Steam Trap Defendant’s Motion for Summary Judgment and Motion to Exclude Evidence Denied United States District Court, W.D. Washington, June 7, 2019

WASHINGTON – As recently reported on the Asbestos Case Tracker on May 22 and May 28, 2019, in Varney v. Air & Liquid Systems Corporation, et al., the court ruled on several of the defendants’ motions for summary judgment. The plaintiff, Donald Varney, filed suit against numerous defendants alleging exposure to asbestos while working as a marine machinist at multiple shipyards in Washington as well as personal and secondary exposure from automotive work caused his mesothelioma. The complaint was removed to federal court. The court addressed the plaintiff’s interrogatory responses, specifically the responses that addressed each job site or ship from which he alleged asbestos exposure. In the interrogatory response, Varney stated that he believed his attorneys had information suggesting that he was exposed to the defendants’ products during his time working as a marine machinist at Puget Sound Naval Shipyard from 1957 to 1962 and from 1968 to 1972, as well as his time at Hunter’s Point Naval Shipyard from approximately 1965 to 1968. The interrogatory listed several ships, and then continued on to say that “Varney was exposed to asbestos-containing materials associated with…steam traps manufactured by the defendant.”

Varney passed away from mesothelioma before being deposed. One day prior to his death, he signed an affidavit purportedly identifying several asbestos-containing materials that he worked with and that were manufactured by various defendants, including steam traps manufactured by Armstrong (defendant). Dr. John Maddox, the plaintiff’s causation expert, reviewed Varney’s medical records and affidavit, and opined that Varney’s malignant pleural mesothelioma was caused by his cumulative exposures to a variety of component exposures. Numerous defendants raised issues regarding the admissibility of the affidavit and Dr. Maddox’s opinion in their motions for summary judgment, including the defendant. The court invited additional briefing regarding the admissibility of the affidavit and Dr. Maddox’s opinion, and determined that an evidentiary hearing was necessary. After a mini-trial lasting more than two days, the court held that the affidavit and opinion were inadmissible as evidence in regard to summary judgment motions and at trial.

In the defendant’s motion for summary judgment, they moved for a dismissal with prejudice, contending that there was no admissible evidence that Varney was ever exposed to an asbestos-containing product made, sold, or supplied by the defendant, or for which the defendant was liable. The defendant further argued that there was no admissible evidence that Varney was ever exposed to asbestos fibers associated with any of the defendant’s products in sufficient quantity to be a substantial factor in causation of his disease as required by Washington law. The plaintiff filed a response in opposition to the defendant’s motion, and attached a signed declaration from Ralph Sanders, a co-worker of Varney’s from Puget Sound Naval Shipyard from 1957 to 1961. He stated that he was in the same apprenticeship class as Varney, and that he recalled working aboard two ships with Varney, and stated that he worked with the defendant’s steam traps. The plaintiff also provided deposition testimony of the defendant’s corporate representative regarding the sale of asbestos-containing gaskets for its steam traps into 1988, but that asbestos-containing steam traps could have remained in the market until 2003. The defendant replied, and also moved to exclude the co-worker declaration, the prior corporate representation deposition, and Dr. Maddox’s report.

The court reviewed the evidence presented under Washington products liability law, and concluded that it was reasonable for a fact finder to infer that Varney was exposed to the defendant’s asbestos-containing product, and that it caused Varney’s mesothelioma and death. The court held that the plaintiff’s evidence demonstrated that genuine issues of material fact remained for resolution at trial. The court further concluded that even without the declaration of Varney and Dr. Maddox’s report, the plaintiff provided a minimally sufficient showing from which a reasonable fact finder could conclude that the defendant manufactured products that exposed Varney to asbestos. The court also concluded that it had considered the Lockwood factors in determining that there was sufficient and substantial evidence for a reasonable jury to find that causation had been established. Therefore, the court denied the defendant’s motion for summary judgment.

With regards to the defendant’s motion to exclude inadmissible evidence, the court stated that it had already ruled regarding the inadmissibility of Varney’s affidavit and Dr. Maddox’s opinion at summary judgment and trial. However, the court held that the co-worker affidavit was admissible for purposes of summary judgment, as evidence submitted in connection with summary judgment does not have to be produced in a form that would be admissible at trial in order to avoid summary judgment. The court held that Rule 26 did not support the defendant’s argument that the affidavit was untimely, despite the fact that it was filed after the close of discovery. The court held that it would consider a motion for additional discovery based upon the co-worker affidavit, but ultimately denied the defendant’s motion to exclude the declaration.

Read the case decision here.

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