Cabasug v. Crane Co.

• Decision Date: 26 November 2013
• Docket Number: Civil No. 12–00313 JMS/BMK.
• Parties: Robert A. CABASUG and Joyce C. Cabasug, Plaintiffs, v. CRANE COMPANY, et al., Defendants.
• Court: U.S. District Court — District of Hawaii

989 F.Supp.2d 1027

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.

Nov. 26, 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, Honolulu, HI, Linda A. Monica, Portsmouth, NH, for Plaintiffs.

Geoffrey M. Davis, Daniel S. Hurwitz, K & L Gates LLP, Los Angeles, CA, Joseph F. Kotowski, III, Lee T. Nakamura, Tom Petrus & Miller LLLC, Steven K. Hisaka, Hisaka Stone Goto Yoshida Cosgrove & Ching, Ewing M. Martin, III, David M. Plona, Mason Martin LLLC, Donald C. Machado, Jr., Law Offices of Donald C. Machado Jr., Leah M. Reyes, Gallagher Kane Amai, Michael F. O'Connor, Ogawa, Lau, Nakamura & Jew, Judy A. Tanaka, Miriah Eve Holden, Richard J. Kowen, Alston Hunt Floyd & Ing, Honolulu, HI, 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, Kyle E. Bjornlund, Lawrence G. Cetrulo, Cetrulo LLP, Boston, MA, James B. Insco, Michael J. Sechler, K & L Gates LLP, Pittsburgh, PA, 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, Douglas G. Wah, Khaled Taqi–Eddin, Foley & Mansfield, PLLP, Oakland, CA, Christopher O. Massenburg, Swetman Baxter Massenburg, LLC, New Orleans, LA, for Defendants.

ORDER ADDRESSING VARIOUS MOTIONS FOR SUMMARY JUDGMENT RAISING ISSUES OF CAUSATION AND THE DUTY TO WARN (DOC. NOS. 674, 676, 678, 683, AND 690)

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 manufactured, sold and/or supplied various products containing asbestosto 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.

Currently before the court are a number of motions raising interrelated issues regarding causation, including (1) what evidence Plaintiffs must present to raise a genuine issue of material fact that each of Defendant's products was a substantial factor in causing Cabasug's injuries; and (2) whether Defendants may be held liable for asbestos containing replacement parts which they did not themselves place into the stream of commerce.

The court previously determined that maritime law applies to this dispute. See Cabasug v. Crane Co., 956 F.Supp.2d 1178 (D.Haw.2013), Doc. No. 657. Applying maritime law, the court joins those courts that have already addressed these issues and finds that (1) on causation, Cabasug must establish, for each Defendant, a substantial exposure for a substantial period of time to a Defendant's product; and (2) on the duty to warn, a Defendant has no duty to warn regarding asbestos-containing replacement parts that it did not manufacture and/or distribute.

II. BACKGROUND

Cabasug worked at PHNS from 1973 through 2006, and held positions as a pipefitter; pipefitter limited; pipefitter journeyman; nuclear inspector, Code 139; General Engineer, Code 365; and Test Engineer and Risk Control. Plaintiffs asserts that he was exposed to asbestos up until 1986 when he was promoted to an office job. See Cabasug, 956 F.Supp.2d at 1180–81.

Prior to this promotion, Cabasug asserts that he was exposed to asbestos within PHNS working on various ships and submarines under repair and inside Building No. 4 (Shop 56). Id. Cabasug asserts that he spent seventy-five percent of his time on ships in dry dock, and explains he was “assigned jobs on these ships that included the repair, fabrication, reinstallation, modification, alteration, and testing of components on the equipment, machinery, and valves.” See, e.g., Doc. No. 677–2, Ametek Ex. 2 at 18. Cabasug recalls working “on a daily basis” with and around a panoply of equipment, machinery, and valves, and recalls seeing the names of Defendants on such products. Id. at 18–19. Cabasug generally explains his work as follows:

When we were doing repair and fabricating, we removed a great deal of equipment that required us to remove and replace the exterior insulation, as well as asbestos gaskets and packing. We removed piping that was integral to turbines, pumps and valves. Most of the piping had insulation on it. As part of my job, I also helped the machinists of Shop 38 by removing interferences so that equipment could be removed or worked on. I worked throughout the ships and submarines. On the surface ships, I mainly worked in the fire rooms and boiler rooms. There was little to no ventilation and no exhaust. Whatever the ship or submarine that I worked on, we worked in very tight spaces with minimal ventilation.

Id. at 19. In total, Cabasug has identified thirty-eight ships and submarines that he worked on at PHNS.¹See Doc. No. 608–2, Ex. A. On January 23, 2012, Cabasug was diagnosed with mesothelioma. Doc. No. 406–6, Pls.' Ex. D. 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:

sold and supplied certain equipment to the United States Navy and [PHNS] and other shipyards, which contained asbestos gaskets and/or packing and asbestos packing and gaskets were sold by said defendants as spare replacement parts with the sale of said equipment and which required asbestos insulation, or required other asbestos containing parts to function properly, and Defendants also sold replacement aftermarket component parts to the Navy for use with their equipment, including asbestos gaskets and packing which were identical to their commercial counterparts.

Doc. No. 661, TAC ¶ 4. The TAC further asserts:

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.

Id. ¶ 7.

On July 25, 2013, the court determined that maritime law, not Hawaii substantive law, applies to this dispute. Cabasug, 956 F.Supp.2d 1178.

From August 28–30, 2013, Cleaver Brooks, Inc. (“Cleaver Brooks”), Ametek, Inc. (“Ametek”), Aurora Pump Company (“Aurora”), and Crane Company (“Crane”) filed Motions for Summary Judgment arguing that they are entitled to summary judgment on the issue of causation (whether based on a substantial factor, replacement part, and/or duty to warn theory).²See Doc. Nos. 674, 676, 678, 690. On August 30, 2013, Plaintiffs filed their Motion for Summary Adjudication on the Duty to Warn Under Maritime Law. Doc. No. 683. On October 4, 2013, Plaintiffs filed an Omnibus Opposition regarding product exposure and causation, Doc. No. 707, and filed Oppositions to specific Motions on October 10–15, 2013. Doc. Nos. 710, 712, 717, 720. On October 15, 2013, Defendants Air & Liquid Systems Corp., Grissom Russell Company, Crane, Cleaver Brooks, Ametek, and Aurora filed Oppositions to Plaintiffs' Motion on the Duty to Warn. Doc. Nos. 716, 719, 721, 726, 727, 729. Replies were filed on October 22, 2013. Doc. Nos. 733–38, 741–47. A hearing was held on November 12, 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...