United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT VELAN VALVE CORP.'S
MOTION FOR SUMMARY JUDGMENT
J. BRYAN UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Velan Valve
Corp.'s (“Velan”) Motion for Summary
Judgment. Dkt. 382. The Court is familiar with the records
and files herein and all documents filed in support of in
opposition to the motion. Oral argument is unnecessary.
reasons stated below, Velan's Motion for Summary Judgment
(Dkt. 412) should be granted.
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 (apparently not
naming specifically Velan). 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 Velan, in their respective motions for
summary judgment and in additional briefs, raised issues
regarding the admissibility of Mr. Varney's affidavit and
Dr. Maddox's opinion. See, e.g., Dkts. 217; 219;
237; 257; 281; 285; 363; 372; 378; 380; 382; and 384. They
argued that the affidavit, and Dr. Maddox's opinion
relying thereon, were inadmissible as evidence. Id.
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
argues that, because the affidavit and opinion are
inadmissible, pursuant to FRCP 56, Plaintiffs have have
“no admissible evidence to meet their burden of proof
that [Mr. Varney] was actually exposed to any
asbestos-containing product for which Velan is legal
responsible.” Dkt. 382, at 1. Velan continues,
“Even if Plaintiff could somehow produce evidence of
exposure to any asbestos-containing product manufactured by
Velan …, Plaintiff is still unable to demonstrate that
such exposure was a substantial factor in causing [Mr.
Varney's] illness.” Dkt. 382, at 2.
filed a response in opposition to Velan's instant motion
for summary judgment. Dkt. 408. Velan filed a reply in
support of its motion for summary judgment. Dkt. 412.
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 ...