Mikelsen et al v. Air & Liquid Systems Corporation et al

Filing 126

ORDER granting in part plaintiffs' 86 Motion for Summary Judgment Regarding Certain Affirmative Defenses, signed by Judge Robert S. Lasnik. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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ALICE MIKELSEN, et al.,
Plaintiffs,

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v.
AIR & LIQUID SYSTEMS
CORPORATION, et al.,
Defendants.

NO. C17-0700RSL
ORDER GRANTING IN PART
MOTION FOR SUMMARY
JUDGMENT REGARDING
AFFIRMATIVE DEFENSES

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This matter comes before the Court on “Plaintiffs’ Motion for Summary Judgment on

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Defendant Warren Pumps LLC’s Affirmative Defenses.” Dkt. # 86. Plaintiffs’ decedent, Arthur

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Mikelsen, worked at the Puget Sound Naval Shipyard from approximately 1942 to 1980, except

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for two years during World War II when he enlisted in the Army. Plaintiffs allege that defendant
Warren Pumps manufactured pumps that contained asbestos and that Mr. Mikelsen was exposed
to its products - and the asbestos contained therein - while working in the shipyard machine

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shop. Mr. Mikelsen developed mesothelioma, an asbestos-related disease, and died in 2014.

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Plaintiffs assert that Warren Pumps is liable for Mr. Mikelsen’s death and the plaintiffs’ injuries

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because it put into the stream of commerce products that were negligently designed, were not

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reasonably safe as manufactured, and were not reasonably safe for lack of warnings. Plaintiffs

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ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 1

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also assert that Warren Pumps is liable because it failed to reasonably inspect, test, warn,

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instruct, monitor, and/or recall the products. Warren Pumps asserted a number of affirmative

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defenses, six of which are at issue in this motion. Plaintiffs seek summary judgment on

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defendant’s failure to mitigate, contributory negligence, assumption of risk, sophisticated
purchaser, intervening/superceding cause, and government contractor defenses.

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Summary judgment is appropriate when, viewing the facts in the light most favorable to

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the nonmoving party, there is no genuine issue of material fact that would preclude the entry of

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judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial
responsibility of informing the district court of the basis for its motion” (Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that

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show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving

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party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to

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designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S.

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at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . .
and draw all reasonable inferences in that party’s favor.” Krechman v. County of Riverside, 723
F.3d 1104, 1109 (9th Cir. 2013). Although the Court must reserve for the jury genuine issues

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regarding credibility, the weight of the evidence, and legitimate inferences, the “mere existence

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of a scintilla of evidence in support of the non-moving party’s position will be insufficient” to

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avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014);

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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose resolution
would not affect the outcome of the suit are irrelevant to the consideration of a motion for
summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In other
ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 2

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words, summary judgment should be granted where the nonmoving party fails to offer evidence

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from which a reasonable jury could return a verdict in its favor. FreecycleSunnyvale v. Freecycle

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Network, 626 F.3d 509, 514 (9th Cir. 2010).
Having reviewed the memoranda, declarations, and exhibits submitted by the parties1 and

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taking the evidence in the light most favorable to defendant, the Court finds as follows:

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A. Failure to Mitigate

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Warren Pumps does not oppose plaintiffs’ motion with regards to an alleged failure to
mitigate.
B. Contributory Negligence and Assumption of Risk
Warren Pumps argues that there is sufficient evidence “to raise an issue of fact that Mr.

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Mikelsen knew, or should have known, that asbestos was hazardous[] and disregarded protocols

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designed to reduce that risk.” Dkt. # 101 at 8. No citation to the record is provided, and the Court

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is unaware of any evidence that Mr. Mikelsen knew or had reason to know of the risks posed by

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asbestos-containing products in the workplace. Warren Pumps has taken the position in this
litigation that it, the manufacturer, was unaware of the dangers of asbestos until decades after
Mr. Mikelsen began working in the machine shop. The shop superintendent, who began working

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at the shipyard in 1940, was unaware of any asbestos-related safety protocols until the early

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1970s. Warren Pumps makes no attempt to explain how Mr. Mikelsen would have known or

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should have known what the manufacturer of the products and his superintendent did not.

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In the absence of any evidence of comparative fault on Mr. Mikelsen’s part, Warren

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This matter can be decided on the papers submitted. The parties’ requests for oral argument are
DENIED.
ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 3

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Pumps offers evidence that his employer, the United States Navy, knew of the potential hazards

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of asbestos throughout Mr. Mikelsen’s tenure and argues that the employer’s knowledge should

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be imputed to the employee. No cases or other authority are provided in support of this

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argument, and the Court finds it untenable. One who is unaware of a hazard does not assume the

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risk of injury or otherwise act unreasonably simply because a third party has knowledge of the

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risk. Unless Warren Pumps can show that Mr. Mikelsen was aware of the dangers of the asbestos

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to which he was exposed or that he knew of but ignored warnings and safety protocols, it cannot

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succeed on its comparative negligence and assumption of risk defenses. Having failed to produce
any such evidence, these defenses are properly dismissed at this stage of the proceeding.
C. Sophisticated Purchaser

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Warren Pumps’ eleventh affirmative defense reads:

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Decedent Arthur Mikelsen was employed by knowledgeable and sophisticated
employers, and any alleged duty Warren may have had to warn Decedent of any
potential risks incident to use of Warren products, which duty is denied, was
discharged by all said employers’ intervening duty to give any required warnings.

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Dkt. # 17-1 at 137. Although Warren Pumps recites the law regarding the duty to warn a

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sophisticated end user of a product, it does not argue or provide any evidence that Mr. Mikelsen

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was himself sophisticated regarding the hazards of the product at issue. Rather, Warren Pumps

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argues that his employer, the United States Navy, was a sophisticated purchaser and acted as an
intermediary between Warren Pumps and Mr. Mikelsen. Defendant asserts that the Navy knew
of the hazards of asbestos since the 1920s and had developed protocols for protecting naval
shipyard workers, that Mr. Mikelsen was a trained machinist working in the shipyard, and that it

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ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 4

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was therefore “reasonable for Warren to conclude that [the] Navy would adhere to those

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protocols and train machinists, such as Mr. Mikelsen, to protect themselves from exposure to

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those products.” Dkt. # 101 at 7.

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For purposes of this motion, the Court assumes that the sophisticated purchaser defense is

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available in the context of asbestos-related injuries under both Washington and maritime law.2

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The defense applies, however, only where the manufacturer has supplied to the employer all the

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information necessary to make its product safe for use by the end user and has “reasonable

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assurance that the information will reach those whose safety depends upon their having it.”
Restatement (Second) of Torts, § 388, comment n (1965). In the asbestos context, courts have
generally found “that a defendant manufacturer’s passive reliance on the employer to provide
warnings is insufficient to trigger the sophisticated purchaser defense.” Cabasug v. Crane Co.,

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Washington case law on the sophisticated purchaser or learned intermediary doctrine
centers almost exclusively on the pharmaceutical context. See Taylor v. Intuitive
Surgical, Inc., [187 Wn.2d 743, 757-58 (2017)]. But Washington courts have recognized
a variant of the sophisticated purchaser doctrine in toxic tort claims, where a
manufacturer or supplier of the products alleged to have caused the plaintiff’s injuries
warns the plaintiff’s intermediary or employer of the products’ dangerous propensities.
See, e.g., Reed v. Pennwalt Corp., [22 Wn. App. 718 (1979)]. In Reed, the Washington
Court of Appeals held that a caustic soda manufacturer was not required to warn the
employees of a food processing plant of the product’s hazards; the manufacturer fulfilled
its duty by warning the plaintiff’s employer, which purchased the soda and had exclusive
control over its use in the plant. Id. at [724-25]. As the Reed court explained, such
limitations on manufacturer liability “[are] particularly appropriate when...the
intermediate buyer is a large industrial concern with its own safety programs and method
of product distribution and where the manufacturer may have no effective means of
communicating the warnings to the ultimate user.” Id. at [724].

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As recently summarized by the Honorable James L. Robart:

Jack v. Borg-Warner Morse Tec, LLC, C17-0537JLR, 2018 WL 4409800 at *27 (W.D. Wash. Sept. 17,
2018).
ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 5

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988 F. Supp.2d 1216, 1227 (D. Haw. 2013) (collecting cases). Having reviewed the record in

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this matter, the Court adopts the holding in Cabasug:

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[A]lthough Defendant[ has] presented reams of evidence regarding the Navy’s
knowledge of the dangers of asbestos, [it has] presented no evidence that
Defendant[] (1) provided any warnings to the Navy regarding asbestos;
(2) determined the Navy’s knowledge of the dangers of asbestos; or (3) determined
or otherwise reasonably concluded that the Navy would provide warnings to its
employees regarding the dangers of asbestos. In other words, there is no evidence
that Defendants were aware of the Navy's knowledge of the dangers of asbestos, or
had any basis to form the reasonable belief that the Navy would take affirmative
steps to warn its employees. Given the complete lack of evidence suggesting that
Defendants reasonably relied on the Navy, the court finds that Defendants cannot
establish the sophisticated purchaser defense.
988 F. Supp. 2d at 1228.
D. Intervening or Superceding Cause
Warren Pumps asserts that the Navy and/or other manufacturers of asbestos containing

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products failed to warn or protect Mr. Mikelsen and that such failures were the superceding

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cause of any injuries he suffered. To absolve Warren Pumps of liability for its own negligence,

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the intervening negligence must “be so extraordinary or unexpected that it falls outside the realm

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of reasonably foreseeable events” (Hoglund v. Raymark Indus., Inc., 50 Wn. App. 360, 371

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(1987)), it must operate independently of the negligence of the original tortfeasor (Campbell v.

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ITE Imperial Corp., 107 Wn.2d 807, 813 (1987)), and it must produce a “harm different in kind

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from that which would otherwise have resulted from the actor’s negligence” (Stolt Achievement,

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Ltd. v. Dredge B.E. LINDHOLM, 447 F.3d 60, 368 n.25 (5th Cir. 2006)). Warren Pumps has not
shown that any of these elements is satisfied. The fact that an employer did not deconstruct and
ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 6

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test each component of a product purchased for use in the workplace in order to generate its own

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warning labels and safety protocols was neither extraordinary nor unexpected.3 Even if one

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could debate the foreseeability of the Navy’s conduct, the alleged negligence of Warren Pumps,

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the other manufacturers, and the Navy are all of the same kind (a failure to warn shipyard

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employees of the hazards of asbestos exposure) and caused the same injury (asbestos inhalation

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and disease). That Mr. Mikelsen’s mesothelioma may have had more than one proximate cause

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(or more than one substantial contributing factor) does not mean that the concurrent negligence

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of third parties intervened in such a way that it broke the chain of causation between Warren
Pumps’ actions and Mr. Mikelsen’s injury. If plaintiffs are able to establish causation, no
reasonable juror could find that the potentially contributory negligence of the Navy or other

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manufacturers superceded Warren Pumps’ alleged conduct as the cause of Mr. Mikelsen’s

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mesothelioma.

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E. Government Contractor Immunity

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Warren Pumps argues that, as a supplier of military equipment, it is immune from liability
for alleged defects in the design or manufacture of the equipment under the “government
contractor” defense.
The government contractor defense is by now an established component of federal
common law, but it was first recognized by the Supreme Court [thirty] years ago in
Boyle v. United Techs. Corp., 487 U.S. 500 [] (1988). The defense is

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In Little v. PPG Indus., Inc., 19 Wn. App. 812, 825 (1978), the manufacturer appropriately
labeled its product, sent a notice to the decedent’s employer regarding two separate injuries arising from
use of its product, and provided a recommendation regarding how to use the product safely. None of this
information was passed on to the employees. In those circumstances - which have no relationship to the
facts of this case - the employer’s conduct in failing to communicate the manufacturer’s warnings to the
users of the product may have been unforeseeable and unexpected.
ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 7

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intended to implement and protect the discretionary function exception of the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a), which was enacted after
World War II. The defense allows a contractor-defendant to receive the benefits of
sovereign immunity when a contractor complies with the specifications of a federal
government contract. Boyle, 487 U.S. at 511–12 []. As the Court said in Boyle,
“[i]t makes little sense to insulate the Government against financial liability for the
judgment that ... equipment is necessary when the Government produces the
equipment itself, but not when it contracts for the production.” Id. at 512 [].
In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1000 (9th Cir. 2008). A private party
claiming the benefits of the government’s sovereign immunity must show that “(1) the United

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States set forth reasonably precise specifications; (2) the equipment conformed to those

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specifications; and (3) the supplier provided the United States with adequate warnings of the

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dangers.” Rodriguez v. Lockheed Martin Corp., 627 F.3d 1259, 1266 (9th Cir. 2010) (internal

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quotation marks omitted). The general theory is that where the government hires a company to

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produce a piece of equipment and specifies the manner in which that task is to be performed, the

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company is entitled to the same immunity from liability that the government would enjoy

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because it was acting as an arm of the government, without independent discretion. Bixby v.

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KBR, Inc., 748 F. Supp.2d 1224, 1242 (D. Or. 2010).

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In the context of Warren Pumps’ motion for summary judgment, the Court found that it
had not proven, as a matter of law, that the Navy had reasonably precise specifications requiring
the use of asbestos in Warren Pumps’ products or precluding the warnings and labeling that

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would otherwise be required by state law. The question here is whether Warren Pumps has

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raised a genuine issue of fact regarding the existence of those specifications. Warren Pumps

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offers the following opinions of its expert, Rear Admiral David P. Sargent, Jr. (Ret.) to support

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ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 8

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its government contractor defense:
! that “[t]he U.S. Navy, not original equipment manufacturers, specified in detail the
content and technical details of all gaskets, packing materials, and insulation to be used in

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all U.S. Navy shipboard equipment for both original and replacement applications” (Dkt.

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# 102-5 at 33);

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! that these “specifications were communicated to vendors such as Warren Pumps when

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Navy . . . issued Invitation for Bids/Request for Proposals for the manufacture or supply

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of certain equipment, products and materials” (Dkt. # 102-5 at 34); and
! that “OEMs[] such as Warren Pumps would not have been permitted, under the
specifications, associated regulations and procedures, nor under the actual practice as it

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evolved in the field, to vary or to deviate in any respect from the Navy specifications in

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supplying equipment, including affixing any type of warning or caution statement to

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equipment intended for installation in a Navy ship, beyond those specifically required by

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the Navy without prior discussion and express approval by the Navy” (Dkt. # 102-5 at
35).
Rear Admiral Sargent does not identify any particular specification, regulation, or procedure that

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required Warren Pumps to use asbestos in its products or that precluded it from providing

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warnings in the instructions or labels on the equipment. Plaintiffs have not challenged the

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admissibility of this evidence, however, instead simply choosing to ignore its existence. See Dkt.

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# 86 at 19 (declaring that “[t]here is no indication that asbestos-related warnings would have
been rejected”); Dkt. # 111 at 10 (asserting that the government contractor defense relies on “the
existence of military specifications and the fact that the Navy bought products from Warren”).
ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 9

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The Court is not free to ignore evidence at the summary judgment stage. Assuming the expert

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testimony on these points is admissible, there is a disputed issue of fact regarding whether the

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Navy’s specifications and regulations precluded Warren Pumps from satisfying its state law

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duties regarding design and warnings.

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For all of the foregoing reasons, plaintiffs’ motion for summary judgment regarding
certain affirmative defenses is GRANTED in part. Warren Pumps’ failure to mitigate,
contributory negligence, assumption of risk, sophisticated purchaser, and
intervening/superceding cause defenses are hereby DISMISSED. Whether the government
contractor defense applies cannot be resolved as a matter of law on the current record.

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Dated this 9th day of October, 2018.

A

Robert S. Lasnik
United States District Judge

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ORDER GRANTING IN PART MOTION
FOR SUMMARY JUDGMENT REGARDING
AFFIRMATIVE DEFENSES - 10