1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CHARLOTTE WINELAND, Individually, 8 and SUSAN WINELAND, as Personal Cause No. C19-0793RSL Representative of the Estate of JOHN DALE 9 WINELAND, deceased, ORDER GRANTING THE WILLIAM 10 Plaintiffs, POWELL COMPANY’S AMENDED MOTION FOR SUMMARY 11 v. JUDGMENT (DKT. # 321) 12 AIR & LIQUID SYSTEMS CORPORATION, et al., 13 Defendants. 14 15 This matter comes before the Court on “Defendant The William Powell Company’s 16 Amended Motion for Summary Judgment.” Dkt. # 321. Plaintiffs’ decedent, John Dale 17 Wineland, worked aboard a series of Navy ships and in Navy offices between 1963 and 1984. 18 19 Plaintiffs allege that Mr. Wineland was exposed to asbestos contained in Powell products while 20 aboard the USS TUSCALOOSA between 1972 and 1974. Mr. Wineland worked primarily in the 21 engine rooms of the ships to which he was assigned, repairing and maintaining machinery and 22 equipment such as diesel engines, pumps, air compressors, and valves. Mr. Wineland developed 23 mesothelioma, an asbestos-related disease, and died in 2018. Plaintiffs assert that Powell is liable 24 25 for Mr. Wineland’s illness and death under theories of negligence and strict liability. 26 27 ORDER GRANTING THE WILLIAM POWELL COMPANY’S AMENDED 1 Powell seeks summary dismissal of all of plaintiffs’ claims, arguing that, under either 2 Washington or maritime law, plaintiffs have failed to produce admissible evidence from which a 3 jury could reasonably conclude that Mr. Wineland’s exposure to asbestos from Powell products 4 was a substantial contributing factor in his illness and death. Having reviewed the memoranda, 5 declarations, and exhibits submitted by the parties1 and taking the evidence in the light most 6 7 favorable to plaintiffs, the Court finds as follows: 8 Summary judgment is appropriate when, viewing the facts in the light most favorable to 9 the nonmoving party, there is no genuine issue of material fact that would preclude the entry of 10 judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial 11 responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. 12 Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that 13 14 show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving 15 party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to 16 designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. 17 at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . 18 and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of 19 20 Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact 21 genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the 22 “mere existence of a scintilla of evidence in support of the non-moving party’s position will be 23 24 1 This matter can be decided on the papers submitted in connection with this motion and the 25 supplemental briefing regarding the applicability of maritime law. The parties’ requests for oral 26 argument are DENIED. 27 ORDER GRANTING THE WILLIAM POWELL COMPANY’S AMENDED 1 insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th 2 Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose 3 resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion 4 for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In 5 other words, summary judgment should be granted where the nonmoving party fails to offer 6 7 evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. Am. 8 Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 9 For the reasons set forth in the Order Granting Crane Co.’s Motion for Summary 10 Judgment, the Court finds that maritime law applies to plaintiffs’ tort claims. To prevail on their 11 negligence and strict liability claims, plaintiffs “must demonstrate, among other things, that [Mr. 12 Wineland’s] injuries were caused by exposure to asbestos that was attributable to [Powell’s] 13 14 conduct.” McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1174 (9th Cir. 2016). See also 15 Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir. 2005), abrogated on other 16 grounds by Air & Liquid Sys. Corp. v. DeVries, __ U.S. __, 139 S. Ct. 986 (2019). To establish 17 causation under maritime law, plaintiffs must show that Mr. Wineland’s exposure to asbestos 18 from Powell products “was a substantial contributing factor in causing his injuries.” McIndoe, 19 20 817 F.3d at 1174. Evidence of only minimal exposure to asbestos dust attributable to each 21 defendant is insufficient: plaintiffs must provide “evidence regarding the amount of exposure to 22 dust” attributable to Powell and, “critically, the duration of such exposure.” Id. at 1176-77 23 (emphasis in original). The evidence must show “a high enough level of exposure that an 24 inference that the asbestos was a substantial factor in the injury is more than conjectural.” Id. at 25 1176 (quoting Lindstrom, 424 F.3d at 492). “[M]ore is needed” than simply placing a 26 27 ORDER GRANTING THE WILLIAM POWELL COMPANY’S AMENDED 1 defendant’s products in the workplace and showing that the decedent was occasionally exposed 2 to asbestos dust from those products. Id. at 1176-77. 3 While there is evidence that Powell “3 inch diameter 150 psi steel gate and globe stop 4 check valves” were installed on the TUSCALOOSA during some undefined period (Dkt. # 424- 5 2 at 20; see also Dkt. # 424-7 at 92-95) and that Mr. Wineland was exposed to significant levels 6 7 of asbestos dust while working in the engine room of that vessel,2 plaintiffs have not produced 8 evidence from which a reasonable jury could conclude that he suffered a substantial exposure to 9 asbestos dust from Powell products. Absent evidence regarding where the Powell valves were 10 installed on the TUSCALOOSA and whether any of the potentially asbestos-containing valves 11 were repaired or otherwise disturbed during Mr. Wineland’s service on the vessel, it is 12 impossible to draw any conclusions regarding whether Mr. Wineland was exposed to asbestos 13 14 from Powell products, much less the amount or duration of the such exposure. 15 16 17 2 Based on his extensive experience in the Navy and at naval shipyards, including the supervision of enginemen during the relevant time frame aboard the USS BRUMBY and the USS 18 NEWPORT NEWS, Captain Arnold Moore opines that Mr. Wineland “likely . . . performed or very 19 closely supervised repairs on all of the major machinery and many of the valves installed” in the enginee room of the TUSCALOOSA. Dkt. # 424-2 at 8.
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CHARLOTTE WINELAND, Individually, 8 and SUSAN WINELAND, as Personal Cause No. C19-0793RSL Representative of the Estate of JOHN DALE 9 WINELAND, deceased, ORDER GRANTING THE WILLIAM 10 Plaintiffs, POWELL COMPANY’S AMENDED MOTION FOR SUMMARY 11 v. JUDGMENT (DKT. # 321) 12 AIR & LIQUID SYSTEMS CORPORATION, et al., 13 Defendants. 14 15 This matter comes before the Court on “Defendant The William Powell Company’s 16 Amended Motion for Summary Judgment.” Dkt. # 321. Plaintiffs’ decedent, John Dale 17 Wineland, worked aboard a series of Navy ships and in Navy offices between 1963 and 1984. 18 19 Plaintiffs allege that Mr. Wineland was exposed to asbestos contained in Powell products while 20 aboard the USS TUSCALOOSA between 1972 and 1974. Mr. Wineland worked primarily in the 21 engine rooms of the ships to which he was assigned, repairing and maintaining machinery and 22 equipment such as diesel engines, pumps, air compressors, and valves. Mr. Wineland developed 23 mesothelioma, an asbestos-related disease, and died in 2018. Plaintiffs assert that Powell is liable 24 25 for Mr. Wineland’s illness and death under theories of negligence and strict liability. 26 27 ORDER GRANTING THE WILLIAM POWELL COMPANY’S AMENDED 1 Powell seeks summary dismissal of all of plaintiffs’ claims, arguing that, under either 2 Washington or maritime law, plaintiffs have failed to produce admissible evidence from which a 3 jury could reasonably conclude that Mr. Wineland’s exposure to asbestos from Powell products 4 was a substantial contributing factor in his illness and death. Having reviewed the memoranda, 5 declarations, and exhibits submitted by the parties1 and taking the evidence in the light most 6 7 favorable to plaintiffs, the Court finds as follows: 8 Summary judgment is appropriate when, viewing the facts in the light most favorable to 9 the nonmoving party, there is no genuine issue of material fact that would preclude the entry of 10 judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial 11 responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. 12 Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that 13 14 show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving 15 party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to 16 designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. 17 at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . 18 and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of 19 20 Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact 21 genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the 22 “mere existence of a scintilla of evidence in support of the non-moving party’s position will be 23 24 1 This matter can be decided on the papers submitted in connection with this motion and the 25 supplemental briefing regarding the applicability of maritime law. The parties’ requests for oral 26 argument are DENIED. 27 ORDER GRANTING THE WILLIAM POWELL COMPANY’S AMENDED 1 insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th 2 Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose 3 resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion 4 for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In 5 other words, summary judgment should be granted where the nonmoving party fails to offer 6 7 evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. Am. 8 Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 9 For the reasons set forth in the Order Granting Crane Co.’s Motion for Summary 10 Judgment, the Court finds that maritime law applies to plaintiffs’ tort claims. To prevail on their 11 negligence and strict liability claims, plaintiffs “must demonstrate, among other things, that [Mr. 12 Wineland’s] injuries were caused by exposure to asbestos that was attributable to [Powell’s] 13 14 conduct.” McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1174 (9th Cir. 2016). See also 15 Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir. 2005), abrogated on other 16 grounds by Air & Liquid Sys. Corp. v. DeVries, __ U.S. __, 139 S. Ct. 986 (2019). To establish 17 causation under maritime law, plaintiffs must show that Mr. Wineland’s exposure to asbestos 18 from Powell products “was a substantial contributing factor in causing his injuries.” McIndoe, 19 20 817 F.3d at 1174. Evidence of only minimal exposure to asbestos dust attributable to each 21 defendant is insufficient: plaintiffs must provide “evidence regarding the amount of exposure to 22 dust” attributable to Powell and, “critically, the duration of such exposure.” Id. at 1176-77 23 (emphasis in original). The evidence must show “a high enough level of exposure that an 24 inference that the asbestos was a substantial factor in the injury is more than conjectural.” Id. at 25 1176 (quoting Lindstrom, 424 F.3d at 492). “[M]ore is needed” than simply placing a 26 27 ORDER GRANTING THE WILLIAM POWELL COMPANY’S AMENDED 1 defendant’s products in the workplace and showing that the decedent was occasionally exposed 2 to asbestos dust from those products. Id. at 1176-77. 3 While there is evidence that Powell “3 inch diameter 150 psi steel gate and globe stop 4 check valves” were installed on the TUSCALOOSA during some undefined period (Dkt. # 424- 5 2 at 20; see also Dkt. # 424-7 at 92-95) and that Mr. Wineland was exposed to significant levels 6 7 of asbestos dust while working in the engine room of that vessel,2 plaintiffs have not produced 8 evidence from which a reasonable jury could conclude that he suffered a substantial exposure to 9 asbestos dust from Powell products. Absent evidence regarding where the Powell valves were 10 installed on the TUSCALOOSA and whether any of the potentially asbestos-containing valves 11 were repaired or otherwise disturbed during Mr. Wineland’s service on the vessel, it is 12 impossible to draw any conclusions regarding whether Mr. Wineland was exposed to asbestos 13 14 from Powell products, much less the amount or duration of the such exposure. 15 16 17 2 Based on his extensive experience in the Navy and at naval shipyards, including the supervision of enginemen during the relevant time frame aboard the USS BRUMBY and the USS 18 NEWPORT NEWS, Captain Arnold Moore opines that Mr. Wineland “likely . . . performed or very 19 closely supervised repairs on all of the major machinery and many of the valves installed” in the enginee room of the TUSCALOOSA. Dkt. # 424-2 at 8. Captain Moore describes how these repairs would be 20 carried out, including activities which would invariably create asbestos dust, including the removal of old, dried packing and gaskets and the cutting and installation of new packing and gasket materials Dkt. 21 # 424-2 at 9. Plaintiffs’ industrial hygienist, Steven Paskal, similarly opines that “it is virtually certain that [Mr. Wineland], and/or others in close proximity and/or in shared, enclosed airspaces, would have 22 routinely removed and replaced gaskets and stem/shaft packing associated with . . . valves.” Dkt. # 424- 23 13 at 5. These activities would have exposed Mr. Wineland to an asbestos-containing aerosol that would remain suspended in air streams for extended periods of time at concentrations that ranged from 24 hundreds to millions of times ambient pollution levels. Dkt. # 424-13 at 2-3 and 6. Gregory Bullinger, a shipmate of Mr. Wineland on the TUSCALOOSA, confirms that “work on the equipment in the engine 25 room was regular, ongoing, and routine. We all removed and replaced packing and gaskets on the 26 various equipment, including the valves, pumps, and ALCO diesel engines.” Dkt. # 424-11 at 3. 27 ORDER GRANTING THE WILLIAM POWELL COMPANY’S AMENDED 1 Plaintiffs have failed to raise a triable issue of fact regarding causation under maritime 2 law. For all of the foregoing reasons, Powell’s motion for summary judgment (Dkt. # 321) is 3 GRANTED. Plaintiff’s motion for summary judgment regarding Powell’s affirmative defenses 4 (Dkt. # 373) is DENIED as moot. 5 6 7 Dated this 2nd day of August, 2021. 8 Robert S. Lasnik 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ORDER GRANTING THE WILLIAM POWELL COMPANY’S AMENDED