Spychalla v. Boeing Aerospace Operations Inc, et al
Filing
157
ORDER signed by Chief Judge William C Griesbach on 6/3/15 denying 69 Motion for Summary Judgment; denying 72 Motion to Exclude; withdrawn motion 75 Motion for Summary Judgment; denying 82 Motion to Exclude; granting in part and denying i n part 83 Motion to Exclude; denying 84 Motion in Limine; denying 85 Motion in Limine; denying 86 Motion to Exclude; denying 87 Motion for Summary Judgment; granting in part and denying in part 88 Motion in Limine; denying 89 Mot ion in Limine; denying 103 Motion for Summary Judgment; granting 122 Motion for Leave to File; denying 138 Motion to Strike ; denying as moot 143 Motion for Leave to File; denying as mooot 145 Motion for Leave to File; denying as moot 146 Motion for Leave to File; denying as moot 150 Motion for Leave to File. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
SHIRLEY D SPYCHALLA,
Plaintiff,
v.
Case No. 11-CV-497
BOEING AEROSPACE OPERATIONS INC et al.,
Defendants.
DECISION AND ORDER ON PRETRIAL MOTIONS
Plaintiff Shirely Spychalla, individually and on behalf of her deceased husband, Leonard
Spychalla, brought this action for strict product liability and negligence against numerous defendants.
Plaintiff claims Mr. Spychalla contracted mesothelioma and died as a result of exposure to the
defendants’ asbestos products during his decades-long career as a pilot and aviation mechanic at
various locations in Wisconsin. The case was transferred to the Eastern District of Pennsylvania for
consolidated pretrial proceedings as part of the United States Judicial Panel on Multidistrict
Litigation (MDL) No. 875, and then remanded to this court for trial on November 4, 2011.
Before the court are motions for summary judgment brought by the three remaining
defendants, The Boeing Company (hereinafter Boeing)1, Cessna Aircraft Company (Cessna) and
General Electric Company (GE). Also before the court are several motions in limine filed by the
defendants and Boeing’s motion for leave to file an additional summary judgment motion based on
the “government contractor defense.” As explained below, the motions for summary judgment will
1
Boeing was erroneously named Boeing Aerospace Operations Inc. in the complaint.
be denied, the motions in limine will be granted in part and denied in part, and Boeing’s motion for
leave to file will be granted.
BACKGROUND
Leonard Spychalla was a pilot and aircraft mechanic who worked for Basler Flight Service
Inc. in Oshkosh, Wisconsin from 1966 to 1972, the Wisconsin Department of Natural Resources in
Madison, Wisconsin from 1972 to 1978, and Kimberly-Clark Aviation in Appleton, Wisconsin from
1978 to 1991. Plaintiff has produced evidence that Mr. Spychalla was exposed to asbestos in the
brakes, gaskets and other parts in Boeing’s McDonnell Douglas DC-3 aircraft at Basler and at the
DNR. She has produced evidence that Spychalla was exposed to asbestos while inspecting and
maintaining Cessna’s model 150s, 172s and 182s at Basler. Finally, Plaintiff has produced evidence
that Spychalla was exposed to asbestos-containing gaskets in GE’s CF 700 and CF 34 engines while
at Kimberly-Clark Aviation. Spychalla was apparently diagnosed with mesothelioma on May 27,
2008 and died less than two weeks later on June 7, 2008.
All three defendants moved for summary judgment in MDL 875 on the ground that there was
insufficient evidence to establish causation of Spychalla’s injuries with respect to any product for
which the respective defendant could be liable. The MDL court, Judge Eduardo Robreno, denied
all three motions, citing testimony of Spychalla’s coworkers and Plaintiff’s aircraft maintenance
expert witnesses about the kind of work Spychalla would have performed during his employment.
For example, in denying Boeing’s motion, Judge Robreno wrote:
Plaintiff has presented evidence that Decedent worked as an airplane pilot and
mechanic, including maintaining hundreds of—and piloting hundreds of flights
on—the McDonnell Douglas DC-3 aircraft during the period 1966 to 1978. She has
2
presented evidence from experts to establish that Decedent would have been exposed
to asbestos from various parts on these aircraft (such as brakes, gaskets, hydraulic
hose coverings, firewall shields,) during various routine activities (such as routine
maintenance work and post-flight inspections of the aircraft, including its brakes and
engines). Under Wisconsin law, a reasonable jury could conclude from the evidence
in the record that Decedent was exposed to respirable asbestos dust from various
component parts used in McDonnell Douglas aircraft such that it was a substantial
factor in the development of his illness.
(ECF No. 114-1 at 7.) Judge Robreno reached similar conclusions from the evidence regarding
Cessna and GE. (ECF Nos. 116-1 at 9 & 117-1 at 8.)
The motions were denied with leave to re-file in this court on remand, however, because
Judge Robreno found “no evidence” that the various component parts from which the asbestos
exposure could have occurred were manufactured or supplied by the defendants. The court
explained that this is because there is no evidence that Mr. Spychalla was exposed to respirable
asbestos dust from a component part original to the defendants’ aircrafts or engines or that any
replacement part to which he was exposed was manufactured or supplied by the defendants.
Accordingly, Judge Robreno concluded that each defendant “is liable for Decedent’s alleged
exposures only if Wisconsin law does not recognize the so-called ‘bare metal defense.’” (ECF Nos.
114-7 at 7, 116-1 at 10 & 117-1 at 8–9.) Because Judge Robreno considered this court to be better
situated to address this question of Wisconsin law, the motions were denied with leave to re-file
upon remand here.
As explained below, all three defendants have thus moved for summary judgment under the
“bare metal defense,” arguing to this court that the defense is a reasonable extension of Wisconsin
tort law. Cessna and GE also argue, as they did in MDL 875, that Plaintiff’s evidence is insufficient
to establish causation. In addition to the bare metal defense, Boeing also asserted a “government
3
contractor defense” that it did not raise in MDL 875. The court struck the new materials Boeing
relied on for the government contractor defense in an earlier oral ruling and directed Boeing to re-file
its summary judgment motion with only the issues common to the other defendants, and to seek
leave separately to file a motion based on the government contractor defense, which Boeing did.
Finally, the defendants have filed various motions in limine and the parties filed a number of
other non-dispositive motions on issues that arose during briefing of the foregoing pre-trial motions.
All of these matters have been fully briefed and the court held oral argument on all pending motions
on May 12, 2015.
ANALYSIS
I.
Summary Judgment Motions
A. Bare Metal
Judge Robreno has characterized the “bare metal defense” as holding that “a manufacturer
is not liable for harm caused by, and owes no duty to warn of the hazards inherent in, asbestos
products that the manufacturer did not manufacture or distribute.” Conner v. Afla Laval, Inc., 842
F. Supp. 2d 791, 801 (E.D. Pa. 2012) (applying defense under maritime law). As noted, each
defendant moves for summary judgment under this defense. Each defendant has submitted proposed
findings of fact, consistent with Robreno’s rulings as noted above, that Plaintiff has presented “no
evidence” that Mr. Spychalla came into contact with any asbestos-containing product made or
supplied by them. Plaintiff failed to timely respond to Defendants’ proposed findings, and therefore
Defendants argue they are entitled to have their proposed findings deemed uncontroverted for
purposes of summary judgment. See Civil L.R. 56(b)(4) (E.D. Wis.).
4
For two reasons, however, it is far from clear, even assuming the Wisconsin Supreme Court
would recognize the bare metal defense, that it applies in this case. First, as the moniker suggests,
the defense would seem to apply to manufacturers of “bare metal” products to which component
parts are added “downstream” in the production line. It is in this context that several of the
Wisconsin trial court decisions the parties each rely on have accepted or rejected the defense in cases
where manufacturers of boilers argue they cannot be held liable for harm caused by asbestoscontaining insulation added to the boilers by other companies. Here, the defendants manufactured
and sold completed products, the components of which wore out and were replaced with
replacement parts presumably very similar to the original components. Thus, if the original
completed products Defendants sold were unreasonably dangerous, they would seem to be
defectively designed, and it makes little sense to preclude liability as a matter of law simply by virtue
of the fact that the decedent did not come into contact with the defective products until some of the
components had been swapped out.2
Second, it does not follow from Defendants’ findings of fact that they are entitled to
judgment as a matter of law under the “bare metal defense” as it is described in the leading state
court decisions upon which Defendants rely. This is because none of the defendants have submitted
a bona fide proposed finding of fact showing that they did not specify that asbestos-containing
2
With respect to a manufacturer who makes one product to which distinct component
parts are added, the Wisconsin Court of Appeals has adopted RESTATEMENT (THIRD ) OF TORTS
§ 5 (1998), which essentially provides that a component part manufacturer is not liable for harm
caused by a defective product manufactured by another, unless the component itself was
defective or the component manufacturer “substantially participated in integrating the
[component] into the . . . system. . . .” Schreiner v. Wieser Concrete Products, Inc., 2006 WI
App 138, ¶ 14, 294 Wis. 2d 832, 720 N.W.2d 525. This case provides little help in the scenario
in this case, however, where the defendants manufactured or sold the system.
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replacement parts should be used in their products.3 In both of the leading cases cited by Defendants
the state supreme courts expressly withheld judgment on whether one can be held liable for harm
caused by another’s product when the one specified or required the use of asbestos-containing
replacement parts. See O’Neil v. Crane Co., 266 P.3d 987, 996 n.6 (Cal. 2012) (“A stronger
argument for liability might be made in the case of a product that required the use of a defective part
in order to operate. In such a case, the finished product would inevitably incorporate a defect. One
could argue that replacement of the original defective part with an identically defective one supplied
by another manufacturer would not break the chain of causation. Similarly, if the product
manufacturer specified or required the use of a defective replacement part, a stronger case could be
made that the manufacturer's failure to warn was a proximate cause of resulting injury. . . . These
difficult questions are not presented in the case before us, and we express no opinion on their
appropriate resolution.” (emphasis in original)); Braaten v. Saberhagen Holdings, 198 P.3d 493,
¶ 38 (Wash. 2008) (“In light of the facts here, we need not and do not reach the issue of whether a
duty to warn might arise with respect to the danger of exposure to asbestos-containing products
specified by the manufacturer to be applied to, in, or connected to their products, or required
because of a peculiar, unusual, or unique design.”).
Plaintiff’s argument is that each defendant “owned or controlled the specifications” of what
replacement parts could be used on its aircraft or aircraft engines and that each defendant “provided
instructions on removal and installation of any replacement parts (including asbestos parts) used in
3
Only Boeing submits that “[t]here is no evidence Decedent ever worked with or around a
part actually manufactured, supplied, or specified by Boeing[,]” but the only factual support cited
is Judge Robreno’s ruling, which itself only speaks to the fact that Boeing neither manufactured
or supplied asbestos parts. (See ECF No. 105, ¶ 32) (emphasis added).
6
its aircraft or aircraft engines.” (ECF No. 111 at 1.) Plaintiff argues it was therefore foreseeable to
each defendant that aviation mechanics like Mr. Spychalla were going to be exposed to asbestos
while conducting routine maintenance on their products and become injured. (Id.) As noted above,
there is no clear rebuttal from the defendants that the foregoing is not true. If it is true, I agree with
Plaintiff that a reasonable jury could find the defendants’ specification that asbestos-containing
replacement parts in their products without a warning about the dangers of asbestos rendered the
product unreasonably dangerous, or that the defendants’ failure to warn was negligent. See Wis.
JI–Civil 3242 (negligent failure to warn) & 3262 (strict liability failure to warn).4 Rather than
produce evidence that Defendants did not specify asbestos products be used with their products,
Defendants challenge the sufficiency of Plaintiff’s evidence. As discussed below, however, I find the
defendants various arguments unpersuasive.
The principal evidence Plaintiff relies on is the February 26, 2015 declaration of her expert
witness Rodney Doss. Doss prepared three substantially similar declarations (one for each
defendant) used in Plaintiff’s opposition to the bare metal defense. Relying on his significant training
and experience as an aircraft mechanic and FAA Airworthiness Inspector, Doss explains that aircraft
are required to be repaired and maintained using maintenance instructions provided by the
Production Approval holding manufacturer. He says strict adherence to the “Instructions for
Continued Airworthiness” of each aircraft, supplied by the manufacturer, is the only way to insure
and maintain the airworthiness status of an aircraft. (ECF Nos. 111-3 through 111-5, ¶ 5.) He
4
The parties ignore any distinction between Plaintiffs’ strict liability and negligence claims
in their papers, as well as the issue of whether Wisconsin’s new strict liability law applies. In her
complaint, Plaintiff sought declaratory relief that the application of Wisconsin’s new law, Wis.
Stat. § 895.047, would be unconstitutional.
7
explains that “Boeing owns or controls all manufacturing specifications for all Boeing aircraft[,]”
(ECF No. 111-3, ¶ 6), and provides similar statements as to the other two defendants (ECF Nos.
111-4 & 111-5, ¶ 6). He explains that replacement parts must “meet or exceed” the manufacturer’s
specifications. He explains that any mechanic working on aircraft would follow the “Instructions for
Continued Airworthiness” provided by the manufacturer concerning the installation of any part. He
opines, based on his experience as a mechanic and his familiarity with the type of work Mr. Spychalla
performed, that for most of the years Spychalla worked with Defendants’ products, to “meet or
exceed” the manufacturer’s specifications would mean to use replacement parts containing asbestos.
Finally, as an example of the manufacturer’s specifications, he provides excerpts from a 1941
maintenance manual for Boeing’s DC-3 and from a 1968 manual for Cessna’s 100-series models.
(ECF Nos. 111-3 at 6 and 111-4 at 6.)
It is worth reiterating that what Defendants did not offer in response to Doss’s declaration
is evidence of their own showing they did not specify that asbestos products be used when replacing
component parts in their airplanes and engines. Of course, Plaintiff has the burden to prove her
case—but here, however ultimately persuasive Doss’s declarations may be, his statements are
essentially not controverted.
Defendants argue that Doss’s declarations are untimely because they are new opinions
outside the scope of his initial report. However, in his initial report, Doss wrote: “Additional
maintenance and repairs are required as a result of normal wear and tear and all repairs or part
replacements must be done in accordance with manufacturers guidance and must be accomplished
using parts or materials specified by the manufacturer.” (ECF No. 111-14 at 2.) Thus his initial
report is not as narrow as Defendants contend. And as the court indicated at oral argument, that an
8
expert’s opinion will become more specific as the issues change and may arguably exceed the scope
of what was in his or her initial written report (here, prepared in 2013) as the case proceeds, is not
surprising and often not a good reason to exclude the new declarations.
Defendants also argue Doss’s new declarations conflict with his deposition testimony. In
Doss’s deposition, he was asked: “When working on an aircraft, mechanics are supposed to follow
the maintenance manuals, correct?” Doss responded: “That is correct, if there are specific
instructions in the maintenance manual.” (ECF No. 82-4 at 193.) Boeing argues this conflicts with
Doss’s new declaration in which he states that strict adherence to “Instructions for Continued
Airworthiness” was the only way to insure and maintain the airworthiness status of an aircraft. I do
not see the contradiction. It is clear from the deposition question and answer that mechanics were
supposed to follow the service manual. All Doss’s answer would appear to concede is that the
manual may not provide a specific instruction for every conceivable issue that might arise with a
broken-down aircraft. He does not say that sometimes the manuals exist and sometimes they do not.
Defendants also argue Doss has no foundation for his new statements. But his opinions are
based on his personal knowledge; Doss’s experience includes personally working on aircraft,
including some experience with Defendants’ aircraft, and in any event, supervising other mechanics
working on these particular kinds of aircraft. To argue that Doss never worked for the defendantcompanies or has limited experience with their aircraft does not necessarily disqualify him. What is
at issue is whether Spychalla would have consulted the manuals and whether the manuals would have
specified that replacement parts contain asbestos. He says so and therefore, given his considerable
experience and without conflicting evidence, a jury could reasonably find Spychalla worked with
asbestos products that were specified by Defendants.
9
Boeing also argues Doss’s statement that all replacement parts meet or exceed the
manufacturer’s specifications conflicts with FAA records. Boeing points to records showing that
the regulatory body that preceded the FAA had the capability and authority to approve changes to
in-service aircraft without the involvement of the manufacturer. Again, however, Doss’s statement
is not contradicted. That someone could petition the regulators to approve use of a new product
appears to show that the manufacturers did generally control what replacement parts would be used,
in the absence of some intervention by the regulators.
Defendants also argue that Doss lacks design and engineering expertise to reliably opine that
certain replacement parts would necessarily contain asbestos in order to function. This may or may
not be true (Plaintiff’s other airplane mechanic expert provided a similar opinion—that based on the
temperatures the products would have to withstand, they must have contained asbestos [ECF No.
113-11 at 6, 7, 9]). However, it remains true that Doss says the manufacturers did specify use of
asbestos part, regardless of whether they were necessarily required given the functionality of the
product and the alternative technology available at the time.
Finally, Defendants argue that even if the court considered Doss’s new declarations,
Plaintiff’s evidence is still not enough to avoid summary judgment. Boeing argues the 1941 service
manual Doss provides would be out of date by the time Spychalla worked on any DC-3, and that the
asbestos parts referred to in the excerpt provided are not the ones Spychalla is alleged to have
worked with anyway. Boeing argues Doss’s reliance on “Instructions for Continued Airworthiness”
is misplaced because the FAA did not promulgate regulations governing uniform aircraft
airworthiness standards until 1980, after Spychalla worked on any DC-3. Cessna makes the same
point regarding its aircraft. Doss did not rely solely on the concept of airworthiness standards,
10
however, and he produced service manuals from before 1980 that specified that asbestos products
be used. The fact that the FAA sought to and in 1980 did standardize airworthiness standards does
not change the fact that according to Doss, a mechanic working in Spychalla’s time would consult
the manufacturer’s service manual. And despite the fact that the particular manuals he would have
consulted (i.e., for the parts and time periods at issue) are not in the record, one could reasonably
take Doss’s word for it and infer that similar such manuals did exist.
B. Other Arguments
Boeing also argues that it is entitled to summary judgment notwithstanding the bare metal
issue because Mr. Spychalla’s injuries were not foreseeable. Boeing relies on the declaration of its
own industrial hygiene expert, Charles Blake, who opined that “the state-of-the-art scientific
knowledge regarding asbestos-related health hazards in the 1950s, 1960s, and 1970s, would not have
included any information or knowledge that an aircraft mechanic performing general maintenance,
repairs or overhauls of aircraft which incorporated the typical asbestos-containing components, or
anyone present when such work was performed on aircraft, would have an increased risk of
developing an asbestos-related disease.” (ECF No. 79, ¶ 10.) However, even if true, Blake’s
opinion is only relevant to Plaintiff’s negligence claim. The Wisconsin Supreme Court has held that
“regardless of whether a manufacturer could foresee potential risks of harm inherent in its defective
and unreasonably dangerous product, strict products liability holds that manufacturer responsible for
injuries caused by that product.” Green v. Smith & Nephew AHP, Inc., 2001 WI 109, ¶ 56, 245 Wis.
2d 772, 629 N.W.2d 727. Also, Blake’s opinion appears to contradict that of Plaintiff’s industrial
hygiene expert, Steven Paskal, who stated that “[s]tandards respecting the obligation to warn of the
carcinogenicity of asbestos have been the same since the 1940s and have always required a clear
11
identification of asbestos presence and its most serious risk, cancer.” (ECF No. 74-21, ¶ 3.)
Cessna and GE have also moved for summary judgment on the grounds that Plaintiff has
failed to raise a genuine dispute of material fact that asbestos in products they supplied caused Mr.
Spychalla’s illness, and that Plaintiff’s expert witness evidence as to causation is inadmissible. I find
her expert evidence is admissible, however, as explained below. Further, Cessna’s and GE’s
arguments as to causation raise the very same facts and law Judge Robreno addressed when he
denied the defendants’ motions for summary judgment earlier in this case. There is no indication that
Judge Robreno intended to allow the defendants to raise these same arguments in this court; rather,
it appears he denied summary judgment with leave to re-file solely on the discrete legal issue of
whether Wisconsin law is consistent with the bare metal defense. Indeed, it would defeat the
purpose of using MDL for consolidated pretrial proceedings if the parties could simply re-hash all
of the arguments previously addressed by the MDL court. In any event, I find Judge Robreno
properly applied Wisconsin law regarding product identification and causation in the asbestos
context, and therefore I see no reason to revisit these issues now. Accordingly, Defendants’ motions
for summary judgment will be denied.
II.
Daubert Motions
Defendants have also filed a variety of motions in limine challenging Plaintiff’s expert
witnesses under Daubert v. Merrell Dow Pharaceuticals, 509 U.S. 579 (1993). First, each
defendant moves to exclude the testimony of Plaintiff’s airplane experts, Michael Plavchan and
Rodney Doss, and Plaintiff’s industrial hygiene expert, Steven Paskal. Judge Robreno considered
objections to Plavchan and Doss’s reports in denying Cessna’s motion for summary judgment in
MDL 875. He wrote:
12
The only expert evidence that the Court needs to consider in order to decide
Defendant’s motion is the report of expert Michael Plavchan and the report of
Rodney Doss. Because these experts have the appropriate background and work
training and experience, and because they have provided a sound explanation as to
how they are able to opine that the parts at issue contained asbestos and why
Decedent would have been exposed to them during his work on Defendant’s aircraft,
the Court deems this expert evidence to be sufficiently sound and reliable to satisfy
the requirements of Rule 702 of the Federal Rules of Evidence, and to survive a
challenge pursuant to [Daubert].
(ECF No. 116-1 at 8–9.) The analysis was not particularly detailed and, as Defendants note, Judge
Robreno’s practice was to leave Daubert issues for the trial court on remand. Therefore Defendants
have filed detailed arguments attacking these experts’ opinions. Cessna also challenges the opinions
Plavchan and Doss gave in their depositions to the extent they relied on the declaration of Mr.
Spychalla’s coworker Alan Bernette, which was created after these experts prepared their initial
reports. Judge Robreno rejected this objection on the bases that the Bernette declaration itself was
not untimely and did not contradict Bernette’s prior deposition testimony, and that Doss and
Plavchan’s reliance on it was not improper because Plaintiff’s counsel provided the Bernette
declaration to Defendants before the experts’ depositions.
Like Judge Robreno, I am satisfied that Plavchan, Doss and Paskal are qualified, that their
methodology is reliable and that their opinions will assist the trier of fact understand the evidence
and determine facts in issue. Generally, Defendants’ main objection to Plavchan, Doss and Paskal
is that their opinions are based on their own experience rather than factual information about this
case. But Paskal’s report was based on Spychalla’s resume and his conversations with Spychalla’s
coworkers. (ECF No. 74-21, ¶¶ 4–5.) Doss’s report was based on Mr. Spychalla’s resume “and
other materials pertaining to this case,” as well as, of course, Doss’s considerable experience doing
similar work as Spychalla. Likewise, Plavchan’s report was based on the fact that Mr. Spychalla was
13
a Certified Airframe and Powerplant mechanic and his expertise regarding the work such an
individual would perform. (ECF No. 111-2 at 1.) What these experts need to know about the facts
of this case is what type of work Spychalla performed. Using the sources and kinds of information
that must be used since Spychalla is deceased, these experts applied their expertise, their experience,
to the facts, which was that Spychalla performed various repairs and maintenance at airfields where
the defendants’ planes and products were used. This is in contrast to a case like that cited by Cessna
where Judge Robreno rejected a similar expert report about the duties of an aircraft mechanic
because in that case, the only specific evidence about the duties of the “mechanic” alleged to have
come into contact with asbestos parts related to painting aircraft and other jobs that would not have
exposed him to the asbestos parts in the planes. (ECF No. 74-29 at 5.) The motions to exclude
Plavchan, Doss and Paskal’s testimony will therefore be denied.
Defendants also move to exclude Plaintiff’s medical experts from testifying based on an “any
exposure” theory of causation, which essentially holds that any and every exposure to asbestos above
background levels can be a significant contributing factor in the development of mesothelioma. Such
a theory was rejected in Kirk v. Crane Co., --- F. Supp. 3d ---- , 2014 WL 7330901 (E.D. Ill. 2014),
where the district court concluded that it was not reliable. In response, Plaintiff has stipulated that
no such testimony will be offered as part of her medical causation testimony. (ECF No. 109.)
As the defendants made clear in oral argument, however, their position is that Plaintiffs’
causation experts should be barred from testifying entirely. Their main argument, similar to that
regarding Plaintiffs’ other experts, is that the medical experts’ opinions are not sufficiently tied to
the facts of this case—that their opinions are not based on actual levels of exposure to particular
products the defendants are responsible for. A similar argument was made and rejected in Kirk,
14
however, and I find the reasoning in that case persuasive. 2014 WL 7330901, at * 6–7. It has
already been decided in this case Plaintiff has produced sufficient evidence that Mr. Spychalla was
exposed to products the defendants manufactured and/or assembled and sold. Plaintiffs’ medical
experts, whose qualifications the defendants do not challenge, will therefore be allowed to testify
based on the evidence of his exposure that is introduced at trial. Plaintiffs’ experts may not testify
that “any exposure” to asbestos was a substantial factor in causing Spychalla’s injuries, but beyond
that prohibition, the defendants’ arguments about the sufficiency of the evidence can be addressed
through cross-examination. Aside from the caveat regarding testimony based on the “any exposure”
theory, the motions in limine will therefore be denied.
III.
Boeing’s Motion for Leave to File
Boeing has also filed a motion for leave to file a motion for summary judgment based on the
“government contractor defense.” The motion is based on the fact that the Boeing aircraft at issue
were manufactured for use by the United States military in World War II. The planes were
apparently converted to commercial planes by other companies after the war, long before decedent
came into contact with them. Boeing states that it asserted this defense for the first time in this court
(long after the MDL’s summary judgment deadline) because it only learned what particular planes
were at issue in this case after Plaintiff produced Mr. Spychalla’s flight logs at the very close of
discovery in MDL 875, and that only then could it have learned of the applicability of the defense.
Plaintiff argues Boeing does not have good cause for its late submission, but as the court indicated
at oral argument, it is not clear how Plaintiff would be prejudiced by Boeing’s new defense, given
that sufficient time remains before the trial date in which Plaintiff can depose witnesses Boeing relies
on for support of its defense. Accordingly, Boeing’s motion for leave is granted and Boeing is
15
ordered to file its summary judgment motion within ten days of the date of this order.
CONCLUSION
THEREFORE, IT IS HEREBY ORDERED:
Defendants’ motions for summary judgment (ECF Nos. 69, 87 & 103) are DENIED.
Defendants’ motions in limine (ECF No. 83 & 88) are GRANTED IN PART AND
DENIED IN PART, and the remaining motions in limine (ECF Nos. 72, 82, 84, 85, 86 & 89) are
DENIED.
Boeing’s motion for leave (ECF No. 122) is GRANTED and Boeing is ordered to file its
motion for summary judgment on the government contractor defense within ten days of the date of
this order.
Cessna’s motion to strike (ECF No. 138) is DENIED.
Boeing’s initial motion for summary judgment (ECF No. 75) was withdrawn and is therefore
TERMINATED.
Plaintiff’s motions for leave (ECF Nos. 143, 145, 146 & 150) are DENIED AS MOOT.
Dated this 3rd day of June, 2015.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court
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