Klopman-Baerselman v. Air & Liquid Systems Corporation (W.D. Wash., Sept. 20, 2019)

Our plain-English summary of Klopman-Baerselman v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, September 20, 2019).

Eric Klopman-Baerselman, as personal representative of the estate of Rudie Klopman-Baerselman, sued several companies in a Washington asbestos case removed to federal court. Rudie was diagnosed with mesothelioma in July 2017 and died in November 2017. The complaint said he was exposed as a boiler oilman/stoker on merchant ships from about 1955 to 1959 and while doing brake and other maintenance on his own vehicles from 1966 to 1997. Standard Motor Products and Parker-Hannifin moved for summary judgment. They had made and sold EIS brake shoes and pads, some containing asbestos. The court applied Washington law, which requires proof linking the injury to the particular defendant's product. It found the plaintiff's evidence concerned brakes generally and showed at most that he may have used EIS brakes at unspecified times, not that they contained asbestos. The plaintiff also did not oppose dismissal of the conspiracy, abnormally dangerous activity and premises claims. The court granted both motions and dismissed both companies.

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 20, 2019
• Docket: Case No. 3:18-cv-05536-RJB
• Stage: Summary judgment
• State: Washington

Outcome. 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.

What the court held. Under Washington law a plaintiff must show a reasonable connection between the injury, the product and the particular defendant's product, and general evidence of brake exposure that does not tie asbestos-containing brakes to the defendant is insufficient to reach a jury.

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, friction work		1966-1997	brakes, clutches and friction materials, EIS brakes (Parker; Standard Motor Products)

The defendants

• Standard Motor Products, Inc. (manufacturer)
• Parker-Hannifin 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 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 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 (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 20, 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 estate of 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 successor in interest Buffalo Pumps, 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 successor in interest Borg Warner Corporation, Defendant, represented by Richard D. Ross, BENNETT BIGELOW & LEEDOM.

CBS Corporation, a Delaware Corporation formerly known as Viacom, Inc successor in interest CBS Corporation formerly known as Westinghouse Electric 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 formerly known as The Dial Corporation, Defendants, represented by Ronald C. Gardner, GARDNER TRABOLSI & ASSOC. PLLC.

Federal-Mogul Asbestos Personal Injury Trust, sued as successor in interest 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 doing business as Rayloc doing business as NAPA, 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 formerly known as Allied-Products Liability Signal, Inc. successor in interest Bendix 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 also known as NAPA, 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.

Pneumo Abex, LLC, a Delaware corporation successor in interest Abex Corporation, Defendant, represented by Diane J. Kero, GORDON THOMAS HONEYWELL.

Saint-Gobain Abrasives, Inc., a Massachusetts corporation successor in interest Norton Company, 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 successor in interest WW Henry Company, 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 STANDARD MOTOR PRODUCTS, INC.'S

AMENDED MOTION FOR SUMMARY JUDGMENT AND DEFENDANT PARKER-

HANNIFIN CORPORATION'S MOTION FOR SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

THIS MATTER comes before the Court on Defendant Standard Motor Products, Inc.'s ("SMP") Amended Motion for Summary Judgment and Defendant Parker-Hannifin Corporation's ("Parker") Motion for Summary Judgment (Dkt. 323). The Court is familiar with the record and files herein and has reviewed the motion and materials filed in support of and in opposition to the motion. Oral argument is unnecessary to decide this motion.

For the reasons set forth below, the Court should grant Defendant SMP's Amended Motion for Summary Judgment and Defendant Parker's Motion for Summary Judgment (Dkt. 323).

I. BACKGROUND

This is an asbestos case. Dkt. 168. The above-entitled action was commenced in Pierce County Superior Court on 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 sold or supplied by SMP and Parker, causing Decedent injuries for which SMP and Parker are 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.

On July 11, 2019, SMP filed a Motion for Summary Judgment. Dkt. 261.

On September 9, 2019, SMP and Parker filed the instant motions in a single document, Defendant SMP's Amended Motion for Summary Judgment and Defendant Parker's Motion for Summary Judgment. Dkt. 323. SMP and Parker argue that: (1) Plaintiff is unable to identify any evidence that Decedent was exposed to any asbestos-containing products for which either SMP or Parker are liable.

(2) Plaintiff is unable to identify any evidence that Decedent suffered substantial exposure to asbestos associated with any asbestos-containing products manufactured or produced for which either SMP or Parker are liable.

(3) Plaintiff has not presented evidence sufficient to establish genuine issues of material fact with respect to Plaintiff's claims of negligence, conspiracy, strict liability under Section 402A and 402B of the Restatement of Torts, and premises liability.

Dkt. 323.

Additionally, SMP and Parker describe their history as follows:

EIS Corporation ("EIS") was formed in 1930. Parker acquired EIS Automotive Corporation in 1978 and

incorporated it into Parker's corporate structure as the EIS Automotive Division. Parker's EIS Automotive Division manufactured and distributed asbestos-containing brake shoes and pads from 1978 until 1986, when Parker sold EIS to Standard Motor. Standard Motor then continued to manufacture and distribute EIS brake shoes and pads until 1998. Some of the EIS brake products that Standard sold during this time contained asbestos and some of the EIS brake products did not contain asbestos.

Dkt. 323, at 2 (internal quotations omitted).

Plaintiff filed a Response in Opposition to Defendant SMP's Amended Motion for Summary Judgment and Defendant Parker's Motion for Summary Judgment. Dkt. 351. Plaintiff argues, in part, that Decedent was exposed to asbestos-containing EIS brakes manufactured by SMP and Parker. Dkt. 351.

SMP and Parker filed a Reply in Support of Their Motion for Summary Judgment. Dkt. 355. SMP and Parker argue, in part, that Plaintiff is unable to show that Decedent was exposed to an asbestos-containing EIS brake manufactured by SMP or Parker. Dkt. 355.

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 and products manufactured, sold, or supplied by SMP or Parker. Much of the testimony Plaintiff relies upon relates to Decedent's exposure to brakes generally, and none of it shows that Decedent worked with or was otherwise exposed to asbestos-containing brakes manufactured or produced by SMP or Parker. See, e.g., Dkts. 351; 352-1; 352-2; 352-4; and 352-5. The

evidence offered by Plaintiff suggests that Decedent may have used EIS brakes at unspecified times, but it does not show that Plaintiff worked with asbestos-containing EIS brakes. See, e.g., Dkts. 352-2, at 35-38; and 352-4, at 25. Plaintiff has not offered evidence showing, even viewed in a light most favorable to Plaintiff, that SMP or Parker, or products that SMP or Parker sold or supplied, 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 Defendant SMP's Amended Motion for Summary Judgment and Defendant Parker's Motion for Summary Judgment (Dkt. 323) as to Plaintiff's Washington product liability claim. Plaintiff's claim based on other legal theories fails for the same reason—lack of proof of causation.

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 [SMP and Parker's] summary judgment motion directed at his claims for conspiracy, abnormally dangerous activities, and premises liability." Dkt. 351, at 9 n.4.

3. Conclusion

Therefore, the Court should grant Defendant SMP's Amended Motion for Summary Judgment and Defendant Parker's Motion for Summary Judgment (Dkt. 323) as to all of Plaintiff's claims, and dismiss SMP and Parker from this case. III. ORDER

Therefore, it is hereby ORDERED that:

• Defendant Standard Motor Products, Inc.'s Amended Motion for Summary Judgment (Dkt. 323) is

GRANTED;

• Defendant Parker-Hannifin Corporation's Motion for Summary Judgment (Dkt. 323) is GRANTED;

• Defendant Standard Motor Products, Inc., is DISMISSED from the case; and

• Defendant Parker-Hannifin Corporation 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