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 CLEAVER- 10 Plaintiffs, BROOKS, INC.’S RENEWED MOTION FOR SUMMARY 11 v. JUDGMENT (DKT. # 333) 12 AIR & LIQUID SYSTEMS CORPORATION, et al., 13 Defendants. 14 15 This matter comes before the Court on “Defendant Cleaver-Brooks, Inc.’s Renewed 16 Motion for Summary Judgment.” Dkt. # 333. Plaintiffs’ decedent, John Dale Wineland, worked 17 aboard a series of Navy ships and in Navy offices between 1963 and 1984. Plaintiffs allege that 18 19 Mr. Wineland was exposed to asbestos contained in Cleaver-Brooks products while aboard the 20 USS TUSCALOOSA. Mr. Wineland worked primarily in the engine rooms of the ships to which 21 he was assigned, repairing and maintaining machinery and equipment such as diesel engines, 22 pumps, air compressors, and valves. Mr. Wineland developed mesothelioma, an asbestos-related 23 disease, and died in 2018. Plaintiffs assert that Cleaver-Brooks is liable for Mr. Wineland’s 24 25 illness and death under theories of negligence and strict liability. 26 Cleaver-Brooks seeks summary dismissal of all of plaintiffs’ claims, arguing that 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 (a) plaintiffs have failed to produce admissible evidence from which a jury could reasonably 2 conclude that Mr. Wineland’s exposure to asbestos from Cleaver-Brooks products was a 3 substantial contributing factor in his illness and death as required by maritime or Washington 4 law and (b) it had no legal duty to ensure that products and replacement parts manufactured by 5 others were reasonably safe and/or properly labeled. Having reviewed the memoranda, 6 7 declarations, and exhibits submitted by the parties1 and taking the evidence in the light most 8 favorable to plaintiffs, the Court finds as follows: 9 A. Summary Judgment Standard 10 Summary judgment is appropriate when, viewing the facts in the light most favorable to 11 the nonmoving party, there is no genuine issue of material fact that would preclude the entry of 12 judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial 13 14 responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. 15 Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that 16 show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving 17 party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to 18 designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. 19 20 at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . 21 and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of 22 Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact 23 genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the 24 25 1 This matter can be decided on the papers submitted in connection with this motion and the 26 supplemental briefing regarding the applicability of maritime law. The parties’ requests for oral argument are DENIED. 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 “mere existence of a scintilla of evidence in support of the non-moving party’s position will be 2 insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th 3 Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose 4 resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion 5 for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In 6 7 other words, summary judgment should be granted where the nonmoving party fails to offer 8 evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. Am. 9 Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 10 B. Causation 11 For the reasons set forth in the Order Granting Crane Co.’s Motion for Summary 12 Judgment (Dkt. # 550), the Court finds that maritime law applies to plaintiffs’ tort claims. To 13 14 prevail on their negligence and strict liability claims, plaintiffs “must demonstrate, among other 15 things, that [Mr. Wineland’s] injuries were caused by exposure to asbestos that was attributable 16 to [Cleaver-Brooks’s] conduct.” McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1174 (9th 17 Cir. 2016). See also Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir. 2005), 18 abrogated on other grounds by Air & Liquid Sys. Corp. v. DeVries, __ U.S. __, 139 S. Ct. 986 19 20 (2019). To establish causation under maritime law, plaintiffs must show that Mr. Wineland’s 21 exposure to asbestos from Cleaver-Brooks products “was a substantial contributing factor in 22 causing his injuries.” McIndoe, 817 F.3d at 1174. Evidence of only minimal exposure to asbestos 23 dust attributable to each defendant is insufficient: plaintiffs must provide “evidence regarding 24 the amount of exposure to dust” attributable to Cleaver-Brooks and, “critically, the duration of 25 such exposure.” Id. at 1176-77 (emphasis in original). The evidence must show “a high enough 26 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 level of exposure that an inference that the asbestos was a substantial factor in the injury is more 2 than conjectural.” Id. at 1176 (quoting Lindstrom, 424 F.3d at 492). “[M]ore is needed” than 3 simply placing a defendant’s products in the workplace and showing that the decedent was 4 occasionally exposed to asbestos dust from those products. Id. at 1176-77. 5 There is evidence that the distilling plant aboard the TUSCALOOSA was provided by 6 7 Cleaver-Brooks’ predecessor, Aqua Chem. Dkt. # 414-2 at 19; Dkt. # 414-7 at 12, 14-15. 8 Compressed asbestos sheet gaskets were used to seal internal components in the distilling plant. 9 Dkt. # 414-2 at 19. In addition, “[t]he Navy APL sheet also records Aqua Chem manufactured a 10 10 gallon per minute centrifugal pump installed on TUSCALOOSA.” Dkt. # 414-2 at 19. See 11 also Dkt. # 414-7 at 21-23. Finally, there is evidence from which a reasonable jury could find 12 that Mr. Wineland was exposed to significant levels of asbestos dust while working in the engine 13 14 room of the TUSCALOOSA.2 15 Plaintiffs have not, however, produced evidence from which a reasonable jury could 16 17 2 Based on his extensive experience in the Navy and at naval shipyards, including the supervision 18 of enginemen during the relevant time frame aboard the USS BRUMBY and the USS 19 NEWPORT NEWS, Captain Arnold Moore opines that Mr. Wineland was likely to have repaired or closely supervised the repair of the machinery installed in the engine room of the TUSCALOOSA. Dkt. 20 # 414-2 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 CLEAVER- 10 Plaintiffs, BROOKS, INC.’S RENEWED MOTION FOR SUMMARY 11 v. JUDGMENT (DKT. # 333) 12 AIR & LIQUID SYSTEMS CORPORATION, et al., 13 Defendants. 14 15 This matter comes before the Court on “Defendant Cleaver-Brooks, Inc.’s Renewed 16 Motion for Summary Judgment.” Dkt. # 333. Plaintiffs’ decedent, John Dale Wineland, worked 17 aboard a series of Navy ships and in Navy offices between 1963 and 1984. Plaintiffs allege that 18 19 Mr. Wineland was exposed to asbestos contained in Cleaver-Brooks products while aboard the 20 USS TUSCALOOSA. Mr. Wineland worked primarily in the engine rooms of the ships to which 21 he was assigned, repairing and maintaining machinery and equipment such as diesel engines, 22 pumps, air compressors, and valves. Mr. Wineland developed mesothelioma, an asbestos-related 23 disease, and died in 2018. Plaintiffs assert that Cleaver-Brooks is liable for Mr. Wineland’s 24 25 illness and death under theories of negligence and strict liability. 26 Cleaver-Brooks seeks summary dismissal of all of plaintiffs’ claims, arguing that 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 (a) plaintiffs have failed to produce admissible evidence from which a jury could reasonably 2 conclude that Mr. Wineland’s exposure to asbestos from Cleaver-Brooks products was a 3 substantial contributing factor in his illness and death as required by maritime or Washington 4 law and (b) it had no legal duty to ensure that products and replacement parts manufactured by 5 others were reasonably safe and/or properly labeled. Having reviewed the memoranda, 6 7 declarations, and exhibits submitted by the parties1 and taking the evidence in the light most 8 favorable to plaintiffs, the Court finds as follows: 9 A. Summary Judgment Standard 10 Summary judgment is appropriate when, viewing the facts in the light most favorable to 11 the nonmoving party, there is no genuine issue of material fact that would preclude the entry of 12 judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial 13 14 responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. 15 Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that 16 show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving 17 party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to 18 designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. 19 20 at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . 21 and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of 22 Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact 23 genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the 24 25 1 This matter can be decided on the papers submitted in connection with this motion and the 26 supplemental briefing regarding the applicability of maritime law. The parties’ requests for oral argument are DENIED. 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 “mere existence of a scintilla of evidence in support of the non-moving party’s position will be 2 insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th 3 Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose 4 resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion 5 for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In 6 7 other words, summary judgment should be granted where the nonmoving party fails to offer 8 evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. Am. 9 Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 10 B. Causation 11 For the reasons set forth in the Order Granting Crane Co.’s Motion for Summary 12 Judgment (Dkt. # 550), the Court finds that maritime law applies to plaintiffs’ tort claims. To 13 14 prevail on their negligence and strict liability claims, plaintiffs “must demonstrate, among other 15 things, that [Mr. Wineland’s] injuries were caused by exposure to asbestos that was attributable 16 to [Cleaver-Brooks’s] conduct.” McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1174 (9th 17 Cir. 2016). See also Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir. 2005), 18 abrogated on other grounds by Air & Liquid Sys. Corp. v. DeVries, __ U.S. __, 139 S. Ct. 986 19 20 (2019). To establish causation under maritime law, plaintiffs must show that Mr. Wineland’s 21 exposure to asbestos from Cleaver-Brooks products “was a substantial contributing factor in 22 causing his injuries.” McIndoe, 817 F.3d at 1174. Evidence of only minimal exposure to asbestos 23 dust attributable to each defendant is insufficient: plaintiffs must provide “evidence regarding 24 the amount of exposure to dust” attributable to Cleaver-Brooks and, “critically, the duration of 25 such exposure.” Id. at 1176-77 (emphasis in original). The evidence must show “a high enough 26 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 level of exposure that an inference that the asbestos was a substantial factor in the injury is more 2 than conjectural.” Id. at 1176 (quoting Lindstrom, 424 F.3d at 492). “[M]ore is needed” than 3 simply placing a defendant’s products in the workplace and showing that the decedent was 4 occasionally exposed to asbestos dust from those products. Id. at 1176-77. 5 There is evidence that the distilling plant aboard the TUSCALOOSA was provided by 6 7 Cleaver-Brooks’ predecessor, Aqua Chem. Dkt. # 414-2 at 19; Dkt. # 414-7 at 12, 14-15. 8 Compressed asbestos sheet gaskets were used to seal internal components in the distilling plant. 9 Dkt. # 414-2 at 19. In addition, “[t]he Navy APL sheet also records Aqua Chem manufactured a 10 10 gallon per minute centrifugal pump installed on TUSCALOOSA.” Dkt. # 414-2 at 19. See 11 also Dkt. # 414-7 at 21-23. Finally, there is evidence from which a reasonable jury could find 12 that Mr. Wineland was exposed to significant levels of asbestos dust while working in the engine 13 14 room of the TUSCALOOSA.2 15 Plaintiffs have not, however, produced evidence from which a reasonable jury could 16 17 2 Based on his extensive experience in the Navy and at naval shipyards, including the supervision 18 of enginemen during the relevant time frame aboard the USS BRUMBY and the USS 19 NEWPORT NEWS, Captain Arnold Moore opines that Mr. Wineland was likely to have repaired or closely supervised the repair of the machinery installed in the engine room of the TUSCALOOSA. Dkt. 20 # 414-2 at 8. Captain Moore describes how these repairs would be carried out, including activities which would invariably create asbestos dust, including the removal of old, dried packing and gaskets and the 21 cutting and installation of new packing and gasket materials Dkt. # 414-2 at 9. Plaintiffs’ industrial hygienist, Steven Paskal, similarly opines that “it is virtually certain that [Mr. Wineland], and/or others 22 in close proximity and/or in shared, enclosed airspaces, would have routinely removed and replaced 23 gaskets and stem/shaft packing associated with . . . other equipment.” Dkt. # 414-13 at 5. These activities would have exposed Mr. Wineland to an asbestos-containing aerosol that would remain 24 suspended in air streams for extended periods of time at concentrations that ranged from hundreds to millions of times ambient pollution levels. Dkt. # 414-13 at 2-3 and 6. Gregory Bullinger, a shipmate of 25 Mr. Wineland on the TUSCALOOSA, confirms that “work on the equipment in the engine room was 26 regular, ongoing, and routine. We all removed and replaced packing and gaskets on the various equipment, including the valves, pumps, and ALCO diesel engines.” Dkt. # 414-11 at 3. 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 conclude that Mr. Wineland suffered a substantial exposure to asbestos dust from Cleaver- 2 Brooks products. There is no evidence regarding where the Cleaver-Brooks products were 3 installed on the TUSCALOOSA, making it impossible to determine to what extent Mr. Wineland 4 was exposed to the products or the asbestos in those products. While it is entirely possible that 5 the distilling plant and centrifugal pump were maintained, repaired, and/or overhauled while Mr. 6 7 Wineland served aboard the TUSCALOOSA between July 1972 and December 1974, there is no 8 indication that Mr. Wineland was involved in or proximal to those activities, how frequent such 9 activities might have been, or whether they involved the disturbance of asbestos-containing 10 components. It is plaintiff’s burden to provide evidence showing “a high enough level of 11 exposure that an inference that the asbestos was a substantial factor in the injury is more than 12 conjectural.” McIndoe, 817 F.3d at 1176 (quoting Lindstrom, 424 F.3d at 492). “[M]ore is 13 14 needed” than simply placing a defendant’s products in the workplace and showing that the 15 decedent was occasionally exposed to asbestos dust from those products. Id. at 1176-77. Absent 16 “evidence regarding the amount of exposure to dust” attributable to Cleaver-Brooks and, 17 “critically, the duration of such exposure,” (Id. at 1176-77 (emphasis in original)), a jury would 18 have to speculate as to whether asbestos from Cleaver-Brooks products “was a substantial 19 20 contributing factor in causing his injuries.” Id. at 1174. 21 C. Duty 22 The parties generally agree that an original equipment manufacturer faces liability for 23 component parts it installs in and supplies with its products, as well as for replacement parts it 24 manufactures and supplies. A manufacturer may also owe a duty with regards to replacement 25 parts or ancillary products (such as insulation) manufactured and sold by third-parties, but only if 26 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 the manufacturer in some way invites or requires the integration of the third-party product. See 2 DeVries, 139 S. Ct. at 995 (holding that, under maritime law, original equipment manufacturers 3 have a duty to warn “only when their product requires a part in order for the integrated product 4 to function as intended”) (emphasis in original); Macias v. Saberhagen Holdings, Inc., 175 5 Wn.2d 402, 414-15 (2012) (distinguishing cases in which no duty to warn was found on the 6 7 ground that the manufacturers’ products in those cases did not require that asbestos be used in 8 conjunction with the products, were not specifically designed to be used with asbestos, and 9 would not, by their very nature, necessarily involve exposure to asbestos); Woo v. Gen. Elec. 10 Co., 198 Wn. App. 496, 508 (2017) (finding a triable issue regarding duty where the product 11 required insulation, gaskets, and packing to function as designed, the manufacturer knew that 12 only asbestos-containing insulation, gaskets, and packing were available, and the manufacturer 13 14 provided precut asbestos containing gaskets with the product and generally purchased and field- 15 installed insulation to factory specifications). 16 Plaintiffs argue that Cleaver-Brooks should face liability for its failure to warn of the 17 hazards of asbestos-containing replacement parts supplied by third-parties because Cleaver- 18 Brooks was aware that the asbestos components in its products would wear out and that 19 20 asbestos-containing replacements were necessary for the equipment to function as designed. Dkt. 21 # 413 at 18. Evidentiary support for this argument is lacking. The relevant naval records, as 22 interpreted and summarized by Captain Arnold Moore, show only that Cleaver-Brooks’ distilling 23 plant was manufactured with compressed asbestos sheet gaskets to seal internal components. 24 Dkt. # 414-2 at 19. These facts relate to products manufactured and/or supplied by Cleaver- 25 Brooks: none of them relates to third-party replacement parts, suggests that any particular 26 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 Cleaver-Brooks’s product was designed to work only with asbestos-containing products, or 2 raises an inference that Cleaver-Brooks required the use of asbestos-containing replacement 3 parts. The problem is not with plaintiffs’ theory of liability, but with their proof. See, e.g., 4 Devries, 139 S. Ct. at 995-96 (“Courts have determined that [a duty to warn of the dangers of 5 third-party products arises] in certain related situations, including when: (i) a manufacturer 6 7 directs that the part be incorporated; (ii) a manufacturer itself makes the product with a part that 8 the manufacturer knows will require replacement with a similar part; or (iii) a product would be 9 useless without the part. In all of those situations, courts have said that the product in effect 10 requires the part in order for the integrated product to function as intended. We agree.”) (internal 11 citations omitted). 12 Plaintiffs have failed to provide evidence from which a reasonable jury could conclude 13 14 that Cleaver-Brooks is liable for any asbestos-containing replacement part or ancillary product 15 that was hypothetically manufactured by a third party and integrated into a Cleaver-Brooks 16 product installed on the USS TUSCALOOSA. 17 18 // 19 20 21 // 22 23 // 24 25 26 27 ORDER GRANTING CLEAVER-BROOKS, INC.’S 1 Plaintiffs have failed to raise a triable issue of fact regarding causation or a duty to warn 2 under maritime law. For all of the foregoing reasons, Cleaver-Brooks’s motion for summary 3 judgment (Dkt. # 333) is GRANTED. Plaintiff’s motion for summary judgment regarding 4 Cleaver-Brooks’s affirmative defenses (Dkt. # 361) is DENIED as moot. 5 6 7 Dated this 5th 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 CLEAVER-BROOKS, INC.’S