Klopman-Baerselman v. Air & Liquid Systems Corporation (W.D. Wash., Dec. 5, 2019, as to Crosby Valve)

Our plain-English summary of Klopman-Baerselman v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, December 5, 2019).

The personal representative of Rudie Klopman-Baerselman's estate sued several companies, including Crosby Valve, LLC, in an asbestos case. Mr. Klopman-Baerselman was diagnosed with mesothelioma in July 2017 and died in November 2017. The complaint said he worked as a boiler oilman/stoker for Dutch shipping lines from about 1955 to 1959 and was exposed to asbestos aboard vessels. The plaintiff argued he worked on U.S.-built ships, including the SS Friesland and SS Waterman. Plaintiff's expert said these ships had amosite asbestos, and that he was exposed when thermal insulation was removed and replaced. Plaintiff also showed that Crosby Valve sold asbestos-containing valves to the U.S. Navy. Crosby Valve moved for summary judgment, saying there was no evidence he was exposed to asbestos from its valves. Applying Washington law and the Lockwood factors, the court found the plaintiff's evidence addressed shipboard asbestos in general, not any Crosby Valve product. The court granted the motion on all claims and dismissed Crosby Valve.

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: December 5, 2019
• Docket: Case No. 3:18-cv-05536-RJB
• Stage: Summary judgment
• State: Washington

Outcome. The court granted Crosby Valve's motion for summary judgment and dismissed Crosby Valve from the case, ruling against the plaintiff estate.

What the court held. Under Washington law, an asbestos plaintiff must show a reasonable connection between the injury, the product, and the manufacturer, assessed using the Lockwood factors. General evidence of shipboard asbestos exposure, without evidence tying the decedent to this defendant's product, is not enough for a jury.

Issues decided: Causation, Product Identification.

The people and their exposure

• Rudie Klopman-Baerselman: mesothelioma; died

Who	Work	Where	When	Products
Rudie Klopman-Baerselman	boiler oilman/stoker (shipyards and maritime work)	SS Friesland and SS Waterman	1955-1959	amosite, pipe and block insulation

The defendants

• Crosby Valve, 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 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 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.

December 5, 2019.

United States District Court, W.D. Washington.

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, Charles W. Branham, III, DEAN OMAR BRANHAM SHIRLEY LLP, pro hac vice & Ethan A. Horn, DEAN OMAR BRANHAM, LLP, pro hac vice.

Borg Warner Morse Tec, LLC, a Delaware corporation successor in interest Borg Warner Corporation, Defendant, represented by Jennifer Judin, DENTONS, pro hac vice, Jennifer Gannon Crisera, BENNETT BIGELOW & LEEDOM & Michael J. Madderra, BENNETT BIGELOW & LEEDOM.

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.

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 & Todd N. Wade, HAWKINS PARNELL & YOUNG LLP, pro hac vice.

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 also known as NAPA, Defendant, represented by Jeanne F. Loftis, 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 Kevin P. Greene, WILCOX & SAVAGE PC, pro hac vice, Kristine E. Kruger, PERKINS COIE, Mary Z. Gaston, PERKINS COIE, Ricky A. Raven, REED SMITH LLP, pro hac vice & Joseph S. Pevsner, THOMPSON & KNIGHT, pro hac vice.

National Automotive Parts Association, a Georgia corporation, Defendant, pro se.

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.

DCO LLC, Defendant, represented by Mahsa Kashani Tippins, DEHAY & ELLISTON LLP, pro hac vice, Todd Suddleson, DEHAY & ELLISTON LLP, pro hac vice & Michael Edward Ricketts, GORDON THOMAS HONEYWELL.

ORDER GRANTING DEFENDANT CROSBY VALVE, LLC'S MOTION FOR

SUMMARY JUDGMENT

ROBERT J. BRYAN, District Judge.

THIS MATTER comes before the Court on Defendant Crosby Valve, LLC's ("Crosby Valve") Motion for Summary Judgment. Dkt. 449. The Court is familiar with the record herein and has reviewed the motion and documents filed in support of and in opposition thereto, and it is fully advised. Oral argument is unnecessary to decide this motion.

For the reasons set forth below, Crosby Valve's Motion for Summary Judgment should be granted.

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 various defendants, including Crosby Valve, causing Decedent injuries for which Crosby Valve is liable. Dkt. 168. Decedent was diagnosed with mesothelioma on approximately July 11, 2017, and died on November 25, 2017, before being deposed. Dkts. 168, at 4; and 374, at 7.

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.

"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.

Crosby Valve filed the instant Motion for Summary Judgment, arguing that there is no evidence that Decedent was exposed to asbestos from a Crosby valve, and that there is no evidence that asbestos from a Crosby Valve product was the cause of Decedent's mesothelioma. Dkt. 449.

Plaintiff responded in opposition. Dkt. 502. Plaintiff offers that Decedent "worked in the engineering department aboard ships including the SS Friesland and the SS Waterman (U.S.-built ships)." Dkt. 502, at 2. Plaintiff provides expert testimony that these ships would have contained greater or lesser amounts of amosite asbestos and that Decedent's work aboard these ships would have exposed him to asbestos through the removal and replacement of asbestos-containing thermal insulation. Dkts. 364-2; and 502. Plaintiff further provides evidence that Crosby Valves sold asbestos-containing valves and products for use by the United States Navy. Dkts. 502, at 3-4. Plaintiff offers expert testimony that Decedent developed mesothelioma substantially caused by mixed asbestos exposure. Dkt. 502, at 6. Plaintiff contends that Decedent was exposed to Crosby Valve asbestos-containing products working aboard U.S.-built ships in the Dutch Merchant Marine, which caused his mesothelioma. Dkt. 502.

Crosby Valve filed a reply in support of its motion for summary judgment. Dkt. 505.

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.

Lockwood, 109 Wn.2d at 246-47 (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 the evidence presented as to medical causation.

Id. at 248-49.

The Court has considered each of the Lockwood factors, none of which weigh in favor of a finding that causation has been established against Crosby Valve. First, although Plaintiff's evidence relates to Decedent's proximity to shipboard asbestos generally, it does not discuss proximity concerning an asbestos-containing product for which Crosby Valve is responsible. See, e.g., Dkt. 364-2; and 503-1, at 289.

Second, although expert evidence offered by Plaintiff partially describes ships or similar ships on which Decedent worked, it does not specifically describe shipboard expanses or work site expanses where asbestos fibers were released from a product for which Crosby Valve is responsible. See, e.g., Dkt. 364-2; and 503-1, at 289.

Third, although Plaintiff's evidence discusses general asbestos exposure aboard ships, Plaintiff has not shown the extent of time, if any, that Decedent was exposed to any asbestos-containing products for which Crosby Valve is liable. See, e.g., Dkt. 364-2; and 503-1, at 289.

Fourth, Plaintiff offers no evidence regarding the types of asbestos-containing products used by Decedent and produced by Crosby Valve. Plaintiff's proffered evidence only tends to show that Crosby Valve sold asbestos-containing valves for use by the United States Navy and that Decedent worked on U.S.-built ships. See, e.g., Dkt. 364-2; 502; and 503-1. Fifth, Plaintiff's evidence generally describes the use of valves, pumps, and various other pieces of machinery aboard ships, but it does not show that Decedent used any asbestos-containing product produced by Crosby Valve. See, e.g., Dkt. 364-2; 502; and 503-1.

Sixth, although Plaintiff offers evidence concerning the release of asbestos fibers from gaskets generally, Plaintiff has not shown the tendency of a Crosby Valve product used by Decedent, if any, to release asbestos fibers into the air depending on its form and the methods in which it was handled. See, e.g., Dkt. 364-2; 502; and 503-1.

Finally, it appears that there may be many possible sources that could have caused Decedent's injuries and death. Decedent's merchant marine career aboard multiple ships, his work at Tektronix, and his automotive repair practice may have exposed him to asbestos from numerous asbestos-containing products produced by various manufacturers. Plaintiff provided the opinion of Dr. Gordon, opining that Decedent had mixed asbestos exposure to chrysotile, crocidolite, amosite, tremolite/actinolite, and anthophyllite, which were causative factors in the development of Decedent's mesothelioma. Dkts. 502, at 6; and 503-1.

Plaintiff has not offered evidence regarding asbestos exposure proximity, regularity, or duration with respect to any Crosby Valve product used by Decedent. Although evidence offered by Plaintiff discusses asbestos exposure factors such as directness, quantity, proximity, and frequency, it does so generally—not with respect to any asbestos exposure to a product produced by Crosby Valve. Plaintiff has not offered evidence establishing a reasonable connection between Decedent's injuries and death and products manufactured, sold, or supplied by Crosby Valve. There is no evidence here showing that Decedent was exposed to asbestos from working with or around a Crosby Valve product.

Plaintiff has offered no testimony of witnesses with personal knowledge of Decedent using or otherwise being exposed to an asbestos-containing product for which Crosby Valve is responsible. Plaintiff has not offered evidence showing, even viewed in a light most favorable to Plaintiff, that Crosby Valve or products that it 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 Crosby Valve's Motion for Summary Judgment as to Plaintiff's Washington product liability claim.

2. Other Possible Claims

The operative complaint's causes of action are vague. See 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.").

In response to Crosby Valve's instant Motion for Summary Judgment, Plaintiff limited its discussion of claims and theories to Washington product liability, with some additional discussion of a manufacturer's duty to warn in a negligence case. See Dkt. 502, at 7-11.

Regardless, Plaintiff has not shown that Decedent worked with or around products manufactured by Crosby Valve and has not shown that exposure to a Crosby Valve asbestos-containing product caused Decedent's mesothelioma. Therefore, Plaintiff has not presented evidence sufficient to establish genuine issues of material fact with respect to Plaintiff's broad claims against Crosby Valve for product liability, negligence, conspiracy, strict liability under Section 402A and 402B of the Restatements of Torts, and premises liability.

3. Conclusion

Therefore, the Court should grant Crosby Valve's Motion for Summary Judgment (Dkt. 449) as to all of Plaintiff's claims against Crosby Valve and dismiss Crosby Valve from this case.

III. ORDER

Therefore, it is hereby ORDERED that:

• Defendant Crosby Valve, LLC's Motion for Summary Judgment (Dkt. 449) is GRANTED; and

• Defendant Crosby Valve, LLC 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