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

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

Eric Klopman-Baerselman, as personal representative of the estate of Rudie Klopman-Baerselman, sued Air & Liquid Systems Corporation and other companies in federal court in Washington. The suit alleged that Rudie died of mesothelioma caused by asbestos exposure. The defendants argued that his disease was caused by other sources of asbestos, namely his work as a greaser in the Dutch Merchant Marine and his work at Tektronix. The estate asked the court for partial summary judgment against those defenses, saying the defendants lacked enough evidence. The court denied both motions. It found the motions inconsistent with the estate's own position against some defendants, such as Crosby Valve, that the Dutch Merchant Marine exposure was enough to meet Washington's Lockwood factors. It also said the estate's inability to prove exposure against one defendant, Ingersoll-Rand, had no bearing on the defendants' alternative-exposure defenses. The estate had not shown the absence of a genuine dispute of material fact, so the defenses remained.

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 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.

What the court held. A plaintiff's inability to prove exposure or causation against one defendant does not eliminate other defendants' affirmative defenses of alternative asbestos exposure, and the plaintiff did not show there was no genuine dispute of material fact on them.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Product Identification.

The people and their exposure

• Rudie Klopman-Baerselman: mesothelioma; died

Who	Work	Where	When	Products
Rudie Klopman-Baerselman	greaser in the Dutch Merchant Marine (shipyards and maritime work)	Dutch Merchant Marine		Crosby Valves
Rudie Klopman-Baerselman	worker at Tektronix	Tektronix

The defendants

• Air & Liquid Systems Corporation (manufacturer)
• Ingersoll-Rand Company (manufacturer)
• Crosby Valve, LLC (manufacturer)
• Borg Warner Morse Tec, LLC (manufacturer)
• CBS Corporation (manufacturer)
• Foster Wheeler Energy Corporation (manufacturer)
• General Electric Company (manufacturer)
• Honeywell International, Inc. (manufacturer)
• Pneumo Abex, LLC (manufacturer)
• Genuine Parts Company (supplier)
• O'Reilly Automotive Stores, Inc (supplier)

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 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 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, 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, 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 DENYING PLAINTIFF'S MOTIONS FOR PARTIAL SUMMARY

JUDGMENT AS TO DEFENDANTS' AFFIRMATIVE DEFENSES

ROBERT J. BRYAN, District Judge.

THIS MATTER comes before the Court on Plaintiff's Motion for Partial Summary Judgment Against All Defendants as to the Affirmative Defense of Alternative Exposures in the Merchant Marines ("Dutch Merchant Marine Motion") (Dkt. 489) and Plaintiff's Motion for Partial Summary Judgment Against All Defendants as to the Affirmative Defense of Third-Party Fault from Alleged Exposures at Tektronix, Inc. ("Tektronix Motion") (Dkt. 491). The Court is familiar with the record herein and has reviewed the motions and documents filed in support of and in opposition thereto, and it is fully advised. Oral argument is unnecessary to decide these motions.

For the reasons set forth below, both motions should be denied.

I. BACKGROUND & FACTS

A. ORDER GRANTING DEFENDANT INGERSOLL-RAND COMPANY'S

MOTION FOR SUMMARY JUDGMENT

On October 15, 2019, the Court granted Defendant Ingersoll-Rand Company's Motion for Summary Judgment as to Plaintiff's claims, including Plaintiff's claims related to Rudie Klopman-Baerselman's ("Decedent") alleged asbestos exposure (1) as a Dutch Merchant Marine and (2) as a worker at Tektronix (a theory of asbestos exposure that Plaintiff had removed from the operative complaint). Dkt. 428.[1]

B. DUTCH MERCHANT MARINE MOTION

On November 7, 2019, Plaintiff filed the instant Dutch Merchant Marine Motion. Dkt. 489. Plaintiff argues that "Defendants lack sufficient evidence to support their position that [Decedent] was exposed to asbestos while in the merchant marines[.]" Dkt. 489, at 2. Plaintiff alleges that defendants have raised affirmative defenses of alternative asbestos exposure from Decedent's time working as a greaser in the Dutch Merchant Marine. Dkt. 489. Plaintiff requests that the Court grant partial summary judgment against defendants as to the affirmative defense of alternative asbestos exposure from working in the Dutch Merchant Marine because defendants allegedly lack sufficient evidence of Decedent's Dutch Merchant Marine exposure to asbestos. Dkt. 489.

Several defendants filed responses and notices of joinder in opposition to Plaintiff's Dutch Merchant Marine Motion. Dkts. 507; 514; 524; 526; 535; 539; 542; and 565. Plaintiff filed a reply. Dkt. 574.

C. TEKTRONIX MOTION

On November 7, 2019, Plaintiff filed the instant Tektronix Motion. Dkt. 491. Plaintiff argues that Defendants lacks sufficient evidence of Decedent's exposure to asbestos while working at Tektronix to establish an affirmative defense of alternative asbestos exposure there. Dkt. 491. Plaintiff contends that, "[a]s Defendants have no more evidence than that found insufficient to create an issue of fact for the jury in this Court's Order granting Defendant Ingersoll-Rand Company's Motion for Summary Judgment, they cannot raise the affirmative defense that [Decedent] had an alternative asbestos exposure at Tektronix that caused his disease." Dkt. 491, at 6. Plaintiff requests that the Court grant partial summary judgment against defendants as to the affirmative defense of alternative asbestos exposure at Tektronix. Dkt. 491.

Several defendants filed responses and notices of joinder in opposition to Plaintiff's Tektronix Motion. Dkt. 507; 514; 526; 529; 533; 537; and 543. Plaintiff filed a Reply. Dkt. 575.

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. WASHINGTON PRODUCT 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.

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.

D. SUMMARY JUDGMENT ANALYSIS

The instant motions appear counterproductive to Plaintiff's claims and are inconsistent with Plaintiff's other pleadings and motions. Plaintiff has argued (and continues to argue)[2] that his evidence of asbestos exposure from working in the Dutch Merchant Marine and at Tektronix satisfies the Lockwood factors with respect to various individual defendants. E.g., Dkts. 372; and 374. On the other hand, Plaintiff now argues there is not enough evidence of asbestos exposure from Decedent's work in the Dutch Merchant Marine or at Tektronix to satisfy the Lockwood factors or to show that such exposure was a substantial factor in the development of Decedent's mesothelioma. Dkts. 489; and 491.

Plaintiff's instant motions are without merit. Plaintiff's ability or inability to prove causation or exposure to asbestos with respect to certain individual defendants, e.g., Dkt. 428 (granting Defendant Ingersoll-Rand Company's Motion for Summary Judgment), is irrelevant to the defendants' affirmative defenses that Decedent's mesothelioma was caused by exposure to asbestos from several alternative sources, including Decedent's work in the Dutch Merchant Marine and at Tektronix. Plaintiff has not shown that there is no genuine dispute over a material fact with respect to defendants' affirmative defenses of alternative asbestos exposure from Decedent's work in the Dutch Merchant Marine or at Tektronix.

Therefore, Plaintiff's instant Dutch Merchant Marine Motion and Tektronix Motion should both be denied. III. ORDER

Therefore, it is hereby ORDERED that:

• Plaintiff's Motion for Partial Summary Judgment Against All Defendants as to the Affirmative Defense of alternative Exposures in the Merchant Marines (Dkt. 489) is DENIED.

• Plaintiff's Motion for Partial Summary Judgment Against All Defendants as to the Affirmative Defense of Third-Party Fault from Alleged Exposures at Tektronix, Inc. (Dkt. 491) is DENIED.

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] Plaintiff's Motion for Reconsideration of that decision is pending before the Court and is ripe for consideration. Dkt. 466. [2] For example, in response to Defendant Crosby Valve, LLC's motion for summary judgment, which is pending before the Court and ripe for consideration, Plaintiff argues that he has gathered sufficient evidence showing that the Decedent's mesothelioma was caused by asbestos exposure from Crosby Valves while working in the Dutch Merchant Marine. Dkt. 502. Additionally, in Plaintiff's motion for reconsideration of the Court's Order Granting Defendant Ingersoll-Rand Company's Motion for Summary Judgment, which is pending before the Court and ripe for consideration, Plaintiff requests that the Court grant Plaintiff leave to amend his complaint so that he can plead asbestos exposure at Tektronix. Dkt. 466.

Sources

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