Behrmann v. Abb, Inc. (W.D. Wash., Mar. 9, 2021)

Our plain-English summary of Behrmann v. Abb, Inc. (U.S. District Court, Western District of Washington, March 9, 2021).

Ronald Behrmann sued several companies, alleging his mesothelioma resulted from asbestos exposure during nearly 30 years working on ships, first in the Navy and then at the Todd and Lockheed shipyards. He was exposed to asbestos from products he worked on directly and from products others worked on near him. Propulsion Controls Engineering (PCE) provided engineering services to Lockheed as a subcontractor. The parties agreed PCE did not supply asbestos-containing products. Behrmann argued PCE was liable because its employees worked on asbestos-containing equipment near him. The court, applying maritime law (and noting the result would be the same under Washington law), granted PCE summary judgment. There was no evidence PCE made or distributed asbestos products, so no products liability claim. On negligence, even assuming PCE owed a duty, there was no evidence of breach or causation; evidence of possible exposure alone was not enough. Behrmann conceded he had no premises or conspiracy claims, and he could not bring a loss of consortium claim for himself. PCE was dismissed.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Western District of Washington
• Decided: March 9, 2021
• Docket: Case No. C20-5685 RJB
• Stage: Summary judgment
• State: Washington

Outcome. The district court granted Propulsion Controls Engineering's motion for summary judgment and dismissed it from the case, ruling against plaintiff Ronald Behrmann.

What the court held. A subcontractor that did not make or supply asbestos-containing products cannot be liable in products liability, and evidence that its employees worked on asbestos-containing equipment near the plaintiff does not alone create a genuine issue on negligence breach or causation.

Issues decided: Loss of Consortium, Design Defect, Employer and Contractor Liability, and Workers' Compensation, Maritime Law and Navy Ships, Premises Owner Liability.

The people and their exposure

• Ronald H. Behrmann: mesothelioma

Who	Work	Where	When	Products
Ronald H. Behrmann	worked on ships (shipyards and maritime work)	Todd and Lockheed shipyards	nearly 30 years
Ronald H. Behrmann	Navy service on ships (shipyards and maritime work); worked near others using it	Navy ships

The defendants

• Propulsion Controls Engineering (contractor)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• McINDOE v. Huntington Ingalls Incorporated (U.S. Court of Appeals, Ninth Circuit, 2016). The Ninth Circuit affirmed summary judgment for shipbuilders Huntington Ingalls and Bath Iron Works against the heirs of James McIndoe, holding the warships were not products for strict liability and the heirs could not show substantial-factor causation.
• Hoyt v. Lockheed Shipbuilding Company (U.S. District Court, Western District of Washington, 2013). The federal district court granted Lockheed Shipbuilding Company's motion for summary judgment and dismissed Loretta Hoyt's take-home asbestos claim with prejudice, because the risk to her was not reasonably foreseeable in the 1950s.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

RONALD H. BEHRMANN, Plaintiff,

v.

ABB, INC., etal., Defendants.

Case No. C20-5685 RJB.

March 9, 2021.

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

ORDER GRANTING DEFENDANT PROPULSION CONTROLS

ENGINEERING'S MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on Defendant Propulsion Controls Engineering's ("PCE") Motion for Summary Judgment. Dkt. 214. The Court has considered the pleadings filed in support of and in opposition to the motion and the file herein. Oral argument is unnecessary.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

A. FACTS

The facts are not disputed. Mr. Behrmann worked on ships for nearly 30 years, first in the Navy and later at the Todd and Lockheed ("Lockheed") shipyards. Dkts. 214 and 271. He was exposed to asbestos both by products he directly worked on and by products others worked on near him. Id.

PCE provided engineering services (subcontractors) to Lockheed. Id. The Parties agree that PCE did not provide asbestos-containing products to Lockheed. Id. Plaintiff alleges, however, that PCE is liable because its employees worked on equipment containing asbestos near him, which exposed him to asbestos dust and caused his mesothelioma. The sole issue in this motion is whether Plaintiff can show that PCE is legally responsible for exposing him to asbestos dust that came from products it neither manufactured, nor supplied.

B. PENDING MOTION

As discussed in previous orders, maritime law applies to this case. (Dkts. 211, 219, 281). Both parties argue this motion under Washington law, but the outcome of the motion does not change under either Washington or maritime law. Defendant's motion should be granted and Plaintiff's claims against PCE should be dismissed.

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

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(a). 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.").

B. PRODUCTS LIABILITY

To the extent that he intends to bring a products liability claim, PCE's motion for summary judgment should be granted because Plaintiff does not provide any evidence that PCE manufactured or distributed asbestos-containing products. See McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016).

C. NEGLIGENCE

As with all negligence claims, a plaintiff claiming negligence in an asbestos case must demonstrate the elements of negligence. See Hoyt v. Lockheed Shipbuilding Co., 3:20-cv-1648, 2013 WL 3270371 at [*2] (W.D. Wash. 2013). Accordingly, a plaintiff must show that the defendant owed a duty not to expose the plaintiff to asbestos fibers, breach of this duty, and that the breach caused plaintiff's injury. Id.

Plaintiff does not produce sufficient evidence to support his claim of negligence. Assuming PCE owed Plaintiff a duty, there is no evidence that it breached its duty or, assuming it did breach a duty, that its breach caused Plaintiff's injury. Instead of providing such evidence, Plaintiff relies on inapposite case law considering claims against manufactures of asbestos-containing products to argue his claim survives because PCE employees worked on asbestos-containing products in his vicinity. See Dkt. 271. While such evidence of possible exposure may be sufficient in a products liability claim, it does not alone create a genuine issue of material fact of negligence.

PCE's motion for summary judgment on Plaintiff's claim of negligence should be granted.

D. OTHER CLAIMS

Defendant also moves for summary judgment on Plaintiff's claims of premises liability, conspiracy, and loss of consortium. Dkt. 214.

Plaintiff concedes that he does not bring claims of premises liability and conspiracy against PCE. Dkt. 271 at 16. Furthermore, Plaintiff cannot bring a claim for loss of consortium on his own behalf, see Christie v. Maxwell, 40 Wn. App. 40, 44 (1985), and leave to amend to add a family member to bring this claim would be futile because Plaintiff cannot show that PCE committed a legal wrong against him, see Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 870 (2000). Defendant's motion for summary judgment on this issue should be granted.

III. ORDER

Therefore, it is hereby ORDERED that:

• Defendant Propulsion Controls Engineering's Motion for Summary Judgment IS GRANTED;

• Defendant Propulsion Controls Engineering is dismissed from this matter.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.

Sources

• The opinion on Google Scholar
• Washington asbestos laws
• Washington asbestos exposure sites