Burdick v. NIBCO (In re Asbestos Litigation, 2021)

Our plain-English summary of In re Asbestos Litigation (Rhode Island Superior Court, March 16, 2021).

Walter Burdick died, and his estate's co-administrators and his widow, Evelyn Burdick, sued several companies, including valve maker NIBCO, in Rhode Island Superior Court. They said his death resulted from exposure to asbestos products, and the plaintiffs contended the valves caused his mesothelioma. Burdick had worked at various steam plants and construction sites in Pennsylvania and New Jersey. He testified that at Scranton Steam Heat Company from about 1956 to 1972 he installed valves, some made by NIBCO and NIBCO-Scott. NIBCO moved for summary judgment, arguing that he was not exposed to asbestos from its valves. It said only valves with gaskets or packing contained asbestos, and that the small, low-pressure valves he described did not use them. The plaintiffs pointed to his testimony that he repacked NIBCO gate valves, blew dust from the packing, and scraped gasket material during a shutdown. The court found competent evidence on both sides and more than one reasonable inference. It concluded genuine factual disputes remained about his exposure and denied NIBCO's motion.

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: Rhode Island Superior Court
• Decided: March 16, 2021
• Stage: Summary judgment
• State: Rhode Island

Outcome. The court denied NIBCO's motion for summary judgment, so the Burdick plaintiffs' claims against NIBCO go forward because fact issues remain about whether Walter Burdick was exposed to asbestos-containing NIBCO valves.

What the court held. To establish liability in an asbestos action, a plaintiff must identify the responsible defendant and show exposure. Summary judgment is improper where competent evidence on both sides allows more than one reasonable inference about exposure to the defendant's asbestos-containing product.

Issues decided: Causation, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Walter Burdick: mesothelioma; died

Who	Work	Where	When	Products
Walter Burdick	laborer, mechanic, maintenance man, boiler operator, pipefitter, machinist, and welder (power plants and utilities)	Scranton Steam Heat Company, Scranton, Pennsylvania	1956-1972	gaskets and packing, NIBCO valves, NIBCO-Scott valves

The defendants

• NIBCO, Inc. (manufacturer)

Other decisions in this case

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

• Murray v. Dana Companies (In re Asbestos Litigation) (October 13, 2016). The court granted Dana Companies, LLC's motion to dismiss for lack of personal jurisdiction, finding no general or specific jurisdiction and no forfeiture of the defense, so the Murrays lost as to Dana.
• Pisano v. Sears, Roebuck and Co. (In re Asbestos Litigation) (November 2, 2016). The court denied Sears, Roebuck and Co.'s motion for summary judgment, so the Pisano plaintiffs' claims against Sears go forward.
• McCarthy v. Warren Pumps (In re Asbestos Litigation) (June 27, 2017). The Superior Court denied the motions for summary judgment of Warren Pumps, Gardner Denver and General Electric, ruling that the decedent's pre-suit sworn statement was admissible and that plaintiff showed enough product identification to reach a jury.
• Belac v. Evenheat Kiln (In re Asbestos Litigation) (October 19, 2017). The court denied the summary judgment motions of Evenheat Kiln and Sargent Art, and also denied Evenheat's motion to strike the daughter's affidavit under the sham affidavit doctrine, so plaintiff Loretta Belac's claims continued.

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.

IN RE: ASBESTOS LITIGATION.

EVELYN BURDICK and RONALD BURDICK as Co-Administrators of the Estate of WALTER

BURDICK and EVELYN BURDICK, Individually Recognized as Surviving Spouse, Plaintiffs,

v.

ALCO VALVES, ET AL. Defendants.

C.A. No. PC-2011-3431.

Filed: March 16, 2021.

Superior Court of Rhode Island, PROVIDENCE, SC.

Robert J. Sweeney, Esq. ALCO VALVES, INC., John A. Caletri, Esq..

AMERICAN STANDARD INC., AMERICAN VALVE INC., James. T. Murphy, Esq..

ATWOOD AND MORRILL, Christopher J. Buontempo, Esq..

BF GOODRICH, COMPANY; IMO INDUSTRIES INC., Beth A. Oldmixon, Esq..

BUFFALO FORGE CO.; GOULDS PUMPS INC., Kevin C. McCaffrey, Esq..

CARBORUNDUM ABRASIVES COMPANY, Andrew J. Murray, Esq..

CARVER PUMP COMPANY, Brian D. Gross, Esq..

CBS CORPORATION, Thomas W. Lyons, Esq..

CRANE CO., David A. Goldman, Esq..

ELLIOTT COMPANY; GRINNELL CORPORATION; J.R. CLARKSON CO.; THE YARWAY CORPORATION, Todd S.

Holbrook, Esq..

ELLIOTT TURBOMACHINERY COMPANY, Mark O. Denehy, Esq..

FAIRBANKS MORSE ENGINE; GARDNER-DENVER INC.; GOODRICH CORP., Charles K. Mone, Esq..

FISHER CONTROLS INTERNATIONAL LLC; ITT INDUSTRIES, Theodorus Urbanski, Esq..

FOSTER WHEELER LLC; UNION CARBIDE CORPORATION, Randolph Bart Totten, Esq..

GARDNER DENVER, INC.; GOODRICH CORPORATION f/k/a THE B.F. GOODRICH COMPANY, Shannon M. O'Neil, Esq.. GENERAL ELECTRIC COMPANY, Jeffrey M. Thomen, Esq..

HENRY VOGT MACHINE CO., John R. Mahoney, Esq..

INDUSTRIAL HOLDINGS CORPORATION, f/k/a The Carborundum Company, Paul E. Dwyer, Jr., Esq..

METROPOLITAN LIFE INSURANCE COMPANY, Mary Cavanagh Dunn, Esq..

NIBCO, INC., Jeffrey M. Thomen, Esq..

PATTERSON PUMP CO., Clark Yudysky, Esq..

RILEY POWER, INC., Stephen T. Armato, Esq..

SEPCO CORPORATION, Sharon A. Neiberg, Esq..

SPIRAX SARCO, INC., Stephen P. Cooney, Esq..

TACO, INC., Jennifer A. Whelan, Esq..

THE FAIRBANKS COMPANY, Marisa K. Roman, Esq..

THE GOODYEAR TIRE AND RUBBER COMPANY, Brian D. Gross, Esq..

TRANE COMPANY, Timothy M. Zabbo, Esq..

WEIL McCLAIN UNITED DOMINION, Kenneth R. Costa, Esq.. For Plaintiff.

DECISION

GIBNEY, P.J.

Defendant NIBCO, Inc. (NIBCO) moves for summary judgment in this action brought by Ronald Burdick and Evelyn Burdick as Co-Administrators of the Estate of Walter Burdick and Evelyn Burdick, individually as surviving spouse (Plaintiffs). NIBCO argues that there are no genuine issues of material fact remaining for trial as Plaintiffs cannot demonstrate that the decedent, Walter Burdick (Decedent), was exposed to an asbestos-containing NIBCO product. Plaintiffs object to the within motion. This Court exercises jurisdiction pursuant to Rule 56 of the Rhode Island Superior Court Rules of Civil Procedure. I

Facts and Travel

On June 17, 2011, Plaintiffs filed a Complaint, alleging that Decedent died as a result of exposure to asbestos or asbestos-containing products sold, manufactured, or distributed by the named defendants, including NIBCO, while he worked at multiple worksites in Pennsylvania and New Jersey. (Seventh Am. Compl. ¶ 5.) Decedent worked at various steam plants and construction sites beginning in the mid-1940s as a laborer, mechanic, maintenance man, boiler operator, pipefitter, machinist, and welder. Id. Plaintiffs allege in their Complaint that NIBCO knew that its asbestos-containing products were inherently dangerous to those who used, handled, or came in contact with these products but nevertheless failed to provide adequate warnings and information about these dangers. Id. ¶¶ 10-11. Thus, Plaintiffs claim that NIBCO breached its duty of reasonable care and warranties of merchantability and implied fitness to Decedent. Id. ¶¶ 13-14. Evelyn Burdick also claims loss of consortium as surviving spouse. Id. ¶ 20.

During discovery, NIBCO deposed Decedent, who testified to having worked at Scranton Steam Heat Company from around 1956 to 1972. (Def.'s Mem. Supp. Mot. Summ. J. (Def.'s Mem.) 2, citing Ex. 2, Burdick Dep. 99-100, 113-115.) Decedent testified that during his time with Scranton Steam Heat Company, he installed new valves, some which were manufactured by NIBCO and NIBCO-Scott. Id., citing Ex. 2, Burdick Dep. 130-132, 145, 283-84. Plaintiffs contend that these valves contained asbestos and proximately caused Decedent's mesothelioma.

On May 7, 2013, NIBCO moved for summary judgment, contending that Plaintiffs had failed to produce evidence that Decedent was exposed to any asbestos-containing product manufactured, sold, or distributed by NIBCO. In response, Plaintiffs argued that genuine issues of fact existed regarding Decedent's exposure to NIBCO asbestos-containing valves, and that, accordingly, summary judgment was precluded. This Court heard oral arguments on February 19, 2020 and now issues a decision.

II

Standard of Review

It is well settled that "[s]ummary judgment is `a drastic remedy,' and a motion for summary judgment should be dealt with cautiously." Estate of Giuliano v. Giuliano, 949 A.2d 386, 390-91 (R.I. 2008) (quoting Ardente v. Horan, 117 R.I. 254, 256-57, 366 A.2d 162, 164 (1976)). "Summary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the court determines that there are no issues of material fact in

dispute, and the moving party is entitled to judgment as a matter of law." Quest Diagnostics, LLC. v. Pinnacle Consortium of Higher Education, 93 A.3d 949, 951 (R.I. 2014) (internal quotation marks omitted). "Where the facts suggest only one reasonable inference, the motion justice may properly treat the question as a matter of law." Deutsche Bank National Trust Company, for Registered Holders of Ameriquest Mortgage Securities, Inc. v. McDonough, 160 A.3d 306, 311 (R.I. 2017) (internal quotation omitted).

"The moving party bears the initial burden of establishing the absence of a genuine issue of fact." McGovern v. Bank of America, N.A., 91 A.3d 853, 858 (R.I. 2014) (quotation omitted). Once this burden is met, the burden shifts to the nonmoving party to prove by competent evidence the existence of a genuine issue of fact. Id. The nonmoving party may not rely on "`mere allegations or denials in the pleadings, mere conclusions or mere legal opinions'" to satisfy its burden. D'Allesandro v. Tarro, 842 A.2d 1063, 1065 (R.I. 2004) (quoting Santucci v. Citizens Bank of R.I., 799 A.2d 254, 257 (R.I. 2002)). "`Rather, the nonmoving party must affirmatively assert facts that raise a genuine issue to be resolved.'" Avco Corp. v. Aetna Casualty & Surety Company, 679 A.2d 323, 327 (R.I. 1996) (quoting Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d 950, 954 (R.I. 1994)). However, "[t]he purpose of the summary-judgment procedure is to identify disputed issues of fact necessitating trial, not to resolve such issues." Rotelli v. Catanzaro, 686 A.2d 91, 93 (R.I. 1996); see also Palazzo v. Big G Supermarkets, Inc., 110 R.I. 242, 245, 292 A.2d 235, 237 (1972) (The Court held that when ruling on a motion for summary judgment, the court determines whether there are any issues of fact to be resolved but cannot pass on the weight and credibility of the evidence or determine issues of fact.).

III

Analysis

NIBCO argues that Plaintiffs have failed to identify either a NIBCO product that exposed Decedent to asbestos or the manner in which such product exposed him to the asbestos. (Def.'s Mem. 5.) More specifically, NIBCO argues that Decedent's testimony is wholly insufficient to establish that his work with or on NIBCO valves exposed him to asbestos, and for that reason, Plaintiffs cannot prove a causal connection between NIBCO's valves and Decedent's injury. Id. In contrast, Plaintiffs argue that genuine issues of material fact exist with respect to their claims against NIBCO. Plaintiffs assert that there are facts and evidence showing that there were NIBCO valves in areas frequented by Decedent during his time working at Scranton Steam Heat Company and that these valves contained asbestos. (Pls.' Mem. Obj. Mot. Summ. J. (Pls.' Mem.) 5-7.) Therefore, given the complexity of the case and the facts and viewing the evidence in a light most favorable to Plaintiffs, summary judgment would be inappropriate. Id. at 15.

In order to establish liability in an asbestos action, a plaintiff must provide both "identification of the specific defendant responsible for the injury" and evidence of the plaintiff's exposure. See Gorman v. Abbott Laboratories, 599 A.2d 1364, 1364 (R.I. 1991); see also Thomas v. Amway Corp., 488 A.2d 716, 719 (R.I. 1985) ("[t]he plaintiff is not bound to exclude every other possible cause of her condition but she is required to show that the probable cause was the [product]"). At summary judgment, the nonmoving party "must assert `sufficient facts to satisfy the necessary elements of his [or her] negligence claim' and if a `plaintiff fails to present evidence identifying defendants' negligence as the proximate cause of his [or her] injury or from which a reasonable inference of proximate cause may be drawn,' then summary judgment becomes proper." Splendorio v. Bilray Demolition Co., Inc., 682 A.2d 461, 467 (R.I. 1996) (granting summary judgment based on an insufficiency of factual allegations in an asbestos action) (quoting Russian v. Life-Cap Tire Services, Inc., 608 A.2d 1145, 1147 (R.I. 1992)).

NIBCO concedes that Plaintiffs have produced evidence that Decedent used NIBCO and NIBCO-Scott valves. NIBCO also admits that some of the NIBCO valves used at Scranton Steam Heat Company during the time Decedent worked there may have contained asbestos; however, it challenges the element of causation based on Decedent's testimony, which NIBCO argues shows that Decedent did not come into contact with asbestos-containing NIBCO valves during his tenure at Scranton Steam Heat Company. Because the only issue before this Court is the question of causation, it will proceed with an analysis solely under this element.

First, NIBCO contends that Decedent's description of the NIBCO and NIBCO-Scott valves establishes that the valves he described did not expose him to respirable asbestos fibers. The two distinctions in the NIBCO and NIBCO-Scott asbestos-containing valves from non-asbestos ones during the time Decedent worked at Scranton Steam Heat Company were that

the valves containing asbestos included gaskets and packing. According to NIBCO, Decedent was never exposed to either of these because he never mentioned that the valves he worked with involved either gaskets or packing. (Def.'s Mem. 6.) In his deposition, Decedent described the NIBCO valves he worked with as "cheap," small, threaded, and associated with a low-pressure system. Id., citing Ex. 2, Burdick Dep. 285:9-17. Decedent testified that these valves were used mostly in the boiler room, "not too much on the distribution system." Id. 285:6-8. Decedent further testified that these NIBCO and NIBCO-Scott valves were not used in the distribution system. Id. 286:24-287:6. In an affidavit of Gordon McCrory — Director of Capital Investments and Special Projects for NIBCO — submitted by NIBCO as an exhibit to its motion — the affiant explained that small, low-pressure, threaded valves, such as those described by Decedent, do not involve the use of gaskets during installation. Def.'s Mem., Ex. 3, McCrory Aff. ¶ 7. Furthermore, NIBCO contends that the NIBCO and NIBCO-Scott valves described by Decedent did not require repacking. McCrory's affidavit explains that the valves described by Decedent were "throw-aways," because of their small size and cost, and it was industry practice to replace the valves instead of changing the packing. Id. ¶¶ 9-10. Because the only NIBCO valves that contained asbestos involved gaskets or packing, and the valves described by Decedent did not seem to involve either of these, Mr. McCrory asserted that Decedent was not exposed to asbestos from his work on NIBCO and NIBCO-Scott valves.[1] Id. ¶¶ 4, 12.

In response, Plaintiffs argued that Decedent did testify that he used some NIBCO valves in the distribution system, although it was to a lesser extent than in the boiler room. (Tr. 4:9-11, Feb. 19, 2020, citing Burdick Dep. 285, 286:24-287:6.) Even if Decedent later stated in his deposition that employees did not really use valves in the distribution system, this is an issue of credibility and weight of the evidence. See Palazzo, 110 R.I. at 245, 242 A.2d at 237. Plaintiffs argue that Decedent repacked NIBCO gate valves and that he had to use a packing puller and a torch to blow the dust out of the packing of the stent valves. (Tr. 4:24-5:8; 6:19-21, Feb. 19, 2020, citing Burdick Dep. 266-77.) Decedent also testified that he was exposed to dust after scraping gasket material during the process of removing the gaskets from the valves during a shutdown. (Pls.' Mem. 5.) Taking these facts into consideration, Plaintiffs have demonstrated at least the possibility that Decedent was exposed to the NIBCO valves containing asbestos.

There is an issue of whether Decedent was or was not in fact exposed to NIBCO valves containing asbestos which remains alive. Both NIBCO and Plaintiffs have presented competent evidence in favor of their respective cases; thus, at this stage, this Court cannot grant NIBCO's motion because more than one reasonable inference can be drawn from the facts and evidence presented here. See McDonough, 160 A.3d at 311. Plaintiffs have met their shifted burden as to the existence of issues of material fact. Therefore, viewing the evidence in the light most favorable to Plaintiffs, this Court holds that genuine issues of material fact remain with respect to whether Decedent was exposed to NIBCO and/or NIBCO-Scott products containing asbestos.

IV

Conclusion

Because genuine issues of material fact remain regarding Decedent's exposure to the NIBCO and NIBCO-Scott's asbestos-containing valves, NIBCO's motion for summary judgment is denied. Counsel shall present the appropriate order for entry. [1] According to NIBCO, Mr. McCrory is familiar with the aspects of NIBCO's current and past manufacturing processes and production methods, and product-related information. (McCrory Aff. ¶ 1.) Plaintiffs claim, however, that Mr. McCrory is not qualified as an expert to testify as to his opinion on whether Decedent was exposed to asbestos-containing NIBCO products. During the hearing on February 19, 2020, Plaintiffs requested that this affidavit be stricken. (Tr. 5:14-18, Feb. 19, 2020.)

Sources

• The opinion on Google Scholar
• Rhode Island asbestos laws
• Rhode Island asbestos exposure sites