Klopman-Baerselman v. Air & Liquid Systems Corporation (W.D. Wash., Dec. 10, 2019)

Our plain-English summary of Klopman-Baerselman v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, December 10, 2019).

Eric Klopman-Baerselman sued, as personal representative of his father Rudie's estate, after Rudie was diagnosed with mesothelioma in July 2017 and died that November. The suit named many defendants. This order addressed only Pneumo Abex, which the plaintiff said supplied asbestos-containing friction linings used in Rayloc brakes sold through NAPA. The plaintiff said Rudie did his own brake and clutch work from about 1966 to 1997, including at a family-owned shop in Washougal, Washington. Witnesses described the work as dusty. The plaintiff also pointed to a Rayloc brake box with an asbestos warning and a 1993 receipt. Pneumo Abex argued there was no proof of exposure to its products. Applying Washington's Lockwood factors, the court found enough evidence for a jury on the product liability claim. Pneumo Abex disputed that it was the main supplier, but the court resolved that conflict for the plaintiff for purposes of the motion. The court dismissed the plaintiff's other claims, which he did not defend. It did not decide the substantial-factor question.

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 10, 2019
• Docket: Case No. 3:18-cv-05536-RJB
• Stage: Summary judgment
• State: Washington

Outcome. 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.

What the court held. Under Washington law a plaintiff must identify the manufacturer of the product that caused the injury, and the Lockwood factors guide whether the evidence is enough for a jury on causation. Evidence of extensive dusty brake work with Rayloc brakes attributed to Pneumo Abex was enough to reach a jury.

Issues decided: Causation, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Rudie Klopman-Baerselman: mesothelioma; died

Who	Work	Where	When	Products
Rudie Klopman-Baerselman	performed all maintenance work on his own vehicles, including brake and clutch work (auto mechanics and brake work)		1966-1997	brakes, clutches and friction materials, Rayloc brakes, NAPA/Rayloc brake shoes, Borg-Warner clutch facings, AC Delco brakes, Pneumo Abex (Abex) friction linings
Rudie Klopman-Baerselman	performed brake, clutch, and gasket work at a family-owned auto repair shop (auto mechanics and brake work)	Independent Auto, Washougal, Washington		brakes, clutches and friction materials, gaskets and packing, Rayloc brakes and clutches
Rudie Klopman-Baerselman	Dutch Merchant Marine (shipyards and maritime work)		1955-1959

The defendants

• Pneumo Abex, 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 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 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.
• McINDOE v. Huntington Ingalls Incorporated (U.S. Court of Appeals, Ninth Circuit, 2016). The Ninth Circuit affirmed summary judgment for shipbuilders Huntington Ingalls and Bath Iron Works against the heirs of James McIndoe, holding the warships were not products for strict liability and the heirs could not show substantial-factor causation.

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 10, 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, 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, Defendant, represented by Jennifer Judin, DENTONS, pro hac vice, Jennifer Gannon Crisera, BENNETT BIGELOW & LEEDOM, Michael J. Madderra, BENNETT BIGELOW & LEEDOM &

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 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, Defendant, represented by Jeanne F. Loftis, BULLIVANT HOUSER BAILEY PC.

Honeywell International, Inc., a Delaware 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, 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 ON DEFENDANT PNEUMO ABEX, LLC'S MOTION FOR SUMMARY

JUDGMENT

ROBERT J. BRYAN, District Judge.

THIS MATTER comes before the Court on Defendant Pneumo Abex, LLC's (Pneumo Abex") Motion for Summary

Judgment. Dkt. 482. 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, Pneumo Abex's Motion for Summary Judgment should be granted, in part, and denied, in part.

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 Pneumo Abex, causing Decedent injuries for which Pneumo Abex 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 performed all maintenance work on his vehicles, including friction work, from approximately 1966 to 1997. Dkt. 168. Plaintiff alleges that Decedent was exposed to asbestos attributable to Pneumo Abex while performing vehicle maintenance. Dkt. 168. "Plaintiffs sue Pneumo-Abex, LLC (as successor to Abex) as a supplier of asbestos-containing friction linings to Genuine Parts Company/NAPA for use in Rayloc brakes, as well as a supplier of asbestos-containing friction linings used in Borg-Warner manual clutches and in AC Delco brakes." Dkt. 548, at 2. There are two other general theories of asbestos exposure in this case. First, Plaintiff claims that Decedent was also exposed to asbestos while working as a Dutch Merchant Marine from approximately 1955 to 1959. Dkt. 168, at 6. Second, Plaintiff had previously claimed, but removed from the operative complaint (Dkt. 168), that Decedent was exposed to asbestos while working at Tektronix. Dkt. 1-1, at 9-10.

"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.

A. MOTION FOR SUMMARY JUDGMENT

Pneumo Abex filed the instant Motion for Summary Judgment. Dkt. 482. Pneumo Abex argues that there is no credible evidence that Decedent worked with or around asbestos-containing automotive brake or friction materials produced by Pneumo Abex such that they exposed Decedent to respirable asbestos fibers or that they were a substantial contributing factor to the cause of Decedent's disease. Dkt. 482. The instant Motion for Summary Judgment seeks dismissal of all of Plaintiff's claims against Pneumo Abex. Dkt. 482.

B. PLAINTIFF'S RESPONSE

Plaintiff filed a response in opposition to Pneumo Abex's Motion for Summary Judgment. Dkt. 548. Plaintiff does not oppose the Motion for Summary Judgment as to the claims for conspiracy, premises liability, or abnormally dangerous activities. Dkt. 548. Plaintiff argues that his evidence demonstrates that there are genuine issues of material fact as to whether Decedent was substantially exposed to asbestos from Abex Pneumo friction linings causing Decedent's mesothelioma. Dkt. 548. Plaintiff also filed a Declaration of Benjamin H. Adams in Support of Plaintiff's Response in Opposition to the Motion of Defendant Pneumo Abex, LLC for Summary Judgment. Dkt. 554. The declaration is voluminous, 1311 pages, containing numerous deposition transcripts, photographs, asbestos-related literature and expert reports, and other materials. Dkts. 554; 554-1, and 554-2.

Plaintiff offers testimony from several witnesses that Decedent purchased Rayloc brakes in the 1980s and 1990s, and possibly earlier. Dkts. 548, at 4-5; and 554-1. Plaintiff provides testimony describing Decedent's extensive brake and friction work from approximately the 1970s to 2001. Dkts. 548; and 554-1. Plaintiff produced photographs of a box labeled NAPA/Rayloc brake shoes, which contained a receipt dated March 23, 1993. Dkt. 548, at 5-6; Dkt. 554-1. The NAPA/Rayloc

box states: "Caution: Contains asbestos fiber. Avoid creating dust, breathing asbestos. Dust may cause serious bodily harm." Dkt. 554-1, at 267. Plaintiff writes that "the receipt reflects a `core deposit' of part number EB-280. Eric [Klopman, Decedent's son ("Eric"),] testified this reflects that his father brought used cores back to the store for a refund of the deposit, and exchanged them for new replacement parts, and therefore that his father exchanged used Rayloc brakes for new Rayloc replacements." Dkt. 548, at 6. Eric further testified that Decedent did clutch jobs and that he had witnessed Decedent install and remove Borg-Warner clutch facings as recently as 2014. Dkts. 548; and 554-1. Ray Smith, a friend and co-worker of Decedent's, further described Plaintiff's extensive work with Rayloc, Bendix, and AC Delco brakes. Dkts. 548; and 554-1.

The Declaration of Michael Heyer states that his family owned an automotive repair shop, Independent Auto, in Washougal, Washington. Dkts. 548; and 554-1, at 387. Michael Heyer wrote that he knew that Decedent performed work there and "definitely performed brake, clutch, and gasket work at Independent Auto," that it was "dusty work," and that Independent Auto used Rayloc brakes and clutches. Dkts. 548; and 554-1, at 387.

Plaintiff submits deposition evidence purporting to show that Pneumo Abex was an exclusive or primary supplier of asbestos-containing friction materials to Rayloc. Dkts. 548, at 9-10; 554-1; and 554-2.

C. PNEUMO ABEX'S REPLY

Pneumo Abex filed a reply in support of the instant Motion for Summary Judgment. Dkt. 572. Pneumo Abex argues and submits evidence purporting to show that its brake linings were not used for new NAPA-brand brakes sold by NAPA. Dkt. 572; and 573. NAPA further contends that deposition testimony shows that Pneumo Abex was just one of many suppliers of brake linings incorporated into remanufactured NAPA-brand brakes. Dkt. 572; and 573. Pneumo Abex argues Plaintiff cannot demonstrate Decedent's exposure to asbestos from a product attributable to Pneumo Abex. Dkt. 572. Pneumo Abex argues that Plaintiff has not produced evidence required to establish causation or to prove that exposure to any product attributable to Pneumo Abex was a substantial factor in causing Decedent's injury. Dkt. 572.

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 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.

2. Washington Product Liability Analysis

Plaintiff's evidence demonstrates that there are genuine issues of material fact with respect to Plaintiff's product liability claim. Plaintiff has offered witness testimony tending to show that, since approximately the 1960s, Decedent performed extensive work using products attributable to Pneumo Abex, including Rayloc brakes. See Dkts. 548, at 2-8; 554-1; and 554-2. Plaintiff's evidence tends to show that Pneumo Abex was the primary supplier of brake linings used by Rayloc from the 1960s until as late as 1995. See, e.g., Dkts. 554-2, at 400, 558, 588. Plaintiff has offered a photograph of a box from Decedent's garage of Rayloc/NAPA brake shoes bearing an asbestos warning and containing a NAPA receipt dated March 12, 1993. Dkt. 554-1, at 267-69. Plaintiff's evidence tends to show that Decedent worked with and was exposed to asbestos-containing products and brake replacement parts attributable to Pneumo Abex. See Dkts. 548, at 2-10; 554-1; and 554-2.

The Court has considered each of the Lockwood factors described above and concludes that Plaintiff has sufficient evidence for a jury to find that causation has been established. First, Plaintiff offers lots of evidence that Decedent worked

closely with allegedly asbestos-containing products attributable to Pneumo Abex, including Rayloc brakes. See, e.g., Dkt. 554-1, at 72 (providing Steven Klopman-Baerselman's ("Steven") testimony that Decedent performed "hands-on work" roughing up Rayloc brake pads and blowing them clean); Dkt. 554-1, at 388-390 (declaring that Decedent performed automotive repair work at Independent Auto, where they used Rayloc brakes).

Second, Plaintiff's limited evidence describing Decedent's worksite weighs in favor of a finding of causation. See, e.g., Dkt. 554-1, at 260 (providing Eric's testimony that Decedent's face was approximately 20-24 inches from brake surfaces that he roughed up and that Decedent roughed up Rayloc brakes approximately 50-100 times before 2001); Dkt. 554-1, at 388-390 (stating that Decedent performed dusty, indoor work, with very little ventilation, scraping and grinding gaskets at Independent Auto indoors and with little ventilation).

Third, Plaintiff's offers evidence demonstrating that Plaintiff was exposed to Pneumo Abex asbestos-containing products for decades over the course of numerous brake jobs and automotive friction work. See Dkts. 548, at 2-8; 554-1; and 554-2. Fourth, Plaintiff's evidence suggests that Decedent was exposed to asbestos-containing automotive friction parts attributable to Pneumo Abex in the form of Rayloc brakes and replacement parts. See, e.g., Dkts. 548, at 2-8; 554-1, and 554-2. Here, the parties' evidence is in conflict. Plaintiff argues and provides evidence purporting to show that Pneumo Abex was a primary or exclusive supplier of asbestos-containing friction materials to Rayloc. Dkt. 548, at 9-10.[1] Pneumo Abex argues and offers evidence purporting to show that Abex was one of many suppliers of those friction materials. Dkt. 572, at 5. To the extent these factual issues are in controversy, the Court must resolve them in favor of Plaintiff for purposes of this motion. See T.W. Elect. Service Inc., 809 F.2d at 630.

Plaintiff alleges that Decedent worked with other asbestos-containing friction materials attributable to Pneumo Abex, including Borg Warner clutch parts and AC Delco brakes. But Plaintiff has not shown that these other parts contained asbestos attributable to Pneumo Abex. See Dkt. 548; see also Dkt. 572, at 8.

Fifth, Plaintiff's evidence describes how Decedent performed brake jobs, clutch jobs, and other automotive friction work. See Dkts. 548, at 2-8; 554-1; and 554-2. Plaintiff's evidence tends to show that Plaintiff performed dusty, hands-on automotive repair work with asbestos-containing parts attributable to Pneumo Abex. See Dkts. 548; 554-1; and 554-2. Sixth, Plaintiff's evidence describes Decedent's automotive repair work as dusty and tending to release asbestos fibers. See, e.g, Dkts. 548, at 2-8; and 554-1, at 389 ("Brake, clutch, and gasket work is dusty work. When removing brakes, we would blow out the drums with compressed brake cleaner from a can. This would put dust in the air"). Plaintiff also provides various articles and studies in support of his assertion that high concentrations of asbestos fibers were released during the kind of friction work Decedent performed. See Dkts. 548, at 13-15; and 554-2.

Finally, it appears that there may be many possible sources that could have caused Decedent's injuries and death. Decedent's merchant marine career, 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 provides three expert opinions in support of his claim that Decedent's substantial exposure to asbestos from Pneumo Abex products caused his mesothelioma: Susan Raterman ("Ms. Raterman"); Carl Brodkin ("Dr. Brodkin"); and Ronald Gordon ("Dr. Gordon"). Dkt. 548, at 10-12.[2]

Ms. Raterman, an Industrial Hygienist, opines that:

[W]ork performed by [Decedent] with brakes between the 1960s and the 1990s, including those

manufactured by Bendix, NAPA, Pneumo Abex, Rayloc, Shucks [sic], Toyota, and other would have exposed him to significant concentrations of asbestos dust thousands to hundreds of thousands of times above

background levels which would have contributed to his cumulative asbestos exposure dose and increased his risk of developing mesothelioma.

Dkt. 548, at 11.

Dr. Brodkin opines that Decedent's mesothelioma was causally related to asbestos exposure from his work as an automotive mechanic. Dkt. 554-2, at 134. Dr. Gordon opines 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. Dkt. 554-2, at 253.

In consideration of the Lockwood factors above, Plaintiff has offered sufficient evidence for a jury to find that causation has been established. Factors one through six weigh in favor of a finding of causation. Factor seven is mixed. Although Plaintiff's mesothelioma could have been caused by many different sources of asbestos exposure, products attributable to Pneumo Abex are among those sources.

There remain genuine issues of material fact with respect to Plaintiff's Washington product liability claim against Pneumo Abex. Viewing the evidence in a light most favorable to Plaintiff, a jury could find that Plaintiff has established a reasonable connection between Decedent's mesothelioma and asbestos-containing products attributable to Pneumo Abex. Therefore, the Court should deny Pneumo Abex's Motion for Summary Judgment as to its request to dismiss Plaintiff's Washington product liability claim.

3. 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 the instant Motion for Summary Judgment, Pneumo Abex seeks dismissal of all of Plaintiff's claims. In its response brief to the instant motion, Plaintiff provides that it "does not oppose the motion as to the claims for conspiracy, premises liability, or abnormally dangerous activities [Sections 402A and 402B of the Restatement of Torts]." Dkt. 548, at 1. Additionally, Plaintiff limits its discussion of claims to only Washington product liability. See Dkt. 548, at 16-20. Except for its Washington product liability claim, Plaintiff has not sufficiently discussed or presented evidence to establish genuine issues of material fact with respect to Plaintiff's other broad claims of negligence, conspiracy, strict liability under Section 402A and 402B of the Restatements of Torts, premises liability, and any other applicable theory of liability. Therefore, the Court should grant Pneumo Abex's Motion for Summary Judgment as to its request to dismiss Plaintiff's other broad claims.

The Court need not consider the additional issue set forth in the instant motion of whether Plaintiff's claims against Pneumo Abex should be dismissed because there is no evidence demonstrating that any respirable asbestos from an Abex product was a substantial contributing factor to the cause of the Decedent's disease. The substantial factor standard (a higher standard) is applied in general negligence and strict liability cases under federal maritime law. See McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1174 (9th Cir. 2016). The parties have not discussed the applicability of federal maritime law to Plaintiff's claims against Pneumo Abex. See Dkts. 482; 548; and 572.

4. Conclusion

Therefore, the Court should grant, in part, and deny, in part, Pneumo Abex's Motion for Summary Judgment (Dkt. 482). The motion should be denied as to its request to dismiss Plaintiff's Washington product liability claim. The motion should be granted as to its request to dismiss Plaintiff's other broad claims of negligence, conspiracy, strict liability under Section 402A and 402B of the Restatements of Torts, premises liability, and any other applicable theory of liability. III. ORDER

Therefore, it is hereby ORDERED that:

• Defendant Pneumo Abex, LLC's Motion for Summary Judgment (Dkt. 482) is GRANTED, in part, and

DENIED, in part, as follows:

• The motion is DENIED as to its request to dismiss Plaintiff's Washington product liability claim; and • The motion is GRANTED as to its request to dismiss Plaintiff's other broad claims of negligence,

conspiracy, strict liability under Section 402A and 402B of the Restatements of Torts, premises liability, and any other applicable theory of liability.

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] In support of its claim that Pneumo Abex was the exclusive supplier of asbestos-containing friction materials, Plaintiff relies, in part, on the testimony of Charles Allen ("Mr. Allen"), a Rayloc corporate representative. Dkts. 548, at 9-10; and 554-2, at 574. Pneumo Abex wrote in its reply brief that Mr. Allen's testimony is inadmissible hearsay, but Pneumo Abex makes no motion to exclude Mr. Allen's testimony. Dkt. 572, at 7. At this time, the Court need not determine whether Mr. Allen's testimony is admissible.

[2] There is a growing body of pending motions, not yet ripe for consideration, to exclude these experts' testimony. E.g., Dkts. 511; 549; and 590.

Sources

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