Gorton v. Warren Pumps, LLC
| Docket Number | Civ. Action 1:17-1110 |
| Decision Date | 06 June 2023 |
| Parties | RHONDA J. GORTON, Personal Representative for the Estate of THOMAS D. GORTON, II, and in her own right, Plaintiff, v. Warren Pumps, LLC, Defendant. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Decedent Thomas Gorton (“Mr. Gorton”), the husband of plaintiff Rhonda J. Gorton (“Mrs. Gorton”) developed mesothelioma, allegedly due to his occupational exposure to the asbestos-containing products manufactured by among others, defendant Warren Pumps, LLC (“Warren Pumps”). Mrs. Gorton brought this lawsuit, which was removed to this court, on behalf of Mr. Gorton's estate and in her own right. Mrs. Gorton reached settlement agreements with many of the defendants in the litigation. Warren Pumps is the remaining defendant in this case.
Pending before the court is a motion for summary judgment filed by Warren Pumps. As fully explained in this opinion, the motion for summary judgment will be granted because-based upon the undisputed evidence of record-a trier of fact could not find in Mrs. Gorton's favor with respect to her fraudulent concealment claim and Warren Pumps is entitled to the government contractor defense, which is a defense to all other claims asserted by Mrs. Gorton.
On April 9, 2020, Mrs. Gorton filed the second amended complaint in this case. (ECF No. 422.) She asserts the following claims against Warren Pumps: (1) product liability; (2) breach of implied warranty; (3) negligence; and (4) fraudulent concealment. (Id.) Mrs. Gorton asserts a claim for loss of consortium, which is derivative of the four other claims she asserts against Warren Pumps. (Id.); Boldt v. Taylor, No. CV 2103204, 2022 WL 2803105, at *7 (D.N.J. July 18, 2022). On February 9, 2022, Warren Pumps filed an answer to the second amended complaint. (ECF No. 563.)
On January 6, 2023, Warren Pumps filed the pending motion for summary judgment and material statement of facts. (ECF Nos. 595, 596.) On February 13, 2023, Mrs. Gorton filed a response in opposition to the motion for summary judgment and a responsive statement of material facts. (ECF Nos. 606, 607.) On February 27, 2023, Warren Pumps filed a reply brief and a reply statement of facts. (ECF Nos. 609, 610.) On March 11, 2023, the parties filed the combined concise statement of material facts (“CCSMF”). (ECF No. 611.) The parties each substituted certain exhibits. (ECF Nos. 612, 614.) The motion for summary judgment having been fully briefed is now ripe to be decided by the court.
On October 2, 2012, Mrs. Gorton filed a lawsuit in the Dauphin County Court of Common Pleas against Warren Pumps (and other defendants) alleging that Mr. Gorton contracted a nonmalignant, asbestos-related injury (the “non-malignancy” lawsuit). The non-malignancy lawsuit is venued in the Dauphin County Court of Common Pleas.
(CCSMF (ECF No. 611) ¶ 1.) On May 17, 2017, Mrs. Gorton filed this lawsuit in the Dauphin County Court of Common Pleas, asserting a personal injury claim based upon the allegations that Mr. Gorton contracted mesothelioma as a result of his exposure to asbestos (the “personal injury lawsuit”). (Id. ¶ 2.)
On or about May 22, 2017, Mrs. Gorton via “Certified Mail” mailed the complaint filed in the Dauphin County Court to:
(ECF No. 595-5 at 2.) The “Domestic Return Receipt” indicates that on May 25, 2017, the delivery was at the same address. (ECF No. 595-5 at 2.)
Warren Pump's registered agent was and currently is CT Corporation (“CT Corp.”) at 155 Federal St. Ste. 700, Boston, Massachusetts 02110. (ECF No. 595-6 ¶ 6.) Claims, including asbestos-related injuries, are expected to be served on Warren Pump's registered agent, CT Corp., and typically are served on CT Corp. to ensure that the claim is properly received and defended in the applicable jurisdiction. (ECF No. 5956 ¶ 7.) If a legal pleading for asbestos-related claims is sent to Warren Pumps at 82 Bridges Ave, Warren, Massachusetts, it is forwarded to the appropriate handling attorney for that respective jurisdiction. (ECF No. 595-6 ¶ 8.) Warren Pumps was not aware of any alleged attempt by Mrs. Gorton to mail anything to Warren Pumps until it was shown a certified return receipt with a date stamp of May 25, 2017, which indicated that “D. Evans” signed for a certified mailing. (ECF No. 595-6 ¶ 9.)
Deborah Evans (“Evans”) was a former employee at Warren Pumps from approximately 2016 to 2020. She was hired to perform administrative tasks. (ECF No.595-6 ¶ 4.)
Evans was not: (1) an executive officer, partner or trustee or Warren Pumps; (2) a manager, clerk or other person in charge of any regular place of business or activity of Warren Pumps; or (3) an agent authorized by Warren Pumps in writing to receive service of process on behalf of Warren Pumps. (ECF No. 595-6 ¶ 5.)
On June 23, 2017, the personal injury lawsuit was removed to the United States District Court for the Middle District of Pennsylvania based upon federal officer jurisdiction, pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. (Id. ¶ 3.)
On March 6, 2018, Mr. Gorton passed away. (Id. ¶ 4.) On July 9, 2018, Mrs. Gorton filed an amended complaint in this personal injury lawsuit to substitute Mr. Gorton's estate as a party and assert an action for wrongful death. On April 9, 2020, Mrs. Gorton filed a second amended complaint. (Id. ¶ 5.) On October 6, 2021, Mrs. Gorton filed a motion for entry of default against Warren Pumps, LLC, which was entered by the Clerk of the Court on the same date. On January 7, 2022, the default judgment was vacated. (Id. ¶ 6.) The court ordered Mrs. Gorton to serve Warren Pumps with the second amended complaint on or before January 24, 2022. On January 19, 2022, Mrs. Gorton served the second amended complaint upon Warren Pumps, via CT Corp. (Id. ¶ 7.)
Mr. Gorton was deposed twice with respect to his exposure onboard the USS Blue-once in 2011 as a co-worker in a separate case and once in 2017 with respect to this case. (CCSMF (ECF No. 611) ¶ 13.) Mr. Gorton's coworker onboard the USS Blue, Karl Thompson (“Thompson”), was also deposed with respect to this case. (Id.)
On May 17, 2011, Mr. Gorton testified in connection with a lawsuit filed in Madison County, Illinois, on behalf of Alvin Nall (“Nall”) whom Mr. Gorton met while serving in the United States Navy. (Id. ¶ 14.) Mr. Gorton and Nall attended electrician mate school for eighteen weeks. (Id. ¶ 15.) They learned about working with electricity with respect to electrical motors, controllers, electrical distribution, generators, and other electrical items. (Id.) In late 1959, Mr. Gorton and Nall were assigned to the USS Blue. Id.
1. Generally
From 1959 to 1961, the USS Blue performed ship maneuvers and battle exercises off the coast of California in the Pacific Ocean. (CCSMF (ECF No. 611) ¶ 47.) Mr. Gorton boarded the USS Blue toward the end of 1959. (CCSMF (ECF No. 611) ¶ 44.) Warren Pumps manufactured fire and bilge pumps, emergency feed pumps, and main condenser circulating pumps that were onboard the USS Blue during Mr. Gorton's service. (ECF No. 606-6 at 5.) The pumps manufactured by Warren Pumps onboard the USS Blue utilized braided asbestos packing.[1](ECF No. 606-10 at 7.) Mr. Gorton never saw a warning on any of the equipment in the compartments below deck from the manufacturer with respect to the hazards of asbestos. (ECF No. 595-2 at 116.)
2. Mr. Gorton's Duties as an Electrician Mate
While serving aboard the USS Blue, Mr. Gorton worked as an electrician mate. He worked an eight-hour shift each day maintaining electrical lighting distribution, standing watch on a switchboard in the engine rooms, and maintaining all electrical devices on the ship, including lighting, motors, and generators. (CCSMF (ECF No. 611) at ¶ 16; ECF No. 606-2 at 70.) He stood watch four hours per day and then spent the other four hours of his shift doing repair work on electrical systems on the ship. (CCSMF (ECF No. 611) ¶ 48.) While one electrician mate stood watch for four hours, the other electrician mates carried out their assignments throughout various compartments of the ship. (Id.¶ 17.) There was an electrical shop onboard the USS Blue where the electrician's mates performed a lot of their repair work. (CCSMF (ECF No. 611) ¶ 46.) Mr. Gorton, however, worked in every compartment on the ship. (CCSMF (ECF No. 611) ¶ 49.)
3. Mr. Gorton's Work in the Engine Rooms and Boiler Rooms
It was a regular part of Mr. Gorton's duties to go into the engine room and fire room onboard the USS Blue. (ECF No. 606-2 at 20.) Mr. Gorton and the other electricians spent more time in the engine rooms than the aft boiler room or forward boiler room because the switchboards on which the electricians worked were located in the engine rooms. (ECF No. 606-2 at 75.) Mr. Gorton was in the aft engine room and forward engine room every other day or a couple times per week. (Id. at 75-76.) Mr. Gorton was in the aft boiler room and forward boiler room less than a couple times per week, but more than once a month. The electricians were “[c]onstantly replacing light bulbs” in those rooms because the environment in those rooms was “very harsh on electrical equipment.” (Id. at 76.) In the boiler rooms, Mr. Gorton worked on and around electrical equipment including level lamps, pump motors, and electrical controllers.
(CCSMF (ECF...
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