United States District Court, W.D. Washington, Tacoma
MARIETTA DIANNE YAW, Individually and as Executor of the Estate of DONALD ARTHUR YAW Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR
Benjamin H. Settle United States District Judge.
matter comes before the Court on Plaintiff Marietta Dianne
Yaw's (“Yaw”) motion for reconsideration.
August 2, 2019, the Court granted Defendants General Electric
Company (“General Electric”), CBS Corporation
(“Westinghouse”), and Foster Wheeler Energy
Corporation's (“Foster Wheeler”)
(“Defendants”) motion for summary judgment. Dkt.
255. On August 16, 2019, Yaw filed a motion for
reconsideration. Dkt. 266.
for reconsideration are governed by Local Rule 7(h), which
provides as follows:
Motions for reconsideration are disfavored. The court will
ordinarily deny such motions in the absence of a showing of
manifest error in the prior ruling or a showing of new facts
or legal authority which could not have been brought to its
attention earlier with reasonable diligence.
Rules W.D. Wash. LCR 7(h). “[A] motion for
reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with
newly discovered evidence, committed clear error, or if there
is an intervening change in the controlling law.”
Kona Enters., Inc. v. Estate of Bishop, 229 F.3d
877, 890 (9th Cir. 2000) (quoting 389 Orange Street
Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)).
case, Yaw moves for reconsideration on the basis of a
manifest error of law and new evidence. Dkt. 266 at 5. The
Court disagrees and denies the motion because Yaw fails to
meet her burden and Yaw's arguments ignore pertinent
language in the order. For example, Yaw argues that
“the Court did not distinguish whether it was ruling
under state or maritime law, a critical distinction given the
differing causation standards.” Dkt. 266 at 6. Although
no party sought this distinction or raised this issue in the
briefs, the Court cited both state and maritime authorities
on the issue of causation. Dkt. 255 at 7-8 (citing
McIndoe v. Huntington Ingalls, Inc., 817 F.3d 1170,
1174 (9th Cir. 2016) (maritime); Lockwood v. AC & S,
Inc., 109 Wn.2d 235, 245-47 (1987) (state)). In fact,
the Court even included a footnote that provided as follows:
“The Court cites both federal maritime law and
Washington state law because Yaw's claims are extremely
vague. Yaw, however, appears to implicitly accept that her
claims may only be brought under these two bodies of law
because she does not challenge Defendants' arguments
under or citations to these laws.” Id. at 8
n.2. Regardless, this issue is now moot because the Court
concluded that maritime law applies to Yaw's claims. Dkt.
268 at 3-5.
Yaw argues that the Court “ignored” her naval
expert Captain Arnold Moore (“Moore”). Dkt. 266
at 6. Contrary to Yaw's position, the issue was that Yaw
failed to establish that Moore's report was relevant.
There is no doubt that Moore has a vast knowledge of naval
vessels, the equipment aboard those vessels, and the
components within that equipment. See Dkt. 133-1.
Yaw, however, failed to submit any evidence placing her
husband, Donald Yaw (“Mr. Yaw”), in the proximity
of Defendants' equipment when asbestos was present. For
example, Moore states that “Mr. Yaw recalled he worked
in the engine rooms on most of the ships on which he was
assigned to work and recalled he worked in the boiler rooms
on at least half of the ships on which he worked.”
Id. at 7. Unfortunately, this is the extent of Mr.
Yaw's speculative and conclusory testimony regarding
where and when he worked on naval vessels. For example,
testimony that Mr. Yaw worked in “most” of the
vessels' engine rooms does not establish that he was
around or near a Westinghouse turbine on the USS Kitty Hawk
when asbestos components were either being removed or
replaced. This lack of evidence as to each defendant is fatal
to Yaw's claims. See, e.g., Lujan v.
Nat'l Wildlife Fed'n, 497 U.S. 871, 888-89
(1990) (“Conclusory, nonspecific statements in
affidavits are not sufficient, and missing facts will not be
presumed.”). More importantly, the absence of such
factual, baseline evidence makes Moore's vast knowledge
of naval vessels and opinions irrelevant to the issues before
Yaw argues that “the law does not require that a victim
of a latent disease that does not manifest for decades after
exposure recall every exposure with specificity.” Dkt.
266 at 7 (citing Mavroudis v. Pittsburgh-Corning
Corp., 86 Wn.App. 22, 30 (1997); Lockwood v.
AC&S, Inc., 109 Wn.2d 235, 246-47 (1987);
Cabasug v. Crane Co., 989 F.Supp.2d 1027, 1033 (D.
Haw. 2013), abrogated on other grounds by Air &
Liquid Sys. Corp. v. DeVries, 139 S.Ct. 986 (2019)). The
Court concludes that the Washington authorities are
irrelevant because maritime law applies to Yaw's claims.
Regarding Cabasug, Yaw's statement is at least
misleading because Yaw “must show, ‘for each
defendant, that (1) [Mr. Yaw] was exposed to the
defendant's product, and (2) the product was a
substantial factor in causing the injury [Mr. Yaw]
suffered.'” Cabasug, 989 F.Supp.2d at 1033
(quoting Lindstrom v. A-C Product Liability Trust,
424 F.3d 488 (6th Cir. 2005)). Moreover,
“‘[m]inimal exposure' to a defendant's
product is insufficient, ” and “a mere showing
that defendant's product was present somewhere at
plaintiff's place of work is insufficient.”
Lindstrom, 424 F.3d at 492 (quoting Stark v.
Armstrong World Indus., 21 Fed. App'x 371, 375 (6th
Cir. 2001) (unpublished)). While Moore could possibly
establish that Defendants' products were at Mr. Yaw's
place of work, Yaw fails to submit any evidence of exposure
to those products. Therefore, the Court
DENIES Yaw's motion because she (1)
fails to show that the Court committed a manifest error of
law and (2) fails to submit any evidence, let alone new
evidence, creating a material question of fact on any