The plaintiffs brought this action against several defendants for alleged exposure to asbestos and development of mesothelioma while working as a ship fitter at several shipyards from approximately 1964 until 2014. Defendants Cummins, CBS, and Foster Wheeler moved for summary judgment. Specifically, the plaintiff alleged that he rolled out amosite and cut it with an electric knife to make A-Cloth pads at the shipyards. He also stated that he had insulated various pieces of equipment including turbines, boilers, and generators. As to the defendants, Malone claimed that he had worked with Cummins generators, Westinghouse turbines, and Foster Wheeler boilers.
The court began its analysis with the standard for summary judgment. A movant is entitled to summary judgment when “there is no genuine dispute as to any material fact.” The burden is on the moving party. Specific to Mississippi law, the standard is “frequency, proximity and regularity” for determining asbestos related claims. The plaintiff took the position that this standard is relaxed in mesothelioma claims. However, the authority cited by the plaintiff to support this claim was not based on Mississippi law. The court additionally gave guidance for strict liability cases in that Mississippi utilizes the Mississippi Product Liability Act “MPLA”. The MPLA mandates that a product may be defective if it does not have adequate warnings. However, “manufacturers and sellers only have a duty to warn dangers known at the time the product leaves his or her control.” The court also pointed out that although Mississippi had not yet addressed the bare metal defense, this court had previously found that based on the MPLA it was “reasonably likely that the Supreme Court of Mississippi would follow the majority of jurisdictions” in precluding defendant liability under the bare metal defense. Relying on the Dalton case, the bare metal defense precludes liability caused by asbestos components “where the defendant neither manufactured nor supplied the product that allegedly caused the the plaintiff to be exposed.” The plaintiffs took exception and argued that Dalton did not apply because there was evidence that the defendants’ products required asbestos insulation for their products. The court disagreed with the plaintiff and declined to expand the duty to warn on the issue of foreseeability.
Cummins: Cummins argued that summary judgment was appropriate because the plaintiffs failed to meet the frequency, proximity and regularity standard. The plaintiff again took the position that causation is a less rigid standard in mesothelioma cases. Honing on the plaintiff’s lack of identification of specific generators on 10 ships and in the light most favorable to the plaintiff, the court recommended the granting of summary judgment. The court also found the bare metal defense applicable to Cummins as nothing in the record suggested that Cummins supplied the asbestos used to insulate its products. More importantly, nothing showed that Cummins required or instructed the use of asbestos on the piping of its generators.
CBS: CBS also moved for summary judgment, based on the plaintiffs’ failure to establish exposure to any Westinghouse asbestos containing product. The plaintiff disagreed and took the position that CBS was liable for the asbestos insulation that Malone worked on that was applied to the Westinghouse turbines at the tops and bottoms. However, Malone’s own testimony showed that he could not identify working with a Westinghouse turbine on any particular ship. The court also stated that the bare metal defense was applicable for CBS based on the Dalton case. Despite finding that a factual issue existed with respect to the government contractor defense, the court recommended the granting of summary judgment.
Foster Wheeler: Foster Wheeler moved for summary judgment arguing that there is no issue of material fact in dispute as to whether Mr. Malone was exposed to an asbestos-containing product of Foster Wheeler. Here, the plaintiff testified that he could not recall how many Foster Wheeler boilers he may have worked on at Ingalls Shipyard. Further, Malone stated on cross examination that he did not believe he was exposed to asbestos from a Foster Wheeler product. The court found this to be dispositive on the issue of causation and recommended granting summary judgment. Further, the Court stated that the Bare Metal Defense was applicable as the record showed that the boilers arrived “bare metal” at the shipyard and that nothing suggested that Foster Wheeler supplied the insulation that was used on the boilers. The court declined to grant summary judgment as to Foster Wheeler’s government contractor defense.