U.S. District Court for the Western District of Washington, March 1, 2021
Defendant Aurora Pump Company filed this instant motion for summary judgment and motion to strike. By way of background, plaintiff Ronald H. Berhmann worked on ships while serving in the U.S. Navy and while working in the Todd and Lockheed Shipyards in Seattle, Washington. Aurora manufactured pumps and asbestos-containing gaskets and packing for those pumps for use on ships. The plaintiff was an electrician, therefore, he did not work directly on pumps. Rather, he was in close proximity to machinists and pipefitters who did.
In the pending motion, Aurora moves for summary judgment arguing that maritime law applies and that the plaintiff’s claims should be dismissed because he cannot show either that exposure to asbestos from an Aurora product was a substantial factor in causing his mesothelioma or that Aurora had a duty to warn him about the dangers of asbestos. The plaintiff responded in opposition, arguing that Washington law applies and that genuine issues of material fact preclude summary judgment.
In reply, Aurora moves to strike the report of the plaintiff’s maritime expert Captain Arnold Moore and miscellaneous sales records. The plaintiff responded in opposition to the defendant’s motion to strike. The defendant replied to the motion to strike and withdrew some of its challenges. The only remaining contested issue on the motion to strike is whether Captain Moore’s report should be stricken because the plaintiff did not attach copies of the documents used as sources for his report.
The court noted that maritime law applies because the alleged facts meet both the locality and the connection tests. Turning to Aurora’s motion to strike the testimony of Captain Moore on the grounds that the plaintiff failed to attach copies of the sources Captain Moore used to render his sworn testimony, the court noted that Aurora had access to Captain Moore’s report and all of his sources. The plaintiff does not need to attach all sources to render an expert report for it to be considered. Therefore, Aurora’s motion to strike was denied.
Turning to Aurora’s summary judgment motion, the court noted that while a reasonable jury could infer that Behrmann was exposed to asbestos by Aurora products, he failed to create a genuine issue of material fact that it was a substantial factor in causing his mesothelioma. Behrmann provides evidence that Aurora pumps that used asbestos-containing gaskets and packing were on at least eight ships where he worked and possibly on four more. However, the ships used multiple pump brands.
Behrmann testified that while at Lockheed, he regularly moved between worksites, working on different ships and in different areas of those ships. Therefore, the evidence does not indicate how often he worked near Aurora pumps specifically or, more importantly, how often he worked near Aurora pumps when they were being manipulated in a way that released asbestos. Similarly, though evidence indicates that two Aurora fresh-water pumps were on the USS Burton Island, Behrmann did not offer evidence about how frequently he could have been exposed to asbestos by work on those pumps. Moreover, while Behrmann’s medical expert rejects the “every exposure” theory of causation and instead testifies that “frequent, repeated, excessive and proximal asbestos exposures,” including by work with and around asbestos-containing gaskets and packing, was the direct and only cause of his mesothelioma, he does not consider the amount of exposure that possibly came from Aurora products. Without evidence about the amount of exposure that possibly came from those products and whether that level of exposure would be medically significant, it would be conjectural to conclude that asbestos-containing Aurora products were a substantial factor in causing Behrmann’s mesothelioma.
Consequently, the plaintiff failed to create a genuine issue of material fact as to causation. Similarly, the plaintiff’s failure to warn claim was dismissed because he cannot establish that Aurora products caused his mesothelioma. The defendant’s motion to dismiss on the issue of general negligence was granted.