Summary Judgment Denied Based on Potential Successor-In-Interest Liability of Pump Manufacturer U.S. District Court for the Middle District Georgia, Albany Division, March 28, 2018
GEORGIA — The plaintiff Mary Farmer, individually and as the surviving spouse of Bobby Lee Farmer, initiated this action in the Superior Court of Dougherty County, Georgia on February 26, 2016. On March 28, 2016, the defendants filed a Notice of Removal, invoking Federal Court diversity jurisdiction. With leave, the plaintiff filed an Amended Complaint on December 22, 2016. The plaintiff sued 25 defendants, alleging negligence, product liability negligence, loss of consortium, punitive damages, and wrongful death.
Three defendants, Fisher Controls, Inc., Honeywell International Inc. and McWane, Inc. filed timely Motions for Summary Judgment. The plaintiffs replied to all Motions, and the defendants filed Surreplies.
In order to establish product identification of the three defendant’s products, the plaintiff relied on the testimony of Robert F. Pennington, a former co-worker of Farmer. Amongst other things, Pennington testified that both he and the plaintiff were exposed to asbestos from their work removing and replacing asbestos-containing gaskets associated with the pumps and valves in operation at Coats.
The court held that the plaintiff failed to point to evidence that Farmer was exposed to any Fisher valve that required asbestos-containing products to function properly. Additionally, the plaintiff did not show that Farmer was exposed to an asbestos-containing product manufactured or supplied by Fisher and as such, the plaintiff did not establish that Fisher valves were the proximate cause of Farmer’s injury. As such, the plaintiff’s negligence claims against Fisher fail. Further, the court held that since Fisher was entitled to summary judgment on the negligence claims, it was also entitled to judgment on the plaintiff’s derivative claims.
The court determined that based on the evidence presented, no Honeywell valve was present at the plaintiff’s worksite, and therefore Honeywell was entitled to summary judgment on all claims.
The plaintiff brought her claims against McWane as the successor-in-interest to Clow Corporation, which manufactured pumps under the trade name Chicago Pump from April 1, 1980 to October 31, 1985. In 1985, McWane purchased the stock of CLow and merged Clow into McWane through a series of transactions between 1985 and 1987. On April 1, 1980, prior to McWane’s purchase of Clow, Clow entered into an asset purchase agreement with FMC Corporation, whereby Clow purchased from FMC “assets of the pump and comminution product lines currently manufactured by FMC at its Itasca, Illinios plant and marketed under the trade name ‘Chicago Pump.’” On October 31, 1985, Clow sold the Chicago Pump Company assets to Yeomans Chicago Corporation and ceased manufacturing any products under the trade name Chicago Pump.
McWane asserted on summary judgment that there was no evidence that Farmer was exposed to asbestos from a Chicago Pump manufactured between 1980 and 1985. The court agreed with that proposition, but also held that McWane is potentially liable as a successor under a post-sale failure to warn theory pursuant to Section 13 of the Restatement (Third) of Torts. Ultimately, the court denied McWane’s Motion for Summary Judgment.