Wineland v. Air & Liquid Systems Corporation (W.D. Wash., Nov. 10, 2020)

Our plain-English summary of Wineland v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, November 10, 2020).

Charlotte Wineland and Susan Wineland, personal representative of the estate of John Dale Wineland, sued Air & Liquid Systems Corporation and other defendants. The case involves Mr. Wineland's mesothelioma. Puget Sound Commerce Center, formerly Todd Shipyard, asked the court to exclude the testimony of four experts: Captain Arnold Moore, Steven Paskal, Dr. David Zhang and Charles Ay. In its reply, the company said it was not objecting because the experts lacked a cumulative exposure calculation. Its objection was that Dr. Zhang and Mr. Paskal moved from evidence of exposure to a conclusion that the exposure was a substantial factor in causing the mesothelioma. The court said neither the plaintiffs nor the court had recognized this argument earlier. It did not decide the motion. It directed the clerk to renote the motion for November 20, 2020, and allowed plaintiffs to file a sur-reply of up to twelve pages. The sur-reply was to address the reliability of those opinions in light of the Ninth Circuit's rejection of the "every exposure" theory in McIndoe v. Huntington Ingalls.

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: November 10, 2020
• Stage: Discovery or evidence ruling
• State: Washington

Outcome. The Court did not rule on Puget Sound Commerce Center's Daubert motion; it renoted the motion and allowed plaintiffs to file a sur-reply on the reliability of the experts' substantial contributing factor opinions.

Issues decided: Causation, Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• John Dale Wineland: mesothelioma; died

The defendants

• Puget Sound Commerce Center, Inc. (f/k/a Todd Shipyard) (premises owner)
• Air & Liquid Systems Corporation

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Wineland v. Air & Liquid Systems Corporation (November 30, 2020). The court denied Todd Shipyard's (Puget Sound Commerce Center's) Daubert motion, so plaintiffs' experts Moore, Paskal, Zhang and Ay may testify.
• Wineland v. Air & Liquid Systems Corporation (May 17, 2021). The district court granted Robertshaw Controls' motion for summary judgment against the Wineland plaintiffs, and denied plaintiffs' motion on Robertshaw's affirmative defenses as moot.
• Wineland v. Air & Liquid Systems Corporation (May 17, 2021). The court granted Anchor/Darling Valve Co.'s motion for summary judgment and dismissed the plaintiffs' claims, finding they lacked evidence of substantial exposure to Anchor/Darling products or of a duty to warn about third-party replacement parts.
• Wineland v. Air & Liquid Systems Corporation (July 19, 2021). The court granted Alfa Laval's motion for summary judgment and dismissed the plaintiffs' negligence and strict liability claims, because they had no evidence that asbestos from Alfa Laval products was a substantial contributing factor in Mr. Wineland's mesothelioma.
• Wineland v. Air & Liquid Systems Corporation (August 2, 2021). The court granted The William Powell Company's motion for summary judgment, dismissing the plaintiffs' claims against Powell, because they lacked evidence that exposure to Powell's products substantially contributed to Mr. Wineland's mesothelioma; the plaintiffs' own motion on Powell's affirmative defenses was denied as moot.
• Wineland v. Air & Liquid Systems Corporation (August 5, 2021). The district court granted Warren Pumps, LLC's motion for summary judgment, dismissing the claims of Wineland's estate and wife because they lacked evidence that Warren Pumps products were a substantial contributing cause of his mesothelioma.
• Wineland v. Air & Liquid Systems Corporation (August 5, 2021). The district court granted Cleaver-Brooks, Inc.'s renewed motion for summary judgment and dismissed the plaintiffs' claims, and denied the plaintiffs' motion on Cleaver-Brooks's affirmative defenses as moot.
• Wineland v. Air & Liquid Systems Corporation (August 16, 2021). The court granted Imo Industries' motion for summary judgment, dismissing the plaintiffs' claims against it because they lacked evidence that exposure to Imo products was a substantial contributing factor in Mr. Wineland's mesothelioma and death.
• Wineland v. Air & Liquid Systems Corporation (October 8, 2021). The court granted Carrier Corporation's motion for summary judgment, dismissing the plaintiffs' claims because they did not show a triable issue on whether exposure to Carrier products substantially contributed to Mr. Wineland's mesothelioma.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.

CHARLOTTE WINELAND, Individually, and SUSAN WINELAND, as Personal Representative of the

Estate of JOHN DALE WINELAND, deceased, Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORPORATION, etal., Defendants.

Cause No. C19-0793RSL.

November 10, 2020.

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

ORDER

ROBERT S. LASNIK, District Judge.

This matter comes before the Court on "Defendant Puget Sound Commerce Center, Inc.'s Daubert Motion to Exclude Expert Testimony of Captain Arnold Moore; Steven Paskal, CIH; David Zhang, M.D.; and Charles Ay." Dkt. # 344. Puget Sound Commerce Center, f/k/a Todd Shipyard, clarified in reply that its objections to Dr. Zhang and Mr. Paskal's opinions are not based on the absence of a cumulative exposure calculation, but rather on the fact that the experts leap from evidence of exposure (as provided by Captain Moore and Mr. Ay) to the conclusion that the exposure was a substantial factor in the development of Mr. Wineland's mesothelioma. Dkt. # 506 at 4. Plaintiffs will be given an opportunity to respond to this argument, which neither they nor the Court recognized or appreciated when reviewing the moving papers. The Clerk of Court is directed to renote Dkt. # 344 on the Court's calendar for Friday, November 20, 2020. Plaintiffs may, on or before the note date, file a sur-reply of no more than twelve pages addressing the reliability of Dr. Zhang and Mr. Paskal's "substantial contributing factor" opinions in light of the Ninth Circuit's rejection of the "every exposure" theory of causation in McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1176-77 (9th Cir. 2016).

Sources

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