Klopman-Baerselman v. Air & Liquid Systems Corporation (W.D. Wash., May 14, 2019)

Our plain-English summary of Klopman-Baerselman v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, May 14, 2019).

Eric Klopman-Baerselman, personal representative of the estate of Rudie Klopman-Baerselman, sued many companies in Washington state court in 2017, and the case was removed to federal court in 2018. The plaintiffs alleged that Mr. Klopman-Baerselman was exposed to asbestos while working as a merchant marine and through personal automotive exposure. He died of mesothelioma on November 25, 2017. The claims included negligence, strict product liability, conspiracy and premises liability. This order addressed only one defendant, Viking Pump, which asked for summary judgment because there was no evidence he was exposed to any Viking product. The plaintiffs did not respond to the motion. Applying Washington law and the Lockwood factors for proving that a defendant's asbestos product caused injury, the court found no admissible evidence linking Viking or its products to his mesothelioma. Because causation is needed for every claim, the court granted the motion and dismissed Viking from the case.

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: May 14, 2019
• Docket: Case No. C18-5536RJB
• Stage: Summary judgment
• State: Washington

Outcome. The court granted Viking Pump's unopposed motion for summary judgment and dismissed Viking from the case, against the plaintiffs, who offered no evidence connecting Viking to the decedent's mesothelioma.

What the court held. Under Washington product liability law and the Lockwood factors, a plaintiff must offer admissible evidence reasonably connecting the injury, the defendant's product and the defendant; without such evidence, causation, an element of all the claims, fails.

Issues decided: Causation, Product Identification.

The people and their exposure

• Rudie Klopman-Baerselman: mesothelioma; died

Who	Work	Where	When	Products
Rudie Klopman-Baerselman	merchant marine (shipyards and maritime work)
Rudie Klopman-Baerselman	personal automotive work

The defendants

• Viking Pump, 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.

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 RUEID KLOPMAN-

BAERSELMAN, deceased, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORPORATION; etal.,

Case No. C18-5536RJB.

May 14, 2019.

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

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 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.

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 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.

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.

Weir Valves & Controls USA Inc, a Massachusetts corporation, individually and as Atwood & Morrill Co., Inc., 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 Gary T. Tandberg, WILSON ELSER MOSKOWITZ EDELMAN & DICKER, pro hac vice, 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. DCO LLC, Defendant, represented by Michael Edward Ricketts, GORDON THOMAS HONEYWELL.

ORDER GRANTING DEFENDANT VIKING PUMP INC.'S MOTION FOR

SUMMARY JUDGMENT ROBERT J. BRYAN

ROBERT J. BRYAN, District Judge.

This matter comes before the Court on the Viking Pump, Inc.'s ("Viking") Motion for Summary Judgment. Dkt. 206. The Court has reviewed the pleadings filed regarding the motion and the remaining record.

For the reasons stated below, Viking's Motion for Summary Judgment (Dkt. 206) should be granted.

I. BACKGROUND

The above-entitled action was commenced in Pierce County, Washington Superior Court on October 27, 2017. Dkt. 1, at 2. The Notice of Removal was filed with this Court on July 3, 2018. Id.

In the Third Amended Complaint, Plaintiffs allege that Mr. Klopman-Baerselman was exposed to asbestos while working as a merchant marine and through personal automotive exposure. Dkt. 168, at 5-6. The Plaintiffs claim liability based on theories of product liability, including negligence, strict product liability, conspiracy, and premises liability. Id., at 6-13. Mr. Klopman-Baerselman passed away from mesothelioma on November 25, 2017. Id., at 4.

Viking now moves for summary judgment, pursuant to Fed. R. Civ. P. 56, arguing that there is no evidence to support any of Plaintiffs' claims against it. Dkt. 206-1.

II. DISCUSSION

A. SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt."). See also Fed. R. Civ. P. 56(d). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).

The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial — e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, non-specific statements in affidavits are not sufficient, and "missing facts" will not be "presumed." Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).

B. WASHINGTON STATE SUBSTANTIVE LAW APPLIES

Under the rule of Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts sitting in diversity jurisdiction apply state substantive law and federal procedural law. Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996). C. SUMMARY JUDGMENT ANALYSIS

1. Washington Products Liability Standard

"Generally, under traditional product liability theory, the plaintiff must establish a reasonable connection between the injury, the product causing the injury, and the manufacturer of that product. In order to have a cause of action, the plaintiff must identify the particular manufacturer of the product that caused the injury." Lockwood v. AC & S, Inc., 109 Wn.2d 235, 245-47 (1987) (quoting Martin v. Abbott Laboratories, 102 Wn.2d 581, 590 (1984)).

Because of the long latency period of asbestosis, the plaintiff's ability to recall specific brands by the time he brings an action will be seriously impaired. A plaintiff who did not work directly with the asbestos products would have further difficulties in personally identifying the manufacturers of such products. The problems of identification are even greater when the plaintiff has been exposed at more than one job site and to more than one manufacturer's product. [] Hence, instead of personally identifying the manufacturers of asbestos products to which he was exposed, a plaintiff may rely on the testimony of witnesses who identify

manufacturers of asbestos products which were then present at his workplace.

Id. (citations omitted). Lockwood prescribes several factors for courts to consider when "determining if there is sufficient evidence for a jury to find that causation has been established:"

1. Plaintiff's proximity to an 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. The types of asbestos products to which plaintiff was exposed;

5. The ways in which such products were handled and used;

6. The tendency of such products to release asbestos fibers into the air depending on their form and the methods in which they were handled; and

7. Other potential sources of the plaintiff's injury.

Id. at 248-49.

2. Washington Products Liability Analysis

Viking's motion for summary judgment (Dkt. 206) should be granted. Viking argues that the Plaintiffs cannot show that Mr. Klopman-Baerselman was exposed to or harmed by any asbestos or asbestos-containing products manufactured or supplied by Viking. Dkt. 206-1. It notes that with no evidence of exposure to Viking products, the Plaintiffs cannot show that a Viking product was "a substantial factor in the development of [Mr. Klopman-Baerselman's] disease." Id. The Plaintiffs did not respond to the motion. Accordingly, the Plaintiffs have not offered evidence admissible at summary judgment establishing a reasonable connection between Mr. Mr. Klopman-Baerselman's mesothelioma, products manufactured or supplied by Viking, and/or Viking itself. Plaintiffs have not offered admissible evidence showing, Viking or products that it manufactured or supplied caused, or a were a substantial factor that caused, Mr. Klopman-Baerselman's mesothelioma. In the absence of evidence from Plaintiff on summary judgment, and in consideration of the Lockwood factors above, there is nothing the Court can use to determine whether there is sufficient evidence for a jury to find that causation—a necessary element of all Plaintiffs' claims — has been established. Therefore, the Court should grant Viking's Motion for Summary Judgment (Dkt. 206) and dismiss Viking from this case.

III. ORDER

Therefore, it is hereby ORDERED that:

• Viking Pump, Inc.'s Motion for Summary Judgment (Dkt. 206) is GRANTED; and

• Viking Pump, Inc. is DISMISSED from the case.

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.

Sources

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