Badamo v. Chevron U.S.A. Inc.
| Decision Date | 09 May 2022 |
| Docket Number | 20-cv-5847 (LJL) |
| Citation | 602 F.Supp.3d 646 |
| Parties | Sebastian P. BADAMO, Executor for the Estate of Carlo G. Badamo, Deceased, Plaintiff, v. CHEVRON U.S.A. INC., f/k/a Gulf Oil Corporation, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Meredith Clark, Motley Rice LLC, Mount Pleasant, SC, Nathan D. Finch, Motley Rice, LLC, Washington, DC, Donald Alan Migliori, Motley Rice LLC, Mt. Pleasant, SC, for Plaintiff Carlo G. Badamo.
John E. Herrick, Meredith Clark, Motley Rice LLC, Mount Pleasant, SC, for Plaintiff Sebastian P. Badamo.
James S. Montano, Wilson Elser, Florham Park, NJ, Patrick Ferris Lynott, Harris Beach PLLC, New York, NY, for Defendant Chevron U.S.A. Inc.
Thomas H. Stewart, Daniel L. Jones, Jr., David J. Oberly, I, Sarah Tankersley, Blank Rome LLP, Cincinnati, OH, for Defendant Chiquita Brands International.
Ruthe A. Nepf, Sedgwick, Detert, Moran & Arnold, New York, NY, Eric Stephen Daniel, Robert Burger, Thompson Hine LLP, Cleveland, OH, for Defendant Farrell Lines, Inc.
Plaintiff Sebastian P. Badamo ("Plaintiff"), Executor for the Estate of Carlo G. Badamo ("Badamo"), brings a claim under the Jones Act, 46 U.S.C. § 30104, alleging that Badamo suffered from asbestos-related cancer due to the negligence of defendants Chevron U.S.A. Inc. F/K/A Gulf Oil Corporation ("Chevron"); Chiquita Brands International, Inc. as successor in interest to United Fruit Company ("Chiquita"); Farrell Lines, Inc. F/K/A American South African Lines, individually and as successor in interest to America Export Lines, Inc. ("Farrell Lines"); and National Bulk Carriers, Inc. ("National Bulk Carriers"). Dkt. No. 50. Farrell Lines, Chiquita, and Chevron (collectively "Defendants") each move for summary judgment. Dkt. Nos. 80, 92, 96.
For the following reasons, the motions for summary judgment are denied.
The following facts are undisputed for purposes of these motions except where otherwise indicated.1
In 2008, Badamo filed a lawsuit against multiple shipowner employers, shipbuilders, machinery manufacturers, and distributors, alleging that he suffered from various injuries and diseases due to asbestos exposure aboard vessels during his merchant marine career. Dkt. No. 81 ("Def.’s 56.1") ¶ 9; Dkt. No. 88 ("Pl.’s CS") ¶ 9; Dkt. No. 83-3.2
On July 17, 2017, Badamo underwent a chest X-ray, which showed: Def.’s 56.1 ¶ 2; Pl.’s CS ¶ 2; see also Dkt. No. 83-1 at 2.
On July 21, 2017, Badamo underwent a CT scan of his chest, which showed a seven-centimeter mass in the left lower lobe of the lung that was "highly suspicious for primary lung neoplasm." Def.’s 56.1 ¶ 3; Pl.’s CS ¶ 3; Dkt. No. 83-1 at 5. The CT scan report stated that "[i]nterventional radiology consultation for image guided biopsy of the dominant mass for a definitive tissue diagnosis is recommended." Dkt. No. 83-1 at 5–6.
On July 26, 2017, Badamo met with Madhu S. Gowda, M.D. ("Dr. Gowda") who Plaintiff identifies as Badamo's primary care physician. Def.’s 56.1 ¶ 4; Pl.’s CS ¶ 4. The assessment and plan section of the visit record noted a "[l]arge lung mass in the left lower lobe with multiple small lung nodules in the same lung highly suggestive of advanced lung cancer and a high risk patient with previous history of more than 40-pack-year smoking history and asbestos exposure with pleural [p]laque." Def.’s 56.1 ¶ 4; Pl.’s CS ¶ 4; Dkt. No. 83-1 at 14. The record also stated, "we will arrange for a CT-guided biopsy," "[w]e will get a PET scan," and "[w]e will get oncology consult," among other things. Dkt. No. 83-1 at 14. The record also noted that "[p]atient and his family [were] extensively counseled." Id. The end of the record stated that the "Plan and Recommendations [were] discussed with the patient in detail" and that "Patient's questions were discussed and answered." Id. at 16.
On August 1, 2017, Badamo underwent a PET scan, and the impressions from the scan stated in part: Pl.’s CS ¶ 13; Dkt. No. 90 ("Def.’s 56.1 Reply") ¶ 13; Dkt. No. 89-1 at 29.
David M. Rosenberg, M.D. ("Dr. Rosenberg"), an expert for Defendants, agreed with Plaintiff's counsel that "there was no way that Carlo Badamo could have learned that he had lung cancer unless and until he went to a hospital and had a biopsy done." Pl.’s CS ¶ 16; Def.’s 56.1 Reply ¶ 16; Dkt. No. 89-7 at 45:5–9. Dr. Rosenberg also agreed with Plaintiff's counsel that as of "July 26th and July 27th, no doctor should be telling Mr. Badamo that in fact he has lung cancer without getting the pathology reports back." Pl.’s CS ¶ 15; Def.’s 56.1 Reply ¶ 15; Dkt. No. 89-7 at 50:19–24.
On August 2, 2017, a biopsy of the mass on the lower lobe of the left lung was performed, and the diagnosis was stated to be "adenocarcinoma, with features compatible with lung primary." Def.’s 56.1 ¶ 7; Pl.’s CS ¶ 7; Dkt. No. 83-1 at 17.
On August 9, 2017, Badamo saw Dr. Gowda again for follow-up. Pl.’s CS ¶ 14; Def.’s 56.1 Reply ¶ 14; Dkt. No. 89-1 at 33. Compared to the record from the July 26, 2017 visit, the record from this visit reflects that the diagnosis of "Malignant neoplasm of the left lung/adenoca" was added to the "Patient Active Problem List." Pl.’s CS ¶ 14; Def.’s 56.1 Reply ¶ 14; Dkt. No. 89-1 at 33.
The instant lawsuit was filed on July 28, 2020. Def.’s 56.1 ¶ 1; Pl.’s CS ¶ 1; see also Dkt. No. 1.
Badamo passed away on November 15, 2020. Def.’s 56.1 ¶ 8; Pl.’s CS ¶ 8.
Badamo served in the merchant marines for eleven years from 1944 to 1955. Dkt. No. 98 ("Chevron 56.1") ¶ 11; Dkt. No. 101 ("Pl.’s CS Chevron") ¶ 11. During his eleven years in the merchant marines, Badamo served on various vessels, including four of Chevron's ships—the Gulf Maracaibo, Gulfhorn, Gulfmills, and Gulfswamp. Chevron 56.1 ¶ 12; Pl.’s CS Chevron ¶ 12. The parties dispute how many days Badamo served on these four ships—Defendant asserts that Badamo served for a total of eighty-seven days, Chevron 56.1 ¶ 12, and Plaintiff asserts that he served for a total of eighty-nine days, Pl.’s CS Chevron ¶ 12.
The Court describes the evidence the parties put forth regarding Defendant Chevron.
Badamo declared, under penalty of perjury, that "[a]sbestos-containing products were used throughout the vessels" (defined to be the vessels he sailed on, which were all listed on the previous page and which included the Gulf Maracaibo, Gulfhorn, Gulfmills, and Gulfswamp); that "[d]ust was released from asbestos-containing products aboard these vessels"; that "[a]ll of the workers aboard these vessels breathed in dust from asbestos-products on a daily basis (frequently and regularly)"; that "[t]his exposure occurred from working with and near (in close proximity) asbestos-containing products"; that "[o]n a daily basis (frequently and regularly), [Badamo] and [his] co-workers aboard these vessels breathed dust from asbestos-containing products in the following areas of these vessels"—"Crews Quarters," "Engine Room," "Passage Ways," and "Galley"; and that "[o]n a daily basis (frequently and regularly), [Badamo] and [his] co-workers aboard these vessels breathed dust as a result of working with or near (in close proximity) asbestos-containing products or equipment insulated with asbestos-containing products including": "Pipe Insulation," "Gaskets/Packing," "Block Insulation," "Insulating Cement," "Turbines," "Valves," "Boilers," and "Pumps." Pl.’s CS Chevron ¶ 53; Dkt. No. 106 ("Chevron 56.1 Reply") ¶ 53.
Badamo provided no testimony at his videotaped trial deposition or at his discovery deposition specifically regarding the Gulf Maracaibo, Gulfhorn, Gulfmills, or Gulfswamp. Chevron 56.1 ¶¶ 14, 20; Pl.’s CS Chevron ¶¶ 14, 20. But Badamo testified that "[he] was exposed to asbestos every time [he] went on a ship." Pl.’s CS Chevron ¶¶ 14, 89; Chevron 56.1 Reply ¶ 59; see also Dkt. No. 102-7 at 29:2–3. As an engine room worker, Badamo assisted with the repair and maintenance of engine room equipment. Pl.’s CS Chevron ¶ 55; Chevron 56.1 Reply ¶ 55. During the time frame that Badamo worked in the engine rooms (in the 1940s and 1950s), the steam lines that connected the engine room machinery were insulated with asbestos. Pl.’s CS Chevron ¶ 55; Chevron 56.1 Reply ¶ 55. The working conditions in the engine room resembled a "mild snowstorm" of asbestos insulation. Pl.’s CS Chevron ¶ 55; Chevron 56.1 Reply ¶ 55. It was frequently the case that Badamo and other engine room personnel were disturbing this asbestos insulation, and this usually occurred with pipe insulation. Pl.’s CS Chevron ¶ 55; Chevron 56.1 Reply ¶ 55. Badamo described how he would have to "chip off" the old asbestos insulation and replace it with new insulation. Pl.’s CS Chevron ¶ 55; Chevron 56.1 Reply ¶ 55. Badamo described working with the "rolls and rolls" of asbestos gaskets that he formed by banging them with a ball peen hammer. Pl.’s CS Chevron ¶ 55; Chevron 56.1 Reply ¶ 55. Badamo also cut holes in this asbestos material. Pl.’s CS Chevron ¶ 55; Chevron 56.1 Reply ¶ 55. Removing the old asbestos gaskets was a messy process, and Badamo would chisel and scrape the old asbestos gaskets off and then...
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