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Deem v. Air & Liquid Systems Corp.

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

August 6, 2019

SHERRI L. DEEM, Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS, GRANTING PLAINTIFF'S MOTION TO APPLY MARITIME LAW, DENYING PLAINTIFF'S MOTION TO CERTIFY QUESTION TO WASHINGTON SUPREME COURT, AND GRANTING PLAINTIFF LEAVE TO AMEND

          BENJAMIN H. SETTLE United States District Judge

         This matter comes before the Court on Defendants FMC Corporation (“FMC”) and McNally Industries, Inc.'s (“McNally”) motion to dismiss, Dkt. 125, Plaintiff Sherri Deem's (“Deem”) motion to apply maritime law, Dkt. 165, and Deem's motion to certify question to the Washington Supreme Court, Dkt. 182. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby rules as follows:

         I. PROCEDURAL HISTORY

         1. Complaints and First Dispositive Order

         On November 20, 2017, Deem, individually and as the personal representative of the estate of Thomas Deem (“Mr. Deem”), filed a complaint against numerous defendants seeking damages for the asbestos-related death of Mr. Deem. Dkt. 1.

         On June 28, 2018, Deem filed a separate action for wrongful death against another twenty-three defendants 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.

         Though 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 Plaintiff's 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.

         On April 25, 2019, the Court granted summary judgment for FMC and McNally on Deem's claims to the extent they were brought under Washington law. Dkt. 105. On May 13, 2019, the Court denied Deem's motion for reconsideration. Dkt. 118.

         2. Motion to Dismiss

         On May 16, 2019, FMC and McNally filed a motion to dismiss all of Deem's remaining claims to the extent she brought claims under any law other than Washington law. Dkt. 125. Shortly thereafter, numerous defendants filed either motions or notices of joinder in FMC and McNally's motion. Dkts. 146, 148, 149, 163. On June 3, 2019, Deem responded. Dkt. 164. On June 7, 2019, FMC and McNally replied. Dkt. 180.

         3. Motion to Apply Maritime Law

         On June 3, 2019, Deem filed a motion to apply maritime law requesting that the Court “find that general maritime law should apply to all issues in this matter.” Dkt. 165. On June 17, 2019, FMC and McNally responded, Dkt. 192, and Defendants Ingersoll-Rand Company (“Ingersoll-Rand”) and Velan Valve Corporation (“Velan”) responded, Dkt. 193. On June 20, 2019, John Crane, Inc. (“Crane”) joined in Ingersoll-Rand and Velan's opposition. Dkt. 204. On June 21, 2019, Deem filed two replies. Dkts. 208, 209.

         4. Motion to Certify

         On June 10, 2019, Deem filed a motion to certify question to the Washington Supreme Court. Dkt. 182. On June 24, 2019, FMC and McNally responded, Dkt. 210, and Crane ...


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