Opinion
Case No. 1:94 CV 11464, 1:98 CV 20002.
February 18, 2000.
MEMORANDUM OF OPINION AND ORDER .
Before the Court are motions for summary judgment filed by each of the following Defendants: Armstrong World Industries Inc. (Doc. No. 70); Westinghouse Electric Corporation (Doc. No. 72); General Electric Company (Doc. No. 73); Combustion Engineering Inc. (Doc. No. 74); Foster Wheeler Company (Doc. No. 75); and Bethlehem Steel Corporation (Doc. No. 77). Additionally, defendant Bethlehem Steel Corporation has filed a motion for partial summary judgment on the issue of successor liability for the alleged tortious conduct of Bethlehem-Fairfield Shipyard Incorporated (Doc. No. 76).
For the foregoing reasons, the motions for summary judgment are each GRANTED.
I.
The instant action is an asbestos lawsuit brought by Plaintiff William Stark who served as a career merchant seaman from May, 1945 until June, 1990 aboard numerous vessels. Working in various crew positions, he asserts that he was continually exposed to asbestos and asbestos-containing products, which resulted in a terminal cancer, mesothelioma. Plaintiff brings his action claiming negligence under the Jones Act, 46 U.S.C. § 688 et seq. and the General Admiralty and Maritime Law whereby the shipowner warrants to crewman to provide a reasonably safe vessel and working conditions.
As Defendants, Plaintiff names the following shipowners: American Mail Lines, American President Lines, LTD, Alaska Steamship company and Matson Navigation Company, Inc., alleging that they negligently maintained each respective vessel in an unsafe, unseaworthy condition.
Additionally, Plaintiff names equipment manufacturers who utilized asbestos as part of or within their products. These equipment manufacturers include Foster Wheeler Company (boilers), Combustion Engineering, Inc. (boilers), General Electric Company (winches and motors), Westinghouse Electric Company (winches, motors, and marine propulsion turbines), Bethlehem Steel Corporation (boilers and motors), and Reliance Electric Company (motors).
Plaintiff also brings claims against various manufacturers of asbestos and asbestos-containing products which were used on the ships which Plaintiff sailed. These Defendants include Armstrong World Industries (insulation); John Crane, Inc. (packaging and gaskets) and Coltec Industries, Inc. (gaskets and packaging). Finally, Plaintiff sues Bethlehem Steel Corporation as the builder of several of the ships on which Mr. Stark sailed. All but three of the equipment and product manufacturing Defendants have moved for summary judgment.
II.
Under Fed.R.Civ.P. 56(c) summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The court is to determine "whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The court views the evidence of record and draws all reasonable inferences in the light most favorable to the nonmoving party. See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir. 1993).
Summary judgment is appropriate if a party who bears the burden of proof at trial does not establish an essential element of their case. Tolton v. American Biodyne, Inc., 48 F.3d 937, 941 (6th Cir. 1995) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). "[T]he 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, at 247-248. In order for there to be a genuine issue for trial, there must be sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id. at 249.
As stated by the Supreme Court:
. . . Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed "to secure the just, speedy and inexpensive determination of every action." [Citations omitted.] . . . Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.Celotex, 477 U.S. at 327.
Having discussed the Rule 56 standard of review, the Court now turns to the merits of each of the Defendant's motions for summary judgment.
III.
Armstrong World Industries. Inc .
In its motion for summary judgment, Armstrong World Industries asserts that Plaintiff has not set forth any evidence to establish that he was exposed to any Armstrong World Industries' products. Indeed, Plaintiff has failed to produce any documentary evidence to show that any Armstrong World Industries' products were present on any of the ships on which Plaintiff sailed.
While Plaintiff attempts to create an issue of material fact, his responsive memorandum does not contain any evidence to support his claims. The record is devoid of any evidence that Plaintiff was substantially exposed to any product manufactured by Armstrong World Industries.
Accordingly, Armstrong World Industries' motion for summary judgment is hereby GRANTED.
CBS Corporation f/k/a Westinghouse Electric Corporation ("Westinghouse")
Plaintiff's claims against Westinghouse cover motors, winches, and marine propulsion turbines supplied by Westinghouse which allegedly contained asbestos, and which Plaintiff allegedly used or was otherwise exposed to while on board ship. Westinghouse files its motion for summary judgement arguing that Plaintiff has failed to identify any asbestos-containing product manufactured or supplied by Westinghouse, to which he was exposed. Westinghouse cites to numerous deposition transcripts wherein Plaintiff admits that he cannot identify where or when or how often he used any Westinghouse product.
In its Reply to Plaintiff's Opposition to Westinghouse's motion for summary judgment, Westinghouse moves to strike certain "late claims" which it alleges Plaintiff has asserted for the first time. In his opposition, Plaintiff does claim asbestos exposure to Westinghouse's marine propulsion turbines ("turbines") which were allegedly present on board three ships on which Plaintiff sailed (SKIDMORE VICTORY, ST. AUGUSTINE VICTORY and HAWAIIAN PLANTER). Westinghouse moves to strike any claims based upon these "previously unidentified Westinghouse products." It maintains that Plaintiff did not previously reveal these claims in response to proper discovery inquiry and never before made any reference to any such Westinghouse turbines, and therefore they should be stricken.
Westinghouse's point is well-taken, since Plaintiff did not specifically identify marine propulsion turbines until his opposition to Westinghouse's motion for summary judgment. But even if this claim is allowed, the result is the same. Plaintiff has not produced competent evidence that he used or was exposed to any asbestos-containing Westinghouse turbine.
Citing Celotex v. Catrett, 477 U.S. 317 (1986), Westinghouse contends that Plaintiff must present evidence that he, at some point, served on at least one ship having an asbestos-containing Westinghouse product and that he had substantial exposure to respirable asbestos fibers as a result. As the record reflects, Plaintiff has not been able to identify on which ships he used Westinghouse equipment, let alone how many times or with what effect. Because evidence demonstrating where and when alleged exposure took place is utterly lacking, no rational trier of fact could conclude that Westinghouse is liable for any part of Plaintiff's injuries.
Accordingly, Westinghouse Electric Corporation's motion for summary judgment is GRANTED.
General Electric Company
General Electric Company ("GE") has moved for summary judgment on the ground that Plaintiff lacks evidence to support an essential element of his case against GE: that any GE product proximately caused the alleged mesothelioma of which Plaintiff complains. Citing Celotex v. Catrett, 477 U.S. 317 (1986), GE maintains this failure renders summary judgment appropriate.
To hold GE liable, Plaintiff bears the burden of proving that a GE product that was in a defective and unreasonably dangerous condition when it left GE's control was a substantial factor in causing his alleged injury. Lohrman v. Pittsburgh Corning Corporation, 782 F.2d 1156, 1162-63 (4th Cir. 1986).
Over the course of four depositions of Mr. Stark, GE maintains that the only pertinent testimony concerning GE involved shipboard winches used for handling cargo. According to Plaintiff, the electric motors on some of those winches were made by GE, while the winch brakes were made by a separate company — Stearns Electric Corporation ("Stearns"). The electric motors and the brakes were separate and distinct components. Plaintiffs allegation concerning these cargo handling winches revolves around dust created by the brakes. According to Plaintiff's testimony, it was one of his duties to inspect the winch brakes once or twice within a six or seven month period. (Stark videotaped Dep., May 21, 1997, p. 32). In connection with this task he would use a blower to blow out the brake dust — "which was really not that big of a deal." (Stark Dep., October 4, 1999, p. 130).
According to Plaintiff's own pathology expert, Dr. Victor Roggli, exposure to brake dust does not cause mesothelioma and has not contributed to the mesothelioma of which Plaintiff complains. (Dr. Roggli Dep., pp. 108-09; 110-11; 119). Based upon this evidence, Plaintiff stipulated to a dismissal of Stearns, the manufacturer of the cargo winch brakes. GE now contends that since its role in connection with the cargo winches was merely to provide the electric motor components, there is no colorable basis for keeping GE in this case in light of the dismissal of the winch brake manufacturer. This Court agrees.
In an effort to preserve his case against GE, Plaintiff contends in his opposition brief that the scope of GE's liability is not limited to its winch motors. Plaintiff now claims that he was exposed to other GE products (GE motors and turbines/engines) aboard the vessels that he sailed. These "other products" were "insulated with asbestos and cannot perform their intended purpose without the foreseeable use of steam pipes insulated with asbestos." (Plaintiff's Opposition at 5).
Plaintiffs contentions fail in several respects. First, there is no mention of these other GE products in Plaintiff's Complaint. Second, Plaintiff's Court ordered status memorandum, submitted April 5, 1999, which specified the factual basis of his claims as to each of the Defendants, did not assert any claim against GE for its turbines/engines. Third, in none of the four depositions taken of Mr. Stark was any reference ever made to any GE product other than cargo winches. Fourth, neither Plaintiff's former co-worker Mark Embrey, nor the dozen or so other co-workers who were deposed, ever made any suggestion of asbestos exposure related to any maritime steam turbine, much less one that had been manufactured by GE. Accordingly, General Electric Company's motion for summary judgment is GRANTED.
Combustion Engineering, Inc .
To satisfy his burden of proof in his claim against Combustion Engineering, Inc. ("CE"), Plaintiff must identify the injury-causing product and the party responsible for that product, and must provide evidence that the product was a substantial factor in causing his alleged injuries. Anjeski v. Acanda Inc., No. 89-1571, 1990 U.S. App. LEXIS 7600, at *11 (6th Cir. 1990). CE maintains that Plaintiff has not identified any asbestos product for which CE is responsible that was a substantial factor in causing Plaintiff's injuries. This Court agrees.
Accordingly, summary judgment in Combustion Engineering, Inc.'s favor is GRANTED.
Foster Wheeler Company
Foster Wheeler Company moves for summary judgment on the basis that Plaintiff has not produced any evidence that he was ever in or near a Foster Wheeler boiler, nor exposed to any internal Foster Wheeler materials that might have contained asbestos.
Foster Wheeler cites to Plaintiff's deposition testimony which establishes that Plaintiff only worked with boilers early in his sailing career, from 1945 to 1947. During that time he served on six different vessels — none of which contained Foster Wheeler boilers. As to subsequent vessels on which he sailed, Foster Wheeler states that it only procured materials inside the boiler, to which Plaintiff was never exposed.
Plaintiff contends that he can place a Foster Wheeler boiler on board a ship on which he sailed. By virtue of records from the American Bureau of Shipping and an affidavit of Mark Embrey (who served together with Plaintiff on the PRESIDENT HARRISON), Plaintiff purports to establish a genuine issue of material fact in contravention of Defendant's motion for summary judgment. However, Foster Wheeler's response unequivocally rebuts Plaintiff's attempts.
Plaintiffs Exhibit A, an American Bureau of Shipping record, which is partially illegible and bears no visible authenticating date, contains an entry for the S/S PRESIDENT HARRISON and lists that the boiler on this vessel was provided by Foster Wheeler. However, Foster Wheeler's uncontroverted evidence to the contrary reveals that the S/S PRESIDENT HARRISON on which Plaintiff and Embrey sailed in 1987-88, Official No. 530139, was powered by a Babcock Wilcox Company boiler, not a Foster Wheeler boiler. See affidavit of Richard F. Silloway and Exhibits attached to Foster Wheeler's Reply.
Plaintiff also attempts to establish Foster Wheeler's liability for asbestos exposure with evidence that crew members on the ships were continuously exposed to asbestos dust, and, particularly, after repair/replacement of boilers and boiler parts. While Foster Wheeler states that the asbestos in its boilers was encased between firebrick and the metal outside casing, thus preventing workplace exposure, Plaintiff disagrees with this assertion. Instead, Plaintiff argues that the exterior of a boiler's steam drums were insulated with asbestos, and that after boilers were repaired or parts replaced, the engine room would be filled with asbestos dust. (Plaintiff's Exhibit B and Embrey Affidavit).
However, as Foster Wheeler points out, a product seller cannot be liable under a products liability theory for something other than its own product. It argues:
Plaintiff would have the jury in this case find that, because a boiler has not purpose unless it is connected to piping to carry its steam or hot water away from the boiler, Foster Wheeler is liable for any and all asbestos-containing products throughout the steamship that relate to the vessel's propulsion or heating systems.
The law does not go that far.
Foster Wheeler Reply at 8.
This Court agrees. Foster Wheeler is only responsible for its own product — not the products that may be attached or connected to it. Plaintiff having failed to set forth evidence establishing that a product produced or distributed by Foster Wheeler was a substantial factor in e causing Plaintiff's injury, summary judgment is hereby GRANTED in favor of Foster Wheeler Corporation.
Bethlehem Steel Corporation
Bethlehem Steel Corporation ("Bethlehem") has filed two motions for summary judgment. It seeks summary judgment on all of Plaintiff's claims against Bethlehem Steel Corporation (Doc. No. 77), and it seeks partial summary judgment on the issue of successor liability for the alleged tortious conduct of Bethlehem-Fairfield Shipyard Incorporated (Doc. No. 76).
The Court will first address Bethlehem's motion for summary judgment on the complaint. Plaintiff asserts two claims against Bethlehem: (1) as a manufacturer of boilers and (2) as the shipbuilder of three vessels upon which Plaintiff sailed (LURLTNE, SANTA MARIAINA, and PRUDENTIAL OCEANJET). As to his first claim against Bethlehem, Plaintiff concedes that Bethlehem did not, in fact, manufacture the boilers for vessels on which Plaintiff sailed. Plaintiff agrees that the evidence shows that the boilers were manufactured by others. See Plaintiff's Opposition at 2. Accordingly, summary judgment with respect to any claims against Bethlehem as a maker of boilers is GRANTED.
As to the second theory of liability asserted by Plaintiff, i.e. Bethlehem's liability as a shipbuilder, Bethlehem asserts that there is no case law that establishes a shipbuilder's liability for injuries proximately caused by asbestos exposure on board the ship. Moreover, Bethlehem contends that the claim must fail because there is absolutely no evidence demonstrating a single negligent act on the part of Bethlehem as a shipbuilder, nor that Bethlehem in any way deviated from any standard of care in the shipbuilding industry at the time that these ships were built (LURLINE — 1932; SANTA MARIANA — 1963; PRUDENTIAL OCEANJET — 1966).
Plaintiff maintains that his testimony alone is enough to establish a genuine issue of material fact with regard to Bethlehem's liability for the design and manufacture of the vessels in question: "it was Mr. Stark's testimony that it was in the nature of the vessels to have `vibration and pounding' which would result in exposed asbestos insulation to `get loose in the air.' (Stark Dep. 24; 15-17, Exhibit A)." In addition, Plaintiff reasserts its strict liability claim against Bethlehem alleging that Bethlehem failed to warn of the dangers inherent in its vessels and committed breach of implied warranty. "When asked if he had ever been given any warnings about the hazards of asbestos, Mr. Stark unequivocally stated that `[n]o warning' had ever been given by any defendant. (Stark Dep. 49:5-19, Exhibit A)." On this basis, Plaintiff maintains Bethlehem must remain in the case. The Court does not agree.
First, with respect to the absence of any case law supporting Plaintiff's theory of liability for shipbuilders, the Court has similarly found no such case law in its own endeavors. Plaintiff asserts that the case of Swogger v. Waterman Steamship Corp., 518 N.Y.S.2d 715 (1987), aff'd, 546 N.Y.S.2d 80, 103 (N.Y.App.Div. 198 9) supports his theory of liability against a shipbuilder.Swogger presented a seaman's wrongful death action under the Jones Act and general maritime law claims against various shipowners for asbestos exposure which allegedly caused mesothelioma. The shipowners brought third party actions seeking indemnity and contribution from various manufacturers and distributors of asbestos insulation, the shipyards which installed these products, and other shipowners. The third party defendants filed motions to dismiss the shipowner's indemnity and contribution claims for lack of admiralty jurisdiction. Denying the motion to dismiss, the court held "that if Swogger could have had a maritime remedy against the various manufacturers and distributors of asbestos insulation products, the shipyards which installed these products, as well as the other shipowners of ships upon which he sailed" then the third party complaints are similarly within admiralty jurisdiction. Id . at 721. Plaintiff relies on Swogger as the foundation for a merchant seaman's claims of negligence and strict liability in admiralty asbestos cases against a shipbuilder such as Bethlehem.
Swogger is readily distinguishable from this case. First, the case was decided upon a motion to dismiss rather than a motion for summary judgment. The evidence had not been fully developed and there was no decision on the merits. The court did not impose liability on the shipyards, it merely allowed the plaintiff to proceed on that theory.
Second, the Swogger Complaint did not allege negligence or strict liability against the shipbuilders in the building, constructing, or designing of the vessels as Mr. Stark is trying to do. Rather, the proposed theory of liability against the shipyards in Swogger was the negligent repair and subsequent conversion of the vessel by installing asbestos products at some point after the ship was constructed. These allegations are altogether different from allegations which stem from the actual building of ships and the applicable standards of care in the industry 34-68 years ago.
The record is devoid of evidence which might convince this Court to be the first to impose liability on a shipbuilder in this context. Accordingly, summary judgment is GRANTED for Bethlehem Steel Corporation as a shipbuilder.
Having dismissed Plaintiff's Complaint as to Bethlehem Steel Corporation, the Court is not compelled to address Bethlehem's second motion for summary judgment, however, it will briefly address the merits. Bethlehem Steel Corporation seeks partial summary judgment strictly on the issue of successor liability for the alleged tortious conduct of Bethlehem-Fairfield Shipyard Incorporated (Doc. No. 76). Specifically, it seeks summary judgment with regard to Plaintiff's allegations of asbestos exposure aboard two particular vessels which Bethlehem allegedly built — the NORTH STAR III and the ST. AUGUSTINE VICTORY.
Bethlehem does not dispute that it built four other ships which are named in Plaintiff's Complaint.
Bethlehem maintains that it did not build these vessels. Rather, the vessels were built by Bethlehem-Fairfield Shipyard Incorporated, a corporate entity distinct and separate from Bethlehem Steel Corporation. Nevertheless, Plaintiff claims that Bethlehem Steel is still liable for torts committed by Bethlehem-Fairfield Shipyard, Inc. as the owner/successor to Bethlehem-Fairfield Shipyard, Inc. Plaintiff cites two Ohio cases which have found that a corporation that purchases the assets of a manufacturer may be held liable for injuries caused by a defective product of the manufacturer: Flaugher, 30 Ohio St.3d 60 (1987) and Neal, 116 Ohio App.3d 272 (1996).
It is also not disputed that Bethlehem Steel Corporation did not manufacture or supply asbestos-containing products to either of these two vessels (the NORTH STAR III and the ST. AUGUSTINE VICTORY).
Notwithstanding, Plaintiff has failed to set forth any evidence to support his claim that Bethlehem Steel is liable for the alleged tortious conduct of Bethlehem-Fairfield Shipyard as a successor-in-interest. Plaintiff has offered no proof to suggest that these two corporations were anything but wholly separate legal entities. The two corporations had separate Articles of Incorporation, were incorporated in different states, had separate subscribers, maintained separate boards of directors, stated separate addresses, designated separate statutory agents, and maintained separate records. Moreover, Plaintiff has produced no evidence that Bethlehem Steel assumed the liabilities and obligations of Bethlehem-Fairfield Shipyard.
Accordingly, Bethlehem Steel Corporation's motion for partial summary judgment is GRANTED.
IV.
In accordance with the foregoing opinion, the motions for summary judgment filed by Armstrong World Industries Inc. (Doc. No. 70); Westinghouse Electric Corporation (Doc. No. 72); General Electric Company (Doc. No. 73); Combustion Engineering Inc. (Doc. No. 74); Foster Wheeler Company (Doc. No. 75); and Bethlehem Steel Corporation (Doc. No. 77) are GRANTED. Additionally, the motion for partial summary judgment filed by Defendant Bethlehem Steel Corporation on the issue of successor liability for the alleged tortious conduct of Bethlehem-Fairfield Shipyard Incorporated (Doc. No. 76) is also GRANTED.
Accordingly, the claims brought by Plaintiff William J. Stark against the aforementioned Defendants are hereby dismissed with prejudice. All cross-claims or third party claims brought against the aforementioned Defendants by any of the shipowner defendants are also dismissed with prejudice.
IT IS SO ORDERED.
JUDGMENT ENTRY .
For the reasons set forth in the Memorandum of Opinion and Order filed contemporaneously with this Judgment Entry, and pursuant to Rule 58 of the Federal Rules of Civil Procedure, IT IS HEREBY ORDERED, ADJUDGED and DECREED that the motions for summary judgment filed by the following Defendants be GRANTED: Armstrong World Industries Inc. (Doc. No. 70); Westinghouse Electric Corporation (Doc. No. 72); General Electric Company (Doc. No. 73); Combustion Engineering Inc. (Doc. No. 74); Foster Wheeler Company (Doc. No. 75); and Bethlehem Steel Corporation (Doc. No. 77). Additionally, Bethlehem Steel Corporation's motion for partial summary judgment is also GRANTED (Doc. No. 76).
It is further ORDERED, ADJUDGED and DECREED that judgment be entered in favor of Defendants on Plaintiff's Complaint. All cross-claims or third party claims brought against the aforementioned Defendants by any of the shipowner are also dismissed with prejudice.
IT IS SO ORDERED.