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Deem v. Air & Liquid Systems Corp.

United States District Court, W.D. Washington, Tacoma

April 18, 2019

SHERRI L. DEEM, Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

          ORDER RESERVING RULING AND REQUESTING SUPPLEMENTAL BRIEFING ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

          BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE

         This 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 (“Westinghouse”) (collectively “Defendants”) motion for summary judgment, Dkt. 65.[1] 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.

         I. PROCEDURAL HISTORY

         On 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.

         II. FACTUAL BACKGROUND

         Mr. 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.

         III. DISCUSSION

         Mrs. 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.

         A. Summary Judgment Standard

         Summary 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. 1987).

         The 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).

         B. Timeliness of the Motions

         Before 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. 97.

         Fed. R. 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 ...


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