U.S. District Court for the Western District of Washington
In this asbestos action, the plaintiff alleges that decedent David Welch’s mesothelioma was caused by his exposure to asbestos from his service in the U.S. Navy aboard the USS Carronade and the USS Princeton. The plaintiff filed a complaint against defendants Crane Co. and Velan Valve Corporation, alleging that the decedent’s mesothelioma was caused by asbestos-containing components and insulation manufactured by the companies. The plaintiff’s claims are based on “negligence and strict product liability under Section 402A of the Restatement of Torts as adopted by the State of Washington.”
In support of this suit, the plaintiff provided the opinion of Commander Andrew Ott, a Navy veteran and maritime expert with experience working as an engineering plant ship superintendent and project manager at the Norfolk Naval Shipyard. Mr. Ott opined that he observed evidence of Velan steam traps onboard the USS Lexington, a vessel similar to the Princeton, and that Crane supplied dozens to hundreds of valves for the construction of both ships. The plaintiff also provided the opinion of pulmonologist Dr. Steven Haber, who offered the opinion that the decedent had frequent, regular, and/or repetitive asbestos exposures related to Crane and Velan valves while in the Navy, and that even if not his sole source of exposure, this was a significant and substantial exposure source and therefore was a substantial contributing factor in causing his mesothelioma.
Crane and Velan each filed a motion for summary judgment, and the court reviewed the applicable legal standard. Under maritime law, to prevail on a strict liability or negligence claim, the plaintiff must show that the decedent was actually exposed to asbestos-containing materials that were installed by Velan and that such exposure was a substantial contributing factor in causing his injuries. Similarly, under Washington law, the plaintiff must establish a reasonable connection between the injury, the product causing the injury, and the manufacturer of that product. In order to have a cause of action, the plaintiff must identify the particular manufacturer of the product that caused the injury, and causation is an essential element under either Washington product liability or maritime-based tort law.
Velan argued that the plaintiff failed to show that the decedent was exposed to any asbestos-containing equipment or products that were manufactured or supplied by Velan, and that the plaintiff lacks evidence that the decedent experienced substantial exposure to the relevant asbestos for a substantial period of time, such that the exposure was a substantial contributing factor in causing his injuries. According to Velan, the plaintiff’s case is indistinguishable from recent decisions in which the court found that the “mere presence” of the defendant’s products or equipment on board the plaintiff’s vessel was insufficient to support summary judgment.
The court agreed with Velan that the plaintiff has not produced evidence from which a reasonable jury could conclude that the decedent suffered substantial exposure to asbestos dust from Velan products while on the Princeton and Carronade. After examining the record, the court determined that the plaintiff failed to submit evidence to establish a connection between Velan products and the decedent’s mesothelioma. While the decedent testified that he learned a great deal about valves during his service, the plaintiff produced no fact witness placing the decedent within proximity of any Velan valves or gaskets during the relevant timeframe. Without anything further, the plaintiff’s argument that the decedent’s exposure to asbestos was due to Mr. Welch’s work on or near Velan valves in particular is not “more than conjectural.”
While the plaintiff’s expert witness, Mr. Ott, opined that Velan supplied approximately 20 steam traps and 60 high-pressure steam valves for the Carronade and 250 steam traps and 1000 high-pressure steam valves on the Princeton, he could not establish that the decedent suffered from substantial exposure from asbestos dust due to Velan equipment onboard either ship. Further, even if the evidence suggests that Velan-branded equipment was installed on both vessels, no evidence places the decedent within the vicinity of that equipment. Finally, during his deposition, the decedent did not identify Velan as a specific brand on which he made repairs. “More is needed than simply placing a defendant’s products in the workplace and showing that the decedent was occasionally exposed to asbestos dust from those products.” Wineland v. Air & Liquid Sys. Corp., No. C19-0793-RSM, 2021 WL 3423950, at *3 (W.D. Wash. Aug. 5, 2021)(citing Lindstrom, 424 F.3d at 1176-77).
Because the plaintiff failed to raise a material question of fact as to whether the decedent experienced substantial exposure to Velan products, the court concluded that the plaintiff failed to submit sufficient factual evidence to create material questions of fact as to Velan’s liability.
Crane similarly moved for summary judgment, arguing that the plaintiff set forth no evidence or testimony indicating that the decedent substantially worked with or around Crane Co. products at any time. Crane further argued that even if the plaintiff could show that the decedent worked around Crane products, the plaintiff cannot demonstrate that such products contained asbestos-containing original component parts for which Crane is responsible. In response, the plaintiff pointed to expert testimony provided by Mr. Ott and Dr. Haber that places Crane-branded valves on the Princeton and Carronade and identifies the decedent’s work on Crane valves as a source of significant and substantial exposure.
Crane also cited to recent cases from this district addressing asbestos exposure in support of its argument that the plaintiff’s evidence is insufficient to meet the standard set forth in the Ninth Circuit. The court, however, reviewed the cited cases, finding each case to be distinguishable on the facts. Ultimately, the determination of the existence of a material fact is often a close question. However, the plaintiff may raise a genuine issue of material fact concerning exposure by presenting either direct or circumstantial evidence that the decedent worked on a particular defendant’s asbestos-containing product (or near it while others worked on it) and that such work would create the conditions necessary for asbestos exposure. While Crane argued that Mr. Ott’s opinions cannot place Mr. Welch near any Crane valve, the court determined that this argument ignores that Mr. Ott’s testimony tends to corroborate the decedent’s recollections of his work as a yardbird, and that this goes to the weight—not admissibility—of Ott’s opinions. Because the court must resolve any factual issues of controversy in favor of the plaintiff, the court held that the plaintiff had raised a genuine issue of material fact regarding the decedent’s exposure to Crane products while working aboard the Princeton and Carronade.
Finally, both Velan and Crane argued that neither defendant had a duty to warn about defects or hazards posed by asbestos-containing products onboard the Princeton and Carronade. Under maritime law, a manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. The product in effect requires the part in order for the integrated product to function as intended when (i) a manufacturer directs that the part be incorporated, (ii) the manufacturer itself makes the product with a part that the manufacturer knows will require a replacement with a similar part, or (iii) a product would be useless without the part.
Velan argues that there is no admissible evidence showing: 1) that Velan equipment “required” the use of asbestos-containing parts or would be useless if used with non-asbestos components, 2) that Velan knew that working with asbestos-containing gaskets and packing was likely to be dangerous, and 3) that Velan had no basis to believe that the Navy was unaware of any potential issues associated with asbestos and its equipment. The plaintiff presents evidence that Velan supplied replacement parts, including asbestos-containing cover gaskets, for ship maintenance repair, citing to Velan steam trap parts pricing lists that include parts for the “Type N” steam trap and Velan’s technical manual for steam traps on Navy ships that refer to the same replacement part. In spite of this, the plaintiff failed to place the decedent in proximity to Velan-branded equipment in particular during his time on the Princeton and Carronade. This is insufficient to raise a question of fact, and Velan is entitled to summary judgment on this issue.
Crane, citing Washington law, argued that equipment manufacturers may not be held liable, under negligence or strict products liability, for failing to warn of the defects and dangers posed by a product that they did not manufacture, sell, or otherwise place into the stream of commerce. Crane argued that the Washington Supreme Court has held that Crane Company catalogs advertised both asbestos and non-asbestos packing and gasket material and held that Crane had no duty to warn under common law products liability or negligence principles, and that such decision is entitled to deference.
The plaintiff maintained that questions of fact exist under each prong of the applicable test. As to the first prong, the plaintiff cited to Mr. Ott’s opinion that asbestos-containing gaskets and asbestos-containing packets were “designed to be periodically disturbed” during their normal service life. Crane’s Master Parts List indicated that replacement asbestos-containing components for Crane valves were supplied directly from Crane. The plaintiff also cited to a manual identifying gaskets made with Crane’s “proprietary asbestos gasket material” called “Cranite” to be used on Navy ships. The court therefore found that the plaintiff has raised an issue of fact as to the first prong.
Further, the plaintiff argued that Crane knew or had reason to know that the alleged “integrated products,” asbestos gaskets and packing, were likely to be dangerous for their intended uses, because by 1965, medical and scientific literature reflected a growing realization as to the dangers posed by asbestos. Finally, the plaintiff argued that the third prong is met based on Mr. Ott’s opinion that the Navy was unaware of the hazards of asbestos exposure during the relevant timeframe, and he has found no evidence that manufacturers raised potential alarms at the time. The court was persuaded, holding that the plaintiff has raised issues of fact as to the second and third prongs.
The court therefore granted Velan’s Motion for Summary Judgment and denied Crane’s Motion for Summary Judgment.
Read the full decision here.
