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Woo v. General Electric Co.

Court of Appeals of Washington, Division 1

April 3, 2017

YEANNA WOO, Personal Representative for the Estate of YUEN WING WOO and his Surviving Spouse, JEAN 01 WOO, Appellants,
v.
GENERAL ELECTRIC COMPANY, Respondent, ASBESTOS CORP. LTD., CBS CORPORATION (fka Viacom, Inc., successor by merger with CBS Corporation fka Westinghouse Electric Corporation), FOSTER WHEELER ENERGY CORPORATION, FRASER'S BOILER SERVICE, INC., LOCKHEED SHIPBUILDING COMPANY, METROPOLITAN LIFE INSURANCE COMPANY, SABERHAGEN HOLDINGS, INC., TODD SHIPYARDS CORP., Defendants.

          Schindler, J.

         As a general rule under common law and strict liability principles, a manufacturer does not have a duty to warn of the hazards of a product the manufacturer did not place in the stream of commerce. But there are exceptions to this general rule. Yuen Wing Woo worked as an engineer for the Navy and on military transportation ships in the 1940s and 1950s. Woo died of mesothelioma. The personal representative of the Estate of Yuen Wing Woo, Yeanna Woo, and Woo's surviving spouse, Jean Oi Woo (collectively, the Estate), filed a wrongful death and personal injury lawsuit against General Electric Company (GE). GE designed, manufactured, and supplied steam turbines used on Navy and military transportation ships in the 1940s and 1950s. Reasonable inferences from the evidence show that in the 1940s and 1950s, GE steam turbines required the use of thermal heat insulation, gaskets, and packing to properly function and GE knew only asbestos-containing insulation, gaskets, and packing were available. The evidence also creates the reasonable inference that Woo was exposed not only to asbestos-containing insulation and packing but also gaskets originally supplied by GE. We reverse summary judgment dismissal and remand for trial.

         Wrongful Death Personal Injury Lawsuit

         Yuen Wing Woo served in the United States Navy from 1943 to 1946. During World War II, Woo worked as a machinist aboard the destroyer USS George K. MacKenzie. After the war, Woo joined the Military Sea Transportation Service (MSTS). Woo worked as a third assistant engineer aboard the cargo ship USNS PVT John R. Towle from December 1949 to February 1950. Woo worked aboard the USNS James O'Hara from March 1951 until January 1952.

         General Electric Company (GE) designed, manufactured, and supplied the steam turbines in the 1940s and 1950s that were used aboard the USS MacKenzie, USNS Towle, and USNS O'Hara.

         Woo died of mesothelioma in 2009. The personal representative of the Estate of Yuen Wing Woo, Yeanna Woo, and Woo's surviving spouse, Jean Oi Woo (collectively, the Estate), filed a wrongful death and personal injury lawsuit against GE.

         GE filed a motion for summary judgment dismissal. GE argued there was no evidence GE supplied or installed asbestos-containing products used in conjunction with the steam turbines on the USS MacKenzie, USNS Towle, or USNS O'Hara. GE asserted that as a matter of law under Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008), and Braaten v. Saberhaqen Holdings. 165 Wn.2d 373, 198 P.3d 493 (2008), GE did not have a duty to warn about the hazards of asbestos-containing products it did not manufacture, sell, or supply. GE also argued the Estate could not prove causation.

         GE submitted excerpts from the deposition of GE corporate representative David Skinner. Skinner worked as an engineer for GE from 1967 to 2005. Skinner testified he reviewed the technical drawings for the steam turbines that GE manufactured. Based on his review, Skinner said there was "no indication at all that General Electric was involved in either the procurement, the design, or the installation of thermal insulation" and "no thermal insulation [was] provided" by GE. Skinner said that either the contract with the shipowner or shipyard and "the standard practice" determined the scope of work performed by the GE field engineers. Skinner testified the "standard practice, as specified in numerous contracts as well as the specifications, is that the insulation is the shipyard's responsibility." Skinner said the "standard practice on all marine applications is that the shipyard would provide all the insulation for the steam turbine and for the remainder of the ship." Skinner also testified that the "predominance of the work" on steam turbines did not require "any opening of the steam turbine, removal of any insulation, or anything to that effect."

         In opposition, the Estate argued that under the exception in Macias v. Saberhaqen Holdings. Inc., 175 Wn.2d 402, 282 P.3d 1069 (2012), GE had a duty to warn about the hazards of the asbestos-containing products that had to be used with the steam turbines. The Estate presented evidence that GE knew only asbestos-containing thermal insulation, gaskets, and packing were available in the 1940s and 1950s and were necessary for the proper functioning of the steam turbines. The Estate also presented evidence that Woo was exposed to the asbestos-containing products. The Estate submitted a number of documents including Navy service and MSTS employment records, a "Technical Information Letter" and copyright issued by GE in 1989, excerpts from the deposition of Retired Reserve Navy Captain Francis Burger, the declaration and deposition testimony of former marine engineer Everett Cooper, the declaration of industrial hygiene expert Dr. Nicholas Heyer, and the declaration of medical expert Dr. Samuel Hammar.

         The evidence showed that before 1975, ships "had extensive asbestos insulating material aboard, " and in 1989, GE issued a Technical Information Letter (TIL) on "Asbestos Containing Materials in Turbine-Generators Applicable to: Steam Turbine-Generators." The portion of the TIL distributed to GE employees states the purpose of the letter is "to advise customers of the potential locations of asbestos-containing materials" and provide information on "non-asbestos substitutes which are now commercially available." The TIL provides information to "assist in answering customer questions regarding the elimination of the asbestos containing material." The TIL states that heat retention insulation for new GE steam turbines is "usually purchased and field installed by GE to functional factory specifications."

Heat retention materials for new installations are usually purchased and field installed by GE to functional factory specifications. In some cases this material has been in the customer's scope of supply.

         In the portion distributed to customers, the TIL describes the purpose of the letter as follows:

The purpose of this Technical Information Letter is to inform our customers of the possible locations of asbestos containing materials in General Electric steam turbine-generators manufactured for Utility and Industrial applications.

         The TIL describes the necessity of using asbestos-containing heat retention products on steam turbines:

The properties of asbestos make it desirable for applications such as in heat retention and sound deadening materials, electrical insulation systems, gasketing, stem packings, and shaft seals. Non-asbestos containing materials with equivalent needed properties have not always been available for many applications. As health hazards of asbestos were recognized, new non-asbestos materials for all turbine generator applications became available that enabled the current turbine-generator shipments to be asbestos free.

         The TIL states the "bulk of asbestos" used with the turbines was heat retention insulation that "has been typically purchased to functional specifications from insulation vendors and field installed." However, the TIL states that after "non-asbestos equivalent materials became available" in the early 1970s, "GE specifications were subsequently revised to prohibit the use of asbestos." The TIL notifies customers that "[s]everal types of asbestos free material are now commercially available for this application."

         The TIL also describes the necessity of gaskets and states that before the 1970s, only asbestos-containing gaskets were available.

Flat sheet gaskets are used extensively for low pressure and low temperature sealing applications. As with the spiral wounds, asbestos containing materials have been used exclusively and the industry has only recently developed suitable non-asbestos replacements. Because of the wide range of environments ... where flat gaskets are used, several different asbestos containing materials have been utilized. Similarly, the industry has developed a variety of non-asbestos replacements but none are exact substitutes. Typically the non-asbestos products cannot be directly substituted for the asbestos gaskets.

         In a deposition excerpt, Captain Burger testified that the Navy followed the directions of the equipment manufacturer for insulation of steam turbines.

Q. Are you saying that your experience is that when United States Navy ships are being built for the Navy, that the equipment suppliers actually go aboard those ships and supervise the Navy as to what they do with respect to building those ships?
A. When it comes to their equipment, yes.
Q. ... And is it your opinion that the equipment suppliers direct the Navy with respect to proper procedures on how to insulate that equipment?
A. They would have insured that their direction and their documentation, their insulation drawings were followed, yes.

         Cooper worked as a third assistant engineer on MSTS ships "built in the era during and shortly after World War II." Cooper testified that "much of Mr. Woo's work in the Navy and particularly at MSTS, would have been in the various ships' engine spaces where the turbines were located."

         Cooper testified the steam turbines used aboard Navy and MSTS ships in the 1940s and 1950s "require[d]" exterior insulation in order to "function properly." Cooper testified the turbines required "asbestos packing on the nozzle valves" and "asbestos ...


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