Boilermaker Contractor Granted Summary Judgment Over Past Employee as No Proof Existed of Exposure Outside of His Work Directly for Contractor

The plaintiffs filed a wrongful death and survival action claiming their decedent, Michael Walashek, developed mesothelioma from his work as a career boiler maker from 1967-86. The plaintiff’s social security records listed his employers FBS, Inc. and Camass Company, along with others. The case was removed to federal court and FBS, Inc. moved for summary judgment. Previously, a gasket manufacturer and cloth manufacturer moved for and were granted summary judgment.  A summary of that decision can be found here.

Specially, FBS, Inc. argued that the plaintiffs’ claims were barred by California’s Workers’ Compensation Act and the Longshore and Harbor Workers’ Compensation Act. Additionally, FBS, Inc. maintained that the claims were barred by the sophisticated user doctrine. On the other hand, the plaintiffs argued that their decedent was exposed to asbestos by FBS, Inc. while working for co-defendant Camass. Therefore, the claims did not fall within the scope the Workers’ Compensation Act with respect to FBS, Inc. as their decedent’s alleged exposure occurred while working at Camass by other FBS, Inc. employees.

In granting the motion, the court held that the plaintiff failed to establish a disputed fact “with respect to whether Walashek was exposed to asbestos dust attributable to FBS, Inc. while employed by Camass.” The plaintiffs’ discovery responses did not purport any facts of exposure regarding FBS, Inc. exposing the plaintiff to asbestos during his work at Camass. The court noted that the burden shifted to the plaintiff. The plaintiff relied on the deposition testimony to attempt to establish that the plaintiff worked around FBS, Inc.’s workers onboard the USS Kitty Hawk and USS Constellation. However, the court found that there was no “reliable evidence” that the plaintiff was present when FBS, Inc. worked on the U.S.S. Kitty Hawk or U.S.S. Constellation. The court honed in on fact testimony from the plaintiff’s brother suggesting that FBS, Inc. and Camass did not work together on projects as they were competitors. Also, the court recognized that another fact witness’ testimony that multiple contractors may be on a ship simultaneously was speculative.

Accordingly, the court granted FBS, Inc.’s motion for summary judgment.

Read the full decision here.