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Varney v. Air & Liquid Systems Corp.

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

May 6, 2019

DONALD VARNEY AND MARIA VARNEY, husband and wife, Plaintiffs,
v.
AIR & LIQUID SYSTEMS CORPORATION; et al., Defendants.

          ORDER GRANTING DEFENDANT GOODYEAR TIRE AND RUBBER COMPANY'S MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant Goodyear Tire and Rubber Company's (“Goodyear”) Motion for Summary Judgment Motion for Summary Judgment. Dkt. 285. The Court is familiar with the records and files herein and all documents filed in support of in opposition to the motion.

         For the reasons stated below, Goodyear's Motion for Summary Judgment (Dkt. 285) should be granted.

         I. BACKGROUND

         The 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.

         In the 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 § II(D), infra.

         Mr. 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 Cranite gaskets and packing. Dkt. 342. Goodyear was allegedly a supplier to Crane Co. of gaskets that were resold as Cranite. Dkt. 339, at 3.

         Dr. 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.

         Numerous defendants, including Goodyear, 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.

         The 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, at 1.

         Goodyear argues that, because the affidavit and opinion are inadmissible, pursuant to FRCP 56, “there is no admissible evidence Mr. Varney inhaled asbestos from a Goodyear Tire gasket[.]” Dkt. 285, at 1. Goodyear also argues that “there is insufficient evidence asbestos from a Goodyear Tire gasket was a proximate cause of Mr. Varney's mesothelioma.” Dkt. 285, at 1.

         II. DISCUSSION

         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 (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).

         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. 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).

         B. WASHINGTON STATE ...


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