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

Filing 272

ORDER denying 266 Plaintiff's Motion for Reconsideration. 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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MARIETTA DIANNE YAW,
Individually and as Executor of the
Estate of DONALD ARTHUR YAW

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Plaintiff,
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CASE NO. C18-5405 BHS
ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

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

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Defendants.
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This matter comes before the Court on Plaintiff Marietta Dianne Yaw’s (“Yaw”)
motion for reconsideration. Dkt. 266.
On August 2, 2019, the Court granted Defendants General Electric Company

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(“General Electric”), CBS Corporation (“Westinghouse”), and Foster Wheeler Energy

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Corporation’s (“Foster Wheeler”) (“Defendants”) motion for summary judgment. Dkt.

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255. On August 16, 2019, Yaw filed a motion for reconsideration. Dkt. 266.

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Motions for reconsideration are governed by Local Rule 7(h), which provides as
follows:
Motions for reconsideration are disfavored. The court will ordinarily deny
such motions in the absence of a showing of manifest error in the prior

ORDER - 1

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ruling or a showing of new facts or legal authority which could not have
been brought to its attention earlier with reasonable diligence.

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Local Rules W.D. Wash. LCR 7(h). “[A] motion for reconsideration should not be
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granted, absent highly unusual circumstances, unless the district court is presented with
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newly discovered evidence, committed clear error, or if there is an intervening change in
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the controlling law.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
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2000) (quoting 389 Orange Street Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
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In this case, Yaw moves for reconsideration on the basis of a manifest error of law
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and new evidence. Dkt. 266 at 5. The Court disagrees and denies the motion because
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Yaw fails to meet her burden and Yaw’s arguments ignore pertinent language in the
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order. For example, Yaw argues that “the Court did not distinguish whether it was ruling
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under state or maritime law, a critical distinction given the differing causation standards.”
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Dkt. 266 at 6. Although no party sought this distinction or raised this issue in the briefs,
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the Court cited both state and maritime authorities on the issue of causation. Dkt. 255 at
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7–8 (citing McIndoe v. Huntington Ingalls, Inc., 817 F.3d 1170, 1174 (9th Cir. 2016)
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(maritime); Lockwood v. AC & S, Inc., 109 Wn.2d 235, 245–47 (1987) (state)). In fact,
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the Court even included a footnote that provided as follows: “The Court cites both federal
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maritime law and Washington state law because Yaw’s claims are extremely vague. Yaw,
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however, appears to implicitly accept that her claims may only be brought under these
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two bodies of law because she does not challenge Defendants’ arguments under or
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citations to these laws.” Id. at 8 n.2. Regardless, this issue is now moot because the
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Court concluded that maritime law applies to Yaw’s claims. Dkt. 268 at 3–5.
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Next, Yaw argues that the Court “ignored” her naval expert Captain Arnold Moore

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(“Moore”). Dkt. 266 at 6. Contrary to Yaw’s position, the issue was that Yaw failed to

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establish that Moore’s report was relevant. There is no doubt that Moore has a vast

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knowledge of naval vessels, the equipment aboard those vessels, and the components

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within that equipment. See Dkt. 133-1. Yaw, however, failed to submit any evidence

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placing her husband, Donald Yaw (“Mr. Yaw”), in the proximity of Defendants’

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equipment when asbestos was present. For example, Moore states that “Mr. Yaw

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recalled he worked in the engine rooms on most of the ships on which he was assigned to

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work and recalled he worked in the boiler rooms on at least half of the ships on which he

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worked.” Id. at 7. Unfortunately, this is the extent of Mr. Yaw’s speculative and

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conclusory testimony regarding where and when he worked on naval vessels. For

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example, testimony that Mr. Yaw worked in “most” of the vessels’ engine rooms does

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not establish that he was around or near a Westinghouse turbine on the USS Kitty Hawk

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when asbestos components were either being removed or replaced. This lack of evidence

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as to each defendant is fatal to Yaw’s claims. See, e.g., Lujan v. Nat’l Wildlife Fed’n,

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497 U.S. 871, 888–89 (1990) (“Conclusory, nonspecific statements in affidavits are not

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sufficient, and missing facts will not be presumed.”). More importantly, the absence of

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such factual, baseline evidence makes Moore’s vast knowledge of naval vessels and

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opinions irrelevant to the issues before the Court.

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Finally, Yaw argues that “the law does not require that a victim of a latent disease

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that does not manifest for decades after exposure recall every exposure with specificity.”

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Dkt. 266 at 7 (citing Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22, 30 (1997);

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Lockwood v. AC&S, Inc., 109 Wn.2d 235, 246–47 (1987); Cabasug v. Crane Co., 989 F.

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Supp. 2d 1027, 1033 (D. Haw. 2013), abrogated on other grounds by Air & Liquid Sys.

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Corp. v. DeVries, 139 S. Ct. 986 (2019)). The Court concludes that the Washington

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authorities are irrelevant because maritime law applies to Yaw’s claims. Regarding

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Cabasug, Yaw’s statement is at least misleading because Yaw “must show, ‘for each

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defendant, that (1) [Mr. Yaw] was exposed to the defendant’s product, and (2) the

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product was a substantial factor in causing the injury [Mr. Yaw] suffered.’” Cabasug,

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989 F. Supp. 2d at 1033 (quoting Lindstrom v. A–C Product Liability Trust, 424 F.3d 488

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(6th Cir. 2005)). Moreover, “‘[m]inimal exposure’ to a defendant’s product is

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insufficient,” and “a mere showing that defendant’s product was present somewhere at

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plaintiff’s place of work is insufficient.” Lindstrom, 424 F.3d at 492 (quoting Stark v.

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Armstrong World Indus., 21 Fed. App’x 371, 375 (6th Cir. 2001) (unpublished)). While

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Moore could possibly establish that Defendants’ products were at Mr. Yaw’s place of

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work, Yaw fails to submit any evidence of exposure to those products. Therefore, the

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Court DENIES Yaw’s motion because she (1) fails to show that the Court committed a

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manifest error of law and (2) fails to submit any evidence, let alone new evidence,

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creating a material question of fact on any relevant issue.

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IT IS SO ORDERED.

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Dated this 21st day of August, 2019.

A

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BENJAMIN H. SETTLE
United States District Judge

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