Klopman-Baerselman v. Air & Liquid Systems Corporation (W.D. Wash., Mar. 11, 2019)

Our plain-English summary of Klopman-Baerselman v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, March 11, 2019).

Eric Klopman-Baerselman, as personal representative of the estate of Rudie Klopman-Baerselman, sued many companies in Pierce County Superior Court, Washington. He alleged that Mr. Klopman-Baerselman's exposure to asbestos in products the defendants made, sold or distributed substantially contributed to his mesothelioma. The case was later removed to the federal court in Tacoma. Plaintiff then asked, for the third time since removal, to amend the complaint, this time to add DCo LLC. Plaintiff alleged that the decedent had boxes of DCo's asbestos-containing Victor brand gaskets in his garage, which a friend's testimony appeared to support. Plaintiff said leaving DCo out was an oversight, caused by DCo's law firm attending a deposition for another client. DCo opposed, arguing no good cause existed to change the scheduling order. The court weighed bad faith, delay, prejudice, futility and prior amendments. It found no bad faith, some explained delay, inconvenience but no real prejudice, and no futility. It granted the motion but warned that further oversights could cause delay and prejudice.

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: March 11, 2019
• Docket: Case No. 3:18-cv-05536-RJB
• Stage: Other
• State: Washington

Outcome. The court granted the plaintiff's motion for leave to amend the complaint to add DCo LLC as a defendant, over DCo's opposition.

What the court held. Leave to amend under Rule 15(a)(2) is freely given and is denied only on a showing of bad faith, undue delay, futility or undue prejudice; the court weighed these factors and found the balance favored amendment despite earlier amendments.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Rudie Klopman-Baerselman: mesothelioma; died

Who	Work	Where	When	Products
Rudie Klopman-Baerselman		his garage		gaskets and packing, Victor brand gaskets (DCo LLC)

The defendants

• DCo LLC (manufacturer)
• Air & Liquid Systems Corporation (manufacturer)
• Toyota Motor Corporation (manufacturer)

Other decisions in this case

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

• Klopman-Baerselman v. Air & Liquid Systems Corporation (March 13, 2019). The district court denied O'Reilly Automotive Stores, Inc.'s motion for summary judgment, so the plaintiff's claims against O'Reilly (Schuck's) go forward.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (April 22, 2019). The court granted in part and denied in part the estate's motion to compel, ordering O'Reilly to serve complete answers to the interrogatories and document requests by May 13, 2019, and declining to impose sanctions.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (June 4, 2019). The court denied National Automotive Parts Association's motion to dismiss for lack of personal jurisdiction, so the plaintiff estate won this motion and the case against NAPA continues.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (August 5, 2019). The court granted Standard Motor Products' unopposed motion for summary judgment and dismissed it from the case because the plaintiff offered no evidence that the decedent was exposed to an SMP product.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (August 8, 2019). The court granted Cost Less Auto Parts, Inc.'s motion for summary judgment and dismissed it from the case, ruling against the estate of Rudie Klopman-Baerselman.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (September 19, 2019). The court granted Henry Company LLC's motion for summary judgment and dismissed it from the case because the plaintiff offered no evidence that Henry made an asbestos-containing product the decedent used.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (September 20, 2019). The court granted summary judgment to Standard Motor Products and Parker-Hannifin and dismissed them from the case because the plaintiff could not show the decedent was exposed to asbestos-containing EIS brakes they made or sold.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (October 9, 2019). The court granted Air & Liquid Systems Corporation's motion for summary judgment and dismissed it from the case, because the plaintiff estate did not show the decedent was exposed to an asbestos product attributable to Air & Liquid.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (October 15, 2019). The federal district court granted Ingersoll-Rand's motion for summary judgment and dismissed it from the case, because the plaintiff did not show that the decedent was exposed to any asbestos-containing Ingersoll-Rand product.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (October 18, 2019). The court granted in part and denied in part Toyota Motor Corporation's and Toyota Motor Sales, U.S.A.'s renewed motion for a protective order, and set the final form of the Rule 30(b)(6) deposition notices the plaintiff estate could use.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (December 5, 2019). The court granted Crosby Valve's motion for summary judgment and dismissed Crosby Valve from the case, ruling against the plaintiff estate.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (December 5, 2019). The court denied the plaintiff estate's two motions for partial summary judgment against the defendants' affirmative defenses of alternative asbestos exposure in the Dutch Merchant Marine and at Tektronix, so the defendants kept those defenses.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (December 10, 2019). The court granted in part and denied in part Pneumo Abex's summary judgment motion: the Washington product liability claim survived for trial, while the plaintiff's other claims (negligence, conspiracy, Restatement 402A/402B strict liability, premises liability) were dismissed.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (December 12, 2019). The court denied Honeywell's summary judgment motion on the Washington product liability claim, granted it on plaintiff's other broad claims (negligence, conspiracy, 402A/402B, premises, catch-all), and denied it without prejudice on the inadequately briefed admission and punitive damages issues.
• Klopman-Baerselman v. Air & Liquid Systems Corporation (December 16, 2019). The court granted Foster Wheeler's summary judgment motion and dismissed all claims against it for lack of product-identification evidence, and granted plaintiff's motion holding Foster Wheeler waived its Dutch-law limitations defense.

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.

ERIC KLOPMAN-BAERSELMAN, as Personal Representative for the Estate of RUDIE KLOPMAN-

BAERSELMAN, deceased, Plaintiff,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal., Defendants.

Case No. 3:18-cv-05536-RJB.

March 11, 2019.

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

DCO LLC, Defendant, represented by Michael Edward Ricketts, GORDON THOMAS HONEYWELL.

Rudie Klopman-Baerselman, deceased & Muriel Klopman-Baerselman, husband and wife, Plaintiffs, represented by Alexandra B. Caggiano, WEINSTEIN COUTURE PLLC, Benjamin Robert Couture, WEINSTEIN COUTURE PLLC & Brian Weinstein, WEINSTEIN COUTURE PLLC.

Eric Klopman-Baerselman, as Personal Representative for the, estate of Rudie Klopman-Baerselman, Plaintiff, represented by Alexandra B. Caggiano, WEINSTEIN COUTURE PLLC, Benjamin Robert Couture, WEINSTEIN COUTURE PLLC, Brian Weinstein, WEINSTEIN COUTURE PLLC & Benjamin H. Adams, DEAN OMAR & BRANHAM, LLP, pro hac vice.

Air & Liquid Systems Corporation, a Pennsylvania corporation, individually & Ingersoll-Rand Company, a New Jersey corporation, Defendants, 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.

Borg Warner Morse Tec, LLC, a Delaware corporation, Defendant, represented by Richard D. Ross, BENNETT BIGELOW & LEEDOM.

CBS Corporation, a Delaware Corporation, Defendant, represented by Christopher S. Marks, TANENBAUM KEALE LLP, Erin P. Fraser, TANENBAUM KEALE LLP & Malika Johnson, TANENBAUM KEALE LLP.

Cost Less Auto Parts, Inc., a Washington corporation, Defendant, represented by Howard Terry I. Hall, FOLEY & MANSFIELD & Diane Catherine Babbitt, FOLEY & MANSFIELD.

Crane Co., a Delaware corporation, Defendant, represented by G. William Shaw, K&L GATES LLP.

Crosby Valve Inc, a Massachusetts corporation & Viad Corporation, a Delaware corporation, Defendants, represented by Ronald C. Gardner, GARDNER TRABOLSI & ASSOC. PLLC.

DAP Products, Inc., a Maryland corporation, Defendant, represented by Diane Catherine Babbitt, FOLEY & MANSFIELD & J. Scott Wood, FOLEY & MANSFIELD.

Federal-Mogul Asbestos Personal Injury Trust, sued as successor in interest Felt-Products Manufacturing Co., Defendant, represented by Christine E. Dinsdale, SOHA & LANG PS, Frances Lopez, HAWKINS PARNELL THACKSTON & YOUNG LLP, pro hac vice & Rachel A. Rubin, SOHA & LANG PS.

Flowserve US Inc, a Delaware corporation, Defendant, represented by Marc Marshall Carlton, LEWIS BRISBOIS BISGAARD & SMITH LLP & Randy J. Aliment, LEWIS BRISBOIS BISGAARD & SMITH LLP.

Foster Wheeler Energy Corporation, a Delaware corporation & General Electric Company, a New York corporation, Defendants, represented by Christopher S. Marks, TANENBAUM KEALE LLP & Erin P. Fraser, TANENBAUM KEALE LLP. Genuine Parts Company, a Georgia corporation, Defendant, represented by Jeanne F. Loftis, BULLIVANT HOUSER BAILEY PC & Megan Uhle, BULLIVANT HOUSER BAILEY PC.

Henry Company LLC, a California corporation, Defendant, represented by Daira S. Waldenberg, SELMAN BRIETMAN LLP.

Honeywell International, Inc., a Delaware corporation, Defendant, represented by Kristine E. Kruger, PERKINS COIE & Mary Z. Gaston, PERKINS COIE.

Metropolitan Life Insurance Company, a New York corporation, a wholly-owned subsidiary of, Defendant, represented by Richard G. Gawlowski, WILSON SMITH COCHRAN & DICKERSON.

National Automotive Parts Association, a Georgia corporation, Defendant, represented by Megan Uhle, BULLIVANT HOUSER BAILEY PC.

O'Reilly Automotive Stores, Inc, an Ohio corporation, Defendant, represented by Stephen Garrett Leatham, HEURLIN POTTER JAHN, LEATHAM, HOLTMAN & STOKER PS.

Parker-Hannifin Corporation, an Ohio corporation & Standard Motor Products, Inc., a New York corporation, Defendants, represented by Diane Catherine Babbitt, FOLEY & MANSFIELD, Howard Terry I. Hall, FOLEY & MANSFIELD, J. Scott Wood, FOLEY & MANSFIELD & R. Dirk Bernhardt, FOLEY & MANSFIELD.

Pneumo Abex, LLC, a Delaware corporation, Defendant, represented by Diane J. Kero, GORDON THOMAS HONEYWELL. Saint-Gobain Abrasives, Inc., a Massachusetts corporation, Defendant, represented by John Michael Mattingly, RIZZO MATTINGLY BOSWORTH PC & Kevin Clonts, RIZZO MATTINGLY BOSWORTH PC.

Toyota Motor Sales USA Inc, a California corporation, Defendant, represented by Jose Edward Gaitan, THE GAITAN GROUP & Virginia Leeper, THE GAITAN GROUP.

Viking Pump Inc, a Delaware corporation, Defendant, represented by Todd M. Thacker, WFBM LLP.

Weir Valves & Controls USA Inc, a Massachusetts corporation, individually and as, Defendant, represented by Dana C. Kopij, WILLIAMS KASTNER & GIBBS.

William Powell Company, an Ohio corporation, Defendant, represented by Brian Bernard Smith, FOLEY & MANSFIELD & James D. Hicks, FOLEY & MANSFIELD.

WW Henry Company LP, a Pennsylvania corporation, Defendant, represented by Jeff Bone, CORR CRONIN, LLP, William Randolph Squires, III, CORR CRONIN, LLP, Kevin C. Baumgardner, CORR CRONIN, LLP & Robert G. Engel, WILSON ELSER MOSKOWITZ EDELMAN & DICKER.

Toyota Motor Corporation, a Japanese corporation, Defendant, represented by Virginia Leeper, THE GAITAN GROUP. ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND

COMPLAINT

ROBERT J. BRYAN, District Judge.

THIS MATTER comes before the Court on Plaintiff's Motion for Leave to Amend Complaint (Dkt. 154). The Court has considered the motion and the remainder of the file herein. For the reasons below, the Court should grant Plaintiff's Motion for Leave to Amend Complaint (Dkt. 154).

I. BACKGROUND

On October 27, 2017, Plaintiff filed a complaint in this matter in Pierce County Superior Court, alleging that Mr. Rudie Klopman-Baerselman's (decedent) exposure to asbestos from asbestos-containing products manufactured, sold, or distributed by the named Defendants substantially contributed to his mesothelioma. Dkt. 1. On May 14, 2018, in Pierce County Superior Court, Plaintiff filed a motion seeking leave to amend complaint to name a personal representative as plaintiff and add six defendants. Dkt. 68-1, at 688. The motion to amend was granted. Dkt. 68-1, at 743. On July 3, 2019, the case was removed to this Court. Dkt. 1. Since then, Plaintiff has asked this Court for leave to amend complaint three times. Dkts. 72; 90; and 154. The first motion for leave to amend was granted, permitting Plaintiff to add

Toyota Motor Corporation as a defendant. Dkt. 88. The second motion for leave to amend was denied as futile. Dkt. 107. In the third and instant motion, Plaintiff seeks leave to amend to add DCo LLC ("DCo") as a named defendant. Plaintiff alleges that decedent had boxes of DCo's asbestos-containing Victor brand gaskets in his garage. Dkt. 154, at 3-4. This appears to be corroborated by the testimony of decedent's friend, Mr. Ray Smith. Dkt. 154, at 4.

Plaintiff admits that its "failure to name DCo as a defendant in this matter was an oversight[.]" Dkt. 161, at 1. Plaintiff erroneously believed that it had named DCo as a defendant because "its counsel" had participated in a telephonic deposition. Dkt. 154, at 2. Plaintiff alleges that its counsel had "even inquired of defense counsel whether [DCo] had appeared. Counsel for another defendant confirmed that [DCo]'s counsel had appeared and was participating in the deposition telephonically." Dkt. 154, at 5.

DCo is represented in this matter by counsel from Gordon Thomas Honeywell LLP ("GTH"); GTH also represents DCo in another pending matter. Dkts. 154, at 2; and 158, at 5. Counsel from GTH was at the deposition, but it notes that "[i]ts appearance at prior depositions in this matter was on behalf of—and only on behalf of—one of those other clients, Pneumo Abex LLC. [GTH] was not retained to represent DCo in this matter prior to the filing of this motion, which is hardly surprisingly given that DCo had not been named a party." Dkt. 158, at 5.

After the deadline for filing any motion to join parties had passed (December 3, 2018. Dkt. 113[1]), Plaintiff realized that DCo had not been named as a defendant in this case. Plaintiff filed the instant motion seeking leave to amend complaint on February 11, 2019. Dkt. 154. The proposed redlined amended complaint submitted by Plaintiff adds DCo as a named defendant and makes no substantive changes. Dkt. 155-1. DCo responded in opposition to Plaintiff's motion to amend (Dkt. 158), and Plaintiff replied in support of its motion to amend (Dkt. 161).

Plaintiff argues that its motion to amend complaint should be granted because there is strong public policy permitting the amendment of pleadings when justice so requires. Dkt. 154. DCo argues that leave to amend should not be granted and that good cause does not exist to alter the Case Scheduling Order (Dkt. 113) to allow it. Dkt. 158.

II. DISCUSSION

Under Fed. R. Civ. P. 15(a)(2), "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." A motion to amend under Rule 15(a)(2), "generally shall be denied only upon showing of bad faith, undue delay, futility, or undue prejudice to the opposing party." Chudacoff v. University Medical Center of Southern Nevada, 649 F.3d 1143, 1152 (9th Cir. 2011).

In determining whether leave to amend is appropriate, the court considers five factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether the moving party has previously amended its pleading. Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). "[T]he consideration of prejudice to the opposing party. . . carries the greatest weight." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). First, there is no evidence of bad faith. Second, "Plaintiff admits there has been some delay in adding [DCo.]" Dkt. 154, at 3. However, Plaintiff's delay appears to have been caused by confusion related to GTH's presence at an earlier deposition. Dkt. 154, at 5. Third, DCo is inconvenienced— not prejudiced. The first pretrial deadline pertaining to DCo as a defendant in this case (expert witness disclosures and reports) is not due until April 17, 2019, and trial is more than half a year away. Dkt. 113. Fourth, the amendment is not futile. Decedent allegedly had boxes of DCo's asbestos-containing Victor brand gaskets in his garage, which appears corroborated by the testimony of Mr. Ray Smith. Dkt. 154, at 3-4. Fifth, Plaintiff has moved to amend complaint three times before the instant motion and has been permitted to amend it twice. Dkts. 68-1, at 688, 743; 72; 88; 90; 107; and 154. This growing history of amendments is concerning, but "there is a `strong policy to permit the amending of pleadings,' and denial of a motion to amend must be reviewed `strictly.'" Sweaney v. Ada Cty., 119 F.3d 1385, 1392 (9th Cir. 1997) (citing Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986) (quoting Howey v. United States, 481 F.2d 1187, 1190 (9th Cir. 1973)).

In light of the factors considered above, it appears that the balance of justice again tilts toward allowing Plaintiff to amend its complaint. Therefore, the Court should grant Plaintiff's Motion for Leave to Amend Complaint (Dkt. 154). The Court is optimistic that the Parties can accommodate the addition of DCo as a defendant without delay. The Court cautions Plaintiff that amending further oversights in its pleadings may unduly delay this case and be prejudicial to opposing

parties.

III. ORDER

Therefore, it is HEREBY ORDERED that:

• Plaintiff's Motion for Leave to Amend Complaint (Dkt. 154) is GRANTED.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.

[1] MINUTE ORDER SETTING TRIAL AND PRETRIAL DATES; Length of Trial: *FIFTEEN DAYS*. Jury Trial is set for 10/15/2019 at 09:30 AM in Courtroom A before Judge Robert J. Bryan. Joinder of Parties due by 12/3/2018, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 4/17/2019, Motions due by 5/28/2019, Discovery completed by 6/14/2019, Dispositive motions due by 7/16/2019, Motions in Limine due by 9/13/2019, Pretrial Order due by 9/27/2019, Pretrial Conference set for 10/4/2019 at 08:30 AM in Courtroom A before Judge Robert J. Bryan. Trial briefs to be submitted by 10/4/2019, Proposed voir dire/jury instructions due by 10/4/2019. Dkt. 113.

Sources

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