ORDER ADDRESSING VARIOUS MOTIONS FOR SUMMARY JUDGMENT RAISING ISSUES OF CAUSATION AND THE DUTY TO WARN (DOC. NOS. 674, 676, 678, 683, AND 690)
J. MICHAEL SEABRIGHT, District Judge.
On June 1, 2012, Plaintiffs Robert and Joyce Cabasug ("Plaintiffs") filed this action asserting claims for negligence, strict liability, breach of warranty, loss of consortium, and punitive damages based on a failure to warn theory against twenty-five Defendants that manufactured, sold and/or supplied various products containing asbestos
Currently before the court are a number of motions raising interrelated issues regarding causation, including (1) what evidence Plaintiffs must present to raise a genuine issue of material fact that each of Defendant's products was a substantial factor in causing Cabasug's injuries; and (2) whether Defendants may be held liable for asbestos containing replacement parts which they did not themselves place into the stream of commerce.
The court previously determined that maritime law applies to this dispute. See Cabasug v. Crane Co., 956 F.Supp.2d 1178 (D.Haw.2013), Doc. No. 657. Applying maritime law, the court joins those courts that have already addressed these issues and finds that (1) on causation, Cabasug must establish, for each Defendant, a substantial exposure for a substantial period of time to a Defendant's product; and (2) on the duty to warn, a Defendant has no duty to warn regarding asbestos-containing replacement parts that it did not manufacture and/or distribute.
Cabasug worked at PHNS from 1973 through 2006, and held positions as a pipefitter; pipefitter limited; pipefitter journeyman; nuclear inspector, Code 139; General Engineer, Code 365; and Test Engineer and Risk Control. Plaintiffs asserts that he was exposed to asbestos up until 1986 when he was promoted to an office job. See Cabasug, 956 F.Supp.2d at 1180-81.
Prior to this promotion, Cabasug asserts that he was exposed to asbestos within PHNS working on various ships and submarines under repair and inside Building No. 4 (Shop 56). Id. Cabasug asserts that he spent seventy-five percent of his time on ships in dry dock, and explains he was "assigned jobs on these ships that included the repair, fabrication, reinstallation, modification, alteration, and testing of components on the equipment, machinery, and valves." See, e.g., Doc. No. 677-2, Ametek Ex. 2 at 18. Cabasug recalls working "on a daily basis" with and around a panoply of equipment, machinery, and valves, and recalls seeing the names of Defendants on such products. Id. at 18-19. Cabasug generally explains his work as follows:
Id. at 19. In total, Cabasug has identified thirty-eight ships and submarines that he worked on at PHNS.
Doc. No. 661, TAC ¶ 4. The TAC further asserts:
Id. ¶ 7.
On July 25, 2013, the court determined that maritime law, not Hawaii substantive law, applies to this dispute. Cabasug, 956 F.Supp.2d 1178.
From August 28-30, 2013, Cleaver Brooks, Inc. ("Cleaver Brooks"), Ametek, Inc. ("Ametek"), Aurora Pump Company ("Aurora"), and Crane Company ("Crane") filed Motions for Summary Judgment arguing that they are entitled to summary judgment on the issue of causation (whether based on a substantial factor, replacement part, and/or duty to warn theory).
STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir.1999).
"A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir.2004). "When the moving party has carried its burden under Rule 56[(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87, 106 S.Ct. 1348; 89 L.Ed.2d 538 (1986) (citation and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that a party cannot "rest upon the mere allegations or denials of his pleading" in opposing summary judgment).
"An issue is `genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is `material' only if it could affect the outcome of the suit under the governing law." In re Barboza, 545 F.3d 702, 707 (9th Cir.2008) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir.2008) (stating that "the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor" (citations omitted)).
Plaintiffs assert negligence and strict liability claims based on Defendants' failure to warn regarding the dangers of asbestos. Under either theory of liability, basic maritime tort law requires that Plaintiffs "show that the defendant's action was a `substantial factor in bringing about [the] harm.'" Sementilli v. Trinidad Corp., 155 F.3d 1130, 1135 (9th Cir.1998) (quoting Benefiel v. Exxon Corp., 959 F.2d 805, 807 (9th Cir.1992)); see also Conner v. Alfa Laval, 842 F.Supp.2d 791, 797 (E.D.Pa.2012) (discussing causation under maritime law for both negligence and strict liability claims); Restatement (Second) of Torts § 431 (1965) (providing that actor's negligent conduct is the legal cause of harm, in part, when "his conduct is a substantial factor in bringing about the harm"). The parties raise several arguments regarding causation, including (1)
A. Legal Principles Under Maritime Law
As many courts have recognized, asbestos actions present unique issues for purposes of causation — asbestos diseases may take decades for the exposure to cause diagnosable effects; there are usually numerous possible sources of asbestos found in the plaintiff's workplace (which may encompass a large area such as a shipyard); and due to the passage of time, a plaintiff may be unable to recall with specificity the asbestos-containing products to which he was exposed. See, e.g., Jackson v. Anchor Packing Co., 994 F.2d 1295, 1301 (8th Cir. 1993) ("The courts have recognized that, given the nature of asbestos exposure in large industrial settings and the long latency periods for asbestos-related diseases, plaintiffs (especially bystanders) face a formidable task in showing, after many intervening years, exposure to a particular defendant's asbestos product and that exposure's causation of the plaintiff's injuries."). As a result, a plaintiff may not be able to present for each defendant direct evidence establishing that a plaintiff has been exposed to a particular product containing asbestos and that such product was a substantial factor in causing injury.
In recognition of these issues, courts have developed various tests in determining whether a plaintiff's circumstantial evidence raises a genuine issue of material fact that a particular defendant's product was a substantial factor in causing his injuries. The Ninth Circuit has not addressed causation under maritime law in the asbestos context, and the parties dispute what evidence is necessary to raise a genuine issue that each of Defendant's products was a substantial factor in causing Cabasug's injuries. The court therefore considers the various tests adopted by other courts to discern what test best comports with the Ninth Circuit's view under maritime law.
Defendants urge this court to follow Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir.2005), the only circuit court to consider causation for asbestos exposure under maritime law. In Lindstrom, a merchant seaman who worked in the engine department aboard several vessels brought products liability claims against various manufacturers for compensation for mesothelioma allegedly caused by the many pieces of equipment containing asbestos to which he was exposed. Lindstrom explained that a plaintiff must show, "for each defendant, that (1) he was exposed to the defendant's product, and (2) the product was a substantial factor in causing the injury he suffered." Id. at 492 (citing Stark v. Armstrong World Indus., 21 Fed.Appx. 371, 375 (6th Cir.2001) (unpublished)). Lindstrom explains:
Applying this "substantial exposure" framework, Lindstrom granted summary judgment to Garlock Sealing Technologies ("Garlock"), where (1) Garlock manufactured both asbestos-containing and non-asbestos containing products; (2) the plaintiff failed to identify Garlock as a manufacturer of sheet packing material aboard the vessels and did not identify any exposure to asbestos in connection with Garlock's products; and (2) other witness testimony established that some Garlock sheet packing contained asbestos, yet the witness could not affirm whether all of the Garlock sheet packing on the vessel on which the plaintiff worked contained asbestos. Id. at 497. Lindstrom determined that summary judgment was appropriate because the plaintiff "did not specifically testify regarding Garlock at all, and his other two deponents admitted that they could not tell whether any sheet packing material handled by [the plaintiff] contained asbestos." Id. at 498. Thus, there was no evidence supporting the reasonable inference that the plaintiff had substantial exposure to Garlock's asbestos-containing products.
Since Lindstrom, the MDL asbestos action has adopted and applied this standard in asbestos cases applying maritime law. See, e.g., Hall v. A.W. Chesterton Co., 2013 WL 2477160 (E.D.Pa. May 7, 2013); Bolton v. Air & Liquid Sys. Corp., 2013 WL 2477169 (E.D.Pa. Apr. 30, 2013); Pace v. 3M Co., 2013 WL 1890341 (E.D.Pa. Apr. 22, 2013). Lindstrom also appears in line with many state court decisions, requiring that there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked (i.e., the "regularity, frequency, and proximity" test).
A review of Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), which is widely cited for the "regularity, frequency, and proximity" test, shows certain parallels with Lindstrom. Lohrmann explains that its test prevents a plaintiff from defeating summary judgment merely by "present[ing] any evidence that a company's asbestos-containing product was at the workplace while the plaintiff was at the workplace," which would be contrary to the requirement that a plaintiff establish that defendant's product was a substantial factor in bringing about the
Despite the numerous courts that have adopted the frequency, regularity, and proximity test, cases do not apply this test by rote and its application depends on the particular facts presented. Indeed, Lohrmann explained that this test was "in keeping with the opinion of the plaintiff's medical expert who testified that even thirty days exposure, more or less, was insignificant as a causal factor in producing the plaintiff's disease." Id. at 1163. And although there was testimony that some of defendants' products were used in the shipyard, there was no testimony establishing that the plaintiff was actually exposed to them. Id. at 1163-64. In comparison, Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.1992) (applying Illinois law), acknowledged that the frequency and regularity prongs "become less cumbersome when dealing with cases involving diseases, like mesothelioma, which can develop after only minor exposures to asbestos fibers." Id. at 420 (citations omitted); see also Jackson v. Anchor Packing Co., 994 F.2d 1295, 1303 (8th Cir.1993) (applying Arkansas law and acknowledging that a "plaintiff's evidence of `fiber drift' may be used to widen the area of probable exposure surrounding the plaintiff's work station," effectively widening the proximity prong of the analysis (citing Robertson v. Allied Signal, Inc., 914 F.2d 360, 367 (3d Cir. 1990))). Finally, Slaughter v. Southern Talc Co., 949 F.2d 167 (5th Cir.1991) (applying Texas law), summarized the test as requiring a plaintiff simply to "prove that, more probably than not, he actually breathed asbestos fibers originating in defendants' products," and determined that the plaintiff had established a genuine issue of fact where he asserted that defendant's products had been used "all over the plant" yet could not specifically show their use near the plaintiff's work area. Id. at 171-72.
On the other side of the spectrum, Plaintiffs argue that the Ninth Circuit would adopt the test outlined in Lockwood v. AC & S, Inc., 109 Wn.2d 235, 744 P.2d 605 (1987) (en banc), which held that the plaintiff established his prima facie case by presenting evidence that the defendant's asbestos-containing products were in the same workplace, that asbestos dust can remain in the air and drift with air currents for a long period of time, and that exposure to asbestos has a cumulative effect in contributing to asbestosis. Lockwood explained that even though the plaintiff did not work directly with the defendant's product, "it is reasonable to infer that since the product was used on that ship when [the plaintiff] worked there, [the plaintiff] was exposed to it." Id. at 613. Combined "with the expert testimony that all exposure to asbestos has a cumulative effect in contributing to the contraction of asbestosis," Lockwood held that it would be reasonable for a jury to infer that the plaintiff's exposure was a proximate cause of his injury. Id.
Since Lockwood, In re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir.
What this review of the caselaw establishes is that courts have taken different views — based on the particular evidence presented and/or in recognition of the unique issues presented of asbestos products liability cases — of what evidence is sufficient to raise a genuine issue of material fact as to causation.
Am. Dredging Co. v. Miller, 510 U.S. 443, 451, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994) (quoting The Lottawanna, 21 Wall. 558, 575, 22 L.Ed. 654 (1875)).
Lindstrom and the MDL action have spoken as to how causation is determined under maritime law, and their view is generally consistent with a majority of state law cases addressing this issue. See Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 878, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997) (explaining that maritime law "`is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules,' drawn from both state and federal sources" (citing East River S.S. Corp. v. Transamerica
The court therefore finds that the Ninth Circuit, in applying maritime law, would follow Lindstrom's guidance that to survive summary judgment Plaintiffs must come forward with evidence raising a genuine issue of material fact that (1) Cabasug was exposed to each Defendant's product(s); and (2) such product was a substantial factor in causing Cabasug's injury. See Lindstrom, 424 F.3d at 492. Thus, "a mere showing that defendant's product was present somewhere at plaintiff's place of work is insufficient." Id. Rather, Plaintiffs must show "a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural." Id.
Determining what level of exposure is necessary to raise a genuine issue of material fact will ultimately depend on the particular facts as to the particular Defendant. Put simply, context matters — the parties should not interpret the court's adoption of Lindstrom as creating some sort of artificial check-list regarding what evidence is necessary to defeat summary judgment as to causation in a maritime asbestos product liability case. Rather, the court's analysis will be guided by the particular facts to determine whether Plaintiffs have presented evidence to support a reasonable inference that the asbestos from a particular Defendant's product was a substantial factor in the injury.
For example, evidence that Cabasug worked on a vessel in which a Defendant's products were present, on its own, is insufficient to raise a genuine issue of material fact that Cabasug was exposed to such products. See id. Plaintiffs may, however, raise a genuine issue of material fact by presenting direct evidence that Cabasug worked on (or, depending on the particular fact, near) the asbestos-containing components of specific products. Alternatively, Plaintiffs may present circumstantial evidence of exposure by presenting evidence that the Defendant's products were prevalent
As to whether a Defendant's product was a substantial factor in causing Plaintiffs' injuries, the court again stresses that context matters. Specifically, although Lindstrom instructs that "minimal exposure is insufficient," id., what exposure constitutes "minimal" as opposed to "substantial" exposure depends on the particular circumstances of each case. For example, where Plaintiffs have raised a genuine issue that Cabasug was exposed to the asbestos components of a product in the course of his regular duties, expert testimony that every asbestos exposure increases the individual's risk of developing mesothelioma may support the reasonable inference that asbestos from the Defendant's product was a substantial factor in causing Plaintiffs' injuries.
In providing these examples, the court stresses that they are not meant to be read as hard rules regarding when a plaintiff may establish a reasonable inference of substantial exposure. Rather, each case depends on the particular facts presented, and the court will consider both direct and circumstantial evidence in determining whether Plaintiffs have raised a genuine issue of material fact.
2. Duty to Warn
Where a defendant provides a product that is unreasonably dangerous (such as a product including asbestos-containing components), the duty to warn arises. The Restatement (Second) of Torts § 402A (1965) (the "Restatement"), which both the Supreme Court and Ninth Circuit have cited in maritime products liability cases, see Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 879, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997); Pan-Alaska Fisheries, Inc. v. Marine Const. & Design Co., 565 F.2d 1129, 1134 (9th Cir.1977), provides that liability attaches to "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property."
This duty to warn extends to all components of the product that a defendant places into the stream of commerce. See Restatement § 402A cmt. h ("The defective condition may arise not only from harmful ingredients, not characteristic of the product itself either as to presence or quantity, but also from foreign objects contained in the product, from decay or deterioration before sale, or from the way in which the product is prepared or packed."); see also Exxon Shipping Co. v. Pac. Res., Inc., 789 F.Supp. 1521, 1526 (D.Haw.1991) (explaining that under maritime law, strict liability is imposed "upon a manufacturer or an assembler who incorporates a defective component part into its finished product and places the finished product into the stream of commerce").
Asbestos may be incorporated into a defendant's products in several potential ways — for example, a defendant may supply and install the asbestos component contained in the final product; a defendant may specifically design its product to contain specific asbestos components, but those asbestos components are incorporated into the product after it leaves the
Although the Ninth Circuit has not addressed this issue under maritime law, the Restatement, as provided above, suggests that a defendant is not liable for third-party replacement parts — instead, it is liable for only its products. See also 1 Thomas J. Schoenbaum, Admiralty & Maritime Law § 5-7 (5th ed. 2011) (explaining that the Restatement "requires the plaintiff to prove: (1) that the defendant sold or manufactured the product; (2) that the product was unreasonably dangerous or was in a defective condition when it left the defendant's control; and (3) that the defect resulted in injury to the plaintiff."). More definitively answering this question, however, is the MDL court in Conner, which persuasively analyzed both Lindstrom and several state law cases to hold that under maritime law, a defendant does not have a duty to warn regarding replacement parts it did not place into commerce.
Conner started its analysis with Lindstrom, which although did not expressly address the duty to warn, is nonetheless instructive for its determination that a manufacturer is not liable for a third party's replacement asbestos products. See Lindstrom, 424 F.3d at 493-97. For example, although manufacturer Henry Vogt admitted that its valves and gaskets originally included asbestos components, the undisputed evidence established that these components were replaced twice a year, Henry Vogt did not supply any of these replacement parts, and the plaintiff boarded the ship four years after the Henry Vogt equipment was installed on the ship. Lindstrom concluded that "there was insufficient evidence to connect [the plaintiff] with any Henry Vogt product or to connect a Henry Vogt product with asbestos that caused [the plaintiff's] illness," where the plaintiff did not handle the original packing or gasket material, and "any asbestos that he may have been exposed to in connection with a Henry Vogt product would be attributable to some other manufacturer." Id. at 495. Thus, Lindstrom held that "Henry Vogt cannot be held responsible for material `attached or connected' to its product on a claim of a manufacturing defect." Id. (citing Stark, 21 Fed.Appx. at 381, and Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 715 (5th Cir. 1986) ("The component part manufacturer is protected from liability when the defective condition results from the integration of the part into another product and the component part is free from defect.")).
Conner outlined that Lindstrom's determination that a manufacturer is liable only for its products is consistent with several state court decisions addressing replacement parts, including Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008) (en banc); Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008) (en banc); and O'Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987 (2012).
For example, Simonetta affirmed summary judgment against a former Navy machinist who brought product liability claims where the defendant's product, an
Braaten further extended this reasoning in determining that a defendant does not have a duty to warn regarding asbestos in replacement packing and gaskets that the defendants did not manufacture, sell or supply. 198 P.3d at 495. Braaten reasoned that "[t]he defendants did not sell or supply the replacement packing or gaskets or otherwise place them in the stream of commerce, did not specify asbestos-containing packing and gaskets for use with their valves and pumps, and other materials could have been used." Id. at 495-96. Thus, Braaten held that "a manufacturer does not have an obligation to warn of the dangers of another manufacturer's product." Id. at 504.
Finally, O'Neil similarly held that even where Crane originally used asbestos in its valves and packing, it did not have a duty to warn where these parts were later replaced by components from other manufacturers. O'Neil explained that California law has "never held that a manufacturer's duty to warn extends to hazards arising exclusively from other manufacturer's products." 135 Cal.Rptr.3d 288, 266 P.3d at 997. Although Crane gave no warning regarding the asbestos components originally included in its products, O'Neil determined that Crane did not have a continuing duty to warn regarding replacement parts it did not manufacture given that "[n]o case law ... supports the idea that a manufacturer, after selling a completed product to a purchaser, remains under a duty to warn the purchaser of potentially defective additional pieces of equipment that the purchaser may or may not use to complement the product bought from the manufacturer." Id., 135 Cal.Rptr.3d 288, 266 P.3d at 998 (quoting In re Deep Vein Thrombosis, 356 F.Supp.2d 1055, 1068 (N.D.Cal.2005)). O'Neil concluded that "expansion of the duty of care as urged here would impose an obligation to compensate on those whose products caused the plaintiffs no harm. To do so would exceed the boundaries established over decades of product liability law." Id., 135 Cal.Rptr.3d 288, 266 P.3d at 1007.
Conner explained that these cases determining that manufacturers can be liable only for harm caused by their own products and not those of others is confirmed by the policy motivating products liability law:
842 F.Supp.2d at 800-01 (citing various cases); see also Faddish v. Buffalo Pumps, 881 F.Supp.2d 1361, 1372 (S.D.Fla. 2012) (adopting the "bare metal" defense under Florida law and explaining that "the duty to act is limited to entities within a product's chain of distribution on theory that these are the entities best motivated and capable of controlling the risk"). Thus, considering this caselaw and these policy considerations, Conner held "that, under maritime law, a manufacturer is not liable for harm caused by, and owes no duty to warn of the hazards inherent in, asbestos products that the manufacturer did not manufacture or distribute." 842 F.Supp.2d at 801.
The court finds this reasoning sound and believes the Ninth Circuit would determine that under maritime law, a manufacturer is not liable for replacement parts that it did not place into the stream of commerce, whether the manufacturer's product originally contained asbestos components or was designed to include asbestos components. As outlined in Conner, this rule is in line with the Restatement, which suggests that the duty to warn is limited to entities within a product's chain of distribution because such entities are in the best position to absorb the costs of such warnings into the cost of the replacement parts. Id. Following this reasoning, a manufacturer should not be held liable for replacement parts provided by third parties (often provided years later). And as with the causation analysis above, the court believes that the Ninth Circuit would also find Lindstrom and Conner persuasive in ensuring the creation of a uniform body of law to govern maritime actions.
In opposition, Plaintiffs criticize Lindstrom (and therefore Conner's reliance upon it) because Lindstrom (1) did not rely upon the Restatement; (2) relied only upon Stark, an unpublished case, to determine maritime law; (3) extended Stark beyond the facts Stark addressed; and (4) limited its holding to causation and did not address the duty to warn. Doc. No. 683, Mot. at 16-17. These criticisms lack merit. Lindstrom does not conflict with the Restatement, and its reliance on Stark is unsurprising given that its facts were analogous and Stark also addressed maritime law. Further, although Stark is unpublished, Lindstrom ultimately made its own determination as to the law, and its reasoning, as shown in Conner and subsequent cases, is well-supported. And finally, Lindstrom clearly addressed whether a defendant is liable for replacement parts, determining that a defendant cannot be held responsible for the asbestos contained in another's products. 424 F.3d at 496. This is the case, whether based on the reasoning that a defendant is not the cause of the injury where it did not supply the asbestos, or that a defendant has no duty to warn regarding products it did not supply. In other words, both Lindstrom and Conner stem from the same legal principle that a defendant is not liable for components
In further opposition, Plaintiffs seemingly invite this court to ignore Lindstrom and Conner and follow the various (mostly state law) cases cited by Plaintiffs. See generally Doc. No. 683. There is certainly no lack of caselaw addressing the duty to warn and asbestos product liability, but Plaintiffs can hardly suggest that Lindstrom and Conner are outliers in their conclusions where they too cited state law cases in support of their analyses. And the facts of Conner and Lindstrom are analogous to this action, whereas Plaintiffs' cases mostly address very different facts such that application of their holdings to this case is tenuous at best.
In sum, the court agrees with Conner and Lindstrom, and therefore holds that under maritime law, a manufacturer is not liable for harm caused by, and owes no duty to warn of the hazards inherent in, asbestos-containing replacement parts that the manufacturer did not manufacture or distribute.
Based on the principles outlined above, a plaintiff establishes causation under maritime law by showing, for each defendant, that he was exposed to the defendant's product, and the product was a substantial factor in causing the injury he suffered. Further, where the asbestos-containing components of a defendant's product have been replaced, a plaintiff must establish that the defendant placed those replacement parts into the stream of commerce. The court addresses these elements as argued in the various pending Motions.
1. Plaintiffs' Motion for Summary Adjudication on the Duty to Warn Under Maritime Law, Doc. No. 683
Plaintiffs' Motion for Summary Adjudication on the Duty to Warn Under Maritime Law asks the court to make the legal determination that a defendant has a duty to warn so long as it "knew or specified or designed asbestos components and/or it was known that asbestos exposure would occur in the inevitable maintenance and repair of its equipment." Doc. No. 683, Pls.' Mot. at 3. This Motion, seeking a legal determination on the duty to warn, places the proverbial cart before the horse — the duty to warn is only an issue if Plaintiffs first establish that Cabasug was exposed to asbestos attributable to a particular Defendant's product. Rather, the court finds that a Defendant's duty to warn is best addressed in context of the particular facts presented as to each Defendant in context of each of their Motions addressed below. The court therefore DENIES Plaintiffs' Motion, Doc. No. 683, but will consider its
2. Ametek's Motion for Summary Judgment, Doc. No. 676
Plaintiffs assert claims against Ametek as the successor-in-interest to Schutte & Koerting Company ("S & K"), which as alleged in the TAC, supplied to PHNS various products containing asbestos gaskets and/or packing, and/or asbestos-containing replacement parts for this equipment. Doc. No. 661, TAC ¶ 4. Ametek argues that summary judgment should be granted on Plaintiffs' claims because S & K did not supply or manufacture any asbestos-containing components that may have been used in conjunction with its products.
Viewing the facts in a light most favorable to Plaintiffs, the court finds that Plaintiffs have established a genuine issue of material fact that Cabasug worked on S & K combined exhaust and relief valves and desuperheaters. Specifically, Cabasug testified that he worked on (1) S & K combined exhaust and relief valves "routinely and regularly" by replacing their gaskets and packing, Doc. No. 713-18, Ametek Ex. E at 393-94; and (2) S & K desuperheaters by removing the bonnets and replacing the gaskets. Id. at 401. According to Plaintiffs' expert, Andrew Ott,
Further, although Cabasug testified that he generally worked on distilling plant air ejector condensers, Doc. No. 718-18, Pls.' Ex. E at 373-76, it is mere speculation whether Cabasug worked on S & K distilling plant air ejector condensers where (1) he did not identify the manufacturer of these air ejector condensers, id.; (2) Ott asserts that this S & K equipment was aboard only six of the thirty-eight vessels on which Cabasug worked, Doc. No. 713-1, Ott Decl. ¶ 19; and (3) Plaintiffs provide no details regarding the total number of distilling plant air ejector condensers on each vessel and/or the other manufacturers who provided this equipment. Without such information, the court is left to speculate whether Cabasug might have come into contact with an air ejector condenser supplied by S & K. Finally, as to air ejectors, Cabasug testified that he worked on Foster Wheeler air ejectors, and did not mention S & K. See Doc. No. 713-18, Pls.' Ex. E at 291-293. Thus, the court finds that Plaintiffs have established a genuine issue of material fact that Cabasug worked on only S & K combined exhaust and relief valves and desuperheaters.
As to the desuperheaters and combined exhaust and relief valves, the evidence does not establish that S & K included any asbestos-containing components with these products. First, it is undisputed that S & K did not manufacture or supply exterior thermal insulation, much less any external insulation that included asbestos. Doc. No. 677, Ametek CSF ¶ 19. Further, Richard Moore, a former S & K lead engineer for the valve group, asserts that S & K "did not manufacture or supply asbestos to the Navy and did not use raw asbestos in the manufacture of its products. To the extent that any [S & K product] contained asbestos, it did so because one of its components, manufactured by another entity, contained asbestos." Doc. No. 677-7, Moore Decl. ¶ 17. And although Ametek's corporate witness seemed to contradict Moore by admitting that S & K "did sell certain products that may have included asbestos-containing components, such as gaskets and packing," see Doc. No. 713-14, Pls.' Ex. A at 98, there is no evidence supporting a reasonable inference that S & K manufactured or supplied any asbestos components contained in desuperheaters and combined exhaust and relief valves for the vessels on which Cabasug worked.
Rather, the only evidence Plaintiffs have presented are (1) Ott's assertion that "[m]ost equipment provided by [S & K] incorporated asbestos gaskets that were routinely removed and replaced during the overhaul and repair of their equipment," Doc. No. 713-1, Ott Decl. ¶ 29; and (2) an S & K technical manual titled "Combined Exhaust and Relief Valves for Auxiliary Steam Turbines and Port Feed Pump," which lists the building yard as Bethlehem Sparrows Point Shipyard ("BSPS"), provides under "vessels applicable" "AE 23-25," and indicates that some gaskets are comprised of compressed asbestos. See Doc. No. 713-19, Pls.' Ex. F at 3273, 3281, p. 2 (listing material for gasket as "comp. asb."). This evidence does not support the reasonable inference that the S & K equipment Cabasug that worked on contained
At the November 12, 2013 hearing, Plaintiffs again failed to identify any evidence establishing that the S & K products Cabasug worked on contained asbestos. For example, Plaintiffs referred the court to the Moore Declaration, which explains the back-and-forth product design process between S & K and the Navy, and asserts that "to the extent that any designs for [S & K] products required the use of asbestos-containing components, the Navy expressly reviewed and approved the use of such components." Doc. No. 677-7, Ametek Ex. F, Moore Decl. ¶ 9. This statement, however, does not address any specific S & K products and therefore does not support the reasonable inference that the products Cabasug worked on contained asbestos. Plaintiffs also pointed to a technical manual for a "1200 PSI Pressure Fired Boiler" from the Foster Wheeler Corporation, which was installed on two of the vessels on which Cabasug worked. See Doc. No. 713-6, Ott Ex. 4. Although this technical manual indicates that S & K was listed as the supplier for Flexitallic gaskets for hydraulic trip valves, as explained above, there is no evidence that Cabasug worked on hydraulic trip valves. This manual therefore fails to support the reasonable inference that Cabasug was exposed to asbestos provided by S & K. Thus, viewing the evidence in a light most favorable to Plaintiffs, the court would be left to speculate whether any of the S & K products on Cabasug vessels contained asbestos provided by S & K.
Finally, even if S & K initially included asbestos-containing components in its products, Plaintiffs have failed to raise a genuine issue of material fact that by the time Cabasug worked on the S & K products, they still contained asbestos supplied by S & K. Rather, Plaintiffs again rely on wholly circumstantial evidence, which simply does not support the reasonable inference that PHNS ordered asbestos-containing components from S & K to which Cabasug was exposed.
Specifically, Ott conceded that most of the original component gaskets and packing associated with S & K products would have been replaced prior to 1973 when Cabasug began work at PHNS. See Doc. No. 677-9, Ametek Ex. H at 416-17. He therefore asserts that "manufacturers such as S & K typically provided additional asbestos gaskets and asbestos packing as on-board repair parts with the initial outfitting," and "routinely and typically supplied repair parts." See Doc. No. 713-1, Ott Decl. ¶¶ 37-38; see also Doc. No. 713-9, Melvin Wortman Decl. (asserting that fifty percent of the replacement parts obtained by the Puget Sound Naval Shipyard came from the original manufacturer); Doc. No. 713-18, Pls.' Ex. E at 334-35 (Cabasug discussing that Job Material List forms were used to order OEM replacement parts, but providing no testimony regarding S & K in particular). These bare, conclusory assertions — absent evidence that S & K in fact offered asbestos-containing gaskets for equipment Cabasug worked on — are insufficient to raise a genuine issue of material fact.
The only concrete evidence Plaintiffs offer on S & K replacement parts is (1) the S & K technical manual titled "Combined Exhaust and Relief Valves for Auxiliary Steam Turbines and Port Feed Pump," which states that "Supply Parts may be ordered directly from [S & K]," Doc. No.
In sum, the court finds that when construing the evidence in the light most favorable to Plaintiff, no reasonable jury could conclude that Plaintiff was exposed to asbestos from original or replacement gaskets or packing manufactured or supplied by S & K, as any such finding would be impermissibly conjectural. In particular, the evidence presented fails to raise a genuine issue of material fact that (1) Cabasug was exposed to any S & K products that contained asbestos; or (2) even if the S & K products Cabasug worked on originally contained asbestos, Cabasug was exposed to any asbestos-containing replacement parts provided by S & K. The court therefore GRANTS Ametek's Motion for Summary Judgment, Doc. No. 676.
3. Aurora Pump's Motion for Summary Judgment, Doc. No. 678
Plaintiffs assert that Aurora supplied PHNS with various types of pumps containing asbestos gaskets and/or packing, and/or asbestos-containing replacement parts for this equipment. Doc. No. 661, TAC ¶ 4. Aurora argues that summary judgment should be granted on Plaintiffs' claims because Plaintiffs have failed to raise a genuine issue of material fact that Cabasug was exposed to any asbestos from an Aurora pump.
As an initial matter, the court finds that Plaintiffs have raised a genuine issue of material fact that Cabasug was exposed to Aurora pumps, and in particular their gaskets, while working at PHNS. Cabasug asserts in his interrogatory responses that he recalls "working on many [Aurora] pumps," which included "all types of pumps." Doc. No. 711-43, Pls.' Ex. B at No. 18. Cabasug further explained during his deposition that in general he was involved in the overhaul of pumps, which involved removal and replacement of insulation, gaskets, and packing. Id.; see also Doc. No. 711-45, Pls.' Ex. D at 384-86. Although Cabasug did not provide specifics regarding which types of Aurora pumps he worked on and on which vessels (other than stating that he especially recalled working on the "main feed pumps," see Doc. No. 711-43, Pls.' Ex. B at No. 18), Ott explains that Aurora provided "at least 198 pumps for at least 19 of the ships and submarines on which Mr. Cabasug worked," and that these pumps covered a broad range "in terms of size, capacity, operating pressure and temperatures, and function." Doc. No. 711-12, Ott Decl. ¶ 13.
The court further finds that Plaintiffs have raised a genuine issue of material fact that the gaskets and packing contained within Aurora pumps aboard vessels Cabasug worked on were comprised of asbestos. For example, technical manuals for Type GNC pumps, the main category of end suction pumps, see Doc. No. 711-14, Ott Ex. 2 at 36, disclose the use of asbestos gaskets and packing, indicate that additional asbestos packing was included as on-board spare parts, and provide individual Aurora Service Part Numbers to order replacements gaskets. See Doc. No. 711-15, Ott Ex. 3; Doc. No. 711-16, Ott Ex. 4; Doc. No. 711-30, Ott Ex. 18; see also Doc. No. 711-12, Ott Decl. ¶¶ 18-23. Ott asserts that he reviewed eight Aurora technical manuals for Type GNC pumps related to the time frame in which the vessels on which Cabasug worked were built, and that they all disclose the exclusive use of asbestos packing and gaskets. See Doc. No. 711-12, Ott Decl. ¶¶ 19-20.
Finally, although there appears to be no dispute that the gaskets for these pumps were routinely removed and replaced, Plaintiffs have provided evidence that Aurora provided asbestos-containing replacement parts to which Cabasug was exposed. As described above, technical manuals establish that Aurora included on-board repair parts that included asbestos. Further, Ott asserts that the Navy's standard practice was to obtain repair parts from the original equipment manufacturer. Id. ¶ 58; see also Doc. No. 711-45, Pls.' Ex. D at 334-35 (Cabasug discussing that Job Material List forms were used to order OEM replacement parts).
Although Ott's generalized assertions regarding Navy practice are insufficient on their own to raise a genuine issue, Ott provides factual support for the reasonable inference that PHNS obtained replacement gaskets from Aurora — according to Ott, Aurora's technical manuals did not provide sufficient technical information for others to manufacturer the repair parts, and the precise dimensions and thickness of gasketing material was proprietary information held by Aurora. Doc. No. 711-12; Ott Decl. ¶¶ 55-56; Doc. No. 711-27, Ott Ex. 15. Viewed in a light most favorable to Plaintiffs, this evidence — combined with the facts that Aurora's corporate representative testified that it was part of Aurora's business to keep asbestos-containing replacement gaskets and packing in inventory for its customers, Doc. No. 711-48, Pls.' Ex. F, and PHNS ordered some asbestos-containing gaskets for at least one vessel on which Cabasug worked, Doc. No. 711-27, Ott Ex. 15
But to the extent that Plaintiffs assert that Aurora is liable for the external insulation applied to its pumps, the court rejects such argument as unsupported in law and fact. All the evidence presented suggests that Aurora did not supply external insulation. See Doc. No. 679-5, Aurora Ex. D at 321. As a result, the fact that Aurora's products were later insulated with asbestos is insufficient to hold Aurora liable for asbestos it did not manufacture or distribute.
In sum, viewed in a light most favorable to Plaintiffs, there is ample evidence supporting the reasonable inference that Cabasug was exposed to asbestos gaskets from Aurora pumps, including that (1) Cabasug testified that he replaced gaskets from pumps and that he recalled working on Aurora pumps; (2) there were 198 Aurora pumps aboard 19 different vessels upon which Cabasug worked; (3) Aurora included asbestos gaskets in its pumps; (4) Aurora provided on-board repair parts containing asbestos and also
4. Crane's Motion for Summary Judgment, Doc. No. 690
Plaintiffs assert claims against Crane based on its manufacture and supply to PHNS of valves containing asbestos gaskets and/or packing, and/or asbestos-containing replacement parts for this equipment. Doc. No. 661, TAC ¶ 4. Crane argues that Plaintiffs have failed to raise a genuine issue of material fact that Cabasug was exposed to any asbestos that Crane placed into the stream of commerce, or that such asbestos caused Plaintiffs' injuries.
As an initial matter, there is no dispute that Cabasug worked on Crane valves during his tenure at PHNS — he testified that he worked on and observed others working on Crane valves "very routinely and regularly" while at PHNS, Doc. No. 691, Crane CSF ¶ 3, and that his job duties included replacing the internal gaskets and packing contained within the valves. See Doc. No. 724-4, Pls.' Ex. C at 26-29. According to Conrad Palafox, one of Cabasug's co-workers, Crane valves were "on every ship" at PHNS. Doc. No. 724-2, Pls.' Ex. A at 109. Ott also opines that Crane is "one of the largest suppliers of valves and valve replacement parts to the Navy, and that Crane sold an "extensive array of valve and valve parts" for thirty-four Cabasug vessels. Doc. No. 724-15, Ott Decl. ¶ 14.
Plaintiffs have also presented evidence that Cabasug worked on Crane valves containing asbestos gaskets and packing. Although the Navy specified the use of both asbestos containing and non-asbestos containing materials for gaskets, see Doc. No. 691-4, Crane Ex. C at 9, Ott explains that the steam piping systems of steam vessels "required the use of asbestos gaskets to seal the mechanical bonnet joints [and] asbestos packing to seal valve systems from leakage," Doc. No. 725-15, Ott Decl. ¶ 17, and that many of the vessels Cabasug worked on included these high-pressure steam valves with asbestos components. Id. ¶¶ 25-31. Given that Cabasug testified that he worked on steam valves, see Doc. No. 724-4, Pls.' Ex. C at 28, this evidence supports the reasonable inference that Cabasug worked on Crane valves containing asbestos components.
Finally, Plaintiffs have presented evidence that this exposure was a substantial factor in causing Plaintiffs' injuries. As opined by Plaintiff's expert William E. Longo, Ph.D., the removal of gaskets and packing from steam equipment creates airborne asbestos dust. Doc. No. 724-10, Pls.' Ex. H at 26-30. And according to another of Plaintiffs' experts, Richard Lemen, Ph.D., all sources of asbestos exposure increase the individual's risk of developing an asbestos-related disease, including mesothelioma. Doc. No. 724-9, Pls.' Ex. G, Lemen Decl. ¶¶ 20, 22.
In opposition, Crane argues that even if there is a question of fact whether Cabasug encountered an asbestos-containing gasket or piece of packing placed into the stream of commerce by Crane, there is no evidence establishing how routinely he encountered asbestos-containing materials supplied by Crane as opposed to by others. See Doc. No. 733, Crane Reply at 6-7. According to Crane, such evidence is necessary
And viewed in a light most favorable to Plaintiffs, the court finds that the evidence supports a reasonable inference that asbestos-containing components supplied by Crane were a substantial factor in causing Plaintiffs' injuries where: (1) Crane valves were prevalent throughout Cabasug vessels; (2) Cabasug worked on Crane valves "very routinely and regularly" by replacing the internal gaskets and packing contained within the valves; (3) Cabasug worked on Crane steam valves, which required and included asbestos components; (4) Crane advertised its ability to provide replacement parts; (5) the Navy had a preferred practice to order replacement parts from the original equipment manufacturer; (6) Crane did not provide sufficient technical information for others to manufacturer the replacement parts; (7) PHNS purchased Crane asbestos replacement parts for Cabasug vessels; (8) Cabasug's work on valves created airborne asbestos dust; and (9) each exposure to respirable asbestos fibers increases the risk of contacting mesothelioma. In other words, this evidence suggests that Cabasug was exposed to some number of Crane replacement parts containing asbestos and that such exposure was a substantial factor in causing Plaintiffs' injuries.
The court therefore DENIES Crane's Motion for Summary Judgment as to the gaskets and packing provided by Crane. To the extent Plaintiffs asserted any claims on external insulation, however, there is no evidence that Crane provided such components. The court therefore GRANTS Crane's Motion as to any external insulation.
5. Cleaver Brooks' Motion for Summary Judgment, Doc. No. 674
Plaintiffs assert claims against Cleaver Brooks based on its former parent company, Aqua Chem, Inc.'s manufacture and supply to PHNS distilling plants, including their various components. See Doc. No. 661, TAC ¶ 4. Cleaver Brooks argues that summary judgment should be granted on Plaintiffs' claims because Plaintiffs have failed to raise a genuine issue of material fact that Cabasug was exposed to any asbestos that Aqua Chem placed into the stream of commerce.
Viewing the evidence in a light most favorable to Plaintiffs, the court finds that Plaintiffs have established a genuine issue of material fact that Cabasug was exposed to Aqua Chem distilling plants. According to Ott, there were a total of twenty-one Aqua Chem distilling plants on eleven of the vessels on which Cabasug worked. Doc. No. 718-1, Ott Decl. ¶ 15. Cabasug has asserted in both his interrogatory responses and his deposition testimony that he specifically recalled working on Aqua Chem distillers. For example, in Plaintiffs' January 31, 2013 Amended Answer to Interrogatories, Cabasug stated that he worked on Aqua Chem distillers, explaining that he "did a lot of work on all parts of the distillers, including the associated piping and valves, all of which involved the removal and replacement of the insulation and the gaskets and packing." Doc. No. 718-33, Pls.' Ex. 3 at 10. And during his February 27, 2013 deposition, Cabasug testified that he worked on Aqua Chem distillers by replacing their gaskets
Plaintiffs have also presented evidence that these distillers contained asbestos components. Both Ott and Felimer explained that these distillers contained asbestos components including insulation, packing, and gaskets, see Doc. No. 718-1, Ott Decl. ¶¶ 18-23, Doc. No. 718-10, Ott Ex. 6, Felimer Decl. ¶¶ 8, 10, 12, and Cleaver Brooks' technical manuals confirm this assertion. See, e.g., Doc. Nos. 718-3-718-5, Ott Exs. 2-4.
Finally, Plaintiffs have presented evidence which raises the reasonable inference that the asbestos components to which Cabasug was exposed were supplied by Aqua Chem and/or Cleaver Brooks. Although the original asbestos components may have been replaced by the time Cabasug started working at PHNS, Ott, Felimer, and Cabasug all assert that it was standard practice for the Navy (and PHNS in particular) to order replacement parts from the original equipment manufacturer. See Doc. No. 718-1, Ott Decl. ¶ 25(d); Doc. No. 718-10, Ott Ex. 6, Felimer Decl. ¶¶ 13-14; Doc. No. 718-31, Pls.' Ex. 1 at 37. And there appears to be little dispute that Cleaver Brooks offered replacement parts — Cleaver Brooks provided instructions in its technical manuals for ordering replacement parts from Cleaver Brooks, see Doc. No. 718-1, Ott Decl. ¶ 25(e), (f); Doc. No. 718-7, Ott Ex. 3 (technical manual); and Cleaver Brooks' corporate representative testified that Cleaver Brooks provided these instructions with the hope that customers would order from Cleaver Brooks, and that "Cleaver Brooks has always sold replacement gaskets." Doc. No. 718-41, Pls.' Ex. 10 at 44, 69; see also Doc. No. 718-42, Pls.' Ex. 11 at 46 (admitting that Cleaver Brooks sold asbestos-containing gaskets as replacement parts); Doc. No. 718-9, Ott Ex. 5 (purchase orders for replacement gaskets from Cleaver Brooks by Bath Iron Works). Indeed, Cleaver Brooks offers no evidence suggesting that it did not sell replacement gaskets as a regular part of its business. Viewed in a light most favorable to Plaintiffs, this evidence supports the reasonable inference that Cabasug was exposed to asbestos components that were supplied by Aqua Chem and/or Cleaver Brooks.
In opposition, Cleaver Brooks argues that the court should disregard Cabasug's and Felimer's testimony that Cabasug worked extensively on distillers as "sham testimony" in contradiction of their earlier statements. See Doc. No. 747, Cleaver Brooks Reply at 10-12. As to Cabasug, Cleaver Brooks asserts that Cabasug's recent testimony regarding distillers contradicts (1) his first deposition on December 3, 2013 in which he never described that his work at PHNS involved distillers, see Doc. No. 747-4, Cleaver Brooks Ex. C (mentioning the word "distiller" only once); and (2) paperwork called "Standard Form 171 s" that Cabasug filled out at PHNS from 1973 through 1975, and in which he described his work as a pipefitter yet never mentioned distillers. See Doc. Nos. 747-2, 747-3, Cleaver Brooks Exs. A-B. As to Felimer, Cleaver Brooks asserts that his testimony contradicts: (1) Felimer's interrogatory responses he provided in his own asbestos products liability action in which failed to mention any work on distillers, Doc. No. 747-5, Cleaver Brooks Ex.
Although this evidence certainly calls into question the credibility of Felimer's and Cabasug's recent assertions that Cabasug worked on distillers, the sham testimony rule applies in limited circumstances. Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.2012), recently explained that this rule:
Applying this framework, much of the evidence Cleaver Brooks points to as contradicting Cabasug's and Felimer's recent statements regarding distillers is not the proper subject for the sham affidavit rule. The rule applies where a party's affidavit, submitted to oppose summary judgment, contradicts that party's prior deposition testimony. Id. The rule does not extend to statements made by the parties outside the context of litigation, much less to statements made to those other than the declarant. Weighing such evidence — in this case, the Standard Form 171s and statements of other coworkers — is the province of the jury, not the judge. See Nelson v. City of Davis, 571 F.3d 924, 929 (9th Cir. 2009) ("[W]e decline to extend our sham affidavit jurisprudence to preclude the consideration of testimony from third parties that is arguably inconsistent with a party's own testimony.").
As to Felimer, he is not a party in this action, and by its plain terms the sham affidavit rule applies where a party provides conflicting testimony to avoid summary judgment. Generally, third parties such as Felimer are not motivated to create "sham" testimony such that conflicts in third-party testimony are for the jury to resolve. See Lane v. Celotex Corp., 782 F.2d 1526, 1530 (11th Cir.1986) (refusing to apply sham affidavit rule to third party testimony because although "a district court may find that a party's contradictory affidavit constitutes a sham ... we would be unable, absent great trepidation, to affirm a similar finding with respect to a
Finally, as to Cabasug, it is true that Cabasug did not mention his work on distillers during his first deposition. But it is also true that Cabasug was not specifically asked about his work on distillers, and the court cannot discern whether Cabasug was asked at this first deposition to otherwise describe all work on all equipment he did at PHNS. The sham affidavit rule applies where there is a clear inconsistency in testimony, not where the possibility of memory lapses exists. Given these gaps and open questions, the inconsistency with Cabasug's later deposition testimony and interrogatory responses is not so clear and unambiguous to justify striking this evidence under the sham affidavit rule.
In sum, the court finds that a reasonable inference may be drawn that Cabasug was exposed to asbestos gaskets and packing from Aqua Chem and/or Cleaver Brooks based on the evidence that: (1) Cabasug specifically recalled working on Aqua Chem distillers by replacing their gaskets and packing; (2) both Ott and Felimer assert that the gaskets and packing of the distillers contained asbestos; (3) Cleaver Brooks provided instructions for ordering replacement parts; and (4) selling replacement parts, including asbestos gaskets, was a regular part of Cleaver Brooks' business. The court therefore DENIES Cleaver Brooks' Motion for Summary Judgment.
Based on the above, the court: (1) DENIES Defendant Cleaver-Brooks, Inc.'s Amended Motion for Summary Judgment, Doc. No. 674; (2) GRANTS Defendant Ametek Inc.'s Motion for Summary Judgment, Doc. No. 676; (3) GRANTS in part and DENIES in part Defendant Aurora Pump Company's Motion for Summary Judgment, Doc. No. 678; (4) DENIES Plaintiffs' Motion for Summary Adjudication on the Duty to Warn Under Maritime Law, Doc. No. 683; and (5) GRANTS in part and DENIES in part Crane Company's Motion for Summary Judgment, Doc. No. 690.
IT IS SO ORDERED.
Certainly, asbestos cases exist that have determined, based on the particular state law at issue, that a duty to warn exists under circumstances similar to those presented here. See, e.g., Chicano v. Gen. Elec. Co., 2004 WL 2250990, at *6 (E.D.Penn. Oct. 5, 2004) (determining that turbine manufacturer had a duty to warn where it designed and knew that its turbine would be insulated with asbestos, even if the manufacturer itself did not supply or insulate the turbine with asbestos). The court is not applying state law, however, and the court finds the reasoning of Conner and Lindstrom persuasive for all the reasons explained above.
For example, Emerson did not address replacement parts at all, instead determining that the defendant was liable for a defective hose it supplied which caused overheating of an engine. 732 F.2d at 1475. The only discussion even arguably relevant to the replacement part issue is dicta in which Emerson asserts that even if the defendant did not supply the hose, it would be liable for shipping separately a temperature-sensing device without instructions warning the purchaser to install it because this device could have prevented the damage. Id. Even under this alternative, the product at issue was the defendant's and not a third party's.
Exxon is a little closer — it determined that a negligence claim could stand against the supplier of a chafe chain that broke, where it was unclear whether the particular chain came from the supplier or a third party. 789 F.Supp. at 1528. Exxon allowed this claim based on facts that (1) the supplier had a duty to conduct tests on the chain based on contract, (2) the tests may have revealed the defects in both the supplier and third party chains, and (3) the plaintiff purchased the second chain from the third party by relying on the supplier's determination that the third party was an appropriate supplier. Id. at 1528-29. Plaintiffs do not assert that such facts exist here.
Finally, ContiCarriers determined that manufacturers of rubber-lined bearings breached a duty to warn customers about the dangers of using dry ice to shrink the bearings for installation, which caused the rubber to crack. 593 F.Supp. at 402. ContiCarriers does not address replacement parts, and is otherwise wholly distinguishable — as Conner explains, the failure to warn in ContiCarriers proximately caused the damage to the bearings, whereas Plaintiffs in this action allege that asbestos-containing components caused harm to Plaintiffs. See Conner, 842 F.Supp.2d at 802. And even if ContiCarriers' holding could be extended to personal injury as in this case, again, it is not persuasive to the issue of replacement parts and otherwise is not binding on this court.
Specifically, to the extent Defendants argue that the Ott Declarations are not admissible pursuant to Federal Rule of Evidence 702, the parties have not briefed the issue in anything more than a cursory way as part of their summary judgment arguments, and the court declines to resolve the expert admissibility issues on the record before it. See Cortes-Irizarry v. Corporacion Insular De Seguros, 111 F.3d 184, 188 (1st Cir.1997) ("We conclude, therefore, that at the junction where Daubert intersects with summary judgment practice, Daubert is accessible, but courts must be cautious — except when defects are obvious on the face of a proffer — not to exclude debatable scientific evidence without affording the proponent of the evidence adequate opportunity to defend its admissibility."); In re Paoli R.R. Yard PCB Litig., 35 F.3d 717 (3d Cir.1994) ("Given the `liberal thrust' of the federal rules it is particularly important that the side trying to defend the admissibility of evidence be given an adequate chance to do so.") (internal citation omitted).
And to the extent Defendants argue that Ott's opinions are not supported by evidence, Ott cites to evidentiary support for many of them. In any event, the court need not address every opinion offered by Ott in addressing the issues raised by the parties. Rather, the court cites to those portions of the Ott Declarations where relevant to the court's determination and supported by evidence. The court does not rely on those portions of the Ott Declarations that offer no basis for his opinions. See Walton v. U.S. Marshals Serv., 492 F.3d 998, 1008 (9th Cir.2007) (explaining that even an expert opinion requires a factual basis for any opinion offered in an affidavit); United States v. Rushing, 388 F.3d 1153, 1156 (8th Cir.2004) ("Expert testimony should not be admitted when it is speculative, it is not supported by sufficient facts, or the facts of the case contradict or otherwise render the opinion unreasonable"); Guidroz-Brault v. Mo. Pac. R. Co., 254 F.3d 825, 831 (9th Cir. 2001) ("[I]n the context of a motion for summary judgment, an expert must back up his opinion with specific facts." (citation omitted)).
Aurora nonetheless argues that Ott cannot link the asbestos gaskets described in the technical manuals to the particular pumps Cabasug might have worked on given that the manuals were not for the specific Cabasug vessels. See Doc. No. 734, Aurora Reply at 8-9. The court rejects this argument — Ott asserts that he reviewed eight Aurora technical manuals for Type GNC pumps (whereas Ott's deposition testimony provided by Aurora addresses only three, see Doc. No. 734-1, Aurora Ex. A), and according to Ott, all of them disclose the use of asbestos gaskets and packing. See Doc. No. 711-12, Ott Decl. ¶¶ 19-20. This evidence is sufficient to raise the reasonable inference that Aurora used asbestos in its Type GNC pumps, which were present on Cabasug vessels.