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Yaw v. Air & Liquid Systems Corp.

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

April 18, 2019

DONALD ARTHUR YAW and MARIETTA DIANNE YAW, Husband and Wife, Plaintiffs,



         This matter comes before the Court on Defendants General Electric Company (“GE”), CBS Corporation (“Westinghouse”), and Foster Wheeler Energy Corporation's (“Foster Wheeler”) (collectively “Defendants”) motion for summary judgment. Dkt. 95. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby reserves ruling and requests supplemental briefing on the motions for the reasons stated herein.


         Donald Arthur Yaw (“Mr. Yaw”) worked at Puget Sound Naval Shipyard (“PSNS”) in Bremerton, Washington from approximately 1964 to 2001. Dkt. 1, ¶ 28.B. Mr. Yaw worked as an apprentice from 1964 to 1968, as a shipfitter from 1968 to 1980, and as a structural planner and estimator from 1980 to 2001. Id. Mr. Yaw was exposed to asbestos-containing products and products manufactured for foreseeable use with asbestos products during his work at PSNS. Id. 28. Mr. Yaw was diagnosed with mesothelioma on March 26, 2018, id. 28.F, and died on September 29, 2018, Dkt. 140 at 2 (citing Dkt. 141-1 at 2).


         On May 21, 2018, Plaintiffs Mr. Yaw and Marietta Dianne Yaw (“Mrs. Yaw”) filed a complaint against the Defendants named in this order as well as nineteen other entities for personal injuries Mr. Yaw sustained due to exposure to asbestos between 1964 and 2001. Dkt. 1.[1]On January 31, 2019, Defendants filed a motion for summary judgment. Dkt. 95. On February 19, 2019, Plaintiffs responded. Dkt. 106. On February 22, 2019, Defendants replied. Dkt. 111.


         On March 21, 2019, Mrs. Yaw filed a motion for leave to amend her complaint to add a claim for wrongful death. Dkt. 140 at 3. While the deadline for amended pleadings in this case was October 4, 2018, Dkt. 87, Mr. Yaw passed away on September 29, 2018, just five days before the deadline, Dkt. 140 at 3. Mrs. Yaw explains that she attempted to negotiate a stipulation to amend the complaint but was unsuccessful, leading to the need for her motion. Dkt. 140 at 3. No defendant, whether named in this Order or otherwise, filed opposition to the motion. “[W]hen a party seeks to amend a pleading after the pretrial scheduling order's deadline for amending the pleadings has expired, the moving party must satisfy the ‘good cause' standard of Federal Rule of Civil Procedure 16(b)(4), which provides that ‘[a] schedule may be modified only for good cause and with the judge's consent,' rather than the liberal standard of Federal Rule of Civil Procedure 15(a).” In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013). The Court finds that the timing of Mr. Yaw's passing clearly constitutes good cause.

         If the Court finds good cause for leave to amend under Rule 16(a), the Court next considers pursuant to Fed.R.Civ.P. 15 whether the amendment shows or would create “(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint.” Allen v. City of Beverly Hills, 911 F.3d 367, 373 (9th Cir 1990). As noted, no defendant has opposed the motion. Under the Local Rules, the Court may consider a failure to respond as an admission that the motion has merit. Local Rules W.D. Wash. LCR 7(b)(2). The Court finds no indication of bad faith, prejudice to the opposing party or futility of amendment, and Mrs. Yaw has not previously amended her complaint. While there was some delay before the filing of this motion on March 21, 2019, the Court finds no indication that it was undue. Therefore, the Court will grant the motion to amend.[2]


         Mrs. Yaw brings claims including products liability claims on both negligence and strict liability theories, claims for conspiracy and premises liability, claims under “the former RCW 49.16.030, and any other applicable theory of liability, ” and “if applicable, RCW 7.72 et seq.” Dkt. 1, ¶ 34. Mrs. Yaw'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. See Dkt. 95 at 9. 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 And ...

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