Products Liability Law Daily Wrap Up, CAUSATION—ASBESTOS—N.D. Cal.: Equipment makers largely denied summary judgment in Navy technician death action, (Sep 30, 2024)

By Pankhuri Bhatnagar, B.A. LL.B.

There was evidence that the technician was exposed to the manufacturers’ asbestos-containing products during the course of his job and that such exposure was a substantial factor in causing his cancer.

In a suit brought by the survivors of a Navy technician who died of mesothelioma, against several manufacturers whose asbestos-containing equipment the decedent was allegedly exposed to, a federal district court in California denied the manufacturers’ summary judgment motions on causation but dismissed the survivors’ damages claims for being historically available under general maritime law. The manufacturers’ sophisticated user, sophisticated intermediary, and superseding cause defenses failed because there was no proof that the technician or the Navy knew of the risks associated with servicing the subject equipment, or that the Navy’s failure to warn was unforeseeable (Smargisso v. Air & Liquid Systems Corp., No. 23-cv-01414-RFL (N.D. Cal. Sept. 26, 2024)).

Background. A man served in the U.S. Navy as a boiler technician aboard the USS Hollister from 1975 to 1978. In 2022, he was diagnosed with malignant mesothelioma and passed away shortly thereafter. His successor in interest and children (collectively, survivors or claimants) asserted that his disease was caused by asbestos exposure while handling various equipment components on the ship. Accordingly, they sued several insulation, gasket, and packing material manufacturers, including Warren Pumps (Warren); Foster Wheeler Energy Corp. and Foster Wheeler LLC (collectively, Foster Wheeler); IMO Industries, Inc. (IMO); and Redco Corporation. Warren sought to exclude the testimony of several witnesses. Foster Wheeler, Warren, and IMO filed summary judgment motions, while the claimants moved for summary judgment on the manufacturers’ affirmative defenses.

Evidence exclusion. Warren first objected to the re-direct examination of the decedent’s shipmate by citing Fed. R. Evid. 403 and pointing out that the claimants’ counsel had entered into a binding stipulation that the coworker would not be a witness against Warren. The court disagreed, noting that the stipulation was withdrawn during the same deposition, no prejudice was caused, the testimony pertained to the central issue of causation, and Warren had the opportunity to conduct a re-cross examination. Warren submitted that the survivors’ naval experts lacked sufficient foundation and personal knowledge to assert that the decedent was exposed to asbestos from working on Warren pumps. However, both experts permissibly relied on the testimony of the technician’s shipmates, who saw the decedent working on all the pumps in the boiler room, and combined their own knowledge of the job of a boiler technician in forming their opinions. Next, the fact that the experts did not perform a quantitative dose reconstruction did not mean that their opinions were necessarily deficient, as held in Marcus v. Air & Liquid Sys. Corp., No. 22-CV-09058-HSG, 2024 WL 3171840, at *7 (N.D. Cal. June 24, 2024). The experts explained how much fiber is released from each activity that the technician was engaged in while on the ship, the relative potency of different types of asbestos fiber, and the quantities of exposures that have led to mesothelioma—all of which was helpful to a jury and did not come close to propounding the “any exposure theory.” Accordingly, Warren’s Daubert motions were denied.

Causation. Warren and IMO (formerly DeLaval) contended that the evidence did not establish either actual or substantial exposure, but they did not contest that their equipment was on the ship during the relevant period. The fact that Warren manufactured pumps for the USS Hollister and supplied replacement parts to the Navy in 1978, along with the shipmate’s testimony about the decedent working on all pumps, was sufficient to show that the latter was exposed to Warren’s pumps. The circumstantial evidence of DeLaval supplying replacement gaskets to the Navy during an unspecified time period and the workers’ testimony that the gaskets exactly fit the DeLaval pumps led to an inference that IMO’s replacement parts were more likely than not in use when the decedent was on the ship. Even if DeLaval had not supplied the parts, a manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) it knows that the integrated product is likely to be dangerous for its intended uses, and (iii) it has no reason to believe that the product’s users will realize that danger, Air & Liquid Sys. Corp. v. DeVries, 586 U.S. 446, 457 (2019).

Here, the claimants’ expert presented evidence that DeLeval’s specifications required gaskets and packing for its pumps to be made from asbestos, that DeLaval had reason to know of the dangers of dust inhalation from working with asbestos-containing materials since the 1930s, and that the Navy did not adequately appreciate the dangers of working with asbestos at that time, thus raising triable issues as to all three prongs. The manufacturers cited McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1177 (9th Cir. 2016), where evidence suggesting that a worker was “frequently present during the removal of insulation” and “present 20–30 times during such removal” was found insufficient to satisfy the substantial factor test. The court distinguished that case, emphasizing that the decedent here personally removed gaskets and packing “almost every day” for two-and-a-half years, and that the removal and replacement activities exposed him to 1.7 to 6.8 asbestos fibers/cc of air, which amounted to him inhaling roughly 16,000,000 long asbestos fibers (shown to be highly carcinogenic). Thus, it could be inferred that the manufacturers’ products were substantial factors in the development of his mesothelioma. The summary judgment motions were denied on this ground.

Government contractor defense. Warren sought to avoid liability by establishing that (1) the government exercised its discretion and approved certain warnings; (2) the contractor provided the warnings required by the government; and (3) the contractor warned the government about dangers in the equipment's use that were known to the contractor but not to the government, Getz v. Boeing Co., 654 F.3d 852, 866–67 (9th Cir. 2011). The survivors presented evidence that the Navy did not consider asbestos to be a hazard generally until the 1970s, but Warren showed evidence that the Navy commissioned studies and reports demonstrating high levels of asbestos exposure from installing and removing materials in engine rooms. It was also unclear whether the Navy’s approval of technical manuals without asbestos warnings was due to conscious disregard (exercising discretion), or wholesale delegation to the contractor and/or blind approval due to a lack of knowledge of the relevant dangers (rubber stamping). Thus, genuine disputes existed on material issues, and Warren was not entitled to summary judgment based on the government contractor defense.

Damages. The manufacturers challenged the claims for punitive damages, loss of consortium, and damages related to the decedent’s loss of future earnings and pain and suffering. In determining which damages a plaintiff can seek under general maritime law, courts consider: (1) whether the relief sought has been historically available under general maritime law, and (2) whether any statute explicitly precludes the requested relief, Atlantic Sounding v. Townsend, 557 U.S. 404 (2009). The claimants failed to produce any historical evidence demonstrating that these damages were routinely allowed in negligence and strict liability actions under maritime law. While losses of future earnings are pecuniary damages permitted under the Jones Act, these damages are unavailable in wrongful death actions, like the one here. The motions were accordingly granted as to the damages claims.

Defenses. The claimants sought summary judgment on the manufacturers’ sophisticated user, sophisticated intermediary, superseding cause, and government contractor defenses. There was no concrete evidence that the 17-year-old technician knew of the asbestos risks associated with replacing pump packing and gaskets. The sailors’ instruction handbook did not specifically identify this risk; no protective gear was provided to him; and he did not benefit from the Navy’s industrial hygiene program dealing with asbestos hazards—leading to the failure of the manufacturers’ sophisticated user defense. As for the defense that an intermediary (the Navy) was aware of the dangers of asbestos and would have warned its employees, the manufacturers did not show that they knew of the Navy’s state of knowledge at the time or had reason to believe that the intermediary would warn technicians of the dangers of servicing the subject equipment. The superseding cause defense also did not succeed because the manufacturers did not establish that the Navy’s failure to warn was unforeseeable or that it produced harm that was “different in kind.” Therefore, the claimants’ motions were granted as to these three defenses but denied as to the government contractor defense, since whether the government knew about the dangers of working with asbestos packing was a triable issue of fact.

The case is No. 23-cv-01414-RFL.

Judge: Lin, R.

Attorneys: Andrew Seitz (Frost Law Firm, PC) for Stephanie Smargisso, William Ankiel, III and William Ankiel Jr. Glen R. Powell (Gordon Rees Scully Mansukhani LLP) for Air & Liquid Systems Corp. Joseph Duffy (Morgan, Lewis & Bockius LLP) for Elliott Turbomachinery Co., Inc. Bina Ghanaat (Hugo Parker, LLP) for Foster Wheeler Energy Corp. James P. Cunningham (Tucker Ellis LLP) for Warren Pumps LLC. Bobbie Rae Bailey (Leader Berkon Colao & Silverstein LLP) for IMO Industries, Inc. Daniel Mark Glassman (K&L Gates LLP) for Redco Corp. f/k/a Crane Co.

Companies: Air & Liquid Systems Corp.; Elliott Turbomachinery Co., Inc.; Foster Wheeler Energy Corp.; Warren Pumps LLC; IMO Industries, Inc.; Redco Corp. f/k/a Crane Co.; Redco Corp. f/k/a Crane Co.

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