Four Summary Judgments Granted Because Equipment Manufacturers Not Responsible for Asbestos Contained in Equipment Made by Another Manufacturer U.S. District Court for the Western District of Kentucky, November 17, 2015
The plaintiffs sued various defendants for negligence, strict liability, and loss of consortium after the plaintiff developed mesothelioma; his widow continued the suit after he passed. The case was removed to federal court based on 28 U.S.C. Section 1442, the federal officer statute. The remaining defendants – Georgia Pacific, IMO Industries, Crane Company, John Crane, and CBS Corporation – moved for summary judgment, which were granted by the court.
The plaintiff alleged asbestos exposure while in the Navy, and testified that asbestos insulation covered the steam/water lines, turbines, and boilers on the USS Waller where he served. He also removed asbestos gaskets on valves. The expert report of Captain William Lowell supported these claims and listed equipment made by John Crane, Crane Co., Westinghouse, and DeLaval (IMO). After the Navy, the plaintiff identified using Georgia Pacific drywall products for two years.
John Crane argued Captain Lowell’s testimony should be excluded as unsupported speculation. The court disagreed, and found that this testimony satisfied Daubert because he relied on adequate records and information to support his testimony. CBS Corporation argued that maritime law applied to all defendants except Georgia Pacific, and the court agreed because these alleged torts occurred on navigable waters, and asbestos on these ships could impact maritime commerce.
The court thus applied maritime law to defendants’ motions for summary judgment, in which defendants argued plaintiff failed to prove causation with respect to their specific products. In granting these motions, the court relied heavily on prior case law stating that: “A company is not responsible for the asbestos contained in another manufacturer’s product.” Regarding IMO, a DeLaval turbine was on the USS Waller when it was originally built; however this ship was overhauled at least once and converted to a different type of ship before Plaintiff served. The original packing and gaskets were likely replaced before Plaintiff served, and there was no evidence that IMO supplied replacements. The only evidence against Crane Co. was provided by Captain Lowell, who stated that since Crane Co. was the largest supplier, its products were more likely than not on the ship. Likewise with John Crane, Plaintiff relied only on Captain Lowell, who again stated that its products were likely on the ship, but he could not testify who supplied replacement gaskets/packing to John Crane equipment. Captain Lowell could not testify whether original insulation was on the Westinghouse turbine when Plaintiff served.
Finally, the plaintiff’s claims against Georgia Pacific were based on Kentucky law. The court noted that the Sixth Circuit did not accept that any exposure to asbestos was a substantial cause of mesothelioma because: “…this argument would make every incidental exposure to asbestos a substantial factor. Yet one measure of whether an action is a substantial factor is ‘the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it… The Sixth Circuit responded to a similar argument in a maritime action by stating that an expert’s opinion that ‘every exposure to asbestos, however slight, was a substantial factor’ was insufficient because it would render the substantial factor test ‘meaningless.’” With regard to Georgia Pacific products, the medical experts only stated that any exposure qualified as substantial; this was not enough under Kentucky law.