United States District Court, W.D. Washington, Tacoma
CONNIE M. McCROSSIN, Individually and as Personal Representative of the Estate of JOHN L. McCROSSIN, Plaintiff,
IMO INDUSTRIES, INC., individually and as successor-in-interest to DE LAVAL TURBINE, INC.; LOCKHEED SHIPBUILDING COMPANY; LONE STAR INDUSTRIES, INC., individually and as successor-in-interest to PIONEER SAND & GRAVEL COMPANY; UNION CARBIDE CORPORATION; and FRASER'S BOILER SERVICE, INC., Defendants.
ORDER DENYING FRASER'S BOILER SERVICE, INC.'S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, MOTION FOR PARTIAL SUMMARY JUDGMENT
ROBERT J. BRYAN, District Judge.
This matter comes before the Court on defendant Fraser's Boiler Service, Inc.'s ("Fraser's") Motion for Summary Judgment or, in the alternative, Motion for Partial Summary Judgment. Dkt. 188. The Court has considered the pleadings filed in support of, and opposition to, the motion and the file herein. The Court can rule on this motion without oral argument.
Proceeding on her amended complaint for wrongful death and survivorship, plaintiff alleges claims based on product liability; negligence; conspiracy; spoliation; willful or wanton misconduct; strict product liability; premises liability; breach of warranty; RCW 62A; enterprise liability; market-share liability and/or market-share alternate liability; and any other applicable theory of liability. Dkt. 127.
On January 26, 2015, Fraser's filed a motion for a summary judgment or, in the alternative, a partial summary judgment. Dkt. 188.
Plaintiff filed a response on February 17, 2015 (Dkt. 217), and Fraser's filed a reply on February 20, 2015 (Dkt. 219).
In the 1960s, the U.S. Navy ("Navy") contracted with Lockheed Shipbuilding Company ("Lockheed") to build an amphibious Transport Dock warship, the USS Trenton ("Trenton"). In 1971, the Trenton was built according to the Navy's specifications as required under the contract. The contract required, among other things, that the Trenton contain asbestos materials. Dkt. 163, at 3. Plaintiff claims that some of these materials, such as boilers, were not only installed, but also manufactured, sold, and distributed by Fraser's, a boiler subcontractor. Dkt. 217, at 9.
Fraser's alleges, however, that Fraser's neither manufactured nor sold boilers, boiler components, or any asbestos products. Dkt. 188, at 5. Rather, Fraser's alleges that Lockheed purchased unassembled boilers from Foster Wheeler and that Fraser's merely assembled the boilers. Id., at 4.
Between 1974 and 1976, Mr. John L. McCrossin served in the Navy aboard the Trenton as a personnelman. Plaintiff alleges that Mr. McCrossin was exposed to asbestos during both the Trenton's normal operations and the Trenton's first overhaul in New York in 1975. Dkt. 127, at 3. In addition to performing his duties as a personnelman, Mr. McCrossin stated in his deposition that, during the overhaul, he stood "fire watches" eight to twelve hours per week in the Trenton's engine rooms. Dkt. 134, 202. There, after workers would finish their job, Mr. McCrossin stated in his deposition that he would be called upon to clean out debris; he recalled that insulation was torn out from steam lines, that refractory was torn out of boilers, and that dust and debris were everywhere, a condition that, he claimed, exposed him to asbestos. Dkt. 202, at 2-3, 9.
Mr. McCrossin claimed that, as a result, he developed malignant mesothelioma ("mesothelioma"), a form of cancer that can develop when one inhales asbestos particles, which was diagnosed on February 21, 2014. Dkt. 134, at 2. Mr. McCrossin died on August 26, 2014, at the age of 58. Dkt. 80. Ms. Connie McCrossin, Mr. McCrossin's wife, has been appointed as a personal representative of Mr. McCrossin's estate (Dkt. 127) and is the plaintiff in the present action.
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 (1985). 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 non moving 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.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 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. Elect. Service 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. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra ). Conclusory, non specific statements in affidavits are not sufficient, and "missing facts" will not be "presumed." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).
Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of production by either of two methods:
The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim ...