Rogers v. A.O. Smith Corp.

Decision Date10 May 2022
Docket NumberCIVIL ACTION NO. 19-573
Citation602 F.Supp.3d 748
Parties Susan M. ROGERS, Administratrix of the Estate of William R. Rogers III, deceased, and in her own right, Plaintiff, v. A.O. SMITH CORPORATION, et al., Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

SCHMEHL, District Judge

This asbestos injury case was originally brought by Plaintiffs William R. Rogers, III ("Rogers") and Susan M. Rogers in the Court of Common Pleas of Philadelphia County, then removed by Defendant Huntington Ingalls Industries to this Court on the basis of federal officer removal jurisdiction. See 28 U.S.C. § 1442(a)(1). The case was added to the consolidated asbestos products liability multidistrict litigation (MDL-875) where it was made part of that Court's maritime docket ("MARDOC") for pretrial management. The Plaintiffs subsequently filed an amended complaint naming 65 product manufacturers as Defendants. Following the death of Rogers on August 23, 2019, Susan Rogers, Administratrix of the Estate of William Rogers, was substituted as Plaintiff.

Plaintiff alleges that Rogers developed mesothelioma

as a result of exposure to asbestos-containing products during the course of his employment with the U.S. Navy while serving on the U.S.S. Forrestal (the "Forrestal"), an aircraft carrier commissioned in October, 1955. Plaintiff contends that Rogers was injured due to exposure to asbestos-containing products that the Defendants manufactured, sold, distributed, or installed. Accordingly, Plaintiff asserts claims for negligence, strict liability, punitive damages and loss of consortium.

Following completion of pretrial procedures, Plaintiff filed a Notice of Dismissal as to 46 of the Defendants [ECF 270]. Many of the remaining Defendants filed motions for summary judgment. The MDL Court granted four of these motions as unopposed [ECF 309]. As a result, six summary judgment motions remained pending. These motions were filed by Defendants CBS Corporation/Westinghouse1 , Copes Vulcan, Inc./Electrolux Home Products2 , Aurora Pump Company, General Electric Company, Carrier Corporation and Crane Co. On December 28, 2020, the case was randomly reassigned to the undersigned for "resolution of all remaining dispositive issues." [ECF 311.] The Court will now address the six pending motions for summary judgment.


Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is "material" if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. at 242, 106 S.Ct. 2505 (1986) ; see Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). The mere existence of some disputed facts will not overcome a motion for summary judgment. Am. Eagle Outfitters v. Lyle & Scott Ltd. , 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson , 477 U.S. at 247-48, 106 S.Ct. 2505 ). In undertaking this analysis, the Court must view all facts in the light most favorable to the non-moving party. Scott , 550 U.S. at 380, 127 S.Ct. 1769.

While the moving party bears the initial burden of showing the absence of a genuine dispute of material fact, meeting this obligation shifts the burden to the non-moving party who must "set forth specific facts showing that there is a genuine issue for trial." Anderson , 477 U.S. at 250, 106 S.Ct. 2505.


Unfortunately, Rogers passed away before he could be deposed. As a result, Plaintiff relies on the depositions of three of Rogers’ former shipmates, Myron Chicota ("Chicota"), James Schwanger ("Schwanger") and Mario Esposito ("Esposito"), to support her claim that Rogers was exposed to the Defendants’ asbestos-containing products while aboard the Forrestal.

Rogers served on board the Forrestal from May 9, 1967 through April 16, 1970 as a B Division Boilerman/Boiler Technician. ECF 293-19 at 17, 23. Chicota, testified that he was a B Division yeoman on the Forrestal from 1966-1968. Chicota Dep., ECF 293-1 at 19. As a yeoman, Chicota's main job was to enter the four main engine rooms and two auxiliary rooms on a daily basis to make sure that preventive maintenance was being performed on the all the machinery in those rooms. Id. at 22-24. Chicota also testified that he was responsible for ordering parts for the machinery in the engine rooms, including gaskets, pumps, steam traps, circulating pumps and valves. Id. at 25.

Chicota testified that approximately "once a day" he observed Rogers working in Engine Room 1. Id. at 42. According to Chicota, Rogers’ main job was to "maintain, clean and keep operational all of the equipment based on whether they broke down or if it was preventive maintenance." Id. at 51. Chicota testified that Rogers removed and replaced the packing and gaskets on valves. Id. at 53-56. According to Chicota, the process of removing and replacing the packing and gaskets gave off dust. Id. at 56.

Following a fire on the Forrestal on July 29, 1967, the ship was sent to drydock in Norfolk, Virginia for approximately six months. Id. at 92. While in drydock, the Forrestal underwent major repairs, including the reconditioning of the four engine rooms and the two auxiliary rooms. Id. at 92. Chicota testified that while the ship was in drydock, Rogers "work[ed] on the valves, the steam traps, flow regulators ... pumps, compressors ..." Id. at 93. This work included taking apart valves and removing the packing and gaskets and then repacking the valves and assisting in reinstalling them. Id. Chicota testified that he was directed by the senior master chief to order asbestos packing or asbestos gaskets "almost like every other day." Id. at 64-65.


As the MDL Court has previously held, and as recently recognized by the Supreme Court in Air & Liquid Sys. Corp. v. DeVries , ––– U.S. ––––, 139 S. Ct. 986, 993, 203 L.Ed.2d 373 (2019), maritime law applies to this action because both the locality and connection tests are met given that Rogers’ alleged exposure occurred during his service aboard a Navy vessel. See Conner v. Alfa Laval, Inc. , 799 F. Supp. 2d 455, 463-469 (E.D. Pa. 2011).

To prevail on her negligence and strict liability claims under maritime law, Plaintiff must demonstrate that Rogers’ injuries were caused by exposure to asbestos that was attributable to each defendant's conduct. Lindstrom v. A-C Prod. Liab. Tr. , 424 F.3d 488, 492 (6th Cir. 2005), abrogated on other grounds by DeVries , 139 S.Ct. 986.

In order to establish causation for an asbestos claim under maritime law, a plaintiff must show, for each defendant, that "(1) he was exposed to the defendant's product, and (2) the product was a substantial factor in causing the injury he suffered." Lindstrom , 424 F.3d at 492 citing Stark v. Armstrong World Indus., Inc. , 21 F. App'x 371, 375 (6th Cir. 2001). The MDL Court has also noted that, in light of its holding in Conner , there is also a requirement (implicit in the test set forth in Lindstrom and Stark ) that a plaintiff show that (3) the defendant manufactured or distributed the asbestos-containing product to which exposure is alleged. Abbay v. Armstrong Int'l., Inc. , No. 10-83248, 2012 WL 975837, at *1 n.1 (E.D. Pa. Feb. 29, 2012) (Robreno, J.).

Substantial factor causation is determined with respect to each defendant separately. Stark , 21 F. App'x. at 375. In establishing causation, a plaintiff may rely upon direct evidence (such as testimony of the plaintiff or decedent who experienced the exposure, co-worker testimony, or eye-witness testimony) or circumstantial evidence that will support an inference that there was exposure to the defendant's product for some length of time. Id. at 376 (quoting Harbour v. Armstrong World Indus., Inc. , No. 90-1414, 1991 WL 65201, at 4 (6th Cir. April 25, 1991) ).

A mere "minimal exposure" to a defendant's product is insufficient to establish causation. Lindstrom , 424 F.3d at 492. "Likewise, a mere showing that defendant's product was present somewhere at plaintiff's place of work is insufficient." Id. Rather, the plaintiff must show " ‘a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.’ " Id. (quoting Harbour , 1991 WL 65201, at *4 ). The exposure must have been "actual" or "real", but the question of "substantiality" is one of degree normally best left to the fact-finder. Redland Soccer Club, Inc. v. Dep't of Army of U.S. , 55 F.3d 827, 851 (3d Cir. 1995). "Total failure to show that the defect caused or contributed to the accident will foreclose as a matter of law a finding of strict products liability." Stark , 21 F. App'x at 376 (citing Matthews v. Hyster Co., Inc. , 854 F.2d 1166, 1168 (9th Cir. 1988) (citing Restatement (Second) of Torts, § 402A (1965) )).

Each of the moving Defendants argue that Plaintiff has failed to produce enough admissible evidence from which a jury could reasonably conclude that Rogers was exposed to asbestos from their products and, even if Plaintiff was able to prove that Rogers was so exposed, she cannot prove that such exposure was a substantial contributing factor in Rogers’ illness and death In addition, should the court decide that causation has been established, some of the Defendants rely upon the "bare metal" defense to avoid liability on the basis that they have no duty to Plaintiff relating to asbestos-containing replacement parts they did not manufacture or distribute.

Carrier, Inc.

Carrier, Inc. disputes that it manufactured any asbestos-containing products for the Forrestal.

None of the three product identification witnesses Plaintiff produced testified that Rogers worked with Carrier equipment on the Forrestal. Although Chicota testified that there were Carrier air...

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