Court: United States District Court for the Western District of Washington
This case arises out of the death of decedent Thomas Deem from mesothelioma, which the plaintiff alleges was caused by the decedent’s exposure to asbestos through his work as a machinist at the Puget Sound Naval Shipyard. The court previously dismissed the plaintiff’s claims against numerous defendants, and only three defendants remain, each of whom has motions for summary judgment pending before the court.
Each remaining defendant’s primary defense to the plaintiff’s claims is that there is no evidence that the decedent’s mesothelioma was caused by exposure to that defendant’s product. The court reviewed the applicable causation standard: Under maritime law, plaintiff must show that decedent “was actually exposed to asbestos-containing materials that [were] installed by [a defendant] and that such exposure was a substantial contributing factor in causing his injuries.” McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1174 (9th Cir. 2016) (citing Lindstrom v. A—C Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir. 2005)). “Absent direct evidence of causation, a party may satisfy the substantial-factor test by demonstrating that the injured person had substantial exposure to the relevant asbestos for a substantial period of time.” Id. (internal citations omitted). Finally, evidence of only minimal exposure to asbestos is insufficient; there must be ‘a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.’ McIndoe, 817 F.3d at 1176 (internal quotations omitted).
The substantial factor causation analysis under maritime law is consistent with the Lohrmann “frequency, regularity, and proximity” test. Bantin v. Air & Liquid Sys. Corp., No. 1:20-CV-00341-MR-WCM, 2022 U.S. Dist. LEXIS 113649, 2022 WL 2334993, at *5 (W.D.N.C. June 28, 2022) (citing Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986)). Under Lohrmann, the plaintiff must present some evidence of exposure to a specific product on a regular basis over some extended period in proximity to where the plaintiff actually worked. Lohrmann, 782 F.2d at 1162-63. A plaintiff must show “more than a casual or minimum contact with the product” to hold the defendant liable. Jones v. Owens-Corning Fiberglas Corp. & Amchem Prod., 69 F.3d 712, 716 (4th Cir. 1995) (quoting Lohrmann, 782 F.2d at 1162).
The court considered the summary judgment motions of defendants John Crane Inc., Crosby Valve LLC, and the William Powell Company. John Crane argued that although two of the decedent’s co-workers recalled using John Crane products at the naval shipyard, they could not place the decedent in the vicinity of any John Crane products, and so there is no evidence that the decedent ever inhaled asbestos from its products. In response, the plaintiff stressed the ‘overwhelming’ evidence that the decedent generally worked in an environment filled with asbestos dust. The plaintiff also relied on the testimony of John Crane’s corporate representative that John Crane sold asbestos packing and gasket material to the U.S. Navy, and on an expert’s testimony that John Crane packing material was used aboard two ships on which the decedent worked.
Plaintiff cited to In re Hawaii Fed. Asbestos Cases, 734 F. Supp. 1563, 1572 (D. Haw. 1990), for the proposition that in mesothelioma cases, circumstantial evidence that a plaintiff worked in the vicinity of a defendant’s product may suffice to establish that the product was a substantial factor in causing the plaintiff’s disease. However, that case was decided under Hawaii law, not maritime law, and so the causation standard applied in that case does not apply to the instant maritime action. Rather, under the maritime standard, in the absence of direct evidence of exposure, a plaintiff may satisfy the substantial factor test by demonstrating that he had “substantial exposure to the relevant asbestos for a substantial period of time.” McIndoe, 817 F.3d at 1174.
The court determined that there is no evidence from which a reasonable jury could find that the decedent had substantial exposure to asbestos from a John Crane product for a substantial period. The court therefore granted John Crane’s motions for summary judgment and dismissed the plaintiff’s maritime wrongful death claim against John Crane.
Defendant Crosby also argued that there is no evidence that the decedent ever inhaled asbestos from its products, and that the plaintiff therefore cannot establish that asbestos from Crosby products was a substantial factor in the decedent’s mesothelioma. One of the decedent’s co-workers did attest that he saw the decedent inhale dust from the removal and replacement of asbestos-containing gaskets, packing and insulation associated with valves manufactured by Crosby. However, at his deposition, that co-worker could not state whether he ever worked on a Crosby valve. The plaintiff’s medical expert similarly could not tie the decedent’s mesothelioma to asbestos from a Crosby product.
Plaintiff’s response relies heavily on the amount of asbestos dust where the decedent worked, including the fact that he maintained and replaced valves on a daily basis. However, the plaintiff provided no direct evidence that the decedent was exposed to asbestos from a Crosby product, or that Crosby asbestos was a substantial factor in his disease. The plaintiff further argued that Crosby has been selling asbestos-containing valves to the Navy since the 1930s, and that Crosby valves require insulation and gaskets, which also used asbestos. However, the court found that there is no connection between that fact and the decedent’s disease. None of the plaintiff’s fact witnesses nor experts could place a Crosby valve in any place that the decedent worked at the shipyard. Absent any evidence that the decedent was exposed to asbestos from a Crosby product, the court granted Crosby’s motion for summary judgment and dismissed with prejudice the plaintiff’s maritime wrongful death claim against Crosby.
Finally, the court turned to the motion of Powell, which similarly argued that that there is no evidence that the decedent was ever in the vicinity of work performed on a Powell product, and there is no fact or expert testimony that could support a jury finding that Powell’s asbestos was a substantial factor in the decedent’s mesothelioma. The decedent’s co-workers did not testify that they worked with or around Powell valves at the shipyard, and the plaintiff’s expert was unable to place the decedent in the vicinity of Powell valves, even though he can place Powell valves on a ship on which the decedent worked.
Plaintiff reiterated the claims about the general prevalence and danger of asbestos aboard ships at the shipyard while the decedent worked there, but the plaintiff conceded there is no direct evidence that the decedent was exposed to asbestos by a Powell product. As the court found that there was no evidence from which a reasonable jury could find that decedent had substantial exposure to Powell asbestos for a substantial period, the court granted Powell’s motion for summary judgment and dismissed with prejudice the plaintiff’s maritime wrongful death claim against Powell.
Read the full decision here.