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

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

Sherri Deem sued a long list of companies, individually and as personal representative of her late husband Thomas Deem's estate. Mr. Deem was diagnosed with mesothelioma on February 20, 2015, and died on July 3, 2015. She sued Crosby Valve, LLC in a second complaint filed June 28, 2018, and in August 2019 amended it to assert wrongful death claims under maritime law. Crosby moved to dismiss, arguing the claims were barred by the three-year maritime statute of limitations. The court had to decide whether the period ran from the diagnosis or from the death. It held that the period runs from when the injury and its cause were known, not from death, relying on a Louisiana federal decision involving silicosis. Deem offered no authority that a new claim arose at death, and Mr. Deem had died within five months of diagnosis, so he could have sued for his damages including those tied to the fatal prognosis. The court granted the motion to dismiss, denied Crosby's summary judgment motion as moot, and ordered Crosby terminated from the case. The opinion does not describe Mr. Deem's work or exposure.

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

Outcome. 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.

What the court held. Under maritime law, the three-year limitations period for a wrongful death claim runs from when the decedent knew or should have known of his injury and its cause, not from the date of death.

Issues decided: Wrongful Death and Survival, Statute of Limitations, Maritime Law and Navy Ships.

The people and their exposure

• Thomas A. Deem: mesothelioma; died

The defendants

• Crosby Valve, LLC (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 (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 (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.

December 6, 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 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 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.

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

FMC Corporation, individually & McNally Industries LLC, individually, 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.

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

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.

Grinnell LLC, Defendant, represented by Ronald C. Gardner, GARDNER TRABOLSI & ASSOC. PLLC.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS AND DENYING

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AS MOOT

BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Defendant Crosby Valve, LLC's ("Crosby") motion for summary judgment, Dkt. 153, and motion to dismiss, Dkt. 371. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby grants the motion to dismiss and denies the motion for summary judgment as moot. I. PROCEDURAL HISTORY

On November 20, 2017, Deem filed a complaint against Defendants Air & Liquid Systems Corporation, CBS Corporation, Crane Co., Foster-Wheeler Energy Corporation, General Electric Company, IMO Industries, Inc., and Warren Pumps, LLC. Dkt. 1 ("Deem 1").

On June 28, 2018, Deem filed a second complaint against Defendants Anchor/Darling Valve Company, BW/IP, Inc., Blackmer Pump Company, Clark-Reliance Corporation, Cleaver-Brooks, Inc., Crosby Valve, LLC ("Crosby"), Flowserve Corporation, Flowserve US, Inc., FMC Corporation ("FMC"), Gardner Denver, Inc., Goulds Pumps, Inc., Grinnell, LLC, Hopeman Brothers, Inc., ITT, LLC, Ingersoll-Rand Company, Jerguson Gage & Valve, John Crane, Inc., McNally Industries, LLC ("McNalley"), Velan Valve Corp., Viad Corp., Viking Pump, Inc., Weir Valves & Controls USA, Inc., and The WM Powell Company. C18-5527-BHS, Dkt. 1 ("Deem 2").

On December 13, 2018, the Court granted in part and denied in part Deem's motion to consolidate the cases. Dkt. 52. The Court consolidated the cases through "disposition of summary judgment or such other time prior to trial as the Court deems appropriate" and denied the motion as to the request to consolidate them for trial. Id. at 2.

On April 25, 2019, the Court granted FMC and McNalley's motion for summary judgment concluding that Deem's claim for wrongful death under Washington law was barred by the statute of limitations. Dkt. 105.

On May 23, 2019, Crosby filed a motion for summary judgment. Dkt. 153. On June 10, 2019, Deem responded. Dkt. 183. On June 14, 2019, Crosby replied. Dkt. 189.

On August 16, 2019, Deem filed an amended complaint asserting claims for wrongful death under maritime law. Deem 2, Dkt. 92.

On August 29, 2019, Crosby filed a motion to dismiss Deem's amended complaint. Dkt. 3712. On September 16, 2019, Deem responded. Dkt. 396. On September 20, 2019, Crosby replied. Dkt. 397.

II. FACTUAL BACKGROUND

Although the majority of the facts are set forth in a previous order, see Dkt. 408, the facts relevant to the instant motion are undisputed. On February 20, 2015, Mr. Deem's physicians diagnosed him with mesothelioma and on July 3, 2015, Mr. Deem died due to that illness. On June 28, 2018, Deem filed a complaint against Crosby.

III. DISCUSSION

A. Motion to Dismiss

Crosby moves to dismiss Deem's maritime claims arguing that the claims are barred by the statute of limitations. Dkt. 371. Under maritime law "a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose." 46 U.S.C. § 30106. A cause of action accrues when plaintiff "ha[s] a reasonable opportunity to discover his injury, its cause, and the link between the two." Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991). The clock starts ticking for purposes of the statute of limitations for claims under general maritime law when a plaintiff knew or should have known of his or her injury and its causes. See White v. Mercury Marine, 129 F.3d 1428 (11th Cir. 1997).

In this case, the question is whether the statute of limitations for wrongful death claims begins when the injury is discovered or when the person dies from that injury. In the most straightforward case, the injury and death occur on the same day with all limitations periods beginning on that day. On the other end of the spectrum, a plaintiff would know of his injury on one date and then pass away someday after the three-year statute of limitations had run. For example, in Wade v. Clemco Indus. Corp., CV 16-502, 2018 WL 263231 (E.D. La. Jan. 2, 2018), the injured worker passed away over forty years after he was diagnosed with silicosis. Upon his death, his wife brought a wrongful death action against numerous defendants alleging that they caused the silicosis and eventual death. Id. at [*2]. The court dismissed the claim as time barred concluding that the widow could not bring a claim that her husband could not have brought himself. Id. at [*3]. Specifically, the court stated that the "statute of limitation runs from `the date of such wrongful act, neglect or default' and not from the date of death, and therefore the running of time was determined from the date of the injury." Id. (citing The Law of Maritime Personal Injuries § 12:13.).

Unlike the plaintiff in Wade, Mr. Deem's fatal prognosis involved months instead of years. Deem, however, fails to provide any authority or persuasive argument why Mr. Deem's death within the statute of limitations for this known injury should reset or start a new statute of limitations for claims based on that alleged wrongful death. The date of knowledge of his injury did not change, and neither did the fatal prognosis. From that date, Mr. Deem had three years to bring this action. Deem fails to submit, and the Court is unaware of, any authority for the proposition that Mr. Deem could not have sought damages for both his past and existing damages as well as future damages related to that fatal prognosis. Sadly, Mr. Deem died within five months of his diagnosis.

At that point, the legal terminology changed but the date both he and his wife knew of his injury did not change. On this issue, Deem also fails to cite, and the Court is unaware of any authority, for the proposition that a new claim arose upon his death for damages that could not have been pursued before his death with the knowledge of a fatal prognosis. Thus, the running of the statute of limitations starts at the time of knowledge of the injury and not at the time of death. Wade, 2018 WL 263231 at [*3]. Therefore, the Court grants Crosby's motion to dismiss because Deem's claims are barred by the statute of limitations.

IV. ORDER

Therefore, it is hereby ORDERED that Crosby's motion for summary judgment, Dkts. 153, is DENIED as moot and motion to dismiss, Dkt. 371, is GRANTED.

The Clerk shall terminate Crosby.

Sources

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