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Klopman-Baerselman v. Air & Liquid Systems Corp.

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

October 9, 2019

ERIC KLOPMAN-BAERSELMAN, as Personal Representative for the Estate of RUDIE KLOPMAN-BAERSELMAN, deceased, Plaintiff,



         THIS MATTER comes before the Court on Defendant Air & Liquid Systems Corporation's (“Air & Liquid”) Motion for Summary Judgment. Dkt. 346. The Court is familiar with the record herein and has reviewed the motion and documents filed in support of and in opposition thereto, and it is fully advised. Oral argument is unnecessary to decide this motion.

         For the reasons set forth below, Air & Liquid's Motion for Summary Judgment should be granted.

         I. BACKGROUND

         This is an asbestos case. Dkt. 168. The above-entitled action was commenced in Pierce County Superior Court of October 27, 2017. Dkt. 1-1, at 6. Notice of removal from the state court was filed with this Court on July 3, 2018. Dkt. 1-1.

         In the operative complaint, Plaintiff alleges that Rudie Klopman-Baerselman (“Decedent”) was exposed to asbestos-containing products sold or supplied by various defendants, including Air & Liquid, causing Decedent injuries for which Air & Liquid is liable. Dkt. 168. Decedent was diagnosed with mesothelioma on approximately July 11, 2017, and died on November 25, 2017, before being deposed. Dkts. 168, at 4; and 374, at 7.

         The complaint provides that “Decedent [] was an employee of Royal Dutch Lloyd, Rotterdam Lloyd and worked as a merchant mariner assigned to several vessels. While performing his duties as a boiler oilman/stoker from approximately 1955 through 1959, Decedent [] was exposed to asbestos, asbestos-containing materials and products while aboard the vessels.” Dkt. 168, at 6. Plaintiff provides that “[Decedent] worked as an oilman aboard three steam-driven ships: (1) the SS Friesland, formerly the HMS Ranee and USS Niantic (CVE-46); (2) the SS Waterman, formerly the U.S.-built SS LaGrande Victory; and, (3) the SS Kertosono.” Dkt. 374, at 2. Apparently, an inspection report of the HMS Ranee from 1943 recommends providing spare parts for a pump supplied by Buffalo Pump Corp. (“Buffalo”), the predecessor of Air & Liquid. Dkts. 374, at 2; and 375-2, at 7.

         The complaint continues, “Decedent [] performed all maintenance work on his vehicles specifically friction work. Decedent [] performed maintenance to his vehicles, during the approximate years 1966 through 1997. Decedent [] was exposed to asbestos, asbestos materials and products while performing vehicle maintenance.” Dkt. 168, at 6.

         “Plaintiff claims liability based upon the theories of product liability (RCW 7.72 et seq.); negligence; conspiracy; strict product liability under Section 402A and 402B of the Restatement of Torts; premises liability; and any other applicable theory of liability.” Dkt. 168, at 6.

         Air & Liquid filed the instant Motion for Summary Judgment, arguing that Plaintiff is unable to show that Decedent was exposed to asbestos-containing products attributable to Air & Liquid, nor that any exposure was a substantial contributing factor in causing Decedent's injuries and death. Dkt. 346. Air & Liquid further argues that maritime law should apply, and that Plaintiff's claims fail under either maritime law or Washington state law. Dkt. 387, at 1-2, n.1.

         Plaintiff responded in opposition to Air & Liquid's instant Motion for Summary Judgment. Dkt. 374. Plaintiff does not discuss maritime law; Plaintiff couches its arguments in Washington product liability. Dkt. 374, at 5-9. Plaintiff alleges that, while working aboard ships in the Dutch merchant marine, Decedent “was around various machinery, including pumps, that were covered with amosite asbestos insulation.” Dkt. 374, at 7.

         Plaintiff offers the opinion of James Delaney (“Mr. Delaney”), an apparent maritime and naval expert retained by Toyota Motor Sales USA Inc. and Toyota Motor Corporation in this case. Dkts. 374, at 7; and 375-1. Mr. Delaney opined that “[b]oth the USS Niantic and the La Grande Victory were built during the years when the Navy and the Maritime Administration required asbestos containing thermal insulation, including amosite, to be installed on steam and chilled water systems … throughout … the ships.” Dkt. 375-1, at 11. Mr. Delaney further opined that “[Decedent] would have been in direct contact, or the close proximity to large quantities of asbestos containing thermal insulation on a regular basis.” Dkt. 375-1, at 12.

         Plaintiff also offers the opinion of Ronald Gordon (“Dr. Gordon”), who apparently conducted an electron microscope analysis of Decedent's lung tissue. Dkts. 374, at 3-4; and 375- 3. Dr. Gordon opines that “[Decedent] had a mixed asbestos exposure to chrysotile, crocidolite, amosite, tremolite/actinolite and anthophyllite …. These asbestos fibers were the causative factors in the development of [Decedent]'s malignant mesothelioma.” Dkt. 375-3, at 7.

         Plaintiff contends that “ship records showing that Buffalo supplied the distilling pump aboard the SS Friesland, combined with Delaney's and Gordon's expert opinions, is more than sufficient evidence under Washington law to raise genuine issues as to whether work on or around insulated Buffalo Pumps contributed to [Decedent]'s mesothelioma.” Dkt. 374, at 8.

         Air & Liquid replied in support of its Motion for Summary Judgment. Dkt. 387. Air & Liquid argues, in part, that the HMS Ranee 1943 inspection report and other documents should be disregarded as being inadmissible, unauthenticated, and hearsay. Dkt. 387, at 6.


         A. SUMMARY ...

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