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Klopman-Baerselman v. Air & Liquid Systems Corp.

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

December 12, 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 ON DEFENDANT HONEYWELL INTERNATIONAL INC.'S MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant Honeywell International Inc.'s (“Honeywell”) Motion for Summary Judgment. Dkt. 484. 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, Honeywell'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 Honeywell, causing Decedent injuries for which they are 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.[1] Dkt. 168. Plaintiff alleges that Decedent was exposed to asbestos attributable to Honeywell while performing vehicle maintenance. Dkts. 168; and 557. Plaintiff sues Honeywell as successor-in-interest to Bendix Corporation, which Plaintiff alleges sold asbestos-containing brakes from 1939 until 2001. Dkts. 168; and 557.

         There are two other general theories of asbestos exposure in this case. First, Plaintiff claims that Decedent was 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.

         A. MOTION FOR SUMMARY JUDGMENT

         Honeywell filed the instant Motion for Summary Judgment. Dkt. 484. Honeywell makes two primary arguments: First, that Plaintiff conclusively admitted that he has no claim against Honeywell by untimely responding to a request for admissions propounded by Defendant Genuine Parts Company; second, that Decedent's mesothelioma was caused by career exposures to amphibole asbestos as a merchant mariner and as a worker at Tektronix. Dkt. 484. Honeywell explains that chrysotile fibers, allegedly the only type of asbestos fibers used in brake manufacturing, were not found in Decedent's lung tissue fiber burden test. Dkts. 484; 570. Honeywell further argues that Plaintiff's claim for punitive damages is not permitted under Washington law. Dkt. 484, at 17. The instant Motion for Summary Judgment seeks dismissal of all of Plaintiff's claims against Honeywell. Dkt. 484.

         B. PLAINTIFF'S RESPONSE

         Plaintiff filed a response in opposition to Honeywell's Motion for Summary Judgment. Dkt. 557. Plaintiff does not oppose the motion as to its request to dismiss his claims for conspiracy and premises liability. Dkt. 557. Plaintiff argues that there are genuine issues of material fact as to whether Decedent was substantially exposed to asbestos from Honeywell products causing Decedent's mesothelioma. Dkt. 557.

         Plaintiff offers evidence, including testimony from several witnesses, that Decedent performed hundreds of brake jobs, from approximately the 1960s to 1990s, and that he used and preferred Bendix brakes. Dkt. 557, at 2-5. Plaintiff offers evidence that Bendix sold asbestos- containing brakes from 1939 until 2001, that all Bendix brakes available in the 1970s contained asbestos, and that all Bendix drum brakes for cars contained asbestos until 1983. Dkt. 557, at 5- 6.

         Plaintiff relies, in part, on three expert opinions in support of his claim that Decedent's substantial exposure to asbestos from products attributable to Honeywell caused his mesothelioma: Susan Raterman (“Ms. Raterman”); Carl Brodkin (“Dr. Brodkin”); and Ronald Gordon (“Dr. Gordon”). Dkt. 557, at 10-12, 14-15.[2]

         Ms. Raterman, an Industrial Hygienist, opines that:

[W]ork performed by [Decedent] with brakes between the 1960s and the 1990s, including those manufactured by Bendix, NAPA, Pneumo Abex, Rayloc, Shucks [sic], Toyota, and other would have exposed him to significant concentrations of asbestos dust thousands to hundreds of thousands of times above background levels which would have contributed to his cumulative asbestos exposure dose and increased his risk of developing mesothelioma.

Dkt. 558-3, at 110.

         Dr. Brodkin opines that Decedent's mesothelioma was causally related to asbestos exposure from his work as an automotive mechanic. Dkt. 558-2. Dr. Gordon opines that Decedent had mixed asbestos exposure to chrysotile, crocidolite, amosite, tremolite/actinolite, and anthophyllite, which were causative factors in the development of Decedent's mesothelioma. Dkt. 558-3. Dr. Gordon further opines, with respect to the absence of chrysotile asbestos in Decedent's lung tissue fiber burden test, that:

Based on the presence of anthophyllite and tremolite/actinolite, [Decedent] more than likely had exposure to chrysotile asbestos. …. It is unlikely that chrysotile will still be present many years after exposure based on digestion and removal from the site, lung or lymph node, but it is a correlated exposure identified by the presence of the anthophyllite and/or tremolite/actinolite which was found.

Dkt. 558-3, at 4-5.

         C. HONEYWELL'S REPLY

         Honeywell filed a reply in support of the instant Motion for Summary Judgment. Dkt. 570. Honeywell's reply makes four primary arguments. First, Honeywell argues that Plaintiff's expert opinions regarding chrysotile asbestos should be excluded because they lack a reliable scientific methodology. Second, Honeywell argues that by failing to discuss punitive damages in its response, Plaintiff concedes that his claim for punitive damages should be dismissed. Third, Plaintiff argues that Plaintiff failed to address all of his “catch-all” claims for liability, and they should, therefore, be ...


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