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From Products Liability Law Daily, October 10, 2018

Pump maker heads to trial in asbestos-exposure case

By Susan Engstrom

In an action stemming from a shipyard worker’s death from mesothelioma, a federal court in Washington determined that a jury must decide whether there was a causal connection between the worker’s illness and a pump manufacturer’s asbestos-containing products. In addition, the manufacturer failed to support its assertion that it was immune from liability for alleged design and manufacturing defects under the government contractor defense. Thus, its motion for summary judgment was denied (Mikelsen v. Air & Liquid Systems Corp., October 9, 2018, Lasnik, R.).

The decedent had worked at the Puget Sound Naval Shipyard from approximately 1942 to 1980 (with the exception of two of those years). He worked primarily inside the machine shop at the shipyard, maintaining or repairing equipment from naval vessels. During that time, he developed mesothelioma, an asbestos-related disease, and later died. His family filed suit against Warren Pumps, LLC, alleging that the company manufactured pumps that contained asbestos and that the decedent had been exposed to its products—and the asbestos contained therein—while working in the machine shop. According to the complaint, Warren Pumps was liable for the decedent’s death because it put into the stream of commerce products that were negligently designed, not reasonably safe as manufactured, and not reasonably safe due to lack of warnings. The family also alleged that the company failed to reasonably inspect, test, warn, instruct, monitor, and/or recall the products. Warren Pumps moved for summary judgment on the family’s claims.

Choice of law. The court first determined that Washington law, rather than maritime law, governed its causation analysis. Although the decedent had been exposed to asbestos-containing products both onboard ship during his apprenticeship and later in the machine shop, Warren Pumps failed to show a potentially disruptive impact on maritime commerce to warrant federal admiralty jurisdiction. The evidence showed that the worker was onboard vessels for only six months and that once he was assigned to the shop, his onboard work was limited. Thus, the record was not sufficient for maritime jurisdiction to attach.

Causation. Warren Pumps did not seriously dispute that at least some of the products it supplied to the Navy during the relevant time contained asbestos or that its pumps were maintained and repaired in the shop where the decedent had worked. Rather, it contended that "mere presence" in the workplace was insufficient to create a jury issue as to whether its products caused the worker’s mesothelioma.

Under Washington law, the plaintiffs bore the burden of establishing that Warren Pumps’ products were a proximate cause of the worker’s injuries. Here, the manufacturer asserted that the plaintiffs proffered no evidence that the decedent ever had worked directly on a Warren Pump during his 35 years as a machinist. Even if that were true, however, the record contained several factors that warranted taking the causation issue to the jury: (1) Warren Pumps provided a significant portion of the pumps that went through the decedent’s shop; (2) the decedent had worked in the same space where the asbestos in the defendant’s products was released; (3) the products were handled in such a way that they generated visible asbestos-containing dust; (4) the work area was well within the dispersal range of asbestos fibers; (5) the worker was exposed to Warren Pumps’ products for decades with no protective equipment; and (6) the causal link between asbestos fibers and mesothelioma is well-supported.

Warren Pumps did not identify any other source of asbestos in the decedent’s workplace or private life that was a dominant contributor to his asbestos exposure, nor did it identify another possible cause of his mesothelioma. Instead, it simply challenged the plaintiffs’ expert testimony regarding the concentration of airborne asbestos particles in a workplace the size of the shop in which the decedent had worked. Accordingly, taking the facts in the light most favorable to the decedent’s family, a reasonable jury could conclude that there was a causal connection between the worker’s mesothelioma and Warren Pumps’ products, the court determined.

Government contractor immunity. Warren Pumps also argued that as a supplier of military equipment, it was immune from liability for alleged defects in the design or manufacture of equipment under the government contractor defense. Under the general theory behind this defense, a company that is hired by the government to produce a piece of equipment and specifies the manner in which that task is to be performed is entitled to the same immunity from liability that the government would enjoy because it was acting as an arm of the government, without independent discretion.

According to the court, Warren Pumps failed to support its assertion that the Navy had developed the specifications to which its pumps were manufactured and had "made the considered military decision to use asbestos in association with … the equipment it required for use" on its vessels. Neither the company nor its expert identified a directive from the government requiring that the manufacturer include asbestos in its packing, gaskets, and/or insulation lagging. Warren Pumps submitted no regulation, contract, or other specification that limited its discretion to choose a suitable material when manufacturing pumps sold to the Navy.

Warren Pumps also contended that it was not liable for any alleged failure to warn because the government retained and exercised its discretion with respect to equipment labels and warnings. Again, however, the manufacturer did not identify any specifications, instructions, or regulations in that regard. Thus, it failed to meet its burden of showing, as a matter of law, that the Navy had provided reasonably precise specifications regarding warnings and labeling that precluded Warren Pumps from complying with its state-law duty to warn.

In a companion case, the court dismissed Warren Pumps’ affirmative defenses for failure to mitigate, contributory negligence, assumption of risk, sophisticated purchase, and intervening/superseding cause [see today’s Products Liability Law Daily’s "Most affirmative defenses by pump maker dismissed in decedent shipyard worker’s asbestos-related action"].

The case is No. C17-0700RSL.

Attorneys: Kristin M. Houser (Schroeter Goldmark & Bender) for Alice Mikelsen. Alice Coles Serko (Tanenbaum Keale LLP) and Rachel Tallon Reynolds (Bullivant Houser Bailey PC) for Air & Liquid Systems Corp. Kevin J. Craig (Gordon Rees Scully Mansukhani, LLP) for Asbestos Corp., Ltd. Christopher S. Marks (Tanenbaum Keale LLP) for CBS Corp.

Companies: Air & Liquid Systems Corp.; Asbestos Corp., Ltd.; CBS Corp.

MainStory: TopStory JurisdictionNews CausationNews WarningsNews DefensesLiabilityNews EvidentiaryNews AsbestosNews WashingtonNews

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