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 LOCKHEED SHIPBUILDING COMPANY'S MOTION FOR RECONSIDERATION
ROBERT J. BRYAN, District Judge.
This matter comes before the Court on defendant Lockheed Shipbuilding Company's ("Lockheed") Motion for Reconsideration of Order Denying Motion for Summary Judgment. Dkt. 222. The Court has considered the motion and the file herein.
On February 11, 2015, this Court denied Lockheed's motion for a summary judgment on the basis that genuine issues of material fact exist in this case precluding a summary judgment for Lockheed. Dkt. 214. On February 25, 2015, Lockheed filed a motion for reconsideration. Dkt. 222. The Court should conclude that Lockheed's motion lacks merit.
SUMMARY OF LOCKHEED'S ARGUMENT
Although Lockheed acknowledges that motions for reconsideration are disfavored, Lockheed argues that this motion "presents unique circumstances owing to the importance of maintaining uniformity in maritime law" because this Court's order conflicts with precedent. Dkt. 222. Specifically, Lockheed argues that, in the cases addressed below, Judge Robreno with the Eastern District of Pennsylvania has found that, absent personal knowledge, an expert witness can create no genuine issue of material fact regarding asbestos exposure by opining that a plaintiff was "likely" exposed to original asbestos or that "80% or the overwhelming majority' of original [asbestos] remained during the plaintiff's work." Id.
Here, Lockheed argues that, as matter of law, plaintiff can show no exposure to any asbestos Lockheed originally installed on the Trenton because plaintiff has produced no witness with personal knowledge to that effect. Id. Specifically, Lockheed argues that, without personal knowledge, plaintiff's expert opinion of Captain Francis Burger that Mr. McCrossin was exposed to original asbestos creates no genuine issue of material fact. Id. Captain Burger, Lockheed alleges, declared that Mr. McCrossin was "likely" exposed to original asbestos and that the amount of asbestos replaced between the Trenton's construction and Mr. McCrossin's alleged exposure "pales in comparison" to the original amount. Id. Such testimony, Lockheed argues, is indistinguishable from the "more likely than not, " "80 percent, " and "the overwhelming majority" testimony, which Judge Robreno "all deemed impermissible speculation." Id. Accordingly, Lockheed argues that this Court should reconsider this Court's order and dismiss all plaintiff's claims against Lockheed. Id.
a. Causation framework in asbestos action under maritime law
Under maritime law in an asbestos action, the Ninth Circuit has not addressed the causation element. Nelson v. Air & Liquid Sys. Corp., C14-0162JLR, 2014 WL 6982476, at *10 (W.D.Wash. 2014) (citing Cabasug v. Crane Co., 989 F.Supp.2d 1027, 1033 (D. Haw. 2013)). Only the Sixth Circuit appears to have addressed this issue. See Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir.2005). But, in Cabasug, the district court found that Lindstrom was consistent with the Ninth Circuit's guidance on tort law in the maritime context. Cabasug, 989 F.Supp.2d at 1037.
To establish causation under maritime law, the Lindstrom court held that a plaintiff must show for each defendant that (1) the plaintiff was exposed to the defendant's product; and (2) the product was a substantial factor in causing the injury the plaintiff suffered. Lindstrom, 424 F.3d at 492 (citing Stark v. Armstrong World Indus., Inc., 21 F.Appx. 371, 375 (6th Cir.2001)). See also Nelson, 2014 WL 6982476, at *12. The Lindstrom court held that "evidence of substantial exposure for a substantial period of time" can raise "the inference that the product was a substantial factor in causing the injury. Id. Neither "minimal exposure" nor "a mere showing that defendant's product was present somewhere at plaintiff's place of work" is sufficient. Id.
In establishing causation, a plaintiff may rely upon direct evidence that a product to which the plaintiff was exposed was a substantial factor in causing the plaintiff's injury ( Lindstrom, 424 F.3d at 493) or "circumstantial evidence of exposure" ( Stark, 21 Fed.Appx. at 376). See also Nelson, 2014 WL 6982476, at *11 ("[p]laintiffs may raise a genuine issue of material fact concerning exposure by presenting either direct or circumstantial evidence that Mr. Nelson worked on a particular defendant's asbestos-containing product (or near it while others worked on it) and that such work would create the conditions necessary for asbestos exposure") (citing Cabasug, 989 F.Supp.2d at 1037-38).
In this case, Lockheed's motion for reconsideration lacks merit for at least two reasons: first, a plaintiff may prove causation with circumstantial evidence; and, second, Captain Burger stated in his declaration that he has personal knowledge of the relevant events.
b. Under maritime law, plaintiff may raise a genuine issue of material fact regarding asbestos exposure by presenting either direct or circumstantial evidence
Assuming maritime law governs this case, a showing of a lack of any personal knowledge of an alleged asbestos exposure alone is insufficient to prevail on a summary judgment; a plaintiff may raise a genuine issue of material fact by ...