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Klopman-Baerselman v. Air & Liquid Systems Corp.

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

October 15, 2019

ERIC KLOPMAN-BAERSELMAN, as Personal Representative for the Estate of RUDIE KLOPMAN-BAERSELMAN, deceased, Plaintiff,
v.
AIR & LIQUID SYSTEMS CORPORATION, et al., Defendants.

          ORDER GRANTING DEFENDANT INGERSOLL-RAND COMPANY'S MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS 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.

         For the reasons set forth below, I-R's Motion for Summary Judgment should be granted.

         I. BACKGROUND & PENDING MOTION A. 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. Notice of removal from the state court was filed with this Court on July 3, 2018. Dkt. 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 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.

         In the 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.

         First, 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.

         Second, 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.

         Third, 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.

         B. PENDING MOTION

         1. I-R's Motion for Summary Judgment

         I-R 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.

         2. Plaintiff's Response

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Concerning 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.

         3. I-R's Reply

         I-R 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.

         I-R 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.

         Second, 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 has ...


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