United States District Court, W.D. Washington, Tacoma
ORDER ON DEFENDANT JOHN CRANE INC.'S MOTION FOR
SUMMARY JUDGMENT AND MOTION TO STRIKE
J. BRYAN UNITED STATES DISTRICT JUDGE
matter comes before the Court on Defendant John Crane
Inc.'s (“JCI”) Motion for Summary Judgment
(Dkt. 257) and JCI's Motion to Strike (Dkt. 326). The
Court is familiar with the records and files herein and all
documents filed in support of in opposition to the motion.
reasons stated below, JCI's Motion for Summary Judgment
(Dkt. 257) should be granted, and JCI's Motion to Strike
(Dkt. 326) should be denied as moot.
above-entitled action was commenced in Pierce County Superior
Court on February 2, 2018. Dkt. 1, at 2. Notice of removal
from the state court was filed with this Court on February
12, 2018. Dkt. 1.
operative complaint, Plaintiffs allege that Plaintiff Donald
Varney (“Mr. Varney”), now deceased, was exposed
to asbestos while working as a marine machinist at the Puget
Sound Naval Shipyard and Hunter's Point Naval Shipyard,
and through personal automotive exposure and from his
father's automotive exposure. Dkt. 342, at 5.
“Plaintiffs claim liability based upon the theories of
product liability, including not but limited to negligence,
strict product liability …, conspiracy, premises
liability, the former RCW 49.16.030, and any other applicable
theory of liability, including, if applicable, RCW 7.72 et
seq.” Dkt. 342, at 5; see generally §
Varney passed away from mesothelioma on February 8, 2018
(Dkt. 220-1), before being deposed. Dkt. 245-2. On December
7, 2018, one day before his passing, Mr. Varney apparently
signed an affidavit purportedly identifying several
asbestos-containing materials that he worked with and that
were manufactured by various defendants, including gaskets
and packing from JCI. Dkt. 342.
John Maddox, Plaintiffs' causation expert in this matter,
reviewed Mr. Varney's medical records and his
aforementioned affidavit. Dkt. 309, at 4. Dr. Maddox,
relying, in part, on Mr. Varney's affidavit, opined that
Mr. Varney's “lethal malignant pleural mesothelioma
was caused by his cumulative asbestos exposures to a variety
of component exposures.” Dkt. 313-11, at 4.
defendants, including JCI, in their respective motions for
summary judgment and in additional briefs regarding the
admissibility of Mr. Varney's affidavit and Dr.
Maddox's opinion, argued that the affidavit, and Dr.
Maddox's opinion relying thereon, were inadmissible as
evidence. See, e.g., Dkts. 217; 219; 237; 257; 281;
285; 363; 378; 380; 382; and 384.
Court invited additional briefing regarding the admissibility
of Mr. Varney's affidavit and Dr. Maddox's opinion.
Dkt. 255. Upon review of the additional briefing, the Court
ordered that an evidentiary hearing be held to determine the
admissibility of the affidavit and opinion. Dkt. 300. After a
mini-trial lasting more than two days, the Court held that
the affidavit and opinion are inadmissible as evidence in
regard to summary judgment motions and at trial. Dkt. 361.
argues that, because the affidavit and opinion are
inadmissible, pursuant to FRCP 56, Plaintiffs have “no
admissible evidence supporting a reasonable inference
Plaintiff Donald Varney worked with any asbestos-containing
products attributable to JCI.” Dkt. 257, at 1.
Additionally, in JCI's reply in support of its motion for
summary judgment, JCI moves to strike Mr. Varney's
affidavit as inadmissible hearsay. Dkt. 326, at 2.
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 (1985).
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(d). 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. Service Inc. v. Pacific
Electrical Contractors Association, 809 F.2d 626, 630
(9th Cir. 1987).
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. Elect.
Service 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. Elect. Service Inc., 809 F.2d at 630
(relying on Anderson, supra). Conclusory,
non-specific statements in affidavits are not sufficient, and
“missing facts” will not be
“presumed.” Lujan v. National Wildlife
Federation, 497 U.S. 871, 888-89 (1990).
WASHINGTON STATE SUBSTANTIVE LAW APPLIES
the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64
(1938), federal courts sitting in diversity jurisdiction
apply state substantive law and federal procedural law.