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Varney v. Air & Liquid Systems Corporation

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

May 22, 2019

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

          ORDER GRANTING DEFENDANT AIR & LIQUID SYSTEMS CORPORATION'S MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on Defendant Air & Liquid Systems Corporation's (“A&L”) Motion for Summary Judgment. Dkt. 384. 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, A&L's Motion for Summary Judgment (Dkt. 384) 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.

         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 (apparently not including A&L). Dkt. 342.

         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.

         In their respective motions for summary judgment and in additional briefs, numerous defendants, including A&L, 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.

         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.

         A&L argues that, pursuant to FRCP 56, because the affidavit and opinion are inadmissible, Plaintiffs have “no admissible evidence to meet [their] burden of proof that [Mr. Varney] was actually exposed to any asbestos-containing product for which Defendant is legally responsible.” Dkt. 384, at 1. A&L continues, “Even if Plaintiff could somehow produce evidence of exposure to any asbestos-containing product manufactured or sold by Defendant …, Plaintiff is still unable to demonstrate that such exposure was a substantial factor in causing [Mr. Varney's] illness.” Dkt. 384, at 2.

         Plaintiffs filed nothing in opposition to A&L's instant motion for summary judgment. A&L filed a reply in support of its unopposed instant motion for summary judgment. Dkt. 414.

         II. DISCUSSION

         A. SUMMARY ...


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