Cabasug v. Crane Co.

• Decision Date: 27 December 2013
• Docket Number: Civil No. 12–00313 JMS/BMK.
• Citation: 988 F.Supp.2d 1216
• Parties: Robert A. CABASUG and Joyce C. Cabasug, Plaintiffs, v. CRANE COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

988 F.Supp.2d 1216

Robert A. CABASUG and Joyce C. Cabasug, Plaintiffs,

v.CRANE COMPANY, et al., Defendants.

Civil No. 12–00313 JMS/BMK.

United States District Court,

D. Hawai‘i.

Dec. 27, 2013.

Amanda J. Weston, Allison M. Fujita, Alyssa R. Segawa, Diane T. Ono, Gary O. Galiher, Ilana Kananipiliokala Waxman, L. Richard Derobertis, Scott K. Saiki, Clarisse M. Kobashigawa, Galiher Derobertis Ono, Michael A. Ragsdale, Cronin Fried Sekiya Kekina & Fairbanks, John H. Price, Linda A. Monica, Portsmouth, NH, for Plaintiffs.

Geoffrey M. Davis, Daniel S. Hurwitz, K & L Gates LLP, Los Angeles, CA, James B. Insco, Michael J. Sechler, K & L Gates LLP, Pittsburgh, PA, Brendan J. Tuohy, K & L Gates LLP, Brent M. Karren, Carrie S. Lin, Cooley Manion Jones LLP, San Francisco, CA, Gregory R. Youman, K & L Gates LLP, Craig R. Waklser, Eckert Seamans Cherin & Mellott, LLC, Boston, MA, Lee T. Nakamura, Joseph F. Kotowski, III, Tom Petrus & Miller LLLC, Steven K. Hisaka, Hisaka Stone Goto Yoshida Cosgrove & Ching, Ewing M. Martin, III, David M. Plona, Mason Martin LLLC, Michael F. O'Connor, Ogawa, Lau, Nakamura & Jew, Honolulu, HI, Brady L. Green, Wilbraham Lawler & Buba P.C., Philadelphia, PA, David M. Katzenstein, Ekert Seamans Cherin & Mellott, LLC, Newark, NJ, Robert O. Meriwether, Nelson Mullins Riley & Scarborough LLP, Columbia, SC, for Defendants.

ORDER (A) GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT STRIKING THE AFFIRMATIVE DEFENSES OF (1) LEARNED INTERMEDIARY DOCTRINE; AND (2) THE SOPHISTICATED USER DEFENSE, DOC. NO. 670; AND (B) DENYING DEFENDANT AURORA PUMP COMPANY'S MOTION FOR SUMMARY JUDGMENT RE: SOPHISTICATED PURCHASER DOCTRINE, DOC. NO. 680

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

On June 1, 2012, Plaintiffs Robert and Joyce Cabasug (“Plaintiffs”) filed this action asserting claims for negligence, strict liability, breach of warranty, loss of consortium, and punitive damages based on a failure to warn theory against twenty-five Defendants that allegedly manufactured, sold, and/or supplied various products containing asbestos to the United States Navy. As alleged in the Third Amended Complaint (“TAC”), Robert Cabasug (“Cabasug”) was exposed to asbestos contained in Defendants' products while working as a pipefitter and nuclear engineer at the Pearl Harbor Naval Shipyard (“PHNS”) from 1973 through 2006, causing him to develop mesothelioma and other asbestos-related diseases.

This court has already determined that maritime law applies to this dispute, see Cabasug v. Crane Co., 956 F.Supp.2d 1178 (D.Haw.2013). In their latest set of Motions, Plaintiffs and Defendant Aurora Pump Company (“Aurora”) raise the issue of whether a defendant may assert the affirmative defenses of the sophisticated purchaser and/or the sophisticated user under maritime law. These defenses, if recognized in maritime law, would allow Defendants to argue that they are not liable because the Navy and/or Cabasug was aware of the dangers of asbestos. Based on the following, the court finds that only the sophisticated user defense is cognizable under the facts presented and therefore GRANTS in part and DENIES in part Plaintiffs' Motion for Summary Judgment, and DENIES Aurora's Motion for Summary Judgment.

II. BACKGROUND¹

On June 1, 2012, Plaintiffs filed this action alleging claims for negligence, strict liability, breach of warranty, loss of consortium, and punitive damages against Defendants based on their design, manufacture, sale, and/or supply of various products containing asbestos to the United States Navy. The TAC asserts that:

Defendants and each of them, negligently designed, manufactured, selected materials, assembled, inspected, tested, maintained for sale, marketed, distributed, leased, sold, recommended and delivered the hereinabove described certain asbestos products in such manner so as to cause said asbestos products to be in a defective and unsafe condition, and unfit for use in the way and manner such products are customarily treated, used and employed; and, that said Defendants, and each of them, negligently failed to discover said defects and/or failed to warn and/or adequately test and give adequate warning of known or knowable dangers of asbestos products to users of said products of said defects and dangers and/or failed to find or use a safe substitute insulating material.

Doc. No. 661, TAC ¶ 7.

On August 26, 2013, Plaintiffs filed their Motion for Partial Summary Judgment Striking Defendants' Learned Intermediary and Sophisticated User Defenses. Doc. No. 670. On August 30, 2013, Defendant Aurora Pump Company (“Aurora”) filed its Motion for Summary Judgment regarding the Sophisticated Purchaser Doctrine. Doc. No. 680. Oppositions were filed on September 11, 2013 and November 25, 2013, Doc. Nos. 700, 762, 763, 766, 770, 772, and Replies were filed on December 2, 2013. Doc. Nos. 784–87, 794. A hearing was held on December 23, 2013.

III. STANDARD OF REVIEW

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir.1999).

“A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548);see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir.2004). “When the moving party has carried its burden under Rule 56[(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.' ” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that a party cannot “rest upon the mere allegations or denials of his pleading” in opposing summary judgment).

“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material’ only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir.2008) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348;see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir.2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor” (citations omitted)).

IV. ANALYSIS

Plaintiffs' and Aurora's Motions raise the question of whether maritime law recognizes either the sophisticated user and/or sophisticated purchaser defenses to tort liability. These defenses have been recognized under a variety of circumstances, and courts have at times referred to these terms interchangeably and/or inconsistently. See Mack v. Gen. Elec. Co., 896 F.Supp.2d 333, 339–40 (E.D.Pa.2012). In fact, even some of the parties in this action appeared to confuse and/or conflate the terms “sophisticated user” and “sophisticated purchaser” in their briefing. Thus, to provide clarity, the court begins with a broad outline for the use of these terms in this specific asbestos-related context:

Under the sophisticated user defense, manufacturers or suppliers of a product ( i.e., Defendants) have the burden of demonstrating that the ultimate end-user of the product ( i.e., Cabasug), was a “sophisticated” user of the product. Under such circumstances, a Defendant could not have caused the end-user's injuries if the end-user was already aware or reasonably should have been aware of the dangers of asbestos. In comparison, under the sophisticated purchaser defense, manufacturers or suppliers of a product ( i.e., Defendants) are absolved for liability caused to an ultimate end-user ( i.e., Cabasug) if they establish that they: (1) knew that an intermediary ( i.e., the Navy) was aware of the dangers of asbestos, and (2) reasonably concluded that the intermediary would provide warnings to its employees.

To determine whether Defendants may take benefit from either of these defenses, the court recognizes that maritime law is “[d]rawn from state and federal sources,” and “is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules.” East River S.S. Corp. v. Transamerica Delaval Inc., 476 U.S. 858, 864–65, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (citations omitted); see also Saratoga Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 878, 117 S.Ct. 1783, 138 L.Ed.2d 76 (1997). The court must look to these sources with an eye to determining the prevailing view and which fulfills the primary goals of maritime law. See Pan–Alaska Fisheries, Inc. v. Marine Const. & Design Co., 565 F.2d 1129, 1134 (9th Cir.1977); Mack, 896 F.Supp.2d at 338 (“A court deciding an issue under maritime law should look to—and has discretion to determine and define—the ‘prevailing view’ on land, with an eye toward advancing the primary goals of maritime law.”). These primary goals include to (1) protect...