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

Filing 403

ORDER granting 363 Motion for Summary Judgment; Weir Valves & Controls USA Inc (individually and as) terminated. Signed by Judge Robert J. Bryan. (JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DONALD VARNEY AND MARIA
VARNEY, husband and wife,

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Plaintiffs,

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

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CASE NO. C18-5105 RJB
ORDER GRANTING DEFENDANT
WEIR VALVES & CONTROLS
USA, INC.’S MOTION FOR
SUMMARY JUDGMENT

Defendants.
This matter comes before the Court on the Motion for Summary Judgment of Defendant
Weir Valves & Controls USA, Inc. d/b/a Atwood & Morrill Co., Inc.’s (“Weir Valves”). Dkt.
363. The Court is familiar with the records and files herein and all documents filed in support of
and in opposition to the motion.
For the reasons stated below, Weir Valves’ Motion for Summary Judgment (Dkt. 219)
should be granted.

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ORDER GRANTING DEFENDANT WEIR VALVES & CONTROLS USA, INC.’S MOTION FOR SUMMARY
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I.

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BACKGROUND

The above-entitled action was commenced in Pierce County Superior Court on February

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2, 2018. Dkt. 1, at 2. Notice of removal from the state court was filed with this Court on

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February 12, 2018. Dkt. 1.

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In the operative complaint, Plaintiffs allege that Plaintiff Donald Varney (“Mr. Varney”),

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now deceased, was exposed to asbestos while working as a marine machinist at the Puget Sound

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Naval Shipyard and Hunter’s Point Naval Shipyard, and through personal automotive exposure

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and from his father’s automotive exposure. Dkt. 342, at 5. “Plaintiffs claim liability based upon

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the theories of product liability, including not but limited to negligence, strict product liability

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…, conspiracy, premises liability, the former RCW 49.16.030, and any other applicable theory of

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liability, including, if applicable, RCW 7.72 et seq.” Dkt. 342, at 5; see generally § II(D), infra.

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Mr. Varney passed away from mesothelioma on February 8, 2018 (Dkt. 220-1), before

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being deposed (Dkt. 245-2). On December 7, 2018, one day before his passing, Mr. Varney

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apparently signed an affidavit purportedly identifying several asbestos-containing materials that

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he worked with and that were manufactured by various defendants. Dkt. 342.

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Dr. John Maddox, Plaintiffs’ causation expert in this matter, reviewed Mr. Varney’s

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medical records and his aforementioned affidavit. Dkt. 309, at 4. Dr. Maddox, relying, in part, on

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Mr. Varney’s affidavit, opined that Mr. Varney’s “lethal malignant pleural mesothelioma was

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caused by his cumulative asbestos exposures to a variety of component exposures.” Dkt. 313-11,

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at 4.

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Numerous defendants, in their respective motions for summary judgment and in

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additional briefs, raised issues regarding the admissibility of Mr. Varney’s affidavit and Dr.

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Maddox’s opinion. See, e.g., Dkts. 217; 219; 237; 257; 281; 285; 363; 378; 380; 382; and 384.

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ORDER GRANTING DEFENDANT WEIR VALVES & CONTROLS USA, INC.’S MOTION FOR SUMMARY
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They argued that the affidavit, and Dr. Maddox’s opinion relying thereon, were inadmissible as

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evidence. Id.

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The Court invited additional briefing regarding the admissibility of Mr. Varney’s

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affidavit and Dr. Maddox’s opinion. Dkt. 255. Upon review of the additional briefing, the Court

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ordered that an evidentiary hearing be held to determine the admissibility of the affidavit and

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opinion. Dkt. 300. After a mini-trial lasting more than two days, the Court held that the affidavit

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and opinion are inadmissible as evidence regarding summary judgment motions and at trial. Dkt.

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361, at 1.

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Weir Valves argues that, because the affidavit and opinion are inadmissible, pursuant to

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FRCP 56, “there is no evidence supporting any of plaintiffs’ … claims … or ‘any other

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applicable theory of liability.’” Dkt. 363, at 2.

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II.

DISCUSSION

A. SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the pleadings, the discovery and disclosure materials

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on file, and any affidavits show that there is no genuine issue as to any material fact and that the

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movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is

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entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient

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showing on an essential element of a claim in the case on which the nonmoving party has the

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burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of

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fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for

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the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586

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(1986) (nonmoving party must present specific, significant probative evidence, not simply “some

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metaphysical doubt.”). See also Fed. R. Civ. P. 56(d). Conversely, a genuine dispute over a

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ORDER GRANTING DEFENDANT WEIR VALVES & CONTROLS USA, INC.’S MOTION FOR SUMMARY
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material fact exists if there is sufficient evidence supporting the claimed factual dispute,

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requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby,

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Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors

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Association, 809 F.2d 626, 630 (9th Cir. 1987).

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The determination of the existence of a material fact is often a close question. The court

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must consider the substantive evidentiary burden that the nonmoving party must meet at trial –

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e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect.

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Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor

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of the nonmoving party only when the facts specifically attested by that party contradict facts

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specifically attested by the moving party. The nonmoving party may not merely state that it will

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discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial

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to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra).

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Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not

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be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888–89 (1990).

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B. WASHINGTON STATE SUBSTANTIVE LAW APPLIES

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Under the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts sitting in

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diversity jurisdiction apply state substantive law and federal procedural law. Gasperini v. Center

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for Humanities, Inc., 518 U.S. 415, 427 (1996).

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C. SUMMARY JUDGMENT ANALYSIS

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1. Washington Products Liability Standard

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“Generally, under traditional product liability theory, the plaintiff must establish a

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reasonable connection between the injury, the product causing the injury, and the manufacturer of

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that product. In order to have a cause of action, the plaintiff must identify the particular

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ORDER GRANTING DEFENDANT WEIR VALVES & CONTROLS USA, INC.’S MOTION FOR SUMMARY
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manufacturer of the product that caused the injury.” Lockwood v. AC & S, Inc., 109 Wn.2d 235,

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245–47 (1987) (quoting Martin v. Abbott Laboratories, 102 Wn.2d 581, 590 (1984)).
Because of the long latency period of asbestosis, the plaintiff's
ability to recall specific brands by the time he brings an action will
be seriously impaired. A plaintiff who did not work directly with
the asbestos products would have further difficulties in personally
identifying the manufacturers of such products. The problems of
identification are even greater when the plaintiff has been exposed
at more than one job site and to more than one manufacturer's
product. [] Hence, instead of personally identifying the
manufacturers of asbestos products to which he was exposed, a
plaintiff may rely on the testimony of witnesses who identify
manufacturers of asbestos products which were then present at his
workplace.

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Id. (citations omitted).
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Lockwood prescribes several factors for courts to consider when “determining if there is
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sufficient evidence for a jury to find that causation has been established”:
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1. Plaintiff’s proximity to an asbestos product when the exposure occurred;
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2. The expanse of the work site where asbestos fibers were released;
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3. The extent of time plaintiff was exposed to the product;
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4. The types of asbestos products to which plaintiff was exposed;
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5. The ways in which such products were handled and used;
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6. The tendency of such products to release asbestos fibers into the air depending on their
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form and the methods in which they were handled; and
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7. Other potential sources of the plaintiff’s injury.
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Id. at 248–49.
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2. Washington Products Liability Analysis
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Plaintiffs have not offered evidence admissible for summary judgment establishing a
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reasonable connection between Mr. Varney’s mesothelioma, products manufactured by Weir
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ORDER GRANTING DEFENDANT WEIR VALVES & CONTROLS USA, INC.’S MOTION FOR SUMMARY
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Valves, and Weir Valves itself. Plaintiffs have pointed to historical evidence showing that Weir

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Valves’ valves were supplied with asbestos-containing gaskets and packing and that it sold them

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without warning of the dangers of asbestos exposure. See Dkt. 392, at 2–9. However, crucially,

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Plaintiffs have not offered admissible evidence showing, even viewed in a light most favorable

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to Plaintiffs, that Weir Valves or products that it manufactured caused, or a were a substantial

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factor that caused, Mr. Varney’s mesothelioma.

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Despite the Court’s April 17, 2019 ruling excluding this evidence, the Plaintiffs

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apparently still seek to use Mr. Varney’s affidavit and Dr. Maddox’s report to establish causation

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and a reasonable connection between Mr. Varney’s mesothelioma, Weir Valves’ products, and

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Weir Valves. See Dkt. 392, at 2–4. They state that they “refer to these documents not only in the

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hope that they Court will reconsider its decision to exclude [them,] but also to ensure the record

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is complete for appellate purposes.” Id., at 2. The Plaintiffs maintain that there is “considerable

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circumstantial evidence that Mr. Varney was exposed to asbestos attributable to Weir” Valves.

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Dkt. 392, at 10. The Plaintiffs then point to portions of Mr. Varney’s affidavit, where he

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“declared before his death that he was regularly exposed to asbestos dust generated from the

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removal and replacement of gaskets and packing associated with valves and pumps . . . [that] the

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work . . . [was] . . . very dusty. . . [and that it] created dust which Mr. Varney regularly

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breathed.” Id. The Plaintiffs assert that Weir Valves’ corporate representative confirmed it

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“sold, shipped and manufactured valves which used asbestos-containing gaskets and asbestos

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packing.” Id. They note that their “causation expert Dr. Maddox has opined that Mr. Varney’s

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repetitive, high, and prolonged exposures to asbestos gaskets and packing were sufficient to

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cause Mr. Varney’s mesothelioma.” Id. The Plaintiffs argue that a reasonable jury could

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conclude that Mr. Varney was exposed to asbestos products supplied by Weir Valves. Id., at 9.

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ORDER GRANTING DEFENDANT WEIR VALVES & CONTROLS USA, INC.’S MOTION FOR SUMMARY
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To the extent that the Plaintiffs move for reconsideration of the April 17, 2019 order

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excluding Mr. Varney’s affidavit and Dr. Maddox’s report, the motion should be denied. Aside

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from being untimely, (under W.D. Wash. Local Rule 7 (h)(2) motions for reconsideration are to

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be filed within 14 days after the order to which they relate, and this motion was filed on May 6,

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2019 – 5 days too late), pursuant to Local Rule 7 (h)(1), “motions for reconsideration are

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disfavored. The court will ordinary deny such motions in the absence of a showing of manifest

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error in the prior ruling or a showing of new facts or legal authority which could not have been

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brought to its attention earlier.” The Plaintiffs fail to make such a showing. They do not point to

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“a manifest error in the prior ruling,” or to “new facts or legal authority which could not have

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been brought to [the court’s] attention earlier.” Mr. Varney’s affidavit and Dr. Maddox’s

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opinion are inadmissible as evidence in regard to summary judgment or at trial.

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In the absence of Mr. Varney’s affidavit and Dr. Maddox’s opinion as evidence in regard

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to summary judgment, and in consideration of the Lockwood factors above, there is nothing the

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Court can use to determine whether there is sufficient evidence for a jury to find that causation—

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a necessary element of Plaintiffs’ claim—has been established.

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Therefore, the Court should grant Weir Valves’ Motion for Summary Judgment (Dkt.
237) and dismiss Weir Valves from this case.
D. OTHER POSSIBLE CLAIMS
The operative complaint’s causes of action are vague. See Dkt. 342, at 5 (“Plaintiffs

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claim liability based upon the theories of product liability, including not but limited to

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negligence, strict product liability …, conspiracy, premises liability, the former RCW 49.16.030,

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and any other applicable theory of liability, including, if applicable, RCW 7.72 et seq.”). Many

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theories or claims can be gleaned therefrom, but, in response to Weir Valves’ Motion for

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ORDER GRANTING DEFENDANT WEIR VALVES & CONTROLS USA, INC.’S MOTION FOR SUMMARY
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Summary Judgment, Plaintiffs apparently limit their discussion of claims and theories to just

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Washington products liability. See Dkt. 392, at 9–12. In this order, the Court has done the same.

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See § (II)(C), supra.

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Plaintiffs’ vague complaint and limited discussion are problematic. For example, in

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Defendant Warren Pumps, LLC’s (“Warren”) Motion for Summary Judgment, filed on April 24,

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2019, and noted for May 17, 2019, Warren appears to couch its arguments principally in

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maritime law. See Dkt. 378. Warren appears to discuss Washington products liability law only as

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an alternative theory of the Plaintiffs. See Dkt. 378.

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In the instant motion, Weir Valves’ discussion appears limited to Washington products

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liability, causation and Lockwood. Dkt. 363. With the exception of Warren, the defendants

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moving for summary judgment appear to have couched their arguments in Washington products

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liability, focusing primarily on the Lockwood factors above.

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Regardless, causation is an essential element under either Washington products liability

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or maritime-based tort law (see, e.g., Lockwood, 109 Wn.2d at 235; Lindstrom v. A-C Product

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Liability Trust, 424 F.3d 488, 492) (6th Cir. 2005)), and Plaintiffs have not offered evidence

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showing that causation has been established. See § II(c)(2), supra.

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E. ADDITIONAL COMMENTARY
The Court’s order here is a sad one. Mr. Varney passed away from mesothelioma, likely

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as a result of his work at the shipyards. Given the circumstances of his passing, it appears that

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there is no evidence to support a claim available against the industry in which Mr. Varney

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worked. The Court cannot find causation without evidence, and there is none here, under the

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Federal Rules of Evidence.

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III.

ORDER

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ORDER GRANTING DEFENDANT WEIR VALVES & CONTROLS USA, INC.’S MOTION FOR SUMMARY
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Therefore, it is hereby ORDERED that:
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To the extent that the Plaintiffs move for reconsideration of the April 17, 2019

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order excluding Mr. Varney’s affidavit and Dr. Maddox’s report (Dkt. 392), the

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motion should be denied.

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•

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Defendant Weir Valves & Controls USA, Inc. d/b/a Atwood & Morrill Co., Inc.’s
Motion for Summary Judgment (Dkt. 363) is GRANTED; and

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Weir Valves & Controls USA, Inc. d/b/a Atwood & Morrill Co., Inc. is
DISMISSED from the case.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and
to any party appearing pro se at said party’s last known address.
Dated this 13th day of May, 2019.

A
ROBERT J. BRYAN
United States District Judge

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ORDER GRANTING DEFENDANT WEIR VALVES & CONTROLS USA, INC.’S MOTION FOR SUMMARY
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