Chesher v. 3M Co., 3:15–cv–02123–DCN

• Decision Date: 13 February 2017
• Docket Number: No. 3:15–cv–02123–DCN,3:15–cv–02123–DCN
• Citation: 234 F.Supp.3d 693
• Parties: James Wilson CHESHER, and Cheryl Ann Chesher, Plaintiffs, v. 3M COMPANY, et al., Defendants.
• Court: U.S. District Court — District of South Carolina

234 F.Supp.3d 693

James Wilson CHESHER, and Cheryl Ann Chesher, Plaintiffs,

v.3M COMPANY, et al., Defendants.

No. 3:15–cv–02123–DCN

United States District Court, D. South Carolina, Charleston Division.

Signed February 13, 2017

Charles S. Siegel, Gibbs C. Henderson, Jonathan A. George, Peter Andrew Kraus, Robert Walker Humphrey, II, Waters and Kraus LLP, Dallas, TX, John Daniel Kassel, Theile Branham McVey, John D. Kassel Law Firm, Columbia, SC, for Plaintiffs.

David Gaillard Traylor, Jr., Robert O. Meriwether, James B. Glenn, Nelson Mullins Riley and Scarborough, Columbia, SC, David A. Fusco, K& L Gates, Pittsburgh, PA, Neil Joseph MacDonald, MacDonald Law Group LLC, Beltsville, MD, Richard Ashby Farrier, Jr., Christopher Austin Jaros, K& L Gates, Charleston, SC, Ronald A. Charlot, K&L Gates, Charlotte, NC, Daniel Bowman White, Stephanie G. Flynn, Kyle Jason White, Gallivan White and Boyd, Greenville, SC, for Defendants.

ORDER

DAVID C. NORTON, UNITED STATES DISTRICT JUDGE

This matter is before the court on defendant Crane Co.'s ("Crane") motion for summary judgment. For the reasons stated below, the court denies Crane's motion.

I. BACKGROUND

Plaintiff James Wilson Chesher ("Chesher"), a former machinist mate and a commissioned officer in the U.S. Navy, together with his wife, plaintiff Cheryl Ann Chesher (together "plaintiffs"), allege that Chesher's exposure to asbestos throughout his Naval career, caused him to develop mesothelioma

. Compl. ¶¶ 31–34. Chesher served in the Navy from 1965 to 1989. For a significant portion of his career, Chesher conducted or oversaw maintenance and repair work on various types of equipment, including valves and de-aerating feed tanks—large tanks which remove dissolved oxygen from the water before it is sent to the boiler. ECF No. 226–1, Chesher Video Dep. at 21:21–22:17, 26:10–22; ECF No. 226–2, Chesher First Dep. at 147:7–14. Chesher's work on valves required him, or his subordinate, to remove and replace internal packing and bonnet gaskets, which were frequently made from asbestos-containing materials. Chesher Video Dep. at 26:10–22 (describing work on internal packing and bonnet gaskets); ECF No. 226–9, Pantaleoni Dep. at 24:5–26:24, 57:7–25, 63:3–64:22, 72:9–18 (discussing drawings of valves approved for use by the Navy that specified the use of asbestos-containing materials); ECF No. 226–10, Moore Aff. ¶ 17 (noting that Crane drawings specified use of asbestos containing internal packing and bonnet gaskets for certain valves installed on the USS Henderson and USS Fox). This work produced dust which Chesher breathed in. Pantaleoni Dep. at 27:20–28:25, 30:1–30:21. Chesher's work on de-aerating feed tanks required him to access nozzles inside the tank by crawling through a manhole. Chesher First Dep. at 53:11–15. The record contains evidence that this manhole was sealed by an asbestos-containing gasket, Moore Aff. ¶ 19, which needed to be removed and replaced whenever the tank was inspected. ECF No. 226–3, Chesher Second Dep. at 456:13–18.

Crane supplied valves for use on board the ships where Chesher performed, or closely supervised, valve maintenance.¹

ECF No. 226–8, Crane Answers to Interrogs. at 20. Indeed, Chesher recalls working on Crane valves frequently throughout his career. Chesher Second Dep. at 420:4–15. Though Crane did not manufacture asbestos-containing sheet packing or gaskets, these products were installed in Crane's valves at the time they were supplied to the Navy, see Pantaleoni Dep. at 24:5–11, 24:24–25:5 (indicating that Crane would have to provide component parts as specified in design drawings at time of delivery), and Crane was aware that the valves' sheet packing and gaskets would need to be replaced periodically. ECF No. 226–5, Crane Catalog No. 60 at 10–11. Crane is also alleged to be the successor-in-interest to Cochrane Corp. ("Cochrane"), which manufactured the de-aerating feed tanks for two of the ships on which Chesher served. Moore Aff. ¶ 19. Like the gaskets used in Crane valves, the gaskets used to seal the manhole on the de-aerating feed tanks would have been replaced periodically—namely, each time the tanks were opened. Id. ¶ 20.

On April 15, 2015, plaintiffs brought the instant action in the Court of Common Pleas in Richland County, South Carolina, alleging claims for negligence, gross-negligence, negligence per se , conscious pain and suffering, punitive damages, and loss of consortium against a number of defendants. The action was removed to this court on May 22, 2015. On March 4, 2016, Crane filed the instant motion for summary judgment. ECF No. 187. Plaintiffs filed a response on April 4, 2016, ECF No. 226, and Crane filed a reply on April 14, 2016. ECF No. 230. The court held a hearing on June 2, 2016, and ordered the parties to conduct supplemental briefing. Plaintiffs filed their supplemental brief on June 3, 2016, ECF No. 248, and Crane filed a response on June 8, 2016. ECF No. 249. The motion is now ripe for the court's review.

II. STANDARD

Summary judgment shall be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505. "[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

"[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2505. When the party moving for summary judgment does not bear the ultimate burden of persuasion at trial, it may discharge its burden by demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-movant must then "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. 2548. The court should view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor. Anderson , 477 U.S. at 255, 106 S.Ct. 2505.

III. DISCUSSION

A. Jurisdiction and Choice of Law

At the outset, the court notes that there is no dispute that court has admiralty jurisdiction over this action. Def.'s Mot. 5–7; Pls.' Resp. 9. Because the Court has admiralty jurisdiction, it must apply maritime law. See E. River S.S. Corp. v. Transamerica Delaval, Inc. , 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) ("With admiralty jurisdiction comes the application of substantive admiralty law."). "Drawn from state and federal sources, the general maritime law is an amalgam of traditional common-law rules, modifications of those rules, and newly created rules." Id. at 864–65, 106 S.Ct. 2295. "The role of state law in maritime cases is significant and complex." Wells v. Liddy , 186 F.3d 505, 524 (4th Cir. 1999). A "fundamental feature of admiralty law" is that "federal admiralty courts sometimes do apply state law." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 546, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995). State law may be used to supplement federal maritime law as long as state law is "compatible with substantive maritime policies" and is not "inconsonant with the substance of federal maritime law." Yamaha Motor Corp., U.S.A. v. Calhoun , 516 U.S. 199, 202, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) ; see also Askew v. Am. Waterways Operators, Inc. , 411 U.S. 325, 341, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973) ("Even though Congress has acted in the admiralty area, state regulation is permissible, absent a clear conflict with the federal law."); Princess Cruises, Inc. v. Gen. Elec. Co. , 143 F.3d 828, 834 (4th Cir. 1998) ("When no federal statute or well-established rule of admiralty exists, admiralty law may look to the common law or to state law, either statutory or decisional, to supply the rule of decision."); Byrd v. Byrd , 657 F.2d 615, 617 (4th Cir. 1981) ("[A]dmiralty law, at times, looks to state law, either statutory or decisional, to supply the rule of decision where there is no admiralty rule on point."). However, "state law may not be applied if it conflicts with, or seeks to materially change, federal maritime law." E.g. , State of Md. Dep't of Natural Res. v. Kellum , 51 F.3d 1220, 1226 (4th Cir. 1995). Thus, the court must apply substantive maritime law supplemented by state law to the extent that it does not conflict with well-established maritime law.

B. Duty to Warn Under Maritime Law

Crane argues that it cannot be held liable for Chesher's injuries because there is no evidence that he was ever exposed to any asbestos-containing products that were manufactured or distributed by Crane. Def.'s Mot. 8. This argument, commonly known as the "bare metal defense," is premised on the assertion that a product manufacturer is not responsible for harms caused by a product it did not manufacture or supply. Products Liability, 3 The Law of Seamen § 31:6 (5th ed.). Plaintiffs contend that, in certain narrow circumstances, the bare metal defense is unavailable and an equipment manufacturer may be held liable for its failure to warn of...