Klopman-Baerselman v. Air & Liquid Systems Corporation (W.D. Wash., Sept. 19, 2019)

Our plain-English summary of Klopman-Baerselman v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, September 19, 2019).

Eric Klopman-Baerselman, personal representative of the estate of Rudie Klopman-Baerselman, sued a number of companies in a federal court in Washington, alleging that Rudie's mesothelioma was caused by asbestos exposure. He was diagnosed in July 2017 and died in November 2017. The complaint said he was exposed as a merchant mariner working as a boiler oilman/stoker on vessels from about 1955 to 1959, and while doing his own vehicle maintenance, especially friction work, from about 1966 to 1997. This order decided only a motion for summary judgment by one defendant, Henry Company LLC. The court applied Washington law, which requires a plaintiff to identify the manufacturer of the product that caused the injury. Witnesses suggested the decedent may have used Henry products, but none identified an asbestos-containing product made by Henry. The plaintiff also did not oppose dismissal of the conspiracy, abnormally dangerous activity and premises liability claims. The court granted the motion and dismissed Henry from the case. It did not rule on Henry's motion to strike.

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: September 19, 2019
• Docket: Case No. 3:18-cv-05536-RJB
• Stage: Summary judgment
• State: Washington

Outcome. 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.

What the court held. Under Washington law a plaintiff must identify the particular manufacturer of the asbestos product that caused the injury, and the Lockwood factors require evidence from which a jury could find that the defendant's product caused the harm.

Issues decided: Causation, Premises Owner Liability, Product Identification.

The people and their exposure

• Rudie Klopman-Baerselman: mesothelioma; died

Who	Work	Where	When	Products
Rudie Klopman-Baerselman	boiler oilman/stoker, merchant mariner (shipyards and maritime work)	merchant vessels of Royal Dutch Lloyd / Rotterdam Lloyd	1955-1959
Rudie Klopman-Baerselman	performed maintenance on his own vehicles, specifically friction work		1966-1997	brakes, clutches and friction materials

The defendants

• Henry Company LLC (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 11, 2019). The court granted the plaintiff's motion for leave to amend the complaint to add DCo LLC as a defendant, over DCo's opposition.
• 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 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.

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 RUDIE KLOPMAN-

BAERSELMAN, deceased, Plaintiff,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal., Defendants.

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

September 19, 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 CAGGIANO PLLC & Brian Weinstein, WEINSTEIN CAGGIANO PLLC.

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

Air & Liquid Systems Corporation, a Pennsylvania corporation, individually, Defendant, 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.

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

Federal-Mogul Asbestos Personal Injury Trust, sued as Felt-Products Manufacturing Co., Defendant, represented by Allen Lockerman, HAWKINS PARNELL THACKSTON & YOUNG LLP, pro hac vice, Christine E. Dinsdale, SOHA & LANG PS, Frances Lopez, HAWKINS PARNELL THACKSTON & YOUNG LLP, pro hac vice & Rachel A. Rubin, SOHA & LANG PS. 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, Kurt L. Rasmussen, RASMUSSEN DICKEY MOORE LLC, pro hac vice, Mengsu Liu, RASOR HARRIS

LEMON & REED, pro hac vice & Megan Uhle, BULLIVANT HOUSER BAILEY PC.

Honeywell International, Inc., a Delaware corporation, Defendant, represented by Kristine E. Kruger, PERKINS COIE, Mary Z. Gaston, PERKINS COIE & Joseph S. Pevsner, THOMPSON & KNIGHT, pro hac vice.

Ingersoll-Rand Company, a New Jersey corporation, Defendant, represented by Deborah Thompson, NELSON MULLINS RILEY & SCARBOROUGH LLP, pro hac vice, Kevin J. Craig, GORDON REES SCULLY MANSUKHANI LLP, Mark B.

Tuvim, GORDON REES SCULLY MANSUKHANI LLP, Peter W. Sheehan, Jr., NELSON MULLINS RILEY &

SCARBOROUGH LLP, pro hac vice & Trevor J. Mohr, GORDON REES SCULLY MANSUKHANI LLP.

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, Defendant, 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 & John Earl Lenker, THE GAITAN GROUP PLLC.

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 John Earl Lenker, THE GAITAN GROUP PLLC & Virginia Leeper, THE GAITAN GROUP.

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

ORDER GRANTING DEFENDANT HENRY COMPANY LLC'S MOTION FOR

SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

THIS MATTER comes before the Court on Defendant Henry Company LLC's ("Henry") Motion for Summary Judgment (Dkt. 315) and Defendant Henry's Motion to Strike (Dkt. 349). The Court is familiar with the record and files herein and has reviewed the motions and materials filed in support of and in opposition thereto. Oral argument is unnecessary to decide these motions.

For the reasons set forth below, Henry's Motion for Summary Judgment (Dkt. 315) should be granted. The Court need not consider Henry's Motion to Strike (Dkt. 349).

I. BACKGROUND

This is an asbestos case. Dkt. 168. The above-entitled action was commenced in Pierce County Superior Court of October 27, 2017. Dkt. 1-1, at 6. Notice of removal from the state court was filed with this Court on July 3, 2018. Dkt. 1-1. In the operative complaint, Plaintiff alleges that Rudie Klopman-Baerselman ("Decedent") was exposed to asbestos-containing products produced by Henry, causing Decedent injuries for which Henry is liable. Dkt. 168. Decedent was diagnosed with mesothelioma on approximately July 11, 2017, and died on November 25, 2017. Dkt. 168, at 4. The complaint provides that "Decedent [] was an employee of Royal Dutch Lloyd, Rotterdam Lloyd and worked as a merchant mariner assigned to several vessels. While performing his duties as a boiler oilman/stoker from approximately 1955 through 1959, Decedent [] was exposed to asbestos, asbestos-containing materials and products while aboard the vessels." Dkt. 168, at 6. The complaint continues, "Decedent [] performed all maintenance work on his vehicles specifically friction work. Decedent [] performed maintenance to his vehicles, during the approximate years 1966 through 1997. Decedent [] was exposed to asbestos, asbestos materials and products while performing vehicle maintenance." Dkt. 168, at 6.

"Plaintiff claims liability based upon the theories of product liability (RCW 7.72 et seq.); negligence; conspiracy; strict product liability under Section 402A and 402B of the Restatement of Torts; premises liability; and any other applicable theory of liability." Dkt. 168, at 6.

Henry filed the instant Motion for Summary Judgment, arguing that:

(1) Plaintiff has failed to put forth evidence that Decedent's claims were caused by Henry's products. (2) Plaintiff has failed to put forth evidence in support of his broad claims of negligence, conspiracy, strict liability under Section 402A and 402B of the Restatements of Torts, premises liability.

Dkt. 315.

Plaintiff filed a Response in Opposition to Defendant Henry Company LLC's Motion for Summary Judgment. Dkt. 342. Plaintiff argues, in part, that it has provided ample evidence of exposure to Henry's asbestos-containing products via, in part, the testimony of lay witnesses. Dkt. 342, at 3-6.

Henry filed a Reply in Support of Its Motion for Summary Judgment and Motion to Strike. Dkt. 349. Henry argues that Plaintiff has provided no testimony or other evidence that Decedent used an asbestos-containing product manufactured by Henry. Dkt. 349. Henry moves to strike three photographs and the Report of Brent C. Staggs, M.D. Dkt. 349, at 6-9. 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 Product Liability

"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; courts must consider evidence presented as to medical causation.

Id. at 248-49.

Plaintiff has not offered evidence establishing a reasonable connection between Decedent's injury and death; products manufactured, sold, or supplied by Henry; and Henry. Although Plaintiff has provided testimony from witnesses showing that Decedent may have used Henry products, none of the witnesses appear to have identified any product used by Decedent that was an asbestos-containing product manufactured or produced by Henry. See, e.g., Dkts. 342; 343-2; 343-3; 343-4; 343-5; 343-6; 343-7; and 343-8.

Plaintiff has not offered evidence showing, even viewed in a light most favorable to Plaintiff, that Henry or products that it manufactured or produced caused Decedent's injuries and death. In consideration of the Lockwood factors above, the Court cannot determine that there is sufficient evidence for a jury to find that causation—a necessary element of Plaintiff's claim— has been established.

Therefore, the Court should grant Henry's Motion for Summary Judgment (Dkt. 315) as to Plaintiff's Washington product liability claim.

2. Other Claims

Plaintiff has failed to present evidence sufficient to establish genuine issues of material fact with respect to Plaintiff's broad claims of negligence, conspiracy, strict liability under Section 402A and 402B of the Restatements of Torts, and premises liability. And "Plaintiff does not oppose that part of Henry's summary judgment motion directed at his claims for conspiracy, abnormally dangerous activities, and premises liability." Dkt. 342, at 10 n.14. Therefore, the Court should grant Henry's Motion for Summary Judgment (Dkt. 315) as to all of Plaintiff's claims against Henry.

3. Conclusion

Therefore, the Court should grant Henry's Motion for Summary Judgment (Dkt. 315) and dismiss Henry from this case.

D. MOTION TO STRIKE

Because the Court will grant Henry's Motion for Summary Judgment (Dkt. 315) and dismiss Henry from this case, the Court need not consider Henry's Motion to Strike (Dkt. 349).

III. ORDER

Therefore, it is hereby ORDERED that:

• Defendant Henry Company LLC's Motion for Summary Judgment (Dkt. 315) is GRANTED;

• Defendant Henry Company LLC is DISMISSED from the case; and

• The Court need not consider Defendant Henry Company LLC's Motion to Strike (Dkt. 349).

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