Cabasug v. Crane Co., Civil No. 12–00313 JMS/BMK.

Decision Date25 July 2013
Docket NumberCivil No. 12–00313 JMS/BMK.
Citation956 F.Supp.2d 1178
PartiesRobert A. CABASUG and Joyce C. Cabasug, Plaintiffs, v. CRANE COMPANY, et al., Defendants.
CourtU.S. District Court — District of Hawaii


Amanda W. Halvorson, Alyssa R. Segawa, Diane T. Ono, Gary O. Galiher, Ilana Kananipiliokala Waxman, L. Richard Derobertis, Scott K. Saiki, Galiher Derobertis Ono, John H. Price, Michael A. Ragsdale, Cronin Fried Sekiya Kekina & Fairbanks, 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, Wayne S. Sakamoto, Wayne S. Sakamoto, AAL, ALC, Ewing M. Martin, III, Mason Martin LLLC, Michael F. O'Connor, Ogawa, Lau, Nakamura & Jew, Donald C. Machado, Jr., Law Offices of Donald C. Machado Jr., Leah M. Reyes, Gallagher Kane Amai, Thomas R. Sylvester, Bickerton, Lee, Dang & Sullivan, Stephanie L. Marn, Weinberg Roger & Rosenfeld, Corlis J. Chang, John R. Lacy, Marissa Lei Lin Owens, Goodsill Anderson Quinn & Stifel LLLP, Judy A. Tanaka, Richard J. Kowen, Alston Hunt Floyd & Ing, Honolulu, HI, Brendan J. Tuohy, K & L Gates LLP, William Murray Hake, Nicolas P. Martin, Hake Law, 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, Christopher S. Marks, Sedgwick LLP, Seattle, WA, Timothy Edward Kapshandy, Sidley Austin, LLP, Chicago, IL, 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.




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 against twenty-five Defendants that manufactured, sold and/or supplied various products containing asbestos to the United States Navy. As alleged in the Second Amended Complaint (“SAC”), 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 is Plaintiffs' Motion to Apply the Substantive Law of Hawaii, Doc. No. 406. Plaintiffs argue that Hawaii law, as opposed to admiralty law, applies to this dispute. Based on the following, the court DENIES Plaintiffs' Motion.

A. Factual 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. Doc. No. 406–1, Pls.' Mot. at 2.

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. In total, Cabasug has identified thirty-eight ships and submarines that he worked on at PHNS, see Doc. No. 608–2, Ex. A, and asserts that he spent approximately seventy-five percent of his time on ships in drydock. See Doc. No. 608–3, Ex. 2 at 18.

On January 23, 2012, Cabasug was diagnosed with mesothelioma. Doc. No. 406–6, Pls.' Ex. D.

B. Procedural Background

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 manufacture, sale and/or supply of various products containing asbestos to the United States Navy.

On April 24, 2013, Plaintiffs filed their Motion to Apply the Substantive Law of Hawaii. Doc. No. 406. Defendants filed Oppositions on June 24–25, 2013, Doc. Nos. 608, 609, 610, 611, and Plaintiffs filed Replies on July 2, 2013. Doc. Nos. 613, 615. A hearing was held on July 23, 2013.


The parties dispute whether Hawaii state law or admiralty law applies to Plaintiffs'tort claims stemming from Cabasug's exposure to asbestos while working at the PHNS shipyard.1

Whether admiralty law applies requires Defendants to meet two tests,2 both of which must be met for admiralty law to apply—the location of the wrong ( i.e., the “location test”), and whether the wrong bears a significant relationship to traditional maritime activity ( i.e., the “connection test”). See, e.g., Taghadomi v. United States, 401 F.3d 1080, 1084 (9th Cir.2005). The parties dispute the relevant framework for the second inquiry, the connection test.3

Plaintiffs urge this court to apply the connection test as articulated in Myhran v. Johns–Manville Corp., 741 F.2d 1119 (9th Cir.1984), and other cases in the 1980s that addressed the applicability of admiralty law to shipyard asbestos cases. Myhran determined that although the location test was met where plaintiff was exposed to asbestos products during the repair of vessels floating on navigable waters, the connection test was not met. Myhran came to this conclusion by considering four factors: (1) traditional concepts of the role of admiralty law; (2) the function and role of the parties; (3) the types of vehicles and instrumentalities involved; and (4) the causation and nature of the injury suffered.” Id. at 1121–22 (quoting Owens–Illinois, Inc. v. U.S. Dist. Ct., 698 F.2d 967, 970 (9th Cir.1983) (per curiam)).

In comparison, Defendants argue that the factors considered in Myhran have been displaced by Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). In determining that maritime law applied to flooding of basements on the Chicago River caused by a vessel placing pilings on the shore, Grubart rejected the four-factor test outlined by Myhran and other cases, and instead focused the inquiry on whether (1) the incident has a potentially disruptive impact on maritime commerce; and (2) the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. Id. at 534, 115 S.Ct. 1043.

Thus, at issue is whether Myhran, whose facts closely parallel those presented in this action, governs the admiralty law analysis even though Grubart rejected this framework when presented with different facts. In other words, at issue is whether Myhran is still controlling law or has been overruled by Grubart. To resolve this dispute,the court outlines the development of the admiralty law test, determines whether Myhran informs the court's analysis in light of the current state of the admiralty law test, and then addresses the applicable framework to the facts of this case.

A. Development of the Admiralty Law Test

The traditional test for determining whether admiralty law applied to a tort case was a simple, bright line locality test—if the tort occurred on navigable waters, “admiralty jurisdiction followed; if it did not, admiralty jurisdiction did not exist.” Grubart, 513 U.S. at 531–32, 115 S.Ct. 1043.See also Conner v. Alfa Laval, Inc., 799 F.Supp.2d 455, 461 (E.D.Pa.2011) (asbestos MDL action) (reciting historical development of admiralty law test). This test had limitations—“admiralty courts lacked jurisdiction over, say, a claim following a ship's collision with a pier insofar as it injured the pier, for admiralty law treated the pier as an extension of the land.” Grubart, 513 U.S. at 532, 115 S.Ct. 1043. As a result, in 1948 Congress enacted the Extension of Admiralty Jurisdiction Act, to clarify that admiralty jurisdiction includes “all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” 46 U.S.C.App. § 740 (1948) (current version at 46 U.S.C. § 30101).

After this statutory change, Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), revisited the admiralty law test and rejected that location is the sole criterion for admiralty jurisdiction. Executive Jet involved tort claims stemming from an airplane crash into Lake Erie after it collided with a flock of birds. Although the accident occurred on navigable waters, Executive Jet reasoned that a tort such as an airplane accident is not cognizable in admiralty unless “the wrong bear[s] a significant relationship to traditional maritime activity.” Id. at 268, 93 S.Ct. 493. The Supreme Court subsequently clarified that “the Executive Jet requirement that the wrong have a significant connection with traditional maritime activity is not limited to the aviation context.” Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). Thus, under Executive Jet and Foremost Insurance, the admiralty law test required courts to consider both the location of the wrong ( i.e., the “location test”) and whether the wrong bears a significant relationship to traditional maritime activity ( i.e., the “connection test”).

Executive Jet and Foremost Insurance did not provide much guidance as to how courts should determine whether the connection test was met. As a result, circuits developed various multi-factor tests to analyze this inquiry. The Ninth Circuit adopted four factors: (...

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