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McMann v. Air & Liquid Systems Corp.

United States District Court, Western District of Washington, Tacoma

March 3, 2015

DONNA McMANN, individually and as Personal Representative of the heirs and estate of Alan McMann, Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

ORDER GRANTING DEFENDANT’S RENEWED MOTION FOR SUMMARY JUDGMENT

BENJAMIN H. SETTLE United States District Judge

This matter comes before the Court on Defendant SB Decking, Inc.’s (“SB Decking”) renewed motion for summary judgment. Dkt. 114. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

I. PROCEDURAL HISTORY

On July 16, 2013, Plaintiffs Alan and Donna McMann (“McMann”) filed a complaint alleging that Mr. McMann was exposed to asbestos while working for numerous defendants including SB Decking. Dkt. 59, Ex. 1.

[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, SB Decking moved for summary judgment. Dkt. 65. On December 2, 2014, the Court granted SB Decking’s motion barring claims of civil conspiracy, spoliation, and willful or wanton misconduct. Dkt. 80. The Court denied SB Decking’s motion on the issue of McMann’s failure to show causation. Id.

On December 15, 2014, SB Decking filed motions in limine to exclude evidence of products at Mr. McMann’s worksite that were not at issue. Dkt. 85. On December 31, 2014, the Court issued an order requesting additional briefing on whether maritime law applies to this case. Dkt. 111.

On January 13, 2015, SB Decking filed an opening brief seeking summary judgment. Dkt. 114. On January 20, 2015, McMann responded. Dkt. 117. On January 22, 2015, SB Decking replied. Dkt. 118.

II. FACTUAL BACKGROUND

On May 8, 2013, Mr. McMann was diagnosed with mesothelioma caused by exposure to asbestos. Dkt. 59, Ex. 1 at 4. Mr. McMann, a veteran of the United States Navy, served aboard the USS Firedrake, an ammunition supply ship, from April 30, 1962 until June 18, 1965, when he was honorably discharged from active service. Dkt. 67, Ex. 1 at 5. On December 24, 2014, Mr. McMann passed away from mesothelioma. Dkt. 114 at 2.

On the Firedrake, Mr. McMann worked as a mess cook then spent the remainder of his time as a machinist’s mate in the engine room. Dkt. 117 at 5. McMann alleges that he was exposed to asbestos dust while dry dock contractors in San Francisco replaced nonskid material on the decks of the Firedrake. Mr. McMann states that he inhaled the dust within ten feet of the repair. Dkt.117, Ex. 2 at 7.

III. DISCUSSION

A. Summary Judgment Standard


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