United States District Court, W.D. Washington Seattle.
RICHARD J. NELSON, et al., Plaintiffs,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
JAMES L. ROBART, District Judge.
Before the court are: (1) Defendant Crane Co.'s ("Crane") motion for summary judgment (Crane Mot. (Dkt. # 155)), and (2) Defendant Carrier Corporation's ("Carrier") motion for summary judgment (Carrier Mot. (Dkt. # 158)). The court has considered the motions, all submissions filed in support of or opposition thereto, the balance of the record, and the applicable law. Being fully advised,  the court GRANTS in part and DENIES in part both motions.
A. Mr. Nelson's Service Aboard the U.S.S. Kitty Hawk
Plaintiffs Richard J. Nelson and Stephanie A. Nelson allege that Mr. Nelson was exposed to asbestos-containing materials as a machinist's mate while serving aboard the U.S.S. Kitty Hawk. (3d Am. Compl. (Dkt. # 81) ¶ 3.1.) Mr. Nelson has been diagnosed with mesothelioma, a cancer of the lining of the lungs, which he alleges was caused in part by exposure to asbestos incorporated in the products of Carrier and Crane while he served aboard the Kitty Hawk. ( Id. ¶ 3.2.) Mesothelioma is a terminal disease. ( Id. )
Mr. Nelson entered the United States Navy on May 3, 1960, and served aboard the Kitty Hawk as a machinist's mate fireman from the day the ship was first commissioned on April 29, 1961, until June 30, 1964, when Mr. Nelson left the Navy. (10/27/14 Knudsen Decl. (Dkt. # 164-1) Ex 1; id. Ex. 2 (Nelson Dep. Vol. I) at 15:24-17:2, 19:2-8, 28:22-23.) Mr. Nelson sailed on the Kitty Hawk's maiden voyage from Camden, New Jersey, south around Cape Horn, and then north to San Francisco, California, where the ship was placed in dry dock at the Hunter's Point Naval Shipyard for six months. ( Id. Ex. 2 at 38:10-15, 39:1-5.)
Mr. Nelson testified in his deposition that when he joined the ship "[e]verything was brand new." ( Id. at 83:10-15, 89:24-25.) He also testified that a machinist's mate was responsible for maintaining "everything in the engine room, " except for the boilers. ( Id. Ex. 2 at 20:5-20.) His responsibilities included maintaining all of the pumps throughout the ship, including the feed pumps, and "all types of valves." ( Id. at 20:5-20, 21:4.)
With respect to his work on the ship's pumps, Mr. Nelson testified that he personally performed work on two of the three main feed pumps. (11/3/14 Knudson Decl. (Dkt. # 172-1) Ex. 9 (Nelson Dep. Vol. I) at 183:1-184:23).) Mr. Nelson testified that the main feed pumps were higher maintenance than some of the other pumps because the main feed pumps needed to be "looked at on a continuous basis." ( Id. Ex. 9 at 57:3-13.) He could not recall the manufacturers' names, but described the main feed pumps' function of providing water to the main boilers and recalled that these pumps were subject to maintenance during the ship's overhaul in dry dock. ( Id. Ex. 9 at 164:24-165:19.) He helped to replace the internal gaskets and bonnets associated with the main feed pumps. ( Id. Ex. 9 at 165:20-23.) When asked whether the internal packing and gaskets he worked on were original with the pumps, he indicated that the pumps looked "brand new" and "like they hadn't been disturbed." ( Id. Ex. 9 at 167:8-23.) He testified that it was "[h]ighly unlikely" that the pumps had been disturbed prior to his work upon them. ( Id. ) However, he acknowledged that "[t]here could have been" maintenance or repair work performed on the main feed pumps before the Kitty Hawk's initial shakedown cruise around the Horn. ( Id. Ex. 9 at 167:2-7.)
During the haul-out at Hunter's Point, Mr. Nelson's main responsibility was to clean up after other workers and occasionally help other machinist's mates work on the Kitty Hawk's various equipment. ( Id. Ex. 9 at 190:22-191:4.) Mr. Nelson testified that he observed and was only two to three feet away when other workers removed the gaskets and packing from the main feed pumps. ( Id. Ex. 9 at 168:8-20.) Naval archive records substantiate Mr. Nelson's testimony about the work performed on the main feed pumps during the Kitty Hawk's haul-out in 1961. ( Id. Ex. 10; see also Lowell Rept. (Dkt. # 144) Ex. 23.) Mr. Nelson also recalled that it was "standard procedure" for the manufacturers to leave spare packing and gaskets as replacement parts for their own pumps. ( Id. Ex. 9 at 168:21-171:15.) He acknowledged, however, that he did not know for certain that the replacement parts used in this particular instance came from the pump's manufacturer or not. ( Id. Ex. 9 at 173:16-19.)
With respect to his work on the ship's valves, Mr. Nelson testified that he could tell that the valves he worked on were new and had not been previously worked on because the valves did not look as if they had been disturbed and appeared to still have the original paint. ( See id. Ex. 9 at 193:10-13.) He also testified that the valve manufacturers supplied "the equipment, the packing and gaskets and everything else" that was needed to maintain or fix the valves. ( See 10/27/14 Knudsen Decl. Ex. 3 (Nelson Dep. Vol. II) at 17:15-20.)
Mr. Nelson acknowledged, however, that although the valves appeared to have original paint, he did not definitively know if the valves had been repainted after original testing. ( See 11/3/14 Knudsen Decl. Ex. 9 at 193:18-20.) He also acknowledged that the Kitty Hawk was launched in 1958 or 1959 (Duvall Decl. (Dkt. # 156-1) Ex. B at 156:9), and that he does not know the maintenance history of the Kitty Hawk between the time it was launched and its maiden voyage in 1961, two or three years later ( id. Ex. B at 156:10-24). He also acknowledged that he has no specific memory of the maintenance history of any particular Crane valve or whether any of the valves on which he worked contained their original component parts. ( See id. Ex. C at 207:13-209:2.) In addition, he acknowledged that he did not know if any of the valve manufacturers supplied the gaskets to be used with their equipment. ( Id. Ex. A at 135:5-8.)
Mr. Nelson testified in deposition that, during the haul-out at Hunter's Point Naval Shipyard, he worked on some of the Kitty Hawk's pumps and valves and also stood watch. (10/27/14 Knudsen Decl. Ex. 2 at 39:1-5, 40:8-13.) As he stood watch, he observed or assisted when yard or civilian workers repaired and overhauled valves or pumps and he also cleaned up after the civilian workers. ( Id. Ex. 2 at 39:1-5, 40:14-41:17, 43:16-24, 47:2-12, 47:18-48:10.) He noted that "dust would be everywhere, " and he "would be breathing it all the time." ( Id. Ex. 2 at 41:5-8, 50:11-24.) After the overhaul, Mr. Nelson continued to maintain valves aboard the Kitty Hawk. ( See id. at 70:17-19.) His duties included overhauling valves throughout the auxiliary spaces and engine rooms, which created dust when he scraped gaskets off the valves. ( Id. at 73:24-74:20.)
Near the end of his service, Mr. Nelson was transferred to the air conditioning, refrigeration, and steam heat division aboard the Kitty Hawk. ( Id. at 67:18-68:13.) He removed used packing from valves in this position as well, which also created dust. ( Id. at 68:14-69:22.) One major project involved an overhaul of the Admiral's air conditioning unit. (11/3/14 Knudsen Decl. Ex. 9 at 70:17-73:18.) Mr. Nelson took the industrial-sized air conditioning unit almost completely apart. ( Id. Ex. 9 71:22-25.) He worked on "asbestos gaskets, " scraping and replacing some with new asbestos gaskets, and removing old packing and replacing it with new. ( Id. Ex. 9 at 72:20-73:16.) This activity created "a little bit" of dust. ( Id. Ex. 9 at 72:17-18.)
B. Evidence Concerning Crane Valves, Gaskets, and Packing
Mr. Nelson testified unequivocally that Crane valves were prevalent on the Kitty Hawk while he was assigned there. (10/27/14 Knudsen Decl. Ex. 2 at 21:4-5 ("Crane [valves]... were all over the ship...."); id. Ex. 2 at 50:7-8 ("[T]here were Crane [valves]... throughout the ship....").) Mr. Nelson recalls working with Crane valves when he removed original packing from Crane valves and when he installed new packing. ( Id. Ex. 4 at 4.) Specifically, Mr. Nelson recalls working with or around the following types of Crane valves on the Kitty Hawk: (1) Class 400 and 600 cast steel pipe-line gate valves, (2) cast steel wedge gate valves (600-pound flange, 1500-pound socket-welding), (3) bronze low pressure flanged globe valves, (4) bronze flanged globe type hose valves, and (5) bronze low pressure flange angle valves. ( Id. )
A 1960 Crane Valves and Fittings Catalog indicates that Crane manufactured and sold all of the foregoing categories of valves. ( Id. Ex. 5 at 132-33, 166-67, 231, 236.) The Catalog also indicates that Crane supplied its steel and bronze valves with asbestoscontaining packing material ( id. Ex. 5 at 10), and that Crane sold Cranite Sheet Packing which was "made from an asbestos composition" and manufactured solely for Crane ( id. Ex. 5 at 320).
Naval architect records from 1958-59 are consistent with Mr. Nelson's testimony that the Kitty Hawk was initially built with a variety of Crane valves. ( See id. Ex. 6.) In addition, an October 29, 1959, vendor drawing approval request form for angle stop valves includes a Crane drawing of a 600 pound cast steel valve, and part number 8 is packing comprised of "braided asbestos rings." ( Id. Ex. 7.)
Plaintiffs also offer a September 21, 1964, purchase order, which indicates that Crane provided a horizontal swing check valve to the Kitty Hawk when the vessel was overhauled in 1964. (10/27/14 Knudsen Decl. Ex. 8.) The order included repair parts, and a subsequent change order indicates that Crane was to supply the cap gasket for the swing check valve as well. ( See id. ) Although this document post-dates Mr. Nelson's service, Plaintiffs assert that it creates a reasonable inference that Crane supplied asbestos-containing replacement parts during the course of Mr. Nelson's service.
Finally, Plaintiffs offer the testimony of naval expert, Captain William A. Lowell. ( See generally Lowell Rpt. (Dkt. # 144).) Captain Lowell bases his opinion on Mr. Nelson's deposition testimony in which he specifically recalled working on valves after the first shakedown cruise and that he removed original packing and gaskets from the valves. ( Id. at 28.) He also bases his testimony on his review and analysis of documents he obtained from the National Archives. ( Id. at 29.) Captain Lowell has opined that most valves for the steam lines on the Kitty Hawk had asbestos materials on and in them when the aircraft carrier was first built. (Lowell Rpt. at 28.) In Captain Lowell's opinion, Mr. Nelson more probably than not came into contact with original asbestos material from Crane valves aboard the Kitty Hawk during Mr. Nelson's first year of service aboard and during the ship's overhaul at Hunter's Point Naval Shipyard. ( Id. at 29-30.) Captain Lowell opines that Mr. Nelson more probably than not came into contact with these asbestos-containing materials while working on the valves himself as well as when he cleaned up dust and debris after yard workers overhauled the valves. ( Id. at 29.) Captain Lowell also opines that a significant amount of the asbestos materials with which Mr. Lowell had contact was probably original material supplied by Crane considering how new the ship was. ( Id. at 30; see also id. at 34 ("Considering the newness of the Kitty Hawk during the rest of Mr. Nelson's tenure on the ship, it is more probable than not that he came in contact with original asbestos-containing packing, gasket and insulation material from Crane... valves....").)
C. Evidence Concerning Carrier Equipment
Mr. Nelson asserts that he was exposed to asbestos from Carrier turbines that were attached to Ingersoll Rand main feed pumps, as well as from Carrier air conditioning units that Mr. Nelson work on or around during his tenure aboard the Kitty Hawk. ( See Resp. to Carrier at 1, 3-10.) In his deposition, however, Mr. Nelson does not specifically identify Carrier as the manufacturer of turbines, pumps, or any other equipment aboard the Kitty Hawk. He testifies that he worked on the main feed pumps that are attached to auxiliary turbines, but does not specifically connect either the pumps or the turbines to Carrier. ( See 11/3/14 Knudson Decl. Ex. 9 at 183:1-184:23; see also id. at 57:3-13).) With respect to turbines on the Kitty Hawk, his only relevant deposition testimony is as follows:
Q: Did you ever work on any turbines?
* * * * * * * * * *
A: [T]here's some pumps that have turbines. I worked on a couple - helped work on a couple of those.
Q: Can you tell me which pumps?
(11/3/14 Knudsen Decl. Ex. 12 at 49:15-50:8.)
Although Mr. Nelson generally associates the name Carrier with air conditioning and refrigeration units, he has no specific recollection of seeing the name Carrier during any of his work aboard the Kitty Hawk. (Mackenzie Decl. (Dkt. # 159) Ex. B (Nelson Dep. Vol. II) at 210:3-16.)
In the absence of any testimony from Mr. Nelson connecting his work or products aboard the Kitty Hawk to Carrier, Plaintiffs rely upon testimony from their naval expert, Captain Lowell, to connect the causation dots for their claims against Carrier. Captain Lowell opines that Carrier turbines and air conditioning units were aboard the Kitty Hawk during Mr. Nelson's tenure there. (Mackenzie Decl. Ex. A at 240:3-17.) Specifically, Mr. Lowell testifies that there were 12 feed pumps with associated Carrier turbines and seven Carrier air conditioning units aboard the Kitty Hawk. ( Id. )
Mr. Lowell's testimony is based in part on naval archive records. ( See 11/3/14 Knudsen Decl. Exs. 1-3.) With regard to the air conditioning units, he relies upon a document entitled "Report of Final Acceptance Trials and Material Inspection of USS Kitty Hawk (CVA-63) HELD 20-24 November 1961 By Board of Inspection and Survey" ("1961 Report of Final Acceptance"). ( See id. Ex. 1.) This document lists a variety of refrigeration and air conditioning units, including five pieces of "York Company (three 8.4-ton and two 8.9 ton) refrigeration equipment" and seven pieces of "York Company and Carrier (six units 175-ton each and one unit 25-ton) air conditioning equipment" that "operated satisfactorily during the trials...." ( Id. Ex. 1 at VIII-11.) Despite the phraseology, Captain Lowell opines based on this document that Carrier manufactured the seven air conditioning units aboard the Kitty Hawk while York Company manufactured the five refrigeration units. (Mackenzie Decl. Ex. A at 254:1-24.)
Plaintiffs also offer evidence that the only legitimate place to obtain replacement parts for Carrier air conditioning equipment aboard a naval vessel was from Carrier or a Carrier-authorized parts dealer. ( See Knudsen Decl. Ex. 13.) Specifically, Plaintiffs offer deposition testimony from Carrier's Federal Rule of Civil Procedure 30(b)(6) deponent in another asbestos litigation. ( See id. ) This Rule 30(b)(6) deponent testified that Carrier or a Carrier marine dealer was the only authorized supplier of replacement parts for Carrier products utilized by the Navy. ( See id. )
There is no dispute that Carrier did not manufacture the main feed pumps aboard the Kitty Hawk. Captain Lowell has offered expert testimony that Ingersoll-Rand manufactured the main feed pumps. ( See Lowell Rpt. at 23 ("[T]he [main feed] pumps were manufactured by Ingersoll-Rand....").) Although Carrier has not conceded that it manufactured the turbines associated with the main feed pumps ( see generally Carrier Mot.), Captain Lowell has offered expert testimony that these turbines were Carriermanufactured ( see Lowell Rpt. at 23). In asserting this opinion, Captain Lowell relies in part upon an April 25, 1956, letter from the Bureau of Ships to Ingersoll-Rand Company. ( See 11/3/14 Knudsen Decl. Ex. 2.) The April 25, 1956 letter states in its subject line: "AIRCRAFT CARRIER (CVA63), Contract NObs-67763 with Ingersoll-Rand Company; main feed pump turbines, Carrier Corporation, manufacturer, drawing approval." ( Id. ) In addition, a second letter, dated August 20, 1956, has an identical subject line, and lists 13 different Carrier drawings that the Navy approved. ( Id. Ex. 3.)
Captain Lowell also asserts that the main feed pumps (manufactured by Ingersoll-Rand) and the turbines (manufactured by Carrier) were an integrated system. ( See 11/3/14 Knudsen Decl. Ex. 4 ...