Kimball v. Asbestos Corporation Ltd. (2008)

Our plain-English summary of Kimball v. Asbestos Corporation Ltd. (Washington Court of Appeals, November 10, 2008).

Phyllis Kimball died of mesothelioma. Her son, Ernest Kimball IV, sued Elliott Company for himself and as personal representative of her estate. He claimed asbestos from Elliott's deaerating feedwater tanks caused her death. Her husband, Ernest III, was a pipe fitter at Puget Sound Naval Shipyard from 1946 to 1986 and died of an asbestos-caused cancer. The family said Phyllis was exposed by washing his dusty work clothes, and the son also worked at the shipyard as an insulator for about a year and a half. Elliott's tanks, covered in asbestos insulation and fitted with asbestos gaskets, were on at least 14 ships Ernest worked on. The trial court granted Elliott summary judgment. The Court of Appeals reversed. Applying Washington's Lockwood test, it held that putting Elliott's products at the shipyard while Ernest worked there, with expert testimony on asbestos drift, was enough to show exposure. The court also found enough evidence for a jury to decide that Elliott's asbestos was a substantial factor in Phyllis's death. It did not review the order striking evidence.

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: Washington Court of Appeals, 1st Division
• Decided: November 10, 2008
• Docket: Nos. 60851-7-I, 60851-7-I/2
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Washington

Outcome. The Court of Appeals reversed the trial court's summary judgment for Elliott Company and ruled for Ernest Kimball, finding enough evidence of exposure and causation for a jury; it did not review the order striking evidence.

What the court held. Under the Lockwood exposure test, a plaintiff can use circumstantial evidence placing the defendant's asbestos-covered products at the worksite while the worker was there, plus expert testimony on asbestos drift. Showing the defendant's asbestos was part of the 'cloud' of exposure meets the substantial factor causation test, including for secondary (take-home) exposure.

Issues decided: Causation, Wrongful Death and Survival, Failure to Warn, Trial Procedure and Discovery, Product Identification, Take-Home Exposure.

The people and their exposure

• Phyllis Kimball (family member): pleural mesothelioma; died

• Ernest Kimball III: intra-abdominal carcinomatosis; died

Who	Work	Where	When	Products
Ernest Kimball III	pipe fitter, pipe fitter's helper, and rigger (shipyards and maritime work)	Puget Sound Naval Shipyard, Bremerton, Washington	1946-1986	pipe and block insulation, gaskets and packing, Elliott deaerating feedwater (DA) tanks with asbestos insulation and manhole gaskets
Phyllis Kimball	wife who washed husband's work clothes (shipyards and maritime work); dust brought home	Puget Sound Naval Shipyard, Bremerton, Washington	1946-1970s	pipe and block insulation, gaskets and packing, Elliott deaerating feedwater (DA) tanks
Phyllis Kimball	mother who washed son's work clothes (shipyards and maritime work); dust brought home	Puget Sound Naval Shipyard, Bremerton, Washington	1966-1967

The defendants

• Elliott Company d/b/a Elliott Turbomachinery Co., Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Lockwood v. AC & S, Inc. (Washington Supreme Court, 1987). The Washington Supreme Court affirmed the Court of Appeals and the trial court, leaving in place the $183,372 jury verdict for Albert Lockwood against Raymark Industries.
• Kreppein v. Celotex Corp. (U.S. Court of Appeals, Second Circuit, 1992). The Second Circuit affirmed the judgment holding Celotex liable for 32.5% of the damages to Mary Kreppein, rejecting Celotex's challenges on product nexus, apportionment and the amended complaint, and denied plaintiff's request for sanctions.
• O'brien v. National Gypsum Co. (U.S. Court of Appeals, Second Circuit, 1991). The Second Circuit affirmed the jury verdict and judgment against Celotex, finding the exposure evidence sufficient and any hearsay error harmless; the plaintiff's cross-appeal on damages remained stayed by Celotex's bankruptcy.
• Berry v. Crown Cork & Seal Co., Inc. (Washington Court of Appeals, 1st Division, 2000). The Court of Appeals reversed summary judgment for Saberhagen Holdings and remanded for trial, holding the plaintiffs (Berry's estate and widow) raised a genuine issue of fact on exposure to Brower-supplied products.
• Mavroudis v. Pittsburgh-Corning Corp. (Washington Court of Appeals, 1st Division, 1997). The Court of Appeals affirmed the judgment for the Mavroudis plaintiffs against Owens-Corning Fiberglas Corp. and affirmed the trial court's finding that the pretrial settlements were reasonable.

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.

ERNEST KIMBALL, for himself and as Personal Representative for the Estate of PHYLLIS

KIMBALL, deceased, Appellant,

v.

ASBESTOS CORPORATION LTD.; CROWN CORK & SEAL COMPANY, INC.; E.J. BARTELLS

SETTLEMENT TRUST; FOSTER-WHEELER ENERGY CORP.; GARLOCK SEALING TECHNOLOGIES,

LLC; GENERAL ELECTRIC COMPANY, a New York corporation; GOULDS PUMPS (IPG), INC.; IMO

INDUSTRIES, INC., individually and as successor-in-interest to and f/k/a DELAVAL TURBINE, INC.;

IMO DELAVAL INC.; INGERSOLL-RAND COMPANY, a Delaware corporation; METROPOLITAN LIFE

INSURANCE CO.; PARKER LUMBER CO., INC.; SABERHAGEN HOLDINGS, INC.; UNIROYAL, INC.;

VIACOM, INC., Successor by Merger to CBS Corporation, f/k/a WESTINGHOUSE ELECTRIC

CORPORATION; and WARREN PUMPS LLC, a Delaware limited liability company, Defendants, and

ELLIOTT COMPANY d/b/a ELLIOTT TURBOMACHINERY CO., INC., a Delaware corporation;

Respondent.

Nos. 60851-7-I, 60851-7-I/2

Filed: November 10, 2008.

Court of Appeals of Washington, Division One.

Counsel for Appellant(s), William Joel Rutzick Schroeter Goldmark & Bender, 810 3rd Ave Ste 500, Seattle, WA, 98104-1657.

Counsel for Respondent(s), E. Pennock Gheen III, Karr Tuttle Campbell, 1201 3rd Ave Ste 2900, Seattle, WA, 98101-3028. Walter Eugene Barton, Attorney at Law, 1201 3rd Ave Ste 2900, Seattle, WA, 98101-3284.

UNPUBLISHED OPINION

AGID, J.

Phyllis Kimball (Phyllis) died from mesothelioma caused by asbestos exposure. Phyllis's son, Ernest Kimball IV (Kimball), sued the Elliott Company (Elliott) on behalf of himself and as the personal representative of Phyllis's estate, alleging that asbestos from Elliott's deaerating feedwater tanks caused Phyllis's death. Kimball appeals the trial court's order granting Elliott's motion for summary judgment, contending that he introduced sufficient evidence for a reasonable jury to find that Phyllis's exposure to Elliott's asbestos-containing products was a substantial factor causing her death. We agree and reverse.

FACTS

Phyllis's husband, Ernest Kimball III (Ernest), worked as a pipe fitter at the Puget Sound Naval Shipyard (PSNS) and died from intra-abdominal carcinomatosis, a cancer caused by his exposure to asbestos. Kimball asserts that while Ernest was working at PSNS, he would return home from work with asbestos dust on his clothes and that Phyllis's asbestos exposure resulted from her washing Ernest's clothes. Kimball testified that Ernest wore his work clothes home from work, they were dusty, and Phyllis always did all of the family's laundry. Kimball also worked at PSNS for a year and a half as an insulator and asserts that his mother washed his clothes during that time as well.

Before his death, Ernest testified in a deposition that he worked as a pipe fitter, pipe fitter's helper, and a rigger at PSNS from 1946-1952 between seasons working as a commercial fisherman. From 1952 until he retired in 1986, Kimball worked as a pipe fitter at PSNS, where pipe fitters "renew[ed] the piping" in their shop and "went out and worked on every ship in the shipyard" when they "didn't have a waterfront crew." Ernest testified that his work in "the shop" formed the hub of his

activities. PSNS dispensary records from 1978 state that Kimball had worked in the shipyard for 33 years and spent 50 percent of his time aboard ships. In those records, Ernest said that he was exposed to "asbestos by working with welders using asbestos, by working in the same space with rip-out and blow down and by making asbestos board and mud

enclosures for '[illegible] bending.'"[1] Elliott's expert declared that as a pipe fitter in Shop 56, Kimball's duties would have principally involved removal, fabrication, and installation of piping systems with work both shipboard and in the Pipe Sh[o]p. His shipboard work would have involved the removal of old piping systems planned for renewal. His shop work would have involved making of targets from old pipe and making new pipe to the configuration of the old using these targets. . . . These primary tasks would have involved working with and around asbestos-containing materials used for insulation and lagging on piping systems, both old and new, up through 1971. . . . His valve work would have taken him aboard ships as well as work in the Pipe Shop. These tasks would have involved working with and around asbestos-containing materials used for insulation and lagging on valves. Elliott manufactured deaerating feedwater (DA) tanks and components, which the Navy installed on ships to remove dissolved gases from the water feeding the boilers.[2] Elliott supplied complete DA tanks for at least three Midway class aircraft carriers, each of which had four DA tanks. On Midway class carriers, three of the four DA tanks were adjacent to the engine room, with one DA tank located inside the engine room. Essex class aircraft carriers required two DA tanks, and Elliot provided the upper half of the DA tanks on at least four Essex class aircraft carriers. Asbestos insulation covered Elliott's DA tanks in accordance with Navy specifications. The insulation conserved heat and helped to make the area near the tanks habitable.[3] Kimball offered deposition testimony from a shipyard worker with knowledge of Elliott DA tanks who said that it is not possible for a DA tank to operate properly in the absence of asbestos insulation; nor is it possible to perform necessary maintenance on a DA tank without disturbing some of the asbestos insulation or gaskets. Insulated steam and water pipes ran into and out of DA tanks. In the 1950's and 1960's, the Navy specified asbestos insulation for pipes. Elliott did not supply the pipes, or the asbestos insulation for the pipes or DA tanks. It did manufacture the tanks to accept asbestos insulation.

The DA tanks had one or two access manholes. "The United States Navy specified that manhole covers be installed with an asbestos-containing gasket." When Elliott supplied only the upper section of the DA tank, the shipbuilder supplied the asbestos-containing manhole gasket. Elliott did not manufacture asbestos-containing gaskets, but may have supplied the asbestos-containing manhole gaskets when it supplied the whole DA tank. If Elliott originally supplied an asbestos-containing manhole gasket, then Navy crewmembers performing routine maintenance likely would have replaced that gasket with a new asbestos-containing gasket by the time Kimball would have been working around the DA tanks. Navy crewmembers performed semi-annual maintenance on the DA tanks.

Ernest provided names of all the ships he had worked on at PSNS. Of those ships, a document from Elliott's representative shows that about 10 aircraft carriers had two Elliott DA tanks each and about four destroyers had two Elliott DA tanks per ship. Elliott's expert testified that "[t]here certainly would" be pipe fitters in the engine compartment of a carrier during a typical overhaul, although in his opinion "the work performed by Mr. Kimball [Ernest] as a Shop 56 Pipefitter at Puget Sound Naval Shipyard would not have placed him working on any equipment manufactured by Elliott."

Kimball offered an expert declaration that "[t]he aerodynamic characteristics of asbestos allow asbestos released in a shipyard to drift widely and accumulate on the worker's clothes, even if the worker worked away from the ships where the asbestos was being released" and that "[a]sbestos exposure at naval shipyards from the late 1940s [through] the early 1970s was extensive and affected people who worked in parts of ships away from where asbestos was being used and indeed affected persons not working aboard ship[s] at all." Ernest testified that the asbestos disturbed by work on asbestos-containing equipment dispersed throughout, and beyond, shipboard spaces:

[Ernest:] They had blowers in the engineering space that won't let the asbestos dust settle. It just kept it

going like that.

Q: I think you mentioned that, yes. A: And they had suckers. They would suck — They would pull suckers

down in your space, where asbestos was working. They'd bring it up, topside the next deck, and discharge it.

Based on Ernest's autopsy, Kimball's expert concluded that Ernest had high levels of asbestos exposure. Kimball offered deposition testimony that spouses of people with high levels of exposure get asbestos-related diseases.[4] Another expert testified about the mechanism of this secondary asbestos exposure: "[t]he asbestos is then distributed in the worker's home when they came home and when their clothes were shaken out in preparation for washing at the home." Kimball offered deposition testimony that any type of occupational or bystander exposure above background levels would be a contributing

factor in causing the mesothelioma and that "[i]t is also well accepted. . . that mesothelioma is caused by the combined exposure of an individual to asbestos prior to the cancer coming into existence." Kimball's expert concluded in a deposition that "[Phyllis] had a right pleural epithelial mesothelioma that. . . was caused by her bystander exposure to asbestos from basically washing her husband's clothing over a significant period of time and that her death was caused by mesothelioma." [5] Kimball filed a complaint against Elliott, among others, alleging that its asbestos-containing products caused Phyllis's mesothelioma. Elliott moved for summary judgment, claiming that Kimball could not submit sufficient evidence of Ernest's exposure to Elliott's asbestos-containing equipment and, thus, could not show that Elliott caused Phyllis's injuries. Kimball produced evidence in opposition to Elliott's summary judgment motion. Elliott replied in support of its motion for summary judgment and moved to strike much of Kimball's evidence.[6] Kimball objected to the motion to strike. The trial court struck evidence from Dr. Samuel Hammar,[7] Dr. Dorsett Smith's 1995 deposition, Thomas Keenan's 2006 deposition, Andrew Churg's 1995 trial testimony, Barry Castleman's declaration, Robert Leonard's declaration, and the excerpts from the Dictionary of American Naval Fighting Ships. Except for Dr. Smith's testimony, which the trial court considered outdated and out of context, the trial court did not provide a basis for its ruling on Elliott's motion to strike.[8] The trial court granted Elliott's motion for summary judgment, and Kimball seeks review of the trial court's order.

DECISION

This court reviews summary judgment orders de novo and engages in the same inquiry as the trial court.[9] We will affirm a summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.[10] Like the trial court, we must construe the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party.[11] A material fact is a fact upon which the outcome of the litigation depends.[12] The burden is on the moving party to present facts showing there is no issue of material fact.[13] The nonmoving party must set forth specific facts that demonstrate a genuine issue of material fact and cannot rest on mere allegations.[14] Kimball asserts two theories of liability. First, he contends Elliott is strictly liable for Phyllis's asbestos-related injuries and, second, that her injuries resulted from Elliott's negligence. The common law as stated in Restatement (Second) of Torts § 402A (1965)[15] governs Kimball's strict liability claims [16] and requires a prima facie showing of the following elements to survive a motion for summary judgment: (1) a defect in the product which existed when it left the manufacturer's hands (2) that was not known to the user (3) and which rendered the product unreasonably dangerous, (4) proximately causing the user's injury.[17] For negligence claims, plaintiffs must present evidence that the defendant breached a duty owed to the plaintiff which caused the plaintiff's injuries.[18]

Elliott argues that Kimball never served the company with a complaint alleging negligence claims, and thus he cannot allege negligence on appeal.[19] The resolution of this pleading dispute will not change the analysis we apply to the issues on appeal because courts use the same analysis under strict liability and negligence theories to determine whether asbestos workers have submitted sufficient exposure and substantial factor evidence.[20] For purposes of this appeal, the court assumes, without deciding, that Kimball pled both negligence and strict liability.[21]

I. Sufficiency of the Evidence

A. Exposure Evidence

Kimball contends that the trial court erred by ruling that he could not establish that Ernest's exposure to asbestos originated from Elliott's DA tanks. Elliott claims that Kimball failed to establish that Ernest "worked with or in the vicinity of Elliott equipment that either incorporated or was insulated with asbestos-containing products and did so at a time when such products would have been manipulated so as to release asbestos fibers to which the Kimballs would have been exposed." Elliott understates the legal effect of Kimball's evidence in light of the exposure test announced in Lockwood v. AC & S, Inc., and applied in Berry v. Crown Cork & Seal Co. and Allen v. Asbestos Corp.,[22] both of which allow the serial exposure inferences on which Kimball relies.

"Plaintiffs in asbestos cases may rely on circumstantial evidence that the manufacturer's products were the source of their asbestos exposure,"[23] and they need negligence as a theory of liability. By incorporating the theories of the original complaint into a complaint served on Elliott, Kimball put Elliott on notice that he would proceed with both negligence and strict liability claims. Additionally, the record does not support Elliott's claims that Kimball failed to disclose his intent to rely on negligence theories during pre-trial disclosure. Under the heading "Theories of the Case," Kimball stated: Insofar as now possible and as applicable to the known facts and yet unknown facts of these cases, plaintiff identifies the following theories: negligence, willful or wanton misconduct, strict product liability, product misrepresentation, breach of warranty, enterprise liability, concert of action and/or market share liability (alternate market share liability) and, if determined applicable, 1981 Products Liability Act. Thus, Kimball appears to have complied with Washington's notice pleading requirement by putting Elliott on notice about his negligence claims. not personally identify the source of asbestos.[24] Courts examining the sufficiency of plaintiff's exposure evidence for both negligence and strict liability claims should consider

(1) plaintiff's proximity to the asbestos product when the exposure occurred, (2) the expanse of the work site where asbestos fibers were released, (3) the extent of time plaintiff was exposed to the product, (4) what

types of asbestos products the plaintiff was exposed to, (5) how the plaintiff handled and used those

products, (6) expert testimony on the effects of insulation of asbestos on human health in general and the

plaintiff in particular, and (7) evidence of any other substances that could have contributed to plaintiff's

disease (and expert testimony as to the combined effect of exposure to all possible sources of the disease).

[25] Plaintiffs satisfy the time and proximity factors when they present evidence that the "plaintiff worked at a job site where asbestos products were used, particularly where there is expert testimony that asbestos fibers have the ability to drift over an entire job site."[26]

The Lockwood court affirmed the trial court's ruling that the shipyard worker established a prima facie case "by presenting evidence that exposure to asbestos causes asbestosis; that once asbestos dust is released, it can remain in the air and drift with the air currents for a long period of time; and that [defendant's asbestos] product was located at shipyards where [the shipyard worker] was employed during the period when he worked there"[27] even when the shipyard worker did not introduce evidence that he directly handled defendant's asbestos products.[28] unidentified asbestos dust) (citing O'Brien v. Nat'l Gypsum Co., 944 F.2d 69, 72 (2d Cir. 1991)). Elliott claims that, unlike Lockwood, no witnesses identified Elliott's products at PSNS when Kimball worked there. But Elliott's own representative identified at least 14 ships equipped with Elliott DA tanks from the list of ships Ernest worked on during his tenure at PSNS. That evidence places Ernest and Elliott's asbestos-covered products at the same time at the same place. This is sufficient evidence to withstand summary judgment under Lockwood.

Similarly, the shipyard worker in Berry, who worked at PSNS for only six years, offered testimony about a distributor who supplied asbestos products to PSNS and a witness who testified about seeing the product at PSNS. Berry did not submit evidence that he worked directly with the distributor's asbestos products and the evidence did not show how much (if any) of defendant's product was actually released into the shipyard.[29] But we held that this evidence, together with expert testimony about asbestos fibers drifting over the entire shipyard, created a prima facie case under Lockwood's exposure test.[30]

Allen also applied the Lockwood test to circumstantial evidence of exposure. There we held that shipyard workers submit sufficient evidence of exposure if they prove they worked in the shipyard during the same time period in which other evidence placed defendant's asbestos products in the shipyard, provided that an expert testifies about asbestos drift throughout the shipyard.[31] In Allen, evidence that three large orders of asbestos products were on the premises allowed an inference that someone used defendant's asbestos products in the shipyard during the shipyard worker's period of employment.[32] And from that inference, expert testimony that asbestos dust would have drifted throughout PSNS if someone used the asbestos product anywhere at the shipyard created an inference of exposure.[33] Notably, Allen allowed asbestos exposure claims to survive summary judgment without direct evidence that anyone actually used defendant's asbestos products in the shipyard.

Here, Kimball presented evidence that Ernest worked at PSNS as a pipe fitter from 1946 to 1986.[34] He also established that asbestos insulated Elliott's DA tanks, DA tanks contained one or two asbestos gaskets, and asbestos-insulated pipes

entered and exited the DA tanks. His evidence placed Elliott's DA tanks in the shipyard while Ernest worked there and showed that someone worked on DA tanks several times each year. There was also evidence that routine maintenance and overhauls disturbed asbestos, some of the Elliott equipment was not located in sealed portions of the ship, and asbestos fibers drift over the entire shipyard. Kimball also submitted evidence that Ernest spent about 50 percent of his time working aboard ships, 14 of which contained Elliott DA tanks. Lockwood, Allen, and Berry do not set a high bar for satisfying the Lockwood exposure test, and Kimball met it here.

B. Substantial Factor Causation Evidence

Elliott also argued in its motion for summary judgment that Kimball failed to establish that any exposure to asbestos originating from Elliott equipment caused Phyllis's mesothelioma. In cases involving multiple sources of toxic materials, plaintiffs need not prove individual causal responsibility[35] and may prove causation using a substantial factor, rather than a but-for, causation test.[36] This test requires plaintiffs to show that a portion of the defendant's toxic material became part of a total cloud of toxic materials that caused the damage.[37]

Elliott suggests that Mavroudis[38] requires Kimball to show that Elliott's product, standing alone, would have been sufficient to cause Phyllis's mesothelioma. In Mavroudis, an asbestos supplier who was found liable by a jury assigned error to a substantial factor jury instruction, claiming a but-for instruction should have been used.

Mavroudis approved the use of substantial factor instructions while noting that the trial court erred to the extent its instruction required more of the plaintiff than Hue's substantial factor test.[39] Mavroudis supports Kimball's reading of Hue's substantial factor test:

[b]y citing Lockwood in conjunction with Martin v. Abbott Lab., the case eliminating the need to show

individual causal responsibility in DES cases, the Hue court certainly implied that asbestos-injury plaintiffs need not prove or apportion individual causal responsibility but need only show that the defendant's asbestos products were among those in the plaintiff's work environment when the injurious exposure occurred.[40]

Here, Kimball makes a prima facie showing that Elliott's asbestos was part of the "cloud" that exposed Ernest to asbestos. He offered evidence that Elliott's asbestos-covered products were in the shipyard during the time Ernest worked there, workers disturbed the asbestos covering Elliott's products on a regular basis, and disturbed asbestos drifted throughout PSNS. Finally, his expert concluded that any type of occupational exposure above background levels would be a contributing factor in causing mesothelioma. This evidence is sufficient to show that Elliott's asbestos was a substantial factor in Ernest's asbestos-related death.

Kimball must also causally link Ernest's exposure to Phyllis's mesothelioma by providing enough evidence for a jury to find that Elliott's asbestos was a substantial factor in causing Phyllis's death. In Allen, we held that the son of a shipyard worker presented sufficient secondary exposure causation evidence. He testified that he held his father's dusty clothes and stood nearby while his father dusted them off, and his expert testified that this exposure was a substantial factor causing the son's cancer.[41]

Here, Kimball offered testimony that his father wore his work clothes home from work, his work clothes were dusty, and his mother always did all of the family's laundry. Kimball's experts testified that Ernest's autopsy showed high levels of exposure; spouses of asbestos workers with high levels of exposure often get asbestos-related diseases; Phyllis was exposed to asbestos by washing Ernest's clothes; any level of bystander exposure above background levels could be a contributing factor causing mesothelioma; and mesothelioma is caused by combined exposure to all sources of asbestos. From that evidence, a reasonable jury could find that Elliott's asbestos formed part of the "cloud" of asbestos that led to Phyllis's mesothelioma. Thus, Kimball presented sufficient causation evidence to satisfy the substantial factor causation test and survive Elliott's motion for summary judgment.

II. Motion to Strike

Kimball argues that the trial court erred by striking Dorsett Smith's deposition testimony from an unrelated case,[42] Thomas Keenan's deposition testimony from an unrelated case,[43] Dr. Churg's trial testimony from an unrelated trial,[44] and Barry

Castleman's declaration from an unrelated matter.[45] RAP 5.3(a), which governs notice of appeal content, requires that the appellant "designate the decision or part of decision which the party wants reviewed."[46] Kimball's notice of appeal states only that "[p]laintiff seeks review by the designated appellate court, Division I, of the Order Granting Defendant Elliott Company's Motion for Summary Judgment entered on August 2, 2007, a copy of which is attached hereto."[47]

In response to Elliott's claim that Kimball waived the issue by failing to raise it in the notice of appeal, Kimball points the court to RAP 2.4, which controls the scope of review. RAP 2.4(b) provides:

The appellate court will review a trial court order or ruling not designated in the notice, including an

appealable order, if (1) the order or ruling prejudicially affects the decision designated in the notice, and (2) the order is entered, or the ruling is made, before the appellate court accepts review.

Because we hold that Kimball presented sufficient evidence to withstand a motion for summary judgment without relying on the excluded evidence, the trial court's order striking evidence does not prejudice Kimball in the context of this summary judgment order.[48]

RAP 18.8(a) allows the court to waive a rule of appellate procedure to serve the ends of justice.[49] Because there may be additional dispositive motions on different legal grounds, we have reviewed the order striking evidence. We agree with the trial court that the deposition testimony from Drs. Churg and Smith is redundant. Castleman's testimony is irrelevant because whatever Todd Shipyards should have known about asbestos exposure has no bearing on whether Phyllis was exposed to Elliott's asbestos. Thomas Keenan's deposition testimony is relevant to the issue of Elliott's duty to Phyllis and Elliott's liability for the after-market insulation of asbestos, but not to the causation issues raised on appeal.[50] Thus, the ends of justice would not be served by waiving RAP 2.4. We reverse the trial court's order granting Elliott's motion for summary judgment and do not review the trial court's order granting, in part, Elliott's motion to strike.

LAU and GROSSE, JJ., concur.

[1] The nearly illegible handwritten word looks like "hot" and probably refers to the process of heating pipes to form them into shape. [2] A DA tank is "basically a large steam kettle that removes dissolved oxygen from the condensate water and also preheats" the condensate water stored in the bottom of the DA tank until it is drawn into the boilers.

[3] DA tanks located in the engine room were insulated because of the confined nature of the space.

[4] Kimball's expert has seen asbestos-related diseases in 30-35 women with no occupational exposure. In addition, "[t]here have been many medical articles and reports showing that exposure to asbestos from work clothes can produce disease in the members of the worker's household such as the worker's spouse or children. These diseases include mesothelioma."

[5] Another Kimball expert concluded that "[i]n my opinion, [Phyllis] was substantially exposed to asbestos as a result of asbestos being brought home on her husband's work clothes while he was working as a pipefitter at PSNS from 1946 through the 1970s and her son's work clothes while he was working at PSNS from 1966-67, and that such combined exposure caused her mesothelioma." (Emphasis omitted.) [6] Elliott moved to strike evidence from: (1) Samuel Hammar, M.D., and Nicolas Heyer, Ph.D., as lacking foundation; (2) Jonathon Ostrow, M.D.'s December 14, 1982 letter and PSNS dispensary records for unreliability and not being in the 105 day disclosure; (3) Roy Yager's deposition as being from an unrelated case; (4) excerpts from the Dictionary of American Naval Fighting Ships as being submitted late and unauthenticated; and (5) Dorsett Smith's deposition, Thomas Keenan's 2006 deposition, Roland Doktor's 2006 deposition, Dr. Hammar and Andrew Churg's trial testimony from Bard v. Pittsburg-Corning, Corp., Robert Leonard's declaration, and Barry Castleman's declaration as being undisclosed and from an unrelated case.

[7] The trial court did not strike Dr. Hammar's May 31, 2007 deposition in this case.

[8] The trial court did not strike Yager's deposition, stating that it could not find the deposition because defendants failed to cite to it. We consider Yager's declaration because it is relevant.

[9] Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).

[10] CR 56(c); Huff v. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000).

[11] Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).

[12] Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963).

[13] Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).

[14] CR 56(e); Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P.2d 289 (1989).

[15] Restatement (Second) of Torts § 402A provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his [or her] property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his [or her] product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. [16] See Ulmer v. Ford Motor Co., 75 Wn.2d 522, 532, 452 P.2d 729 (1969). The Washington Products Liability Act ("WPLA") does not apply here because "pre-WPLA law applies to claims arising before the effective date of the WPLA, which was July 26, 1981." Van Hout v. Celotex Corp., 121 Wn.2d 697, 701, 853 P.2d 908 (1993).

[17] Braaten v. Saberhagen Holdings, 137 Wn. App. 32, 41-43, 151 P.3d 1010 (2007) (citing Novak v. Piggly Wiggly Puget Sound Co., 22 Wn. App. 407, 410, 591 P.2d 791 (1979)), review granted, 162 Wn.2d 1011 (2008).

[18] Baughn v. Honda Motor Co., 107 Wn.2d 127, 142, 727 P.2d 655 (1986).

[19] Elliott also claims that Kimball did not plead failure to warn claims or after-market application of insulation claims, but those issues are encompassed by general negligence and strict liability claims.

[20] See id.; Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22, 25, 935 P.2d 684 (1997).

[21] Washington requires that complaints give opposing party fair notice of the claim asserted. See Pac. Nw. Shooting Park Ass'n v. City of Sequim, 158 Wn.2d 342, 352, 144 P.3d 276 (2006). Kimball's complaint, styled the "Supplemental Complaint for Personal Injury and Wrongful Death," does not mention negligence. Instead, the supplemental complaint incorporates by reference claims contained in the original complaint, which was not served on Elliott because Elliott was not a party to that case. The original complaint specifically mentions [22] Lockwood v. AC & S, Inc., 109 Wn.2d 235, 744 P.2d 605 (1987); Berry v. Crown Cork & Seal Co., 103 Wn. App. 312, 14 P.3d 789 (2000), review denied, 143 Wn.2d 1015 (2001); Allen v. Asbestos Corp., 138 Wn. App. 564, 157 P.3d 406 (2007), review denied, 162 Wn.2d 1022 (2008).

[23] Van Hout, 121 Wn.2d at 706 (sufficient evidence of exposure where hearsay placed defendant's products at shipyard where plaintiff was working and placed plaintiff amid

[24] Lockwood, 109 Wn.2d at 247 ("[A] plaintiff may rely on the testimony of witnesses who identify manufacturers of asbestos products which were then present at his workplace.").

[25] Allen, 138 Wn. App. at 571 (citing Lockwood, 109 Wn.2d at 249-50).

[26] Id. (citing Berry, 103 Wn. App. at 324).

[27] Lockwood, 109 Wn.2d at 243.

[28] Id. at 247. ("Thus, even if [the shipyard worker] did not work directly with [defendant's] product on the George Washington, it is reasonable to infer that since the product was used on that ship when [plaintiff] worked there, [plaintiff] was exposed to it.') The Lockwood shipyard worker worked in proximity to the defendant's asbestos products for only two years.

[29] Berry, 103 Wn. App. at 324-25. This evidence contradicts Elliott's claim that the defendants' asbestos products were used extensively in Berry, Allen, and Lockwood.

[30] Id. at 324. Berry presented "sufficient evidence from which it could be inferred that [he] breathed the asbestos regardless of whether he worked on the ships or only in the shipyard." Id. (citing Kreppein v. Celotex Corp., 969 F.2d 1424 (2d Cir. 1992)). [31] See Allen, 138 Wn. App. at 569, 572-73 (plaintiff claimed he was injured when his father brought asbestos home from his job at PSNS where his father worked for 25 years).

[32] Id. at 572-73.

[33] Id.

[34] And Kimball worked there from 1966 to 1967.

[35] Hue v. Farmboy Spray Co., 127 Wn.2d 67, 91, 896 P.2d 682 (1995).

[36] Mavroudis, 86 Wn. App. at 25.

[37] Id. at 30 (citing Hue, 127 Wn.2d at 91).

[38] Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22, 935 P.2d 684 (1997).

[39] Id. at 25, 30-31. The Mavroudis court upheld the verdict against the asbestos supplier without reaching a conclusion on the overly strict application of Hue's substantial factor test because the asbestos supplier would have been liable under either version of the test. [40] Id. at 30 (footnote omitted).

[41] Allen, 138 Wn. App. at 575 n.3. Although Allen dispenses of the secondary exposure issue in a footnote, the footnote does not appear to be dicta.

[42] Kimball offered two pages of Dr. Smith's 1995 deposition from Slaughter v. Pittsburgh-Corning, in which he explained that working in a shipyard from 1941 to 1944 would have been enough for significant exposure to asbestos even if the worker worked in shops and not aboard ships.

[43] In a 2006 deposition for Cummings v. Laval, Elliott's managing agent, Thomas Keenan, said that Elliott was aware that the DA tanks would be insulated with asbestos and that Elliott designed the DA tanks' flanges to permit the application of insulation. [44] Dr. Churg testified in Bard v. Pittsburg-Corning Corp. that one year in the shipyards in the 1950s would have been enough to cause mesothelioma and that all exposures to a substance that causes mesothelioma would play a role in causing the disease. [45] Barry Castleman said it should have been foreseeable to Todd Shipyards that the family members of shipyard workers in the 1940's would also be exposed to asbestos.

[46] RAP 5.3(a)(3). Additionally, "the party filing the notice of appeal should attach to the notice of appeal a copy of the signed order or judgment from which the appeal is made." RAP 5.3(a).

[47] Kimball attached the order granting Elliott Company's motion for summary judgment but not the trial court's separate order granting Elliott's motion to strike.

[48] See Cox v. Gen. Motors Corp., 64 Wn. App. 823, 831, 827 P.2d 1052 (1992) (citing RAP 2.4 to refuse review of a trial court order that did not prejudicially affect the party appealing the order).

[49] See In re Perkins, 93 Wn. App. 590, 594, 969 P.2d 1101 (citing to RAP 18.8 to reach issues not contained in notice of appeal when both parties briefed the issue), review denied, 138 Wn.2d 1003 (1999).

[50] Should Elliott argue in another motion on remand that it is not responsible for the after-market application of asbestos, Keenan's 2006 deposition testimony would be relevant under the after-market liability tests used in Braaten and Simonetta v. Viad Corp., 137 Wn. App. 15, 151 P.3d 1019 (2007), review granted, 162 Wn.2d 1011 (2008). Because Keenan is Elliott's managing agent, the deposition would be admissible under ER 801(d)(2), which exempts admissions by party-opponents from the hearsay rule. Kimball disclosed Keenan's testimony to Elliott in the Plaintiff's Disclosure of Trial Witnesses and Exhibits, which stated that "Plaintiff may utilize as adverse witnesses defendants or their representatives, including, but not limited to: . . . 30(b)(6) deposition of defendant Elliott, to be scheduled."

Sources

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