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Yaw v. Air & Liquid Systems Corporation

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

August 2, 2019

MARIETTA DIANNE YAW, Individually and as Executor of the Estate of DONALD ARTHUR YAW, Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

          BENJAMIN H. SETTLE United States District Judge

         This matter comes before the Court on Defendants General Electric Company (“General Electric”), CBS Corporation (“Westinghouse”), and Foster Wheeler Energy Corporation's (“Foster Wheeler”) (“Defendants”) motion for summary judgment. Dkt. 95. 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.

         I. PROCEDURAL HISTORY

         On May 21, 2018, Plaintiffs Donald and Marietta Yaw (“the Yaws”) filed a complaint against numerous defendants alleging injuries to Mr. Yaw resulting from exposure to asbestos. Dkt. 1.

         On January 31, 2019, Defendants filed a motion for summary judgment arguing in part that the Yaws had no evidence to support their claims against Defendants. Dkt. 95. On February 19, 2019, the Yaws responded to Defendants' motion and requested a continuance because they were missing facts essential to justify their opposition. Dkt. 106. On February 22, 2019, Defendants replied. Dkt. 111. On March 18, 2019, the Yaws filed a supplemental response and submitted the expert reports of Dr. John Maddux and Captain Arnold Moore (“Moore”). Dkts. 132, 133-1.

         On March 21, 2019, the Yaws filed a motion to amend their complaint informing the Court that Mr. Yaw passed away. Dkt. 140.

         On March 22, 2019, Defendants filed a surreply requesting that the Court strike the Yaws' supplemental response and expert reports.[1] Dkt. 144.

         On April 18, 2019, the Court granted the Yaws' motion to amend, granted the Yaws' request for a continuance of the summary judgment motions, and requested additional briefing in light of the Supreme Court's decision in Air & Liquid Systems Corp. v. DeVries, 139 S.Ct. 986, 994 (2019) (“DeVries”). Dkt. 154.

         On April 26, 2019, Marietta Yaw, individually and as personal representative of the Estate of Donald Yaw, (hereinafter “Yaw”) filed her amended complaint. Dkt. 155. Yaw's claims are as follows:

Plaintiff claims liability based upon the theories of product liability, including, but not limited to negligence, strict product liability (for example, Restatement (Second) of Torts § 402A and/or 402B), conspiracy, premises liability, the former RCW 49.16.030, and any other applicable theory of liability, including, if applicable, RCW 7.72 et seq.
The manufacturer/distributor defendants identified above are liable for, among other things, the following conduct: negligent and unsafe design; failure to inspect, test, warn, instruct, monitor and/or recall; failure to substitute safe products; marketing products not reasonably safe as manufactured; marketing products not reasonably safe as designed; and marketing products not reasonably safe for lack of adequate warnings.
Certain Defendants engaged in concerted, and/or conspiratorial activities or omissions which prevented adequate warnings concerning the hazards of asbestos and asbestos-containing products from being provided to those using or exposed to asbestos and asbestos-containing products. These activities also resulted in the manufacture and distribution of products that were not reasonably safe as designed.

Id. ¶¶ 31-33.

         On May 2, 2019, Defendants filed a supplemental brief in support of their motion for summary judgment. Dkt. 164. On May 20, 2019, Yaw responded. Dkt. 173. ...


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