United States District Court, W.D. Washington, Tacoma
SHERRI L. DEEM, individually and as Personal Representative of the Estate of THOMAS A. DEEM, deceased, Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendants FMC Corporation
(“FMC”) and McNally Industries, Inc.'s
(“McNally”) motion for summary judgment. Dkt.
The Court has considered the pleadings filed in support of
and in opposition to the motion and the remainder of the file
and hereby grants the motion to the extent Plaintiff's
claims are brought under Washington law for the reasons
PROCEDURAL AND FACTUAL BACKGROUND
A. Deem (“Mr. Deem”) worked at the Puget Sound
Naval Shipyard (“PSNS”), from 1974 to 1981 as an
apprentice and journeyman outside machinist. Dkt. 1, Â¶ 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 on
February 20, 2015 and died on July 2, 2015. Dkt. 80 at 2.
November 20, 2017, Plaintiff Sherri L. Deem (“Mrs.
Deem”), on her own behalf and on behalf of Mr.
Deem's estate, filed a complaint for personal injury and
wrongful death, alleging that while working at PSNS Mr. Deem
was exposed to asbestos and/or asbestos-containing products
manufactured and/or sold by Defendants including Air &
Liquid Systems Corp., CBS Corp. f/k/a Westinghouse Electric,
Crane Co., Foster Wheeler Energy Corp., General Electric Co.,
IMO Industries, Inc., and Warren Pumps, LLC. Dkt. 1. On June
28, 2018, Mrs. Deem filed a separate action for wrongful
death against Defendants Armstrong International, Inc.,
Anchor/Darling Valve Co., BW/IP International, Inc., Blackmer
Pump Co., Clark-Reliance Corp., Cleaver Brooks, Inc., Crosby
Valve LLC, Flowserve US, Inc., FMC, Gardener Denver, Inc.,
Goulds Pumps, Inc., Grinnell LLC, Hopeman Brothers, Inc., ITT
LLC, Ingersoll-Rand Co., Jerguson Gage & Valve Co., John
Crane, Inc., McNally, Velan Valve Corp., Viad Corp., Viking
Pump., Inc., Weir Valves & Control USA, Inc., and The
William Powell Company in Deem v. Armstrong Int 'l,
Inc., et al., Cause No. 3:18-cv-05527 BHS, Dkt.
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.
the complaint against the first set of defendants was titled
“Complaint for Personal Injury and Wrongful Death,
” Dkt. 1 at 1, and the complaint against the second set
of defendants was titled “Complaint for Wrongful Death,
” both complaints contain the same product liability
claims including negligence, strict products liability, and
“any other applicable theory of liability, ”
including “if applicable RCW 7.72 et seq., ” and
allege that the defendants' actions or omissions
“proximately caused severe personal injury and other
damages to Plaintiffs decedent, including his death.”
Dkt. 1, Â¶Â¶ 17, 19; Deem v. Armstrong Int 'l, Inc., et
al, Cause No. 3:18-cv-05527 BHS, Dkt. 1, Â¶Â¶ 34, 36. The
complaints do not specify whether Mrs. Deem brings her claims
pursuant to Washington law only, or also pursuant to maritime
law. Both appear applicable to her claims.
February 27, 2019, FMC and McNally filed this motion for
summary judgment. Dkt. 69. Between March 8, 2019, and March
26, 2019, Defendants BW/IP, Inc., The William Powell Company,
Hopeman Brothers, Inc., Armstrong International, Inc.,
Blackmer Pump Company, Flowserve US, Inc., and John Crane,
Inc. all filed notices of joinder in the motion. Dkts. 75,
77, 78, 81, 82, 83, 91. On March 18, 2019, Mrs. Deem responded.
Dkt. 80. On March 22, 2019, FMC and McNally replied. Dkt. 85.
BW/IP, Inc. also replied on March 22, 2019. Dkt. 86.
move for summary judgment on the basis that “[w]hen Mr.
Deem died on July 3, 2015, he did not have a valid subsisting
cause of action against [Defendants], as those entities had
not been named - and thereby claims against them preserved
for statute of limitations purposes - in Mr. Deem's
personal injury lawsuit.” Dkt. 69 at 4.
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).
Merits of Summary Judgment
of this motion requires parsing the overlap of claim accrual
and statutes of limitations for personal injury and wrongful
death claims in Washington. Defendants' arguments are not
entirely consistent with the facts in the case, but Mrs.
Deem's arguments do not successfully distinguish her
circumstances from the Washington Supreme Court's
construction of Washington law in Deggs v. Asbestos Corp.
Ltd., 186 Wn.2d 716 (2016) (en banc)
(“Deggs”). Ultimately, the Court concludes
that the outcome Defendants seek, barring Mrs. ...