United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT AIR & LIQUID SYSTEMS
CORPORATION'S MOTION FOR SUMMARY JUDGMENT
J. BRYAN UNITED STATES DISTRICT JUDGE.
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.
reasons stated below, A&L's Motion for Summary
Judgment (Dkt. 384) 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.
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.
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.
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.
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, 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.
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.