Morgan v. Bill Vann Co.
Morgan v. Bill Vann Co.
Opinion of the Court
ORDER
This matter comes before the Court on defendant Flowserve Corporation’s Motion for Summary Judgment (doc. 272). The Motion has been briefed and is ripe for disposition.
I. Relevant Background.
This is an asbestos action pending against 11 defendants,
On May 4, 2011, less than three months after his diagnosis, Morgan initiated this litigation against 42 named defendants (including Flowserve). Morgan’s pleadings alleged that he “was exposed to asbestos dust, asbestos particles, asbestos containing materials and products that were produced, manufactured, specified for use, installed, distributed, sold and/or placed into the stream of commerce by the producer and/or distributor Defendants during his employment as a machinist, engine room worker, and mechanic,” as a result of which he was “diagnosed with an asbestos related disease.” (Doc. 1, Exh. A-2, at 6.) On July 29, 2011, Morgan amended his Complaint to name certain additional defendants. (Doc. 4, Exh. B, at 1.)
Record facts concerning Morgan’s interactions with Flowserve products are as follows;
Morgan testified that the Alabama River Pulp facility had a chemical prep area that contained Durco pumps, and that Morgan and his crew worked on those Durco pumps infrequently. (Morgan Dep. Ill, at 180-81.)
Significantly, the record in the light most favorable to plaintiff confirms that Durco pumps were not made of asbestos and did not have exterior asbestos. (Morgan Dep. IV, at 63.) Alabama River Pulp did, however, use asbestos-containing interior packing in the pump shaft of those Durco pumps. (Id.)
With respect to Durco valves, there is limited evidence that such valves were in use at Alabama River Pulp during the period of Morgan’s employment. (Morgan Dep. IV, at 82-90.) Morgan was unable to identify any exposures he might have had to asbestos-containing products from Durco valves, except in the vaguest of terms. (Id. at 87-91.) Plaintiffs opposition to Flowserve’s Motion for Summary Judgment is couched exclusively in terms of evidence concerning Durco pumps; therefore, it does not appear that plaintiff is claiming (and certainly he has identified no evidence supporting) that Flow-serve liability may be predicated on Morgan’s exposure to asbestos-containing products involved with Durco valves. For that reason, the analysis herein will center on Durco pump evidence. That said, the Court is aware of no reason (and plaintiff has identified none) why the result would be different in the Durco valve context than in the Durco pump context.
II. Summary Judgment Standard.
Summary judgment should be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make ‘a sufficient showing on an essential element of her case with respect to which she has the burden of proof,’ the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted). “Summary judgment is justified only for those cases devoid of any need for factual determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987) (citation omitted).
III. Analysis.
Although Flowserve’s Motion for Summary Judgment raises a number of legal
A. Is the Bare Metal Defense Cognizable Under Alabama Law?
Many jurisdictions have embraced some form of this bare metal defense in the asbestos context. See, e.g., Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 495 (6th Cir. 2005) (affirming grant of summary judgment for manufacturer of valves that used asbestos packing materials and gaskets, where defendant did not provide replacement packing or gaskets, such that “any asbestos that [defendant] may have been exposed to in connection with a Henry Vogt product would be attributable to some other manufacturer,” and “Henry Vogt cannot be held responsible for material ‘attached or connected’ to its product”); Faddish v. Buffalo Pumps, 881 F.Supp.2d 1361, 1372 (S.D.Fla. 2012) (“A number of state courts ... have concluded that a defendant manufacturer is not liable for a third party’s asbestos-containing products when the defendant is not within the ‘chain of distribution’ of the asbestos product. ... Predicting that the Florida Supreme Court would follow this trend, this court likewise concludes that the defendant ‘bare metal’ suppliers cannot be liable for a third party’s asbestos containing products under the facts presented in this case.”); Conner v. Alfa Laval, Inc., 842 F.Supp.2d 791, 801 (E.D.Pa. 2012) (collecting cases and holding 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,” such that defendants who made products that used asbestos insulation, gaskets and packing could not be held liable when they did not manufacture or distribute the asbestos products themselves); Surre v. Foster Wheeler LLC, 831 F.Supp.2d 797, 801-02 (S.D.N.Y. 2011) (granting summary judgment to manufacturer of boilers in asbestos case, where “Crane did not manufacture or place into the stream of commerce the asbestos to which Surre was exposed,” “there is no evidence that Pacific boilers required asbestos insulation to function,” and “there is no evidence that Crane played any role in choosing the type of insulation Surre applied”); O’Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987, 996-97 (2012) (rejecting claim that pump manufacturers were liable for asbestos packing and gaskets used by customer where “it is undisputed that O’Neil was exposed to no asbestos from a product made by the defendants,” “there was no evidence that defendants’ products required asbestos-containing gaskets or packing in order to function,” and “[t]he defective product in this setting was the asbestos insulation, not the pumps and valves to which it was applied after defendants’ manufacture and delivery”); Braaten v. Saberhagen Holdings, 165 Wash.2d 373, 198 P.3d 493, 502 (2008) (“Because we have held ... that there is no duty to warn of the dangers of other manufacturers’ asbestos products, we also conclude that there was no duty to warn with respect to replacement packing and gaskets. ... [T]hese manufacturers should not be held liable for harm caused by asbestos-
The parties agree that the substantive law of Alabama governs here. Alabama appellate courts have not unequivocally resolved the question of whether the bare metal defense is available in asbestos cases under state law. See Holland v. Armstrong Int'l Inc., 2012 WL 7761422, *1 n. 1 (E.D.Pa. Nov. 28, 2012) (“The Court has reviewed the caselaw cited by the parties and has determined that Alabama law on this issue is not settled.”).
Fortunately, Alabama case law does provide helpful guidance to inform such a prediction. In particular, the Alabama Supreme Court has held “that a distributor or manufacturer of a nondefective component is not liable for defects in a product that it did not manufacture, sell, or otherwise place in the stream of commerce.” Sanders v. Ingram Equipment, Inc., 531 So.2d 879, 880 (Ala. 1988); see also Brest v. Chrysler Corp., 939 F.Supp. 843, 848 (M.D.Ala. 1996) (“Under Sanders, it is well established in Alabama that a manufacturer can only be held liable for defects in the products that it manufactured, sold, or otherwise placed in the stream of commerce.”). Moreover, the Eleventh Circuit interpreted Alabama law in analogous circumstances in Reynolds v. Bridge-stone/Firestone, Inc., 989 F.2d 465 (11th Cir. 1993). In that case, the plaintiffs decedent was killed while mounting a Goodyear tire on a multi-piece rim for which the tire had been specifically designed. The plaintiffs evidence was that a defect in the rim (which was manufactured by a third party), not the tire, caused the accident. Relying on Sanders for the proposition that the manufacturer of a non-defective component cannot be held liable for injuries caused by a product that it did not manufacture, sell, or otherwise place in the stream of commerce, the Eleventh Circuit concluded that “Goodyear would have no duty to give a warning concerning a mismatched or defective rim manufactured by [someone else].” Id. at 472. On the
Plaintiff counters that Alabama law would impose a duty to warn on Flowserve in this context. As an initial matter, plaintiff does not and cannot challenge the well-settled principle that, under Alabama produets-liability law, “a defect in the product must be affirmatively shown” by the plaintiff. Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1051 (Ala. 2007) (citations omitted). In an attempt to shoulder this burden as to Flowserve pumps (which, by themselves, are bare metal products as to which third-party packing and gaskets are added by the end user), plaintiff suggests that Alabama River Pulp’s use of dangerous asbestos-containing packing and gaskets on those pumps was a foreseeable modification or alteration of the product which does not relieve Flowserve of responsibility for the resulting defect (i.e., components that released respirable asbestos dust when replaced). See generally Sears, Roebuck and Co. v. Harris, 630 So.2d 1018, 1027 (Ala. 1993) (explaining that “the mere fact that a product has been altered or modified does not necessarily relieve the manufacturer or seller of liability” and that a manufacturer remains liable “if the alteration or modification was reasonably foreseeable” to it). Plaintiffs theory, then, is that Alabama River Pulp’s use of asbestos-containing packing and gasket materials was a foreseeable modification to Flow-serve pumps, for which Flowserve owed a duty to warn under Alabama law, and that this Court therefore should not apply the “bare metal defense” doctrine.
There is an obvious tension between the Sanders tenet that a manufacturer is not liable for defects in a product that it did not place in the stream of commerce, on the one hand, and the Sears ruling that a manufacturer is liable for alterations to its product that are reasonably foreseeable. If the alteration giving rise to liability under Sears is the addition of a component part that the defendant manufacturer did not place in the stream of commerce (and for which Sanders would preclude liability), then does the Sanders rule or the Sears rule control? Fortunately, the Alabama Supreme Court answered this question in Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839 (Ala. 2002). In Hannah, the plaintiffs decedent was killed in a workplace accident involving machines whose electrical controls included control panels provided by Westinghouse. The plant operator modified the Westinghouse control panels by adding additional buttons. Plaintiffs theory was that the accident’s cause was a worker pressing the wrong button on the Westinghouse control panel. When plaintiff sued under the AEMLD, Westinghouse argued that it was entitled to summary judgment under Sanders because the defects in the industrial machines were unrelated to the control panel it supplied. The Hannah Court rejected this argument, reasoning that (i) plaintiffs theory was that the Westinghouse controls themselves were defective because they omitted safety devices, and (ii) “Sanders is inapplicable when the plaintiff seeks to recover based upon the theory that the product supplied by the defendant is itself defective.” Id. at 855. So Hannah teaches that if a manufacturer is sued for defects in its own product (rather than for defects in some third party’s component part used with that product), then Sanders does not preclude liability under Alabama law.
Considering all of the foregoing authorities in the aggregate, the Court concludes that (i) the prevailing majority rule
B. Application of Bare Metal Defense to Record Facts.
To recapitulate the relevant summary judgment evidence, Flowserve manufactured Durco pumps “that required fluid sealing component parts, such as gaskets, packing and/or mechanical seals, for proper function and operation.” (Doc. 312-7, at 3.) Some of those packings and gaskets were made with asbestos. (Id.) Brand-new Durco pumps “contained third-party manufactured sealing devices pre-installed at Duriron facilities.” (Id.) The Alabama River Pulp plant where Morgan worked commenced operations in 1978 and utilized a number of Durco pumps, which would have been shipped to the plant with Duriron-installed packing and gaskets (if they needed gaskets at all). Periodically, Alabama River Pulp would replace its Durco pumps’ packing and gaskets with replacement components that contained asbestos, and were manufactured and supplied by third parties. Plaintiff has no evidence that Flowserve supplied or had any in
At the outset, plaintiff endeavors to shoehorn this case within the Hannah caveat to Sanders, insisting that the Hannah situation (in which a plaintiff sought to recover on a theory that the defendant’s product is itself defective) “is precisely the situation at hand in the present case.” (Doc. 312, at 26.) Obviously, no asbestos dust or fibers emanated from Durco pumps themselves; rather, as Morgan testified, any dust encountered during the process of replacing packing for such pumps “would have to be from the packing,” not from the pump. (Morgan Dep. 11, at 351.) Nonetheless, plaintiff posits that Flowserve’s liability in this case derives “in part from the defective design of its pumps that required the use of asbestos-containing component parts.” (Doc. 312, at 26.) But plaintiff has identified no record evidence — and the Court has found none — that the Durco pumps in use at Alabama River Pulp “required the use of asbestos-containing component parts.” There is no evidence, for example, that these pumps would not function properly if their packing was not made of asbestos. Morgan conceded that during this period of time, “some packing contained asbestos and some didn’t.” (Morgan Dep. IV, at 71.) The record is devoid of evidence from which a reasonable fact finder could conclude that the Durco pumps in use at Alabama River Pulp were designed to require asbestos packing, to the exclusion of other kinds of packing materials. Of course, speculation and conjecture are not valid grounds for denying summary judgment relief.
There being no record basis for a defective design claim against Flowserve and plaintiff not having delineated any other ground for her claim that the Durco
Under a generous reading of plaintiffs summary judgment brief, plaintiff seeks to forestall this result on two grounds. First, plaintiff appears to contend that the bare metal defense does not exonerate Flowserve because the Durco pumps at Alabama River Pulp were newly purchased and were shipped with original equipment manufacturer (“OEM”) parts, including packing and gaskets. In other words, plaintiffs position is that Durco pumps already had asbestos-containing packing and gaskets in them when Flow-serve shipped them to Alabama River Pulp. If that statement were accurate, then it would imply that Flowserve placed those asbestos-containing components in the stream of commerce and- may be held liable (notwithstanding the bare metal defense) for any exposures to asbestos dust that Morgan suffered from those OEM components (as opposed to replacement components, for which Flowserve would not have been in the chain of distribution
Second, plaintiff attempts to formulate a basis for holding Flowserve liable on the theory that it recommended replace
IV. Conclusion.
“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted). This record, taken as a whole, could not lead a rational trier of fact to find that Morgan was ever exposed to asbestos from a product that Flowserve manufactured, sold, distributed, or otherwise placed in the stream of commerce. Morgan worked around and in close proximity to pumps manufactured by Flowserve. Those pumps were bare metal. Plaintiff has adduced no evidence that they were defective. They did not emit asbestos dust or fibers. To be sure, installed in or with those pumps were packing and (perhaps) gaskets that potentially contained asbestos and produced dust to which Morgan was exposed in his capacity as pump shop foreman after August 1979. The pumps’ mere compatibility for use with asbestos-containing components is not a design defect. Moreover, aside from OEM components to which Morgan appears never to have been exposed, Flowserve was not involved in the chain of distribution for those packing and gasket materials, all of which were manufactured and sold by third parties. Under Sanders and other Alabama authority, as well as the reasonable prediction that the Alabama Supreme Court would adopt the majority rule and extend Sanders principles to embrace the so-called “bare metal defense,” the Court concludes that Flow-serve owed no duty to warn under Alabama law for asbestos exposures from packing and gaskets that Flowserve did not manufacture, sell, distribute or otherwise place in the stream of commerce. Absent a causal nexus between Flow-serve’s products (ie., the Durco pumps) and Morgan’s injuries and death, plaintiff’s claims against this defendant fail, as a matter of law. Plaintiff offers nothing more than conjecture and speculation to create such a nexus. That is not enough.
For all of the foregoing reasons, the Court finds that there are no genuine issues of material fact, and that movant is entitled to judgment as a matter of law. Defendant Flowserve Corporation’s Motion for Summary Judgment (doc. 272) is granted, and plaintiff’s claims against that
. Flowserve Corporation was formerly known as The Duriron Company, Inc. For the sake of consistency and clarity, that entity will be referred to herein as "Flowserve,” regardless of what the company's actual name may have been at a particular time.
. Initially, there were numerous other named defendants; however, the ranks of defendants have dwindled as a result of settlements and voluntary dismissals. All 11 remaining defendants have pending, ripe summary judgment motions that have been taken under submission.
. The Court is mindful of its obligation under Rule 56 to construe the record, including all evidence and factual inferences, in the light most favorable to the nonmoving party. See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Plaintiff's evidence is taken as true and all justifiable inferences are drawn in his favor. Federal courts cannot weigh credibility at the summary judgment stage. See Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) ("Even if a district court believes that the evidence presented by one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility choices.”). Thus, the Court will "make no credibility determinations or choose between conflicting testimony, but instead accept Plaintiff’s version of the facts drawing all justifiable inferences in Plaintiff’s favor.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
. Morgan’s deposition was taken multiple times in this case, including discovery depositions taken on August 16, 2011 and August 25, 2011, and trial depositions taken on September 2 and 8, 2011. For purposes of this Order, citations to Morgan’s August 16 deposition will take the form "Morgan Dep. I," while citations to the August 25 deposition will take the form “Morgan Dep. II,” those to the September 2 deposition will take the form "Morgan Dep. Ill,” and those to the September 8 deposition will take the form "Morgan Dep. IV.”
. Morgan reinforced these points by testifying that he “looked in to every job that was being ... performed. And all the pumps, ... whatever was being done to them, I wanted to know what it was. I wanted to know what kind of condition they were when they come in, plus, you know, see it. ... I wanted to see it for myself. And a lot of times I put my hands on it just to feel it. And the same thing with the machine work. I went by every job to see ... what was going on.” (Morgan Dep. Ill, at 231.) As for the daily clean-up process in Alabama River Pulp’s machine and pump shops, Morgan explained that at the end of each day, the crew would “air hose things off, and then sweep it up,” including "dirt and dust and what asbestos was there in the dirt and dust.” (Id. at 232.)
. Flowserve asks the Court to strike as inadmissible all of Morgan’s deposition testimony concerning Durco pumps and valves because it followed from leading questions to which defense counsel objected. The Federal Rules of Civil Procedure provide that, on summary judgment, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Rule 56(c)(2), Fed.R.Civ.P. But there is no absolute prohibition on leading questions on direct examination. The applicable evidentiary rule is that "[Heading questions should not be used on direct examination except as necessary to develop the witness's testimony.” Rule 611(c), Fed. R.Evid. Use of leading questions on direct examination may be permitted in the trial court’s discretion. See, e.g., United States v. Kuehne, 547 F.3d 667, 692 (6th Cir. 2008) (affirming use of leading questions on direct examination "to direct a witness’ attention to a particular individual or date, or to clarify testimony”); Sanders v. New York City Human Resources Admin., 361 F.3d 749, 757 (2nd Cir. 2004) (opining that Rule 61 l(c)’s language "expressing a preference for non-leading questions is only precatory and, that generally trial judges are afforded a large degree of discretion in overseeing the examination of witnesses”); Stine v. Marathon Oil Co., 976 F.2d 254, 267 (5th Cir. 1992) (finding no error in district court allowing parties to use leading questions "to speed the examination of witnesses”); United States v. Pugh, 404 Fed.Appx. 21, 28 (6th Cir. 2010) (leading questions are permissible to focus the witness and avoid having "to go around the mulberry bush”).
.Specifically with respect to Durco pumps, Morgan testified, "I’d have it in my hands and looked at it when the ... pump man would tear it apart.” (Id. at 57.)
. In response to a line of questioning concerning Durco pumps, Morgan explained that the exposure to asbestos dust came from the process of removing old packing, to-wit: "And so if you’re getting the old out, that’s where your dust comes in ... and my thing was to make sure that the stuffing box is cleaned up good before going back with new packing to get the right result from packing. So there's — there’s your dust.” (Morgan Dep. IV, at 69.)
. When asked whether the pumps themselves contained asbestos, Morgan responded, "No.” (Morgan Dep. II, at 350.) When asked whether the asbestos dust he encountered during the maintenance and repair of pumps at Alabama River Pulp was from the packing or the pump itself, Morgan responded, "Well, it would have to be from the packing, you know.” (Id. at 351.)
. That said, Flowserve has provided the Court with an on-point unpublished opinion from the Circuit Court of Mobile County, Alabama, styled Robert Patrick, et al. v. Ametek, Inc., et al. (Doc. 272, Exh. G). The Patrick decision, authored by Circuit Judge Joseph S. Johnston, applies Alabama law to the same circumstances presented here {i.e., whether Flowserve, as a manufacturer of bare-metal pumps, may be held liable for asbestos-containing components made and supplied by third parties). Judge Johnston found that, under Alabama law, "a manufacturer of a non-defective product cannot be held liable for a defective product subsequently associated with that product which it did not manufacture or supply.” {Id. at 6.) He adopted the legal principle articulated in other jurisdictions that “[sjince this defendant did not manufacture or market the asbestos-containing material nor did it have control over the type of materials selected, it was not liable.” {Id. at 8.) The Patrick order concluded that "[b]e-cause the Plaintiffs have failed to meet the threshold requirement of showing ... that the Plaintiff worked with an asbestos-containing product manufactured, sold, distributed or otherwise placed in the stream of commerce by FLOWSERVE, Plaintiffs have failed to establish the requisite causal nexus between such products and Mr. Patrick's injury.” {Id. at 9.)
. As one court explained, "Where, as here, the defendant manufacturer did not incorporate the defective component into its finished product and did not place the defective component into the stream of commerce, the ra7 tionale for imposing liability is no longer present. The manufacturer has not had an opportunity to test, evaluate, and inspect the component; it has derived no benefit from its sale; and it has not represented to the public that the component part is its own.” O’Neil, 135 Cal.Rptr.3d 288, 266 P.3d at 998-99 (citations omitted); see also Faddish, 881 F.Supp.2d at 1373-74 (justification for products liability is "to encourage manufacturer accountability and to insure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather tha[n] by the injured persons who are powerless to defend themselves,” but those interests are inapplicable for a defendant "who had no control over the type of insulation the [end user] would choose and derived no revenue from sale of asbestos-containing products used” at that facility) (citations and internal quotation marks omitted); Conner, 842 F.Supp.2d at 800-01 (observing that “products-liability theories rely on the principle that a party in the chain of distribution of a harm-causing product should be liable because that party is in the best position to absorb the costs of liability into the cost of production,” but that "this policy weighs against holding manufacturers liable for harm caused by asbestos products they did not manufacture or distribute because those manufacturers cannot account for the costs of liability created by the third parties' products”).
. "Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (citation omitted); see also Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) ("A 'mere scintilla’ of evidence is insufficient; the nonmoving party must produce substantial evidence in order to defeat a motion for summary judgment.”). Simply put, "[wjhere the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted).
. See Lindstrom, 424 F.3d at 497 (asbestos defendant "cannot be held responsible for asbestos-containing material that ... was incorporated into its product post-manufacture”); Faddish, 881 F.Supp.2d at 1371 ("a manufacturer’s duty to warn, whether premised in negligence or strict liability theory, generally does not extend to hazards arising exclusively from other manufacturer’s products, regardless of the foreseeability of the combined use and attendant risk”); Surre, 831 F.Supp.2d at 801-02 (boiler manufacturer owed no duty to warn, as a matter of law, where defendant did not manufacture or place into stream of commerce the asbestos to which plaintiff was exposed, there was no evidence that boilers required asbestos insulation to function, and record did not show that defendant played role in end user’s decision to utilize asbestos insulation); O’Neil, 135 Cal.Rptr.3d 288, 266 P.3d at 998 ("[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.”) (citation omitted); Braaten, 198 P.3d at 498 ("a manufacturer is not liable for failure to warn of the danger of exposure to asbestos in insulation applied to its products if it did not manufacture the insulation and was not in the chain of distribution of the insulation,” and “[i]t makes no difference whether the manufacturer knew its products would be used in conjunction with asbestos insulation”).
. Indeed, plaintiff cites testimony that Morgan "started that mill up. All the pumps at the startup were new, purchased from whichever pump manufacturer .... At that point, they were the first ones to repair the pumps in the shop.” (Ronald Melvin Morgan Dep., at 92.) Also, Flowserve acknowledged that its new pumps "contained third-party manufactured sealing devices preinstalled at Duriron facilities.” (Doc. 312-7, at 3.) These facts raise a reasonable inference that when Durco pumps were shipped to Alabama River Pulp at the time of the plant's start-up in 1978, they contained packing manufactured by third parties and installed by Flowserve. If Morgan was exposed to asbestos dust from the OEM packing, then the bare metal defense would not preclude plaintiff's claims against Flowserve relating to those exposures, which would concern asbestos products that Flowserve had distributed with its new pumps.
. Contrary to plaintiff's allegation, the record shows that Flowserve "never manufactured, supplied or recommended the use of asbestos flange gasket material in connection with any of Duriron (or other) products.” (Doc. 312-7, at 3.) And Morgan testified that he had no knowledge of Flowserve supplying any original flange gaskets at all on Durco pumps. (Morgan Dep., at 80-81.) As for the OEM packing materials, the record is silent as to whether they were made with asbestos or not.
. The record shows that Morgan spent his first year at Alabama River Pulp as a machinist, but that he never did hands-on work with Durco pumps. Plaintiff's exposure evidence focuses exclusively on his role as foreman of the pump shop, a job he assumed after a year at the mill. If the packing and gaskets on Durco pumps were replaced during that first year, then, there is no evidentiary basis for concluding that Morgan would have been exposed to them or that he would have been in close proximity to them. After all, he did not do hands-on work on Durco pumps, and he would not have been supervising others doing such work. So the timing of when those OEM packing materials were replaced is potentially critical. The record is completely silent on this question.
.Even if such evidence did exist, plaintiff might run headlong into a limitations problem with regard to asbestos exposures from the OEM packing. Recall that Morgan began working at Alabama River Pulp in 1978. If his exposures to asbestos released from OEM packing and gaskets from Durco pumps happened earlier than May 19, 1979, plaintiff’s claims relating to such exposures would be time-barred under well-settled Alabama law. See, e.g., Holland v. Armstrong Int’l, Inc., 2012 WL 7761487, *1 n. 1 (E.D.Pa. Nov. 30, 2012) ("[Tjhe applicable Alabama statute of limitations bars claims arising from asbestos exposure occurring prior to May 19, 1979. Therefore, these claims are[] barred.”). Plaintiff identifies no facts that might support a finding that the packing and gaskets on Durco pumps at Alabama River Pulp were first replaced after May 19, 1979.
Reference
- Full Case Name
- Ronald Melvin MORGAN, as Personal Representative for the Estate of Rueben Morgan v. BILL VANN COMPANY, INC.
- Cited By
- 11 cases
- Status
- Published