Opinion
CONSOLIDATED UNDER MDL 875 E.D. PA CIVIL ACTION NO. 2:10-cv-69365
10-27-2011
WILLIAM T. NELSON Plaintiff, v. A.W. CHESTERTON CO., et al., Defendants.
Transferred from the District of Rhode Island
(Case No. 10-00065) ORDER
AND NOW, this 27th day of October, 2011, it is hereby ORDERED that the Motion for Summary Judgment of Defendant Yarway Corp. (doc. no. 218) is DENIED.
Mr. William T. Nelson alleges that his asbestos-related injuries were caused by the inhalation of fibers emitted from products which were designed, manufactured, distributed, installed, and/or sold by various defendants. Plaintiff was a member of the United States Navy from approximately 1958 through 1976, where he worked as a boiler technician aboard the USS Compton, USS Diamond Head, USS Annapolis, USS Ingraham, USS Laffray, and USS Savannah. Plaintiff was deposed in this matter.
AND IT IS SO ORDERED.
/s/ _________
EDUARDO C. ROBRENO, J.
I. LEGAL STANDARD
A. Summary Judgment Standard
When evaluating a motion for summary judgment, Federal Rule of Civil Procedure 56 provides that the Court must grant judgment in favor of the moving party when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact . . . ." Fed. R. Civ. P. 56(c)(2). A fact is "material" if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248-49. "In considering the evidence the court should draw all reasonable inferences against the moving party." El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).
"Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, 'the burden on the moving party may be discharged by showing - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (quoting Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)). Once the moving party has discharged its burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading; rather, its response must - by affidavits or as otherwise provided in [Rule 56] - set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).
B. Applicable Law
This Court has held that maritime law governs "claims involving plaintiffs who were sea-based Navy workers so long as the allegedly defective product was produced for use on a vessel." Conner v. Alfa Laval, Inc., 2011 WL 3101810 at *8 (E.D. Pa. 2011) (Robreno, J.). Such claims meet the locality and connection tests necessary for maritime law to apply. See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534. The locality test requires that the tort occur on navigable waters or, for injuries suffered on land, that the injury be caused by a vessel on navigable waters. Id. The connection test requires that the incident could have "'a potentially disruptive impact on maritime commerce,'" and that "'the general character' of the 'activity giving rise to the incident' shows a 'substantial relationship to traditional maritime activity.'" Id. (internal citations omitted) (citing Sisson v. Ruby, 497 U.S. 358, 364 n.2, 365 (1990)).
Even if a service member in the Navy performed some work at shipyards or docks as opposed to onboard a ship on navigable waters, "the locality test is satisfied as long as some portion of the asbestos exposure occurred on a vessel on navigable waters." Conner, 2011 WL 3101810 at *9. If, however, the worker never sustained asbestos exposure onboard a vessel on navigable waters, then the locality test is not met and state law applies. When a worker (whose claims meet the locality test) was primarily sea-based, his claims will meet the connection test necessary for the application of maritime law. Id. at 9-10. Even if he could meet the locality test but his exposure was primarily land-based, then state law applies.
C. Statute of Limitations under Maritime Law
The statute of limitations for maritime torts is governed by 46 U.S.C. § 30106 (previously 46 U.S.C. app. § 763(a)), which provides, "Except as otherwise provided by law, a civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose." A cause of action under general maritime law "accrues when a plaintiff has had a reasonable opportunity to discover his injury, its cause, and the link between the two." Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991). Under the discovery rule, "[w]hen the specific date of injury cannot be determined because an injury results from continual exposure to a harmful condition over a period of time, a plaintiff's cause of action accrues when the injury manifests itself." McCain v. CSX Transp., Inc., 708 F. Supp. 2d at 498 (quoting Czyzewski v. Conrail, 1997 WL 9791 *2 (E.D. Pa. 1997)). The key inquiry is whether the plaintiff has knowledge of the injury and its cause. McCain, 708 F. Supp. 2d at 498 (citing United States v. Kubrick, 444 U.S. 111, 122-23 (1979) (interpreting the Federal Tort Claims Act)).
An issue that often appears in personal injury asbestos litigation is whether a plaintiff, who in the past brought a suit for a nonmalignant asbestos-relating disease, may later bring a second lawsuit if he or she later develops a malignant asbestos-related disease. Among the States, there are two competing theories on this issue: the separate disease rule, also known as the "two disease" rule, and the indivisible cause of action theory, also known as the "one disease" rule. Kiser v. A.W. Chesterton Co., 770 F. Supp. 2d 745, 746 (E.D. Pa. 2011) (Robreno, J.) (finding that Virginia adheres to the indivisible cause of action theory or "one disease" rule, as there is a specific provision in the Virginia Code dealing with the statute of limitations for asbestos cases). Under the separate disease rule, a plaintiff may bring suit for a nonmalignant asbestos-related disease without triggering the statute of limitations for any malignant asbestos-related diseases which may later develop. Id. By contrast, under the indivisible cause of action theory, the statute of limitations for all asbestos-related diseases begins to run at the time of the initial diagnosis or discovery, depending on the jurisdiction, of any asbestos-related disease. Id.
Many state courts have adopted the separate disease rule; indeed, this is a growing trend. See, e.g., Mattox v. Amer. Standard, Inc., No. 07-73489 (E.D. Pa. 2011) (Robreno, J.) (finding that North Carolina applies the two-disease rule); Wagner v. Various Defendants, 2011 WL 1743388 at *1-2 (E.D. Pa. 2011) (Robreno, J.) (finding that Mississippi is a two-disease state); Abrams v. Pneumo Abex Corp., 981 A.2d 198, 208 (Pa. 2009) (adopting the 'two-disease' rule in Pennsylvania, which formerly applied the one-disease rule); Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 653 (Tex. 2000) (rejecting the one-disease rule); Cowgill v. Raymark Indus., 780 F.2d 324, 327 (3d Cir. 1986) (citing Goodman v. Mead Johnson & Co., 534 F.2d 566, 574 (3d Cir. 1976), cert. denied, 429 U.S. 1038 (1977)) (discussing New Jersey law, which applies the two-disease rule).
Additionally, courts have applied the separate disease rule to federal tort statutes. See Anderson v. AC & S, Inc., 797 N.E.2d 537, 544 (Ohio Ct. App. 2003) (internal citations omitted) (noting that under the Federal Employer's Liability Act, asbestosis and mesothelioma are two distinct diseases giving rise to separate causes of action); Wagner v. Apex Marine Ship Mgmt. Corp., 100 Cal. Rptr. 2d 533, 536 (Cal. Ct. App. 2000) (recognizing the separate disease rule in a claim brought under the Jones Act); Hagerty v. L & L Marine Servs., Inc., 788 F.2d 315 (5th Cir. 1986) (finding that, in Jones Act cases, "At least in the toxic chemical or asbestos cases, the disease of cancer should be treated as a separate cause of action for all purposes"). But see Hicks v. Hines Inc., 826 F.2d 1543 (6th Cir. 1987) (holding that plaintiff's Jones Act claim for bladder cancer arising from maritime exposure to hazardous chemicals was time-barred given his notice years earlier that his eyes had been harmed by the same exposure).
It is true that a tort cause of action accrues, and the statute of limitations begins to run, "'when the wrongful act or omission results in damages,'" even though "'the full extent of the injury is not then known or predictable.'" Wallace v. Kato, 549 U.S. 384, 391 (2007) (citing 1 C. Corman, Limitation of Actions § 7.4.1, pp. 526-527 (1991)). However, the long latency periods of asbestos-related diseases present a unique set of facts. A non-malignant asbestos-related disease such as asbestosis, and a malignant asbestos-related disease such as mesothelioma, are not the same injury, but rather are two distinct injuries. See, e.g., Wagner, 2011 WL 1743388 at *1-2 (citing Gentry v. Wallace, 606 So.2d 1117, 1122 (1992)) (finding that "there is sufficient authority to Erie predict with some measure of confidence that Mississippi is a 'two-disease' state."). After a careful review of all the growing trend among the States to apply the two-disease rule, as well as the state and federal court decisions that have applied the two-disease rule to federal causes of action in the asbestos context, and in light of the policies served by adopting the two-disease rule, the Court concludes that the two-disease rule is the better rule. Accordingly, the Court will adopt the two-disease rule as the applicable rule under maritime law. See E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986) (noting that maritime law is made up of an amalgam of federal and state law).
D. Product Identification under Maritime Law
Maritime law applies to "claims involving plaintiffs who were sea-based Navy workers where the allegedly defective product was produced for use on a vessel." Prange v. A.W. Chesterton Co., 09-91848 (E.D. Pa. July 22, 2011) (Robreno, J.). Maritime law is made up of an amalgam of federal and state law. E. River S.S. Corp., 476 U.S. at 864. Substantive admiralty law applies to products liability claims. Id. In order to establish causation for an asbestos claim under maritime law, a plaintiff must show, for each defendant, that "(1) he was exposed to the defendant's product, and (2) the product was a substantial factor in causing the injury he suffered." Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005); citing Stark v. Armstrong World Indus., Inc., 21 Fed. App'x 371, 375 (6th Cir. 2001). Substantial factor causation is determined with respect to each defendant separately. Stark, 21 Fed. Appx. at 375.
Accordingly, a mere "minimal exposure" to a defendant's product is insufficient to establish causation. Lindstrom, 424 F.3d at 492. "Likewise, a mere showing that defendant's product was present somewhere at plaintiff's place of work is insufficient." Id. Rather, the plaintiff 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. (quoting Harbour v. Armstrong World Indus., Inc., No. 90-1414, 1991 WL 65201, at *4 (6th Cir. April 25, 1991)). The exposure must have been "actual" or "real", but the question of "substantiality" is one of degree normally best left to the fact-finder. Redland Soccer Club, Inc. v. Dep't of Army of U.S., 55 F.3d 827, 851 (3d Cir. 1995). "Total failure to show that the defect caused or contributed to the accident will foreclose as a matter of law a finding of strict products liability." Stark, 21 F. App'x at 376 (citing Matthews v. Hyster Co., Inc., 854 F.2d 1166, 1168 (9th Cir. 1988) (citing Restatement (Second) of Torts, § 402A (1965)).
E. Government Contractor Defense
To satisfy the government contractor defense, a defendant must show that (1) the United States approved reasonably precise specifications for the product at issue; (2) the equipment conformed to those specifications; and (3) it warned the United States about the dangers in the use of the equipment that were known to it but not to the United States. Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988).
This Court has noted that, at the summary judgment stage, a defendant asserting the government contractor defense has the burden of showing the absence of a genuine issue of material fact as to whether it is entitled to the government contractor defense. Compare Willis v. BW IP International Inc., 2011 WL 3818515 at *1 (E.D. Pa. Aug. 26, 2011) (Robreno, J.) (addressing defendant's burden at the summary judgment stage), with Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770 (E.D. Pa. 2010) (Robreno, J.) (addressing defendant's burden when Plaintiff has moved to remand). In Willis, the MDL Court found that defendants had not proven the absence of a genuine issue of material fact as to prong one of the Boyle test since plaintiff had submitted affidavits controverting defendants' affidavits as to whether the Navy issued reasonably precise specifications as to warnings which were to be placed on defendants' products. The MDL Court distinguished Willis from Faddish v. General Electric Co., No. 09-70626, 2010 WL 4146108 at *8-9 (E.D. Pa. Oct. 20, 2010) (Robreno, J.), where the plaintiffs did not produce any evidence of their own to contradict defendants' proofs. Ordinarily, because of the standard applied at the summary judgment stage, defendants are not entitled to summary judgment pursuant to the government contractor defense.
This Court has previously cited to the case of Beaver Valley Power Co. v. Nat'l Engineering & Contracting Co., 883 F.2d 1210, 1216 (3d Cir. 1989), for the proposition that the third prong of the government contractor defense may be established by showing that the government "knew as much or more than the defendant contractor about the hazards" of the product. Although this case is persuasive, as it was decided by the Court of Appeals for the Third Circuit, it is not directly on point in this maritime case because it involved Pennsylvania law, rather than maritime law. Additionally, even though it was decided subsequent to Boyle, the Beaver Valley case neither relied upon, nor cited to, Boyle.
II. MOTION FOR SUMMARY JUDGMENT BY DEFENDANT YARWAY CORP.
A. Applicable Law
As Plaintiff was a sea-based Navy worker who alleges injury from products produced for use on vessels, maritime law governs this case. See Conner v. Alfa Laval, Inc., 2011 WL 3101810 at *8 (E.D. Pa. 2011) (Robreno, J.) (maritime law governs claims which involve "plaintiffs who were sea-based Navy workers so long as the allegedly defective product was produced for use on a vessel").
B. Statute of Limitations
Courts have applied the separate disease rule to federal tort statutes. Under the separate disease rule, a plaintiff may bring suit for a nonmalignant asbestos-related disease without triggering the statute of limitations for any malignant asbestos-related diseases which may later develop. See Kiser v. A.W. Chesterton Co., 770 F. Supp. 2d 745, 746 (E.D. Pa. 2011) (Robreno, J.). Such is the case here, where Plaintiff was diagnosed with his "second disease" of malignant mesothelioma in 2008, fewer than three years before filing suit in 2010. That he had filed a prior lawsuit in the early 1990s based on his diagnosis of non-malignant asbestosis does not affect the three-year statute of limitations on his present maritime claim.
C. Product Identification
Defendant argues that the only testimony of Plaintiff's that referred at all to Yarway products was the following: Q: Okay. Do you believe you were exposed to asbestos in any way as a result of working on equipment manufactured by Yarway? A: Yes. Q: Why do you believe you were exposed to asbestos from -- A: The gasket material. (Dep. of William T. Nelson at 915, Def.'s Ex. B). Defendant argues that, although he indicated that he believed he was exposed to Yarway asbestos, Plaintiff in no way described Yarway products or said that any dust came off of them.
However, Plaintiff did testify as to working with Yarway gaskets, and he testified as to the dust that would come off of working with such gaskets. Plaintiff identified Yarway as the manufacturer of asbestos-containing gasket material that Plaintiff had to remove from Yarway's steam and feed flow superheater indicators as part of his work duties. For example, Plaintiff testified: Q: Sir, how did you come to the conclusion that the gaskets contained asbestos? A: It's on the box. Q: And where would you get these replacement gaskets? A: They would be ordered through supply. They would come in as a kit. Q: Do you know who supplied these gaskets?
DEFENSE COUNSEL: Objection, asked and answered. Q: How do you know that Yarway supplied these gaskets? A: Because it would come packaged. It would come packaged with the name Yarway on it. (Dep. of William T. Nelson, Vol. IV, at 928-29, Pl.'s Ex. 1).
Additionally, regarding his contact with gaskets in general, Plaintiff testified about breathing in dust, "under adverse conditions," which he believed contained asbestos "[b]ecause that's what it was." (Dep. of William T. Nelson, Vol. I, at 97-98, Pl.'s Ex. 2).
Plaintiff further recalled repairing Yarway flow-through indicators, using "the thinnest compressed sheet gaskets material we could get our hands on that would not give up under the temperature." (Dep. of Nelson, Vol. IV, at 936, Pl.'s Ex. 1). He knew the material to be asbestos because if any other material were used, "you're putting the boiler at risk." (Id. at 937). He performed work on Yarway equipment "[a]s often as necessary. And it was necessary often." (Id. at 915-16).
Plaintiff has sufficiently identified Defendant as a manufacturer of asbestos-containing products which Plaintiff worked with and around on a frequent basis. The above evidence is sufficient to raise an issue of material fact as to whether Plaintiff was exposed to asbestos attributable to Defendant, and whether such exposure was a substantial causative factor in his development of mesothelioma.
III. CONCLUSION
Under maritime law, Plaintiff's claims are not time-barred, and Plaintiff has produced enough evidence to raise a genuine issue of material fact as to whether he was exposed to asbestos attributable to Yarway, and whether it was a substantial causative factor in his mesothelioma.