Morgan v. Aurora Pump Co.
Morgan v. Aurora Pump Co.
Opinion of the Court
¶1 — This appeal stems from an asbestos lawsuit. Kay Morgan appeals the summary judgment dismissal of the Morgans’ claims against Aurora Pump Co., Buffalo Pumps Inc., Elliott Co., IMO Industries Inc. (formerly DeLaval Turbine Inc.), Leslie Controls Inc., Warren Pumps LLC, Weir Valves & Controls USA Inc. (formerly Atwood & Morrill Co. Inc.), and Wm. Powell Co. (collectively Respondents).
FACTS
¶2 On August 29, 2007, James and Kay Morgan filed a lawsuit against approximately 50 defendants for personal injuries sustained by James Morgan due to asbestos exposure. Their claims were primarily based on the theories of products liability, negligence, strict liability under Restatement (Second) of Torts § 402, and breach of warranty. Morgan had been employed by PSNS from 1952 to 1989. He worked as a pipefitter/steamfitter from 1952 to 1957 and from 1959 to 1963, and as a marine/mechanical engineering technician and design division test coordinator from 1963 to 1989. In 2006 or 2007, he was diagnosed with mesothelioma. Morgan died in January 2008, before his deposition could be completed. After his death, Kay Morgan maintained the action.*
¶3 Respondents are manufacturers of pumps and valves. Morgan alleges that while he was employed at PSNS, Respondents supplied his employer with pumps and valves that included packing or gaskets containing asbestos. He further alleges that Respondents supplied replacement packing or gaskets to PSNS that also contained asbestos. Morgan claims that when he and others in his presence
¶4 Respondents filed separate motions for summary-judgment dismissal of Morgan’s claims, relying primarily on Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008) and Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008). In those cases, the Washington Supreme Court held, in relevant part, that a manufacturer owes no common law duty to warn of the hazards of an asbestos-containing product that it did not manufacture, sell, or supply. Simonetta, 165 Wn.2d at 354; Braaten, 165 Wn.2d at 389-90. Respondents argued below that under Simonetta and Braaten, dismissal was proper because Morgan could not produce evidence creating a material factual dispute that Respondents manufactured, sold, or supplied any of the asbestos-containing products to which he may have been exposed. Respondents also argued that Morgan’s evidence did not establish a material factual dispute that their products were a substantial factor in causing his mesothelioma.
¶5 The trial court granted the Respondents’ motions and dismissed Morgan’s claims with prejudice. Morgan appeals.
DISCUSSION
¶6 The court reviews summary judgment decisions de novo, engaging in the same inquiry as the trial court. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003). ‘When ruling on a summary judgment motion, the court is to view all facts and reasonable inferences therefrom most favorably toward the nonmoving party.” Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000) (citing Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wn.2d 891, 897, 874 P.2d 142 (1994)).
¶7 It is well settled that asbestos plaintiffs in Washington may establish exposure to a defendant’s product through direct or circumstantial evidence. Allen v. Asbestos Corp., Ltd., 138 Wn. App. 564, 571, 157 P.3d 406 (2007). “[I]nstead of personally identifying the manufacturers of asbestos products to which he was exposed, a plaintiff may rely on the testimony of witnesses who identify manufacturers of asbestos products which were then present at his workplace.”
¶8 It is equally well settled that the plaintiff in a product liability or negligence action bears the burden to establish a causal connection between the injury, the product, and the manufacturer of that product. RCW 7.72.030(1);
¶9 The Lockwood court held that the worker established a prima facie case against the manufacturer of asbestos cloth “by presenting evidence that exposure to asbestos causes asbestosis; that once asbestos dust is released, it can remain in the air and drift with air currents for a long period of time; and that [defendant’s asbestos] product was located at shipyards where [the worker] was employed during the period when he worked there,” even though he did not introduce evidence that he directly handled the defendant’s asbestos products.
¶10 In Berry v. Crown Cork & Seal Co., 103 Wn. App. 312, 14 P.3d 789 (2000), we held that the evidence was sufficient to raise a genuine issue of material fact that a PSNS machinist was exposed to asbestos-containing prod
¶11 In this case, at summary judgment, Morgan provided the declaration and deposition testimony of Melvin Wortman; the declarations of Dr. Eugene Mark and James Millette, PhD; the deposition testimony of Jack Knowles; and his own interrogatory answers.
¶12 Jack Knowles was a pipefitter at PSNS, where he worked with Morgan. Knowles testified that they worked on three aircraft carriers together: the USS Roosevelt, the USS Midway, and the USS Coral Sea. When they worked together, he and Morgan spent most of their time aboard ship and in machinery spaces. Knowles saw Morgan remove
¶13 Knowles testified that Morgan and other workers in Morgan’s presence worked with and around new and existing
¶14 The deposition and declaration of Melvin Wortman were taken in another case and related to the period from 1967 to 1971, when he was the superintendent of machinists at PSNS.
¶15 James Millette, PhD, stated in his declaration:
James Morgan’s work to remove asbestos-containing gaskets and packing from the above equipment as well as fabricating new gaskets, resulted in exposures to asbestos that were substantially above ambient levels. This would also hold true whenever he remained in airspaces contaminated by such work conducted by others that involved gasket removal, fabrication, and replacement.
¶16 Dr. Eugene Mark, a pathologist, concluded that Morgan had “developed a diffuse malignant mesothelioma of the pleura” and that the asbestos to which Morgan was reportedly exposed while working at PSNS was the cause of the disease.
¶17 In addition, Morgan points to certain “admissions from defendants” as corroborating his evidence about where the original and replacement packing and gaskets came from. Specifically, each of the Respondents, other than Warren, conceded that the new pumps or valves that it supplied included asbestos-containing packing and gaskets and that it sold, in varying degrees, asbestos-containing replacement packing or gaskets.
¶18 Based on this evidence, Morgan argues that he has raised a genuine issue of material fact that he was exposed to asbestos contained in products that were made, sold, or supplied to PSNS by each of the Respondents and that such exposure was a substantial factor in causing his mesothelioma.
¶19 Respondents acknowledge supplying PSNS with pumps or valves but argue that Morgan’s evidence is insufficient to create a material dispute about whether the new pumps and valves or the replacement materials they supplied to PSNS contained asbestos. For example, Aurora claims that “the only evidence regarding a brand-new Aurora pump that was sent to PSNS concerns a GNC-17 End Suction Navy Pump that was shipped in 1960 and that was used to pump aviation fuel on the U.S.S. Coral Sea.” It claims that pump utilized mechanical seals that eliminated the need for packing and internal gaskets, and thus a jury could not reasonably infer that Morgan was exposed to asbestos packing or gaskets that it sold or supplied. IMO argues that “[e]ven if one could conclude that Mr. Knowles observed Mr. Morgan working around DeLaval pumps in which new packing supplied by DeLaval was being in
¶20 The Respondents also contend that Morgan presented insufficient evidence that he worked on or around any of their products in such a manner that he was exposed to any asbestos. For example, Weir points out that Michael Farrow testified that he saw Morgan working with Atwood valves “ ‘many times.’ ” But Weir contends that when pressed for specifics, Farrow could point only to an instance when Morgan removed an Atwood valve “from the machinery space in the engine room aboard the USS Princeton in March 1954.” Farrow did not know whether the valve contained asbestos packing, nor did he see Morgan working on the internal components of the valve.
¶21 Finally, Respondents argue that even to the extent Morgan offered evidence of his exposure to asbestos contained in products that they sold, the evidence is insufficient to establish a material dispute that the exposure was a substantial factor in causing his mesothelioma. They contend that the evidence of Morgan’s exposure to their individual products is insufficient as a matter of law to find that their products were a substantial factor in causing his disease, particularly in comparison to his exposure to other asbestos-containing products at PSNS. They also argue, in regard to Morgan’s exposure to asbestos in packing, that it cannot be a substantial factor because Morgan’s own expert opined that new and unused packing is not “friable,” i.e., does not release respirable asbestos fibers when manipulated. In addition, Respondents point out that Morgan’s
¶22 We agree with Morgan that when the evidence is viewed in a light most favorable to him, there are disputed issues of material fact regarding (1) whether Morgan was exposed to asbestos-containing products made, sold, or supplied by Respondents and (2) whether, under Lockwood, such exposure was a substantial factor in causing his mesothelioma.
¶23 First, Morgan has presented evidence that he was exposed to asbestos contained in products manufactured, sold, or supplied by Respondents. This evidence is found in the combined testimony of various witnesses. Knowles testified that he saw Morgan, or other workers in Morgan’s presence, work on the internal parts of all of the Respondents’ pumps and valves. And all of the Respondents, except Warren, acknowledge supplying replacement parts to PSNS on occasion. In addition, Wortman testified that approximately 50 percent of replacement parts he saw came from the original manufacturers.
¶24 The Respondents vigorously contest this evidence, but the majority of their arguments go to the weight and credibility of Morgan’s evidence or attempt to contradict his
¶25 The Respondents rely on Braaten and Simonetta to argue that Morgan’s evidence is insufficient as a matter of law to survive summary judgment, but their reliance on these cases is misplaced. Braaten is the more relevant decision because in Braaten the defendants were also manufacturers of pumps and valves that were sold to the navy and used aboard ships. The trial court dismissed Mr. Braaten’s case on summary judgment and the Washington Supreme Court affirmed because his evidence was insufficient to show that he was exposed to asbestos originally contained in packing and gaskets supplied by the defendants, and there was no evidence that the defendants sold or supplied the replacement packing or gaskets to which Mr. Braaten was allegedly exposed. Braaten, 165 Wn.2d at 380-81. The court specifically noted the uncontroverted testimony of Mr. Braaten that he did not work with new pumps and valves; that he was not exposed to asbestos when others installed new pumps; and that by the time he worked on the defendants’ products, it was impossible to tell how many times the original packing and gaskets supplied by the defendants had been replaced with packing and gaskets supplied by other companies. Id. at 381-82. But Morgan, unlike Mr. Braaten, presented evidence that he was exposed to asbestos originally contained in products
¶26 The next issue is whether Morgan presented sufficient circumstantial evidence to create an issue of fact that under Lockwood, his alleged exposure to Respondents’ asbestos products was a substantial factor in causing his mesothelioma. The first factor concerns Morgan’s proximity to the asbestos product when the exposure occurred and the expanse of the work site where asbestos fibers were released. The second factor is the extent of time the plaintiff was exposed to the product. “The proximity and time factors can be satisfied if there is evidence that the plaintiff worked at a job site where asbestos products were used, particularly where there is expert testimony that asbestos fibers have the ability to drift over an entire job site.” Allen, 138 Wn. App. at 571. Morgan worked as a pipefitter at PSNS for approximately nine years and developed mesothelioma.
¶27 The third factor is the types of asbestos products to which a plaintiff was exposed and the ways in which the products were handled and used. Here, the asbestos attributed to Respondents was in packing and gaskets that either arrived at PSNS with or inside their pumps and valves, or
¶28 The last Lockwood factor is the evidence presented as to medical causation of the plaintiff’s particular disease.
Such evidence would include expert testimony on the effects of inhalation of asbestos on human health in general and on the plaintiff in particular. It would also include evidence of any other substances that could have contributed to the plaintiff’s disease, and expert testimony as to the combined effects of exposure to all possible sources of the disease. The consideration of other potential sources of the plaintiff’s injury is necessary because exposure to materials other than asbestos may also cause a number of the diseases associated with inhalation of asbestos fibers, and the risk of contracting disease may be increased by the combined effects of exposure to more than one substance, such as asbestos and cigarette smoke.
Lockwood, 109 Wn.2d at 248-49. Here, pathologist Eugene Mark, MD, concluded that Morgan had “developed a diffuse malignant mesothelioma of the pleura” and that the asbestos to which Morgan was reportedly exposed while working at PSNS was the cause of the disease. Respondents do not allege that there was any other factor causing Morgan’s mesothelioma besides his exposure to asbestos at PSNS.
¶29 Respondents argue that the evidence of Morgan’s exposure to their individual products is insufficient as a matter of law to find that their products were a substantial factor in causing his disease, particularly considering his likely exposure to other asbestos-containing products at PSNS. While we do not decide the frequency of asbestos exposure a plaintiff must demonstrate to survive summary judgment, we note that this case involves allegations of more than a single instance of exposure to asbestos from
¶30 Finally, regarding Respondents’ government-contractor defense, we agree with the trial court that it is an affirmative defense that is fact-intensive and a matter for the jury.
¶31 In sum, Morgan alleges evidence that raises an issue of material fact as to whether he was exposed to asbestos from each Respondent and whether the exposure was a substantial factor in causing his mesothelioma. The trial court erred in dismissing his claims on summary judgment.
¶32 Reversed and remanded.
Reconsideration denied April 6, 2011.
Review denied at 172 Wn.2d 1015 (2011).
We note that Morgan has voluntarily dismissed his appeal as to Elliott Co. In addition, Respondent Leslie Controls Inc. has filed a petition for relief pursuant to chapter 11 of the federal bankruptcy code in the United States Bankruptcy Court for the District of Delaware, case no. 10-12199. “The filing of a bankruptcy petition creates a bankruptcy estate, which is protected by an automatic stay of actions by all entities to collect or recover on claims.” In re Palmdale Hills Prop., LLC, 423 B.R. 655, 663 (B.A.P. 9th Cir. 2009) (citing 11 U.S.C. §§ 541(a) and 362(a)). Accordingly, all proceedings against Leslie in this matter are stayed. However, the automatic stay provision does not apply to suits against a debtor’s corespondents
Although James Morgan died in 2008, it does not appear that a personal representative has been substituted as the plaintiff. For that reason, as well as for clarity and ease of reference, we will refer to James Morgan as if he were the sole appellant “Morgan.”
Morgan does not appeal the trial court’s dismissal of his design-defect claims.
The court explained, “Because of the long latency period of asbestosis, the plaintiff’s ability to recall specific brands by the time he brings an action will be seriously impaired. A plaintiff who did not work directly with the asbestos products would have further difficulties in personally identifying the manufacturers of such products. The problems of identification are even greater when the plaintiff has been exposed at more than one job site and to more than one manufacturer’s product.” Lockwood, 109 Wn.2d at 246-47.
Lockwood, involved an appeal from a denial of the defendant’s motions for a directed verdict, judgment notwithstanding the verdict, or a new trial.
It is undisputed that Respondents did not manufacture, sell, or supply flange gaskets or insulation.
The word “existing” is used by the parties to refer to non-new pumps and valves.
In a different part of his testimony, he stated that he did not know if any of the Atwood valves that he witnessed Morgan working with were brand new.
Knowles stated later in the deposition that he did not have a specific recollection that the Atwood valves he witnessed Morgan working with contained packing.
During this time, Morgan was a technician in the engineering design shop.
Warren Pumps filed a notice of cross appeal of the trial court’s denial of Warren’s joint motion to strike portions of the declaration of Melvin Wortman. However, Warren does not preserve this issue by properly raising and discussing the issue in its opening brief. See In re Marriage of Sacco, 114 Wn.2d 1, 5, 784 P.2d 1266 (1990). While IMO’s briefing includes argument as to why the Wortman declaration should not be considered by this court, it acknowledges that it has not cross-appealed the trial court’s ruling not to strike. Accordingly, we decline to review the trial court’s admission of this evidence, and consider the Wortman declaration as the trial court did.
Some Respondents also argue that Morgan’s claims against them are barred by the government-contractor defense. Buffalo cites Boyle v. United Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988) and argues that it cannot be held hable because its pumps and their components were furnished to the Navy in conformance with its precise specifications, making Buffalo immune under the government-contractor defense. Moreover, it argues that the Navy had superior knowledge of any hazards posed by asbestos exposure and was a superseding cause. Powell and Weir also claim the government-contractor defense.
In response, Morgan points out that in Timberline Air Service, Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 324-30, 884 P.2d 920 (1994), the Washington Supreme Court explained that the issues are “generally different in a government specification defense based on warnings than in a government specification defense based on design defect.” He also points out that Buffalo admits that the military specification defense was raised only with regard to Morgan’s design defect claim. “Thus, there is no basis to dismiss plaintiffs’ warning claims based upon the government-contractor defense.”
For example, Weir points out that Michael Farrow testified that he saw Morgan working with Atwood valves “ ‘many times.’ ” But Weir contends that when pressed for specifics, Farrow could point only to an instance when Morgan removed an Atwood valve “from the machinery space in the engine room aboard the USS Princeton in March 1954.” Farrow did not know whether the valve contained asbestos packing, nor did he see Morgan working on the internal components of the valve. Weir argues that “while there is evidence that Atwood & Morrill may have sold some replacement parts to the Navy, plaintiff offered no evidence to prove that any asbestos-containing replacement parts supplied by Atwood & Morrill were actually present at PSNS, or were ever used on any ship in Mr. Morgan’s presence.”
For example, according to Warren, Morgan presented no evidence that he worked on the internal parts of a Warren pump. “Thus, Plaintiffs’ entire claim against Warren is founded on Mr. Knowles’s testimony that Plaintiff was nearby when someone else worked with brand-new packing on a Warren pump.”
Warren points out that Wortman’s testimony was limited to 1967 to 1971, when Morgan worked in the engineering design shop. “Because Plaintiff was not working with Mr. Wortman in Shop 31, and was not working on any equipment during the relevant time period (1967-1971), Mr. Wortman’s testimony about the use of replacement components inside the machine shop is not relevant to plaintiff’s claims.”
For instance, IMO argues that “[e]ven if one could conclude that Mr. Knowles observed Mr. Morgan working around DeLaval pumps in which new packing supplied by DeLaval was being installed, there is no basis to also conclude that the packing contained asbestos. . . . [T]he evidence regarding the particular types of pumps described by Mr. Farrow and Mr. Knowles is that the Vast majority’ did not have asbestos-containing packing (or gaskets).”
Morgan argues that evidence that he worked with or around material originally supplied by DeLaval was contained in Knowles’s testimony: He answered “yes” to the question “Do you recall seeing other people work with packing in Mr. Morgan’s presence on brand-new DeLaval pumps?” Morgan argues that IMO’s claim that he worked only around fuel oMube oil pumps and its corporate representative’s testimony that the vast majority of those gaskets and packing were nonasbestos materials did not have to be believed by the jury because there was conflicting testimony. Morgan points to Knowles’ testimony that “ ‘most of that [packing] was a pliable asbestos.’ ”
Although he was employed at PSNS for approximately 37 years, his claim focuses primarily on the time that he worked as a pipefitter.
In its oral ruling, the court stated, “With regard to the military specification defense, it would be an affirmative defense. The burden would be on any or all of the defendants to prove it by a preponderance of the evidence to the trier of the fact.”
Reference
- Full Case Name
- James Morgan v. Aurora Pump Company
- Cited By
- 12 cases
- Status
- Published