaintiff’s counsel in fact asked leading
questions. A leading question is one that suggests to the witness the answer
desired by the examiner. The court must consider not just the form of the
question, but also the content and context of it. Here, Plaintiff’s counsel’s
identification of Defendant’s product may have suggested to Mr. Anderson that he
should testify that he worked with the product. On the other hand, the question
was not leading in the traditional sense. After it was clear that Mr. Anderson
could not recall the names of any other specific manufacturers, Plaintiff’s counsel
refreshed his memory by identifying specific manufacturers. Mr. Anderson was
unable to identify specific products among the large number of products he
worked with and Plaintiff’s counsel merely provided names to prompt Mr.
Anderson’s memory of which products he worked with.31
Even if the questions were in fact leading, the rule against the use of
leading questions on direct examination is liberally construed and it is in the
discretion of the trial court to allow in such evidence if the interests of justice so
require. Mr. Anderson is now deceased, so the only evidence of exposure comes
from the leading question Plaintiff’s counsel asked Mr. Anderson. While Plaintiff
should not be permitted to survive summary judgment on the basis of this leading

30

Docket No. 262 Ex. 2, at 84-85.

31

Anderson v. Ford Motor Co., 2011 WL 5505458, at *1 n.1 (internal quotation marks
and citations omitted).
12

questioning, the Court must take into account that Mr. Anderson was sickly at the
time of his deposition. Also, after Plaintiff’s counsel mentioned Goulds Pumps,
Mr. Anderson was able to testify about his exposure to Goulds pumps. Despite
the fact that Mr. Anderson responded to a leading question to identify Goulds
Pumps, in the interests of justice, this Court will consider Mr. Anderson’s product
identification testimony.32
After deciding to consider the testimony, the Pennsylvania Court found as follows:
The quality of the evidence presented in this case is not strong since Mr.
Anderson’s identification of Goulds Pumps came after a leading question,
however, as examined above, in the interests of justice, the Court will consider
this evidence. Mr. Anderson could not provide testimony as to the specific
locations where he worked with Goulds pumps; however, he testified that he
worked with more than a dozen Goulds pumps and that every time he worked
with a Goulds pumps, dust was released into the air. He testified that he breathed
in this dust. Viewing the evidence in the light most favorable to Plaintiff, Plaintiff
has raised a genuine issue of material fact as to whether exposure to Goulds
pumps was a substantial factor in causing Mr. Anderson’s development of
mesothelioma. Accordingly, Defendant’s Motion for Summary Judgment is
denied.33
Having fully considered the above arguments and the Pennsylvania Court’s order, and
without deciding whether this Court will allow Mr. Anderson’s testimony into evidence at trial,
the Court does not find that the Pennsylvania Court was clearly erroneous either in considering
Mr. Anderson’s testimony or in finding that Plaintiff has raised a genuine issue of material fact as
to whether exposure to Defendant’s pumps was a substantial factor in causing Mr. Anderson’s
development of mesothelioma. For these reasons, Defendant Goulds’ Motion will be denied.

32

Id. (internal citations omitted).

33

Id.
13

D.

DEFENDANT CRANE CO.’S MOTION
Unlike the other Defendants, Crane Co. filed a motion for reconsideration with the

Pennsylvania Court shortly after its motion for summary judgment was denied. Making the same
arguments in that motion that it now brings before this Court, Crane Co. argued that the
Pennsylvania Court’s order was mistakenly based on the premise that Crane Co. valves and
pumps contained asbestos. Crane Co. argued that the Pennsylvania Court should find that
summary judgment was appropriate because Crane Co. could not be held responsible for
products “manufactured or supplied by other companies and used with Crane Co. valves postsale,”34 also known as the “bare metal” defense.
In its April 2011 order, the Court had found that it “need not consider the ‘bare metal’
defense since Plaintiff has presented evidence that Crane Co. manufactured some
asbestos-containing pumps and valves. Moreover, Defendant has not cited to any Utah case
recognizing the ‘bare metal’ defense in the asbestos context.”35 On September 26, 2012, the
Pennsylvania Court denied Crane Co.’s motion for reconsideration without providing any
additional reasoning.36
Crane Co. now brings its Motion for Partial Reconsideration and Clarification, seeking
“an order determining that it is not legally responsible or liable for asbestos-containing products
it did not manufacture, supply, or otherwise introduce into the stream of commerce, but which

34

Docket No. 268, at 3.

35

Anderson v. Ford Motor Co., 2011 WL 5505462, at *1 n.1.

36

Docket No. 268-13.
14

were placed upon its metal valves and pumps by others post-sale.”37 Although Crane Co. states
that it “is not asking this Court to reconsider the MDL Court’s April 27, 2011 Order,” and is only
asking the Court to clarify a legal issue, it seeks the same relief and effectively requests this
Court to grant it summary judgment.38 To the extent that Crane Co. is asking the Court to
reconsider the Pennsylvania Court’s finding that there was a material issue of fact as to whether
Crane Co. manufactured asbestos-containing pumps or valves, it is a second Motion to
Reconsider. The Court will not engage in an attempt to define an area of Utah law that is not
relevant to Crane Co.’s motion for summary judgment, and the question of Crane Co.’s liability
for products it did not manufacture, supply, or otherwise introduce into the stream of commerce
is only relevant if the Court does overturn the Pennsylvania Court’s determination that there is a
material issue of fact around the manufacture, supply, or introduction into the stream of
commerce of asbestos-containing products. As the Pennsylvania Court has already fully
considered Defendant’s Motion to Reconsider, this Court need not do so again.
Even were the Court to again reconsider Defendant’s Motion, it would not grant it. In its
briefing, Plaintiff provided the Court with evidence that Crane Co. supplied asbestos-containing
products during the relevant time period. Plaintiff has provided the Court with the following
interrogatory response from Crane Co.:
By way of further response, to the best of Crane Co.’s present knowledge, Crane
Co. placed on the market industrial valves that may have contained
asbestos-containing materials within their metal structure as early as 1858.

37

Docket No. 268, at 1.

38

Id. at 5.
15

Asbestos was removed as a component from Crane Co.’s industrial valves in the
mid-1980’s with the exception of one specific type of valve designed for
petroleum industry applications, which incorporated an asbestos component until
the late 1980’s or early 1990’s.39
Considering this evidence along with the deposition testimony of Mr. Anderson in the
light most favorable to Plaintiff, the Court does not find that the Pennsylvania Court’s findings
were clearly erroneous. For these reasons, Defendant Crane Co.’s Motion will be Denied.
IV. CONCLUSION
It is therefore ORDERED that Defendant Sepco Corporation’s Motion for
Reconsideration (Docket No. 262) is DENIED. It is further
ORDERED that Defendant York International Corporation’s Motion for Reconsideration
(Docket No. 267) is DENIED. It is further
ORDERED that Defendant Goulds Pumps’ Motion for Reconsideration (Docket No. 276)
is DENIED. It is further
ORDERED that Defendant Crane Co.’s Renewed Motion for Partial Reconsideration and
Clarification Regarding its Motion for Summary Judgment (Docket No. 268) is DENIED. The
Court will refer the parties to a settlement conference by separate Order.
DATED July 15, 2013.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

39

Docket No. 268-3 Ex. 35, at 10.
16