Deem v. Air & Liquid Systems Corporation (W.D. Wash., Aug. 6, 2019)

Our plain-English summary of Deem v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, August 6, 2019).

Sherri Deem sued numerous equipment makers, individually and as personal representative of her husband Thomas Deem's estate, over his death from mesothelioma in 2015. Mr. Deem worked at the Puget Sound Naval Shipyard from 1974 to 1981 as an apprentice and journeyman machinist. Coworkers testified that he repaired valves, pumps, turbines and compressors on Navy ships and that the machinery spaces were dusty. Earlier, the court had granted summary judgment against her Washington-law claims. In this order, the court first decided whether maritime law applied. It found that the work and exposure aboard ships met both the locality and connection tests and granted Deem's motion to apply maritime law. It dismissed her remaining non-Washington-law claims as vague but let her amend, because the defendants had not shown that maritime claims would necessarily be time-barred. It denied without prejudice her request to certify a question to the Washington Supreme Court, calling it premature and possibly unnecessary, and ordered an amended complaint by August 16, 2019.

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: August 6, 2019
• Docket: Case No. C17-5965 BHS
• Stage: Motion to dismiss
• State: Washington

Outcome. 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.

What the court held. A party invoking admiralty jurisdiction must show by a preponderance of the evidence that some exposure occurred on a vessel on navigable waters and that the connection test is met. Coworker testimony about dusty work aboard ships in the shipyard met that burden. A plaintiff moving to apply maritime law has no general burden to show a conflict with state law.

Issues decided: Choice of Law, Maritime Law and Navy Ships, 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, Washington	1974-1979	gaskets and packing, turbines, pumps, compressors, valves, gaskets and seals

The defendants

• FMC Corporation (manufacturer)
• McNally Industries, Inc. (manufacturer)
• Ingersoll-Rand Company (manufacturer)
• Velan Valve Corporation (manufacturer)
• John Crane, Inc. (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 (June 10, 2019). 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.
• 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.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Cabasug v. Crane Co. (U.S. District Court, District of Hawaii, 2013). The court denied the Cabasugs' motion to apply Hawaii substantive law and ruled that admiralty law governs their asbestos tort claims against the defendant product makers.
• Conner v. Alfa Laval, Inc. (U.S. District Court, Eastern District of Pennsylvania, 2011). The court granted defendants' summary judgment motions in Conner, Prange and Stone only to the extent they sought application of maritime law, and denied them in Willis, where state law applies.

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, Plaintiff,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal., Defendants.

Case No. C17-5965 BHS.

August 6, 2019.

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

Sherri L. Deem, individually and as Personal Representative for the Thomas A. Deem, deceased, Plaintiff, represented by 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, Charles W. Branham, III, DEAN OMAR BRANHAM SHIRLEY LLP, pro hac vice, David C. Humen, DEAN OMAR BRANHAM SHIRLEY LLP, pro hac vice & Jessica Dean, DEAN OMAR BRANHAM SHIRLEY LLP, pro hac vice. Air & Liquid Systems Corporation, individually, 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 & James G. Scadden, GORDON REES SCULLY MANSUKHANI LLP, pro hac vice.

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, John W. Elder, PAINE TARWATER BICKERS LLP, pro hac vice, Lawrence D. Wilson, EVERT WEATHERSBY HOUFF, pro hac vice & William D. Harvard, EVERT WEATHERSBY HOUFF, pro hac vice. Foster-Wheeler Energy Corporation, Defendant, represented by Christopher S. Marks, TANENBAUM KEALE LLP, David A. Speziali, SPEZIALI, GREENWALD & HAWKINS, pro hac vice & Erin P. Fraser, TANENBAUM KEALE LLP.

General Electric Company, Defendant, represented by Christopher S. Marks, TANENBAUM KEALE LLP, David A. Speziali, SPEZIALI, GREENWALD & HAWKINS, pro hac vice, Erik Nadolink, WHEELER TRIGG O'DONNELL LLP, pro hac vice, Erin P. Fraser, TANENBAUM KEALE LLP & John Fitzpatrick, WHEELER TRIGG O'DONNELL LLP, pro hac vice.

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 & McNally Industries LLC, individually and as, Defendants, represented by Katherine M. Steele, BULLIVANT HOUSER BAILEY, Rachel Tallon Reynolds, LEWIS BRISBOIS BISGAARD & SMITH LLP, Rick C. Shea, SWANSON MARTIN & BELL LLP, pro hac vice & Ryan Wheeler, SWANSON MARTIN & BELL LLP, pro hac vice. Gardner Denver Inc, Defendant, represented by Claude Bosworth, RIZZO MATTINGLY BOSWORTH PC.

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, 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 Daniel J. O'Connell, DANIEL J O'CONNELL & ASSOC, pro hac vice, Meredith S. Hudgens, FOLEY & MANSFIELD, pro hac vice & Timothy Kost Thorson, CARNEY BADLEY SPELLMAN PS.

Ingersoll-Rand Company, Defendant, represented by Deborah K. St. Lawrence Thompson, NELSON MULLINS RILEY & SCARBOROUGH LLP, pro hac vice, 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, Peter W. Sheehan, Jr., NELSON MULLINS RILEY & SCARBOROUGH LLP, pro hac vice, Thurman W. Zollicoffer, Jr., NELSON MULLINS RILEY & SCARBOROUGH LLP, pro hac vice & 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'S MOTION TO DISMISS, GRANTING

PLAINTIFF'S MOTION TO APPLY MARITIME LAW, DENYING PLAINTIFF'S

MOTION TO CERTIFY QUESTION TO WASHINGTON SUPREME COURT, AND

GRANTING PLAINTIFF LEAVE TO AMEND

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendants FMC Corporation ("FMC") and McNally Industries, Inc.'s ("McNally") motion to dismiss, Dkt. 125, Plaintiff Sherri Deem's ("Deem") motion to apply maritime law, Dkt. 165, and Deem's motion to certify question to the Washington Supreme Court, Dkt. 182. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby rules as follows:

I. PROCEDURAL HISTORY

1. Complaints and First Dispositive Order

On November 20, 2017, Deem, individually and as the personal representative of the estate of Thomas Deem ("Mr. Deem"), filed a complaint against numerous defendants seeking damages for the asbestos-related death of Mr. Deem. Dkt. 1. On June 28, 2018, Deem filed a separate action for wrongful death against another twenty-three defendants 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.

On April 25, 2019, the Court granted summary judgment for FMC and McNally on Deem's claims to the extent they were brought under Washington law. Dkt. 105. On May 13, 2019, the Court denied Deem's motion for reconsideration. Dkt. 118. 2. Motion to Dismiss

On May 16, 2019, FMC and McNally filed a motion to dismiss all of Deem's remaining claims to the extent she brought claims under any law other than Washington law. Dkt. 125. Shortly thereafter, numerous defendants filed either motions or notices of joinder in FMC and McNally's motion. Dkts. 146, 148, 149, 163. On June 3, 2019, Deem responded. Dkt. 164. On June 7, 2019, FMC and McNally replied. Dkt. 180.

3. Motion to Apply Maritime Law

On June 3, 2019, Deem filed a motion to apply maritime law requesting that the Court "find that general maritime law should apply to all issues in this matter." Dkt. 165. On June 17, 2019, FMC and McNally responded, Dkt. 192, and Defendants Ingersoll-Rand Company ("Ingersoll-Rand") and Velan Valve Corporation ("Velan") responded, Dkt. 193. On June 20, 2019, John Crane, Inc. ("Crane") joined in Ingersoll-Rand and Velan's opposition. Dkt. 204. On June 21, 2019, Deem filed two replies. Dkts. 208, 209.

4. Motion to Certify

On June 10, 2019, Deem filed a motion to certify question to the Washington Supreme Court. Dkt. 182. On June 24, 2019, FMC and McNally responded, Dkt. 210, and Crane responded, Dkt. 212. On June 28, 2019, Deem replied. Dkt. 218. II. FACTUAL BACKGROUND

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 alleges that he was exposed to asbestos-containing products during his employment from 1974 through approximately 1979. Id. In support of this allegation, Deem submits the deposition testimony of Mr. Deem's coworkers, Lawrence Foster ("Foster") and David Wingo, Jr. ("Wingo"). Foster testified that he worked with Mr. Deem in the PSNS marine machinist apprentice program. Dkt. 166-1 at 4.[1] In this program, Foster and Deem would "work on ships and [they would] either remove valves or repair valves in place, pumps, various mechanical equipment" and they "worked on steam turbines somewhat and air compressors." Id. During the four-year apprentice program, they would spend approximately half their time working on ships and half their time working in the land-based machine shop. Id. at 5. Foster remembers that the machinery spaces on the ships were "dusty throughout" because multiple workers were in the spaces completing their individual assignments. Id. at 7, 22. Finally, Foster testified that he worked with Mr. Deem on the USS Kitty Hawk, USS Constellation, USS Bainbridge, USS Truxton, and USS Enterprise. Id. at 6.

Wingo's testimony is similar is all relevant aspects. Wingo even worked with Mr. Deem for a longer period of time because they both worked at PSNS after the apprentice program ended. Id. at 51.

On February 20, 2015, Mr. Deem was diagnosed with mesothelioma, and, on July 2, 2015, Mr. Deem passed away. Dkt. 80 at 2.

III. DISCUSSION

A. Admiralty Jurisdiction

Some parties contest the application of admiralty jurisdiction. The party seeking to invoke such jurisdiction bears the burden to establish that it applies. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). To satisfy this burden, the moving party must plead allegations or submit evidence to meet the requirements of (1) the locality test and (2) the connection test. Id.

1. Locality Test

Under the locality test, admiralty law is appropriate if "the tort occurred on navigable water or [if] the injury suffered on land was caused by a vessel on navigable water." Id. "[I]t is well-settled that vessels in dry dock are still considered to be on navigable waters for purposes of admiralty jurisdiction." Cabasug v. Crane Co., 956 F. Supp. 2d 1178, 1187 (D. Haw. 2013). The Court "may not exercise maritime jurisdiction unless the party invoking maritime jurisdiction demonstrates, by a preponderance of the evidence, that some exposure occurred on a vessel on navigable waters." Conner v. Alfa Laval, Inc., 799 F. Supp. 2d 455, 467 (E.D. Pa. 2011).

In this case, FMC and McNally argue that Deem "has failed to meet her burden that any of Mr. Deem's alleged exposure to asbestos occurred on navigable waters." Dkt. 192 at 5. To advance such a position, one must completely ignore the testimony of Deem's co-workers. While it is true that Deem's "complaint is devoid of any allegation that Mr. Deem's exposure took place aboard vessels in navigable waters or at drydock at PSNS," Dkt. 192 at 5, Deem's vagueness could have been based on the facts known at the time of filing, which appear to be that Mr. Deem worked at PSNS, his work entailed both land-based machine shop work and ship-based repair work, and he died from mesothelioma. Regardless, the proper standard is preponderance of the evidence, not specificity of the complaint. Conner, 799 F. Supp. 2d at 467. Turning to the evidence, Foster and Wingo's testimony firmly establishes that Mr. Deem was exposed to dust on board ships that were allegedly equipped with products that contained asbestos. FMC and McNally offer no evidence to contest these facts, allegations, and reasonable inferences. Thus, the Court finds that Deem has met her burden on the locality test. 2. Connection Test

The connection test involves a two-part analysis and is met if (1) the incident has a potentially disruptive impact on maritime commerce and (2) the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. Sisson v. Ruby, 497 U.S. 358, 370-72 (1990); Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). The Ninth Circuit has "taken an inclusive view of what general features of an incident have a potentially disruptive effect on maritime commerce." In re Mission Bay Jet Sports, LLC, 570 F.3d 1124, 1128 (9th Cir. 2009). In this case, FMC and McNally argue that Deem has failed to meet her burden under the first element of this test because, " [a]t most, her motion provides evidence that Mr. Deem spent half of his time making repairs to equipment in the land-based machine shop at PSNS and half of his time aboard vessels at PSNS." Dkt. 192 at 6. While true, this argument ignores Foster and Wingo's testimony as to where Deem's alleged exposure to defendants' products occurred. Both coworkers testify that the majority of exposure to turbines, pumps, compressors, and valves occurred on the ships as well as the exposure to the dust from gaskets and seals. FMC and McNally fail to cite any evidence establishing that Mr. Deem's land-based work involved a similar or an additional amount of exposure to such products. Thus, the Court finds that Deem has met her burden on the first element.

Regarding the second element, Deem argues that this element is satisfied because Mr. Deem's alleged injuries occurred in the repair and maintenance of naval vessels. Dkt. 165 at 13. FMC and McNally do not challenge Deem's argument on this issue, and the Court finds that Deem's position is in accord with the law. See, e.g., Cabasug, 956 F. Supp. 2d at 1190 ("Because the products at issue were certainly necessary for the proper functioning of the vessels, this court agrees with the reasoning in Conner that this allegedly defective production bears a substantial relationship to traditional maritime activity."). Therefore, the Court finds that Deem has satisfied her burden on this element, satisfied her burden in general, and grants Deem's motion on the sole issue of whether maritime law applies in this matter. The remaining issue is Deem's request for maritime law to apply to "all issues in this matter." Dkt. 165 at 13. It seems that Deem requests retroactive effect of this ruling such that the Court's prior orders dismissing her claims under Washington law as time-barred are now irrelevant. Although the parties lightly touch on this issue, the Court expects full briefing in subsequent motions to dismiss Deem's amended claims.

3. Choice of Law

FMC and McNally argue that Deem has failed to show that substantive maritime law conflicts with substantive Washington law. Dkt. 192 at 7. FMC and McNally have failed to show that Deem bears any general burden to establish such a conflict when moving for the application of maritime law in general. Thus, the Court disagrees with FMC and McNally that Deem's failure to identify a conflict is "reason alone" to deny her motion. Id.

B. Motion to Dismiss

FMC and McNally move to dismiss Deem's complaint as to any "claims that arise under any substantive body of law other than Washington state law with prejudice." Dkt. 125.[2] The Court agrees with FMC and McNally that Deem's claims are vague and subject to dismissal for failure to state a claim. Therefore, the Court grants FMC and McNally's motion.

In the event the court finds that dismissal is warranted, the court should grant the plaintiff leave to amend unless amendment would be futile. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). In a footnote, FMC and McNally argue that amendment to add maritime claims would be futile because they would be time barred. Dkt. 125 at 4 n.1. Deem argues that the cases FMC and McNally cite are factually distinguishable from this case. Dkt. 164 at 7. While the Court does not necessarily agree with that position, the Court finds that FMC and McNally have failed to conclusively establish that Deem's maritime claims would be futile. Therefore, Deem is granted leave to amend her complaint.[3] C. Motion to Certify

Deem moves the Court to certify a question addressed in the Court's prior order to the Washington Supreme Court. Dkt. 182. The Court finds that Deem's motion is at least premature and could be unnecessary. "The mere fact that the plaintiffs invoked the diversity of citizenship jurisdiction of the district court does not preclude the application of maritime law." Carey v. Bahama Cruise Lines, 864 F.2d 201, 206 (1st Cir. 1988). "Because the alleged torts are maritime torts, admiralty jurisdiction exists, and general (i.e. federal) maritime law applies as the substantive law in these actions. General maritime law preempts state law, and must be applied even where, as here, plaintiffs choose not to invoke admiralty jurisdiction and rely instead on diversity jurisdiction and federal question jurisdiction." In re Air Disaster Near Honolulu, Haw. on Feb. 24, 1989, 792 F. Supp. 1541, 1544 (N.D. Cal. 1990). Although the parties have not briefed the issue, it seems that maritime law may preempt Washington law and the Court's orders as to a novel issue of Washington law could be considered an advisory opinion that should be vacated. In any event, the Court declines to certify a question that could be irrelevant to this proceeding. Accordingly, the Court denies Deem's motion without prejudice.

IV. ORDER

Therefore, it is hereby ORDERED that FMC and McNally's motion to dismiss, Dkt. 125, is GRANTED; Deem's motion to apply maritime law, Dkt. 165, is GRANTED; Deem's motion to certify question to the Washington Supreme Court, Dkt. 182, is DENIED without prejudice; and Deem is GRANTED leave to amend her complaint. Deem shall file an amended complaint no later than August 16, 2019.

[1] ECF pagination.

[2] The Court notes that the motion is untimely, which is reason alone to deny the motion. Fed. R. Civ. P. 12(a)(1)(A)(i). Deem, however, fails to raise this issue, and the Court declines to sua sponte deny the untimely motion.

[3] Granting Deem leave to amend is an implicit denial of Ingersoll-Rand, Velan, and Crane's opposition to Deem's motion to apply maritime law.

Sources

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