Multiple Motions for Summary Judgment and Affirmative Defenses of Railroad and Auto Parts Manufacturers Denied in Part and Granted in Part United States District Court, W.D. Washington. September 17, 2018

The plaintiff Patrick Jack filed suit against several defendants alleging he contracted mesothelioma from take-home, bystander and direct exposure to asbestos for which the defendants were liable. The plaintiff’s take-home and bystander exposure was alleged from his father’s work at Union Pacific. He also claimed exposure while serving as a machinist in the Naval Reserve and Navy from 1955-1962 and while working as a machinist at the Puget Sound Naval Shipyard. Also, The plaintiff contended that he was exposed to asbestos while working as a professional mechanic and during personal auto work.

The court’s analysis started with the standard for secondary exposure claims. According to the court, secondary exposure claims are recognized under a theory of negligence. Foreseeability is a component of the theory according to the court. Here, Union Pacific argued that the “risk of developing mesothelioma from secondary asbestos exposure was not foreseeable” prior to 1955. The plaintiff testified that 1955 was the last year he would have been exposed from his father’s work clothes at home. The plaintiff countered the defendants’ position and stated that “harm is foreseeable if the risk from which it results was known or in the exercise of reasonable care should have been known.” However, the Court recognized that the plaintiff’s expert, Dr. Castleman, conceded that Union Pacific would have found “practically nothing” regarding the hazards of secondary exposure had it wanted to look. Accordingly, the court granted summary judgment as to take-home exposure in favor of Union Pacific.

Union Pacific, Ford and Borg Warner moved for summary judgment as to exposure and causation.

Union Pacific- Union Pacific moved for summary judgment as to the plaintiff’s bystander claims. The plaintiff had testified that he was exposed to asbestos while visiting his father at work at Union Pacific. However, Union Pacific argued that the plaintiff failed to establish that the plaintiff was actually exposed to any asbestos during those visits. The plaintiff relied on his expert, Dr. Brodkin, who utilized a report from the early 1980’s that illustrated the use of asbestos in cement pipes and insulation in certain rail systems. The court quickly concluded this reliance did not rise to the level to support the plaintiff’s assertion of bystander exposure. Consequently, Union Pacific’s motion for summary judgment as to bystander exposure was granted.

Ford-Ford moved for partial summary judgment arguing that only certain alleged exposures to Ford products at Apex Mobile Towing and removal of brakes from a Ford Mustang should be submitted to the jury. The plaintiff took the position that several other exposures should be included, including clutch installations at the Dexter garage. The court disagreed with the plaintiff as Dr. Brodkin opined that the clutch installation would have created a de minimus exposure to asbestos. The real source of exposure from clutches would have been from removal according to the plaintiff’s expert. Accordingly, the court granted Ford’s motion for partial summary judgment as to the plaintiff’s installation of clutches at Dexter. Ford ‘s motion for summary judgment as to brake exposure was denied. Here, ample evidence of exposure to several vehicles including a race car were present.

Borg Warner-Borg Warner sought summary judgment arguing that the plaintiff was not exposed to its products or in the alternative, any exposure was not a contributing factor in Mr. Jack’s development of mesothelioma. The Court noted three potential sources of exposure from Borg Warner products. Those sources were installation of clutches, removal of clutches and the use of Borg Warner brakes on a Pontiac. Interestingly, the court noted the lack of clarity of the deposition record whereby the term “clutch work” or “clutch job” was used. These terms lacked clarity to whether the deponent meant installation or removal. According to the court, the distinction is important as the plaintiff’s expert had testified that installation created only a de mimimus exposure. The plaintiff had testified that he may have installed 10 or more clutches while working as a professional mechanic. However, the record lacked evidence of abrading or sanding the clutches. Therefore, Borg Warner was entitled to summary judgment as to installation. The court was more troubled by removal of clutches. The plaintiff furnished evidence that Borg Warner supplied clutches to a Chevy on which the plaintiff performed work. However, evidence that the clutch on the Chevy was original was lacking. After further review, the court noted that a factfinder could infer that the plaintiff was exposed to a Borg Warner clutch from the race car. Accordingly, summary judgment was not appropriate for removal. The court also granted Borg Warner’s motion for summary judgment as to brakes as the plaintiff offered no evidence that Borg Warner manufactured or sold asbestos containing brakes during the time period in question.

Borg Warner also argued that plaintiff could not establish that any exposure to its clutches was a substantial factor in causing Plaintiff’s mesothelioma. Relying on the Lockwood case, the Court disagreed and stated that proximity and closed nature of the work environment (under the car) were met. Although the extent of time spent was not clear, the Court pointed out that the work continued over several decades. Consequently, the Court denied Borg Warner’s motion as to causation for on clutch removal.

Loss of Consortium-The parties argued whether Ms. Jack could bring a claim for loss of consortium. Ford and Borg Warner argued that the spouse should not be permitted to sustain her loss of consortium claim because she married Mr. Jack after his diagnosis. According to the defendants, Washington law precludes recovery for loss of consortium where the “injury precedes that caused the loss precedes the marriage.” After a lengthy analysis, the court concluded that ambiguity in the wrongful death statute permits Ms. Jack to sustain her loss of consortium claim from Mr. Jack’s death.

The court next examined the plaintiff’s various motions on affirmative defenses put forth by the defendants.

The discovery-plaintiff argued that the defendants failed to provide adequate responses to the defenses raised in their answers to interrogatories. The court quickly dispensed with the plaintiff’s issue on discovery as the plaintiff did not raise the issue in a discovery motion.

Failure to Mitigate the damages-plaintiff moved for summary judgment as to the defense of failure to mitigate damages. The doctrine which “prevents recovery for those damages the injured party could have avoided by reasonable efforts taken after the wrong was committed.” Borg Warner opposed the plaintiff’s motion. However, the court found that Borg Warner provided nothing to show the plaintiff failed to follow “medical advice” and therefore granted the plaintiff’s motion.

Learned Intermediary the doctrine-plaintiff moved for summary judgment on the learned intermediary doctrine or sophisticated user defense. Borg Warner argued that the plaintiff’s employer should have been aware of the dangers of asbestos and was warned of those dangers but failed to warn thereto. The plaintiff countered and stated that Washington law does not consider the sophisticated user doctrine in asbestos litigation. After noting that most sophisticated user defenses arise in pharmaceutical cases in Washington, the court concluded that the doctrine did not apply. The court determined that Borg Warner had not offered evidence that the plaintiff encountered its products while working as a sophisticated user. Consequently, the plaintiff’s motion for summary judgment as to learned intermediary doctrine was granted.

Contributory Negligence and Assumption of the Risk-The parties disagreed whether the defenses of contributory negligence and assumption of risk were available. After an analysis of the Washington Product Liability Act, the court concluded that neither the plaintiff or the defendants had determined whether the pre or post 1981 law applied. Contributory negligence is prohibited under the pre 1981 law. However, assumption of risk is available under the pre 1981 law. The court declined to rule on the motion as to contributory negligence under a theory of strict liability. The motion as to both assumption of risk and contributory negligence under a negligence theory was denied. According to the court, the defendants put forth evidence that the plaintiff may have learned about the dangers of asbestos in the 1970’s and therefore those defenses were plausible.

Superseding the cause-plaintiff moved for summary judgment on the affirmative defense of superseding cause. Here, the defendants took the position that Mr. Jack’s exposure in the Navy was a superseding cause of his disease. The court noted that a superseding cause “breaks the chain of proximate causation.” However, in order to assert the defense the defendants must show that the “exposure Mr. Jack suffered as a result of the non-party entities’ conduct was so unforeseeable to absolve the defendants of their liability.” The defendants failed to do so in this instance according to the court. Consequently, summary judgment was granted for the plaintiff as to superseding cause.

Read the full case decision here.

Leave a Reply

Next ArticleFormer Speaker of the New York State Assembly's Motion to Continue Bail and Stay Fine Denied in Part