U.S. District Court for the Central District of California
In this asbestos action, decedent John Carpenter worked as a marine machinist at the Long Beach Naval Shipyard from 1973 until 1984, when he became a mechanical engineering technician. Four of his co-workers testified as to his activities while at the shipyard, as Carpenter passed before he could be deposed. Two valve defendants, Nibco and Asco, moved for summary judgment, which the plaintiffs opposed.
With regard to the exposure evidence in this case, two co-workers testified as to Carpenter’s work with Nibco valves. One co-worker observed Carpenter repack or replace Nibco valves approximately 50 times, in addition to his own work repacking or replacing Nibco valves in Carpenter’s presence. Another co-worker observed “Carpenter work[ing] with about 20 Nibco gate valves, about 15 Nibco globe valves, and 4-5 Nibco butterfly valves.”
Further, the parties argued whether Carpenter’s co-worker who identified Asco valves was referring to Asco or AMOT. Asco argued that the co-worker referred to AMOT, a valve manufactured by a different company. In addition, Asco submitted a declaration from an engineering manufacturer “who states that [n]o valve that ASCO ever provided to the Navy with asbestos packing was either a thermal or thermostat control valve.” The plaintiffs argued that AMOT was an acronym for the type of valve, not the manufacturer. For both valves, the co-workers alleged that Carpenter came into contact with asbestos from gaskets and packing material associated with the valves
The court first determined that federal maritime law applied to this matter, rather than California law. The court explained that “[f]ederal maritime law applies over a tort claim if two conditions are satisfied: (1) the location test and (2) the connection test.” For the location test, “courts consider whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water.” For the connection test, courts determine “whether (i) the incident has a potentially disruptive impact on maritime commerce and (ii) the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.” The facts of this case met the location test as he worked below deck as a marine machinist and coming up with “solutions to problems in the waterfront” as an engineering technician. The court determined this case also met the connection test as the failure to warn tort alleged here “has the potential to disrupt maritime commerce.” In addition, “the repair and maintenance of [pumps, valves, steam traps, blowers, boilers, and anchor windlasses] bears a substantial relationship to traditional maritime activity.”
Thereafter, the court turned to the causation question. The court set forth that “a plaintiff must have evidence demonstrating that (1) he was ‘actually exposed’ to the defendant’s asbestos-containing product (or that the defendant’s product required incorporation of an asbestos-containing product) and (2) that such exposure was a ‘substantial contributing factor in causing his injuries’.”
Under the first prong – actual exposure to the defendant’s asbestos-containing product – the court determined a question of fact existed as to Nibco valves. Notably, the court cited Air & Liquid Sys. Corp. v. DeVries for the proposition that “[e]ven though the witnesses were not certain as to whether the packing and gasket materials were original to the Nibco valves, it is a reasonable inference from the facts that, if Nibco was required by the Navy to sell the valves with asbestos-containing materials, the Navy would replace those materials with similar asbestos-containing materials.” As to Asco valves, the plaintiffs failed to obtain a clarifying affidavit from the co-worker who testified as to the Asco and AMOT valves, the contents of which may have supported their position given that the plaintiffs have the “burden to produce evidence that makes it more plausible than not that Mr. Carpenter worked with asbestos-containing Asco valves.” In addition, the plaintiffs failed to proffer any evidence that Asco valves required the incorporation of an asbestos-containing part as required by DeVries. As such, “a rational jury could not find in Plaintiffs’ favor on the issue of exposure attributable to Asco’s valves.”
With regard to the substantial factor prong, the court first explained that “at least absent an extraordinary showing of actual exposure by a particular defendant’s product,” a plaintiff must “proffer expert causation testimony that is specific to the dose of asbestos attributable to a particular defendant to survive a motion for summary judgment.” The court set forth that the case McIndoe v. Huntington Ingalls Inc. is the binding precedent of the Ninth Circuit. As per McIndoe, “even if there is evidence of exposure, asbestos plaintiffs must produce evidence that any such exposure was a substantial contributing factor to the relevant injuries.” Here, the court noted that both of the plaintiffs’ experts, Kenneth S. Garza, CIH, MS, and David Y. Zhang, M.D., “rely on the prohibited every exposure and/or cumulative exposure theories to support their conclusions on causation.” The court rejected the plaintiffs’ contention that Dr. Zhang provided a defendant-specific causation report since Dr. Zhang only referred to valves generally in his report. While the plaintiffs’ counsel argued that Dr. Zhang’s testimony at trial would speak to specific exposures, the court agreed with Asco’s argument that “whether Plaintiffs are permitted to proceed to trial is based on the evidence submitted on these Motions, not on hypothetical evidence that may appear at the eleventh hour.”
The plaintiffs also argued that the exposure evidence of Carpenter’s co-workers in this matter was lacking in McIndoe. However, the court rejected that argument for both Asco and Nibco valves. First, the testimony lacked any information regarding the frequency, amount, and duration of his work with Asco valves. With regard to Nibco valves, the court framed the issue “whether that evidence is sufficient to raise a triable issue of fact as to whether the injured person had substantial exposure to the relevant asbestos for a substantial period of time.” As such, the court set forth that “causation requires that an expert connect the nature of the asbestos exposure and pair it with a Daubert-approved methodology that can be used to determine whether such an exposure was a substantial cause of the defendant’s injury.” The court also discussed that “[i]f Mr. Garza reviewed the factual evidence that Plaintiffs suggest demonstrates the duration and frequency of exposures to Nibco’s and Asco’s asbestos-containing products, it is unclear why he could not calculate an estimated dose per Defendant.” The court stated that an expert must “testify that the relative dose from a particular defendant was significant enough to allow a jury to find in favor of its being a substantial factor.” Therefore, the court held that “Plaintiffs have failed to adduce sufficient evidence to establish a triable issue of fact on causation against both Defendants.” Thus, the court granted Nibco and Asco’s motions.
Read the full decision here.