Jack et al v. Borg-Warner Morse Tec LLC et al

Filing 706

ORDER granting in part and denying in part Defendant Ford's motion for partial summary judgment (Dkt. #449 ), granting Defendant Union Pacific's motion for summary judgment (Dkt. #476 ), and granting in part and denying in part Defendant Borg-Warner's motion for summary judgment (Dkt. #518 ). The court further GRANTS in part and DENIES in part Plaintiffs' motions for partial summary judgment on the affirmative defenses asserted by DCo (Dkt. #503 ), Ford (Dkt. #505 ), and Borg-Warner (Dkt. #507 ). Finally, the court DENIES as moot Plaintiffs' motion for partial summary judgment on the affirmative defenses asserted by Union Pacific (Dkt. #509 ). Signed by Judge James L. Robart. (PM)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

LESLIE JACK, et al.,

CASE NO. C17-0537JLR
ORDER ON MOTIONS FOR
SUMMARY JUDGMENT

Plaintiffs,

11
v.
12
13

BORG-WARNER MORSE TEC,
LLC, et al.,

14

Defendants.

15
I.

INTRODUCTION

16
Before the court are seven motions for summary judgment. Defendants filed the
17
following motions: (1) Defendant Ford Motor Company’s (“Ford”) motion for partial
18
summary judgment (Ford MSJ (Dkt. # 449)); (2) Defendant Union Pacific Railroad
19
Company’s (“Union Pacific”) motion for summary judgment (Union Pacific MSJ (Dkt.
20
# 476)); and (3) Defendant Borg-Warner Morse Tec, LLC’s (“Borg-Warner”) motion for
21
summary judgment (Borg-Warner MSJ (Dkt. # 518)). Plaintiffs Leslie Jack and David
22

ORDER - 1

1

Jack (collectively, “Plaintiffs”) oppose Defendants’ summary judgment motions (Pl.

2

Consolidated Resp. (Dkt. # 604); Pl. Resp. Ford (Dkt. # 608); Pl. Resp. Union Pacific

3

(Dkt. # 611); Pl. Resp. Borg-Warner (Dkt. # 613).)

4

Plaintiffs seek partial summary judgment on certain affirmative defenses asserted

5

by: (1) Defendant DCo, LLC (f/k/a Dana Companies, LLC) (“DCo”) (Pl. MSJ DCo (Dkt.

6

# 503)); (2) Ford (Pl. MSJ Ford (Dkt. # 505)); (3) Borg-Warner (Pl. MSJ Borg-Warner

7

(Dkt. # 507)); and (4) Union Pacific (Pl. MSJ Union Pacific (Dkt. # 509)). Defendants

8

oppose Plaintiffs’ summary judgment motions (Def. Jt. Resp. (Dkt. # 617); Ford. Resp.

9

(Dkt. # 596); DCo Resp. (Dkt. # 597); Union Pacific Resp. (Dkt. # 607)).

10
11

The court has considered the motions, the parties’ responses, the parties’ replies,
the relevant portions of the record, and the applicable law. Being fully advised,1 the court

12
13
14
15
16
17
18
19
20
21
22

1

Ford and Borg-Warner request oral argument on their respective motions. (See Ford
MSJ at 1; Borg-Warner MSJ at 1.) Plaintiffs request oral argument in opposition to Ford’s
motion (see Pl. Resp. Ford at 1); Union Pacific’s motion (see Pl. Resp. Union Pacific at 1); and
Borg-Warner’s motion (Pl. Resp. Borg-Warner at 1). Additionally, Plaintiffs request oral
argument on their motions for partial summary judgment as to DCo (see Pl. MSJ DCo at 1);
Borg-Warner (see Pl. MSJ Borg-Warner at 1); Ford (see Pl. MSJ Ford at 1); and Union Pacific
(see Pl. MSJ Union Pacific at 1). All Defendants request oral argument in opposition to
Plaintiffs’ motions. (See Def. Jt. Resp. at 1; Ford Resp. at 1; DCo Resp. at 1; Union Pacific
Resp. at 1.) A district court’s denial of a request for oral argument on summary judgment does
not constitute reversible error in the absence of prejudice. Partridge v. Reich, 141 F.3d 920, 926
(9th Cir. 1998) (citing Fernhoff v. Tahoe Reg’l Planning Agency, 803 F.2d 979, 983 (9th Cir.
1986)). There is no prejudice in refusing to grant oral argument where the parties are
represented by counsel and have had ample opportunity to develop their legal and factual
arguments through written submissions to the court. Id. (“When a party has [had] an adequate
opportunity to provide the trial court with evidence and a memorandum of law, there is no
prejudice [in refusing to grant oral argument] . . . .”) (quoting Lake at Las Vegas Investors Grp.,
Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991)) (alterations in Partridge).
The issues in Defendants’ and Plaintiffs’ motions have been thoroughly briefed by the parties,
and the court has determined that oral argument would not be of assistance in deciding any of the
motions. See Local Rules W.D. Wash. LCR 7(b)(4). Accordingly, the court denies the parties’
requests for oral argument.

ORDER - 2

1

GRANTS in part and DENIES in part Ford’s motion for partial summary judgment (Dkt.

2

# 449), GRANTS Union Pacific’s motion for summary judgment (Dkt. # 476), and

3

GRANTS in part and DENIES in part Borg-Warner’s motion for summary judgment

4

(Dkt. # 518). The court further GRANTS in part and DENIES in part Plaintiffs’ motions

5

for partial summary judgment on the affirmative defenses asserted by DCo (Dkt. # 503),

6

Ford (Dkt. # 505), and Borg-Warner (Dkt. # 507), and DENIES as moot Plaintiffs’

7

motion for partial summary judgment on Union Pacific’s affirmative defenses (Dkt.

8

# 509).

9

II.

BACKGROUND

10

This case arises from decedent Patrick Jack’s alleged exposure to asbestos-

11

containing products manufactured or supplied by Defendants. (SAC (Dkt. # 253) ¶ 42E.)

12

Plaintiffs claim that as a result of this exposure, Mr. Jack developed mesothelioma, the

13

disease from which he died in October 2017. (Id. ¶ 42F; Adams Decl. (Dkt. # 605) ¶ 2,

14

Ex. A (death certificate stating cause of death as “pleural mesothelioma”).) Plaintiffs

15

allege that Mr. Jack was exposed to asbestos as a child and a teenager through his father’s

16

work at Union Pacific; as a machinist in the Naval Reserve and the Navy from 1955 to

17

1962; as a machinist and piping inspector at the Puget Sound Naval Shipyard (“PSNS”)

18

from 1967 to 1973; as a professional automotive mechanic from 1962 to 1967; and when

19

he performed automotive work on personal vehicles from 1955 to 2001. (SAC ¶ 42;

20

Adams Decl. (Dkt. # 562) ¶ 2, Ex. 2 (“Brodkin Rep.”) § 2 at 1-28.)2 Plaintiffs bring

21
Portions of Dr. Brodkin’s report are attached to various parties’ briefing. (See, e.g.,
Fucile Decl. Ford MSJ (Dkt. # 450) ¶ 2, Ex. 9; Ross Decl. Borg-Warner MSJ (Dkt. # 519) ¶ 6,
2

22

ORDER - 3

1

various product liability claims, including negligence and strict liability claims, and seek

2

compensatory and punitive damages. (SAC ¶¶ 43-55.)

3

A.

4

Evidence Concerning Union Pacific
Plaintiffs allege that as a child and a teenager, Mr. Jack was exposed to asbestos

5

utilized by Union Pacific, his father’s employer. (See SAC ¶ 42B; Pl. MSJ Union Pacific

6

at 3.) According to Plaintiffs, Mr. Jack was (1) exposed to asbestos dust carried home on

7

his father’s clothes and (2) suffered bystander exposure when he accompanied his father

8

to work on several occasions. (Pl. MSJ Union Pacific at 3.)

9

Mr. Jack’s father was a longtime Union Pacific employee. From the 1930s to the

10

mid-1940s, Mr. Jack’s father worked in Union Pacific’s “maintenance department.”

11

(Adams Decl. (Dkt. # 612) ¶ 2, Ex. C (“Jack Perp. Dep.”) at 18:12:15.)3 At some point in

12

the mid-1940s, Mr. Jack’s father became a water service foreman for Union Pacific. (Id.

13

at 18:12-16.) In Mr. Jack’s recollection, his father worked at two Union Pacific locations

14

in Seattle: a South Seattle railroad yard, and the lower level of a Union Pacific passenger

15

depot. (Brodkin Rep. § 2 at 24; Jack Perp. Dep. at 19:4-25.)

16
17
18
19
20
21
22

Ex. E; Adams Decl. Resp. Union Pacific (Dkt. # 612) ¶ 2, Ex. E.) The court refers generally to
“Brodkin Rep.” when citing the report. Dr. Brodkin divides his report into sections and then
numbers the pages within those sections. (See Brodkin Rep. at 2.) The court cites the section
and relevant page numbers.
Portions of Mr. Jack’s perpetuation deposition testimony are attached to various parties’
briefing. (See, e.g., Fucile Decl. Ford MSJ (Dkt. # 450) ¶ 2, Ex. 2-3); Moore Decl. Union Pacific
MSJ (Dkt. # 477) ¶ 5, Ex. D; Adams Decl. Pl. MSJ DCo. (Dkt. # 504) ¶ 2, Ex. A, H; Adams
Decl. Pl. MSJ Borg-Warner (Dkt. # 508) ¶ 2, Ex. H-I; Adams Decl. Pl. MSJ Union Pacific (Dkt.
# 510) ¶ 2, Ex. A); Ross Decl. Borg-Warner MSJ (Dkt. # 519) ¶¶ 3, 8, Ex. B, G; Adams Decl.
Resp. Ford (Dkt. # 610) ¶ 2, Ex. A-B; Adams Decl. Resp. Borg-Warner (Dkt. # 614) ¶ 2, Ex. A,
C; Kero Decl. Def. Jt. Resp. (Dkt. # 618) ¶¶ 7-9, 11, Ex. 6-8, 10.) The court refers generally to
“Jack Perp. Dep.” when citing that testimony.
3

ORDER - 4

1

Mr. Jack’s mother passed away before Mr. Jack’s sixth birthday. (Jack Perp. Dep.

2

at 17:1-2.) After her death, Mr. Jack lived with his grandparents in Portland, Oregon.

3

(Id. at 17:10-11, 18:6-9.) Mr. Jack testified that in the time that followed, his father

4

travelled to Portland to visit Mr. Jack and his grandparents “once or twice a month,

5

maybe.” (Moore Decl. (Dkt. # 477) ¶ 5, Ex. E (“Jack Disc. Dep.”) at 23:10-18.) 4 Mr.

6

Jack recalled that, during those visits, his grandmother would wash his father’s work

7

clothes in the basement of his grandparents’ home, an area where Mr. Jack frequently

8

played. (Jack Perp Dep. at 33:3-13, 35:11-12.) He remembered that his grandmother

9

would shake out his father’s work clothes before washing them, generating dust. (Id. at

10

34:19-25.) Mr. Jack also testified that he would greet his father with a “big hug or

11

something” when he came home from work, and that his father’s work clothes were

12

always “dirty.” (Id. at 32:5-9, 32:12-16.)

13

In 1946, Mr. Jack moved to Seattle to live with his father, who continued to work

14

for Union Pacific. (Jack Disc. Dep. at 22:11-12.) From approximately 1949 to 1952, Mr.

15

Jack accompanied his father to work “a couple of times a year” for “maybe a couple

16

hours or so” each time. (Jack Perp. Dep. at 18:17-19:1, 182:2-7.) Mr. Jack remembered

17

visiting both the railroad yard and the depot. (Id. at 19:4-25; see also Brodkin Rep. § 2 at

18
Portions of Mr. Jack’s discovery deposition testimony are attached to various parties’
briefing. (See, e.g., Fucile Decl. Ford MSJ (Dkt. # 450) ¶ 2, Ex. 4-7; Ross Decl. Borg-Warner
MSJ (Dkt. # 519) ¶¶ 4-5, Ex. C-D; Adams Decl. Pl. MSJ DCo (Dkt. # 504) ¶ 2, Ex. E; Adams
Decl. Pl. MSJ Ford (Dkt. # 506) ¶ 2, Ex. A, G; Adams Decl. Pl. MSJ Borg-Warner (Dkt. # 508)
¶ 2, Ex. D, J; Adams Decl. Pl. MSJ Union Pacific (Dkt. # 510) ¶ 2, Ex. C; Adams Decl. Resp.
Ford (Dkt. # 610) ¶ 2, Ex. D-F; Adams Decl. Resp. Union Pacific (Dkt. # 612) ¶ 2, Ex. G;
Adams Decl. Resp. Borg-Warner (Dkt. # 614) ¶ 2, Ex. D, F; Kero Decl. DCo. Resp. (Dkt. # 618)
¶¶ 6, 10, 12-13, Ex. 5, 9, 11-12; Maderra Decl. Borg-Warner Rep. (Dkt. # 633-1) ¶ 2, Ex. A.)
The court refers generally to “Jack Disc. Dep.” when citing that testimony.
4

19
20
21
22

ORDER - 5

1

24.) He testified that most of these visits occurred during the summertime and allowed

2

his father to get him out of the house. (Jack Disc. Dep. at 179:21-180:1, 182:8-15.)

3

During those visits, Mr. Jack watched his father and other workers engage in

4

various activities. Mr. Jack testified that on “a couple or three” occasions, he watched

5

workers cut and fit pipes using hand-held hacksaws and power saws. (Jack Perp. Dep. at

6

20:18-21:22, 28:4-8.) Mr. Jack recalled that in hindsight, the pipes “looked like cement

7

piping to [him], but at that time [he] didn’t know.” (Id. at 21:3-6.) Mr. Jack further

8

stated that he observed the pipe work from distances that ranged between 10 and 40 feet,

9

but admitted that he “was all over the place.” (Id. at 21:23-22:5.) Additionally, Mr. Jack

10

testified that he witnessed workers handle “white[,] chalky material.” (Id. at 24:4.) Mr.

11

Jack believed the material “appeared to be insulation, but at that time [he] didn’t

12

recognize it as such.” (Id. at 23:21-24.) He estimated that he stood at least 10 feet away

13

as workers wrapped pipes in insulation, and between 10 and 50 feet away as workers

14

removed similar material from old pipes. (Id. at 25:3-7, 26:21-24). Mr. Jack also

15

remembered watching as workers assembled and disassembled valves. (Id. at

16

28:21-29:4.) Mr. Jack testified that these activities generated dust, which he breathed.

17

(Id. at 22:6-21, 31:4-12.)

18

Mr. Jack estimates that he last accompanied his father to work in 1952. (Id. at

19

18:22.) Mr. Jack moved out of his father’s house in 1955, after graduating from high

20

school. (Jack Disc. Dep. at 23:23-24:1.)

21
22

Plaintiffs furnish no specific, direct evidence that Mr. Jack’s father worked with or
around asbestos-containing materials at Union Pacific. Rather, Plaintiffs offer the

ORDER - 6

1

testimony of Dr. Brodkin, a physician of environmental and occupational medicine whom

2

Plaintiffs have retained as an expert witness. (Pl. Resp. Union Pacific at 2-3.) At his

3

deposition, Dr. Brodkin opined that in light of the period of Mr. Jack’s father’s

4

employment, as well as Mr. Jack’s descriptions of the piping and insulation materials he

5

observed, Mr. Jack’s father was likely exposed to asbestos-containing cement and

6

insulation at Union Pacific worksites. (Adams Decl. (Dkt. # 612) ¶ 2, Ex. F (“Brodkin

7

Dep.”) at 140:11-141:13.)5 To support his opinion, Dr. Brodkin cited the testimony of an

8

industrial hygienist who, in an unrelated case, documented in the early 1980s asbestos

9

use in the Burlington Northern Santa Fe (“BNSF”) Railway system. (Id. at 137:10-

10

139:5.) The industrial hygienist upon whom Dr. Brodkin relied, however, did not

11

specifically document asbestos use at Union Pacific during this time period. (See id.)

12

B.

13

Evidence Concerning Ford
Plaintiffs allege that Mr. Jack was exposed to asbestos-containing products sold by

14

Ford, both during his work as a professional mechanic and over decades of personal

15

automotive work. (See SAC ¶ 41D.) Plaintiffs cite a number of materials, including a

16

deposition by Ford’s corporate representative in an unrelated matter, which show that

17

Ford both sold vehicles with asbestos-containing brakes and distributed and sold

18

asbestos-containing brakes and clutches during the years when Mr. Jack performed

19
20
21
22

Portions of Dr. Brodkin’s deposition testimony are attached to various parties’ briefing.
(See, e.g., Fucile Decl. Ford MSJ (Dkt. # 450) ¶ 2, Ex. 9; Gaston Decl. Brodkin MTE (Dkt.
# 486) ¶ 19, Ex. 18; Ross Decl. Brodkin MTE (Dkt. # 517) ¶ 3, Ex. C); Ross Decl. Borg-Warner
MSJ (Dkt. # 519) ¶ 7, Ex. F; Adams Decl. Pl. Consolidated Resp. (Dkt. # 605) ¶ 2, Ex. E.) The
court refers generally to “Brodkin Dep.” when citing that testimony.
5

ORDER - 7

1

automotive work. (Adams Decl. (Dkt. # 610) ¶ 2, Ex. G (“Taylor Dep. 2009”) at

2

13:24-16:3; Ex. H (“Ford 1984 Interrog.”) at 6:16-8:23;6 Ex. I (“Ford 1985 EPA

3

Letter”).) Ford does not challenge the substance or admissibility of these admissions.

4

(See generally Dkt.) However, Ford disputes the nature, extent, and significance of Mr.

5

Jack’s alleged exposure to asbestos-containing Ford products, as detailed below.

6

1. Professional Automotive Work

7

From approximately 1962 to 1964, Mr. Jack was co-owner of an automotive repair

8

shop in Seattle called Dexter Avenue Auto Repair (“Dexter”). (Jack Perp. Dep.

9

129:5-130:1.) During that period, Mr. Jack regularly performed brake and clutch jobs for

10

Dexter’s customers. (Fucile Decl. (Dkt. # 450) ¶ 2, Ex. 1 at 1.) From approximately

11

1964 to 1968, Mr. Jack worked as a part-time mechanic for Apex Mobile Home Towing

12

(“Apex”) in Portland, Oregon. (Id.) There he was responsible for maintaining the

13

company’s two Ford tow trucks. (Id.)

14

a. Dexter

15

Plaintiffs assert that while he worked at Dexter, Mr. Jack purchased

16

asbestos-containing brakes and clutches from Ford dealers and was exposed to asbestos

17

dust generated by those products. (Pl. Resp. Ford at 4.) During his perpetuation

18

deposition, Mr. Jack testified as follows:

19

Q: Do you remember the brand name or manufacturer of the clutches that
you worked on at Dexter?

20
21

A: We had Bendix, Wagner, clutches purchased from the Pontiac dealer,
clutches purchased from mostly the Ford dealer.

22

6

The court cites the page number at the bottom-center of the document.

ORDER - 8

1

Q: What about the brands of brakes?

2

A: There again, it was Bendix, Wagner. I got a lot of brakes from Pontiac
right from their dealer. Some of them Ford.

3
(Jack Perp. Dep. at 131:12-20.) Additionally, Mr. Jack testified that at Dexter he used an
4
“arc grinder” to grind brakes of various brands. (Id. at 132:22-133:3.) Mr. Jack recalled
5
that grinding brakes created significant amounts of dust (Jack Disc. Dep. at 708:15-20),
6
which he breathed (Jack Perp. Dep. at 82:18-83:2).
7
Ford disputes that Mr. Jack was exposed to respirable asbestos from products sold
8
by Ford in the course of his work at Dexter. A few days after Mr. Jack provided the
9
testimony excerpted above, he testified that he did not recall whether he had ever
10
purchased brakes from a Ford dealer for any Dexter customers. (Jack Disc. Dep.
11
158:8-12.) Mr. Jack also noted that he purchased clutches from a Ford dealer for only
12
“two or three [Dexter] customers” who had requested that “strictly Ford materials be used
13
in their car.” (Id. at 155:18-25.) Mr. Jack could recall neither the name of the Ford
14
dealer where he purchased the clutches nor the brand of the clutches he purchased from
15
the Ford dealer. (Id. at 156:3-13.) Ford also emphasizes that Mr. Jack testified that while
16
working at Dexter, he did not cut, sand, or otherwise abrade the friction surfaces on new
17
clutches. (Id. at 156:15-21.)
18
b. Apex Towing
19
As a part-time mechanic at Apex, Mr. Jack maintained the company’s two Ford
20
tow trucks. Mr. Jack testified that between the two trucks, he performed approximately
21
four or five brake jobs, approximately four to six clutch jobs, and a “couple engine
22

ORDER - 9

1

overhauls.” (Jack Perp. Dep. at 152:25-159:24.) Additionally, Mr. Jack inspected the

2

tow trucks’ brakes every two or three months. (Id. at 162:11-25.) When performing

3

clutch work, Mr. Jack used compressed air to blow the dust out from inside the clutches.

4

(Id. at 161:18-162:1.) He testified that this filled the air with dust, which he breathed.

5

(Id.) Mr. Jack testified that he also sanded and filed the new brakes, and then used an

6

“air hose to blow them out.” (Id. at 157:22-158:5.) This process, too, generated dust,

7

which Mr. Jack assumed he breathed. (Id. at 158:20-159:1.)

8
9

In Mr. Jack’s recollection, Apex’s owner was “a hardcore Ford man” who “would
not buy anything other than Ford products.” (Id. at 153:4-7.) Mr. Jack believed that the

10

brakes, clutches, and gaskets he removed and installed were purchased primarily from the

11

local Ford dealer, Tonkin Ford. (Id. at 153:4-154:8, 161:9-13.) Mr. Jack testified that

12

either he or Apex’s owner would go to Tonkin Ford to purchase the brakes, clutches, and

13

gaskets he installed in the tow trucks. (Id. at 153:4-154:8.)

14

2. Personal Automotive Work

15

Mr. Jack estimated that over the course of several decades, he performed

16

automotive work on “a couple hundred” personal vehicles and vehicles that belonged to

17

family and friends. (Jack Disc. Dep. at 694:11-14.) Plaintiffs assert that Mr. Jack was

18

exposed to Ford’s asbestos-containing friction products multiple times during his

19

personal automotive work. (See Pl. Resp. Ford at 2.) Ford, on the other hand, identifies

20

just one instance in Mr. Jack’s personal automotive work—the removal, in 1986, of two

21

rear drum brake shoes from a 1984 Ford Mustang—when Mr. Jack may have been

22

exposed to asbestos-containing Ford products. (Ford MSJ at 1.)

ORDER - 10

1

Taken together, and in a light most favorable to Plaintiffs, the deposition

2

testimonies of Mr. Jack and David Jack suggest that Mr. Jack may have worked with

3

Ford friction products on three occasions. First, Mr. Jack expressly recalled working

4

with a set of Ford brakes in conjunction with his 1960 and 1962 Pontiac race cars. (See

5

Jack Perp. Dep. at 169:13-18.) Mr. Jack explained that he performed “three or four”

6

brake jobs on each of his race cars, using an arc grinder and compressed air. (Id. at

7

169:20-24, 170:8-171:3.) He suggested that at least one of those jobs involved installing

8

or replacing a set of Ford brakes:

9
10
11

Q: What brands of brakes did you use on the ’60 and ’62 Pontiac?
A: Well, we had—on the brake side, we would get brakes from Pontiac,
Ford, BorgWarner, Wagner. When I say Ford, there was a set of Ford that
worked on the Pontiac, but we didn’t like them.

12

(Id. at 169:13-18.) Second, David Jack testified that at some point in the mid-1980s, he

13

and Mr. Jack performed a “complete rebuild” of a 1964 Ford Ranchero, a project that

14

required replacing the car’s “clutch, brakes, steering, [and] suspension.” (Adams Decl.

15

Resp. Ford (Dkt. # 610) ¶ 2, Ex. C (“David Jack Dep.”) at 102:2-14.)7 David Jack

16

recalled that the Ranchero still possessed its “original” parts when he and Mr. Jack “tore

17

everything out from underneath and redid it.” (Id. at 102:18-20.) Third, David Jack

18

testified that he and Mr. Jack performed brake work on a 1984 Ford Mustang the family

19

inherited from David Jack’s grandfather in 1984 or 1985. (Id. at 87:7-19.) According to

20
Plaintiffs attach portions of David Jack’s deposition testimony to additional briefing.
(See Adams Decl. Pl. MSJ Ford (Dkt. # 506) ¶ 2, Ex. B; Adams Decl. Pl. MSJ Borg-Warner
(Dkt. # 506) ¶ 2, Ex. B-C; Adams Decl. Resp. Borg-Warner (Dkt. # 614) ¶ 2, Ex. E.) The court
cites generally to “David Jack Dep.” when citing that testimony.
7

21
22

ORDER - 11

1

David Jack, his grandfather purchased the Mustang new and passed away shortly

2

thereafter; he thus described the Mustang’s parts as having been “factory new.” (Id. at

3

88:16-20.) David Jack remembers that the Mustang had rear drum brakes and front disc

4

brakes, and he believes his father “did all four.” (Id. at 133:7-21.)

5

C.

6

Evidence Concerning Borg-Warner
Plaintiffs allege that Mr. Jack was exposed to asbestos-containing clutches

7

manufactured by Borg-Warner while employed as a mechanic and while servicing

8

personal vehicles. (See SAC ¶ 42D-E; Pl. Resp. Borg-Warner at 2-5.) Plaintiffs provide

9

materials from unrelated cases that show that Borg-Warner’s predecessor in interest,

10

Borg-Warner Corporation, sold asbestos-containing clutches into the 1980s (Adams Decl.

11

(Dkt. # 614) ¶ 2, Ex. N at 26:15-27:13), supplied asbestos-containing clutches to Ford for

12

use as original equipment manufacturer parts (id. Ex. O at 38:15-18), and sold

13

asbestos-containing clutch assemblies to car manufacturers as replacement parts (id. at

14

38:19-23).

15

During the discovery portion of his deposition, Mr. Jack testified he that installed

16

several Borg-Warner clutches during his personal and professional automotive work. Mr.

17

Jack testified that he likely installed “ten or more” Borg-Warner clutch discs while

18

working at Dexter. (Jack Disc. Dep. at 166:24-167:8.) Additionally, Mr. Jack estimated

19

that he installed “eight to ten” Borg-Warner clutch discs on personal vehicles and

20

vehicles owned by family and friends. (Id. at 713:23-714:3.) Mr. Jack testified that he

21

purchased Borg-Warner clutches from various Ford dealers; he recalled that “[s]ome of

22

the clutches you got out of the Ford dealerships were unmarked outside, but there were

ORDER - 12

1

some that were marked with a BorgWarner name, white box.” (Id. at 714:17-20.) Mr.

2

Jack further stated that he could guarantee that only three of the new clutch discs he

3

purchased from a Ford dealer came in a package marked with a Borg-Warner insignia.

4

(Id. at 714:21-715:14.)

5

With respect to clutch removals, Plaintiffs identify at least three occasions on

6

which Mr. Jack may have removed a Borg-Warner clutch. First, Mr. Jack testified that

7

he believed that in the mid-1950s, he “did a clutch” on his 1946 Chevrolet. (Jack Perp.

8

Dep. at 38:21-40:6.) Plaintiffs provide specifications showing that 1946 Chevrolets

9

featured asbestos-containing Borg & Beck-brand clutches (Adams Decl. (Dkt. # 614) ¶ 2,

10

Ex. G), as well as interrogatories from an unrelated case indicating that Borg-Warner’s

11

clutches were sold under the trade name Borg & Beck (id. Ex. H at 5).8 Second, Mr. Jack

12

testified that while working at Dexter, he removed from a customer’s vehicle a Borg-

13

Warner clutch he had previously installed. (Jack Disc. Dep. at 168:18-25.) Finally, Mr.

14

Jack testified that he “did three clutch jobs” on his 1962 Pontiac race car, recalling that he

15

“used BorgWarner” clutches “on two of those” jobs. (Id. at 713:1-4; see also Jack Perp.

16

Dep. at 148:17-24 (recalling that “BorgWarners held up good” on the 1962 Pontiac).)

17

Plaintiffs also furnish specifications from the Automobile Manufacturers Association

18

showing that 1962 Pontiacs featured Borg & Beck asbestos-containing clutches. (Adams

19

Decl. (Dkt. # 614) ¶ 2, Ex. I (“Pontiac Specs.”) at 108-109.)9

20
21

8

The court cites the page number at the bottom-center of the document.

22

9

The court cites the page numbers at the lower right-hand corner of the specifications.

ORDER - 13

Borg-Warner disputes the extent of Mr. Jack’s alleged exposure to

1
2

asbestos-containing Borg-Warner clutches. To begin, Borg-Warner draws attention to

3

Mr. Jack’s admission that he never sanded or abraded the face of a new Borg-Warner

4

clutch disc before installing it (Jack Disc. Dep. at 169:4-18), reducing the probability of

5

meaningful asbestos exposure during clutch installations (see Borg-Warner MSJ at 8).

6

Borg-Warner also contends that Mr. Jack’s testimony shows that he removed just one

7

Borg-Warner clutch throughout his personal and professional automotive work: the

8

clutch he installed, and then removed, while working at Dexter. (Id. at 167:10-168:25.)

9

As to the 1946 Chevrolet, Borg-Warner emphasizes that although Mr. Jack alluded to

10

performing clutch work on the vehicle, he never affirmatively claimed to have removed

11

the clutch. (See Jack Perp. Dep. at 38:21-40:6.) Indeed, during his discovery deposition,

12

Mr. Jack expressly denied that he had performed any clutch work on the 1946 Chevrolet.

13

(Jack Disc. Dep. at 488:21-25.) Moreover, Borg-Warner asserts that Plaintiffs have no

14

evidence that the clutch disc in the 1946 Chevrolet was the original part, and thus cannot

15

prove that the clutch Mr. Jack handled was manufactured by Borg-Warner.

16

(Borg-Warner Rep. (Dkt. # 633) at 3.) Finally, as to the 1962 Pontiac, Borg-Warner

17

notes that Mr. Jack testified during his discovery deposition that he did not remember

18

whether he ever installed or removed a Borg-Warner clutch disc in connection with the

19

1962 Pontiac. (Jack Disc. Dep. at 170:6-14.)

20

D.

21
22

Expert Testimony
The parties rely on expert witnesses who opine on matters ranging from asbestos

exposure to medical causation. The court previously described in detail various experts’

ORDER - 14

1

reports and deposition testimonies and ruled on the parties Daubert motions.10 (See

2

8/10/2018 Order (Dkt. # 628).) Here the court summarizes only that expert testimony

3

relevant to the instant motions and not previously excluded.

4

1. Carl Brodkin

5

Dr. Brodkin recounts Mr. Jack’s occupational history, as well as the

6

asbestos-containing products that he worked with in each job. (Brodkin Rep. § 2 at

7

1-23.) For instance, Dr. Brodkin notes that Mr. Jack worked intermittently on

8

automobiles from 1955 to after 2001. (Id. § 2 at 10.) During this time, Mr. Jack had

9

direct exposure to asbestos fibers from installing, cleaning, and removing brakes. (Id. § 2

10

at 10-11; see also id. § 2 at 13 (qualifying Mr. Jack’s exposure during his work with

11

brakes as an identified exposure).) Dr. Brodkin opines that Mr. Jack also had direct

12

exposure to asbestos when he used compressed air to blow out clutch bell-housings when

13

he removed clutches. (Id. § 2 at 13-14.) He points to Mr. Jack’s specific recollection that

14

he worked with “lots” of Borg-Warner clutches and performed “repeat clutch jobs” at the

15

shop and on personal vehicles. (See id. § 2 at 14.) Dr. Brodkin qualifies Mr. Jack’s

16

removal of clutches as an identified exposure, whereas the installation and regular

17

handling of the clutches only subjected Mr. Jack to de minimis exposure. (Id. § 2 at 15.)

18

Based on Mr. Jack’s occupational history, Dr. Brodkin concludes that Mr. Jack’s

19

mesothelioma was “causally related to direct and/or bystander occupational asbestos

20

exposure” from Mr. Jack’s time as a naval machinery repairman; a shipyard shop

21
22

10

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).

ORDER - 15

1

machinist and a nuclear inspector at the Shipyard; and an automotive mechanic. (Id. § 5

2

at 1.) Additionally, Dr. Brodkin concludes that Mr. Jack suffered

3

“para-occupational/environmental exposure” to asbestos through his father’s work at

4

Union Pacific. (Id. § 1 at 2 (noting Mr. Jack’s bystander exposure to “probable asbestos

5

cement pipe . . . and pipe-covering insulation . . . with indirect exposure from

6

contaminated clothing brought home for laundering”).)

7

Specifically, as to the exposure during his automotive work, Dr. Brodkin observes

8

that Mr. Jack regularly worked with brakes, clutches, and engine gaskets over his three

9

decades of automotive work, often in an enclosed garage setting. (Id. § 5 at 4.) Such

10

work included blowing out brakes with compressed air; grinding, sanding, and filing new

11

brakes in the installation process; cleaning up brakes; and removing clutches with a

12

compressed air blowout. (Id.) The literature reveals that these activities release large

13

amounts of asbestos fibers. (See id.) Moreover, the products themselves have a high

14

asbestos content. (Id.) Thus, Dr. Brodkin describes Mr. Jack’s exposure to asbestos

15

through his automobile work as “significant.” (Id.)

16

At his deposition, Dr. Brodkin stated that he could not express Mr. Jack’s total

17

exposure to asbestos because “there is not a way to quantify Mr. Jack’s dose” given that

18

he was “not wearing a dosimeter” at the time of exposure. (Brodkin Dep. at 26:23-27:6,

19

40:1-7; see also id. at 53:5-9 (“When you use the word ‘quantitative,’ it implies that there

20

is some actual measurement. That’s not possible in Mr. Jack’s case.”).) Indeed, Dr.

21

Brodkin notes that the literature on asbestos exposure does not identify a specific

22

numerical threshold above which there is risk of disease, although various studies provide

ORDER - 16

1

a range or exposure that is correlated with increased risk of disease. (Id. at 36:13-22,

2

50:21-24, 161:17-23.)

3

Instead, Dr. Brodkin utilizes a qualitative approach, where the totality of the

4

evidence—that is, the occupational and environmental history—determines whether an

5

exposure increases the risk of an asbestos-related disease. (Id. at 35:5-8, 40:5-7.)

6

Whether an exposure is significant depends on the intensity, the duration, and the

7

frequency of that exposure. (Id. at 52:10-21; see also id. at 193:15-17 (“My

8

assessment . . . is qualitative in terms of characterizing the duration, frequency, [and]

9

intensity of exposures.”).) Dr. Brodkin acknowledges that “[n]ot all exposures are

10

significant.” (Id. at 34:2-8, 122:15-24; see also id. at 45:1-3 (“Just because you have a

11

source of asbestos does not mean it is a significant exposure.”).) Rather, he looks for an

12

“identified exposure,” which is an exposure “that has a well-characterized source of

13

asbestos, an activity that disrupts that source to generate significant airborne asbestos

14

fibers that have sufficient intensity to overcome the body’s defenses, add to the body’s

15

burden of asbestos, and, therefore, increase risk for asbestos-related diseases.” (Id. at

16

47:2-7.)

17

2. Barry Castleman

18

Dr. Castleman’s expert report reviews medical literature and industry-specific

19

bodies of knowledge on asbestosis and asbestos-related cancers. (Adams Decl. (Dkt.

20

# 564) ¶ 2, Ex. A (“Castleman Rep.”) at 2-17.)11 Specifically, Dr. Castleman recounts

21
22

11

The court cites the page number at the bottom-center of the document.

ORDER - 17

1

studies in the automotive industry that analyzed asbestos in brakes, clutches, and gaskets,

2

as well as the history of regulations concerning asbestos in brake and clutch work. (Id. at

3

14-15.) Dr. Castleman’s report and deposition testimony also address historical

4

awareness of the hazards of take-home exposure to asbestos. According to Dr.

5

Castleman, by the mid-twentieth century, industrial employers had begun to take

6

safeguards to prevent employees from carrying home toxic materials. (Id. at 11-12.)

7

However, “[s]tudies on the occurrence of asbestos disease that included family members

8

of asbestos-exposed workers were not published until the 1960s.” (Id. at 13.) Two key

9

studies, published in 1965 and 1967, “established that mesothelioma was causing deaths

10

among persons with only household (and not occupational) exposure to asbestos.” (Id.)

11

As of 1955, however, “there was practically nothing in print” that linked secondary

12

asbestos exposure to “household cases of disease.” (Moore Decl. Union Pacific MSJ

13

(Dkt. # 477) ¶ 7, Ex. F (“Castleman Dep.”) at 19:12-24, 21:22-22:9.)12

14

E.

15

Marriage of Mr. Jack and Ms. Jack
Mr. Jack and Ms. Jack wed on August 30, 2016, after Mr. Jack was diagnosed

16

with mesothelioma. (Jack Perp. Dep. at 227:15-23.) By the time they married, Mr. Jack

17

and Ms. Jack had been together for 31 years. (Id. at 227:18-20.) At his deposition, Mr.

18

Jack explained their decision to marry:

19

Q: Why did you only get married in 2016? Sorry it’s a personal question,
but—

20
21
22

Plaintiffs also attach potions of Dr. Castleman’s deposition testimony to their briefing.
(See Adams Decl. Resp. Union Pacific (Dkt. # 612) ¶ 2, Ex. I.) The court refers generally to
“Castleman Dep.” when citing that testimony.
12

ORDER - 18

A: I’d come down with this disease, went to the lawyer, filled out wills and
powers of attorneys. The lawyer asked me how long we’ve been together. I
said, 30 years. He says, a long engagement. He said, it would make it a heck
of a lot easier if you got married on all this paperwork and everything.

1
2
3

(Id. at 227:21-228:4.) Additionally, Mr. Jack testified that Ms. Jack’s health problems,
4
and their wish to facilitate Mr. Jack’s ability to make decisions about her medical care,
5
also compelled the couple to marry. (Id. at 228:13-23.)
6
For her part, Ms. Jack testified that she and Mr. Jack had planned to marry before
7
Mr. Jack was diagnosed with mesothelioma. (Adams Decl. Pl Consolidated Resp. (Dkt.
8
# 605) ¶ 2, Ex. C (“Leslie Jack Dep.”) at 39:10-17.)13 In fact, she claimed, the two “filled
9
out or got the [marriage] application in July,” before his August diagnosis. (Id. at
10
39:13-14.) Ms. Jack stated that “multiple things” influenced their decision to wed,
11
including her own health. (Id. at 39:24-40:6.) Ms. Jack testified that in approximately
12
2014, she learned that she was suffering from an abdominal aortic aneurism, a condition
13
for which she underwent surgery in May 2017. (Id. at 40:13-19, 42:14-17.) She
14
explained that she and Mr. Jack “decided to get married because it would give him more
15
control over my medical records, over—like I say, if something serious happened to me,
16
like if I didn’t survive the surgery.” (Id. at 40:20-23.)
17
//
18
//
19
//
20
21
Union Pacific also attaches portions of Ms. Jack’s deposition testimony to its briefing.
(See Moore Decl. Union Pacific MSJ (Dkt. # 477) ¶ 8, Ex. G.)
13

22

ORDER - 19

1
2
3

III.
A.

ANALYSIS

Legal Standard
Summary judgment is appropriate if the evidence shows “that there is no genuine

4

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

5

Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Galen v.

6

Cty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007). A fact is “material” if it might affect the

7

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

8

factual dispute is “‘genuine’ only if there is sufficient evidence for a reasonable fact

9

finder to find for the non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986,

10
11

992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49).
The moving party bears the initial burden of showing there is no genuine dispute

12

of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at

13

323. If the moving party does not bear the ultimate burden of persuasion at trial, it can

14

show the absence of such a dispute in two ways: (1) by producing evidence negating an

15

essential element of the nonmoving party’s case, or (2) by showing that the nonmoving

16

party lacks evidence of an essential element of its claim or defense. Nissan Fire &

17

Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party

18

meets its burden of production, the burden then shifts to the nonmoving party to identify

19

specific facts from which a fact finder could reasonably find in the nonmoving party’s

20

favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.

21
22

The court is “required to view the facts and draw reasonable inferences in the light
most favorable to the [nonmoving] party.” Scott v. Harris, 550 U.S. 372, 378 (2007)

ORDER - 20

1

(internal quotation marks and citation omitted). The court may not weigh evidence or

2

make credibility determinations in analyzing a motion for summary judgment because

3

those are “jury functions, not those of a judge.” Anderson, 477 U.S. at 255. Nevertheless,

4

the nonmoving party “must do more than simply show that there is some metaphysical

5

doubt as to the material facts . . . . Where the record taken as a whole could not lead a

6

rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”

7

Scott, 550 U.S. at 380 (internal quotation marks omitted) (quoting Matsushita Elec.

8

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). Accordingly, “mere

9

allegation and speculation do not create a factual dispute for purposes of summary

10

judgment,” Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996), and “[a]

11

trial court can only consider admissible evidence in ruling on a motion for summary

12

judgment,” Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002).

13

An expert opinion “may defeat summary judgment if it appears the affiant is

14

competent to give an expert opinion and the factual basis for the opinion is stated in the

15

affidavit[.]” Walton v. U.S. Marshals Serv., 476 F.3d 723, 730 (9th Cir. 2007) (internal

16

quotation marks and citation omitted). However, an expert’s “conclusory report” is not

17

sufficient to raise a genuine issue of material fact. Id. “[I]n the context of a motion for

18

summary judgment, an expert must back up his opinion with specific facts.” United

19

States v. Various Slot Machines on Guam, 658 F.2d 697, 700 (9th Cir. 1981). “When the

20

expert opinion is not supported by sufficient facts to validate it in the eyes of the law or

21

when indisputable record facts contradict or otherwise render the opinion unreasonable,”

22

summary judgment is appropriate. Rebel Oil Co., Inc. v. Atlantic Richfield Co., 51 F.3d

ORDER - 21

1

1421, 1440 (9th Cir. 1995) (quoting Brook Grp. Ltd v. Brown & Williamson Tobacco

2

Corp., 509 U.S. 209, 242 (1993)).

3

B.

Defendants’ Motions for Summary Judgment and Partial Summary
Judgment

4
Defendants each assert several grounds for summary judgment or partial summary
5
judgment. Applying Washington state law,14 the court addresses their arguments in turn.
6
1. Secondary Exposure Claim
7
Union Pacific moves for summary judgment on Plaintiffs’ secondary exposure
8
claim. (Union Pacific MSJ at 1.)15 Union Pacific argues that even assuming that Mr.
9
Jack breathed asbestos dust his father carried home from work,16 no reasonable juror
10
11
12
13
14

14

Because federal jurisdiction is based on the diversity of the parties, the court must
apply Washington choice of law rules. See Patton v. Cox, 276 F.3d 493, 495 (9th Cir. 2002).
Under Washington law, absent an actual conflict with the laws and interests of another state,
Washington law presumptively applies. See Burnside v. Simpson Paper Co., 864 P.2d 937, 941
(Wash. 1994). No party has raised any such conflict, and no party has argued that any law other
than Washington law governs Plaintiffs’ claims. (See generally Dkt.) Accordingly, the court
applies Washington substantive law.
15

15
16
17
18
19
20
21
22

Alongside its reply, Union Pacific filed nine pages of evidentiary objections to several
exhibits and deposition testimony cited in Plaintiffs’ response. (See Union Pacific Rep. (Dkt.
# 634); Union Pacific Ev. Obj. (Dkt. # 632).) Plaintiffs then filed a surreply in which they
moved to strike Union Pacific’s evidentiary objections as a violation of Local Rule 7(g). (Pl.
Sur. (Dkt. # 647).) The court finds the challenged portions of Plaintiffs’ response do not alter the
court’s determination of the merits of Union Pacific’s summary judgment motion. Accordingly,
for purposes of this order, the court denies as moot Union Pacific’s evidentiary objections. At
the same time, the court cautions Union Pacific that under Local Rule 7(g), “[r]equests to strike
material contained in or attached to submissions of opposing parties shall not be presented in a
separate motion to strike, but shall instead be included in the responsive brief, and will be
considered with the underlying motion.” Local Rules W.D. Wash. LCR (7)(g).
For purposes of assessing whether Plaintiffs’ secondary exposure claim against Union
Pacific may survive as a matter of law, the court assumes that Mr. Jack’s father worked with
asbestos on Union Pacific premises. As detailed below, Union Pacific disputes that Mr. Jack’s
father was in fact exposed to asbestos-containing products as a result of its conduct. (See infra
§ III.B.2.a.)
16

ORDER - 22

1

could find that in and before 1955 Union Pacific knew or should have known of the risks

2

that secondary asbestos exposure posed to employees’ family members. (Id.)

3

Under Washington law, take-home asbestos exposure claims are cognizable under

4

a negligence theory of liability.17 See Arnold v. Saberhagen Holdings, Inc., 240 P.3d

5

162, 169 (Wash. Ct. App. 2010); Rochon v. Saberhagen Holdings, Inc., No. 58579-7-I,

6

2007 WL 2325214, at *2-3 (Wash. Ct. App. Aug. 13, 2007). The existence of a legal

7

duty is an issue of law to be decided by the court, Folsom v. Burger King, 958 P.2d 301,

8

308 (Wash. 1998), and generally includes a determination of whether the harm was

9

“foreseeable,” Rochon, 2007 WL 2325214, at *1. A harm is foreseeable if the defendant

10

knew or should have anticipated an unreasonable risk of danger to the plaintiff. See, e.g.,

11

Lockwood v. AC & S, 722 P.2d 826, 847-48 (Wash. Ct. App. 1986), aff’d, 744 P.2d 605

12

(Wash. 1987).

13

Union Pacific argues that the risk of developing mesothelioma from secondary

14

asbestos exposure was not foreseeable before 1955, the last year when Mr. Jack could

15

have been exposed to Union Pacific-attributable asbestos at home. (Union Pacific MSJ at

16

17.) Union Pacific emphasizes that Dr. Castleman, Plaintiffs’ expert, expressly

17

acknowledged that before the mid-1960s, there were no published studies linking

18

secondary asbestos exposure with the onset of asbestos disease. (See Castleman Dep. at

19
20
21
22

17

Washington courts also recognize that take-home exposure plaintiffs may recover
against “manufacturers and sellers” of asbestos-containing products on a strict liability theory.
See Lunsford v. Saberhagen Holdings, Inc., 106 P.3d 808, 812-13 (Wash. Ct. App. 2005).
Plaintiffs do not allege that Union Pacific manufactured or sold asbestos products. (See
generally SAC; Pl. Resp. Union Pacific.)

ORDER - 23

1

19:19-21.) Additionally, Union Pacific urges the court to follow Hoyt v. Lockheed

2

Shipbuilding Co., C12-1648TSZ, 2013 WL 3270371, at *7 (W.D. Wash. Jun. 26, 2013),

3

aff’d sub nom. Hoyt v. Lockheed Martin Corp., 540 F. App’x 590 (9th Cir. 2013), in

4

which the court expressly held “that the risk of danger from ‘take home’ asbestos

5

exposure . . . was not foreseeable in the 1950s.”
Plaintiffs respond that under Washington law, harm is foreseeable if “the risk from

6
7

which it results was known or in the exercise of reasonable care should have been

8

known,” even if the particular harm at issue was not. (Pl. Resp. Union Pacific at 6

9

(quoting Travis v. Bohannon, 115 P.3d 342, 346 (Wash. Ct. App. 2005)).) During the

10

relevant period of Mr. Jack’s father’s employment, Plaintiffs argue, “it was foreseeable to

11

a premises owner and employer like Union Pacific that a family member could contract

12

an illness from take-home exposure to poisons, toxins, and chemicals in the work

13

environment, which would naturally include asbestos.” (Pl. Resp. Union Pacific at 5.)

14

Plaintiffs excerpt sections of Dr. Castleman’s testimony suggesting that as early as 1913,

15

some industrial employers were aware that hazardous materials could cling to employees’

16

work clothes and contaminate their homes. (Pl. Resp. Union Pacific at 6 (citing

17

Castleman Dep. at 19:21-21:16).) Plaintiffs also emphasize Dr. Castleman’s testimony

18

on the writings of Dr. Wilhelm Hueper, a leading authority on occupational cancer who

19

“in the 1950s” encouraged employers to “take protective measures to prevent . . .

20

carcinogenic materials from going home” and “warned that the air pollution from

21

asbestos factories could cause cases of cancer in the neighbors.” (Id. at 22:8-21.)

22

//

ORDER - 24

1

As Dr. Castleman concedes in his deposition, if in 1955 Union Pacific wanted to

2

research the hazards of secondary exposure, it would have found “practically nothing in

3

print.” (Castleman Dep. at 19:20.) Dr. Castleman’s report, too, makes clear that

4

“[s]tudies on the occurrence of asbestos disease that included family members of

5

asbestos-exposed workers were not published until the 1960s.” (Castleman Rep. at 13.)

6

According to Dr. Castleman, one of the first major studies on asbestos disease that

7

included family members of asbestos-exposed workers was published in 1965—ten years

8

after Mr. Jack last could have breathed asbestos dust in his father’s home. (Castleman

9

Rep. at 13.) At most, Plaintiffs’ evidence suggests that by the 1950s, public health

10

authorities possessed some awareness of the health risks posed by asbestos exposure. (Pl.

11

Resp. Union Pacific at 7; Castleman Rep. at 6-9.) But that understanding centered on

12

asbestos-exposed workers and people who lived in close proximity to asbestos emissions,

13

not workers’ family members. (Castleman Dep. at 22:7-21; Castleman Rep. at 11-12.) In

14

short, there is no evidence in the record to charge Union Pacific with constructive

15

knowledge of the dangers of take-home exposure to its employees’ families during the

16

relevant time period in and before 1955.

17

Plaintiffs identify no case, in Washington or elsewhere, that holds that the risks of

18

secondary asbestos exposure were foreseeable in the 1950s. Indeed, the decisions of

19

other courts favor the opposite conclusion. See, e.g., Hoyt, 2013 WL 3270371, at *6

20

(“This Court conducted an independent review of the case law, and found no case in

21

which a court has concluded that the risk of ‘take home’ exposure was foreseeable in the

22

1950s.”); Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 444-45 (6th Cir. 2009)

ORDER - 25

1

(holding that “[w]ithout any published studies or any evidence of industry knowledge of

2

bystander exposure there is nothing that would justify charging [defendant]” with

3

knowledge of the risks of take-home exposure between 1951 and 1963).

4

Plaintiffs suggest that to survive summary judgment, they need not demonstrate

5

that in and before 1955 Union Pacific knew or should have known that take-home

6

asbestos exposure causes disease; rather, they argue, it is enough to show that Union

7

Pacific should have been aware of the hazards of asbestos exposure generally and should

8

have foreseen that its employees were carrying asbestos fibers home. (Pl. Resp. Union

9

Pacific at 6.) The court finds that argument unavailing. It more or less suggests that

10

Union Pacific should be charged with knowledge of the risks of take-home exposure at a

11

time when scientists and public health experts had not yet drawn causal links between

12

workers’ direct exposure and family members’ illnesses. That logic stretches the concept

13

of foreseeability too far, and does not accord with weight of existing law. See Hoyt, 2013

14

WL 3270371, at *6. Viewing the evidence in the light most favorable to Plaintiffs, and

15

drawing all reasonable inferences in Plaintiffs’ favor, the court concludes that no

16

reasonable juror could find that in and before 1955, Union Pacific knew or should have

17

known of the risks that secondary asbestos exposure posed to its employees’ family

18

members. Accordingly, the court grants Union Pacific’s motion for summary judgment

19

on Plaintiffs’ take-home exposure claim.

20

2. Exposure and Causation

21

Union Pacific, Ford, and Borg-Warner seek summary judgment on grounds related

22

to Plaintiffs’ ability to show that Mr. Jack was exposed to Defendants’

ORDER - 26

1

asbestos-containing products and that such exposure actually caused Mr. Jack’s

2

mesothelioma. The court begins by stating Washington law on exposure and causation in

3

asbestos suits. It then addresses each Defendant’s motion in turn.

4

To prevail on a product liability theory under Washington law, “the plaintiff must

5

establish a reasonable connection between the injury, the product causing the injury, and

6

the manufacturer of the product.” Lockwood v. AC & S, Inc., 744 P.2d 605, 612 (Wash.

7

1987). “This does not mean, however, that a plaintiff . . . must personally identify the

8

manufacturers of asbestos products to which he was exposed in order to recover from

9

those manufacturers.” Id. Rather, “[p]laintiffs in asbestos cases may rely on

10

circumstantial evidence that the manufacturer’s products were the source of their asbestos

11

exposure.” Van Hout v. Celotex Corp., 853 P.2d 908, 913 (Wash. 1993). In Lockwood,

12

for example, although there was “no direct evidence that [the plaintiff] worked with or

13

near [the defendant’s product],” 744 P.2d at 611, the court held that “it would be

14

reasonable for a factfinder to infer that he was exposed to [the defendant’s] product,” id.

15

at 612. First, witness testimony established that the defendant’s product was used on the

16

ship where the plaintiff worked. Id. Second, expert testimony showed that the asbestos

17

on the vessel drifted in the air and could be inhaled by bystanders. Id. The court

18

concluded that “the evidence . . . presented creates a reasonable inference that [the

19

plaintiff] was exposed to [the defendant’s] product.” Id. at 613.

20

In suits implicating multiple sources of asbestos, Washington courts commonly

21

apply the “substantial factor” test to determine whether exposure to a particular

22

defendant’s asbestos products proximately caused the plaintiff’s illness. Mavroudis v.

ORDER - 27

1

Pittsburg-Corning Corp., 935 P.2d 684, 687-89 (Wash. Ct. App. 1997) (noting that

2

“substantial factor causation instructions are commonly given in asbestos-injury cases

3

tried in Washington”); see also Lockwood, 744 P.2d at 623 (instructing jury in asbestos

4

case on the substantial factor causation test). The Washington Supreme Court has

5

identified several factors a trial court should consider when determining whether there is

6

sufficient evidence for a jury to find that exposure to a particular defendant’s products

7

caused the plaintiff’s injury. Lockwood, 744 P.2d at 613. Those factors include: (1) the

8

“plaintiff’s proximity to the asbestos product when the exposure occurred”; (2) “the

9

expanse of the work site where asbestos fibers were released”; (3) “the extent of time that

10

the plaintiff was exposed to the product”; (4) “the types of asbestos products to which the

11

plaintiff was exposed”; (5) “the ways in which such products were handled and used”;

12

and (6) “the evidence presented as to medical causation of the plaintiff’s particular

13

disease.” Id.

14

a. Union Pacific
In moving for summary judgment on Plaintiffs’ bystander exposure claims, Union

15
16

Pacific argues that Plaintiffs cannot satisfy their burden to prove that Mr. Jack’s

17

mesothelioma was proximately caused by asbestos products attributable to Union Pacific.

18

(Union Pacific MSJ at 10.) Specifically, Union Pacific both disputes that Plaintiffs can

19

show that Mr. Jack was actually exposed to asbestos on Union Pacific premises and

20

maintains that “Plaintiffs cannot establish that this alleged exposure was a substantial

21

contributing factor to his disease.” (Id.)

22

//

ORDER - 28

1

Plaintiffs seek to establish that Mr. Jack suffered bystander exposure on Union

2

Pacific premises on the basis of Mr. Jack’s testimony and Dr. Brodkin’s testimony and

3

expert report. (See Pl. Resp. at 2-3.) Mr. Jack testified that approximately six to eight

4

times between 1949 and 1952, he watched Union Pacific workers handle piping, valves,

5

and insulation from distances that ranged from 10 to 50 feet. (See supra § II.A.)

6

According to Dr. Brodkin, in light of Mr. Jack’s descriptions of those materials and the

7

period of his visits, it was “likely” the piping and insulation contained asbestos. (Brodkin

8

Dep. at 140:11-141:13.) To support that assertion, Dr. Brodkin cited a survey, produced

9

in the early 1980s, on the use of asbestos-containing materials—including cement pipes

10

and insulation—in the BNSF Railway system. (Id. at 137:10-18.) As Dr. Brodkin

11

conceded, however, that survey informed his “understanding [of] the exposure setting

12

generally, not in terms of a specific building that Mr. Jack or his father would have been

13

in.” (Id. at 139:6-8.)

14

The court concludes that this evidence does not reasonably support the inference

15

that Mr. Jack was actually exposed to asbestos on Union Pacific premises. Plaintiffs fail

16

to adduce facts that locate any asbestos-containing products at any Union Pacific

17

workplace at any point in Mr. Jack’s lifetime—much less in Seattle between 1949 and

18

1952. Indeed, Plaintiffs’ exposure evidence rests in large part on a survey of a different

19

railroad system, conducted for purposes of a different lawsuit, decades after Mr. Jack

20

visited Union Pacific worksites. (See Brodkin Dep. at 137:10-18.) Plaintiffs provide no

21

witness testimony placing asbestos on Union Pacific premises, see Lockwood, 744 P.2d at

22

612 (“[A] plaintiff may rely on the testimony of witnesses who identify manufacturers of

ORDER - 29

1

asbestos products which were then present at his workplace.”); nor sales records showing

2

that Union Pacific ever purchased asbestos-containing materials, see Allen v. Asbestos

3

Corp., Ltd., 157 P.3d 406, 410 (Wash. Ct. App. 2011) (“[T]he sales records establish that

4

large quantities of [asbestos products] were ordered by the shipyard over multiple

5

years.”); nor the testimony of Mr. Jack’s father’s coworkers on their working conditions,

6

see O’Brien v. Nat’l Gypsum Co., 944 F.2d 69, 71 (2d Cir. 1991). Absent any evidence

7

of this type, Plaintiffs fail to satisfy Lockwood’s requirement that they establish a

8

“reasonable connection” between Mr. Jack’s injury and Union Pacific’s conduct.

9

Lockwood, 744 P.2d at 612.18 Accordingly, the court grants Union Pacific’s motion for

10

summary judgment on Plaintiffs’ bystander exposure claim.

11

//

12

//

13
14
15
16
17
18
19
20
21
22

18

Furthermore, exercising its gatekeeping role, see Estate of Barabin v. AstenJohnson,
Inc., 740 F.3d 457, 463 (9th Cir. 2014), the court finds that Dr. Brodkin’s opinion lacks
foundation sufficient to ensure its reliability under Federal Rule of Evidence 702. See, e.g., In re
Silberkraus, 336 F.3d 864, 870-71 (9th Cir. 2003) (court properly “discounted” significance of
expert’s conclusions where those conclusions were “not independently verified” and were not
supported by sufficient facts); see also Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 22-23
(2d Cir. 1996) (excluding expert testimony under Rule 702 because expert’s “projections . . .
were without factual basis” and rested on “unsupported assumption”). A court may raise sua
sponte the reliability of expert testimony. See Kirstein v. Parks Corp., 159 F.3d 1065, 1067 (7th
Cir. 1998) (“We have not required that the Daubert inquiry take any specific form and have, in
fact, upheld a judge’s sua sponte consideration of the admissibility of expert testimony.”). The
same finding extends to the report of Dr. Andrew Churg, Ford’s expert, which concludes that
Mr. Jack’s mesothelioma was related to “his father’s work at Union Pacific.” (Fucile Dep. (Dkt.
# 288) Ex. 1 at 3.) Dr. Churg’s opinion on this point is unsupported by specific facts or data, and
comes in the form of a conclusory assertion not appropriate for consideration at summary
judgment. See Timeline, Inc. v. Proclarity Corp., C05-1013JLR, 2007 WL 1574069, at *8
(“[A]n expert’s ‘conclusory report’ is not sufficient to raise a genuine issue of material fact.”)
(quoting Walton, 476 F.3d at 730)).

ORDER - 30

1
2

b. Ford
Ford moves for partial summary judgment on the ground that Plaintiffs lack

3

evidence to put before the jury certain incidents of alleged asbestos exposure involving

4

Ford products. (See Ford MSJ.) Specifically, Ford argues that the court should allow

5

only the following claims to proceed to trial: (1) Mr. Jack’s “removal and replacement of

6

brakes, clutches and gaskets on two Ford trucks at Apex Mobile Home Towing from

7

1964 to 1968”; and (2) Mr. Jack’s “removal of two rear drum brake shoes from a 1984

8

Ford Mustang in 1986.” (Id. at 1.) In response, Plaintiffs allege that four additional

9

sources of exposure involving Ford products pose issues for trial: (1) Mr. Jack’s

10

automotive work at Dexter; (2) Mr. Jack’s handling of Ford brakes in connection with his

11

Pontiac race car; (3) Mr. Jack’s 1986 overhaul of a 1964 Ranchero; and (4) Mr. Jack’s

12

replacement of the front disc brakes on a 1984 Ford Mustang. (Pl. Resp. Ford.) The

13

court considers each of these four latter exposures in turn.

14
15

i.

Dexter

The parties’ submissions identify two possible sources of asbestos exposure at

16

Dexter for which Ford bears potential liability: clutches and brakes.19 In his perpetuation

17

deposition, Mr. Jack identified “clutches purchased from . . . the Ford dealer” as among

18

the various brands he handled at Dexter. (Jack Perp. Dep. at 131:12-16.) A few days

19

later, in additional deposition testimony, Mr. Jack stated that he purchased clutches from

20
21
22

19

There is no evidence that Mr. Jack sustained asbestos exposure from Ford gaskets at
Dexter. Mr. Jack recalled only that he worked with Victor and Fel-Pro gaskets. (Jack Perp. Dep.
133:13-17.)

ORDER - 31

1

an unnamed Ford dealer for just “two or three” Dexter customers. (Jack Disc. Dep. at

2

155:18-25.) Mr. Jack unequivocally testified that when installing the clutches he had

3

purchased from the Ford dealer, he did not cut, sand, or otherwise abrade their friction

4

surfaces. (Id. at 156:15-21.) Plaintiffs do not contend that Mr. Jack ever removed a Ford

5

clutch at Dexter. (See generally Pl. Resp. Ford.)

6

Viewing this evidence in the light most favorable to Plaintiffs, Mr. Jack installed

7

at least three Ford clutches at Dexter.20 The court finds that Plaintiffs provide no

8

evidence that any of these installations resulted, or could have resulted, in potentially

9

causally significant asbestos exposure, however. In Dr. Brodkin’s opinion, Mr. Jack

10

sustained only “[d]e minimus” asbestos exposure when installing and handling

11

asbestos-containing clutches; the real exposure risks lay in clutch removal. (Brodkin

12

Rep. § 2 at 15; see also Brodkin Dep. at 44:8-14 (opining that installation of a clutch

13

results in “de minimus [exposure] because it’s not . . . an activity that would significantly

14

disrupt the material.”).) According to Dr. Brodkin, a de minimus exposure—in contrast

15

to an identified exposure—“does not increase risk for disease in terms of any

16

demonstrated scientific evidence.” (Brodkin Dep. at 42:15-21.) For that reason, Dr.

17

Brodkin does not consider clutch installations to be “biologically significant” events. (Id.

18

at 113:14-22.)

19
20
21
22

20

Mr. Jack testified that he could not identify the manufacturer of the clutches he
purchased from the Ford dealer. (Jack Disc. Dep. at 156:9-13.) Given his testimony that the
above-mentioned two or three Dexter customers requested that “strictly Ford materials be used in
their car,” the court assumes for purposes of Ford’s motion that the clutches Mr. Jack purchased
were manufactured by Ford. (Id. at 155:18-25.)

ORDER - 32

1

Plaintiffs do not contest Dr. Brodkin’s opinion on the de minimus impact of clutch

2

installations. (See generally Pl. Resp. Ford.) Nor do Plaintiffs provide other evidence

3

that could show that Mr. Jack’s installations of Ford clutches at Dexter increased his risk

4

of disease in any way (see id.), a threshold they must clear to establish that disputes of

5

fact remain for trial (see 8/10/2018 Order at 23-25 (rejecting “every exposure” theory of

6

causation)); Barabin v. Scapa Dryer Fabrics, Inc., C07-1454JLR, 2018 WL 840147, at

7

*11-13 (W.D. Wash. Feb. 12, 2018) (same). In view of Dr. Brodkin’s opinion on the de

8

minimus impact of clutch installations, Mr. Jack’s testimony that he never abraded Ford

9

clutches at Dexter, and the absence of evidence that Mr. Jack ever removed a Ford clutch

10

at Dexter, the court finds that no reasonable factfinder could conclude that Mr. Jack

11

sustained causally significant exposure when working with Ford clutches at Dexter.

12

Accordingly, Ford is entitled to partial summary judgment on the issue of Mr. Jack’s

13

installation of Ford clutches at Dexter.

14

In contrast, the court finds that issues of material fact remain with respect to Mr.

15

Jack’s alleged asbestos exposure from Ford brakes. Mr. Jack testified that during his

16

work at Dexter, he used an “arc grinder” to grind brakes of various brands inside a garage

17

setting. (Jack Perp. Dep. at 132:22-133:3.) Specifically, Mr. Jack explained that he used

18

the arc grinder to grind the “actual fibrous-type material” on new brake shoes, a process

19

that generated “dusty and dirty” air. (Id. at 82:14-83:2.) When Plaintiffs’ counsel asked

20

Mr. Jack to identify the brands of brakes he worked on at Dexter, Mr. Jack testified that

21

“[s]ome of them [were] Ford.” (Id. at 131:17-20.) When Plaintiffs’ counsel asked Mr.

22

Jack if he used the arc grinder “on the brands of brakes that you’ve told us about,” Mr.

ORDER - 33

1

Jack replied, “Yes, sir.” (Id. at 132:24-133:3.) Mr. Jack’s testimony is sufficient to

2

support a reasonable inference that he ground Ford brakes at Dexter, sustaining in the

3

process an identified asbestos exposure. (See Brodkin Rep. § 2 at 13 (characterizing

4

“new brake install-grinding” of asbestos-containing brakes as an “identified exposure”).)

5

Ford points out that Mr. Jack never specifically stated that he ground Ford brakes

6

at Dexter. (Ford MSJ at 3-4.) In fact, Ford emphasizes, Mr. Jack testified that he did not

7

recall whether he had ever purchased brakes from a Ford dealer for any of Dexter’s

8

customers. (Jack Disc. Dep. at 158:9-12.) Additionally, Mr. Jack testified that he had no

9

recollection of the brand names of any brake components he may have removed at

10

Dexter. (Id. at 463:12-464:1.) The court finds that these points implicate the credibility

11

or weight of Mr. Jack’s testimony, which cannot be assessed at summary judgment. See

12

Anderson, 477 U.S. at 255. Thus, the court concludes that Plaintiffs’ evidence that Mr.

13

Jack was exposed to Ford-attributable asbestos when performing brake work at Dexter is

14

sufficient to withstand summary judgment. See Morgan v. Aurora Pump Co., 248 P.3d

15

1052, 1056 (Wash. Ct. App. 2011) (“[Plaintiffs] need not offer a detailed recollection of

16

facts surrounding the exposure to the asbestos-containing product.”).

17
18

ii.

1984 Ford Mustang

The parties agree that there are disputes of material fact concerning Mr. Jack’s

19

removal of a 1984 Ford Mustang’s two rear drum brake shoes in 1986. (See Ford MSJ at

20

1; Pl. Resp. Ford at 3.) Although Ford argues that only the rear drum brakes present

21

issues for trial, Plaintiffs assert that “the evidence raises genuine issues of material fact

22

regarding Mr. Jack’s exposure to Ford’s products . . . while working on all brakes from a

ORDER - 34

1

1984 Ford Mustang.” (Pl. Resp. Ford at 7.) Plaintiffs point to the testimony of David

2

Jack, who stated that Mr. Jack removed the Mustang’s front disc brakes in addition to the

3

rear drum brakes and described all of the Mustang’s parts as having been “factory new.”

4

(David Jack Dep. at 87:7-88:23, 133:7-13.)

5

Viewing the record in the light most favorable to Plaintiffs, the court finds that

6

Plaintiffs provide sufficient evidence to survive summary judgment on the issue of the

7

Mustang’s front disc brakes. Plaintiffs provide Ford sales data, dated 1987, which show

8

that just 34 percent of the passenger cars sold in 1984 contained asbestos-free disc

9

brakes. (Adams Decl. (Dkt. # 610) ¶ 2, Ex. J at 92.)21 David Jack’s testimony supports a

10

reasonable inference that the Mustang still contained its original parts when Mr. Jack

11

removed its front and rear brakes. On the basis of this evidence, a reasonable juror could

12

conclude that Mr. Jack may have sustained some degree of asbestos exposure when

13

removing the Mustang’s front disk brakes. Accordingly, partial summary judgment on

14

the issue of the front disc brakes is not appropriate.

15

iii.

16

Pontiac Race Car and 1964 Ford Ranchero

Plaintiffs argue that Mr. Jack suffered asbestos exposure from Ford products in

17

connection with two other personal vehicles: a Pontiac race car and a 1964 Ford

18

Ranchero. (Pl. Resp. Ford at 3-4.) Ford contends that Plaintiffs fail to establish exposure

19

with respect to both vehicles. (Ford Rep. (Dkt. # 629) at 4-6.)

20

//

21
22

21

The court cites the page number at the lower right-hand corner of the document.

ORDER - 35

1

Mr. Jack testified that on at least one occasion, he used a set of Ford brakes on one

2

of his Pontiac race cars. (Jack Perp. Dep. at 169:13-18.) From the record, it is not clear

3

whether Mr. Jack installed or removed—or installed and removed—the Ford brakes on

4

the Pontiac. (See id.) However, Dr. Brodkin’s report identifies Ford brakes as among

5

those brands “installed . . . on [Mr. Jack’s] Pontiac drag racers between 1960-1966,” and

6

states that Mr. Jack “grinded” those brakes. (Brodkin Rep. § 2 at 12.) Additionally,

7

Plaintiffs provide materials that indicate that any Ford brakes Mr. Jack purchased in the

8

1960s would have contained asbestos. (Ford 1984 Interrog. at 8:10-12 (Ford answers to

9

interrogatories in unrelated case showing that before at least 1984, after-market or

10

replacement brake linings sold by Ford “always contained asbestos”).) Based on this

11

evidence, a juror could reasonably find that Mr. Jack sustained asbestos exposure when

12

installing Ford brakes on his Pontiac race car.

13

Ford disputes that a reasonable factfinder could conclude that Mr. Jack ever used

14

Ford brakes on his Pontiac race car. (See Ford Rep. at 4-5.) Ford first emphasizes that

15

Mr. Jack testified that he did not recall purchasing clutches or brakes from a Ford dealer

16

for his personal automotive work. (Jack Disc. Dep. at 154:3-14.) Additionally, Ford

17

draws attention to Mr. Jack’s admission that he could not affirmatively identify a single

18

manufacturer or supplier of the friction materials to which he was exposed in connection

19

with his brake work. (Id. at 561:24-562:18.) These statements may well undercut

20

Plaintiffs’ ability to prove at trial that Mr. Jack encountered Ford asbestos products when

21

performing brake work on the Pontiac, but they are not conclusive against Plaintiffs at

22

summary judgment. See Anderson, 477 U.S. at 255.

ORDER - 36

1

As to the 1964 Ford Ranchero, Plaintiffs rely entirely on the testimony of Mr.

2

Jack’s son, David Jack. David Jack testified that in approximately 1986, he and Mr. Jack

3

purchased a used 1964 Ford Ranchero. (David Jack Dep. at 102:2-11.) According to

4

David Jack, he and Mr. Jack performed a “complete rebuild” of the Ranchero soon after

5

they purchased it, including clutch and brake replacements. (Id. at 102:13.) Recalling

6

the Ranchero’s “well used and well loved” condition, David Jack claimed that the vehicle

7

still contained its “factory” parts—that is, original manufacturer equipment. (Id. at

8

105:9-13.)22 Plaintiffs’ evidence shows that like any Ford car manufactured in the 1960s,

9

the Ranchero would have gone to market with asbestos-containing brakes. (Taylor Dep.

10

2009 at 13:24-16:3; Ford 1984 Interrog. at 8:10-12.) As Ford points out, Dr. Brodkin’s

11

report is silent on the Ranchero. (Ford Rep. at 5; see generally Brodkin Rep.) If David

12

Jack’s testimony is believed, however, the jury could reasonably infer that the Ranchero

13

contained its original parts when he and Mr. Jack rebuilt it in 1986, and that Mr. Jack

14

sustained some degree of asbestos exposure as a result of removing the clutch and brakes.

15

//

16

//

17
18
19
20
21
22

Ford argues that “Plaintiffs provided absolutely no admissible evidence to support
David Jack’s speculation that any work his father may have done on this used vehicle purchased
in 1986 with 160,000 miles involved the removal of Ford OEM [original equipment
manufacturer] parts.” (Ford Rep. (Dkt. # 629) at 6-7.) However, Ford makes no specific
evidentiary objections in its motion or reply. (See Ford MSJ; Ford Rep. (Dkt. # 629).)
Additionally, Ford made no objections on the record during David Jack’s deposition testimony
on the Ranchero. (See David Jack Dep. at 102:2-105:13.) A party waives certain objections,
such as to the form of questions or answers or to other errors that might be obviated, removed, or
cured if promptly presented, by failing to make the objection at the deposition. See Fed. R. Civ.
P. 32(d)(3)(B).
22

ORDER - 37

1

Ford is free to interrogate at trial the causal significance—or insignificance—of Mr.

2

Jack’s overhaul of the Ranchero.23

3

In sum, the court concludes that Plaintiffs raise triable issues of fact as to whether

4

Mr. Jack was exposed to asbestos from Ford products when performing brake work at

5

Dexter and on his Pontiac race car; when removing the front disc brakes and rear drum

6

brakes from the 1984 Mustang; and when overhauling the 1964 Ranchero. The court

7

grants partial summary judgment to Ford with respect to Mr. Jack’s work with Ford

8

clutches at Dexter.

9

c. Borg-Warner

10

Borg-Warner moves for summary judgment on two grounds: (1) Plaintiffs cannot

11

show that Mr. Jack was exposed to asbestos through Borg-Warner products, and (2) even

12

if Mr. Jack’s use of Borg-Warner products exposed him to asbestos, that exposure was

13

not a substantial factor in causing his disease. (Borg-Warner MSJ at 1.)

14

i.

Exposure

The parties’ submissions discuss three sources of Mr. Jack’s alleged exposure to

15
16

Borg-Warner-attributable asbestos: (1) Mr. Jack’s installations of Borg-Warner clutches,

17

(2) removals of Borg-Warner clutches, and (3) use of Borg-Warner brakes on his Pontiac

18

//

19
20
21
22

In its reply, Ford obliquely raises a causation defense only with respect to Mr. Jack’s
work on the 1964 Ranchero. (See Ford Rep. at 5 (“Plaintiffs made no effort in their Response to
supplement Dr. Brodkin’s Report to create a triable issue on whether this work caused Mr. Jack’s
disease.”).) Ford failed to assert a causation defense in its motion, however. (See Ford MSJ.)
The court need not consider arguments introduced for the first time in a reply brief. See Zamani
v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007).
23

ORDER - 38

1

race cars. Unhelpfully, Plaintiffs’ response to Borg-Warner’s motion, counsels’

2

deposition questions, and Mr. Jack’s testimony often refer to “clutch work” and “clutch

3

jobs” generally, rather than the specific categories of exposure listed above. (See, e.g.,

4

Pl. Resp. at 3; Jack Disc. Dep. at 716:22-23 (“Well, I did a lot of clutch work in the shop

5

that I knew we used BorgWarner clutches in.”).) Such imprecise language leaves unclear

6

whether a particular job required that Mr. Jack install a Borg-Warner clutch, remove a

7

Borg-Warner clutch, or both. These distinctions are significant: whereas clutch

8

installations are associated with “de minimus” asbestos exposure, clutch removals can

9

generate more meaningful amounts of asbestos dust. (See Brodkin Dep. at 113:14-

10

114:2.) Because the court must draw all reasonable inferences in favor of the nonmoving

11

party, see Scott, 550 U.S. at 378, the court construes the phrases “clutch job” and “clutch

12

work” to potentially encompass clutch removals. Borg-Warner is entitled to dispute that

13

construction at trial.

14

At his deposition, Mr. Jack testified that he installed “ten or more” Borg-Warner

15

clutches during his professional automotive work (Jack Disc. Dep. at 166:24-167:8) and

16

“eight to ten” Borg-Warner clutches on personal vehicles and vehicles owned by family

17

and friends (id. at 713:23-714:3). Plaintiffs cannot show that Mr. Jack suffered

18

potentially causally significant asbestos exposure as a result of any of these installations,

19

however. Dr. Brodkin testified that installing or handling an asbestos-containing clutch

20

disc merely results in “a de minimus exposure”; unless a user abrades or sands the clutch

21

face, a clutch installation “likely releases some fibers,” but does not constitute a

22

“biologically significant” event (Brodkin Dep. at 113:14-114:2) and “does not increase

ORDER - 39

1

the risk for disease” (id. at 42:15-21). In his discovery deposition, Mr. Jack

2

unequivocally testified that he never sanded or abraded the face of a new clutch disc

3

before installing it. (Jack Disc. Dep. at 169:4-18). Plaintiffs point to no additional

4

portions of Mr. Jack’s testimony that would tend to cast doubt on this admission. (See Pl.

5

Resp. Borg-Warner.) Nor do Plaintiffs provide other evidence to suggest that a clutch

6

installation could increase one’s risk for developing mesothelioma. (See id.)

7

Accordingly, the court finds that Borg-Warner is entitled to partial summary judgment

8

with respect to Mr. Jack’s installations of Borg-Warner clutches.

9

With respect to the removal of Borg-Warner clutches, the record is less clear.

10

Borg-Warner argues that Plaintiffs’ evidence shows that Mr. Jack removed only one

11

Borg-Warner clutch in his lifetime: a Borg-Warner clutch he installed, and then

12

removed, for a repeat customer at Dexter. (Borg-Warner MSJ at 6.) Plaintiffs, in

13

contrast, suggest that Mr. Jack identified at least three specific vehicles from which he

14

removed Borg-Warner clutches: (1) the Dexter customer’s vehicle, (2) a 1946 Chevrolet,

15

and (3) his 1962 Pontiac race car. (Pl. Resp. Borg-Warner at 2-5.) Additionally, as

16

Plaintiffs emphasize, Mr. Jack testified that in the course of his personal and professional

17

automotive work, he worked with Borg-Warner clutches in connection with “lots” of

18

cars. (Jack Disc. Dep. at 695:12-16.) Finally, Plaintiffs argue that Mr. Jack removed

19

Borg-Warner clutches from the Ford tow trucks he maintained at Apex. (Pl. Resp. Borg-

20

Warner at 4.) The court examines the evidence with respect to each of the alleged

21

exposures related to Mr. Jack’s removal of Borg-Warner clutches.

22

//

ORDER - 40

1

At his perpetuation deposition, Mr. Jack testified that at some point in the

2

mid-1950s, he “did a clutch” on his 1946 Chevrolet (Jack Perp. Dep. at 38:21-40:6).

3

Plaintiffs’ evidence shows that 1946 Chevrolets featured asbestos-containing Borg &

4

Beck-brand clutches (Adams Decl. (Dkt. # 614) ¶ 2, Ex. G), a trade name for Borg-

5

Warner (Adams Decl. (id. ¶ 2, Ex. H at 5). However, Plaintiffs provide no evidence

6

whatsoever that the clutch Mr. Jack removed from the Chevrolet was the original part.

7

Mr. Jack gave no testimony to that effect. (See Jack Perp. Dep. 38:21-40:6.) It is unclear

8

when Mr. Jack acquired the Chevrolet, if it was new or used when it came into his hands,

9

and whether its previous owners, if any, had replaced the clutch before selling it. In light

10

of this gap in the record, Plaintiffs’ summary assertion that “[t]he clutch [Mr. Jack]

11

removed [from the Chevrolet] was manufactured by Borg & Beck and contained

12

asbestos,” is without support. See Brown v. Crown Cork & Seal Co., No. 54039-4-I,

13

2005 WL 518990, at *3 (Wash. Ct. App. Mar. 5, 2005) (granting summary judgment to

14

brake manufacturer where “[n]othing in the record indicate[d] . . . whether the original

15

brakes were still on [the] cars” plaintiff serviced). Because Plaintiffs provide no evidence

16

that Borg-Warner manufactured or supplied the clutch Mr. Jack removed from the

17

Chevrolet, Plaintiffs cannot put that particular clutch work before the jury.

18

Similarly, the record does not support the conclusion that Mr. Jack was exposed to

19

Borg-Warner-attributable asbestos when he replaced the clutches of the Ford tow trucks

20

at Apex. In his perpetuation deposition, Mr. Jack testified that he performed four to six

21

“clutch jobs” on the Ford tow trucks, and said he acquired the parts for such maintenance

22

from a local Ford dealer. (Jack. Perp. Dep. 19:15-20.) Later, in response to unrelated

ORDER - 41

1

questioning during his discovery deposition, Mr. Jack testified that during his personal

2

and professional automotive work, “usually when [he] got parts from [a] Ford dealer, a

3

lot of them were identified either on the clutch or the box as BorgWarner.” (Jack Disc.

4

Dep. at 696:21-25.) Plaintiffs stitch together these two pieces of testimony to argue that

5

“while at Apex, [Mr. Jack] worked on large tow trucks using BorgWarner clutches.” (Pl.

6

Resp. Borg-Warner at 7 n.6.) That contention is utterly speculative: Mr. Jack never

7

testified that he used Borg-Warner clutches when performing clutch work at Apex;

8

Plaintiffs provide no evidence that Mr. Jack purchased Borg-Warner clutches from a Ford

9

dealer while working at Apex; and Mr. Jack remarked on the Ford-Borg-Warner

10

“association” when speaking generally about his automotive work, not about Apex. (See

11

Jack Disc. Dep. at 696:21-25.) In short, there is insufficient evidence to avoid summary

12

judgment on the claim that Mr. Jack removed Borg-Warner clutches at Apex.

13

In contrast, a reasonable factfinder could infer that Mr. Jack sustained asbestos

14

exposure when removing Borg-Warner clutches from his 1962 Pontiac race car. Mr. Jack

15

testified that he “did three clutch jobs” on his Pontiac race car, recalling that he “used

16

BorgWarner” clutches “on two of those” jobs. (Jack Disc. Dep. at 713:1-4.) Plaintiffs

17

furnish specifications from the Automobile Manufacturers Association that show that

18

1962 Pontiacs featured Borg & Beck asbestos-containing clutches. (Pontiac Specs. at

19

108-109.) As Plaintiffs emphasize, Mr. Jack testified that he removed clutches from

20

“underneath [the] car in a confined area”; that clutch removals generated fine dust; and

21

that he used compressed air to blow out the clutch bell-housings. (Jack Perp. Dep.

22

70:6-71:12.) In reply, Borg-Warner emphasizes that Mr. Jack testified at his discovery

ORDER - 42

1

deposition that he did not believe he had ever installed or removed a Borg-Warner clutch

2

on the 1962 Pontiac. (Jack Disc. Dep. at 170:6-14.) That discrepancy raises issues of

3

credibility for a factfinder to resolve, see Matsushita Elec. Indus. Co., 475 U.S. at 587,

4

but at the summary judgment phase does not preclude the court from considering Mr.

5

Jack’s earlier testimony.

6

Additionally, the court finds that Plaintiffs provide evidence sufficient to create

7

issues of material fact with respect to other Borg-Warner clutches Mr. Jack may have

8

removed during other automotive work. Mr. Jack stated that he “did several clutch jobs”

9

involving Borg-Warner clutches “in the shop,” apparently referring to his professional

10

automotive work at Dexter. (Jack Perp. Dep. 149:13-18.) Mr. Jack additionally testified

11

he “did BorgWarner clutches” on “four or five specific personal vehicles.” (Jack Disc.

12

Dep. at 713:7-16.) Elsewhere in his testimony, in response to a question about “installing

13

and removing BorgWarner clutches,” Mr. Jack stated that he did so on “lots” of vehicles.

14

(Id. at 695:12-16.) Borg-Warner argues that this testimony is inconsistent with Mr.

15

Jack’s admissions that he could not recall removing a Borg-Warner clutch in his personal

16

automotive work (id. at 174:14-17) or from any vehicle at Dexter, apart from that

17

belonging to the repeat customer (id. at 169:19-23). Again, those discrepancies create

18

credibility issues for trial, but cannot be resolved at summary judgment. See Anderson,

19

477 U.S. at 255. Mr. Jack’s identification of Borg-Warner clutches, together with

20

Plaintiffs’ evidence that Borg-Warner sold asbestos-containing clutches into the 1980s, is

21

sufficient to create issues of material fact as to whether Mr. Jack sustained asbestos

22

//

ORDER - 43

1

exposure when removing Borg-Warner clutches on personal vehicles and during his

2

professional automotive work.

3

Finally, Plaintiffs argue that Mr. Jack was exposed to asbestos in connection with

4

Borg-Warner brakes. (Pl. Resp. at 4.) Mr. Jack testified that he used Borg-Warner

5

brakes on various race cars between the 1960s and approximately 2007. (Jack Perp. Dep.

6

169:13-18; 208:3-209:14.) But Plaintiffs offer no evidence that Borg-Warner

7

manufactured or sold asbestos-containing brakes during the relevant period. (See Pl.

8

Resp. Borg-Warner.) Accordingly, Plaintiffs cannot show that Mr. Jack sustained

9

asbestos exposure from Borg-Warner brakes.

10

In sum, viewing the record in the light most favorable to Plaintiffs, the court finds

11

that there is no evidence that Mr. Jack was exposed to asbestos attributable to Borg-

12

Warner when working on his 1946 Chevrolet and the Ford tow trucks, or in connection

13

with Borg-Warner brakes. However, the court finds that Plaintiffs provide sufficient

14

evidence to raise a reasonable inference that Mr. Jack was exposed to asbestos when

15

removing Borg-Warner clutches from the repeat Dexter customer’s vehicle, from one of

16

his Pontiac race cars, and during other automotive work. The court now turns to

17

causation.

18
19

ii.

Causation

Borg-Warner contends that Plaintiffs’ evidence is insufficient to establish that Mr.

20

Jack’s work with Borg-Warner clutches was a substantial factor in causing his

21

mesothelioma. (Borg-Warner MSJ at 10-18.) Specifically, Borg-Warner raises the

22

following arguments: (1) Plaintiffs can show that Mr. Jack was exposed to asbestos only

ORDER - 44

1

in connection with one clutch removal, a one-time exposure that on its own is incapable

2

of constituting a substantial factor; and (2) Dr. Brodkin’s opinions on medical causation

3

are impermissibly speculative. (Id.) The court disagrees on both points.

4

Borg-Warner first asserts that Plaintiffs’ causation evidence “rests entirely on that

5

one single instance in which [Mr. Jack] removed a Borg-Warner clutch disc” from the

6

repeat Dexter customer’s vehicle. (Borg-Warner MSJ at 15.) Borg-Warner is correct

7

that Plaintiffs cannot show that Mr. Jack’s installations of Borg-Warner clutches were

8

causally significant. (See supra § III.C.3.d.i.) But as discussed above, Plaintiffs’

9

evidence gives rise to a reasonable inference that Mr. Jack removed multiple Borg-

10

Warner clutches—including at least two from his Pontiac racecar, “four or five” from his

11

personal vehicles, and “several” during his professional automotive work. (See supra

12

§ III.B.2.c.i.) Thus Plaintiffs are not, as Borg-Warner claims, tasked with showing that

13

“one removal alone” substantially caused Mr. Jack’s disease. (Borg-Warner MSJ at 15.)

14

Under Lockwood, 744 P.2d at 613, a reasonable factfinder could conclude that Mr.

15

Jack’s removals of Borg-Warner clutches exposed him to asbestos in an aggregate

16

amount sufficient to constitute a substantial factor in causing his mesothelioma. The first

17

two Lockwood factors concern Mr. Jack’s proximity to the asbestos product and the

18

expanse of the worksite. Id. Mr. Jack testified that he removed clutches while situated

19

“underneath a car in a confined area”; as a result, he was in close proximity to both the

20

clutches and the dust that the clutch removals generated. (Jack Perp. Dep. 70:6-71:12.)

21

The third factor, “the extent of time that the plaintiff was exposed to the product,”

22

Lockwood, 744 P.2d at 613, is not readily apparent from the record; however, Mr. Jack’s

ORDER - 45

1

Borg-Warner clutch work occurred at various points over the course of several decades.

2

(See Brodkin Rep. § 2 at 14 (indicating that Mr. Jack worked with “lots” of Borg-Warner

3

clutches between 1955 and 1986).) The next factors—the types of asbestos products

4

involved and the ways in which the products were handled, Lockwood, 744 P.2d at 613

5

—weigh in Plaintiffs’ favor. Clutch changes and removals are associated with “high

6

airborne asbestos concentration,” making it more likely that Mr. Jack sustained

7

“significant asbestos exposure” when removing Borg-Warner clutches. (Brodkin Rep. at

8

§ 5 at 4.) Finally, Plaintiffs provide evidence of medical causation, see Lockwood, 744

9

P.2d at 613, through Dr. Brodkin’s testimony and report. According to Dr. Brodkin, Mr.

10

Jack’s work with Borg-Warner clutches, including clutch removals and blowouts,

11

constituted “a significant component of Mr. Jack’s cumulative exposure” to asbestos.

12

(Brodkin Dep. at 118:22-119:13.)

13

Borg-Warner disputes both the factual premises and reliability of Dr. Brodkin’s

14

medical opinions. First, Borg-Warner asserts that Dr. Brodkin’s report “is not supported

15

by Decedent’s testimony,” and identifies a number of places where the information

16

documented in his report apparently diverges from Mr. Jack’s deposition testimony.

17

(Borg-Warner MSJ at 9.) Consequently, Borg-Warner argues, Dr. Brodkin’s opinions

18

“are not based on fact.” (Id. at 17.) The court cannot, at this phase, impeach Dr.

19

Brodkin’s conclusions. Rather, the factual discrepancies Borg-Warner raises are for the

20

jury to weigh at trial. See Hangarter v. Provident Life and Acc. Ins. Co., 373 F.3d 998,

21

1117 n.14 (9th Cir. 2004) (emphasizing that “questions regarding the nature of [an

22

expert’s] evidence [go] more to the ‘weight’ of his testimony—an issue properly explored

ORDER - 46

1

during direct and cross-examination”). Second, Borg-Warner contends that Dr. Brodkin

2

bases his medical opinions, in part, on “unreliable interpretations” of two scientific

3

studies on brake work exposure. (Borg-Warner MSJ at 18.) The court already

4

considered those criticisms when resolving Ford’s motion to exclude Dr. Brodkin, and

5

found that they were issues for cross examination. (See 8/10/2018 Order at 35-36

6

(concluding that “[t]he Kauppinen Study, combined with the other studies on clutches [on

7

which Dr. Brodkin relied], constitute a sufficient scientific basis for Dr. Brodkin’s

8

conclusion”).)

9

In light of the foregoing, a reasonable factfinder could conclude that Mr. Jack was

10

exposed to asbestos as a result of removing Borg-Warner clutches and that such exposure

11

was a substantial factor in causing his mesothelioma. Accordingly, the court denies

12

Borg-Warner’s motion for summary judgment on the issue of Mr. Jack’s removal of

13

Borg-Warner clutches.

14

3. Ms. Jack’s Recovery for Loss of Consortium

15

Plaintiffs’ second amended complaint, filed after Mr. Jack’s death, asserts that Ms.

16

Jack “has suffered and will suffer damages for loss of companionship, services, and

17

consortium.” (SAC ¶ 52.) Ford and Borg-Warner urge the court to dismiss Ms. Jack’s

18

claim for loss of consortium because she married Mr. Jack after he was diagnosed with

19

mesothelioma. (Ford MSJ at 8; Borg-Warner MSJ at 19-21.) They argue that under

20

Washington law, a spouse is barred from recovering for loss of consortium where the

21

injury that caused the loss precedes the marriage. (Id.) Plaintiffs respond that Ms. Jack

22

seeks loss of consortium damages on the basis of Washington’s wrongful death statute,

ORDER - 47

1

RCW 4.20.010-.020, which provides for such damages regardless of whether the injury

2

predates the marriage. (Pl. Consolidated Resp. at 3-9.)
Washington law defines loss of consortium as the loss of the “society, affection,

3
4

assistance and conjugal fellowship” of one’s spouse. Ueland v. Reynolds Metals Co., 691

5

P.2d 190, 191 n.1 (Wash. 1984) (quoting Black’s Law Dictionary (5th ed. 1979)). The

6

spouse who suffers bodily injury is generally referred to as the “impaired spouse,” while

7

the spouse who suffers the loss of consortium is referred to as the “deprived spouse.”

8

Reichelt v. Johns-Manville Corp., 733 P.2d 530, 536-37 (Wash. 1987).

9

Washington courts distinguish between common law loss of consortium claims

10

and statutory wrongful death actions in which loss of consortium constitutes a measure of

11

damages. See Hatch v. Tacoma Police Dep’t, 27 P.3d 1223, 1223-24 (Wash. Ct. App.

12

2001); Ginochio v. Hesston Corp., 733 P.2d 551, 553 (Wash. Ct. App. 1987). A claim

13

for loss of consortium where the impaired spouse has not died is an independent cause of

14

action governed by the common law. Ginochio, 733 P.2d at 553. Historically, common

15

law did not recognize claims for “post-death damages.” Hatch, 27 P.3d at 1224. Under

16

Washington’s wrongful death statute, however, the “personal representative” of a

17

decedent may bring an action for damages “against the person causing the death,” as long

18

as the action accrues to the “benefit” of the decedent’s spouse or children. RCW

19

4.20.010-.020. In a wrongful death suit, post-death loss of consortium “is not an

20

//

21

//

22

//

ORDER - 48

1

independent cause of action,” but rather an “element” of the damages recoverable under

2

the statute. Ginochio, 733 P.2d at 553.24

3

A common law loss of consortium claim does not lie where the injury to the

4

impaired spouse predates the marriage. Green v. Am. Pharm. Co., 960 P.2d 912, 918

5

(Wash. 1998); see also Thykkuttathil v. Keese, No. C12-1749RSM, 2013 WL 2458739, at

6

*2 (W.D. Wash. Jun. 6, 2013).25 This limitation reflects three rationales: “(1) a person

7

should not be permitted to marry a cause of action; (2) one assumes with a spouse the risk

8

of deprivation of consortium arising from any prior injury; and (3) as a matter of policy,

9

tort liability should be limited.” Green, 960 P.2d at 918 (citing Stager v. Schneider, 494

10

A.2d 1307, 1315 (D.C. App. 1985)). Washington courts and federal courts applying

11

Washington law have declined to recognize exceptions to the prohibition against loss of

12

consortium claims based on pre-marital injuries, even where the deprived spouse

13

sustained a marriage-like relationship with the impaired spouse when the injury occurred.

14

See, e.g., Roosma v. Pierce Cty., No. C16-5499RJB, 2018 WL 784590, at *9 (W.D.

15

Wash. Feb. 8, 2018); Vance v. Farmers Ins. Co., No. 76092-1-I, 2017 WL 4883353, at *4

16

(Wash. Ct. App. Oct. 30, 2017).

17
18
19
20

The measure of damages under the wrongful death statute is the “actual pecuniary loss
suffered by the surviving beneficiaries.” Parrish v. Jones, 722 P.2d 878, 881 (Wash. Ct. App.
1986). “Pecuniary loss” has been held to include not only the monetary contributions the
decedent would have made to the beneficiary, but also intangible losses such as the loss of the
decedent’s support, services, love, care, companionship, and consortium. Id.
24

25

21
22

The Green court recognized a narrow exception to the general rule against recovery for
premarital injuries in toxic exposure cases, where the injured spouse does not or cannot know of
the injury at the time of the marriage. Green, 960 P.2d at 919. No party argues that the
exception for latent and unknown injuries applies here.

ORDER - 49

1

The parties dispute whether Green governs Ms. Jack’s claim for loss of

2

consortium damages. Plaintiffs assert that Green does not apply, because Ms. Jack’s

3

claim is tethered to the wrongful death statute, under which the date of the spouses’

4

marriage is immaterial. (Pl. Consolidated Resp. at 4-9.) Defendants, on the other hand,

5

argue that Green’s “bright-line” prohibition against recovery for premarital injuries

6

extends to wrongful death claims. (Borg-Warner Rep. at 7; Ford Rep. at 6.) Under that

7

logic, Ms. Jack cannot recover such damages because she married Mr. Jack after he was

8

diagnosed with mesothelioma. (Id.) To that end, Ford suggests that recovery for

9

premarital injuries is barred when a loss of consortium claim is “converted” into a

10

statutory wrongful death action, because both types of claims are born on “the date of

11

injury.” (Ford Rep. at 6 (emphasis omitted).)

12

To the court’s knowledge, neither the Washington Supreme Court nor the state

13

Court of Appeals has considered the issue the parties raise: whether a spouse who brings

14

a statutory wrongful death claim may recover for loss of consortium where the marriage

15

occurs after the injury that precipitates the decedent’s death. Accordingly, the court

16

“must resort to other authority and exercise [its] own best judgment” in determining how

17

the Washington Supreme Court would resolve the issue. Burns v. Int’l Ins. Co., 929 F.2d

18

1422, 1424 (9th Cir. 1991).

19

To begin, the court looks to the wrongful death statute itself. When a federal court

20

sitting in diversity interprets a state statute, it must apply state rules of statutory

21

construction. In re First T.D. & Inv., Inc., 253 F.3d 520, 527 (9th Cir. 2001). Under

22

Washington law, “[the court’s] objective in construing a statute is to determine the

ORDER - 50

1

legislature’s intent.” In re Estate of Blessing, 273 P.3d 975, 976 (Wash. 2012). Where

2

the statutory language is unambiguous, the court must refrain from adding to the statute

3

words or clauses the legislature chose not to include. State v. Kintz, 238 P.3d 470, 477

4

(Wash. 2010). Rather, “the court should assume that the legislature means exactly what

5

it says.” Davis v. Dep’t of Licensing, 977 P.2d 554, 556 (Wash. 1999) (internal quotation

6

marks and citation omitted).

7

On its face, the wrongful death statute is unambiguous. It provides that a wrongful

8

death claim is cognizable if two criteria are satisfied: (1) the action is brought by the

9

decedent’s personal representative, RCW 4.20.010, and (2) the action is brought for the

10

benefit of the decedent’s “wife, husband, state registered domestic partner, child or

11

children,” RCW 4.20.020. The statute does not constrict the definition of “wife [or]

12

husband” to persons married to the decedent at the time of injury. Id. To read into the

13

statute the common law limitation on loss of consortium claims would be to alter the

14

plain language of the statute in a way the legislature did not authorize. If the legislature

15

wanted to restrict loss of consortium damages to persons married to the decedent at the

16

time of injury, it could have said so in the statute.

17

Additionally, out-of-state authority overwhelmingly recognizes the right of a

18

spouse to recover under a wrongful death statute where the injury precedes the marriage.

19

See Domino’s Pizza, LLC v. Wiederhold, No. 5D16-2794, 2018 WL 2165224, at *5 (Fla.

20

Dist. Ct. App. May 11, 2018) (“[V]irtually every out-of-state case to address this issue

21

has held that a spouse is not required to be married at the time of injury to pursue a

22

statutory wrongful death claim.”). Several courts emphasize that a cause of action for

ORDER - 51

1

wrongful death vests in the surviving spouse on the date of the decedent’s death, not the

2

date of injury. See, e.g., Corley v. Louisiana, 749 So.2d 926, 941 (La. Ct. App. 1999)

3

(“The only relevant time for the determination of the relationship between potential

4

claimants and the decedent is the date of death.”); Lovett v. Garvin, 208 S.E. 2d 838, 840

5

(Ga. 1974) (“Nothing in the language of [the wrongful death] statute states or implies that

6

the husband must be married to the wife at the time the injuries from which she

7

subsequently dies are inflicted.”).

8
9

Defendants collectively identify just one case in which a wrongful death statute
was held to bar loss of consortium damages where the surviving spouse married the

10

decedent after the injury. In Kelly v. Georgia-Pacific, LLC, 211 So.3d 340, 342-45 (Fl.

11

Dist. Ct. App. 2017), the Florida District Court of Appeals concluded that because the

12

state’s wrongful death act did not “unequivocally” abrogate or supersede the common

13

law marriage-at-the-time-of-injury rule, that rule was implicitly incorporated into the

14

statute. As a result, the court held that the plaintiff, who married the decedent after his

15

mesothelioma diagnosis, could not recover consortium damages as part of her wrongful

16

death suit. Id. at 342. Notwithstanding the factual parallels between Kelly and Ms.

17

Jack’s claim, the court is unpersuaded that Washington courts would adopt Kelly’s

18

reasoning. Washington’s wrongful death statute grants a decedent’s survivors an

19

independent cause of action that was not recognized at common law. See RCW

20

4.20.010-.020. Importing into the statute common law principles that constrain the scope

21

of the remedies the statute expressly provides would contravene legislative purpose and

22

intent. See Kelly, 211 So.3d at 347 (Taylor, J., dissenting) (“[Florida’s wrongful death]

ORDER - 52

1

statute gives a right of action not had under common law and it must be limited strictly to

2

the meaning of the language employed and not extended beyond its plain and explicit

3

terms.”). Additionally, the court notes that another division of the Florida District Court

4

of Appeals recently rejected the Kelly court’s reasoning, emphasizing that Kelly does not

5

accord with the weight of authority. Wiederhold, 2018 WL 2165224, at *5.

6

Finally, the court considers whether the policy rationales cited in Green, 960 P.2d

7

at 918, would be served by barring a wrongful death plaintiff from recovering for loss of

8

consortium where the decedent’s injury predates the marriage. The “assumption of risk”

9

rationale arguably disfavors Ms. Jack’s claim for loss of consortium: Ms. Jack likely

10

married Mr. Jack with the knowledge that mesothelioma is almost always fatal. The

11

other two considerations discussed in Green have less force in the context of a wrongful

12

death claim, however. First, a cause of action for wrongful death vests on the date of the

13

decedent’s death, not the date of injury. See Corley, 749 So.2d at 941; Lovett v. Garvin,

14

208 S.E. 2d at 840. The surviving spouse thus cannot be said to “marry into” the

15

wrongful death claim, in contrast to a plaintiff who marries the impaired spouse in full

16

view of the spouse’s injuries and then brings a common law loss of consortium claim.

17

Second, the statute itself limits potential defendants’ liability to a narrow class of

18

foreseeable beneficiaries. See RCW 4.20.020 (limiting recovery to spouse, registered

19

domestic partner, or child of the decedent). Accordingly, allowing claims like Ms. Jack’s

20

to proceed “does not expose a tortfeasor to unbounded liability.” Green, 960 P.2d at 919.

21

For the foregoing reasons, the court finds that Washington’s wrongful death

22

statute, RCW 4.20.010-.020, provides Ms. Jack a cause of action to seek damages for loss

ORDER - 53

1

of consortium arising from Mr. Jack’s death. At trial, Ms. Jack must show that she

2

satisfies the requirements of the statute—that is, that she is Mr. Jack’s personal

3

representative and is bringing the action for her benefit as his wife. See RCW

4

4.20.010-.020. However, Ms. Jack is barred from seeking damages for any loss of

5

consortium she may have suffered during Mr. Jack’s lifetime, as she and Mr. Jack were

6

not married at the time of his alleged injuries. See Green, 960 P.2d at 918. Accordingly,

7

the court grants in part and denies in part Defendants’ motions for summary judgment

8

with respect to Ms. Jack’s claim for loss of consortium.26

9
10

4. Concert of Action and Conspiracy, Premises Liability, and “Catch-All” Claims
In addition to product liability claims, Plaintiffs’ complaint asserts, inter alia,

11

claims “based upon the theories of . . . concert of action and conspiracy, premises

12

liability, the former RCW 49.16.030, and any other applicable theory of liability.” (SAC

13

¶ 45.) Ford seeks summary judgment on all claims against Ford based on theories of

14
15
16
17
18
19
20
21
22

Former Defendant Honeywell International, Inc. (“Honeywell”) moved for summary
judgment on Ms. Jack’s “claims for loss of consortium and for loss of household services” on the
same grounds discussed above, i.e., that because Ms. Jack married Mr. Jack after his diagnosis,
those claims fail as a matter of law. (See Honeywell MSJ (Dkt. # 481) at 3.) DCo and Ford
joined Honeywell’s motion for partial summary judgment (DCo Not. of Joinder (Dkt. # 484);
7/19/2018 Order (Dkt. # 529) (granting Ford’s motion for joinder).) Honeywell and Plaintiffs
have since reached settlement. (See Dkt. # 698.) To the extent the household services issue
remains before the court on account of DCo and Ford’s joinder in Honeywell’s motion, the court
finds that Ms. Jack is not as a matter of law barred from seeking damages for loss of household
services incurred after Mr. Jack’s death. Those damages are recoverable under Washington’s
wrongful death statute, RCW 4.20.010-.020, which for the reasons discussed above provides Ms.
Jack a cause of action. See Parrish v. Jones, 722 P.2d 878, 881 (Wash. Ct. App. 1986) (stating
that wrongful death statute permits recovery for “the actual pecuniary loss suffered by the
surviving beneficiaries,” a measure of damages that includes both lost monetary contributions
and loss of consortium). However, Ms. Jack may not recover for any loss of household services
incurred before Mr. Jack’s death.
26

ORDER - 54

1

liability other than product liability. (Ford MSJ at 8.) Former Defendant Honeywell

2

similarly sought summary judgment on Plaintiffs’ non-product liability claims.

3

(Honeywell MSJ (Dkt. # 481) at 4-5.) DCo joined Honeywell’s motion. (DCo Not. of

4

Joinder.) In their consolidated response, Plaintiffs “withdraw[] the claims, as to these

5

Defendants, for concert of action and conspiracy, premises liability, and any other

6

applicable theory of liability.” (Pl. Consolidated Resp. at 12.) Accordingly, the court

7

denies as moot Ford and DCo’s motions for summary judgment on all non-product

8

liability claims.

9

5. Punitive Damages

10

Honeywell moved for summary judgment on Plaintiffs’ claims for punitive

11

damages on the ground that Washington law does not contemplate punitive damages for

12

tort claims. (Honeywell MSJ at 3; see also SAC ¶ 55.B.) Ford and DCO joined

13

Honeywell’s motion. (DCo Not. of Joinder; 7/19/2018 Order (granting Ford’s motion for

14

joinder).) In their consolidated response, “Plaintiffs concede they will not pursue any

15

punitive damages claim.” (Pl. Consolidated Resp. at 12.) The court thus denies as moot

16

DCo and Ford’s motions for summary judgment on Plaintiffs’ claims for punitive

17

damages.

18

6. Summary

19

The court grants Union Pacific’s motion for summary judgment. Additionally, the

20

court grants partial summary judgment to Ford on the issue of Mr. Jack’s work with Ford

21

clutches at Dexter. However, the court denies Ford’s motion with respect to Plaintiffs’

22

allegations of asbestos exposure in connection with Mr. Jack’s brake work at Dexter and

ORDER - 55

1

on his Pontiac race car, his removal of the 1984 Mustang’s front disc brakes and rear

2

drum brakes, and his overhaul of the 1964 Ranchero. The court further grants partial

3

summary judgment to Borg-Warner on the issues of Mr. Jack’s installations of Borg-

4

Warner clutches, Mr. Jack’s maintenance of the Apex tow trucks, and Mr. Jack’s use of

5

Borg-Warner brakes. The court denies Borg-Warner’s motion with respect to Mr. Jack’s

6

removals of Borg-Warner clutches. Additionally, the court grants in part and denies in

7

part Defendants’ motions on the issue of loss of consortium damages: although Ms. Jack

8

may not seek damages for loss of consortium she incurred during Mr. Jack’s lifetime, she

9

may seek damages for loss of consortium she has incurred since his death. Finally, the

10

court denies as moot Ford and DCo’s motions on Plaintiffs’ catch-all claims and punitive

11

damages, because Plaintiffs have withdrawn those claims.

12

C.

13

Plaintiffs’ Motions for Partial Summary Judgment
Plaintiffs move for summary judgment on several affirmative defenses asserted by

14

the remaining Defendants, DCo, Borg-Warner, and Ford.27 To begin, Plaintiffs urge the

15

court to grant summary judgment on all the affirmative defenses these Defendants assert

16

in their answers, on the ground that during discovery Defendants failed to specify

17

evidence in support of their affirmative defenses. (See Pl. MSJ DCo at 4; Pl. MSJ Ford at

18

4; Pl. MSJ Borg-Warner at 4.) In addition, Plaintiffs argue that Defendants fail to present

19

evidence capable of supporting the following affirmative defenses at trial: (1) failure to

20
27

21
22

Plaintiffs also move for summary judgment on affirmative defenses asserted by Union
Pacific. (See Pl. MSJ Union Pacific.) In light of the court’s determination that Union Pacific is
entitled to summary judgment (see supra § III.B.1-2.a), the court denies as moot Plaintiffs’
motion for summary judgment as to Union Pacific.

ORDER - 56

1

mitigate damages; (2) the learned intermediary defense; (3) contributory negligence; (4)

2

assumption of risk; and (5) superseding cause. The court addresses each issue in turn.
1. Plaintiffs’ Motion as to All Affirmative Defenses

3
4

At various points during discovery, Plaintiffs propounded interrogatories

5

regarding Defendants’ affirmative defenses. (See Adams Decl. (Dkt. No. 504) ¶ 2, Ex. G

6

(“DCo Interrog.”) (responses dated April 9, 2018); Adams Decl. (Dkt. No. 506) ¶ 2, Ex.

7

E (“Ford Interrog.”) (responses dated Dec. 6, 2017); Adams Decl. (Dkt. No. 508) ¶ 2, Ex.

8

F (“Borg-Warner Interrog.”) (responses dated August 15, 2017).) Plaintiffs asked that

9

each Defendant “identify all evidence in support of each of [its] affirmative defenses.”

10

(See Borg-Warner Interrog. No. 5; DCo Interrog. No. 9; Ford Interrog. No. 7.)

11

Additionally, Plaintiffs requested that each Defendant identify by name any person or

12

entity that Defendant alleged to be a substantial factor in causing Mr. Jack’s disease, as

13

well as all facts and documents in support of that allegation. (See DCo Interrog. Nos.

14

2-5; Borg-Warner Interrog. No. 1; Ford Interrog. Nos. 1-4.). Defendants objected to

15

these interrogatories, arguing that Plaintiffs’ questions called for protected work product

16

and were vague and overbroad. (See, e.g., DCo Interrog. at 7;28 Ford Interrog. at 18;29

17

Borg-Warner Interrog. at 10.30) Discovery closed on June 18, 2018. (See 6/22/2017

18

Minute Order (Dkt. # 184).)

19
20

28

The court cites the page number at the lower left-hand corner of the document.

21

29

The court cites the page number at the bottom center of the document.

22

30

The court cites the page number at the lower left-hand corner of the document.

ORDER - 57

1

Plaintiffs now argue that Defendants provided inadequate responses to Plaintiffs’

2

interrogatories. Consequently, Plaintiffs contend, they are entitled to summary judgment

3

on all the affirmative defenses Defendants raise in their answers. (Pl. MSJ Rep. (Dkt.

4

# 640) at 6-7 (“Plaintiffs are entitled to summary judgment due to Defendants’ refusal to

5

answer Plaintiffs’ contention interrogatories.”); see also Pl. MSJ DCo at 4; Pl. MSJ Ford

6

at 4; Pl. MSJ Borg-Warner at 4.) Plaintiffs dispute that their interrogatories were

7

burdensome or overbroad. (See Pl. MSJ Rep. at 8.) They also appear to allege that

8

Defendants’ failure to adequately respond to their interrogatories will prejudice Plaintiffs

9

at trial. (Id.)

10

Federal Rule of Civil Procedure 37 prescribes the remedy for a party’s failure to

11

adequately uphold its discovery obligations. See Fed. R. Civ. P. 37. Under the Rule, “a

12

party seeking discovery may move for an order compelling an answer, designation,

13

production, or inspection . . . if . . . a party fails to answer an interrogatory.” Fed. R. Civ.

14

P. 37(a)(3)(B)(iii). If a court grants the movant’s motion, it may “require the party . . .

15

whose conduct necessitated the motion . . . to pay the movant’s reasonable expenses

16

incurred in making the motion, including attorney’s fees.” Fed. R. Civ. P. 37(a)(5).

17

Before moving for an order to compel discovery, however, the movant must in good faith

18

confer or attempt to confer with the opposing party. Fed. R. Civ. P. 37(a)(1); see also

19

Local Rules W.D. Wash. LCR 37(a)(1).

20

Plaintiffs did not file a motion under Rule 37 or otherwise call to the court’s

21

attention Defendants’ allegedly deficient responses to Plaintiffs’ interrogatories. (See

22

Dkt.) Moreover, Plaintiffs’ motion and Defendants’ joint response indicate that during

ORDER - 58

1

the discovery period, Plaintiffs’ counsel never met with opposing counsel regarding the

2

responses Plaintiffs found wanting31—despite the court’s express instruction that the

3

parties seek to resolve discovery matters between themselves, and, absent agreement,

4

request a conference with the court. (See 6/22/2017 Minute Order.) Time constraints

5

cannot explain Plaintiffs’ failure to act: Plaintiffs received Borg-Warner’s responses to

6

its interrogatories over a year ago, and Ford’s followed a few months later. Indeed,

7

Plaintiffs’ motion appears to try to make hay from a discovery dispute the parties should

8

have addressed long ago.

9

Courts that have considered summary judgment motions premised on allegedly

10

inadequate discovery responses have rejected the extraordinary remedy Plaintiffs propose

11

here. In Myers v. United States, et al., No. 02CV1349-BEN, 2004 WL 7323090, at *2

12

(S.D. Cal. Nov. 4, 2004), the plaintiff urged the court to preclude defendants from

13

asserting any affirmative defendants on the ground that defendants failed to identify

14

“specific facts” or “evidence” in support of those defenses when responding to the

15

plaintiff’s interrogatories. The court declined to adopt such a “drastic sanction,” citing

16

the plaintiff’s failure to utilize Federal Rule of Civil Procedure 37. Meyers, 2004 WL

17

7323090, at *2; see also Miller v. Cottrell, Inc., No. 06-0141-CV-W-NKL, 2007 WL

18

3376731, at *6 (W.D. Mo. Nov. 8, 2007) (“To the extent Plaintiffs seek an order striking

19
20
21
22

Plaintiffs’ motions in limine state that Plaintiffs “initiated meet and confer efforts
regarding Borg-Warner’s deficient responses to the interrogatories.” (Pl. MIL (Dkt. # 664) at
10.) However, Plaintiffs do not specify whether they in fact met and conferred with
Borg-Warner. (See id.) Plaintiff’s motions in limine do not mention any meet and confer efforts
with respect to other Defendants. (See generally id.)
31

ORDER - 59

1

Cottrell’s affirmative defenses as a sanction for failing to comply with discovery

2

obligations, Plaintiffs should file a motion for sanctions, not a motion for summary

3

judgment.”); Alstrin v. St. Paul Mercury Ins. Co., 179 F. Supp. 2d 376, 395 (D. Del.

4

2002) (“The court will not strip [the defendant] of potentially meritorious defenses

5

simply because it failed to determine whether it would assert such defenses until after it

6

had responded to plaintiffs’ contention interrogatories.”).

7

As the Myers court emphasized, a motion for summary judgment premised on the

8

opposing party’s alleged discovery violations fails to properly invoke the standard by

9

which the court must adjudicate such a motion under Rule 56. See Myers, 2004 WL

10

7323090, at *2. Here, as in Myers, Plaintiffs’ blanket motion for partial summary does

11

not identify “those portions of the materials on file that [they] believe[] demonstrate the

12

absence of any genuine issue of material fact” with respect to Defendants’ affirmative

13

defenses. Id. (quoting T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass’n, 809 F.2d

14

626, 630 (9th Cir. 1987)). Plaintiffs’ motion thus fails as a matter of law.

15

Furthermore, at this time the court does not see how Plaintiffs will suffer prejudice

16

on account of Defendants’ deficient responses to the interrogatories at issue. Plaintiffs

17

contend that “[t]he first Plaintiffs learn of the facts behind [Defendants’] affirmative

18

defenses should not be in the middle of trial.” (Pl. MSJ Rep. at 8.) In principle, the court

19

agrees. But the record suggests that the facts underlying Defendants’ affirmative

20

defenses have already been disclosed through the parties’ extensive discovery and

21

summary judgment motions. See Myers, 2004 WL 7323090, at *1 (emphasizing “volume

22

of discovery”). Tellingly, Plaintiffs’ reply brief does not identify as previously unknown

ORDER - 60

1

any facts on which Defendants relied when responding to Plaintiffs’ motions for partial

2

summary judgment on affirmative defenses. (See generally Pl. MSJ Rep.) Accordingly,

3

the court denies Plaintiffs’ motion for partial summary judgment as to all affirmative

4

defenses on discovery-related grounds.32

5

2. Failure to Mitigate Damages

6

Plaintiffs move for summary judgment against Borg-Warner on the affirmative

7

defense of failure to mitigate damages. (Pl. MSJ Borg-Warner at 5; see also Borg-

8

Warner Ans. (Dkt. # 435) ¶ 34.) Plaintiffs argue that Borg-Warner “cannot show that

9

Patrick Jack failed to mitigate damages because, among other things, mesothelioma is

10

almost uniformly fatal.” (Pl. MSJ Borg-Warner at 5.)

11

Borg-Warner joined Defendants’ joint opposition to Plaintiffs’ motions, which

12

does not address mitigation of damages (see Def. Jt. Resp.), and did not file a separate

13

opposition (see Dkt.). When a party opposing summary judgment fails to address the

14

movant’s assertions of fact, the court may grant summary judgment, provided that the

15

motion and supporting materials show that the movant is entitled to it. Fed. R. Civ. P.

16

56(e).

17

//

18
19
20
21
22

32

If at trial Defendants seek to introduce evidence that was not disclosed during
discovery and is materially prejudicial to Plaintiffs, then Plaintiffs may file a motion for
sanctions under Rule 37(c)(1). See Fed. R. Civ. P. 37(c)(1); see also Putz v. Golden, No. C100741JLR, 2012 WL 13019220, at *5-6 (W.D. Wash. May 22, 2012). In that event, the burden
will lie with Defendants to demonstrate that they should escape sanctions because their
omissions were harmless or substantially justified. See Yeti by Molly, Ltd. v. Deckers Outdoor
Corp., 259 F.3d 1101, 1107 (9th Cir. 2001) (“Implicit in Rule 37(c)(1) is that the burden is on
the party facing sanctions to prove harmlessness.”).

ORDER - 61

The doctrine of mitigation of damages “prevents recovery for those damages the

1
2

injured party could have avoided by reasonable efforts taken after the wrong was

3

committed.” Pub. Util. Dist. No. 2 of Pac. Cty. v. Comcast of Wash. IV, Inc., 336 P.3d

4

65, 76 (Wash. Ct. App. 2014) (quoting Bernsen v. Big Bend Elec. Coop., Inc., 842 P.2d

5

1047, 1051 (Wash. Ct. App. 1993).) “The party whose wrongful conduct caused the

6

damages . . . has the burden of proving the failure to mitigate.” Cobb v. Snohomish Cty.,

7

935 P.2d 1384, 1389 (Wash. Ct. App. 1997). In cases involving medical injuries, the

8

defendant not only must establish that the injured party failed to use reasonable care to

9

mitigate damages, but also must show that the failure to mitigate aggravated the party’s

10

injury or otherwise increased the damage suffered. See Fox v. Evans, 111 P.3d 267, 270

11

(Wash. Ct. App. 2005) (“To support a mitigation instruction, expert testimony must

12

establish that the alternative treatment would more likely than not improve or cure the

13

plaintiff’s condition.”); Hawkins v. Marshall, 962 P.2d 834, 838-39 (Wash. Ct. App.

14

1998) (finding no evidence that plaintiff’s failure to follow her doctor’s advice

15

aggravated her conditions or delayed her recovery).

16

Borg-Warner, as a party whose conduct allegedly caused Mr. Jack’s disease,

17

would at trial carry the burden to prove that Mr. Jack failed to mitigate his damages. See

18

Cobb, 935 P.2d at 1389. Borg-Warner provides no evidence that Mr. Jack failed to

19

follow medical advice or otherwise increased his damages. See Fox, 111 P.3d at 270.

20

Accordingly, Plaintiffs are entitled to partial summary judgment on Borg-Warner’s

21

affirmative defense of failure to mitigate damages.

22

//

ORDER - 62

1
2

3. Learned Intermediary Doctrine
Plaintiffs move for partial summary judgment against DCo and Borg-Warner on

3

these Defendants’ assertion of the sophisticated purchaser doctrine, also known as the

4

learned intermediary doctrine.33 (Pl. MSJ DCo at 6-7; Pl. MSJ Borg-Warner at 7-8.) In

5

its answer, DCo states that “[Mr. Jack’s] employer[]” not only was or should have been

6

aware of the hazards of asbestos, but also “was warned” of the dangers of

7

asbestos-containing products and . . . failed to rely upon such warning.” (DCo Ans. (Dkt.

8

# 265) ¶ 28.) Similarly, Borg-Warner contends that Mr. Jack “was employed by

9

knowledgeable and sophisticated employers and any duty Borg-Warner may have had to

10

warn him of any potential damages in using Borg-Warner’s products was discharged by

11

the employers’ intervening duty to give him any required warnings.” (Borg-Warner Ans.

12

¶ 46.) Plaintiffs argue that Washington law does not recognize the sophisticated

13

purchaser doctrine in the context of asbestos litigation, and that even if the defense were

14

available, neither DCo nor Borg-Warner can show that they reasonably relied upon Mr.

15

Jack’s employers to warn him of the hazards of asbestos exposure.

16

Courts use inconsistent terminology when discussing the sophisticated purchaser

17

doctrine in the context of asbestos litigation. See Cabasug v. Crane Co., 988 F. Supp. 2d

18

1216, 1219 (D. Haw. 2013) (remarking on “inconsistent[]” terminology). Some courts

19

refer to the “learned intermediary” doctrine, an affirmative defense traditionally invoked

20
21
22

Plaintiffs use the term “learned intermediary” doctrine. (See Pl. MSJ DCo at 6-7; MSJ
Borg-Warner at 7-8.) Defendants use the terms “sophisticated purchaser” and “knowledgeable
intermediary.” (See Def. Jt. Resp. at 12-15.)
33

ORDER - 63

1

by prescription drug and medical device manufacturers who may satisfy their duty to

2

warn by informing prescribing physicians of the dangers associated with their products.

3

See, e.g., Nye v. Bayer Cropscience, 347 S.W.3d 686, 700-704 (Tenn. 2011) (discussing

4

extension of learned intermediary doctrine to asbestos context). Other courts refer to the

5

“sophisticated purchaser” doctrine, see Cabasug, 988 F. Supp. 2d at 1224-28; In re

6

Asbestos Litgation, 542 A.2d 1205, 1209 (Del. 1986), or the “sophisticated intermediary”

7

doctrine, see Webb v. Special Elec. Co., Inc., 370 P.3d 1022, 1033 (Cal. 2016). At least

8

one court has distinguished between the learned intermediary or sophisticated purchaser

9

doctrine, on one hand, and the “sophisticated user” defense, on the other. Cabasug, 988

10

F. Supp. 2d at 1219 (“Under the sophisticated user defense, manufacturers or suppliers of

11

a product have the burden of demonstrating that the ultimate end-user of the product (i.e.,

12

[the plaintiff]), was . . . already aware or reasonably should have been aware of the

13

dangers of asbestos.”). Here, Defendants refer interchangeably to the sophisticated

14

purchaser and sophisticated user doctrine, but the substance of their arguments rests upon

15

the sophisticated purchaser doctrine—that is, they allege that “knowledgeable

16

intermediar[ies]” stood between themselves and Mr. Jack.34 (Def. Jt. Resp. at 15.)

17

Washington case law on the sophisticated purchaser or learned intermediary

18

doctrine centers almost exclusively on the pharmaceutical context. See Taylor v. Intuitive

19

Surgical, Inc., 389 P.3d 517, 524-25 (Wash. 2017). But Washington courts have

20
21
22

34

Defendants also assert the affirmative defense of contributory negligence, which
resembles the sophisticated user doctrine. The court addresses contributory negligence below
(see infra § III.C.4).

ORDER - 64

1

recognized a variant of the sophisticated purchaser doctrine in toxic tort claims, where a

2

manufacturer or supplier of the products alleged to have caused the plaintiff’s injuries

3

warns the plaintiff’s intermediary or employer of the products’ dangerous propensities.

4

See, e.g., Reed v. Pennwalt Corp., 591 P.2d 478 (Wash. Ct. App. 1979). In Reed, the

5

Washington Court of Appeals held that a caustic soda manufacturer was not required to

6

warn the employees of a food processing plant of the product’s hazards; the manufacturer

7

fulfilled its duty by warning the plaintiff’s employer, which purchased the soda and had

8

exclusive control over its use in the plant. Id. at 482. As the Reed court explained, such

9

limitations on manufacturer liability “[are] particularly appropriate when . . . the

10

intermediate buyer is a large industrial concern with its own safety programs and method

11

of product distribution and where the manufacturer may have no effective means of

12

communicating the warnings to the ultimate user.” Id. at 481.

13

Washington courts have yet to consider whether a defendant-manufacturer or

14

supplier may invoke the sophisticated purchaser doctrine in an asbestos suit. Other

15

jurisdictions take various approaches. One state supreme court has declined to extend the

16

sophisticated purchaser doctrine to the asbestos context, “[g]iven the highly hazardous

17

nature of asbestos [and] the dire consequences to the unwarned consumer.” Nye, 347

18

S.W. 3d at 704. See also Mack v. Gen. Elec. Co., 896 F. Supp. 2d 333, 343 (E.D. Penn.

19

2012) (holding that “the ‘sophisticated purchaser’ defense is not available under maritime

20

law in cases involving asbestos”). In contrast, some courts have found that

21

manufacturers and suppliers of asbestos-containing products are not liable for a user’s

22

injuries where they knew or reasonably believed that an intermediary, such as an

ORDER - 65

1

employer, was aware of the dangers of asbestos and reasonably concluded that the

2

intermediary would warn the user. See, e.g., In re Asbestos Litigation, 542 A.2d 1205,

3

1212 (Del. 1986) (declining to grant summary judgment on the defendant’s

4

“sophisticated purchaser” defense, on grounds a jury could find that the defendant knew

5

or should have known the purchaser did not warn its employees about asbestos hazards).

6

Still other courts have held that a manufacturer may invoke the learned intermediary

7

doctrine only if it has actually warned the intermediary or knew a warning was

8

unnecessary because the intermediary was already aware of asbestos-related hazards. See

9

Eagle-Pincher Indus., Inc. v. Balbos, 604 A.2d 445, 465 (Md. 1992) (where the

10

defendant suppliers knew asbestos was inherently dangerous and made no attempt to

11

warn the employer, the submission of the sophisticated purchaser defense to the jury was

12

not warranted).

13

Typically, where Washington courts have not spoken on an issue before the court,

14

the court “must resort to other authority and exercise [its] own best judgment” in

15

determining how the Washington Supreme Court would resolve the issue. Burns, 929

16

F.2d at 1424. Here, however, the court need not decide whether and under what

17

circumstances the Washington Supreme Court would permit asbestos manufacturers and

18

suppliers to invoke the learned intermediary doctrine for the simple reason that DCo and

19

Borg-Warner provide no evidence that Mr. Jack encountered their products while

20

working for a sophisticated purchaser of any kind.

21

Defendants focus almost exclusively on the Navy’s knowledge of asbestos

22

hazards. Specifically, Defendants imply that if Mr. Jack was informed of those dangers

ORDER - 66

1

during his naval service, then they cannot be held liable for a later failure to warn. (See

2

Def. Jt. Resp. at 15 (“The Navy and PSNS facts here support the defense[] of . . .

3

knowledgeable intermediary, specifically the fact that the Navy retained exclusive control

4

over the procedures followed by Navy (including PSNS) personnel when handling

5

asbestos.”) But neither Plaintiffs nor Defendants allege that Mr. Jack ever worked with

6

DCo or Borg-Warner products during his naval service. Rather, both Defendants are

7

alleged to have manufactured or supplied asbestos-containing automotive products that

8

Mr. Jack used in the course of his personal and professional automotive work. (See Pl.

9

MSJ DCo at 2 (stating that “Mr. Jack worked with automobiles, including automobiles

10

utilizing [DCo’s] Victor gaskets”); Pl. MSJ Borg-Warner MSJ at 2 (alleging that “Mr.

11

Jack worked with asbestos-containing BorgWarner clutches as a professional auto

12

mechanic” and during personal automotive work); see generally Def. Jt. Rep.)

13

In all its variants, the sophisticated purchaser doctrine is particular as between

14

defendants: a defendant-manufacturer may assert the defense only if it relied on an

15

intermediary to warn the injured party of the hazards of the manufacturer’s own products.

16

See Adkins v. GAF Corp., 923 F.2d 1225, 1230 (6th Cir. 1991) (“[T]he pivotal inquiry in

17

determining whether [the sophisticated purchaser] defense is available is a fact-specific

18

evaluation of the reasonableness of the supplier’s reliance on the third party to provide

19

the warning.”). Because no facts in the record support the inference that either DCo or

20

Borg-Warner relied on any intermediaries to communicate the alleged hazards of its own

21

products to Mr. Jack, Plaintiffs are entitled to partial summary judgment as to these

22

Defendants’ assertion of the sophisticated purchaser doctrine.

ORDER - 67

1
2

4. Contributory Negligence and Assumption of Risk
Plaintiffs move for partial summary judgment against DCo and Borg-Warner on

3

the affirmative defenses of contributory negligence and assumption of risk. (Pl. MSJ

4

DCo at 4-6; Pl. MSJ Borg-Warner at 6-7; Pl. MSJ Union Pacific at 6-7.) According to

5

Plaintiffs, Defendants provide no evidence that Mr. Jack was aware of the hazards of

6

asbestos when working with Defendants’ products and thus cannot show that he was

7

contributorily negligent or that he knowingly assumed the risks of asbestos exposure.

8

(Pl. MSJ DCo at 4-6; Pl. MSJ Borg-Warner at 6-7.) In opposing Plaintiffs’ motion,

9

Defendants argue that Mr. Jack negligently or knowingly failed to take certain safety

10

precautions while working with asbestos-containing products, thereby increasing his risk

11

of developing mesothelioma. (Def. Jt. Resp. at 15-18.)

12
13

a. Washington Product Liability Act
The availability of the affirmative defenses of contributory negligence and

14

assumption risks depends in part on whether the action sounds in negligence or strict

15

liability and in part on whether the Washington Product Liability Act of 1981 (“WPLA”),

16

RCW § 7.72, et seq., governs Plaintiffs’ claims. Before 1981, the former comparative

17

negligence statute, RCW 4.22.010 (1974), operated to reduce a plaintiff’s recovery in

18

negligence actions in proportion to the plaintiff’s contributory negligence.35 In contrast, a

19
20
21
22

Before 1974, contributory negligence was a complete bar to a plaintiff’s recovery in
negligence. See, e.g., Crawford v. Miller, 566 P.2d 1264, 1266 (Wash. Ct. App. 1977)
(contrasting contributory negligence as “a total defense” with the post-1974 “comparative
negligence formula” of RCW 4.22.010). The comparative negligence regime introduced in 1974
applies retroactively. Coulter v. Asten Group, Inc., 146 P.3d 444, 450 (Wash. Ct. App.) (holding
that the trial court properly rejected the argument that the plaintiff was barred from recovering
35

ORDER - 68

1

defendant in a strict liability action to which pre-1981 law applies is barred from

2

asserting contributory negligence, as “strict liability is based on a no-fault concept” to

3

which negligence principles are inapposite. Seay v. Chrysler Corp., 609 P.2d 1382, 1384

4

(Wash. 1980) (quoting Wenatchee Wenoka Growers Ass’n v. Krack Corp., 576 P.2d 388,

5

391 (Wash. 1978)). Unlike the affirmative defense of contributory negligence, the

6

assumption of risk doctrine “operates as a damage-reducing factor” in both negligence

7

and strict liability actions brought under pre-WPLA law. See, e.g., South v. A.B. Chance

8

Co., 635 P.2d 728, 728 (Wash. 1981) (answering a certified question from the U.S.

9

District Court for the Western District of Washington regarding the impact of an

10

assumption of risk defense in strict liability actions to which the WPLA is not

11

applicable); Boeke v. Int’l Paint Co., Inc., 620 P.2d 103, 105 (Wash. Ct. App. 1980)

12

(holding that an assumption of risk defense is available in negligence actions as “a

13

damage-reducing factor”).

14

The WPLA not only created a single cause of action for product liability claims,

15

see e.g., Wash. Water Power Co. v. Graybar Elec. Co., 774 P.2d 1199, 1204 n.4 (Wash.

16

1989), but also replaced the former comparative negligence statute with a broad

17

contributory fault provision, see Christensen v. Royal Sch. Dist. No. 160, 124 P.3d 283,

18

285 (Wash. 2005). In a product liability action brought under the WPLA, “any

19

contributory fault chargeable to the claimant diminishes proportionately the amount

20
21
22

for asbestos-related injuries incurred before 1974 on account of his contributory negligence);
Godfrey v. State, 530 P.2d 630, 634 (Wash. 1975) (holding that because the legislature intended
that the comparative negligence statute apply retroactively, “there is no question whether the
total bar to recovery has been abolished once and for all”).

ORDER - 69

1

awarded as compensatory damages for an injury attributable to the claimant’s

2

contributory fault.” RCW 4.22.005; see also Lundberg v. All-Pure Chem. Co., 777 P.2d

3

15, 18 (Wash. Ct. Ap. 1989) (noting that “[t]here currently is no reason to distinguish

4

between negligence and strict liability actions for purposes of instructing a jury on the

5

plaintiff’s comparative fault”). The term “contributory fault” encompasses a broader

6

range of conduct than the former comparative negligence statute, including both

7

contributory negligence and certain variants of assumption of risk. Scott v. Pac. W.

8

Mountain Resort, 834 P.2d 6, 12-13 (Wash. 1992) (noting that “implied primary”

9

assumption of risk continues to operate as a complete bar to recovery under the WPLA,

10

but that other forms of assumption of risk only reduce damages); Falk v. Keene Corp.,

11

782 P.2d 974, 980 (Wash. 1989) (“RCW 4.22.005 and 4.22.015 . . . provide that in

12

actions involving product liability claims the contributory negligence of a plaintiff

13

diminishes proportionately damages otherwise recoverable.”).

14

The WPLA supplants common law product liability claims that arise on or after its

15

effective date, July 26, 1981. Macias v. Saberhagen Holdings, Inc., 282 P.3d 1069, 1073

16

(Wash. 2012); see also RCW 4.22.920(1). This rule is complicated where “a plaintiff’s

17

alleged exposure to injury-causing products is prolonged or continuous in nature.” Fagg

18

v. Bartells Asbestos Settlement Tr., 339 P.3d 207, 211 (Wash. Ct. App. 2014). In such

19

cases, the WPLA applies unless “substantially all” of the exposure was alleged to occur

20

before July 26, 1981. Macias, 282 F.3d at 1073; see also Koker v. Armstrong Cork, Inc.,

21

804 P.2d 659, 663-64 (Wash. Ct. App. 1991) (where “substantially all” of the injury-

22

producing events exposing a plaintiff to asbestos occurred prior to the WPLA’s effective

ORDER - 70

1

date, the plaintiff’s product liability claim did not “arise” after that date). “For purposes

2

of determining whether a claim arises under the WPLA as to a specific defendant, the

3

determinative factor is when all or substantially all of the plaintiff’s exposure to that

4

defendant’s particular asbestos-containing products occurred.” Fagg, 339 P.3d at 213.

5

The parties’ briefing neglects the WPLA’s applicability to Plaintiffs’ negligence

6

and strict liability claims. Defendants’ joint response assumes the WPLA applies. (See

7

Def. Jt. Resp. at 16-17 (referring to “comparative fault system established in RCW

8

4.22.005”).) Plaintiffs fail to address the issue. (See Pl. Rep. at 3-5.) It is not the court’s

9

task to do so here: the question of whether “substantially all” of the events giving rise to

10
11

Mr. Jack’s injuries occurred before 1981 is at least partly a question of fact.
Even so, the court can at this time consider in part the merits of Plaintiffs’

12

motions. Whether or not Plaintiffs’ negligence claims take the form of a product liability

13

action under the WPLA, Defendants are free to argue comparative fault, which

14

encompasses both contributory negligence and assumption of risk. Similarly, regardless

15

of whether pre-1981 law or the WPLA governs Plaintiffs’ strict liability claims,

16

Defendants may assert an assumption of risk affirmative defense. South, 635 P.2d at 729

17

(holding that an assumption of risk defense is available in claims not governed by the

18

WPLA); Christensen, 124 P.3d at 289 (“[T]he contributory fault statute

19

encompasses . . . assumption of risk.”). The viability of Defendants’ contributory

20

negligence defense to Plaintiffs’ strict liability claims is less clear. If pre-1981 law

21

applies, Defendants’ contributory negligence affirmative defense fails as a matter of law.

22

See Seay, 609 P.2d at 1384. But if the WPLA applies, Defendants may, on the basis of

ORDER - 71

1

the WPLA’s broad comparative fault scheme, seek to reduce Plaintiffs’ damages on

2

account of Mr. Jack’s own negligence. See Falk, 782 P.2d at 980.
Accordingly, the court reserves ruling on Plaintiffs’ motions for partial summary

3
4

judgment on the affirmative defense of contributory negligence as to Plaintiffs’ strict

5

liability claims against DCo and Borg-Warner. Plaintiff’s motions are thus denied in

6

part. The court can, however, consider whether Plaintiffs are entitled to partial summary

7

judgment on Defendants’ affirmative defenses of contributory negligence and assumption

8

of risk as to Plaintiffs’ negligence claims, because these affirmative defenses are

9

available regardless of whether the WPLA applies.

10

b. Washington Law on Contributory Negligence and Assumption of
Risk

11
To prove contributory negligence under Washington law, “the defendant must
12
show that the plaintiff had a duty to exercise reasonable care for her own safety, that she
13
failed to exercise such care, and that this failure is a cause of her injuries.” Gorman v.
14
Pierce Cty., 307 P.3d 795, 807 (Wash. Ct. App. 2013). “Whether there has been
15
negligence or comparative negligence is a jury question unless the facts are such that all
16
reasonable persons must draw the same conclusion from them, in which event the
17
question is one of law for the courts.” Dunnington v. Virginia Mason Med. Ctr., 389 P.3d
18
498, 503 (Wash. 2017) (quoting Hough v. Ballard, 31 P.3d 6, 10 (Wash. Ct. App. 2001)).
19
To invoke the doctrine of assumption of risk, “a defendant must show that the
20
plaintiff knowingly and voluntarily chose to encounter the risk.” Home v. N. Kitsap Sch.
21
//
22

ORDER - 72

1

Dist., 965 P.2d 1112, 1119 (Wash. Ct. App. 1998).36 Specifically, “the evidence must

2

show the plaintiff (1) had full subjective understanding (2) of the presence and nature of

3

the specific risk, and (3) voluntarily chose to encounter the risk.” Id. (quoting Kirk v.

4

Wash. State Univ., 746 P.2d 285, 288 (Wash. 1987)); see also Stevens v. CBS Corp., No.

5

C11-6073RBL, 2012 WL 5844704, at *6 (W.D. Wash. Nov. 19, 2012) (assessing the

6

assumption of risk defense under Washington law in the context of an asbestos-related

7

personal injury claim). “Knowledge and voluntariness are questions of fact for the jury,

8

except when reasonable minds could not differ.” Home, 1112 P.2d at 1119.

9

Defendants’ evidence of Mr. Jack’s alleged contributory negligence and

10

assumption of risk falls into two categories: the Navy’s knowledge of asbestos hazards

11

and Mr. Jack’s knowledge of asbestos hazards. Puzzlingly, most of Defendants’ response

12

addresses evidence of the Navy’s understanding of the dangers of asbestos exposure

13

during the period of Mr. Jack’s naval service and employment at PSNS. (See Def. Jt.

14

Resp. at 4-11). According to Defendants, “if a jury finds that PSNS or the Navy knew

15

about a potential for [Mr. Jack] to be exposed to asbestos, then on the same evidence . . .

16

the jury could reasonably conclude that [Mr. Jack] in fact knew the same and voluntarily

17

assumed the risk of resulting injury.” (Def. Jt. Resp. at 19.) The court rejects

18
19
20
21
22

Among Washington courts, “[t]he entire doctrine of ‘assumption of risk’ is surrounded
by much confusion.” Scott, 834 P.2d at 12. The Washington Supreme Court has identified four
facets of the doctrine of assumption of risk: (1) express assumption of risk; (2) implied primary
assumption of risk; (3) implied reasonable assumption of risk; and (4) implied unreasonable
assumption of risk. Home v. N. Kitsap Sch. Dist., 965 P.2d 1112, 1118 (Wash. Ct. App. 1998).
The latter two facets “are nothing but alternative names for contributory negligence.” Id. The
parties’ submissions do not address which of these variants are at issue here.
36

ORDER - 73

1

Defendants’ efforts to impute to Mr. Jack the Navy’s knowledge of asbestos-related

2

dangers. See Kelly v. CBS Corp., No. 11-CV-03240-VC, 2015 WL 12942244, at *1

3

(N.D. Cal. April 13, 2015) (“The defendants . . . may not seek to impute the Navy’s

4

knowledge to [the plaintiff].”) Defendants emphasize that in 1950, PSNS issued a safety

5

manual that instructed workers to wear respirators when handling asbestos-containing

6

insulation. (Def. Jt. Resp. at 7 (citing Warren Pumps Exp. Discl. (Dkt. # 297) Ex. 1 at

7

18).) But Defendants do not show that Mr. Jack—or any other worker at PSNS—

8

received that manual. (See Def. Jt. Resp. at 15-20.) In fact, Mr. Jack unequivocally

9

denied that he ever saw it. (Jack Disc. Dep. 400:11-15.) There is no evidence in the

10

record that Mr. Jack actually received information from the Navy that caused him to

11

know, or should have caused him to know, of the dangers of asbestos exposure. See

12

Kelly, 2015 WL 12942244, at *1.

13

Nonetheless, Defendants provide circumstantial evidence that Mr. Jack may have

14

gained some awareness of asbestos hazards in the late 1970s. First, Defendants offer an

15

occupational history form, dated August 1979, which reported that Mr. Jack “had some

16

exposure to asbestos by working 50% of time aboard ship where he encountered same

17

space exposure with asbestos workers,” as well as “some exposure to asbestos by

18

working as an auto mechanic.” (Kero Decl. (Dkt. # 618) ¶ 11, Ex. 10 at 1.) On the basis

19

of that evidence, a juror could reasonably infer that Mr. Jack discussed asbestos exposure

20

with a medical provider in 1979. Additionally, Mr. Jack testified that in the late 1980s or

21

early 1990s, he attended a PSNS training on asbestos exposure where he was instructed

22

//

ORDER - 74

1

to “lay . . . asbestos-type components” on damp rags to lessen the risk of exposure. (Jack

2

Disc. Dep. at 72:2-17.)

3

Taken together, Defendants’ evidence could conceivably support the inference that

4

a reasonable worker who underwent the same occupational health assessment Mr. Jack

5

did in 1979, and attended the same PSNS training, was aware that asbestos exposure

6

poses health risks. Additionally, a reasonable factfinder could conclude that after 1979,

7

Mr. Jack was subjectively aware of those risks. To be sure, Defendants’ evidence is far

8

from conclusive. Neither Borg-Warner nor DCo adduces evidence to show that Mr.

9

Jack’s alleged exposures to their products only occurred after he discussed his

10

occupational asbestos exposure in 1979. (See generally Def. Jt. Rep.; DCo Resp.)

11

Moreover, Mr. Jack testified that the PSNS exposure training did not instruct workers to

12

wear respirators or masks when handling asbestos-containing materials. (Jack Disc. Dep.

13

72:12-21.) But in light of the evidence Defendants do provide, as well as the fact-

14

intensive nature of the contributory negligence defense under Washington law, see

15

Dunnington, 389 P.3d at 503, the court denies Plaintiffs’ motions for partial summary

16

judgment on DCo and Borg-Warner’s contributory negligence and assumption of risks

17

defenses with respect to Plaintiffs’ non-strict liability claims.

18
19

5. Superseding Cause
DCo, Borg-Warner, and Ford seek to assert the affirmative defense of superseding

20

cause. Specifically, these Defendants argue that “Mr. Jack’s exposure to asbestos in the

21

Navy and at PSNS can be found to be a superseding cause of his injury.” (Def. Jt. Resp.

22

at 21.) Plaintiffs move for summary judgment on the affirmative dense of superseding

ORDER - 75

1

cause as to each of these Defendants, asserting that “[i]t was entirely foreseeable that

2

other entities might fail to warn or protect persons such as Mr. Jack” from

3

asbestos-related harms. (Pl. MSJ DCo at 9; Pl. MSJ Borg-Warner at 10; Pl. MSJ Ford at

4

6.)

5

A superseding cause is “a new independent cause that breaks the chain of

6

proximate causation between a defendant’s negligence and an injury,” becoming “the

7

sole proximate cause of the injury” and absolving a defendant’s “liab[ility] for harm to

8

another which his antecedent negligence is a substantial factor in bringing about.” Wash.

9

Pattern Jury Inst. § 15.05; Campbell v. ITE Imperial Corp., 733 P.2d 969, 972-73 (Wash.

10

1987) (citing the Restatement (Second) of Torts § 440 (1965)). “Whether an

11

[intervening] act may be considered a superseding cause sufficient to relieve a defendant

12

of liability depends on whether the intervening act can reasonably be foreseen by the

13

defendant; only intervening acts which are not reasonably foreseeable are deemed

14

superseding causes.” Crowe v. Gaston, 951 P.2d 1118, 1122 (Wash. 1998) (internal

15

quotation marks and citations omitted). Where the negligence of another is alleged to be

16

a superseding cause, the defendant must show that “the intervening negligence . . . [is] so

17

extraordinary or unexpected that it falls outside the realm of reasonably foreseeable

18

events; unless this threshold is met, there is not [a] superseding cause.” Hoglund v.

19

Raymark Indus., Inc., 749 P.2d 164, 171 (Wash. Ct. App. 1987).

20

To survive Plaintiffs’ motion for partial summary judgment on superseding cause,

21

Defendants must show that a reasonable factfinder could conclude that the asbestos

22

exposure Mr. Jack suffered as a result of non-party entities’ conduct was so unforeseeable

ORDER - 76

1

as to absolve Defendants of their potential liability. See Crowe, 951 P.2d at 1122.

2

Defendants do not make that showing here. Rather, they default to arguments on

3

proximate cause. Given the nature and extent of Mr. Jack’s exposures to asbestos during

4

his naval service and at PSNS, Defendants contend, their own products cannot be found

5

to have proximately caused Mr. Jack’s disease. (See Ford Resp. at 5-6 (“[E]ven if the

6

jury finds that Ford was negligent or at fault in distributing asbestos-containing products,

7

the jury could find . . . that . . . the PSNS exposures combined with the Navy exposures[]

8

were the sole proximate cause of Mr. Jack’s disease[.]”); DCO Resp. at 3 (“DCo

9

strenuously disagrees that any product for which it is responsible caused or contributed to

10
11

[Mr. Jack’s] illness.”).)
These assertions undoubtedly bear on proximate causation and apportionment of

12

fault. But Defendants cannot premise a superseding cause defense solely on the

13

allegation that Mr. Jack suffered other, more causally significant exposures to the very

14

same harm they are alleged to have produced. See Campbell, 733 P.2d at 972 (noting

15

that superseding cause may be found where “the intervening act created a different type of

16

harm than otherwise would have resulted”) (emphasis in original). Moreover,

17

Defendants provide no evidence to suggest that the asbestos exposure Mr. Jack suffered

18

in the Navy and at PSNS was capable of “break[ing] the original chain of causation”

19

between Defendants’ alleged negligence and Mr. Jack’s injury. Id. at 973 (internal

20

quotation marks and citation omitted). In fact, the expert opinions in the record

21

overwhelmingly contemplate the possibility of co-occurring causes. (See Brodkin Rep.

22

§§ 2, 5.)

ORDER - 77

Based on the evidence before the court, Defendants’ superseding cause defense

1
2

fails as a matter of law. The court thus finds that Plaintiffs are entitled to summary

3

judgment as to DCo, Borg-Warner, and Ford’s affirmative defense of superseding cause.

4

6. Summary

5

In sum, the court denies Plaintiffs’ blanket motion for summary judgment on

6

Defendants’ affirmative defenses. The court grants Plaintiffs’ motion for summary

7

judgment against Borg-Warner on the affirmative defense of failure to mitigate damages.

8

The court grants Plaintiffs’ motions for summary judgment against DCo and Borg-

9

Warner on the sophisticated purchaser doctrine. The court denies in part and reserves

10

ruling in part on Plaintiffs’ motions for summary judgment against DCo and Borg-

11

Warner on the affirmative defenses of contributory negligence and assumption of risk.

12

The court grants Plaintiffs’ motions for summary judgment against DCo, Borg-Warner,

13

and Ford on the affirmative defense of superseding cause.

14

IV.

CONCLUSION

For the foregoing reasons, the court GRANTS in part and DENIES in part Ford’s

15
16

motion for partial summary judgment (Dkt. # 449), GRANTS Union Pacific’s motion for

17

summary judgment (Dkt. # 476), and GRANTS in part and DENIES in part Borg-

18

Warner’s motion for summary judgment (Dkt. # 518). The court further GRANTS in

19

part and DENIES in part Plaintiffs’ motions for partial summary judgment on the

20

//

21

//

22

//

ORDER - 78

1

affirmative defenses asserted by DCo (Dkt. # 503), Ford (Dkt. # 505), and Borg-Warner

2

(Dkt. # 507). Finally, the court DENIES as moot Plaintiffs’ motion for partial summary

3

judgment on the affirmative defenses asserted by Union Pacific (Dkt. # 509).

4

Dated this 17th day of September, 2018.

5
6

A

7

The Honorable James L. Robart
U.S. District Court Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

ORDER - 79