Cook v. Foster Wheeler Energy Corporation (D. Mass., May 11, 2023)

Our plain-English summary of Cook v. Foster Wheeler Energy Corporation (U.S. District Court, District of Massachusetts, May 11, 2023).

Linda Cook sued, individually and as executor of her husband Ronald Cook's estate, after he died in May 2022 of malignant mesothelioma. Mr. Cook had served in the U.S. Navy as a fireman and boiler tender from about 1966 to 1968, and later repaired small engines such as lawnmowers and snowblowers from about 1976 to 1989. She claimed asbestos from products made or sold by the defendants caused his death. The plaintiff and the three remaining defendants, Briggs & Stratton, Foster Wheeler Energy Corporation and DCo LLC, filed cross motions for summary judgment. The court found that significant facts were still disputed. These included whether the gaskets Mr. Cook used on lawnmower engines contained asbestos or released fibers, whether Navy boiler specifications allowed Foster Wheeler to warn about asbestos, and whether the evidence showed DCo supplied asbestos-containing gaskets. Because of those disputes, the court denied all the summary judgment motions. It also dealt with several motions as moot because of a default judgment against another defendant and settlements.

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, District of Massachusetts
• Decided: May 11, 2023
• Docket: Civil Action No. 21-CV-11362
• Stage: Summary judgment
• State: Massachusetts

Outcome. The court denied all pending cross motions for summary judgment by plaintiff Linda Cook and defendants Briggs & Stratton, Foster Wheeler and DCo LLC because significant facts remained in dispute.

What the court held. Summary judgment is not appropriate where significant facts are genuinely in dispute, such as whether gaskets contained asbestos, what the Navy permitted regarding warnings, and whether DCo supplied asbestos gaskets.

Issues decided: Causation, Failure to Warn, Government Contractor Defense and Removal, Product Identification.

The people and their exposure

• Ronald Cook: mesothelioma; died

The defendants

• Briggs & Stratton Corporation (manufacturer)
• Foster Wheeler Energy Corporation (manufacturer)
• DCo LLC (supplier)

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.

LINDA A. COOK, individually and as Executor for the Estate of Ronald Cook,

v.

FOSTER WHEELER ENERGY CORPORATION, etal.

Civil Action No. 21-CV-11362.

May 11, 2023.

United States District Court, D. Massachusetts.

MEMORANDUM & ORDER

RYA W. ZOBEL, Senior District Judge.

Ronald Cook was a fireman and boiler tender in the U.S. Navy, from about April 1966 to November 1968. He then worked as a repairman on small engines (e.g., lawnmowers and snowblowers) from approximately 1976 to 1989. Mr. Cook died in May 2022 of malignant mesothelioma, a degenerative lung disease. Plaintiff Linda Cook, his widow, claims that his death was caused by his exposure to asbestos manufactured and/or sold by Defendants.

Plaintiff and each of the three remaining Defendants,[1] Briggs & Stratton Corporation, Foster Wheeler Energy Corporation, and DCo LLC, have filed cross motions for summary judgment.[2],[3] Docket ## 371, 374, 378, 386, and 387. Plaintiff seeks judgment as to Defendants' affirmative defenses because Defendants cannot carry their burden of proof.[4] Defendants seek judgment because Plaintiff is unable to prove her claims.

It is clear from the papers and oral arguments on March 23, 2023, that significant facts are still in dispute. For example, Plaintiff and Briggs & Stratton disagree whether the gaskets Mr. Cook used in his work on lawnmowers contained asbestos. Defendant relies on expert analysis finding that no asbestos fibers were "released during gasket removal from the small engine." See Docket # 439, Ex. E, at 5. Plaintiff, on the other hand, notes that the gaskets tested were coated in oil, which can prevent asbestos fibers from being released. She also cites expert opinions that Mr. Cook was exposed to asbestos from Briggs & Stratton engines and that such exposure was a substantial factor causing his mesothelioma. See Docket # 405 at 5. She further also argues that the Navy's applicable specifications for boilers permitted Foster Wheeler to provide warnings about asbestos exposure, whereas Foster Wheeler claims the Navy excused them from doing so. Compare

Docket # 413 at 15-25, with Docket # 379 at 15-17. Finally, Plaintiff and DCo disagree about the sufficiency of the evidence to identify DCo as a supplier of asbestos-containing gaskets. Compare Docket # 391 at 5-6, with Docket # 420 at 3-6. Summary judgment is not appropriate. Jones v. City of Boston, 845 F.3d 28, 32 (1st Cir. 2016); Sands v. Ridefilm Corp., 212 F.3d 657, 661 (1st Cir. 2000).

The pending motions for summary judgment (Docket ## 371, 374, 378, 386, and 387) are DENIED. Plaintiff's motion for leave to file an opposition in excess of twenty-page limit (Docket # 416) is ALLOWED, reluctantly.

[1] At the motion hearing on March 23, 2023, the court allowed Plaintiff's Motion for Default Judgment against Defendant Reinz Wisconsin Gasket LLC (Docket # 461). Therefore, the motions pertaining to this Defendant (Docket ## 326, 375, 376, and 377) are denied as moot. [2] The motions pertaining to Federal-Mogul (Docket #4 373 and 390) are denied as moot because the parties have resolved those claims. [3] Plaintiff's motion against DCo LLC (Docket # 372) was resolved by the parties prior to the motion hearing, and therefore is also denied as moot.

[4] Plaintiff also argues that Briggs & Stratton failed to properly notice their affirmative defenses pursuant to Fed. R. Civ. P. 8. The court did not consider that argument because summary judgment is not the appropriate remedy for this alleged deficiency. De La Vega v. The San Juan Star, Inc., 377 F.3d 111, 113, 116 (1st Cir. 2004).

Sources

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