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 ON DEFENDANT PNEUMO ABEX, LLC'S MOTION FOR
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Pneumo Abex,
LLC's (Pneumo Abex”) Motion for Summary Judgment.
Dkt. 482. 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, Pneumo Abex's Motion for Summary
Judgment should be granted, in part, and denied, in part.
an asbestos case. Dkt. 168. The above-entitled action was
commenced in Pierce County Superior Court on 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.
operative complaint, Plaintiff alleges that Rudie
Klopman-Baerselman (“Decedent”) was exposed to
asbestos-containing products sold or supplied by various
defendants, including Pneumo Abex, causing Decedent injuries
for which Pneumo Abex 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.
complaint provides that Decedent performed all maintenance
work on his vehicles, including friction work, from
approximately 1966 to 1997. Dkt. 168. Plaintiff alleges that
Decedent was exposed to asbestos attributable to Pneumo Abex
while performing vehicle maintenance. Dkt. 168.
“Plaintiffs sue Pneumo-Abex, LLC (as successor to Abex)
as a supplier of asbestos-containing friction linings to
Genuine Parts Company/NAPA for use in Rayloc brakes, as well
as a supplier of asbestos-containing friction linings used in
Borg-Warner manual clutches and in AC Delco brakes.”
Dkt. 548, at 2.
are two other general theories of asbestos exposure in this
case. First, Plaintiff claims that Decedent was also exposed
to asbestos while working as a Dutch Merchant Marine from
approximately 1955 to 1959. Dkt. 168, at 6. Second, Plaintiff
had previously claimed, but removed from the operative
complaint (Dkt. 168), that Decedent was exposed to asbestos
while working at Tektronix. Dkt. 1-1, at 9-10.
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.
MOTION FOR SUMMARY JUDGMENT
Abex filed the instant Motion for Summary Judgment. Dkt. 482.
Pneumo Abex argues that there is no credible evidence that
Decedent worked with or around asbestos-containing automotive
brake or friction materials produced by Pneumo Abex such that
they exposed Decedent to respirable asbestos fibers or that
they were a substantial contributing factor to the cause of
Decedent's disease. Dkt. 482. The instant Motion for
Summary Judgment seeks dismissal of all of Plaintiff's
claims against Pneumo Abex. Dkt. 482.
filed a response in opposition to Pneumo Abex's Motion
for Summary Judgment. Dkt. 548. Plaintiff does not oppose the
Motion for Summary Judgment as to the claims for conspiracy,
premises liability, or abnormally dangerous activities. Dkt.
548. Plaintiff argues that his evidence demonstrates that
there are genuine issues of material fact as to whether
Decedent was substantially exposed to asbestos from Abex
Pneumo friction linings causing Decedent's mesothelioma.
Dkt. 548. Plaintiff also filed a Declaration of Benjamin H.
Adams in Support of Plaintiff's Response in Opposition to
the Motion of Defendant Pneumo Abex, LLC for Summary
Judgment. Dkt. 554. The declaration is voluminous, 1311
pages, containing numerous deposition transcripts,
photographs, asbestos-related literature and expert reports,
and other materials. Dkts. 554; 554-1, and 554-2.
offers testimony from several witnesses that Decedent
purchased Rayloc brakes in the 1980s and 1990s, and possibly
earlier. Dkts. 548, at 4-5; and 554-1. Plaintiff provides
testimony describing Decedent's extensive brake and
friction work from approximately the 1970s to 2001. Dkts.
548; and 554-1. Plaintiff produced photographs of a box
labeled NAPA/Rayloc brake shoes, which contained a receipt
dated March 23, 1993. Dkt. 548, at 5-6; Dkt. 554-1. The
NAPA/Rayloc box states: “Caution: Contains asbestos
fiber. Avoid creating dust, breathing asbestos. Dust may
cause serious bodily harm.” Dkt. 554-1, at 267.
Plaintiff writes that “the receipt reflects a
‘core deposit' of part number EB-280. Eric
[Klopman, Decedent's son (“Eric”), ]
testified this reflects that his father brought used cores
back to the store for a refund of the deposit, and exchanged
them for new replacement parts, and therefore that his father
exchanged used Rayloc brakes for new Rayloc
replacements.” Dkt. 548, at 6. Eric further testified
that Decedent did clutch jobs and that he had witnessed
Decedent install and remove Borg-Warner clutch facings as
recently as 2014. Dkts. 548; and 554-1. Ray Smith, a friend
and co-worker of Decedent's, further described
Plaintiff's extensive work with Rayloc, Bendix, and AC
Delco brakes. Dkts. 548; and 554-1.
Declaration of Michael Heyer states that his family owned an
automotive repair shop, Independent Auto, in Washougal,
Washington. Dkts. 548; and 554-1, at 387. Michael Heyer wrote
that he knew that Decedent performed work there and
“definitely performed brake, clutch, and gasket work at
Independent Auto, ” that it was “dusty work,
” and that Independent Auto used Rayloc brakes and
clutches. Dkts. 548; and 554-1, at 387.
submits deposition evidence purporting to show that Pneumo
Abex was an exclusive or primary supplier of
asbestos-containing friction materials to Rayloc. Dkts. 548,
at 9-10; 554-1; and 554-2.
PNEUMO ABEX'S REPLY
Abex filed a reply in support of the instant Motion for
Summary Judgment. Dkt. 572. Pneumo Abex argues and submits
evidence purporting to show that its brake linings were not
used for new NAPA-brand brakes sold by NAPA. Dkt. 572; and
573. NAPA further contends that deposition testimony shows
that Pneumo Abex was just one of many suppliers of brake
linings incorporated into remanufactured NAPA-brand brakes.
Dkt. 572; and 573. Pneumo Abex argues Plaintiff cannot
demonstrate Decedent's exposure to asbestos from a
product attributable to Pneumo Abex. Dkt. 572. Pneumo Abex
argues that Plaintiff has not produced evidence required to
establish causation or to prove that exposure to any product
attributable to Pneumo Abex was a substantial factor in
causing Decedent's injury. Dkt. 572.
A. SUMMARY JUDGMENT STANDARD
judgment is proper only if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(c). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of a claim in the
case on which the nonmoving party has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985).
There is no genuine issue of fact for trial where the record,
taken as a whole, could not lead a rational trier of fact to
find for the nonmoving party. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)
(nonmoving party must present specific, significant probative
evidence, not simply “some metaphysical doubt.”).
See also Fed. R. Civ. P. 56(d). Conversely, a
genuine dispute over a material fact exists if there is
sufficient evidence supporting the ...