Court Calls For Supplemental Briefing For Summary Judgment Motion Following DeVries Decision United States District Court, W.D. Washington, April 18, 2019

WASHINGTON — A federal court in Washington state called for supplemental briefing prior to ruling on summary judgment motions in two similarly situated cases involving maritime exposures. Donald Yaw worked as a shipfitter, structural planner, and estimator at the Puget Sound Naval Shipyard (PSNS) in Bremerton, Washington from 1964 to 2001. Thomas Deem worked as an outside machinist at PSNS from 1974 to 1981. The plaintiffs alleged that Mr. Yaw and Mr. Deem’s fatal mesotheliomas were caused by both the use of asbestos-containing products and products manufactured for foreseeable use with asbestos products, with such products manufactured by GE, Westinghouse, and Foster Wheeler (defendants), among others. The plaintiffs brought claims for product liability under both negligence and strict liability theories, as well as claims for conspiracy and premises liability. However, the complaints were unclear whether these claims were made pursuant to Washington law only, or under maritime law as well.

The defendants moved for summary judgment and filed briefs prior to the United States Supreme Court’s February 2019 decision in Air & Liquid Systems v. DeVries, 139 S.Ct. 986 (2019). In addition to opposing the summary judgment motions, the plaintiffs made Fed. R. Civ. P. 56(d) requests to defer consideration of summary judgment, arguing that the records were incomplete given ongoing discovery and pending expert reports from the plaintiffs’ experts (Yaw), and the discovery of a co-worker with knowledge of the plaintiff’s work (Deem). In granting the requests to defer, the court noted that the Supreme court in DeVries announced a standard for 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.” Id., at 996. As such, the court also called for supplemental briefing regarding how DeVries might impact causation and the failure to warn analysis under the facts of Mr. Yaw and Mr. Deem’s cases, in addition to requesting further information about how the products in DeVries were similar or different to the products with which Mr. Yaw and Mr. Deem worked.

Read the full case decisions here and here.

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