Yaw v. Air & Liquid Systems Corporation

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’ MOTIONS FOR Plaintiff, SUMMARY JUDGMENT, 10 v. DENYING PLAINTIFF’S MOTIONS FOR PARTIAL 11 AIR & LIQUID SYSTEMS SUMMARY JUDGMENT, CORPORATION, et al., RESERVING RULINGS ON 12 PLAINTIFF’S AND Defendants. DEFENDANT’S MOTIONS, AND 13 REQUESTING STATUS REPORT

14 This matter comes before the Court on Warren Pumps, LLC’s (“Warren Pumps”) 15 motion for summary judgment, Dkt. 113; Defendant Air & Liquid Systems Corporation’s 16 (“ALS”) motion for summary judgment, Dkt. 205; Defendant Armstrong International, 17 Inc.’s (“Armstrong”) motion for summary judgment, Dkt. 210; Defendant Ingersoll-Rand 18 Company’s (“Ingersol-Rand”) motion for summary judgment; Dkt. 211; and Plaintiff 19 Marietta Yaw’s (“Yaw”) motions for partial summary judgment on Warren Pumps, ALS, 20 Armstrong, Ingersol-Rand, and Defendant Crane Co’s (“Crane”) affirmative defenses, 21 Dkts. 192, 194, 198, 204, 208. The Court has considered the pleadings filed in support of 22 and in opposition to the motions and the remainder of the file and hereby rules as follows: 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 February 25, 2019, Warren Pumps filed a motion for summary judgment 6 arguing that maritime law applies and that the Yaws had no evidence to support their 7 claims. Dkt. 113. On March 18, 2019, the Yaws responded. Dkt. 134. On March 22, 8 2019, Warren Pumps replied. Dkt. 142.

9 On March 21, 2019, the Yaws filed a motion to amend their complaint informing 10 the Court that Mr. Yaw passed away. Dkt. 140. On April 18, 2019, the Court granted the 11 Yaws’ motion. Dkt. 154. 12 On May 30, 2019, the Court renoted Warren Pumps’ motion for consideration on 13 the Court’s June 21, 2019 calendar. Dkt. 180.

14 On June 12, 2019, Yaw filed her motions for partial summary judgment on the 15 five remaining defendants’ affirmative defenses, Dkts. 192, 194, 198, 204, 208, and 16 numerous defendants filed motions for summary judgment on Yaw’s claims, Dkts. 205, 17 210, 211. On July 1, 2019, some parties responded. Dkts. 218, 220, 222, 224, 226, 229, 18 231, 234. On July 5, 2019, some parties replied. Dkts. 235, 237, 239.

19 II. FACTUAL BACKGROUND 20 The majority of the relevant facts in this matter are undisputed. Mr. Yaw worked 21 at the Puget Sound Naval Shipyard (“PSNSY”) from 1964 through 2001. During the first 22 part of his career, Mr. Yaw was a shipfitter, which Mr. Yaw describes as a steelworker 1 who actually builds the ships. Mr. Yaw recalled working on numerous ships including 2 the USS Simon Lake, USS Kitty Hawk, USS Cusk, USS Seattle, USS Ranger, USS

3 Sacramento, USS John Adams, USS Constellation, USS Enterprise, USS Truxton, USS 4 Bainbridge, and USS Ulysses S. Grant. It is undisputed that, at some point, some of these 5 ships were equipped with products that either included parts with asbestos such as 6 gaskets and seals or required additional parts with asbestos such as insulation. The 7 problem, however, is that Mr. Yaw failed to remember working on any particular product 8 on any particular ship. See Dkt. 113 at 2–3 (summarizing Yaw deposition).

9 Yaw attempts to overcome this failure by selectively citing portions of Mr. Yaw’s 10 deposition and relying on the declaration of his expert, Captain Arnold Moore (“Moore”). 11 Mr. Yaw stated in his deposition that he was in engine rooms and boiler rooms that were 12 dusty. Dkt. 134 at 3–4. Moore then opines that “Mr. Yaw worked in spaces where other 13 workers were removing asbestos insulation from 1964 until 1978. He likely worked in

14 spaces where other workers were removing and replacing asbestos packing and gaskets 15 for the entire time he worked as a shipfitter from 1964 through 1980.” Dkt. 135-1 at 65. 16 III. DISCUSSION 17 A. Maritime Law 18 Warren Pumps argues that maritime law applies because “at least some portion of

19 [Mr. Yaw’s] alleged exposures took place aboard Naval vessels on navigable waters or in 20 drydock . . . .” Dkt. 113 at 4. The party seeking to invoke such jurisdiction bears the 21 burden to establish that it applies. Jerome B. Grubart, Inc. v. Great Lakes Dredge & 22 Dock Co., 513 U.S. 527, 534 (1995). To satisfy this burden, the moving party must plead 1 allegations or submit evidence to meet the requirements of (1) the locality test and (2) the 2 connection test. Id.

3 In this case, Warren Pumps has submitted sufficient evidence to meet its burden 4 on this issue. First, Yaw does not contest Warren Pump’s argument. Instead, Yaw 5 argues that her evidence “is sufficient to raise issues of fact with regard to causation 6 under any asbestos causation standard, including that supposedly applied in maritime law 7 under Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir. 2005) [abrogated 8 on other grounds by Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019)] and

9 McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170 (9th Cir. 2016).” It is unclear what 10 “supposedly applied in maritime law” means because this standard is a well-settled issue 11 of law. To the extent Yaw argues that some other causation standard applies under 12 maritime law, the argument is rejected. Turning to the remaining merits of Warren 13 Pumps’ argument, Yaw provides no substantive response.

14 Under the locality test, maritime law applies if “the tort occurred on navigable 15 water or [if] the injury suffered on land was caused by a vessel on navigable water.” 16 Grubart, 513 U.S. at 534. “[I]t is well-settled that vessels in dry dock are still considered 17 to be on navigable waters for purposes of admiralty jurisdiction.” Cabasug v. Crane Co., 18 956 F. Supp. 2d 1178, 1187 (D. Haw. 2013). The evidence in the record establishes that

19 Mr. Yaw’s alleged exposure occurred aboard dozens of Navy vessels at PSNSY. Thus, 20 Warren Pumps has met the locality test. 21 The connection test involves a two-part analysis and is met if (1) the incident has a 22 potentially disruptive impact on maritime commerce and (2) the general character of the 1 activity giving rise to the incident shows a substantial relationship to traditional maritime 2 activity. Sisson v. Ruby, 497 U.S. 358, 370–72 (1990); Grubart, 513 U.S. at 534. The

3 Ninth Circuit has “taken an inclusive view of what general features of an incident have a 4 potentially disruptive effect on maritime commerce.” In re Mission Bay Jet Sports, LLC, 5 570 F.3d 1124, 1128 (9th Cir. 2009). 6 In this case, Warren Pumps has established that repair of naval vessels impacts 7 maritime commerce and has a traditional relationship to maritime activity. Therefore, the 8 Court grants Warren Pumps’ motion on this issue and concludes that maritime law

9 applies to Yaw’s claims. 10 B. Summary Judgment 11 The remaining defendants all move for summary judgment on the issue of 12 causation. Dkts. 113 at 5–8; 205 at 7–9; 211 at 7–10. While questions of fact may exist 13 on the other issues in this case, the Court finds that Yaw’s failure to submit sufficient

14 evidence of causation is dispositive. 15 1. Standard 16 Summary judgment is proper only if the pleadings, the discovery and disclosure 17 materials on file, and any affidavits show that there is no genuine issue as to any material 18 fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

19 The moving party is entitled to judgment as a matter of law when the nonmoving party 20 fails to make a sufficient showing on an essential element of a claim in the case on which 21 the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 22 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, 1 could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. 2 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

3 present specific, significant probative evidence, not simply “some metaphysical doubt”). 4 See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists 5 if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or 6 jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 7 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 8 626, 630 (9th Cir. 1987).

9 The determination of the existence of a material fact is often a close question. The 10 Court must consider the substantive evidentiary burden that the nonmoving party must 11 meet at trial—e.g., a preponderance of the evidence in most civil cases. Anderson, 477 12 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual 13 issues of controversy in favor of the nonmoving party only when the facts specifically

14 attested by that party contradict facts specifically attested by the moving party. The 15 nonmoving party may not merely state that it will discredit the moving party’s evidence 16 at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. 17 Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory, 18 nonspecific statements in affidavits are not sufficient, and missing facts will not be

19 presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89 (1990). 20 2. Defendants’ Motions 21 To establish her claims, Yaw “must be able to show both that [Mr. Yaw] was 22 actually exposed to asbestos-containing materials that were installed by the shipbuilders 1 and that such exposure was a substantial contributing factor in causing his injuries.” 2 McIndoe, 817 F.3d at 1174 (citing Lindstrom, 424 F.3d at 492). A “mere showing that

3 defendant’s product was present somewhere at plaintiff’s place of work is insufficient” to 4 establish causation. Lindstrom, 424 F.3d at 492. Likewise, “[e]vidence of only minimal 5 exposure to asbestos is insufficient” to establish causation. McIndoe, 817 F.3d at 1176. 6 In this case, Yaw fails to create a genuine dispute of material fact as to causation. 7 Regarding fact witnesses, Mr. Yaw testified only generally about his work at the PSNSY. 8 At most, Yaw submits evidence to establish that sometimes Mr. Yaw was in engine and

9 boiler rooms that contained dust. Dkt. 134 at 2–5. She fails to identify any particular 10 product that created the dust or whether other workers were working on a particular 11 product creating dust. In other words, Yaw fails to identify a specific time that Mr. Yaw 12 was on a particular ship and exposed to a particular product that had produced or was 13 producing asbestos dust. Yaw attempts to fill this important gap with the testimony of

14 her expert, Moore. Specifically, Moore opines that “Mr. Yaw worked in spaces where 15 other workers were removing asbestos insulation from 1964 until 1978. He likely worked 16 in spaces where other workers were removing and replacing asbestos packing and gaskets 17 for the entire time he worked as a shipfitter from 1964 through 1980.” Dkt. 135-1 at 65. 18 Moore, however, fails to identify the basis for his factual assertion that Mr. Yaw worked

19 around asbestos insulation removal or replacement. In short, Moore utterly fails to 20 connect Mr. Yaw’s presence at any specific time to any specific defendant’s product or 21 activity. With an insufficient factual basis for the opinion, Moore’s report is nothing 22 more than evidence establishing the mere presence of defendants’ products at Mr. Yaw’s 1 workplace, the PSNSY. Mere presence evidence is insufficient to establish exposure 2 mush less substantial exposure. McIndoe, 817 F.3d at 1176. Therefore, the Court grants

3 Warren Pumps, ALS, and Ingersoll-Rand’s motions for summary judgment, Dkts. 113, 4 205, 211. 5 3. Yaw’s Motions 6 Yaw moves for partial summary judgment on Warren Pumps, ALS, and Ingersoll- 7 Rand’s affirmative defenses. Dkts. 192, 204, 208. The Court denies these motions as 8 moot because the Court dismisses Yaw’s claims against these defendants.

9 C. Status Report 10 Although it appears that Armstrong and Crane are the remaining defendants, the 11 docket reflects that they may no longer be participating in this matter. Yaw did not 12 respond to Armstrong’s motion for summary judgment, Dkt. 210, and Armstrong and 13 Crane did not respond to Yaw’s motions for partial summary judgment, Dkts. 194, 198.

14 Moreover, in the parties’ recent stipulation, Armstrong and Crane did not participate. 15 Dkt. 264. Therefore, the Court requests a status report as to Armstrong and Crane. 16 IV. ORDER Therefore, it is hereby ORDERED that Warren Pumps, ALS, and Ingersoll- 17 Rand’s motions for summary judgment, Dkts. 113, 205, 211, are GRANTED and Yaw’s 18 motions for partial summary judgment, Dkts. 192, 204, 208, are DENIED as moot. The 19 Clerk shall terminate Warren Pumps, ALS, and Ingersoll-Rand. 20 21 22 1 The Court RESERVES ruling on the motions involving Armstrong and Crane, 2 Dkts. 194, 198, 210, and requests a status report whether these defendants are still

3 involved in this matter. The status report shall be filed no later than August 23, 2019. 4 Dated this 19th day of August, 2019. A 5 6 BENJAMIN H. SETTLE 7 United States District Judge

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