Morgan v. Aurora Pump Co.

159 Wash. App. 724
CourtCourt of Appeals of Washington
DecidedJanuary 31, 2011
DocketNo. 63923-4-I
StatusPublished
Cited by12 cases

This text of 159 Wash. App. 724 (Morgan v. Aurora Pump Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morgan v. Aurora Pump Co., 159 Wash. App. 724 (Wash. Ct. App. 2011).

Opinion

Spearman, J.

¶1 — This appeal stems from an asbestos lawsuit. Kay Morgan appeals the summary judgment dismissal of the Morgans’ claims against Aurora Pump Co., Buffalo Pumps Inc., Elliott Co., IMO Industries Inc. (formerly DeLaval Turbine Inc.), Leslie Controls Inc., Warren Pumps LLC, Weir Valves & Controls USA Inc. (formerly Atwood & Morrill Co. Inc.), and Wm. Powell Co. (collectively Respondents).1 James Morgan worked for Puget Sound [727]*727Naval Shipyard (PSNS) for approximately 37 years, at times during which he performed functions that exposed him to asbestos. He eventually developed mesothelioma. On August 29, 2007, Morgan filed a lawsuit in King County Superior Court against numerous defendants for personal injuries sustained due to asbestos exposure. The trial court dismissed the action on summary judgment as to Respondents. Morgan appeals. We reverse and remand for trial.

FACTS

¶2 On August 29, 2007, James and Kay Morgan filed a lawsuit against approximately 50 defendants for personal injuries sustained by James Morgan due to asbestos exposure. Their claims were primarily based on the theories of products liability, negligence, strict liability under Restatement (Second) of Torts § 402, and breach of warranty. Morgan had been employed by PSNS from 1952 to 1989. He worked as a pipefitter/steamfitter from 1952 to 1957 and from 1959 to 1963, and as a marine/mechanical engineering technician and design division test coordinator from 1963 to 1989. In 2006 or 2007, he was diagnosed with mesothelioma. Morgan died in January 2008, before his deposition could be completed. After his death, Kay Morgan maintained the action.* 2

¶3 Respondents are manufacturers of pumps and valves. Morgan alleges that while he was employed at PSNS, Respondents supplied his employer with pumps and valves that included packing or gaskets containing asbestos. He further alleges that Respondents supplied replacement packing or gaskets to PSNS that also contained asbestos. Morgan claims that when he and others in his presence [728]*728worked on Respondents’ products, asbestos fibers were released into the air. He claims that he developed mesothelioma as a result of inhaling some of these fibers.

¶4 Respondents filed separate motions for summary-judgment dismissal of Morgan’s claims, relying primarily on Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008) and Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008). In those cases, the Washington Supreme Court held, in relevant part, that a manufacturer owes no common law duty to warn of the hazards of an asbestos-containing product that it did not manufacture, sell, or supply. Simonetta, 165 Wn.2d at 354; Braaten, 165 Wn.2d at 389-90. Respondents argued below that under Simonetta and Braaten, dismissal was proper because Morgan could not produce evidence creating a material factual dispute that Respondents manufactured, sold, or supplied any of the asbestos-containing products to which he may have been exposed. Respondents also argued that Morgan’s evidence did not establish a material factual dispute that their products were a substantial factor in causing his mesothelioma.

¶5 The trial court granted the Respondents’ motions and dismissed Morgan’s claims with prejudice. Morgan appeals.3

DISCUSSION

¶6 The court reviews summary judgment decisions de novo, engaging in the same inquiry as the trial court. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003). ‘When ruling on a summary judgment motion, the court is to view all facts and reasonable inferences therefrom most favorably toward the nonmoving party.” Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000) (citing Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wn.2d 891, 897, 874 P.2d 142 (1994)). [729]*729Summary judgment is proper if the pleadings, depositions, answers, and admissions, together with the affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).

¶7 It is well settled that asbestos plaintiffs in Washington may establish exposure to a defendant’s product through direct or circumstantial evidence. Allen v. Asbestos Corp., Ltd., 138 Wn. App. 564, 571, 157 P.3d 406 (2007). “[I]nstead 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.”4 Lockwood v. AC&S, Inc., 109 Wn.2d 235, 246-47, 744 P.2d 605 (1987). They need not offer a detailed recollection of facts surrounding the exposure to the asbestos-containing product. See Van Hout v. Celotex Corp., 121 Wn.2d 697, 706-07, 853 P.2d 908 (1993); Lockwood, 109 Wn.2d at 246. For instance, in Van Hout, the Washington Supreme Court held that the evidence was sufficient to sustain the jury’s verdict for an asbestos plaintiff where the plaintiff testified that he worked in asbestos dust on ships, and witnesses placed the defendant’s asbestos-containing insulation materials on those ships. Van Hout, 121 Wn.2d at 707. However, “[w]hen reliance is placed upon [circumstantial] evidence, there must be reasonable inferences to establish the fact to be proved.” Arnold v. Sanstol, 43 Wn.2d 94, 99, 260 P.2d 327 (1953).

¶8 It is equally well settled that the plaintiff in a product liability or negligence action bears the burden to establish a causal connection between the injury, the product, and the manufacturer of that product. RCW 7.72.030(1); [730]*730Iwai v. State, 129 Wn.2d 84, 96, 915 P.2d 1089 (1996); Lockwood, 109 Wn.2d at 245. In Lockwood, the Washington Supreme Court set forth several factors for courts to consider when evaluating whether sufficient evidence of causation exists against a particular defendant: (1) plaintiff’s proximity to the asbestos product when the exposure occurred and the expanse of the work site where asbestos fibers were released, (2) the extent of time the plaintiff was exposed to the product, (3) the types of asbestos products to which plaintiff was exposed and the ways in which the products were handled and used, and (4) the evidence presented as to medical causation of the plaintiff’s particular disease. Lockwood, 109 Wn.2d at 248-49.

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Bluebook (online)
159 Wash. App. 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-aurora-pump-co-washctapp-2011.