United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT BNS COMPANY'S MOTION FOR
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant BNS Company's
Motion for Summary Judgment. Dkt. 141. The Court has
considered the pleadings filed in support of and in
opposition to the motion and the file herein. Plaintiffs'
request for oral argument is deemed unnecessary.
case centers on the allegation that Plaintiff Donald Varney
developed mesothelioma, an asbestos-caused condition, from
ambient exposure to asbestos from Defendants' products.
Dkt. 1-2. The Complaint alleges asbestos exposure at Puget
Sound Naval Shipyard in Bremerton, Washington, and the
Hunters Point Naval Shipyard in San Francisco, California,
between 1957 and 1972. Id. at 5. It is also alleged
that Plaintiff D. Varney sustained exposure from
Defendants' products during personal auto repair from
1939 to 1957 and secondary exposure from his father, an auto
mechanic in Seattle, Washington, during the 1940's and
1950's. Id. at 5.
filed the case in Pierce County Superior Court on February 2,
2018, and Defendants removed the case on February 12, 2018.
Dkt. 1-2 at 1. The Complaint names over forty (40)
defendants, some of whom filed Rule 12(b) motions to dismiss,
which the Court has ruled on. Dkts. 122, 133. By Minute Order
issued May 3, 2018, the Court set deadlines, including
February 25, 2019 for completion of discovery, and June 24,
2019 for trial. Dkt. 143.
brings this motion for summary judgment pursuant to
Fed.R.Civ.P. 56. BNS argues that Plaintiffs have failed to
present any evidence of asbestos exposure from products
manufactured, sold, or supplied by BNS. Dkt. 141 at 3. In
support of its motion, counsel to BNS has submitted a copy of
Plaintiffs' Answers to Interrogatories in a prior
lawsuit, which was dismissed without prejudice. Dkt. 142-2.
See Donald Varney and Maria Varney v. Air & Liquid
Systems Corp., W.D.Wash. Cause No. 2:17-cv-01902-JLR,
Dkt. 116 (dismissal without prej. on Feb. 2, 2018). In this
discovery response, dated January 16, 2018, Plaintiffs
identify asbestos-containing products, such as gaskets and
boilers, and identify the names of manufacturers, sellers,
and distributors, such as John Crane, Westinghouse and Foster
Wheeler. Id. 18, 19. The companies named in
Plaintiffs' Answers to Interrogatories do not include
BNS' Reply, BNS has attached Plaintiffs' Responses to
BNS' First Set of Interrogatories and Requests for
Production, Dkt. 161-1, wherein Plaintiffs do not identify a
specific BNS product or timeframe. See id. at 13-18.
BNS represents that Plaintiffs have produced other discovery
that does not mention or identify BNS. Dkt. 161 at ¶2.
Fed.R.Civ.P. 56 (d):
If a nonmovant shows by affidavit or declaration that, for
specified reasons, it cannot present facts essential to
justify its opposition [to a motion for summary judgment],
the court may: (1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to
take discovery; or (3) issue any other appropriate order.
here, the Court should exercise its discretion under Rule
56(d) to deny BNS' motion without prejudice as premature.
In support of BNS' motion for summary judgment, BNS has
submitted discovery and requests dismissal, but Plaintiffs
have articulated their need for additional time to complete
discovery. They have requested that the Court protect their
“right to conduct [the] case within the schedule . . .
agreed upon by the parties, including a reasonable time to
conduct discovery.” Dkt. 158 at 3. While case
management ultimately falls within the purview of judicial
discretion and is not a matter of “right, ” BNS
has not articulated any convincing basis to depart from the
current scheduling order. Nearly eight months remain for
discovery. Plaintiffs should be given the chance to pursue
discovery on BNS and others to develop any issues of material
fact. The motion for summary judgment should be denied
Reply argues that Plaintiffs have no evidence to defeat
BNS' motion, and Plaintiffs have failed to show what
specific facts they hope to discovery. Dkt. 160 at 1, 2.
Plaintiffs' counsel has only proffered “pure
speculation and conjecture, ” BNS argues. Id.
BNS requests that the following statement by Plaintiffs'
counsel be stricken:
Similarly, Plaintiffs intend to seek discovery related to the
asbestos-containing products manufactured, sold, and/or
distributed by BNS and when and where Don Varney was exposed
to BNS products.
Dkt. 158-1 at ¶7. According to BNS, “this lacks
foundation, assumes facts not in evidence and is pure
speculation given there has been no evidence produced or
testimony by Plaintiff that he ...