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 FOSTER WHEELER'S MOTION FOR
SUMMARY JUDGMENT, FOSTER WHEELER'S MOTION TO STRIKE, AND
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT ON DEFENDANT
FOSTER WHEELER'S DEFENSES TO PLAINTIFF'S
J. BRYAN UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on Defendant Foster Wheeler
Energy Corporation's (“Foster Wheeler”)
Motion for Summary Judgment (Dkt. 433), Plaintiff's
Motion for Summary Judgment on Defendant Foster Wheeler's
Defenses to Plaintiff's Claims (“Motion for Partial
Summary Judgment”) (Dkt. 487), and Foster Wheeler's
motion to strike inadmissible evidence (Dkt. 493, at 4-6).
The Court is familiar with the record herein and has reviewed
the motions and documents filed in support of and in
opposition thereto, and it is fully advised. Oral argument is
unnecessary to decide these motions.
reasons set forth below, Foster Wheeler's Motion for
Summary Judgment should be granted, in part, and denied, in
part; Plaintiff's Motion for Partial Summary Judgment
should be granted; and Foster Wheeler's motion to strike
should be denied as moot.
BACKGROUND & RELATED MOTIONS
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 Foster Wheeler, 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.
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 provides that Decedent worked in maintenance and
repair aboard the SS Friesland and SS
Waterman. Dkt. 476, at 3-4. Plaintiff offers
evidence purporting to show that Foster Wheeler manufactured
asbestos-containing equipment used aboard the SS
Friesland. Dkts. 476, at 4-6; and 477.
are two other general theories of asbestos exposure in this
case. First, Plaintiff claims that Decedent was exposed to
asbestos from performing maintenance work on vehicles, from
approximately 1966 to 1997. Dkt. 168. Second, Plaintiff had
previously claimed, but removed from the operative complaint,
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.
FOSTER WHEELER'S INSTANT MOTION FOR SUMMARY JUDGMENT
& MOTION TO STRIKE
Wheeler argues that summary judgment in its favor is
appropriate for two reasons. Dkt. 433. First, that Dutch law
should apply, and that Plaintiff's claims are time-barred
under Dutch law. Dkt. 433, at 3-7. Second, that Plaintiff has
not set forth evidence that Decedent was exposed to asbestos
from products produced by Foster Wheeler. Dkt. 433, at 7-8.
filed a response in opposition to Foster Wheeler's motion
for summary judgment. Dkt. 476. Plaintiff argues that Foster
Wheeler failed to file an answer to Plaintiff's complaint
and has waived its affirmative defense that Plaintiff's
claims are time-barred. Dkt. 476, at 9-11. Additionally,
Plaintiff contends that he has produced evidence of
Decedent's exposure to asbestos-containing products
produced by Foster Wheeler from when Decedent worked as a
greaser aboard the SS Friesland. Dkt. 476, at 13.
Wheeler filed a reply in support of its motion for summary
judgment. Dkt. 493. Foster Wheeler concedes that it
“inadvertently failed to file an answer” to
Plaintiff's complaint but argues that it should still be
permitted to raise its choice of law affirmative defense at
this late stage in litigation. Dkt. 493, at 9-11.
Additionally, Foster Wheeler moves to strike numerous
exhibits from a Declaration of Plaintiff's counsel,
Benjamin Adams, as being unauthenticated and for lacking
personal knowledge and a proper foundation. Dkt. 493, at 4-6.
PLAINTIFF'S INSTANT MOTION FOR PARTIAL SUMMARY
filed the instant Motion for Partial Summary Judgment. Dkt.
487. Plaintiff argues that, because Foster Wheeler failed to
file an answer to Plaintiff's complaint, “Foster
Wheeler has failed to assert any defenses to Plaintiff's
claims, has failed to assert any affirmative defenses, and
should be prevented from offering evidence in support of any
affirmative defenses at trial.” Dkt. 487, at 2.
Wheeler filed a response in opposition to Plaintiff's
Motion for Partial Summary Judgment. Dkt. 509. Foster Wheeler
argues that failure to answer does not constitute an
automatic waiver where, as here, there is no prejudice to the
plaintiff. Dkt. 509. Foster Wheeler further contends that
Plaintiff's motion is untimely. Dkt. 509, at 6.
a reply in support of the instant Motion for Partial Summary
Judgment. Dkt. 557.
DUTCH LAW STATUTE OF LIMITATIONS & WAIVER
Civ. P. 8(c)(1) provides the following: “In responding
to a pleading, a party must affirmatively state any avoidance
or affirmative defense, including: … laches; …
[and] statute of limitations[.]” Fed.R.Civ.P. 12(a)(1)
Unless another time is specified by this rule or a federal
statute, the time for serving a responsive ...