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Klopman-Baerselman v. Air & Liquid Systems Corp.

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

December 10, 2019

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



         THIS 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.

         For the reasons set forth below, Pneumo Abex's Motion for Summary Judgment should be granted, in part, and denied, in part.

         I. BACKGROUND

         This is 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.

         In the 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.

         The 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.

         There 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.

         “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.


         Pneumo 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.


         Plaintiff 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.

         Plaintiff 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.

         The 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.

         Plaintiff 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 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.



         Summary 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 ...

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