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Klopman-Baerselman v. Air & Liquid Systems Corp.

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

December 16, 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 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 CLAIMS

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS 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.

         For the 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.

         I. BACKGROUND & RELATED MOTIONS

         A. 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 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.

         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 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.

         There 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.[1] 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.

         “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. FOSTER WHEELER'S INSTANT MOTION FOR SUMMARY JUDGMENT & MOTION TO STRIKE

         Foster 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.

         Plaintiff 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.

         Foster 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.

         B. PLAINTIFF'S INSTANT MOTION FOR PARTIAL SUMMARY JUDGMENT

         Plaintiff 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.

         Foster 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.

         Plaintiff a reply in support of the instant Motion for Partial Summary Judgment. Dkt. 557.

         II. DISCUSSION

         A. DUTCH LAW STATUTE OF LIMITATIONS & WAIVER

         Fed. R. 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) provides:

Unless another time is specified by this rule or a federal statute, the time for serving a responsive ...

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