Moore v. American Honda Motor Co., Inc. (2006)

Our plain-English summary of Moore v. American Honda Motor Co., Inc. (Washington Court of Appeals, March 20, 2006).

Patricia Moore, as personal representative of her husband Paul Moore's estate, sued Global Motorsports Group (GMG), which sold motorcycle parts under the name Custom Chrome, Inc. She alleged Paul Moore died of mesothelioma in 2000 after exposure to asbestos in brake, clutch and gasket products GMG sold. Moore owned motorcycle shops from 1976 to 2000, where he sold parts and did repairs, and bought parts from several wholesalers. The trial court granted summary judgment to GMG, and the estate appealed. The Court of Appeals affirmed. It accepted that Moore bought friction products from GMG. But no witness could identify specific GMG parts he used before 1993, and the one later witness did not know whether the parts contained asbestos. Moore also bought from other suppliers, a major manufacturer had stopped using asbestos in brakes and clutches by 1973 and 1984, and GMG offered asbestos-free brake pads by 1986. An industrial hygienist's opinion that such parts probably contained asbestos was not tied to GMG's products. A fact-finder would have had to speculate, so the claim failed.

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: Washington Court of Appeals, 1st Division
• Decided: March 20, 2006
• Docket: No. 55923-1-I
• Stage: Appeal from summary judgment
• State: Washington

Outcome. The Court of Appeals affirmed summary judgment dismissing the estate's claims against Global Motorsports Group, because the evidence did not support an inference that Moore was exposed to asbestos from GMG's products.

What the court held. A plaintiff may use direct or circumstantial evidence to identify the maker of asbestos products at a worksite, but a jury may not be left to speculate. A general expert opinion that parts from companies "like" the defendant likely contained asbestos, with no specific link to the defendant's products, does not defeat summary judgment.

Issues decided: Expert Testimony, Product Identification.

The people and their exposure

• Paul Moore: mesothelioma; died

Who	Work	Where	When	Products
Paul Moore	motorcycle shop owner who sold parts and performed motorcycle repairs (auto mechanics and brake work)	Rebel Motorcycle Mart, Tacoma, Washington	1986-2000	brakes, clutches and friction materials, gaskets and packing, Custom Chrome, Inc. (CCI) brake, clutch and gasket products (Global Motorsports Group)
Paul Moore	motorcycle shop owner who sold parts and performed repairs (auto mechanics and brake work)	Seattle Assembly & Accessory (SA&A), Seattle, Washington	1976-1986	brakes, clutches and friction materials, gaskets and packing, Custom Chrome, Inc. (CCI) brake, clutch and gasket products (Global Motorsports Group)

The defendants

• Global Motorsports Group (GMG), doing business as Custom Chrome, Inc. (supplier)

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.
• Berry v. Crown Cork & Seal Co., Inc. (Washington Court of Appeals, 1st Division, 2000). The Court of Appeals reversed summary judgment for Saberhagen Holdings and remanded for trial, holding the plaintiffs (Berry's estate and widow) raised a genuine issue of fact on exposure to Brower-supplied products.

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.

PATRICIA E. MOORE, as Personal Representative of the Estate of PAUL A. MOORE, Appellant,

v.

AMERICAN HONDA MOTOR CO., INC.; AMERICAN SUZUKI MOTOR CO., INC.; ASBESTOS

CORPORATION LIMITED; ATLAS TURNER, INC.; AURORA CYCLE; BMW OF NORTH AMERICA,

LLC; BSA MOTORCYCLES; BARTELL'S ASBESTOS SETTLEMENT TRUST; BATES INDUSTRIES;

BECK/ARNLEY WORLDPARTS CORP.; BELL ASBESTOS MINES, LTD; BIG FOUR, INC.; BILL LOWE

CYCLE; BURNS INTERNATIONAL SERVICES CORPORATION; CARLISLE CORPORATION; CSK

AUTO, INC.; CUSTOM CYCLE PARTS; CYCLE BARN, INC.; DAIMLERCHRYSLER CORPORATION;

DANA CORPORATION; DESTINATION HARLEY-DAVIDSON, INC.; DIXIE DISTRIBUTING; DRAG

SPECIALTIES; DUCATI NORTH AMERICA, INC.; DUNN LUMBER CO., INC.; ENPRO INDUSTRIES,

INC.; ERNST HARDWARE; EXPERT CYCLE; FIDALGO INSULATION; FORD MOTOR COMPANY;

GARLOCK SEALING TECHNOLOGIES, LLC.; GARY BANG; GATKE CORPORATION; GENERAL

MOTORS CORPORATION; GLOBAL MOTORSPORTS GROUP; GREAT WALL MANUFACTURING;

HANSON PERMANENTE CEMENT, INC.; HARLEY-DAVIDSON MOTOR COMPANY, INC.;

HONEYWELL INTERNATIONAL, INC.; HUSQVARNA MOTORCYCLES; INDIAN MOTORCYCLES;

KAWASAKI MOTORS CORP., USA; MARLOTTS; MCGOODIES; METROPOLITIAN LIFE INSURANCE

COMPANY; MOTO GUZZI MOTORCYCLE; NORTON MOTORCYCLES; OWENS-ILLINOIS, INC.;

PACCAR, INC.; PNEUMO ABEX CORPORATION; ROCKY POINT CYCLE; STANDARD MOTOR

PRODUCTS, INC.; THURMAN INDUSTRIES, INC.; TRIPLE A ACCESSORIES; TRIUMPH

MOTORCYCLE AMERICA LTD.; VOLKSWAGEN OF AMERICA, INC.; WHEEL SPORTS

DISTRIBUTION; WHITE FRONT STORES, INC.; WINNING PERFORMANCE; YAMAHA MOTOR

CORPORATION, USA; and FIRST DOE through ONE HUNDREDTH DOE; Respondents.

No. 55923-1-I

Filed: March 20, 2006

The Court of Appeals of Washington, Division One.

Counsel for Appellant(s), Zachary B Herschensohn, Brayton Purcell, 621 SW Morrison St Ste 950, Portland, OR 97205-3824.

Scott Allen Niebling, Brayton Purcell, 621 SW Morrison St Ste 950, Portland, OR 97205-3824.

Counsel for Respondent(s), Ronald Clayton Gardner, Gardner Bond Trabolsi, 2200 6th Ave Ste 600, Seattle, WA 98121-1849.

PER CURIAM

Patricia Moore, as personal representative of the Estate of Paul Moore (Estate), brought this action against Global Motorsports Group (GMG), alleging that her late husband died of mesothelioma after exposure to asbestos sold by GMG. Because the evidence fails to create a reasonable inference that Moore was exposed to asbestos supplied by GMG, we affirm the trial court's dismissal on summary judgment.

FACTS

Paul Moore owned and operated a series of motorcycle shops, beginning with Seattle Assembly & Accessory (SA&A) in 1976. From 1986 to 2000, he operated Rebel Motorcycle Mart in a series of locations, including Nevada, Tacoma, and Puyallup. In each of his shops, Moore sold motorcycle accessories and parts and performed motorcycle repairs. In about 1977, under the name of Custom Chrome, Inc. (CCI), GMG started selling wholesale motorcycle accessories and

replacement parts, including asbestos-containing brake, clutch, and gasket products. Over the years, Moore purchased products from several wholesalers, including GMG. He died from mesothelioma on August 19, 2000.

In 2003, Patricia Moore, as personal representative of the estate of her late husband, filed this action, alleging Moore was exposed to asbestos purchased from GMG and other entities. For purposes of this appeal, only the allegations against GMG remain.

GMG eventually moved for summary judgment, arguing the Estate had failed to submit any evidence that it sold products containing asbestos to Moore. In considering the motion, the trial court had before it the following materials. By deposition, Patricia Moore stated that for the period before 1986, she could not recall any particular seller of brake and clutch parts, only that SS&A had used several different distributors. She believed that after 1986, when Moore opened Rebel Motorcycle Mart, CCI became the primary supplier of parts and accessories, but she could not recall whether any brake and clutch parts purchased during that period contained asbestos. She stated that from 1986 to 2000, when Moore worked primarily on Harley Davidson motorcycles, he also purchased brake, clutch, and gasket products directly from Harley Davidson dealers.

Neither the Estate nor GMG submitted any invoices or other records identifying any specific friction products that Moore had purchased from GMG. The only evidence in the record indicating what parts from GMG contained asbestos was a series of catalogues that GMG issued after 1977. These catalogues indicate that GMG began offering asbestos-free brake pads in 1986. The record contains evidence that Harley-Davidson motorcycles had asbestos-containing brake components until 1973 and asbestos-containing clutch components until 1984.

George Dean worked for Moore from 1977 to 1981. During this period, Dean did virtually all of the repair work while Moore sold accessories in a different part of the shop. Dean stated that the shop purchased brake and clutch parts directly from dealerships and from after-market companies such as CCI. After first stating that he was `certain' that Moore had ordered brake and clutch parts from CCI, Dean explained his answer as follows: I cannot say 100 percent that he did. This would be an assumption. I would assume that he did at one time or another, but I couldn't tell you 100 percent that he did. Dean had no specific recollection of Moore working with brake pads purchased from CCI. Nor could Dean recall working with brake pads from CCI in Moore's presence. Dean characterized brake pads as `a very, very small part' of the items supplied by CCI and could not recall any details about the brake parts that CCI might have supplied. Dean recalled that the parts purchased from CCI were primarily chrome accessories, such as light bars, crash bars, and brake caliper covers. Keith Recker testified that he met Moore in 1993 and that Moore would sell CCI parts in their original packaging to shop customers. Recker also specifically recalled seeing Moore working with brake parts from CCI in the shop, but did not know whether any of the CCI parts contained asbestos. Edward Moore, Moore's son, recalled that Moore ordered brake parts from several distributors, including CCI, but could not identify the manufacturer of any of the brake parts and did not know whether the brake parts contained asbestos. Walter Harrison purchased a muffler through Moore from the CCI catalogue in about 1995, but he did not know if the muffler contained asbestos.

By declaration, Ken Cohen, a certified industrial hygienist, stated that in his opinion, Moore had been exposed to significant amounts of asbestos from brake and gasket components during the period that George Dean had worked in the shop, both from installing components himself and from his presence when others installed these components. Based on his knowledge of motorcycle parts, Cohen concluded that during the period from 1976 to 2000, it was more likely than not that the brake, clutch, and gasket parts purchased from after-market companies like CCI contained asbestos, `absent evidence to the contrary.'

The trial court entered an order granting GMG's summary judgment motion on February 18, 2005.

STANDARD OF REVIEW

When reviewing a grant of summary judgment, an appellate court undertakes the same inquiry as the trial court and considers the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995). Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as

to any material fact and that the moving party is entitled to a judgment as a matter of law.' CR 56(c); White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997).

DECISION

In order to sustain its claim, the Estate was required to demonstrate, among other things, that Moore was exposed to asbestos-containing friction products-brakes, clutches, or gaskets-supplied by GMG. See Lockwood v. A C & S, Inc., 109 Wn.2d 235, 245, 744 P.2d 605 (1987). In Washington, a plaintiff need not personally identify the asbestos products to which he was exposed in order to recover; direct or circumstantial evidence may be sufficient to identify the manufacturer of asbestos products present in a workplace. Berry v. Crown Cork & Seal Co., 103 Wn. App. 312, 323-24, 14 P.3d 789 (2000) (evidence that a worker saw specific asbestos-containing products at the work site `almost every day' for seven years, coupled with evidence that the defendant was a local distributor of both products and local distributors were the first source for immediate needs, sufficient to support an inference that plaintiff was exposed to defendant-supplied products); see also Lockwood, 109 Wn.2d at 247 (testimony from other workers placing a manufacturer's product at defendant's work site, along with expert testimony about asbestos drifting, sufficient to permit reasonable inference that plaintiff was exposed to the manufacturer's product).

On appeal, GMG concedes the evidence supports an inference that Moore purchased various friction products from GMG over the years. But we agree with GMG that even when viewed in the light most favorable to the Estate, the evidence fails to support an inference that Moore was exposed to asbestos from GMG products.

Several witnesses testified that Moore ordered friction parts from several distributors, including CCI, but for the period before 1993, no one was able to identify any specific parts ordered from CCI or recall Moore working with any specific CCI parts. George Dean explained that he 'assume{d}' Moore purchased CCI brake pads `at one time or another,' and acknowledged that such purchases would have been `a very, very small part' of the brake pads purchased by the shop. For the period after 1993, Keith Recker specifically recalled that Moore sold packaged CCI brake parts in the shop and would use the same packaged parts for repairing motorcycles. But Recker did not know whether any of the CCI parts contained asbestos. In order to support the inference that Moore was exposed to asbestos from CCI parts, the Estate relies primarily on the declaration of Ken Cohen, a certified industrial hygienist, who opined that motorcycle friction parts sold in the United States during the period from 1976 to 2000 by after-market companies `like' CCI `more likely than not' contained asbestos. But Cohen does not indicate that this conclusion is based on any specific knowledge of CCI's products. Given the absence of evidence identifying any specific CCI products used by Moore or specifically tying Moore to CCI friction products until 1993, the undisputed evidence that Moore purchased friction products from multiple sources, the fact that a major motorcycle manufacturer discontinued asbestos-containing brake products by 1973 and clutch products by 1984, and the fact that CCI began offering asbestos-free brake pads by 1986, the trier of fact would have to rely on speculation or conjecture to find that Moore was exposed to asbestos from CCI friction products, either during the installation of new products or the removal of old products. Conclusory opinions, lacking any meaningful factual support, are insufficient to defeat a motion for summary judgment. See Guile v. Ballard Community Hosp., 70 Wn. App. 18, 25, 851 P.2d 689 (1993). Affirmed.

APPELWICK, COX and BAKER, JJ.

Sources

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