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McMann v. Air & Liquid Systems Corporation

United States District Court, W.D. Washington, Tacoma

December 2, 2014

ALAN McMANN and DONNA McMANN, husband and wife, Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendant Pabst Brewing Company's ("Pabst") motion for summary judgment (Dkt. 60), Defendant Crane Co.'s ("Crane") motion for summary judgment (Dkt. 63), and Defendant SB Decking Inc.'s ("SB Decking") motion for summary judgment (Dkt. 65). The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants in part and denies in part the motions for the reasons stated herein.

I. PROCEDURAL HISTORY

On July 16, 2013, Plaintiffs Alan and Donna McMann ("McManns") filed a complaint alleging that Mr. McMann was exposed to asbestos while working for numerous Defendants, including Pabst, Crane, and SB Decking. Dkt. 59, Declaration of Michael E. Ricketts, Exh. 1 ("Comp.").

[The McManns] claim liability based upon the theories of product liability (RCW 7. 72 et seq.); negligence; conspiracy; strict product liability under Section 402A and 402B of the Restatement of Torts; premises liability; breach of warranty; (RCW 62A); and any other applicable theory of liability. The liability-creating conduct of defendants consisted, inter alia, of negligent and unsafe design; failure to inspect, test, warn, instruct, monitor, and/or recall; failure to substitute safe products; marketing or installing unreasonably dangerous or extra-hazardous and/or defective products; marketing or installing products not reasonably safe as designed; marketing or installing products not reasonably safe for lack of adequate warning and marketing or installing products with misrepresentations of product safety.

Id. at 3.

On October 22, 2014, Pabst, Crane, and SB Decking filed motions for summary judgment. Dkts. 60, 63, & 65. On November 10, 2014, the McManns responded. Dkts. 67, 69, & 71. On November 14, 2014, Pabst, Crane, and SB Decking replied. Dkts. 73, 76, & 77.

II. FACTUAL BACKGROUND

On May 8, 2013, Mr. McMann was diagnosed with mesothelioma caused by exposure to asbestos from approximately 1968 to 1998. Id. For purposes of the instant motions, Mr. McMann declares that he was stationed aboard the USS Firedrake while serving in the United States Navy. McMann alleges that he was exposed to asbestos dust while decking containing asbestos was being removed from the Firedrake. Mr. McMann also declares that he was exposed to asbestos while working as a carpenter's apprentice at the Olympia brewery between 1971 and 1972.

III. DISCUSSION

A. Summary Judgment Standard

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt"). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. P. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The Court must consider the substantive evidentiary burden that the nonmoving party must meet at trial - e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elec. Serv., Inc., 809 F.2d at 630 (relying on ...


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