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Varney v. Air & Liquid Systems Corp.

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

June 7, 2019

MARIA VARNEY, Individually and as Personal Representative for the Estate of DONALD VARNEY, Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION; et al., Defendants.

          ORDER ON DEFENDANT ARMSTRONG INTERNATIONAL, INC.'S MOTION FOR SUMMARY JUDGMENT AND MOTION TO EXCLUDE INADMISSIBLE EVIDENCE

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Armstrong International, Inc.'s (“Armstrong”) Motion for Summary Judgment (Dkt. 398) and Armstrong's Motion to Exclude Inadmissible Evidence (Dkt. 426). The Court is familiar with the records and files herein and all documents filed in support of and in opposition to the motions. Oral argument is unnecessary.

         For the reasons stated below, Armstrong's Motion for Summary Judgment (Dkt. 398) should be denied. Armstrong's Motion to Exclude Inadmissible Evidence (Dkt. 426) should be denied as to Exhibit 10, and denied as moot as to Exhibits 9 and 30.

         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, Plaintiff alleges that 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 but not 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(F), infra.

         Plaintiff's interrogatory responses include the following:

Asbestos Exposure/Jobsites
[INTERROGATORY] 11.
Identify each job site or ship (referencing its specific location and the dates of your employment) at which you claim exposure to asbestos-containing products and your occupation or trade at each job site.
ANSWER:
I believe my attorneys have information suggesting that I was exposed to the defendants' asbestos products during my time working as a marine machinist at Puget Sound Naval Shipyard from 1957 to 1962 and from 1968 to 1972, as well as during my time as a marine machinist at Hunter's Point Naval Shipyard from approximately 1965 to 1968. The ships I recall performing work on are below, although I know there were many more:
USS Bon Homme Richard (CV-31);
USS Coontz (DLG-9); USS Coral Sea (CV-43);
USS Iwo Jima (LPH-2); USS King (DLG-10);
USS Mansfield (DD-728);
USS Menhaden (SS-377);
USS Midway (CV-41);
USS Pomfret (SS-391);
USS Ranger (CVA-61);
USS Roosevelt (CV/CVA/CVB-42);
USS Shangri-La (CV-38).

Dkt. 398, at 3.

         Plaintiff's interrogatory responses continue (switching to a third-person narrative), “[Mr. Varney] was exposed to asbestos-containing materials associated with … steam traps manufactured by Armstrong.” Dkt. 398, at 4.

         Mr. Varney passed away from mesothelioma on February 8, 2018 (Dkt. 220-1), before being deposed. Dkt. 245-2. On February 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 “[s]team traps manufactured by Armstrong”. Dkts. 278-1, at 3; and 342.

         Dr. John Maddox, Plaintiff's 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 ...


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