Faddish v. Warren Pumps, LLC (2010)

Our plain-English summary of Faddish v. Warren Pumps, LLC (U.S. District Court, Eastern District of Pennsylvania, October 22, 2010).

Ruth Faddish sued Warren Pumps LLC and others, individually and as executrix of her husband John's estate. John Faddish served in the U.S. Navy aboard the U.S.S. Essex from 1958 to 1961 and died of mesothelioma. The claims were based on failure to warn under Florida law. Warren moved for summary judgment, arguing there was no evidence its products substantially contributed to his illness and that it was not the successor to Quimby Pump Company, whose pumps were also aboard the ship. A panel of magistrate judges recommended denying the motion on causation but granting it on successor liability. Warren objected only to the causation part. Mr. Faddish had testified that he replaced packing on pumps, which created dust he inhaled, and a Navy expert said at least seven Warren pumps in his engine rooms specified asbestos gaskets and packing. The court found this enough for a jury, overruled the objections, and denied summary judgment. It adopted the unopposed finding that Warren only bought Quimby's assets and was not its successor.

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, Eastern District of Pennsylvania
• Decided: October 22, 2010
• Docket: No. 875, Civil Action No. 09-70626
• Stage: Summary judgment
• State: Pennsylvania

Outcome. The court overruled Warren Pumps' objections, adopted the magistrate panel's recommendation, and denied Warren's summary judgment motion on causation, while also adopting the unobjected finding that Warren is not Quimby Pump Company's successor-in-interest.

What the court held. Under Florida law, a plaintiff must show the defendant's product was a substantial contributing factor to the injury; testimony of the worker combined with expert testimony about asbestos packing and gaskets on the defendant's pumps was enough to raise a genuine factual issue.

Issues decided: Causation, Choice of Law, Expert Testimony, Failure to Warn, Product Identification, Successor Liability.

The people and their exposure

• John Faddish: mesothelioma; died

Who	Work	Where	When	Products
John Faddish	serviceman in the U.S. Navy (the Navy); military service	U.S.S. Essex	1958-1961	gaskets and packing, Warren Pumps asbestos packing and gaskets

The defendants

• Warren Pumps LLC (manufacturer)
• Quimby Pump Company (manufacturer)

Other decisions in this case

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

• Peter & Elpis Constantinides v. Alfa Laval, Inc. (August 19, 2010). The court overruled Crane Co.'s objections, adopted the magistrate panel's report, and denied Crane Co.'s motion for summary judgment, so the plaintiffs' claims against Crane Co. proceed.
• Curry v. American Standard (August 20, 2010). The court sustained Buffalo Pumps' first objection only in part, overruled its other objections, and adopted the magistrate panel's recommendation denying Buffalo's summary judgment motion, so the estate of Michael Curry's claim against Buffalo continues.
• Gitto v. AW Chesterton Co., Inc. (August 20, 2010). The district court overruled Crane Co.'s objections and adopted the magistrate panel's recommendation denying Crane Co.'s motion for summary judgment, so the Gittos' claims against Crane Co. continue; the bare-metal argument was denied without prejudice to refiling in the transferor court.
• Peter & Elpis Constantinides v. CBS Corporation (September 30, 2010). The court sustained CBS/Westinghouse's objections and granted summary judgment on the original gaskets and packing for lack of product-identification evidence, but denied summary judgment without prejudice on the bare metal defense and denied it on the sophisticated purchaser defense, so the plaintiffs partly lost and partly prevailed.
• Peter & Elpis Constantinides v. Leslie Controls, Inc. (October 1, 2010). The court overruled Leslie Controls' objections and denied its summary judgment motion on product identification and causation, leaving the bare metal defense to the transferor court, so the plaintiffs prevailed for now.
• Peter & Elpis Constantinides v. CBS Corporation (October 8, 2010). The court sustained CBS Corporation (Westinghouse)'s objection that no evidence tied Mr. Constantinides's injury to original Westinghouse gaskets and packing, but denied summary judgment without prejudice on the bare metal defense and denied it on the sophisticated purchaser defense, so plaintiffs won in part and CBS won in part.
• Faddish v. CBS Corporation (October 22, 2010). The court overruled CBS Corporation's objections and denied its summary judgment motion on product identification, denied it without prejudice on the bare metal defense (leaving that to the transferor court), and denied it on the sophisticated purchaser defense, so Ruth Faddish's claim continues.
• Faddish v. General Electric Co. (October 22, 2010). The court adopted the magistrate panel's finding that a genuine factual dispute existed on product identification, but granted General Electric summary judgment on the government contractor defense, so the plaintiff lost her failure-to-warn claim against GE.
• Larson v. Georgia Pacific (In re Asbestos Products Liability Litigation) (November 22, 2010). The district court overruled both Georgia Pacific's objections and the plaintiffs' objections to the magistrate judge's ruling, so the magistrate judge's denial of both sides' motions to exclude expert testimony stood.
• Anderson v. Salmon Bay and Gravel Co. (In re Asbestos Products Liability Litigation) (February 16, 2011). The court refused to preclude plaintiffs' pathologist Dr. Hammar's "every exposure" opinion, finding it reliable enough under Rule 702 and leaving the defendant's objections to cross-examination, so Salmon Bay's motion failed as to him; it found Dr. Brodkin had not offered that opinion and could not evaluate Dr. Brody for lack of record materials.
• Rabovsky v. Air & Liquid Systems Corp. (March 13, 2012). The district judge overruled objections by Pennsylvania Electric and Crane, adopting the magistrate judge's recommendation to deny judgment on the pleadings and affirming denial of Crane's motion to exclude 'each and every exposure' expert testimony, so plaintiffs prevailed on both points.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Celotex Corp. v. Copeland (Florida Supreme Court, 1985). The Florida Supreme Court quashed the Third District's approval of market share liability (reinstating dismissal of that theory but allowing Copeland to amend his complaint), and approved the Third District's ruling that the statute of limitations could not be decided by summary judgment, so the Copelands may proceed against the asbestos manufacturers.

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.

RUTH FADDISH, Individually and as executrix of the estate of JOHN FADDISH, deceased, Plaintiff,

v.

WARREN PUMPS, LLC et al., Defendants.

No. 875, Civil Action No. 09-70626.

October 22, 2010.

United States District Court, E.D. Pennsylvania.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Before the Court is the report and recommendation ("R&R") issued by Magistrate Judge David R. Strawbridge, and joined by Chief Magistrate Judge Thomas J. Rueter and Magistrate Judge Elizabeth T. Hey ("the Panel"), and defendant Warren Pumps LLC's objections thereto. The Panel recommends that the Court deny Warren Pumps LLC's motion for summary

judgment.[1] Federal jurisdiction in this case is based on diversity of citizenship under 28 U.S.C. § 1332. The issue before the Court revolves around product identification.

I. BACKGROUND

This case is part of MDL-875, the consolidated asbestos products liability multidistrict litigation pending in the Eastern District of Pennsylvania. The instant claims are based on failure to warn causes of action under Florida law. (Compl. ¶5.) Plaintiff's husband and the injured party in the instant case, John Faddish ("Mr. Faddish"), was a serviceman in the U.S. Navy. Mr. Faddish served aboard the U.S.S. Essex from 1958-1961. (Suppl. Compl. ¶¶ 3-5.) Plaintiff alleges that Mr. Faddish's death from mesothelioma was related to asbestos-containing Warren Pumps LLC ("Warren") products used

aboard the U.S.S. Essex. (Id.)

Warren moved for summary judgment on two grounds. First, Warren asserted that there is no genuine issue of material fact as to whether Warren products were a substantial contributing factor to Mr. Faddish's injuries.[2] (Def.'s Mot. Summ. J., doc. no. 130, at 9). Second, Warren asserted that they cannot be held liable as a successor-in-interest to pumps manufactured by Quimby Pump Company that were aboard the U.S.S. Essex. (Id. at 5.)

The Panel issued an R&R denying Warren's Motion for Summary Judgment, finding that the combination of decendent's testimony and Plaintiff's expert witness could lead a reasonable jury to find that Warren products were a substantial contributing cause to Mr. Faddish's injuries. (R&R, doc. no. 161, at 6.) The Panel granted Warren's Summary Judgment on the issue of successor liability to Quimby Pumps. (R&R, doc. no. 161, at 7.) As no objections to that portion of the R&R have been filed, this Court adopts the Panel's finding that Warren is not a successor-in-interest to the Quimby Pump Company, as it merely purchased its assets, but did not assume its liabilities. (Def.'s Mot. Summ. J. at 5; R&R at 7, n.4.)

Warren raises two objections to the R&R. First, it argues that the Panel erred in determining that Plaintiff has raised sufficient evidence on the issue of causation to survive summary judgment. (Def.'s Objects., doc. no. at 180, at 1.) Second, it objects to the Panel's determination that Mr. Faddish's testimony regarding working on pumps, generally, supports an inference that Mr. Faddish worked on Warren pumps. (Id.) The Court overrules each of these objections, and adopts the Panel's R&R denying Warren's Motion for Summary Judgment.

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 636(b)(1)(C), "[a] judge of the Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the Court may accept,

reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

When evaluating a motion for summary judgment, Federal Rule of Civil Procedure 56 provides that the Court must grant judgment in favor of the moving party when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact. . . ." Fed. R. Civ. P. 56(c)(2). A fact is "material" if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248-49. "In considering the evidence, the court should draw all reasonable inferences against the moving party." El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).

"Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, `the burden on the moving party may be discharged by showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (quoting Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)). Once the moving party has thus discharged its burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in [Rule 56]—set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).

III. DISCUSSION

Pursuant to 28 U.S.C. § 636(b)(1)(C), the Court must apply a de novo standard of review to the portions of the R&R that Warren has objected to.

Florida Law applies to the instant case.[3] Under Florida law, a plaintiff must show that a defendant's product was a "substantial contributing factor" to the injury that occurred to bring a claim. (Asbestos and Silica Compensation Fairness Act, FLA. STAT. § 774.205). If defendant's products are identified in a given case, "traditional" methods of finding causation apply. Celotex Corp. v. Copeland, 471 So. 2d 533, 536 (Fla. 1985). The traditional method of establishing causation in negligence cases requires the plaintiff to "introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result." Gooding v. University Hospital Bldg, Inc., 445 So. 2d 1015 (Fl. 1984)(quoting Prosser, LAW OF TORTS § 41 (4th Ed. 1971)).

A. There Remains a Genuine Issue of Material Fact as to Whether Warren

products were a Substantial Contributing Factor to Mr. Faddish's Injuries

The Panel pointed to two pieces of evidence on the record to determine that a reasonable jury could find that Warren products were a "substantial contributing factor" to Mr. Faddish's injuries. First, Mr. Faddish testified that

[W]e would fit [packing material], and I forget what pumps they were, but we would put [packing] in to keep

steam and keep the pressure inside the pumps or the unit. The packing material was flexible, silverish in

color by about a quarter inch and there were several layers on top of one another, and we would tighten that

down to avoid leakage. (Dep. of John Faddish, Vol. I at 38:7-13).

Mr. Faddish testified that the replacement of packing materials on these pumps created dust, which he inhaled. (Id. at 38-39.) Plaintiff's expert, retired Naval Captain Arnold Moore, testified that there were at least seven Warren pumps inside the engine rooms in which Mr. Faddish worked, and that these pumps specified the use of asbestos gaskets and packing. (Moore Report, doc. no. 131-7, 9-11.); (Dep. of Arnold Moore, doc. no. 131-8 at 89:11-112:4).

When viewed in a light most favorable to Plaintiff, this raises a genuine issue of material fact as to whether Mr. Faddish's work on Warren pumps aboard the U.S.S. Essex was a substantial contributing factor to his asbestos-related injuries, and Warren's objection on this basis is overruled. Further, Warren's objection that Mr. Faddish's testimony regarding pumps is too general to support an inference of Warren's liability is overruled, as Plaintiff's expert testimony is sufficient to raise a genuine issue of fact as to Warren's liability. Warren's objections to the Magistrate Judges' R&R in this case are overruled, and Summary Judgment is denied.

An appropriate order follows.

[1] This case was referred by Order of the Presiding Judge of MDL-875 to a panel of three magistrate judges pursuant to MDL-875 summary judgment procedures regarding issues of causation (product identification), successor liability and settled issues of state law. (See MDL-875 summary judgment procedures, available at www.paed.uscourts.gov/mdl1875y.asp; see also Faddish v. Buffalo Pumps, Inc., etal., XX-XXXXXX, doc. no. 156.) In the instant case, the R&R was filed after all parties were afforded an opportunity to brief all relevant summary judgment issues and lengthy argument in front of the Panel.

[2] John Faddish is the injured party. He is deceased and his wife Ruth Faddish has been appointed executrix of his estate and has been substituted as the named plaintiff in this case.

[3] The Panel conducted a choice of law analysis as to whether Florida law or maritime law is applicable to this case, and determined that Florida law applies. (R&R at 4, n.2.) The transferee court in multi-district litigation is required to "apply the same state substantive law, including choice of law rules, that would have been applied in the jurisdiction in which the case was filed." Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993). Under Florida law, a conflict of law analysis is unnecessary if there is a "false conflict." Pycsa Panama, S.A. v. Tensar Earth Tech, Inc., 625 F. Supp. 2d 1198, 1218-19 (S.D. Fl. 2008)(applying Florida law). A "false conflict" exists when the law of the interested jurisdictions are the same. Id. With respect to proximate cause, Florida law and maritime law employ the same test. Compare Singleton Stone v. Amquip Corp., 98-cv-4691, 2000 WL 1448817 at [*3] (E.D. Pa. Sep. 29, 2000) (applying "substantial contributing factor" test in products liability case under maritime law) with Reaves v. Armstrong World Industries, Inc., 569 So. 2d 1307, 1309 (Fl. Dist. App. Ct. 1990) (applying a "substantial contributing factor" test in an asbestos case). The Court adopts the Panel's finding that Florida law governs in this case.

Sources

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