Yaw v. Air & Liquid Systems Corporation

• Court: District Court, W.D. Washington
• Decided: August 2, 2019
• Docket: 3:18-cv-05405
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 MARIETTA DIANNE YAW, CASE NO. C18-5405 BHS 8 Individually and as Executor of the Estate of DONALD ARTHUR YAW ORDER GRANTING 9 DEFENDANTS’ MOTION FOR Plaintiff, SUMMARY JUDGMENT 10 v. 11 AIR & LIQUID SYSTEMS CORPORATION, et al., 12 Defendants. 13

14 This matter comes before the Court on Defendants General Electric Company 15 (“General Electric”), CBS Corporation (“Westinghouse”), and Foster Wheeler Energy 16 Corporation’s (“Foster Wheeler”) (“Defendants”) motion for summary judgment. Dkt. 17 95. The Court has considered the pleadings filed in support of and in opposition to the 18 motion and the remainder of the file and hereby grants the motion for the reasons stated 19 herein. 20 21 22 1 I. PROCEDURAL HISTORY 2 On May 21, 2018, Plaintiffs Donald and Marietta Yaw (“the Yaws”) filed a

3 complaint against numerous defendants alleging injuries to Mr. Yaw resulting from 4 exposure to asbestos. Dkt. 1. 5 On January 31, 2019, Defendants filed a motion for summary judgment arguing in 6 part that the Yaws had no evidence to support their claims against Defendants. Dkt. 95. 7 On February 19, 2019, the Yaws responded to Defendants’ motion and requested a 8 continuance because they were missing facts essential to justify their opposition. Dkt.

9 106. On February 22, 2019, Defendants replied. Dkt. 111. On March 18, 2019, the 10 Yaws filed a supplemental response and submitted the expert reports of Dr. John Maddux 11 and Captain Arnold Moore (“Moore”). Dkts. 132, 133-1. 12 On March 21, 2019, the Yaws filed a motion to amend their complaint informing 13 the Court that Mr. Yaw passed away. Dkt. 140.

14 On March 22, 2019, Defendants filed a surreply requesting that the Court strike 15 the Yaws’ supplemental response and expert reports.1 Dkt. 144. 16 On April 18, 2019, the Court granted the Yaws’ motion to amend, granted the 17 Yaws’ request for a continuance of the summary judgment motions, and requested 18 additional briefing in light of the Supreme Court’s decision in Air & Liquid Systems

19 Corp. v. DeVries, 139 S. Ct. 986, 994 (2019) (“DeVries”). Dkt. 154. 20 21 1 The Court denies the motion to strike because Defendants are not prejudiced if the Court 22 considers the evidence. 1 On April 26, 2019, Marietta Yaw, individually and as personal representative of 2 the Estate of Donald Yaw, (hereinafter “Yaw”) filed her amended complaint. Dkt. 155.

3 Yaw’s claims are as follows: 4 Plaintiff claims liability based upon the theories of product liability, including, but not limited to negligence, strict product liability (for 5 example, Restatement (Second) of Torts § 402A and/or 402B), conspiracy, premises liability, the former RCW 49.16.030, and any other applicable 6 theory of liability, including, if applicable, RCW 7.72 et seq. The manufacturer/distributor defendants identified above are liable 7 for, among other things, the following conduct: negligent and unsafe design; failure to inspect, test, warn, instruct, monitor and/or recall; failure 8 to substitute safe products; marketing products not reasonably safe as manufactured; marketing products not reasonably safe as designed; and 9 marketing products not reasonably safe for lack of adequate warnings. Certain Defendants engaged in concerted, and/or conspiratorial 10 activities or omissions which prevented adequate warnings concerning the hazards of asbestos and asbestos-containing products from being provided 11 to those using or exposed to asbestos and asbestos-containing products. These activities also resulted in the manufacture and distribution of 12 products that were not reasonably safe as designed.

13 Id. ¶¶ 31–33. 14 On May 2, 2019, Defendants filed a supplemental brief in support of their motion 15 for summary judgment. Dkt. 164. On May 20, 2019, Yaw responded. Dkt. 173. On 16 May 24, 2019, Defendants replied. Dkt. 176. 17 II. FACTUAL BACKGROUND 18 The majority of the relevant facts in this matter are undisputed. Mr. Yaw worked 19 at the Puget Sound Naval Shipyard (“PSNSY”) from 1964 through 2001. During the first 20 part of his career, Mr. Yaw was a shipfitter, which Mr. Yaw describes as a steelworker 21 who actually builds the ships. Mr. Yaw recalled working on numerous ships including 22 the USS Simon Lake, USS Kitty Hawk, USS Cusk, USS Seattle, USS Ranger, USS 1 Sacramento, USS John Adams, USS Constellation, USS Enterprise, USS Truxton, USS 2 Bainbridge, and USS Ulysses S. Grant. It is undisputed that, at some point, some of these

3 ships were equipped with products that either included parts with asbestos such as 4 gaskets and seals or required additional parts with asbestos such as insulation. The 5 problem, however, is that Mr. Yaw failed to remember working on any particular product 6 on any particular ship. See Dkt. 95 at 3 (summarizing Yaw deposition). Yaw attempts to 7 overcome this failure by citing Mr. Yaw’s deposition stating that he was in engine rooms 8 and boiler rooms that were dusty. Dkt. 106 at 3–4. Then Yaw leaps to certain

9 conclusions as follows: “If asbestos-insulated turbines manufactured by General Electric 10 were installed on ships Mr. Yaw worked on as a ship fitter, then he was exposed to 11 asbestos from work performed on General Electric turbines. Similarly, Mr. Yaw was 12 exposed to asbestos from Westinghouse turbines if any asbestos-insulated Westinghouse 13 turbines were installed on ships he worked on as a ship fitter. . . . If Mr. Yaw worked on

14 ships installed with asbestos-insulated Foster Wheeler boilers, then he was exposed to 15 asbestos from Foster Wheeler boilers.” Id. at 5–6. 16 Yaw also submitted expert reports. Dkt. 133-1. Moore is an expert in 17 maintenance and work practices aboard Navy ships. Id. at 4. He opines that (1) “Mr. 18 Yaw worked in spaces where other workers were removing asbestos insulation from 1964

19 until 1978. He likely worked in spaces where other workers were removing and replacing 20 asbestos packing and gaskets for the entire time he worked as a shipfitter from 1964 21 through 1980,” id. at 8, and that (2) “it is more likely than not that the pumps, valves and 22 other machinery and equipment installed on the ships upon which Mr. Yaw worked as a 1 shipfitter contained asbestos packing and gaskets. It is likely he worked as a shipfitter in 2 spaces where asbestos insulation was being removed until 1978,” id. at 47. Regarding

3 Moore’s first opinion, he seems to state as a matter of fact that “Mr. Yaw worked in 4 spaces where other workers were removing asbestos insulation from 1964 until 1978.” 5 Yet, Moore fails to provide any citation to Mr. Yaw’s deposition to support this assertion 6 or opinion. Moreover, in his deposition, Moore testified as follows: 7 In reading Mr. Yaw’s deposition testimony, he did not testify that he was in specific spaces in the specific ships on which he worked while 8 specific equipment manufacturers’ equipment was being worked on those spaces. That deposition -- that information simply does not exist in the 9 deposition based on my recollection of his deposition testimony.

10 Dkt. 171-1 at 15. 11 III. DISCUSSION 12 A. Summary Judgment Standard 13 Summary judgment is proper only if the pleadings, the discovery and disclosure 14 materials on file, and any affidavits show that there is no genuine issue as to any material 15 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). 16 The moving party is entitled to judgment as a matter of law when the nonmoving party 17 fails to make a sufficient showing on an essential element of a claim in the case on which 18 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 19 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, 20 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. 21 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must 22 present specific, significant probative evidence, not simply “some metaphysical doubt”). 1 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists 2 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

3 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 4 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 5 626, 630 (9th Cir. 1987). 6 The determination of the existence of a material fact is often a close question. The 7 Court must consider the substantive evidentiary burden that the nonmoving party must 8 meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson, 477

9 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual 10 issues of controversy in favor of the nonmoving party only when the facts specifically 11 attested by that party contradict facts specifically attested by the moving party. The 12 nonmoving party may not merely state that it will discredit the moving party’s evidence 13 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

14 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, 15 nonspecific statements in affidavits are not sufficient, and missing facts will not be 16 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). 17 B. Defendants’ Motion 18 In their original motion, Defendants moved for summary judgment for three

19 reasons as follows: (1) Yaw fails to submit evidence to establish that he was exposed to 20 asbestos from a product manufactured by Defendants, (2) assuming that Yaw submits 21 evidence that he worked with or around a product manufactured by Defendants, the 22 record is devoid of evidence that Defendants manufactured the insulation or any other 1 asbestos product that was purportedly used in conjunction that product, and (3) Yaw is 2 unable to establish causation because Mr. Yaw testified that he knew he was working in

3 dangerous dusty conditions and failed to take adequate measures to safeguard his health. 4 Dkt. 95. Yaw responded that (1) Defendants are still liable for failure to warn even if 5 they provided “bare metal” equipment to the Navy, (2) questions of fact exist regarding 6 Mr. Yaw’s decisions regarding the use of safety equipment, and (3) the Court should 7 grant a continuance until Yaw submits expert reports regarding Mr. Yaw’s actual 8 exposure to relevant products. Dkt. 106. While it appears that Yaw is correct as to the

9 issues of Defendants providing warnings and Mr. Yaw’s stated refusal to use adequate 10 precautions, the first issue Defendants present is dispositive. 11 In a product liability action, any claim requires exposure to the product. For 12 example, on a general maritime negligence claim the plaintiff must show that “he was 13 actually exposed to asbestos-containing materials . . . and that such exposure was a

14 substantial contributing factor in causing his injuries.” McIndoe v. Huntington Ingalls 15 Inc., 817 F.3d 1170, 1174 (9th Cir. 2016) (citing Lindstrom v. A–C Prod. Liab. Tr., 424 16 F.3d 488, 492 (6th Cir. 2005) abrogated on other grounds by DeVries). Similarly, in 17 Washington “the plaintiff must establish a reasonable connection between the injury, the 18 product causing the injury, and the manufacturer of that product. In order to have a cause

19 of action, the plaintiff must identify the particular manufacturer of the product that caused 20 21 22 1 the injury.” Lockwood v. AC & S, Inc., 109 Wn.2d 235, 245–47 (1987) (quoting Martin 2 v. Abbott Laboratories, 102 Wn.2d 581, 590 (1984)).2

3 In this case, Yaw fails to submit evidence to establish any connection between 4 Defendants’ products and Mr. Yaw injuries. At most, Yaw submits evidence to establish 5 that sometimes he was in engine and boiler rooms that contained dust. This is the extent 6 of the relevant evidence on the issue of exposure that has been presented by a fact 7 witness. In other words, Yaw fails to identify a specific time that he was on a particular 8 ship and exposed to a particular product that had produced or was producing asbestos

9 dust. Due to this lack of factual evidence, Yaw is forced to rely on reasonable inferences. 10 See Scott v. Harris, 550 U.S. 372, 378 (2007) (“courts are required to view the facts and 11 draw reasonable inferences ‘in the light most favorable to the party opposing the 12 [summary judgment] motion.’”) (quoting United States v. Diebold, Inc., 369 U.S. 654, 13 655 (1962)). Yaw, however, fails to advance any reasonable inference. Instead, she

14 relies on mere speculation that is devoid of any attachment to a fact. For example, she 15 asserts that “[i]f asbestos-insulated turbines manufactured by General Electric were 16 installed on ships Mr. Yaw worked on as a ship fitter, then he was exposed to asbestos 17 from work performed on General Electric turbines.” Dkt. 106 at 5. Even if this assertion 18 were true, it would require a prerequisite fact that Mr. Yaw was on a ship near a General

19 Electric turbine. Unfortunately, that fact does not exist in this record. Thus, Yaw fails to 20

2 The Court cites both federal maritime law and Washington state law because Yaw’s claims are 21 extremely vague. Yaw, however, appears to implicitly accept that her claims may only be brought under these two bodies of law because she does not challenge Defendants’ arguments under or citations to these 22 laws. 1 establish even minimal exposure to asbestos yet alone exposure to one of Defendants’ 2 products that contained asbestos. McIndoe, 817 F.3d at 1176 (“Evidence of only minimal

3 exposure to asbestos is insufficient” to establish causation); Lindstrom, 424 F.3d at 492 4 (“a mere showing that defendant’s product was present somewhere at plaintiff’s place of 5 work is insufficient.”). 6 Moore’s report fares no better in establishing causation. While he states that “Mr. 7 Yaw worked in spaces where other workers were removing asbestos insulation from 1964 8 until 1978,” neither Moore nor Yaw can establish the factual underpinnings of this

9 statement. In fact, Moore testified that Mr. Yaw failed to identify working on a specific 10 location on a specific ship. Dkt. 171-1 at 15 (“that information simply does not exist in 11 [Mr. Yaw’s] deposition”). If the fact witness is unable to establish his location, then an 12 expert opinion based on nothing more than that fact witness’s testimony is also 13 insufficient to establish the witness’s proximity to a particular product. Thus, Moore’s

14 opinion that Mr. Yaw was exposed to asbestos from Defendants’ products is based on 15 nothing more than speculation that a person who worked on ships at PSNSY must have 16 been exposed to some asbestos. It is questionable whether this opinion is even 17 admissible under the rules of evidence because it lacks adequate factual support from the 18 materials and information reviewed to form the opinion. Regardless, the Court finds that

19 Moore’s opinion fails to fill the gap in Mr. Yaw’s failure to identify any specific 20 exposure to Defendants’ products. Accordingly, Defendants are entitled to summary 21 judgment because Yaw fails to establish a genuine issue of fact on the issue of causation. 22 1 IV. ORDER 2 Therefore, it is hereby ORDERED that Defendants’ motion for summary

3 judgment, Dkt. 95, is GRANTED. 4 Dated this 2nd day of August, 2019. A 5 6 BENJAMIN H. SETTLE 7 United States District Judge

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