United States District Court, W.D. Washington, Tacoma
ERIC KLOPMAN-BAERSELMAN, as Personal Representative for the Estate of RUDIE KLOPMAN-BAERSELMAN, deceased, Plaintiff,
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.
ORDER GRANTING DEFENDANT INGERSOLL-RAND COMPANY'S
MOTION FOR SUMMARY JUDGMENT
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Ingersoll-Rand
Company's (“I-R”) Motion for Summary
Judgment. Dkt. 344. 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.
reasons set forth below, I-R's Motion for Summary
Judgment should be granted.
BACKGROUND & PENDING MOTION A.
an asbestos case. Dkt. 168. The above-entitled action was
commenced in Pierce County Superior Court of October 27,
2017. Dkt. 1. Notice of removal from the state court was
filed with this Court on July 3, 2018. Dkt. 1.
operative complaint, Plaintiff alleges that Rudie
Klopman-Baerselman (“Decedent”) was exposed to
asbestos-containing products sold or supplied by various
defendants, including I-R, causing Decedent injuries for
which I-R 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.
operative complaint, “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. The operative complaint
provides two general theories of asbestos exposure, and
Plaintiff's original complaint, which is no longer the
operative complaint, provided a third general theory of
asbestos exposure. Dkts. 1-6; and 168.
the operative 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 states that Decedent worked in
maintenance and repair aboard the SS Friesland and
SS Waterman. Dkt. 372, at 4. Plaintiff offers
evidence that purports to show that I-R manufactured
equipment used aboard the SS Waterman and SS
Friesland. Dkts. 373-11; and 373-12.
the operative complaint provides that “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.
the original complaint provided that “[Decedent] was an
employee of Defendants and worked for Tektronix in Beaverton,
OR and Vancouver, WA. While performing his duties as a
laborer from 1967 through 1998 … [Decedent] was
exposed to asbestos, asbestos containing insulation
materials, and other asbestos-containing products while
working at Tektronix.” Dkt. 1-6, at 5. Plaintiff
withdrew this third general theory of asbestos exposure from
the operative complaint. Dkt. 168, at 5-6.
I-R's Motion for Summary Judgment
filed the instant Motion for Summary Judgment, arguing that
it “is entitled to summary judgment because Plaintiff
has not adduced … evidence that [Decedent] was exposed
to asbestos-containing products from [I-R] equipment when he
was in the Dutch merchant marines, let alone evidence that
exposures (if any) … were a substantial contributing
cause of his mesothelioma.” Dkt. 344, at 4.
responded in opposition to I-R's Motion for Summary
Judgment. Dkt. 372. Plaintiff argues that it has submitted
evidence sufficient to defeat I-R's Motion for Summary
Judgment. Plaintiff argues and submits evidence purporting to
show that Decedent's exposure to asbestos from I-R
products in the Dutch merchant marine contributed to the
cause of his mesothelioma; and Decedent's exposure to
asbestos from I-R products at Tektronix contributed to cause
his disease. Dkt. 372.
submits, in part, the following evidence in support his claim
of asbestos exposure in the Dutch merchant marine: The
opinions of Christopher Herfel and James Delaney, who are
apparent naval and maritime experts, each opining that
Decedent's work in the Dutch merchant marine would likely
have exposed him to asbestos. Dkts. 364-2; and 373-10.
Plaintiff further provides documentary evidence purportedly
showing a large number and variety of I-R pumps aboard the SS
Waterman, as well as compressors aboard the SS
Waterman and SS Friesland. Dkt. 373-11; and
373-12. Plaintiff also provides evidence purportedly showing
that I-R specified the use of amosite asbestos insulation on
its pumps. Dkt. 373-13.
submits evidence in support his claim of asbestos exposure at
Tektronix. E.g., Dkts. 373-6; and 373-7.
Decedent's industrial hygiene expert, Susan Raterman
(“Ms. Raterman”), in consideration of various
depositions and evidentiary materials, opined that:
[Decedent's] work at Tektronix removing asbestos gaskets
would have exposed him to significant concentrations of
asbestos fibers …, which would have contributed to his
cumulative asbestos exposure dose. Further I find that
[Decedent] was potentially exposed to significant
concentrations of asbestos fibers greater than background
levels associated with his work on Ingersoll-Rand pumps
containing blue crocidolite gaskets.”
Dkt. 373-6, at 18.
also cites to expert pathologists, including 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 opined
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.
its Tektronix theory of asbestos exposure, Plaintiff argues
that “I-R did not substantively address Plaintiff's
exposures at Tektronix, and for this additional reason is not
entitled to summary judgment.” Dkt. 372, at 2.
Plaintiff contends that “the allegations in
Plaintiff's June 2018 ‘First Amended Complaint'
are sufficiently broad to encompass later-acquired
evidence.” Dkt. 372, at 2. Plaintiff continues,
“Should the Court disagree …, Plaintiff must be
allowed to amend his complaint pursuant to Rule 15 to more
closely conform to the evidence of Plaintiff's
thirty-year career at Tektronix before the instant motion is
decided. Such an order would not prejudice I-R.” Dkt.
372, at 2.
replied in support of its Motion for Summary Judgment. Dkt.
385. I-R addresses (1) Plaintiff's Dutch merchant marine
theory of asbestos exposure, and (2) Plaintiff's
Tektronix theory of asbestos exposure. First, I-R reiterates
that Plaintiff has not offered admissible evidence that the
ships on which Decedent allegedly worked had I-R
asbestos-containing products. I-R argues that the Court
should not consider or rely on Dkts. 373-11 and 373-12
offered by Plaintiff because they are unauthenticated and
lack particularity. Dkt. 385, at 2. I-R contends,
“[Dkts. 373-11 (Exh. K) and 373-12 (Exh. L)] are nearly
250 pages, and Plaintiff has not provided any specific
reference points for either exhibit.” Dkt. 385, at 2.
further argues that “regardless of the [authentication
and particularity] deficienc[ies], Plaintiff has not adduced
admissible evidence that, while in the Dutch merchant
marines, [Decedent] in fact worked with or around a piece of
[I-R] equipment, had exposure to asbestos-containing products
from that [I-R] equipment, or did so on a regular
basis.” Dkt. 385, at 3.
concerning Tektronix asbestos exposure, I-R argues that
Plaintiff cannot raise a claim not made in the operative
complaint in response to a motion for summary judgment. Dkt.
385, at 3. I-R further argues that “Plaintiff's
suggestion that he should be allowed to amend … his
complaint to add allegations about Tektronix is irrelevant
because, presently, he has not even filed a motion for leave
to do so.” Dkt. 385, at 8. I-R contends that Plaintiff