Deem v. Air & Liquid Systems Corporation (W.D. Wash., June 10, 2019)

Our plain-English summary of Deem v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, June 10, 2019).

Sherri Deem sued on her own behalf and for the estate of her husband, Thomas Deem, who worked at the Puget Sound Naval Shipyard from 1974 to 1981 as an apprentice and journeyman outside machinist. The complaint alleged he was exposed to asbestos-containing products there through about 1979. He was diagnosed with mesothelioma in February 2015 and died in July 2015. She sued many product makers for personal injury and wrongful death, including Cleaver-Brooks in a second, later-consolidated case. Earlier, on April 25, 2019, the court had granted summary judgment to other defendants on her Washington-law claims based on the Washington statute of limitations, and it had refused to reconsider that ruling. Cleaver-Brooks asked for the same result. Mrs. Deem did not dispute that the facts were materially indistinguishable and only repeated that the earlier ruling was wrong. Applying the law of the case doctrine, the court granted summary judgment to Cleaver-Brooks on her claims arising under Washington law. It noted she might seek certification to the Washington Supreme Court.

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: June 10, 2019
• Docket: Case No. C17-5965 BHS
• Stage: Summary judgment
• State: Washington

Outcome. The court granted Cleaver-Brooks's motion for summary judgment on Sherri Deem's claims to the extent they arise under Washington law, following its earlier April 25th Order on the statute of limitations.

What the court held. Under the law of the case doctrine, the court would not reconsider its earlier decision granting summary judgment on Washington statute of limitations grounds to similarly situated defendants, and applied it to Cleaver-Brooks.

Issues decided: Wrongful Death and Survival, Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• Thomas A. Deem: mesothelioma; died

Who	Work	Where	When	Products
Thomas A. Deem	apprentice and journeyman outside machinist (shipyards and maritime work)	Puget Sound Naval Shipyard, Bremerton, Washington	1974-1979

The defendants

• Cleaver-Brooks, Inc. (manufacturer)
• Air & Liquid Systems Corp. (manufacturer)
• CBS Corp. f/k/a Westinghouse Electric (manufacturer)
• Crane Co. (manufacturer)
• Foster Wheeler Energy Corp. (manufacturer)
• General Electric Co. (manufacturer)
• IMO Industries, Inc. (manufacturer)
• Warren Pumps, LLC (manufacturer)
• FMC (manufacturer)
• McNally (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Deem v. Air & Liquid Systems Corporation (April 18, 2019). The court reserved ruling on summary judgment motions by GE, Foster Wheeler and Westinghouse, allowed Mrs. Deem a Rule 56(d) continuance instead of denying the motions as premature, and ordered supplemental briefing on the effect of the Supreme Court's DeVries decision.
• Deem v. Air & Liquid Systems Corporation (April 25, 2019). The court granted summary judgment to FMC, McNally and the joining defendants, barring Mrs. Deem's wrongful death claims against them to the extent they arise under Washington law, because the limitations period on Mr. Deem's personal injury claims against them had run.
• Deem v. Air & Liquid Systems Corporation (August 6, 2019). The court granted FMC and McNally's motion to dismiss Deem's non-Washington-law claims as vague, but gave her leave to amend. It also granted Deem's motion to apply maritime law and denied her motion to certify a question to the Washington Supreme Court without prejudice.
• Deem v. Air & Liquid Systems Corporation (December 6, 2019). The court granted Crosby Valve's motion to dismiss Sherri Deem's maritime wrongful death claims as time-barred and denied Crosby's summary judgment motion as moot; Crosby was terminated from the case.
• Deem v. Air & Liquid Systems Corporation (January 24, 2020). The court granted summary judgment to Air & Liquid Systems, Foster-Wheeler and Warren Pumps on Deem's maritime law claims, and denied Deem's motions for partial summary judgment on their affirmative defenses as moot.
• Deem v. Air & Liquid Systems Corporation (March 9, 2023). On remand from the Ninth Circuit, the court granted summary judgment to John Crane, Crosby Valve and William Powell on causation, dismissing the widow's maritime wrongful death claims with prejudice, and denied the defendants' limitations-based motions to dismiss.

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.

SHERRI L. DEEM, individually and as Personal Representative of the Estate of THOMAS A. DEEM,

deceased, Plaintiff,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal., Defendants.

Case No. C17-5965 BHS.

June 10, 2019.

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

Sherri L. Deem, individually and as Personal Representative for the estate of Thomas A. Deem, deceased, Plaintiff, represented by David C. Humen, DEAN OMAR BRANHAM SHIRLEY LLP, pro hac vice, Elizabeth Jean McLafferty, SCHROETER GOLDMARK & BENDER, Lucas W.H. Garrett, SCHROETER GOLDMARK & BENDER, Thomas J. Breen,

SCHROETER GOLDMARK & BENDER & Benjamin H. Adams, DEAN OMAR & BRANHAM, LLP, pro hac vice.

Air & Liquid Systems Corporation, individually successor in interest Buffalo Pumps, Defendant, represented by Brady L. Green, WILBRAHAM LAWLER & BUBA PC, pro hac vice, Edward J. White, WILBRAHAM LAWLER & BUBA PC, pro hac vice, Kevin J. Craig, GORDON REES SCULLY MANSUKHANI LLP, Mark B. Tuvim, GORDON REES SCULLY

MANSUKHANI LLP & Trevor J. Mohr, GORDON REES SCULLY MANSUKHANI LLP.

CBS Corporation, formerly known as Viacom Inc successor in interest CBS Corporation formerly known as Westinghouse Electric Corporation, Defendant, represented by Christopher G. Conley, EVERT WEATHERSBY HOUFF, pro hac vice, Christopher S. Marks, TANENBAUM KEALE LLP, David A. Speziali, SPEZIALI, GREENWALD & HAWKINS, pro hac vice & Erin P. Fraser, TANENBAUM KEALE LLP.

Foster-Wheeler Energy Corporation & General Electric Company, Defendants, represented by Christopher S. Marks, TANENBAUM KEALE LLP, David A. Speziali, SPEZIALI, GREENWALD & HAWKINS, pro hac vice & Erin P. Fraser, TANENBAUM KEALE LLP.

IMO Industries Inc, individually, Defendant, represented by James Edward Horne, GORDON THOMAS HONEYWELL & Michael Edward Ricketts, GORDON THOMAS HONEYWELL.

Warren Pumps LLC, Defendant, represented by Allen Eraut, RIZZO MATTINGLY BOSWORTH PC.

FMC Corporation, individually and as FMC Corporation & McNally Industries LLC, individually and as McNally Industries LLC, Defendants, represented by Katherine M. Steele, BULLIVANT HOUSER BAILEY, Rachel Tallon Reynolds, LEWIS BRISBOIS BISGAARD & SMITH LLP & Ryan Wheeler, SWANSON MARTIN & BELL LLP, pro hac vice.

Blackmer Pump Company & Gardner Denver Inc, Defendants, represented by Claude Bosworth, RIZZO MATTINGLY BOSWORTH PC.

BW/IP International Inc, individually and as BW/IP International Inc, Defendant, represented by Christine E. Dinsdale, SOHA & LANG PS & Rachel A. Rubin, SOHA & LANG PS.

Flowserve US Inc, Defendant, represented by Marc Marshall Carlton, LEWIS BRISBOIS BISGAARD & SMITH LLP & Randy J. Aliment, LEWIS BRISBOIS BISGAARD & SMITH LLP.

Armstrong International Inc, Defendant, represented by Bennett J. Hansen, PREG O'DONNELL & GILLETT, PLLC, David E. Chawes, PREG O'DONNELL & GILLETT, PLLC & Stephanie B. Ballard, PREG O'DONNELL & GILLETT, PLLC.

ITT LLC, Viad Corp., individually and as Viad Corp., Crosby Valve LLC, Goulds Pumps Inc & Grinnell LLC, Defendants, represented by Ronald C. Gardner, GARDNER TRABOLSI & ASSOC. PLLC.

John Crane Inc, Defendant, represented by Daira S. Waldenberg, SELMAN BRIETMAN LLP.

Cleaver-Brooks Inc, Defendant, represented by Timothy Kost Thorson, CARNEY BADLEY SPELLMAN PS.

Ingersoll-Rand Company, Defendant, represented by Katherine A. Lawler, NELSON MULLINS RILEY & SCARBOROUGH LLP, pro hac vice, Kevin J. Craig, GORDON REES SCULLY MANSUKHANI LLP, Mark B. Tuvim, GORDON REES SCULLY MANSUKHANI LLP & Trevor J. Mohr, GORDON REES SCULLY MANSUKHANI LLP.

The William Powell Company, Defendant, represented by Brian Bernard Smith, FOLEY & MANSFIELD & James D. Hicks, FOLEY & MANSFIELD.

Velan Valve Corp, Defendant, represented by Kevin J. Craig, GORDON REES SCULLY MANSUKHANI LLP, Mark B. Tuvim, GORDON REES SCULLY MANSUKHANI LLP & Trevor J. Mohr, GORDON REES SCULLY MANSUKHANI LLP.

ORDER GRANTING DEFENDANT CLEAVER-BROOKS'S MOTION FOR

SUMMARY JUDGMENT

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendant Cleaver-Brooks, Inc.'s ("Cleaver-Brooks") motion for summary judgment. Dkt. 106. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.

I. PROCEDURAL AND FACTUAL BACKGROUND

Thomas A. Deem ("Mr. Deem") worked at the Puget Sound Naval Shipyard ("PSNS"), from 1974 to 1981 as an apprentice and journeyman outside machinist. Dkt. 1, ¶ 14.C. Mr. Deem was exposed to asbestos-containing products during his employment from 1974 through approximately 1979. Id. Mr. Deem was diagnosed with mesothelioma on February 20, 2015 and died on July 2, 2015. Dkt. 80 at 2.

On November 20, 2017, Plaintiff Sherri L. Deem ("Mrs. Deem"), on her own behalf and on behalf of Mr. Deem's estate, filed a complaint for personal injury and wrongful death, alleging that while working at PSNS Mr. Deem was exposed to asbestos and/or asbestos-containing products manufactured and/or sold by Defendants including Air & Liquid Systems Corp., CBS Corp. f/k/a Westinghouse Electric, Crane Co., Foster Wheeler Energy Corp., General Electric Co., IMO Industries, Inc., and Warren Pumps, LLC. Dkt. 1. On June 28, 2018, Mrs. Deem filed a separate action for wrongful death against another twenty-three companies including Cleaver-Brooks, FMC, and McNally in Deem v. Armstrong Int'l, Inc., etal., Cause No. 3:18-cv-05527 BHS, Dkt. 1. On December 13, 2018, that case was consolidated with the instant case for the purposes of discovery and for pretrial matters through summary judgment. Dkt. 52.

Though the complaint against the first set of defendants was titled "Complaint for Personal Injury and Wrongful Death," Dkt. 1 at 1, and the complaint against the second set of defendants was titled "Complaint for Wrongful Death," both complaints contain the same product liability claims including negligence, strict products liability, and "any other applicable theory of liability," including "if applicable RCW 7.72 et seq.," and allege that the defendants' actions or omissions "proximately caused severe personal injury and other damages to Plaintiff's decedent, including his death." Dkt. 1, ¶¶ 17, 19; Deem v. Armstrong Int'l, Inc., etal., Cause No. 3:18-cv-05527 BHS, Dkt. 1, ¶¶ 34, 36.

The complaints do not specify whether Mrs. Deem brings her claims pursuant to Washington law only, or also pursuant to maritime law. Both appear applicable to her claims.

On April 25, 2019, the Court granted summary judgment for Defendants FMC and McNally on Mrs. Deem's claims to the extent they were brought under Washington law ("the April 25th Order").[1] Also on April 25, 2019, Cleaver-Brooks filed a motion for summary judgment on Mrs. Deem's claims against it to the extent they arise under Washington law. Dkt. 106. On May 13, the Court denied Mrs. Deem's motion for reconsideration of the April 25th Order. Dkt. 119. Also on May 13, 2019, Mrs. Deem responded to Cleaver-Brooks's motion. Dkt. 122. On May 17, 2019, Cleaver-Brooks replied. Dkt. 130. II. DISCUSSION

Cleaver-Brooks argues that the facts relevant to Mrs. Deem's claims against Cleaver-Brooks are materially indistinguishable from the facts relevant to Mrs. Deem's claims against the defendants granted summary judgment based on the Washington statute of limitations in the April 25th Order. Dkt. 106 at 1 (citing Dkt. 105). Mrs. Deem does not dispute this. Dkt. 122. In her response, Mrs. Deem again presents argument that the Court's decision in the April 25th Order was erroneous. Id.[2] Cleaver-Brooks is correct that "[t]he law of the case doctrine generally precludes reconsideration of `an issue that has already been decided by the same court, or a higher court in the identical case.'" Rocky Mountain Farmers Union v. Corey, 913 F.3d 940, 951 (9th Cir. 2019) (citing United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997)). Finding that Cleaver-Brooks is similarly situated to the defendants granted summary judgment in the April 25th Order, Dkt. 105, and having already declined to reconsider its decision, Dkt. 119, the Court grants summary judgment for Cleaver-Brooks to the extent that Mrs. Deem's claims arise under Washington law for the reasons set forth in its previous decisions. III. ORDER

Therefore, it is hereby ORDERED that Cleaver-Brooks's motion for summary judgment, Dkt. 106, is GRANTED to the extent Mrs. Deem's claims arise under Washington law.

[1] Seven other defendants joined the motion and are set out in the April 25th Order. Dkt. 105 at 3. [2] Mrs. Deem also suggests that the Court should certify this question to the Washington Supreme Court. Id. In a subsequent motion, Mrs. Deem informs the Court that she intends to file a motion for certification. Dkt. 165 at 2 n.1. Should Mrs. Deem file this motion, the Court will consider it in due course.

Sources

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