Faddish v. Pumps

Citation881 F.Supp.2d 1361
Decision Date02 August 2012
Docket NumberCase No. 08–80724–CIV.
PartiesRuth FADDISH individually and as Personal Representative of the Estate of John Faddish, deceased, Plaintiff, v. BUFFALO PUMPS, et al., Defendants.
CourtU.S. District Court — Southern District of Florida

881 F.Supp.2d 1361

Ruth FADDISH individually and as Personal Representative of the Estate of John Faddish, deceased, Plaintiff,
BUFFALO PUMPS, et al., Defendants.

Case No. 08–80724–CIV.

United States District Court,
S.D. Florida.

Aug. 2, 2012.

[881 F.Supp.2d 1363]

Case A. Dam, David Aaron Jagolinzer, The Ferraro Law Firm, P.A., Miami, FL, for Plaintiff.

Kathleen Margaret LaBarge, Susan Jane Cole, Bice Cole Law Firm, Coral Gables, FL, Beranton James Whisenant, Jr., Virginia Easley Johnson, Foley & Mansfield, Helaine S. Goodner, Edward Joy Briscoe, Esther Elisa Galicia, Fowler White Burnett, Rebecca Carrie Kibbe, K & L Gates LLP, M. Stephen Smith, III, Rumberger Kirk & Caldwell, Stuart L. Cohen, Bennett Aiello Cohen & Fried, Melanie Erica Chung, Blaxberg Grayson & Singer, Christopher J.M. Collings, Natalia Medina, Morgan Lewis & Bockius, Miami, FL, David M. Governo, Jeniffer AP Carson, Governo Law Firm LLC, Boston, MA, Evelyn Fletcher Davis, Brenda Godfrey, Hawkins Parnell Thackston & Young LLP, Richard Matthew Lauth, Evert Weathersby Houff–Atlanta, Christopher G. Conley, Evert Weathersby Houff, Atlanta, GA, Tanya Michelle Lawson, Brenda Godfrey, Sedgwick LLP, Fort Lauderdale, FL, Steven A. Edelstein, Thomas F. Schlotzhauer, Bice Cole Law Firm, P.L., Coral Gables, FL, Tracy Edward Tomlin, Nelson Mullins Riley & Scarborough, LLP, Charlotte, NC, John R. Felice, Judith A. Perritano, Pierce Davis & Perritano LLP, Boston, MA, for Defendants.


DANIEL T.K. HURLEY, District Judge.

THIS CAUSE is before the court on motions for summary judgment filed by defendants Warren Pumps, LLC (“Warren Pumps”), Crane Company (“Crane”) and Westinghouse Company (n/k/a CBS Corporation)(“Westinghouse”)[ECF Nos. 105, 108 and 109]. For reasons outlined below, the court has determined to grant the motions.

I. Procedural Background

Defendants Warren Pumps, Crane and Westinghouse made pumps, valves and turbines used in Navy warships. Ruth Faddish, as personal representative of the Estate of her deceased husband, John

[881 F.Supp.2d 1364]

Faddish, filed the above-captioned asbestos case in April, 2008 in Florida state court, alleging that Faddish developed the asbestos related disease of mesothelioma as a result of exposure to the defendants' asbestos-containing products while serving in the United States Navy as a fireman apprentice and fireman aboard the U.S.S. Essex between 1958 to 1961. Plaintiff does not contend that the defendants manufactured or distributed the particular asbestos components and replacement parts to which the decedent was exposed. Rather, she contends that Faddish died as a result of exposure to asbestos released from external insulation and internal gaskets and packing, all of which contained asbestos materials manufactured by third parties, and that defendants are appropriately held liable, under negligence and strict liability claims, for failing to warn of known dangers associated with the intended and foreseeable use of those asbestos materials in conjunction with their original products.

The plaintiff's complaint originally named eighteen defendants. On July 3, 2008, defendant Viad Corporation removed the case to this court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which permits removal of “those actions commenced in state court that expose a federal official to potential civil liability or criminal penalty for an act performed ... under color of office.” Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1427 (11th Cir.1996). On September 3, 2008, the United States Judicial Panel on Multidistrict Litigation entered an order conditionally transferring this case to the Eastern District of Pennsylvania for consolidated pre-trial proceedings as part of In re Asbestos Products Liability Litigation, MDL–875.

In earlier summary judgment proceedings before that tribunal, District Judge Eduardo Robreno denied the defendants' initial motions for summary judgment on the issue of product identification and causation, finding a genuine issue of material fact as to whether Faddish's exposure to the asbestos-containing products at issue was a “substantial contributing factor” to his injuries. Faddish v. CBS Corporation (Westinghouse), 2010 WL 4159238 (E.D.Pa.2010); Faddish v. Warren Pumps, LLC, 2010 WL 4178337 (E.D.Pa.2010); Faddish v. Buffalo Pumps, Inc. (Crane), 2010 WL 3324927 (E.D.Pa.2010). On October 3, 2011, the MDL court remanded the case to this court with Crane, Warren Pumps and Westinghouse as the only remaining defendants.

In their current motions for summary judgment, defendants argue that, notwithstanding evidence of the decedent's exposure to the finished product, they cannot be held liable for injuries caused by asbestos products, such as insulation, gaskets, and packing, that were incorporated into their products or used as replacement parts, but which they did not manufacture or distribute. This “bare metal” defense was also raised in the prior summary judgment proceedings before Judge Robreno, who denied this aspect of defendants' motions without prejudice to renew it before this court on remand.

In opposition to the motions, plaintiff argues that even if Faddish was not exposed to asbestos released from a product manufactured or distributed by Crane, Warren Pumps or Westinghouse, these manufacturers bear responsibility for his injuries because their products originally included asbestos-containing components, or were intended to be used in conjunction with asbestos-containing materials, and it was foreseeable that repair, replacement and maintenance procedures performed by

[881 F.Supp.2d 1365]

Faddish on these products would release harmful asbestos dust.

II. Factual Background1

As a fireman apprentice and then a fireman aboard the Essex, Mr. Faddish was responsible for general maintenance and cleaning in the engine room of the ship. His job duties included wiping dust from the outside of turbines, pumps, general machinery, steam lines and generators. He also performed “instructional maintenance” on the turbines, which were externally insulated, under the supervision of his superiors. This included repacking pumps and replacing gaskets on the pumps. He also cleaned turbine casings three to five times a week and assisted in maintenance of these turbines, including the replacement of gaskets. This work exposed him to airborne asbestos fibers.

This work also brought him into contact with valves, pumps and turbines manufactured by defendants Crane, Warren Pumps and Westinghouse, which products used, and in some cases were originally distributed with, asbestos-containing internal components (gaskets or packing) or external insulation. Any asbestos-containing gaskets and packing originally supplied with the pumps, valves and turbines had been replaced long before Faddish boarded the ship in the late 1950's. Consequently, all of Faddish's asbestos exposure was to replacement parts manufactured by other companies.

It is undisputed that the Navy was the source of specifications which mandated the use of asbestos-containing insulation and internal components in conjunction with the defendants' products. While the defendants knew, based on the Navy's design specifications, that the Navy or its shipbuilder would affix asbestos-containing insulation to some or all of their products aboard the Essex, all defendants supplied their products “bare iron,” i.e. without insulation.

Although the defendants did supply certain warnings with their products, none supplied warnings of the dangers of asbestos inhalation, even though both the Navy and the defendants knew that asbestos posed significant health risks before the Essex was built. Indeed, by 1922, the Navy knew that inhalation of asbestos could cause lung cancer, and by the 1940's had prescribed industrial hygiene measures to prevent or minimize the risk of asbestos-related illness.

In October 2007, approximately forty-six years after he worked on the Essex, Faddish developed mesothelioma, a fatal cancer of the lining of the lung caused by asbestos exposure. He died from this disease on January 26, 2009.

II. Discussion
A. Summary Judgment Standard of Review

Summary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

[881 F.Supp.2d 1366]

party.” Haves v. City of Miami, 52 F.3d 918 (11th Cir.1995). A “mere scintilla” of evidence in support of the nonmoving party will not suffice to overcome a motion for summary judgment. Young v. City of Palm Bay, Fla., 358 F.3d 859 (11th Cir.2004).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Allen v. Tyson Foods, Inc. 121 F.3d 642 (11th Cir.1997). Once the moving party meets its burden of production, the burden shifts to the opposing party to go beyond the pleadings and designate specific facts showing that there is a genuine issue for trial. Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Speculation does not create a genuine issue of act,” id., and “[a] mere scintilla of evidence supporting the opposing party's position will not suffice; a factual dispute is genuine only if the evidence is such a reasonable jury could find in favor of the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505;Brooks v. County Comm'n of Jefferson County, Ala., 446 F.3d 1160, 1162 (11th Cir.2006).

Finally, in assessing whether the movant has met its burden, the court must resolve all ambiguities and draw all reasonable factual inferences from the record...

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