Berry v. Crown Cork & Seal Co.

14 P.3d 789, 103 Wash. App. 312
Court of Appeals of Washington·Decided July 17, 2000·No. No. 44546-4-I·Published·Cited by 19 cases

Opinion

Ellington, J.

James Berry worked at the Puget Sound Naval Shipyard in 1942 and from 1945 to 1950. He died of mesothelioma, which is caused by exposure to asbestos products. His estate and surviving spouse sued Saberhagen Holdings, Inc., alleging that its predecessor, Charles R. Brower Company, supplied the asbestos-containing products to the shipyard. The trial court granted Saberhagen’s motion for summary judgment on the basis that the evidence on which plaintiffs relied — a 1984 affidavit, 1984 deposition, and 1993 trial testimony, each provided by the same fact witness — clearly contradicted each other. We hold that the evidence, while arguably inconsistent, did not meet the “clear contradiction” standard set forth under the Marshall1 rule, and that the plaintiffs presented sufficient evidence to raise a genuine issue of material fact as to whether Berry was exposed to Brower products at the shipyard. Accordingly, we reverse the trial court’s grant of summary judgment in favor of Saberhagen and remand the case for trial.

FACTS

Mesothelioma is a cancer in the lining of the lung caused by asbestos exposure. James Berry’s estate and surviving [315]*315spouse sought damages from Saberhagen Holdings, Inc. (Saberhagen) on the basis that Berry contracted the disease because he was exposed to asbestos-containing products while employed at the Puget Sound Naval Shipyard (PSNS). The plaintiffs2 alleged that Saberhagen’s predecessor, Charles R. Brower Company (Brower), distributed the asbestos-containing products to PSNS.

On summary judgment, the trial court dismissed the plaintiffs’ claims against Saberhagen, concluding that there was insufficient evidence to raise a genuine issue of material fact that Berry had ever been exposed at PSNS to asbestos-containing products supplied by Brower. The parties presented the following evidence at summary judgment.

Evidence of Brower Products at PSNS

Al Lede

The principal source of evidence regarding the presence of Brower-supplied asbestos-containing products at PSNS was the testimony of Al Lede, which was given in unrelated litigation. Lede worked at PSNS from 1939 through 1944 and again from 1946 to 1951. Lede’s evidence took three forms: (1) an affidavit dated August 31, 1984; (2) a deposition taken the same day, August 31, 1984; and (3) trial testimony given on March 24, 1993. Because of the centrality of Lede’s evidence in this appeal, we quote in part from each source of testimony.

In his 1984 affidavit, Lede stated that he was employed as a purchasing agent from 1942 to 1944, and became a purchasing supervisor when he returned to PSNS in 1946. Lede explained:

My duties included either purchasing or supervising the purchasing of asbestos-containing thermal insulation products for use at the Navy Yard. My recollection is that when thermal insulation products were purchased at least 50% of the products were purchased from local sources in the Seattle area, [316]*316such as the Brower Company or E.J. Bartells. In these cases our purchases were made directly from these local commercial outlets rather than from the manufacturers. Many of these purchases were made orally over the telephone.

In his 1984 deposition, Lede was asked about the procurement of thermal insulation products at PSNS:

Q: During this period of time between 1939 and 1943 when you were drafted, during any of the times that you held any of the positions that you have just discussed did you deal at all with procurement of thermal insulation products?
A: Yes, to some degree. It was merely one item out of a whole variety of others that we procured.
Q: Do you recall, sir, whether or not you dealt specifically with asbestos thermal insulation products?
A: We did have two items that I recall from memory. That was the pipe covering and the plain sheets of asbestos that we did procure from time to time.
Q: Do you recall from whom you procured this pipe covering?
A: There were two major suppliers that got so much of the business that I can recall them very well. One of them was Johns-Manville themselves and the other was E.J. Bartell which is a local dealer or jobber here in the Seattle area. There were others that may have occasionally gotten a smattering of business but they were the major ones.

Finally, Lede testified at a 1993 trial about the procurement of asbestos-containing material at PSNS between 1949 and 1951:

Q: Did you from time to time have occasion to purchase asbestos-containing materials for use on ships during the time period 1949 to 1951?
A: Yes.
Q: Okay. Did you on occasion purchase from local distributors in the Puget Sound area asbestos-containing insulation materials?
A: Yes.
Q: Okay. And can you recall the names of any of those distributors?
[317]*317A: Yes. There was Asbestos Supply Company and Pioneer Sand & Gravel, Charles R. Brewer [sic], and E.J. Bartells were the main ones that I can remember.
Q: Okay. Can you describe the kind of circumstances when you would buy from local distributors?
A: Well, the circumstances, usually in the shipyard, was that everything was wanted yesterday, and consequently we always resorted to the local trade area to find the stock that was available. And in my particular unit we rarely ever ventured out of the Seattle-Tacoma area for our supplies.
Q: Okay. But just so something is clear. The main supplies of asbestos insulation materials were bought from the manufacturers. Is that correct?
A: That is correct.
Q: Okay. How frequent was it that you bought from, if you can recall, from local distributors?
A: Well, local distributors were always used for the smaller amounts and the ones that were needed almost immediately, and of course asbestos products was really a minor portion of the shipyard’s materials that we bought. So the frequency of buying was infrequent.
Q: Okay. An occasional, was it an occasional basis?
A: Yes, ma’am.

Charles Downey & Ben Bradley

Information regarding the presence of Brower-supplied asbestos-containing products at PSNS also came from Charles Downey and Benjamin Bradley. Downey worked as an insulator at PSNS from 1941 to 1948. He testified that Philip Carey (Carey) and Plant Rubber & Asbestos (Plant) products were commonly used on ships being repaired at PSNS. When asked where PSNS obtained the asbestos products, he responded, “Well, they obtained a lot of them right from Seattle, to the companies here in Seattle. Also, I suppose you had some shipped in.”

Bradley worked as an insulator in the Seattle area during the 1940s. In 1988 trial testimony, Bradley stated that [318]*318Brower had been a distributor for Plant and Carey products.

Evidence of Berry’s Exposure to Asbestos Products

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Berry v. Crown Cork & Seal Co., 14 P.3d 789, 103 Wash. App. 312 (Wash. Ct. App. 2000).

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