Reconsideration denied April 15, 2014.
Superior Court County: King. Superior Court Cause No: 08-2-07177-4 SEA. Date filed in Superior Court: January 7, 2013. Superior Court Judge Signing: Dean Lum.
William J. Rutzick, Kristin M. Houser, and Thomas J. Breen (of Schroeter Goldmark & Bender ), for appellants.
Randy J. Aliment and Zackary A. Paal (of Williams Kastner ) ( Michael M. Garrett and Martha S. Brown of Edwards Wildman Palmer LLP, of counsel), for respondent.
AUTHOR: Dwyer, J. We concur: Verellen, J., Schindler, J.
[179 Wn.App. 654] ¶ 1
Michael Farrow died in 2008 as a result of contracting mesothelioma. Prior to his death, he and his wife, Lidia Farrow, filed a lawsuit against a number of defendants, including Flowserve U.S. Inc., who they sued individually and as successor-in-interest to Edward Valves, Inc. (EVI). The Farrows alleged that Michael had contracted mesothelioma as a result of being exposed to asbestos-containing products while working at the Puget Sound Naval Shipyard (PSNS) over the span of two decades. Melvin Wortman, a superintendent at the PSNS during part of Farrow's tenure, was deposed in a different lawsuit and subsequently died before Farrow's case could be heard. Initially, the trial court allowed Farrow to offer Wortman's testimony, over EVI's hearsay objection, pursuant to the " predecessor in interest" exception of ER 804(b)(1). However, after excluding Wortman's testimony as to several other defendants, the trial court reversed course and excluded his testimony in this case, leading to its grant of Flowserve's motion for summary judgment. The trial court erred in making the latter rulings. Accordingly, we reverse and remand for further proceedings.
¶ 2 Farrow worked at the PSNS as a pipefitter from 1953 to 1962 and in the design shop from 1963 to 1974. As part of his work in both positions, he spent a significant amount of time aboard ships installing and repairing valves, removing and replacing packing material around the valves' stems, and removing and replacing flange gaskets. One brand of [179 Wn.App. 655] valve that Farrow worked on and around " many times" was the Edward valve. Farrow removed insulation pads from Edward valves, removed flange gaskets from and fabricated flange gaskets on Edward valves, and removed packing from Edward valves and replaced the old packing with new packing. When Farrow or others nearby removed insulation from Edward valves, the air would be dusty and Farrow would breathe that dust. When Farrow or others nearby would remove gaskets from Edward valves, the air would be dusty and Farrow would breathe that dust. When Farrow or others nearby would fabricate gaskets on Edward valves, the air would be dusty and Farrow would breathe that dust. When Farrow or others nearby would remove old packing from Edward valves, it would very often be dusty and Farrow would breathe that dust. When Farrow or others nearby would replace old packing with new packing, it would be dusty and Farrow would breathe that dust.
¶ 3 Melvin Wortman was a superintendent of machinists at the PSNS from approximately 1968 until 1976. Although Wortman is now deceased, he is significant in this case
because of deposition testimony he gave in a previous King County Superior Court case: Nelson v. Buffalo Pumps, Inc., No. 08-2-17324-1 SEA. Wortman testified that because the Navy and the PSNS were focused on increasing their quality control during the time when he was superintendent, " there was a great increase in going to the original vendor for repair parts." He testified that in later years approximately 50 percent of the replacement parts obtained for the PSNS were procured from original manufacturers. Wortman's deposition in the Nelson case was taken over a three-day period, during which time questions were asked by attorneys for defendants Crane Co., Buffalo Pumps, Ingersol Rand, and Warren Pumps, and by attorneys for the plaintiffs. Buffalo Pumps manufactured pumps, whereas Crane Co. manufactured valves, and both of these defendants' [179 Wn.App. 656] products were on ships repaired at the PSNS. See Braaten v. Saberhagen Holdings, 137 Wn.App. 32, 37, 151 P.3d 1010 (2007), rev'd 165 Wn.2d 373, 394-95, 198 P.3d 493 (2008).
¶ 4 Flowserve's CR 30(b)(6) witness in this case, James Tucker, testified that EVI began manufacturing valves containing asbestos in the 1930s, that EVI manufactured valves that contained asbestos at the time the valves left the factory, that the asbestos contained in Edward valves at the time they left the factory for installation included both packing and gaskets, and that Edward valves were designed to contain asbestos until 1985. He also testified that EVI supplied replacement asbestos gaskets with new valves that already incorporated an original asbestos gasket; that EVI also separately sold replacement asbestos gaskets, including sheet gasket material; and that EVI sold replacement asbestos packing separately as well. Although Tucker admitted that EVI sold original and replacement packing, he testified that EVI never manufactured, distributed, or sold any external insulation or flange gaskets. Additionally, Tucker testified that he was unaware of any sales of replacement packing to the Navy and that, in preparing to testify as a CR 30(b)(6) witness, he had found no company records indicating otherwise.
¶ 5 Flowserve moved for summary judgment on June 28, 2012. During oral argument, and in connection with the issue of the admissibility of Wortman's testimony, Flowserve's counsel, Randy Aliment--who was not present at Wortman's deposition --admitted that he would not have asked Wortman additional questions had he been present. The trial court, relying in part on attorney Aliment's assertion that he would not have asked Wortman additional questions had he been present, ruled that [179 Wn.App. 657] Wortman's deposition testimony was admissible pursuant to ER 804(b)(1) and denied Flowserve's motion for summary judgment. The court explained its ruling on the admissibility of Wortman's testimony, in pertinent part, as follows:
It is telling, indeed, that had Mr. Aliment been there or a representative from EVI, that they would not have asked any other questions because, let's face it, once you have testimony that, " No, Edwards Valve is not familiar with me, to me," I don't know any attorney who would ask any further questions at that point. In fact, it ...