Deem v Air & Liquid Systems Corporation et al

Filing 185

ORDER granting 106 Motion for Summary Judgment. Signed by Judge Benjamin H. Settle. (MGC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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SHERRI L. DEEM, individually and as
Personal Representative of the Estate of
THOMAS A. DEEM, deceased,
Plaintiff,

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CASE NO. C17-5965 BHS
ORDER GRANTING DEFENDANT
CLEAVER-BROOKS’S MOTION
FOR SUMMARY JUDGMENT

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

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Defendants.
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This matter comes before the Court on Defendant Cleaver-Brooks, Inc.’s

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(“Cleaver-Brooks”) motion for summary judgment. Dkt. 106. The Court has considered

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the pleadings filed in support of and in opposition to the motion and the remainder of the

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file and hereby grants the motion for the reasons stated herein.

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I.

PROCEDURAL AND FACTUAL BACKGROUND

Thomas A. Deem (“Mr. Deem”) worked at the Puget Sound Naval Shipyard

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(“PSNS”), from 1974 to 1981 as an apprentice and journeyman outside machinist. Dkt. 1,

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⁋ 14.C. Mr. Deem was exposed to asbestos-containing products during his employment

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ORDER - 1

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from 1974 through approximately 1979. Id. Mr. Deem was diagnosed with mesothelioma

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on February 20, 2015 and died on July 2, 2015. Dkt. 80 at 2.

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On November 20, 2017, Plaintiff Sherri L. Deem (“Mrs. Deem”), on her own

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behalf and on behalf of Mr. Deem’s estate, filed a complaint for personal injury and

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wrongful death, alleging that while working at PSNS Mr. Deem was exposed to asbestos

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and/or asbestos-containing products manufactured and/or sold by Defendants including

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Air & Liquid Systems Corp., CBS Corp. f/k/a Westinghouse Electric, Crane Co., Foster

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Wheeler Energy Corp., General Electric Co., IMO Industries, Inc., and Warren Pumps,

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LLC. Dkt. 1. On June 28, 2018, Mrs. Deem filed a separate action for wrongful death

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against another twenty-three companies including Cleaver-Brooks, FMC, and McNally in

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Deem v. Armstrong Int’l, Inc., et al., Cause No. 3:18-cv-05527 BHS, Dkt. 1. On

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December 13, 2018, that case was consolidated with the instant case for the purposes of

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discovery and for pretrial matters through summary judgment. Dkt. 52.

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Though the complaint against the first set of defendants was titled “Complaint for

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Personal Injury and Wrongful Death,” Dkt. 1 at 1, and the complaint against the second

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set of defendants was titled “Complaint for Wrongful Death,” both complaints contain

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the same product liability claims including negligence, strict products liability, and “any

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other applicable theory of liability,” including “if applicable RCW 7.72 et seq.,” and

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allege that the defendants’ actions or omissions “proximately caused severe personal

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injury and other damages to Plaintiff’s decedent, including his death.” Dkt. 1, ⁋⁋ 17, 19;

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Deem v. Armstrong Int’l, Inc., et al., Cause No. 3:18-cv-05527 BHS, Dkt. 1, ⁋⁋ 34, 36.

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ORDER - 2

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The complaints do not specify whether Mrs. Deem brings her claims pursuant to

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Washington law only, or also pursuant to maritime law. Both appear applicable to her

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claims.

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On April 25, 2019, the Court granted summary judgment for Defendants FMC and

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McNally on Mrs. Deem’s claims to the extent they were brought under Washington law

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(“the April 25th Order”). 1 Also on April 25, 2019, Cleaver-Brooks filed a motion for

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summary judgment on Mrs. Deem’s claims against it to the extent they arise under

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Washington law. Dkt. 106. On May 13, the Court denied Mrs. Deem’s motion for

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reconsideration of the April 25th Order. Dkt. 119. Also on May 13, 2019, Mrs. Deem

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responded to Cleaver-Brooks’s motion. Dkt. 122. On May 17, 2019, Cleaver-Brooks

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replied. Dkt. 130.

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II. DISCUSSION

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Cleaver-Brooks argues that the facts relevant to Mrs. Deem’s claims against

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Cleaver-Brooks are materially indistinguishable from the facts relevant to Mrs. Deem’s

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claims against the defendants granted summary judgment based on the Washington

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statute of limitations in the April 25th Order. Dkt. 106 at 1 (citing Dkt. 105). Mrs. Deem

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does not dispute this. Dkt. 122. In her response, Mrs. Deem again presents argument that

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the Court’s decision in the April 25th Order was erroneous. Id. 2

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Seven other defendants joined the motion and are set out in the April 25th Order. Dkt. 105 at 3.

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Mrs. Deem also suggests that the Court should certify this question to the Washington Supreme
Court. Id. In a subsequent motion, Mrs. Deem informs the Court that she intends to file a motion for
certification. Dkt. 165 at 2 n.1. Should Mrs. Deem file this motion, the Court will consider it in due
course.

ORDER - 3

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Cleaver-Brooks is correct that “[t]he law of the case doctrine generally precludes

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reconsideration of ‘an issue that has already been decided by the same court, or a higher

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court in the identical case.’” Rocky Mountain Farmers Union v. Corey, 913 F.3d 940, 951

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(9th Cir. 2019) (citing United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997)).

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Finding that Cleaver-Brooks is similarly situated to the defendants granted summary

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judgment in the April 25th Order, Dkt. 105, and having already declined to reconsider its

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decision, Dkt. 119, the Court grants summary judgment for Cleaver-Brooks to the extent

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that Mrs. Deem’s claims arise under Washington law for the reasons set forth in its

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previous decisions.

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III. ORDER
Therefore, it is hereby ORDERED that Cleaver-Brooks’s motion for summary

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judgment, Dkt. 106, is GRANTED to the extent Mrs. Deem’s claims arise under

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Washington law.

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Dated this 10th day of June, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 4