“Dusty Conditions” Alone Not Enough to Defeat Defendants’ Motions for Summary Judgment United States District Court, W.D. Washington. August 2, 2019

WASHINGTON – In Marietta Dianne Yaw, Individually and as Executor of the Estate of Donald Arthur Yaw v. Air & Liquid Systems Corp., et al, pending in the United States District Court for the Western District of Washington, the court recently granted motions for summary judgment for three defendants. The plaintiffs, Donald and Marietta Yaw, filed the lawsuit in May 2018 alleging that Donald Yaw was injured from his exposure to asbestos as a result of his work with and around several defendants’ products. In January 2019, the defendants filed motions for summary judgment, arguing that the plaintiffs had no evidence to support their claims against them. In February 2019, the plaintiffs responded to the defendants’ motions, and requested a continuance because they were missing facts essential to justify their opposition. On March 18, 2019, the plaintiffs filed a supplemental response and submitted the expert reports of Dr. John Maddux and Captain Arnold Moore. Three days later, the plaintiffs filed a motion to amend their complaint, informing the court that Yaw had passed away. One day later, the defendants filed a sur-reply requesting that the court strike the plaintiffs’ supplemental response and expert reports.

On April 18, 2019, the court granted the plaintiffs’ motion to amend, request for a continuance of the summary judgment motions, and request for additional briefing in light of the Supreme Court’s decision in Air & Liquid Systems Corp. v. DeVries, 139 S. Ct. 986, 994 (2019). Approximately one week later, the plaintiffs filed an amended complaint, alleging various theories of product liability, including, but not limited to negligence, strict product liability, conspiracy, premises liability, the former RCW 49.16.030, and any other applicable theory of liability, including, if applicable, RCW 7.72. On May 2, 2019, the defendants filed a supplemental brief in support of their motion for summary judgment. The plaintiffs responded on May 20, 2019, and the defendants replied on May 24, 2019.

Yaw worked at the Puget Sound Naval Shipyard from 1964 through 2001 as a ship fitter. He worked aboard numerous ships, including the USS Simon Lake, USS Kitty Hawk, USS Cusk, USS Seattle, USS Ranger, USS Sacramento, USS John Adams, USS Constellation, USS Enterprise, USS Truxton, USS Bainbridge, and USS Ulysses S. Grant. Despite record evidence, which indicated that asbestos containing gaskets, seals, and insulation was used on some of these ships during his work, Yaw was unable to recall working on any particular products on any particular ships. The plaintiffs’ cited to Yaw’s testimony regarding his general recollection that he was in engine rooms and boiler rooms that were dusty. The plaintiffs generally alleged that if asbestos-containing insulation was applied to the defendants’ products which were installed on the ships Yaw worked on as a ship fitter, he was exposed to asbestos from the defendants’ products. The plaintiffs’ relied on the expert opinions of Moore, an expert in maintenance and work practices aboard Navy ships. He concluded that due to the locations of work and size constraints of his work areas, Yaw was exposed to asbestos from the removal of insulation as well as the replacement of asbestos-containing packing and gaskets. Moore failed to identify any testimony to support his conclusion that Yaw worked in spaces where other workers were removing asbestos insulation from 1964 until 1978.

In its review of the defendants’ motions for summary judgment, the court found that the plaintiffs failed to submit evidence to establish that Yaw was exposed to asbestos from a product manufactured by the defendants. The court held that the plaintiffs failed to submit evidence to establish any connection between the defendants’ products and Yaw’s injuries. Despite Yaw’s general testimony that he was around dusty conditions in the engine and boiler rooms aboard ships, he failed to identify a specific instance in which he was on a particular ship at a specific time and was exposed to any of the defendants’ products that produced dust. The court disagreed with the plaintiffs’ reliance on inferences, as the plaintiffs’ assertions against the defendants lacked the prerequisite foundation that Yaw ever worked on a ship near the defendants’ products. The court further disagreed with the theories put forth by Moore, holding that his opinions were speculative, as Yaw could not identify working on a specific location on a specific ship.

Therefore, the court granted the defendants’ motions for summary judgment, as a result of the plaintiffs’ failure to establish a genuine issue of fact for purposes of causation.

Read the case decision here.

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