United States District Court, W.D. Washington, Tacoma
SHERRI L. DEEM, individually and as Personal Representative of the Estate of THOMAS A. DEEM, deceased, Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
ORDER GRANTING DEFENDANT CLEAVER-BROOKS'S MOTION
FOR SUMMARY JUDGMENT
Benjamin H. Settle United States District Judge.
matter comes before the Court on Defendant Cleaver-Brooks,
Inc.'s (“Cleaver-Brooks”) motion for summary
judgment. Dkt. 106. The Court has considered the pleadings
filed in support of and in opposition to the motion and the
remainder of the file and hereby grants the motion for the
reasons stated herein.
PROCEDURAL AND FACTUAL BACKGROUND
A. Deem (“Mr. Deem”) worked at the Puget Sound
Naval Shipyard (“PSNS”), from 1974 to 1981 as an
apprentice and journeyman outside machinist. Dkt. 1, ⁋
14.C. Mr. Deem was exposed to asbestos-containing products
during his employment from 1974 through approximately 1979.
Id. Mr. Deem was diagnosed with mesothelioma on
February 20, 2015 and died on July 2, 2015. Dkt. 80 at 2.
November 20, 2017, Plaintiff Sherri L. Deem (“Mrs.
Deem”), on her own behalf and on behalf of Mr.
Deem's estate, filed a complaint for personal injury and
wrongful death, alleging that while working at PSNS Mr. Deem
was exposed to asbestos and/or asbestos-containing products
manufactured and/or sold by Defendants including Air &
Liquid Systems Corp., CBS Corp. f/k/a Westinghouse Electric,
Crane Co., Foster Wheeler Energy Corp., General Electric Co.,
IMO Industries, Inc., and Warren Pumps, LLC. Dkt. 1. On June
28, 2018, Mrs. Deem filed a separate action for wrongful
death against another twenty-three companies including
Cleaver-Brooks, FMC, and McNally in Deem v. Armstrong Int
'l, Inc., et al., Cause No. 3:18-cv-05527 BHS, Dkt.
1. On December 13, 2018, that case was consolidated with the
instant case for the purposes of discovery and for pretrial
matters through summary judgment. Dkt. 52.
the complaint against the first set of defendants was titled
“Complaint for Personal Injury and Wrongful Death,
” Dkt. 1 at 1, and the complaint against the second set
of defendants was titled “Complaint for Wrongful Death,
” both complaints contain the same product liability
claims including negligence, strict products liability, and
“any other applicable theory of liability, ”
including “if applicable RCW 7.72 et seq., ” and
allege that the defendants' actions or omissions
“proximately caused severe personal injury and other
damages to Plaintiffs decedent, including his death.”
Dkt. 1, ⁋⁋ 17, 19; Deem v. Armstrong
Int'l, Inc., et al., Cause No. 3:18-cv-05527 BHS,
Dkt. 1, ⁋⁋ 34, 36.
complaints do not specify whether Mrs. Deem brings her claims
pursuant to Washington law only, or also pursuant to maritime
law. Both appear applicable to her claims.
April 25, 2019, the Court granted summary judgment for
Defendants FMC and McNally on Mrs. Deem's claims to the
extent they were brought under Washington law (“the
April 25th Order”). Also on April 25, 2019, Cleaver-Brooks
filed a motion for summary judgment on Mrs. Deem's claims
against it to the extent they arise under Washington law.
Dkt. 106. On May 13, the Court denied Mrs. Deem's motion
for reconsideration of the April 25th Order. Dkt. 119. Also
on May 13, 2019, Mrs. Deem responded to Cleaver-Brooks's
motion. Dkt. 122. On May 17, 2019, Cleaver-Brooks replied.
argues that the facts relevant to Mrs. Deem's claims
against Cleaver-Brooks are materially indistinguishable from
the facts relevant to Mrs. Deem's claims against the
defendants granted summary judgment based on the Washington
statute of limitations in the April 25th Order. Dkt. 106 at 1
(citing Dkt. 105). Mrs. Deem does not dispute this. Dkt. 122.
In her response, Mrs. Deem again presents argument that the
Court's decision in the April 25th Order was erroneous.
is correct that “[t]he law of the case doctrine
generally precludes reconsideration of ‘an issue that
has already been decided by the same court, or a higher court
in the identical case.'” Rocky Mountain Farmers
Union v. Corey, 913 F.3d 940, 951 (9th Cir. 2019)
(citing United States v. Alexander, 106 F.3d 874,
876 (9th Cir. 1997)). Finding that Cleaver-Brooks is
similarly situated to the defendants granted summary judgment
in the April 25th Order, Dkt. 105, and having already
declined to reconsider its decision, Dkt. 119, the Court
grants summary judgment for Cleaver-Brooks to the extent that
Mrs. Deem's claims arise under Washington law for the
reasons set forth in its previous decisions.
it is hereby ORDERED that
Cleaver-Brooks's motion for summary judgment, Dkt. 106,
is GRANTED to the extent Mrs. ...