Wineland v. Air & Liquid Systems Corporation (W.D. Wash., Aug. 5, 2021, as to Warren Pumps)

Our plain-English summary of Wineland v. Air & Liquid Systems Corporation (U.S. District Court, Western District of Washington, August 5, 2021).

Charlotte Wineland and Susan Wineland, as personal representative of the estate of John Dale Wineland, sued several companies after he died in 2018 of mesothelioma. Wineland worked on Navy ships and in Navy offices from 1963 to 1984, mostly in engine rooms repairing and maintaining diesel engines, pumps, air compressors and valves. Plaintiffs alleged he was exposed to asbestos in Warren Pumps products aboard the USS Dynamic, Loyalty, Esteem and Tuscaloosa. Warren Pumps moved for summary judgment, arguing there was no admissible evidence that its products were a substantial contributing factor in his illness. The court applied maritime law. It found evidence that Warren Pumps supplied distilling plant pumps using asbestos packing and gaskets on three ships, and that Wineland was likely exposed to asbestos dust in the engine rooms. But there was no evidence of how often those pumps were serviced, or where the Tuscaloosa pumps were installed. Without evidence of the amount and duration of exposure to Warren Pumps products, a jury would have to speculate. The court granted summary judgment to Warren Pumps.

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: August 5, 2021
• Stage: Summary judgment
• State: Washington

Outcome. 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.

What the court held. Under maritime law, plaintiffs must show that exposure to asbestos from the defendant's products was a substantial contributing factor in the injury, with evidence of the amount and duration of that exposure. Placing a defendant's products in the workplace and showing occasional exposure is not enough.

Issues decided: Causation, Maritime Law and Navy Ships.

The people and their exposure

• John Dale Wineland: mesothelioma; died

The defendants

• Warren Pumps, LLC (manufacturer)

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 10, 2020). 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.
• 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 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:

• Air and Liquid Systems Corp. v. DeVries (U.S. Supreme Court, 2019). The Supreme Court affirmed the Third Circuit's judgment vacating summary judgment for the equipment manufacturers (Air and Liquid Systems, CBS, Foster Wheeler, Ingersoll Rand, General Electric) and sent the case back so the District Court could reconsider under the Court's own duty-to-warn test, which favored the veterans' families.
• 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.

August 5, 2021.

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

ORDER GRANTING THE WARREN PUMPS, LLC'S AMENDED MOTION FOR

SUMMARY JUDGMENT (DKT. # 348)

ROBERT S. LASNIK, District Judge.

This matter comes before the Court on "Defendant Warren Pumps, LLC's Amended Motion for Summary Judgment." Dkt. # 348. Plaintiffs' decedent, John Dale Wineland, worked aboard a series of Navy ships and in Navy offices between 1963 and 1984. Plaintiffs allege that Mr. Wineland was exposed to asbestos contained in Warren Pumps products while aboard the USS DYNAMIC, the USS LOYALTY, the USS ESTEEM, and the USS TUSCALOOSA. Mr. Wineland worked primarily in the engine rooms of the ships to which he was assigned, repairing and maintaining machinery and equipment such as diesel engines, pumps, air compressors, and valves. Mr. Wineland developed mesothelioma, an asbestos-related disease, and died in 2018. Plaintiffs assert that Warren Pumps is liable for Mr. Wineland's illness and death under theories of negligence and strict liability.

Warren Pumps seeks summary dismissal of all of plaintiffs' claims, arguing that plaintiffs have failed to produce admissible evidence from which a jury could reasonably conclude that Mr. Wineland's exposure to asbestos from Warren Pumps products was a substantial contributing factor in his illness and death, as required by maritime law. Having reviewed the memoranda, declarations, and exhibits submitted by the parties[1] and taking the evidence in the light most favorable to plaintiffs, the Court finds as follows:

Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact that would preclude the entry of judgment as a matter of law. The party seeking summary dismissal of the case "bears the initial responsibility of informing the district court of the basis for its motion" (Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) and "citing to particular parts of materials in the record" that show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to designate "specific facts showing that there is a genuine issue for trial." Celotex Corp., 477 U.S. at 324. The Court will "view the evidence in the light most favorable to the nonmoving party. . . and draw all reasonable inferences in that party's favor." Colony Cove Props., LLC v. City of Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the "mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient" to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. S. Cal. Darts Ass'n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 2014). In other words, summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). For the reasons set forth in the Order Granting Crane Co.'s Motion for Summary Judgment (Dkt. # 550), the Court finds that maritime law applies to plaintiffs' tort claims. To prevail on their negligence and strict liability claims, plaintiffs "must demonstrate, among other things, that [Mr. Wineland's] injuries were caused by exposure to asbestos that was attributable to [Warren Pumps's] conduct." McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1174 (9th Cir. 2016). See also Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492 (6th Cir. 2005), abrogated on other grounds by Air & Liquid Sys. Corp. v. DeVries,

___ U.S. ___, 139 S. Ct. 986 (2019). To establish causation under maritime law, plaintiffs must show that Mr. Wineland's exposure to asbestos from Warren Pumps products "was a substantial contributing factor in causing his injuries." McIndoe, 817 F.3d at 1174. Evidence of only minimal exposure to asbestos dust attributable to each defendant is insufficient: plaintiffs must provide "evidence regarding the amount of exposure to dust" attributable to Warren Pumps and, "critically, the duration of such exposure." Id. at 1176-77 (emphasis in original). The evidence must show "a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural." Id. at 1176 (quoting Lindstrom, 424 F.3d at 492). "[M]ore is needed" than simply placing a defendant's products in the workplace and showing that the decedent was occasionally exposed to asbestos dust from those products. Id. at 1176-77.

There is evidence that the distilling plant pumps aboard the DYNAMIC, LOYALTY, and ESTEEM were provided by Warren Pumps. Dkt. # 445-3 at 14. The distilling plants were located in the forward engine room of the three vessels. Dkt. # 445-8 at 66; Dkt. # 445-9 at 94; Dkt. # 445-10 at 68.[2] Each distilling plant included three pumps and utilized asbestos pump shaft packing and compressed asbestos sheet gaskets. Dkt. # 445-3 at 14. Warren Pumps also provided asbestos-containing replacement parts to the Navy during the relevant time frame. Dkt. # 445-3 at 24.[3] In addition, "Warren Rupp manufactured air driven reciprocating pumps [were] installed on TUSCALOOSA." Dkt. # 445-3 at 20. See also Dkt. # 445-11 at 89.[4] Finally, there is evidence from which a reasonable jury could find that Mr. Wineland was exposed to significant levels of asbestos dust while working in the engine rooms of all four vessels.[5]

Plaintiffs have not, however, produced evidence from which a reasonable jury could conclude that Mr. Wineland suffered a substantial exposure to asbestos dust from Warren Pumps products. There is no evidence regarding where the Warren Pumps air driven reciprocating pumps were installed on the TUSCALOOSA, making it impossible to determine whether Mr. Wineland was exposed to asbestos from those pumps. Although the distilling plant pumps were located in Mr. Wineland's workspace and it is entirely possible that the pumps were maintained, repaired, or overhauled while Mr. Wineland served aboard one or more of the vessels,[6] there is no indication how frequent such activities might have been. It is plaintiff's burden to provide evidence showing "a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural." McIndoe, 817 F.3d at 1176 (quoting Lindstrom, 424 F.3d at 492). "[M]ore is needed" than simply placing a defendant's products in the workplace and showing that the decedent was occasionally exposed to asbestos dust from those products. Id. at 1176-77. Absent "evidence regarding the amount of exposure to dust" attributable to Warren Pumps and, "critically, the duration of such exposure," (Id. at 1176-77 (emphasis in original)), a jury would have to speculate as to whether asbestos from Warren Pumps products "was a substantial contributing factor in causing his injuries." Id. at 1174.

Plaintiffs have failed to raise a triable issue of fact regarding causation under maritime law. For all of the foregoing reasons, Warren Pumps's motion for summary judgment (Dkt. # 348) is GRANTED. Plaintiff's motion for summary judgment regarding Warren Pumps's affirmative defenses (Dkt. # 372) is DENIED as moot.

[1] This matter can be decided on the papers submitted in connection with this motion and the supplemental briefing regarding the applicability of maritime law. The parties' requests for oral argument are DENIED.

[2] The renderings of the forward engine room of an Aggressive-Class Minesweeper shows the distillation plant in the space. See, e.g, Dkt. # 455-8 at 37 and 76 (USS DYNAMIC).

[3] The only evidence regarding specific replacement parts orders relate to work performed on vessels other than those on which Mr. Wineland served. Dkt. # 445-3 at 24-25.

[4] The Court assumes, for purposes of this motion, that Warren Rupp-Houdaille, Inc. and the named defendant are the same entity. [5] Based on his extensive experience in the Navy and at naval shipyards, including the supervision of enginemen during the relevant time frame aboard the USS BRUMBY and the USS NEWPORT NEWS, Captain Arnold Moore opines that Mr. Wineland was likely or extremely likely to have repaired, assisted in the repair, or very closely supervised the repair of the major machinery and valves installed in the engine rooms of the DYNAMIC, LOYALTY, ESTEEM, and TUSCALOOSA. Dkt. # 445-3 at 8. Captain Moore describes how these repairs would be carried out, including activities which would invariably create asbestos dust, including the removal of old, dried packing and gaskets and the cutting and installation of new packing and gasket materials Dkt. # 445-3 at 9. Plaintiffs' industrial hygienist, Steven Paskal, similarly opines that "it is virtually certain that [Mr. Wineland], and/or others in close proximity and/or in shared, enclosed airspaces, would have routinely removed and replaced gaskets and stem/shaft packing associated with. . . pumps. . . ." Dkt. # 445-17 at 5. These activities would have exposed Mr. Wineland to an asbestos-containing aerosol that would remain suspended in air streams for extended periods of time at concentrations that ranged from hundreds to millions of times ambient pollution levels. Dkt. # 445-17 at 2-3 and 6. Gregory Bullinger, a shipmate of Mr. Wineland on the TUSCALOOSA, confirms that "work on the equipment in the engine room was regular, ongoing, and

routine. We all removed and replaced packing and gaskets on the various equipment, including the valves, pumps, and ALCO diesel engines." Dkt. # 445-15 at 3.

[6] Mr. Wineland served aboard the DYNAMIC from September 1963 to September 1966, the LOYALTY from September 1970 to July 1972, the TUSCALOOSA from July 1972 to December 1974, and the ESTEEM from March 1978 to October 1980.

Sources

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