Harris v. AC & S, INC.

• Decision Date: 19 December 1995
• Docket Number: No. EV 90-150-C.,EV 90-150-C.
• Citation: 915 F. Supp. 1420
• Parties: Nancy HARRIS, on her own behalf and as the Personal Representative of the Estate of Charles Harris, Plaintiff, v. AC & S, INC., et al., Defendant.
• Court: U.S. District Court — Southern District of Indiana

915 F. Supp. 1420

Nancy HARRIS, on her own behalf and as the Personal Representative of the Estate of Charles Harris, Plaintiff, v. AC & S, INC., et al., Defendant.

No. EV 90-150-C.

United States District Court, S.D. Indiana, Evansville Division.

June 6, 1995.

Order Granting Reconsideration and Directing Final Judgement December 19, 1995.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Edward F. Brennan, Brennan Cates & Constance, Belleville, IL, Stephen Laudig, Indianapolis, IN, Timothy Eble, Charleston, SC, Fred Baker, Ness Motley Loadholt Richardson & Poole, Charleston, SC, Curtis E. Shirley, Cremer & Miller, Indianapolis, IN, for Nancy Johanna Harris.

John C. Cleary, Leboeuf Lamb Greene & MacRae L.L.P., Pittsburgh, PA, for Aluminum Co. of America, Jerry Lee Walker.

James G. McDonald, III, Princeton, IN, Charles Courtney, Jr., Kurowski & Courtney, Swansea, IL, for A.W. Chesterton Co.

Keith A. Kinney, Hill Fulwider McDowell Funk & Matthews, Indianapolis, IN, Knight S. Anderson, Hill Fulwider McDowell Funk & Matthews, Indianapolis, IN, for Anchor Packing Co.

Maxwell Gray, Lowe Gray Steele & Hoffman, Indianapolis, IN, for BASIC Inc.

Robert D. Maas, Jennings & Maas, Carmel, IN, for Empire Ace Insulation Mfg. Corp.

Eric L. Zalud, Benesch Friedlander Coplan & Aronoff, Cincinnati, OH, for Fiberboard Corp. (PABCO) Pittsburgh-Corning Corp.

Dennis F. Cantrell, Bingham Summers Welsh & Spilman, Indianapolis, IN, for Keene Corp., Pittsburgh-Corning Corp., Owens-Illinois Inc.

Robert A. Bunda, Bunda Stutz & Dewitt, Toledo, OH, for Keene Corp., Owens-Illinois Inc.

Peter E. Carlson, Kelley Drye & Warren, Chicago, IL, Debra L. Burns, Bose McKinney & Evans, Indianapolis, IN, George E. Purdy, Bose McKinney & Evans, Indianapolis, IN, for Owens-Corning Fiberglas Corp.

Robin L. Babbitt, Bingham Summers Welsh & Spilman, Indianapolis, IN, Kathy K. Condo, Shaw Reed Smith & McClay, Pittsburgh, PA, for Pittsburgh-Corning Corp.

MEMORANDUM

BROOKS, District Judge.

This matter comes before the Court on several motions to strike evidentiary materials and numerous motions for summary judgment.

Statement of Relevant Facts

Charles Harris was employed at the Aluminum Company of America ("ALCOA") Warrick operations near Newburgh, Indiana, from September 1970 through February 1988. (Verified Affidavit of Nancy Harris, hereinafter "Harris Aff."). Charles Harris worked in ALCOA's Ingot Department as a trucker,¹ laborer, furnace operator and melting attendant. (Harris Aff.; Deposition of Timothy R. McMurtry taken July 7, 1994, at 18, hereinafter "McMurtry Dep. at ____"). The Ingot Department is an area of the ALCOA plant approximately a third of a mile long and a quarter of a mile wide. (McMurtry Dep. at 21). Charles Harris worked the "Dow Rotation" shift (seven days straight eight hour work days followed by two days off, then switch shifts and repeat), until the last six to eight months of his employ when he worked twelve hour shifts. (Harris Aff.).

Nancy Johanna Harris, the wife of Charles Harris, alleges that while employed as a furnace operator at ALCOA, Mr. Harris was exposed to dust from asbestos and asbestos-containing products mined, manufactured, processed, imported, converted, compounded, or sold by Defendants. Ms. Harris alleges such exposure caused Charles Harris' fatal mesothelioma. (Complaint, ¶¶ 5 and 8).

Product Identification Witnesses

Tim McMurtry was Charles Harris' co-worker and co-furnace operator for approximately sixteen years. McMurtry worked in the Ingot Department on the same shift as Charles Harris for Harris' entire ALCOA tenure. (McMurtry Dep. at 21). As co-furnace operators McMurtry and Harris worked on both the same and separate furnaces. (McMurtry Dep. at 22).

Grant Beauchamp was not an ALCOA employee but was employed as supervisor for various independent contractors during six different steamfitting operations at the ALCOA Warrick operations between 1964 and 1969. (Deposition of Grant Beauchamp taken September 1, 1994, and October 21, 1994, at 9-12, 28, 106, 209, 230, hereinafter "Beauchamp Dep. at ____").² Grant Beauchamp supervised erection of piping and gasket installation, including some asbestos-containing gasket materials throughout the ALCOA Warrick Operations. (Beauchamp Dep. at 13). Grant Beauchamp supervised steamfitting and pipefitting, not the installation of insulation, (Beauchamp Dep. at 214),³ nor did he order the insulation materials. (Beauchamp Dep. at 219). However, Grant Beauchamp was in the habit of keeping records of many of the materials used on the jobsite, including the materials of other contractors. (Beauchamp Dep. at 219, 319). Grant Beauchamp kept his records of other's products somewhat informally: he would find the empty and discarded packaging materials on the floor and note such findings in his personal records. (Beauchamp Dep. at 323, 324). Thus, when questioned, Grant Beauchamp agrees it is possible the materials were not necessarily installed where he might have recorded the packaging materials. (Beauchamp Dep. at 196, 245). In preparation for various asbestos-related lawsuits, Grant Beauchamp executed an affidavit at some point in 1993 naming products he recalled installing or otherwise recalled from his informal product records and at which facilities he recalled those products.⁴ (Beauchamp Dep. at 54-61, 93).

"Very little" of Grant Beauchamp's work at ALCOA was actually conducted in the Ingot Department; his work there was limited to overhead heating. (Beauchamp Dep. 113-14), and even that work in the Ingot Department was limited to that "just one time ..." (Beauchamp Dep. at 193). Grant Beauchamp admitted no knowledge regarding whether Charles Harris was actually exposed to any asbestos-containing product. (Beauchamp Dep. at 337). In fact, Grant Beauchamp never knew Charles Harris, (Beauchamp Dep. at 44, 45, 75, 269, 310); Charles Harris did not begin at ALCOA until 1970, Grant Beauchamp's last project was in 1969. (See Id.). During Grant Beauchamp's work periods at ALCOA the Ingot Department was not yet functional; it was only utilized as a storage area. (Beauchamp Dep. at 114).⁵

In discussing whether the pipe insulation at ALCOA could be a significant source of asbestos dust, the pipefitting supervisor noted generally: "If asbestos covering ruptures on the steam lines, if steam lines shake and rattle and they do, they pound, they condensate, it vibrates and shakes the piping and insulation too. That's on the steam lines. Otherwise, if it's not damaged, it doesn't generally get airborne." (Beauchamp Dep. at 346).

Kenny Pate, Jr., is a pipe fitter who participated in projects at the ALCOA Warrick operations. (Deposition of Kenny Pate, Jr. taken February 16, 1995, at 9, hereinafter "Pate Dep. at ___"; Affidavit of Kenny Pate, Jr. executed February 8, 1995, hereinafter "Pate Aff."). In his affidavit Kenny Pate stated he worked in the Ingot Department at ALCOA "above the furnaces on the air lines, steam piping, and cold water lines." (Pate Aff.). Kenny Pate's work involved fitting pipes together, not setting insulation. (Pate Dep. at 9, 153). Nevertheless, Kenny Pate's affidavit speaks of asbestos sheets emitting dust when torn or cut, pipe coverings emitting asbestos dust when removed, and dust created by shredding and tearing of insulation that would occur during application — all of which "was inhaled by the workers in the Ingot Dept." (Pate Aff.). In his deposition, however, Kenny Pate testified that the installation of a new gasket would not emit dust. (Pate Dep. at 200). Like Grant Beauchamp, Kenny Pate never knew Charles Harris. (Pate Dep. at 9, 153).

William Shaw installed coal piping in the ALCOA Warrick operations at some point during 1979. (Affidavit of William Shaw executed December 20, 1994, hereinafter "Shaw Aff."; Deposition of William Shaw taken February 17, 1995, at 100, 102-03, 210, hereinafter "Shaw Dep. at ___"). In his affidavit, William Shaw spoke of asbestos dust emission in the Ingot Department when "sheet gasketing, packings, and blankets ... were cut or torn into the correct sizes or when being removed and replaced. The preformed gaskets would often tear and crumble during application, causing fibers to be released into the air." (Shaw Aff.). During deposition testimony William Shaw was unsure of the exact department of his work but noted it was "in the center, the center of the plant ... It was centrally located and probably halfway up in the plant. It's probably a couple hundred feet." (Shaw Dep. at 103). Most likely he said, second or third floor. (Shaw Dep. at 212). The Ingot Department is not located near this described location. (Beauchamp Dep. at 107, 113). Similar to Grant Beauchamp and Kenny Pate, William Shaw did not know Charlie Harris. (Shaw Dep. at 213).⁶ Accordingly, William Shaw recognizes that without actually knowing Charles Harris he could not identify any products to which Charlie Harris might have been exposed. (Shaw Dep. at 213).

Jerry Walker worked at the ALCOA Warrick operations as a mechanical specifications designer for the Ingot Department furnace rebuild program. (Deposition of Jerry Walker taken March 28, 1995, at 154-55, hereinafter "Walker Dep. at ___"). Mr. Walker did not work in the Ingot Department; his duties entailed drafting plans for furnace rebuild programs. (Walker Dep. at 154-55). Jerry Walker did not personally install any of the Defendant's products, and while he did see the installation of certain materials, he has no specific recollection of what those materials might have been. (Walker Dep. at 77-79). While Jerry Walker testified that it was rather dusty in the Ingot Department, he testified that he did not have independent knowledge as to whether that dust contained asbestos. (Walker Dep. at 81). Although Plaintiff offers his testimony for product identification, Jerry Walker does not claim to have independent knowledge of the products used in the Ingot Department nor of...