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From Products Liability Law Daily, April 29, 2019

Timing issues control product makers’ potential liability for asbestos-related claims

By Georgia D. Koutouzos, J.D.

Deceased shipyard worker’s personal injury claims survived his death, but his widow failed to file suit against some manufacturers within Washington’s three-year limitations period.

The widow of a former shipyard worker who allegedly had died from mesothelioma due to asbestos exposure could have maintained wrongful death claims on his behalf against several manufacturers of asbestos-containing products had she filed suit against them within three years of the accrual of his personal injury claims, a Washington federal court advised, granting summary judgment favoring the manufacturers. Because the decedent held valid subsisting (although unfiled) personal injury claims against the various companies, wrongful death claims were permissible but the widow did not bring suit against those companies until the statute of limitations on her husband’s personal injury claims had elapsed (Deem v. Air & Liquid Systems Corp., April 25, 2019, Settle, B.).

A man was exposed to asbestos-containing products while working as an outside machinist at a naval shipyard from 1974–1981. He was diagnosed with mesothelioma in February 2015 and died four months later. His widow filed a personal injury and wrongful death suit in Washington federal court against Air & Liquid Systems Corp. and one other manufacturer in November 2017, and a second, separate wrongful death action against 20 more companies in June 2018. Both lawsuits asserted the same causes of action, including negligence, strict products liability, and liability of a product seller other than a manufacturer. The complaints did not specify whether the suits were being brought pursuant to Washington law only or also pursuant to maritime law.

Procedural status. The two cases were consolidated for purposes of discovery and pretrial, after which nine of the companies named as defendants in the June 2018 lawsuit moved for summary judgment on the basis that the former machinist did not have a valid subsisting cause of action against them when he died because they had not been named in the November 2017 personal injury lawsuit, thereby preserving claims against them for statute of limitations purposes. The decedent’s widow maintained that at the time of his death, her husband held valid subsisting, albeit unfiled, personal injury claims against all the various defendants who allegedly had exposed him to asbestos and had caused him injury.

Washington law. Resolution of the summary-judgment motion required parsing the overlap of claim accrual and statutes of limitations for personal injury and wrongful death claims in Washington, the court determined, also noting case precedent by Washington’s highest court that: (1) Washington law creates a cause of action for wrongful death for a relative "only if that relative would have had a cause of action for the injury at the time of death had death not occurred"; and (2) it is acceptable under Washington law to disallow a wrongful death claim by a personal representative whose decedent had allowed the statute of limitations to run on personal injury claims (Deggs v. Asbestos Corp. Ltd., 186 Wn.2d 716 (2016)).

In that regard, the manufacturers’ argument that the decedent did not have a valid subsisting cause of action against them when he died was incorrect, as they provided no authority for the proposition that personal injury claims are extinguished when the injured person dies. Because the ailing man had not been diagnosed with mesothelioma until February 2015, his personal injury claims—and personal injury claims on his behalf—remained viable until the expiration of Washington’s three-year statute of limitations had run, i.e., in February 2018, the court held.

Consequently, because the decedent held valid subsisting (although unfiled) personal injury claims against the various manufacturers whose products allegedly had exposed him to asbestos and had caused him injury at the time of his death, his widow could maintain wrongful death claims against those companies. However, in the case of the nine companies seeking summary judgment, the widow had not filed her wrongful death claims against them until June 2018, which was more than three years after her husband’s personal injury claims had accrued.

Contrary to the widow’s argument that the above-mentioned case precedent did not control because it had not been her husband who had let the limitations period expire, she provided no reason why the same reasoning should not be applied to a personal representative who allows the statute of limitations to run on the decedent’s personal injury claims rather than the decedent himself/herself.

Maritime law. The widow’s complaint stated that she was suing pursuant to tort theories, Washington law, and "any other applicable theory of liability." While some of the other defendants in the consolidated cases addressed her claims as though they might plausibly arise under either Washington law or under maritime law, the defendants that moved for summary judgment did not move for a more definite statement of the widow’s claims. Further, they briefed the statute of limitations question only under Washington law, and not maritime law. Accordingly, the companies’ summary judgment motion was granted only to the extent that the widow’s claims arose under Washington law.

The case is No. C17-5965 BHS.

Attorneys: David C. Humen (Dean Omar Branham Shirley LLP) for Sherri L. Deem. Kevin J. Craig (Gordon Rees Scully Mansukhani, LLP) for Air & Liquid Systems Corp. Christopher S. Marks (Tanenbaum Keale LLP) for CBS Corp. Katherine M. Steele (Bullivant Houser Bailey PC) and Rachel Tallon Reynolds (Lewis Brisbois Bisgaard & Smith LLP) for FMC Corp. and McNally Industries LLC.

Companies: Air & Liquid Systems Corp.; CBS Corp.; FMC Corp.; McNally Industries LLC; Armstrong International, Inc.; BW/IP International, Inc.; Blackmer Pump Co.; Flowserve US, Hopeman Brothers, Inc.; John Crane, Inc.; William Powell Co.

MainStory: TopStory SofLReposeNews AsbestosNews WashingtonNews

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