United States District Court, W.D. Washington, Tacoma
SHERRI L. DEEM, Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
ORDER RESERVING RULING AND REQUESTING SUPPLEMENTAL
BRIEFING ON DEFENDANTS' MOTIONS FOR SUMMARY
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant General Electric
Company's (“GE”) motion for summary judgment,
Dkt. 61, Defendant Foster Wheeler Energy Corporation's
(“Foster Wheeler”) motion for summary judgment,
Dkt. 63, and Defendant CBS Corporation's
“Defendants”) motion for summary judgment, Dkt.
The Court has considered the pleadings filed in support of
and in opposition to the motions and the remainder of the
file and hereby reserves ruling and requests supplemental
briefing on the motions for the reasons stated herein.
November 20, 2017, Plaintiff Sherri L. Deem (“Mrs.
Deem”) filed a complaint on her own behalf and on
behalf of the Estate of Thomas A. Deem alleging that while
working at the Puget Sound Naval Shipyard
(“PSNS”), Mr. Deem was exposed to asbestos and/or
asbestos-containing products manufactured and/or sold by
Defendants including GE, Foster Wheeler, and Westinghouse.
Dkt. 1. Mrs. Deem sued additional defendants in a separate
action on June 28, 2018, in Deem v. Armstrong Int'l
Inc. et al., Cause No. 3:18-cv-05527 BHS. On December
13, 2018, that case was consolidated with the instant case
for the purposes of discovery and for pretrial matters
through summary judgment. Dkt. 52. On February 7, 2019, GE,
Foster Wheeler, and Westinghouse filed motions for summary
judgment. Dkts. 61, 63, 65. On February 25, 2019, Mrs. Deem
responded. Dkt. 67. On March 1, 2019, GE, Foster Wheeler, and
Westinghouse jointly replied. Dkt. 71.
Deem worked at PSNS from 1974 to 1981 as an apprentice and
journeyman outside machinist. Dkt. 1, ¶ 14.C. Mr. Deem
was exposed to asbestos-containing products during his
employment from 1974 through approximately 1979. Id.
Mr. Deem was diagnosed with mesothelioma in February 2015.
Id. ⁋ 14.F. Mr. Deem subsequently died of
mesothelioma. Id. ¶ 19.
Deem brings product liability claims including negligence,
strict products liability, and “the former RCW
49.16.030, and any other applicable theory of liability,
” including “if applicable RCW 7.72 et seq.,
” Washington's Product Liability Act. Dkt. 1,
¶ 17. Mrs. Deem's complaint does not specify whether
her claims are pursuant to Washington law only, or also
pursuant to maritime law. Both appear applicable to her
claims. In maritime tort cases, as distinct from state-law
tort cases, federal courts “act as common-law court[s],
subject to any controlling statutes enacted by
Congress.” Air & Liquid Systems Corp. v.
DeVries, 139 S.Ct. 986, 994 (2019)
(“DeVries”) (citing Exxon Shipping
Co. v. Baker, 554 U.S. 471, 507-08 (2008)). The Supreme
Court's recent decision in DeVries announced a
new legal standard for the duty to warn in maritime torts.
DeVries, 139 S.Ct. at 991. This decision was
announced on March 19, 2019, after the parties had submitted
the briefing on the motions for summary judgment at issue. As
will be discussed in more detail below, the Court will
require supplemental briefing addressing this new precedent.
Summary Judgment Standard
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 (1986).
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 nonmoving 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
U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
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. Elec.
Serv., 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. Elec. Serv., Inc., 809 F.2d at 630
(relying on Anderson, 477 U.S. at 255). Conclusory,
nonspecific statements in affidavits are not sufficient, and
missing facts will not be presumed. Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 888-89 (1990).
Timeliness of the Motions
addressing the topics for supplemental briefing, the Court
will address the timeliness issue Mrs. Deem raises in
response to Defendants' motions. Mrs. Deem argues that
because fact discovery is ongoing in this case until May 28,
2019, and she still seeks facts essential to justify her
opposition to summary judgment, the Court should deny
Defendants' motions as premature. Dkt. 67. Discovery was
initially scheduled to close in this case on November 26,
2018 but was extended once following the addition of Cause
No. 3:18-cv-05527 BHS and again per stipulation of the
parties and is currently set to close on July 2, 2019. Dkt.
Civ. P. 56(d) provides that “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its
opposition” to summary judgment, the reviewing court
may deny the motion, defer consideration, allow time for the
nonmovant to obtain affidavits, declarations, or discovery,
or “issue any other appropriate order.” A party
opposing summary judgment in these circumstances “must
make ‘(a) a timely application which (b) specifically
identifies (c) relevant information, (d) where there is some
basis for believing that the information sought actually
exists.'” Emp'r Teamsters Local Nos. 175