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Deem v. Air & Liquid Systems Corp.

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

April 25, 2019

SHERRI L. DEEM, individually and as Personal Representative of the Estate of THOMAS A. DEEM, deceased, Plaintiff,



         This matter comes before the Court on Defendants FMC Corporation (“FMC”) and McNally Industries, Inc.'s (“McNally”) motion for summary judgment. Dkt. 69.[1] 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 stated herein.


         Thomas 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, ¶ 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.

         On 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. 1.[2] 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.

         Though 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, ¶¶ 17, 19; Deem v. Armstrong Int 'l, Inc., et al, Cause No. 3:18-cv-05527 BHS, Dkt. 1, ¶¶ 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.

         On 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.[3] 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.


         Defendants 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.

         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. Merits of Summary Judgment

         Resolution 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”).[4] Ultimately, the Court concludes that the outcome Defendants seek, barring Mrs. ...

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