Varney v. Air & Liquid Systems Corporation (W.D. Wash., May 25, 2018)

Our plain-English summary of Varney v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, May 25, 2018).

Donald Varney and his wife Maria sued more than forty companies in Pierce County, Washington. The case was removed to federal court. Mr. Varney alleged he developed mesothelioma from asbestos exposure at the Puget Sound Naval Shipyard in Bremerton and the Hunters Point Naval Shipyard in San Francisco between 1957 and 1972. He also alleged exposure during personal auto repair from 1939 to 1957 and secondary exposure from his father, an auto mechanic in Seattle. Defendant BNS Company moved for summary judgment, arguing the Varneys had no evidence of exposure to any BNS product. BNS pointed to interrogatory answers that did not name it. The court denied the motion without prejudice as premature under Rule 56(d). It noted nearly eight months of discovery remained and BNS gave no convincing reason to depart from the schedule. The court also denied BNS's request to strike a statement by plaintiffs' counsel about planned discovery.

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: May 25, 2018
• Stage: Summary judgment
• State: Washington

Outcome. The district court denied defendant BNS Company's motion for summary judgment without prejudice as premature, letting plaintiffs Donald and Maria Varney continue discovery, and also denied BNS's motion to strike.

What the court held. Under Fed. R. Civ. P. 56(d), a court may deny a summary judgment motion without prejudice as premature when the nonmovant needs more time for discovery and ample time remains under the scheduling order.

Issues decided: Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Donald Varney: mesothelioma

Who	Work	Where	When	Products
Donald Varney	(shipyards and maritime work); lived nearby	Puget Sound Naval Shipyard, Bremerton, Washington	1957-1972
Donald Varney	(shipyards and maritime work); lived nearby	Hunters Point Naval Shipyard, San Francisco, California	1957-1972
Donald Varney	personal auto repair		1939-1957
Donald Varney	son of an auto mechanic; dust brought home	Seattle, Washington	1940s-1950s

The defendants

• BNS Co., formerly known as Brown & Sharpe Manufacturing Company (manufacturer)

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.

DONALD VARNEY and VARNEY, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal., Defendants.

Maria Case No. 3:18-cv-05105-RJB.

May 25, 2018.

United States District Court, W.D. Washington, Tacoma.

Donald Varney & Maria Varney, Husband and Wife, Plaintiffs, represented by Benjamin Robert Couture, WEINSTEIN COUTURE PLLC, Brian Weinstein, WEINSTEIN COUTURE PLLC, Benjamin H. Adams, DEAN OMAR & BRANHAM, LLP, pro hac vice & Lisa W. Shirley, DEAN OMAR BRANHAM, LLP, pro hac vice.

Air & Liquid Systems Corporation, individually and as successor in interest Buffalo Pumps, Inc. & Velan Valve Corporation, Defendants, represented by Kevin J. Craig, GORDON REES SCULLY MANSUKHANI LLP, Mark B. Tuvim, GORDON REES SCULLY MANSUKHANI LLP & Trevor J. Mohr, GORDON REES SCULLY MANSUKHANI LLP.

Alfa Laval Inc, BW/IP Inc., and its wholly owned subsidiaries & Superior-Lidgerwood-Mundy Corporation, successor in interest, Defendants, represented by Christine E. Dinsdale, SOHA & LANG PS.

Armstrong International Inc., Defendant, represented by Bennett J. Hansen, PREG O'DONNELL & GILLETT, PLLC, David E. Chawes, PREG O'DONNELL & GILLETT, PLLC & William E. Fitzharris, Jr., PREG O'DONNELL & GILLETT, PLLC. Aurora Pump Company & Taco, Inc., Defendants, represented by Megan Uhle, BULLIVANT HOUSER BAILEY PC & Jeanne F. Loftis, BULLIVANT HOUSER BAILEY PC.

Blackmer Pump Company, Defendant, represented by Claude Bosworth, RIZZO MATTINGLY BOSWORTH PC.

BNS Co., formerly known as Brown & Sharpe Manufacturing Company, Defendant, represented by Delian P. Deltchev, LEWIS BRISBOIS BISGAARD & SMITH LLP & Michael Anthony Jaeger, LEWIS BRISBOIS BISGAARD & SMITH LLP. Carrier Corporation & Parker-Hannifin Corporation, Defendants, represented by Nicole R. MacKenzie, WILLIAMS KASTNER & GIBBS & Ryan W. Vollans, WILLIAMS KASTNER & GIBBS.

Crane Co. & Crane Environmental Inc, individually and as successor in interest Cochrane Corporation, Defendants, represented by G. William Shaw, K&L GATES LLP & Ryan J. Groshong, K&L GATES LLP.

Crosby Valve, LLC, Elliott Turbomachinery Co Inc, also known as Elliott Company, The Goodyear Tire & Rubber Company, Goulds Pumps LLC, formerly known as Goulds Pumps, Inc., Grinnell LLC, doing business as Goulds Pumps, Inc. & ITT LLC, formerly known as ITT Corporation, formerly known as ITT Industries Inc., formerly known as ITT Fluid Products Corp, formerly known as Hoffman Specialty MFG Corp, formerly known as Bell and Gossett Company, formerly known as ITT Marlow, Defendants, represented by Ronald C. Gardner, GARDNER TRABOLSI & ASSOC. PLLC.

Crown Cork & Seal Company Inc., successor in interest Mundet Cork Company, Defendant, represented by Alice Coles Serko, TANENBAUM KEALE LLP, Barry Neal Mesher & Christopher S. Marks, TANENBAUM KEALE LLP.

Darigold, Inc, Defendant, represented by John Ray Nelson, FOSTER PEPPER PLLC.

Flowserve Corporation, Defendant, represented by Marc Marshall Carlton, LEWIS BRISBOIS BISGAARD & SMITH LLP & Randy J. Aliment, LEWIS BRISBOIS BISGAARD & SMITH LLP.

FMC Corporation & Sterling Fluid Systems (USA) LLC, formerly known as Peerless Pumps Co., Defendants, represented by Katherine M. Steele, BULLIVANT HOUSER BAILEY & Michael Mackenzie Brown, BULLIVANT HOUSER BAILEY.

Foster Wheeler Energy Corporation, General Electric Company & The Gorman-Rupp Company, Defendants, represented by Alice Coles Serko, TANENBAUM KEALE LLP & Christopher S. Marks, TANENBAUM KEALE LLP.

Hopeman Brothers Inc, Defendant, represented by Diane Catherine Babbitt, FOLEY & MANSFIELD, James D. Hicks, FOLEY & MANSFIELD & Melissa K. Roeder, FOLEY & MANSFIELD.

IMO Industries, Inc, individually and as successor in interest IMO DeLaval, Defendant, represented by James Edward Horne, GORDON THOMAS HONEYWELL & Michael Edward Ricketts, GORDON THOMAS HONEYWELL.

John Crane Inc., Defendant, represented by Carrie S. Lin, MANNING GROSS & MASSENBURG LLP, pro hac vice & Richard D. Ross, SELMAN BRIETMAN LLP.

Metropolitan Life Insurance Company, Defendant, represented by Richard G. Gawlowski, WILSON SMITH COCHRAN & DICKERSON.

The Nash Engineering Company & Weir Valves & Controls USA, Inc., individually and as successor in interest Atwood & Morrill Co., Inc., Defendants, represented by Dana C. Kopij, WILLIAMS KASTNER & GIBBS.

SB Decking Inc, Defendant, represented by John Michael Mattingly, RIZZO MATTINGLY BOSWORTH PC.

Uniroyal Holding Inc, formerly known as United States Rubber Company Inc, Defendant, represented by Chris Robert Youtz, SIRIANNI YOUTZ SPOONEMORE HAMBURGER.

Viking Pump, Inc., Defendant, represented by Todd M. Thacker, JACKSON JENKINS RENSTROM LLP.

Warren Pumps, LLC, Defendant, represented by Allen Eraut, RIZZO MATTINGLY BOSWORTH PC.

The Wm. Powell Company, Defendant, represented by James D. Hicks, FOLEY & MANSFIELD, Brian Bernard Smith, FOLEY & MANSFIELD & R. Dirk Bernhardt, FOLEY & MANSFIELD.

ORDER ON DEFENDANT BNS COMPANY'S MOTION FOR SUMMARY

JUDGMENT

ROBERT J. BRYAN, District Judge.

THIS MATTER comes before the Court on Defendant BNS Company's Motion for Summary Judgment. Dkt. 141. The Court has considered the pleadings filed in support of and in opposition to the motion and the file herein. Plaintiffs' request for oral argument is deemed unnecessary.

A. Background.

This case centers on the allegation that Plaintiff Donald Varney developed mesothelioma, an asbestos-caused condition, from ambient exposure to asbestos from Defendants' products. Dkt. 1-2. The Complaint alleges asbestos exposure at Puget Sound Naval Shipyard in Bremerton, Washington, and the Hunters Point Naval Shipyard in San Francisco, California, between 1957 and 1972. Id. at 5. It is also alleged that Plaintiff D. Varney sustained exposure from Defendants' products during personal auto repair from 1939 to 1957 and secondary exposure from his father, an auto mechanic in Seattle, Washington, during the 1940's and 1950's. Id. at 5.

Plaintiffs filed the case in Pierce County Superior Court on February 2, 2018, and Defendants removed the case on February 12, 2018. Dkt. 1-2 at 1. The Complaint names over forty (40) defendants, some of whom filed Rule 12(b) motions to dismiss, which the Court has ruled on. Dkts. 122, 133. By Minute Order issued May 3, 2018, the Court set deadlines, including February 25, 2019 for completion of discovery, and June 24, 2019 for trial. Dkt. 143.

BNS brings this motion for summary judgment pursuant to Fed. R. Civ. P. 56. BNS argues that Plaintiffs have failed to present any evidence of asbestos exposure from products manufactured, sold, or supplied by BNS. Dkt. 141 at 3. In support of its motion, counsel to BNS has submitted a copy of Plaintiffs' Answers to Interrogatories in a prior lawsuit, which was dismissed without prejudice. Dkt. 142-2. See Donald Varney and Maria Varney v. Air & Liquid Systems Corp., W.D.Wash. Cause No. 2:17-cv-01902-JLR, Dkt. 116 (dismissal without prej. on Feb. 2, 2018). In this discovery response, dated January 16, 2018, Plaintiffs identify asbestos-containing products, such as gaskets and boilers, and identify the names of

manufacturers, sellers, and distributors, such as John Crane, Westinghouse and Foster Wheeler. Id. 18, 19. The companies named in Plaintiffs' Answers to Interrogatories do not include BNS. Id.

In BNS' Reply, BNS has attached Plaintiffs' Responses to BNS' First Set of Interrogatories and Requests for Production, Dkt. 161-1, wherein Plaintiffs do not identify a specific BNS product or timeframe. See id. at 13-18. BNS represents that Plaintiffs have produced other discovery that does not mention or identify BNS. Dkt. 161 at ¶2.

B. Discussion.

Under Fed. R. Civ. P. 56 (d):

If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition [to a motion for summary judgment], the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.

Applied here, the Court should exercise its discretion under Rule 56(d) to deny BNS' motion without prejudice as premature. In support of BNS' motion for summary judgment, BNS has submitted discovery and requests dismissal, but Plaintiffs have articulated their need for additional time to complete discovery. They have requested that the Court protect their "right to conduct [the] case within the schedule. . . agreed upon by the parties, including a reasonable time to conduct discovery." Dkt. 158 at 3. While case management ultimately falls within the purview of judicial discretion and is not a matter of "right," BNS has not articulated any convincing basis to depart from the current scheduling order. Nearly eight months remain for discovery. Plaintiffs should be given the chance to pursue discovery on BNS and others to develop any issues of material fact. The motion for summary judgment should be denied without prejudice.

BNS' Reply argues that Plaintiffs have no evidence to defeat BNS' motion, and Plaintiffs have failed to show what specific facts they hope to discovery. Dkt. 160 at 1, 2. Plaintiffs' counsel has only proffered "pure speculation and conjecture," BNS argues. Id. BNS requests that the following statement by Plaintiffs' counsel be stricken:

Similarly, Plaintiffs intend to seek discovery related to the asbestos-containing products manufactured, sold, and/or distributed by BNS and when and where Don Varney was exposed to BNS products.

Dkt. 158-1 at ¶7. According to BNS, "this lacks foundation, assumes facts not in evidence and is pure speculation given there has been no evidence produced or testimony by Plaintiff that he was ever near a BNS product." Id. at 3. BNS' motion to strike is not well-taken. The motion is denied.

C. Order.

THEREFORE, it is HEREBY ORDERED that Defendant BNS Company's Motion for Summary Judgment (Dkt. 141) is DENIED WITHOUT PREJUDICE.

IT IS SO ORDERED.

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