Opinion
No. 60271-3-I.
August 11, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-04551-5, John P. Erlick, J., entered November 20, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Cox, J., concurred in by Appelwick and Lau, JJ.
Ruby Anderson, personally and as personal representative of the estate of Kenneth Anderson, appeals the summary dismissal of the claims against defendants Lockheed Shipbuilding Company (Lockheed) and Todd Shipyards Corporation (Todd). Anderson also appeals the trial court's order in limine at trial excluding the theory of the case that Caterpillar, Inc. (Caterpillar) had a duty to warn of the dangers of using asbestos insulation with the engines it manufactured.
Anderson failed in her burden to show there were genuine issues of material fact for trial, and Lockheed and Todd were entitled to judgment as a matter of law. But the order in limine at the trial of the claims against Caterpillar incorrectly barred pursuit of a theory based on Caterpillar's alleged duty to warn. We affirm in part, reverse in part, and remand.
Kenneth Anderson worked for the Marine Construction Design Company (Marco), a shipbuilding company, from 1955 to 1993. This action arises from his alleged exposure to asbestos that is the alleged proximate cause of mesothelioma, a fatal lung disease. He commenced this action before his death, and his wife, personally and as the personal representative of his estate, is now the real party in interest.
Anderson claims that her husband, during his employment with Marco, worked on some of the same ships at piers 90 and 91 in Seattle as did Owens Corning Fiberglass (OCF). OCF was an insulation subcontractor for Todd and Lockheed. She claims that Kenneth Anderson was exposed to asbestos through insulation work done by OCF for Todd and Lockheed. The trial court granted the summary judgment motions of Todd and Lockheed.
Anderson also claims that her husband, during his employment with Marco, worked near engines manufactured by Caterpillar. The Caterpillar engines allegedly contained gaskets made of asbestos. The trial court denied Caterpillar's motion for summary judgment, and Anderson proceeded to trial against Caterpillar as the sole defendant. At trial, the court granted Caterpillar's motion in limine to exclude any evidence related to Anderson's alternative theory of liability against Caterpillar — that Caterpillar had a duty to warn about asbestos insulation used on or around the engines it manufactured. The trial ended in a defense verdict.
By Stipulation and Order, the appeal of the summary dismissal of Respondent Fraser's Boiler Service, Inc. was dismissed with prejudice and without costs to any party.
SUMMARY DISMISSAL OF TODD AND LOCKHEED
Anderson contends that the trial court erred in entering summary judgment in favor of Todd and Lockheed. Because there were no genuine issues of material fact and these defendants were entitled to judgment as a matter of law, we disagree.
Summary judgment is appropriate if, viewing all facts in the light most favorable to the non-moving party, there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. A factual dispute is material if the outcome of the case depends upon it.
Herron v. Tribune Pub. Co., 108 Wn.2d 162, 170, 736 P.2d 249 (1987); CR 56(c).
Hash v. Children's Orthopedic Hosp. Med. Ctr., 110 Wn.2d 912, 915, 757 P.2d 507 (1988).
If the moving party is a defendant who makes an initial showing of the absence of a material fact, the plaintiff must offer prima facie evidence to support each essential element of its claim. The facts set forth must be specific, detailed, and not speculative or conclusory. All inferences from the facts are to be interpreted in favor of the non-moving party. We review de novo a trial court's summary judgment determination.
Bruns v. PACCAR, Inc., 77 Wn. App. 201, 208, 890 P.2d 469 (1995).
Sanders v. Woods, 121 Wn. App. 593, 600, 89 P.3d 312 (2004).
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Herron, 108 Wn.2d at 169.
Causation
Anderson argues that there is sufficient evidence to create a genuine issue of material fact that Todd and Lockheed, through their subcontractor OCF, exposed him to asbestos, causing his lung disease. We disagree.
In Washington, plaintiffs may establish exposure to asbestos through circumstantial evidence. A plaintiff may rely on the testimony of other witnesses who can identify asbestos products present in the workplace.
Berry v. Crown Cork Seal Co., 103 Wn. App. 312, 323, 14 P.3d 789 (2000).
Id.
Courts should consider the following factors in determining whether sufficient evidence of causation exists:
(1) plaintiff's proximity to the asbestos product when the exposure occurred; (2) the expanse of the work site where asbestos fibers were released; (3) the extent of time plaintiff was exposed to the product; (4) what types of asbestos products the plaintiff was exposed to; (5) how the plaintiff handled and used those products; (6) expert testimony on the effects of inhalation of asbestos on human health in general and the plaintiff in particular; and (7) evidence of any other substances that could have contributed to the plaintiff's disease (and expert testimony as to the combined effect of exposure to all possible sources of the disease).
Allen v. Asbestos Corp., Ltd., 138 Wn. App. 564, 571, 157 P.3d 406 (2007) (citing Lockwood v. ACS, Inc., 109 Wn.2d 235, 248, 744 P.2d 605 (1987)), review denied, 162 Wn.2d 1022 (2008).
In Lockwood v. ACS, Inc., a shipyard worker met his burden on summary judgment by presenting evidence that the manufacturer's product was used on the ship where he worked on a large overhaul project and that asbestos dust released into the air can be inhaled by bystanders. The supreme court held that he had established a reasonable inference that he was exposed to the defendant's product because that product was used on a ship while Lockwood worked there. The court stated:
109 Wn.2d 235, 744 P.2d 605 (1987).
Id. at 247.
Thus, even if Lockwood did not work directly with [the manufacturer's] product . . . it is reasonable to infer that since that product was used on that ship when Lockwood worked there , Lockwood was exposed to it. . . . In sum, the evidence Lockwood presented creates a reasonable inference that he was exposed to [the manufacturer's] product. When this is combined with the expert testimony that all exposure to asbestos has a cumulative effect in contributing to the contraction of asbestosis, it would be reasonable for a jury to conclude that Lockwood's exposure to [the manufacturer's] product was a proximate cause of his injury.
Id. at 247-48 (emphasis added).
Similarly, in Berry v. Crown Cork Seal Co., the plaintiff met his burden to show proximity to the asbestos when the exposure occurred. He submitted evidence that he worked at the Puget Sound Naval Shipyard while asbestos products were used, and the defendant supplied some of the asbestos products used there during the relevant time periods.
103 Wn. App. 312, 324, 14 P.3d 789 (2000).
Id. at 324; see also Allen, 138 Wn. App. at 573 (a reasonable inference existed that an employee was exposed to defendant's asbestos product when the shipyard where the employee worked ordered increasing quantities of that product over a period of years).
Here, the trial court correctly concluded that there was insufficient non-speculative evidence to show Kenneth Anderson's proximity to asbestos at the times OCF performed its work on the ships. There is insufficient evidence that he was ever on a ship at or near the same time as the performance of any asbestos-related work. And there is no reasonable inference that he was on a ship close enough to the time of any asbestos-related work such that asbestos fibers from the work would still be in the air.
Anderson relies on the perpetuation deposition testimony of her husband and that of Wayne Nettekoven, a former OCF employee, to show the existence of a genuine issue of material fact for trial. Neither is sufficient to avoid summary judgment.
Kenneth Anderson testified that he recalled working on the North Wind, Staten Island, and Burton Island ships, among others, at piers 90 and 91 during the period of time from the late 1950s to mid 1960s. He recalled working on these ships a total of about seven instances in the seven-or eight-year period. He worked on these ships an average of one to two months in each instance. He testified that he had seen employees wearing Lockheed uniforms while working on these ships, but he did not testify when or how often he saw them or what they were doing when he saw them. But his testimony does not support an inference that he saw them while they were performing asbestos-related work. It also does not explain how often he saw them or what work they performed in his presence.
During this time period, Nettekoven worked for OCF, which subcontracted to work for Todd and Lockheed on piers 90 and 91, among other places. Like Anderson, Nettekoven recalled working on the North Wind, Staten Island, and Burton Island ships, among others. Nettekoven worked on these particular ships several times each at piers 90 and 91. The shortest job on these ships lasted a couple of hours, and the longest approximately one month, with the average job lasting 2 to 4 days.
Asbestos was utilized on all three of these particular ships, but not all of the jobs Nettekoven or OCF performed on these ships involved asbestos-related work. Some jobs required the use of different materials, such as cork or rubber. Nettekoven testified that sometimes while working on these ships, other subcontractors would be present, but he did not specifically recall ever seeing a Marco employee on a ship. Todd and Lockheed performed their own cleanup work, but only if the job was sufficiently large.
Clerk's Papers at 252 ("I mean, one time it would. Maybe next time it wouldn't. It depends on how, how extensive the repair was. Usually, yes, because they change all the gaskets. . . .").
Anderson argues that the evidence in this case is similar to that in Lockwood, in which there was also no direct evidence that the asbestos product was used on the ship at the precise time plaintiff worked on the ship. But the evidence inLockwood was sufficient to create the inference because the plaintiff presented testimony of witnesses who identified the presence of the particular asbestos product at the plaintiff's workplace during the periods of time he worked there. There is no such evidence here.
Anderson argues that the declaration of his expert, Dr. Nicholas Heyer, creates a genuine issue of material fact regarding causation and had a proper evidentiary basis. We disagree.
The trial court denied the motion to strike Dr. Heyer's declaration, but viewed the declaration as not dispositive. We agree that the declaration was not dispositive, but on different grounds than those articulated by the trial court.
ER 703 permits experts to base their opinion testimony on facts or data that are not admissible in evidence "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. . . ." The otherwise inadmissible underlying facts are admissible for the limited purpose of explaining the basis for an expert's opinion, but not as substantive evidence. The trial court may allow the admission of otherwise inadmissible evidence for the sole purpose of showing the basis of the expert's opinion. "The admission of these facts, however, is not proof of them." We review de novo a trial court's evidentiary ruling in connection with summary judgment.
Allen, 138 Wn. App. at 579.
Id. (citing State v. Wineberg, 74 Wn.2d 372, 384, 444 P.2d 787 (1968)).
Id.
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
The facts in this case are almost identical to those inAllen v. Asbestos Corp., Ltd. That case was decided after the trial court in this case ruled on the motion to strike Dr. Heyer's declaration.
138 Wn. App. 564, 579, 157 P.3d 406 (2007), review denied, 162 Wn.2d 1022 (2008).
There, this court upheld the trial court's decision to strike as substantive evidence three paragraphs of Dr. Heyer's declaration in that case, but to admit them for the limited purpose of explaining Dr. Heyer's opinion. As in this case, the relevant paragraphs of Dr. Heyer's declaration inAllen contained an assumption that the plaintiff had been exposed to the defendant's asbestos-containing product. This court held that Dr. Heyer had no personal knowledge about the plaintiff's exposure to asbestos, that this factual issue was outside of Dr. Heyer's industrial hygiene and epidemiology expertise, and that he could therefore not testify about that underlying fact.
Id. at 580.
Id.; see Brief of Respondent Fraser's Boiler Service at 24-25 for a side by-side comparison of the Heyer declarations in this case and in Allen.
Allen, 138 Wn. App. at 580-82.
Here also, Dr. Heyer opined that Todd and Lockheed caused Anderson's lung disease. The materials on which Dr. Heyer relied did not provide him with any personal knowledge about Kenneth Anderson's exposure to asbestos in this case. Most of the documents Dr. Heyer relied upon are not specific to this litigation, but relate to causation in asbestos cases generally. Many are not in this record. In short, although the portions of the declaration to which the moving parties objected are arguably admissible for the limited purpose of explaining the basis of Dr. Heyer's opinion, they are inadmissible as substantive evidence. The declaration does not create a genuine issue of material fact.
Anderson argues that Todd cannot challenge the admissibility of the Heyer declaration because it did not cross-appeal the trial court's denial of its motion. That is incorrect. Todd and Lockheed may argue an additional ground for affirming the trial court without filing a cross-appeal. Lockheed may likewise challenge the declaration for the first time on appeal because Todd, another defendant, challenged it below.
See State v. Warren, 134 Wn. App. 44, 63 n. 9, 138 P.3d 1081 (2006), review granted, 161 Wn.2d 1001 (2007); RAP 2.4(a) (cross-appeal required if respondent seeks affirmative relief).
See RAP 2.5(a) ("A party may raise a claim of error which was not raised by the party in the trial court if another party on the same side of the case has raised the claim of error in the trial court.").
Retained Control
Todd and Lockheed argue that we may affirm the trial court on the alternative ground that they did not retain control over the actions of OCF employees and cannot be held liable for the actions of those employees. We agree that this alternate ground also supports affirming the summary dismissal of these defendants.
An employer is generally not liable for the acts of an independent contractor. But if the employer retains control over the independent contractor's work, the employer will be liable. The test of control is not the actual interference with the work of the subcontractor, but the right to exercise such control. The right to inspect and supervise to ensure proper completion of the job is not retained control; the issue is control over the manner in which the employee performs the work.
Kinney v. Space Needle Corp., 121 Wn. App. 242, 247, 85 P.3d 918 (2004).
Kamla v. Space Needle Corp., 147 Wn.2d 114, 119-20, 52 P.3d 472 (2002).
Kinney, 121 Wn. App. at 247.
The only evidence in this case relevant to retained control is Nettekoven's deposition testimony. Many of his statements illustrate that Todd and Lockheed did not, as a matter of practice, interfere with OCF's work. For example, the following exchange occurred during his examination:
Q. And how did it work with respect to repair?
A. Go over and cover that. It's ready. There was no, nothing formal about it. It was just do it.
Clerk's Papers at 245.
Q. And whose decision would that be as to how to effectuate that [repair]?
A. Mine if I was doing the job. Whoever is doing the job, you make up your mind what it needs.
Clerk's Papers at 246.
Q. You pretty much do the work, finish it up, and determine yourselves if it was ready to go?
A. Well, they trusted us. We done them a good job. Like I said, if we missed something, they would come grab us and tell us, hey, you missed a piece back here or something, but other than that, we were pretty much on our own.
Clerk's Papers at 246.
Q. But other than an OCF foreman, there wasn't anybody who need needed [sic] to tell you how to do your job?
A. No, no.
Q. While you were still getting your hands dirty, did anybody at Todd ever tell you how to do your job?
A. No.
Q. No one at Todd ever told you how to remove or apply insulation?
A. They told me what to remove and what to apply, but not how.
Clerk's Papers at 247.
Q. Lockheed didn't become any more involved in the details of your work for OCF on jobs on the waterfront than the Todd personnel did?
A. No, it's about the same. . . .
Clerk's Papers at 254.
These statements illustrate that OCF worked as an independent contractor and Todd and Lockheed did not exercise control over the manner in which OCF employees completed their work. Nothing in the record suggests that they had the right to exercise such control.
Nettekoven testified that the shipyards had a person in charge of safety who would occasionally tell OCF employees that they were violating a safety rule. But this fact alone is insufficient to create a genuine issue of material fact that Todd or Lockheed retained control over OCF's work.
Clerk's Papers at 258-59 ("Well, the shipyards had their safety man. If you were doing something wrong, they would tell you.").
Unlike in Kinney v. Space Needle Corp., Nettekoven did not state that Todd or Lockheed took responsibility for safety by providing safety equipment, instructing OCF employees about safety, or controlling all safety activities of OCF employees, as was true in that case. Thus, that case does not apply here.
Anderson argues that the fact that Todd and Lockheed sometimes used their own employees to clean up after OCF illustrates that they retained control over OCF's work. But whether Todd and Lockheed required OCF to clean up after completing a job is not relevant to whether Todd or Lockheed exercised control over the job itself. Anderson has not shown that Todd's or Lockheed's acts were a proximate cause of Anderson's injury. The trial court correctly concluded that Todd and Lockheed did not retain control over OCF's work and were therefore not liable for the acts of OCF employees.
DUTY TO WARN
Anderson claims the trial court incorrectly excluded any evidence regarding his theory that Caterpillar had a duty to warn about asbestos insulation used with engines it manufactured. Based on recent precedent, we agree that the ruling was incorrect.
This court recently held that a manufacturer's duty to warn may arise when it furnishes a product that it knows or should know would be used with another product in a way that may cause harm. Whether a legal duty exists is a question of law that we review de novo.
Braaten v. Saberhagen Holdings, 137 Wn. App. 32, 151 P.3d 1010 (2007), review granted, 162 Wn.2d 1011 (2008); Simonetta v. Viad Corp., 137 Wn. App. 15, 151 P.3d 1019 (2007), review granted, 162 Wn.2d 1011 (2008). The supreme court heard oral argument on these cases on March 11, 2008.
Linville v. State, 137 Wn. App. 201, 208, 151 P.3d 1073 (2007).
Here, the trial court decided that Caterpillar had no duty to warn about asbestos insulation used with the engines it manufactured. In ruling that Anderson could not pursue this theory, the trial court primarily relied upon and distinguishedTeagle v. Fischer Porter Co. NeitherBraaten v. Saberhagen Holdings norSimonetta v. Viad Corp. had been decided by this court at the time of the trial court's ruling.
89 Wn.2d 149, 570 P.2d 438 (1977), superseded on other grounds by Ch. 7.72 RCW.
137 Wn. App. 32, 151 P.3d 1010 (2007), review granted, 162 Wn.2d 1011 (2008).
137 Wn. App. 15, 151 P.3d 1019 (2007), review granted, 162 Wn.2d 1011 (2008).
In Teagle, the manufacturer of a "flowrater" was held liable for failing to warn of the dangers of using the flowrater in a particular way. Specifically, the flowrater exploded when used to measure ammonia if a particular brand of ring was used as a sealer, but not when a different brand of ring was used. The supreme court held that the product was defective when used as intended without a warning about the dangers that could result from use of the flowrater in conjunction with the ring.
Teagle, 89 Wn.2d at 155.
This case is distinguishable from Teagle. Here, there was no actual failure of the Caterpillar engine, whether or not it was used in conjunction with asbestos insulation. Rather, the asbestos insulation used with the Caterpillar engine was dangerous during its ordinary use.
Both Braaten and Simonetta discussed the duty to warn in asbestos cases. Both noted the distinction between these factual situations and that in Teagle, but found a duty to warn despite these differences. The facts of Simonetta are more analogous to those in this case.
In Simonetta, the defendant manufactured evaporators, which were machines used on naval ships. The evaporators Simonetta serviced were encased in asbestos insulation, and Simonetta had to remove the insulation in order to repair the equipment and reinsulate it when he was finished. The manufacturer did not supply the insulation.
Simonetta, 137 Wn. App. at 19.
This court held that under a negligence theory, the manufacturer had a duty to warn of the known hazards involved in the use of its product. The manufacturer was aware that the equipment required insulation because it got very hot with ordinary use, and asbestos insulation was the standard product used to insulate. The court stated:
Id. at 22.
Asbestos was not a Griscom Russell product. But, the danger of asbestos exposure is "inherent" in the use of its product because the evaporators were built with the knowledge that insulation would be needed for the units to operate properly and that workers would need to invade the insulation to service the units. Griscom Russell also knew that the Navy used asbestos for thermal insulation. A product designed so that use requires the invasion of asbestos insulation has a known inherent danger because the particles become respirable, which exposes people nearby to their toxic nature.
Id. (emphasis added).
The court in Simonetta also held that the manufacturer was liable under a strict liability theory because it furnished a product that it knew would be used with another product in a way that would cause harm, and it did not issue a proper warning. Under section 402A of the Restatement of Torts, a product may be unreasonably dangerous in the absence of adequate warnings concerning the safe use of the product. Specifically,
Id. at 28.
Even though the evaporator left the factory without insulation, it was defective. It had to be encapsulated in insulation for use, yet included no warning about the risk of exposure to a known danger, which would result from disturbing the insulation during ordinary use and necessary maintenance on the units.
We hold that when a product requires the use of another product and the two together cause a release of a hazardous substance, the manufacturer has a duty to warn about the inherent dangers.
Id. at 26, 31.
The facts in this case are very similar to those inSimonetta. Kenneth Anderson testified that asbestos insulation was necessarily used on the engine exhausts because they got very hot:
The turbos on these engines — these turbos get very hot. Most of the engines we installed were V series and had two turbos on them, and they come together in one big exhaust pipe, which is either a 10 or 12 inch. On these as it came out of the turbo where it had to be insulated , we had pads put on, asbestos pads at that point and up the neck up to the flange.
And from that point on there was pads on a flex line which was usually at least 12 inches long. And then the steel pipe had a hard insulation put on it, asbestos halves that was wired, cemented and clothed, you know, so you had cement and whatnot. So it was pretty well everything was insulated clear up into — into the stack.
Clerk's Papers at 1816 (emphasis added).
It is not clear from Kenneth Anderson's testimony whether the insulation was on the Caterpillar engine itself, or only on the exhaust pipes extending from the engine. Thus, on this record, we do not know whether the insulation encapsulated the engines manufactured by Caterpillar as in Simonetta.
Caterpillar emphasizes that the evidence only supports that insulation was on the engine exhausts, which were manufactured by a different company, not on the engines themselves. We conclude, however, based on Simonetta, that the key inquiry is whether Anderson or other employees were required to disturb the asbestos during normal operation of the engine ( i.e., for installation and repairs). Such an inquiry would address the relevant tests — whether the use of asbestos was a known danger inherent in the use of the engines and whether the engine was unreasonably dangerous as used. How the engine is used or serviced is more important than where the insulation was in relation to the engine.
A jury could find that the use of asbestos insulation was "inherent" in the use of the Caterpillar engines. They were designed to have exhaust pipes that became very hot with the engine's use. A duty to warn of the danger would arise in that situation.
Anderson's offer of proof stated that John Kelly, a Marco employee who worked with Kenneth Anderson for many years, would testify at trial. In his declaration, Kelly explained that asbestos insulation had to be applied when the engines were installed, and disturbed or removed when the engines were serviced:
[P]art of their [Brower's] work would have involved insulating the engine exhausts on board vessels. Some of this work took place when new engines were being installed and when existing engines were overhauled and/or repaired. The exhausts on the engines were hot and had to be insulated. . . .
The insulation work performed by Brower on the engine exhausts included sawing the pipecovering, cutting cloth and occasionally removing old insulation. . . .
On a more probable than not basis, Mr. Anderson occasionally worked in the vicinity of Brower insulators while they were removing and installing asbestos-containing products. . . .
Clerk's Papers at 902 (emphasis added).
As in Simonetta, this evidence suggests that the use of asbestos was inherent in or required by the use of the Caterpillar engines and that the engines were unreasonably dangerous when not accompanied by a warning regarding the safe use of the engines.
The trial court foreclosed the ability to argue this theory. Doing so was incorrect.
Caterpillar argues, as the trial court concluded, that the use of insulation was not necessary for the use of the engine. This conclusion is at odds with the testimony of both Kenneth Anderson and John Kelly, who stated that the engine exhausts were hot and had to be insulated. Moreover, the court inSimonetta noted that the following fact had been established in that case, "somebody who designs a piece of equipment for shipboard use that involves the use of steam and that is hot would understand that the unit is going to be insulated." The same could be established in this case, where hot engine exhausts would likely need to be insulated to operate safely.
Finally, the trial court declined to reach whether this legal theory was disclosed to Caterpillar in a timely manner, whether any delay was prejudicial, or what an appropriate remedy would be. In view of our disposition, we need not address these issues.
We affirm the summary dismissals of Todd and Lockheed, reverse the judgment in favor of Caterpillar, and remand for further proceedings.