Walker v. Blackmer Pump Co.

Citation: 367 F. Supp. 3d 360Docket: MDL 875; CIVIL ACTION NO. 16-5349

Court: District Court, E.D. Pennsylvania; February 13, 2019; Federal District Court

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Obediah Walker III filed a lawsuit on February 5, 2014, in state court, claiming that his father, Obediah Walker Jr., developed lung cancer due to exposure to asbestos while serving in the U.S. Navy. The defendants include Ingersoll-Rand Company, Warren Pumps, and Blackmer Pump Co., all alleged to have manufactured or sold asbestos-containing products to the Navy. The case was removed to the U.S. District Court for the Eastern District of Pennsylvania on October 12, 2016, as part of MDL-875. Three motions for summary judgment were filed by the defendants on July 31 and August 1, 2017. The plaintiff responded to these motions on August 31, 2017, and the defendants replied on September 14, 2017. A hearing on the motions was held on February 28, 2018. The court concluded that all three motions for summary judgment from the defendants will be denied.

In 1969, Obediah Walker, Jr. enlisted in the U.S. Navy and served as an electrician on the U.S.S. Plymouth Rock until 1971. The plaintiff alleges that this service exposed him to asbestos due to his work environment. Supervisor James Owens testified that electricians maintained the electrical systems throughout the ship, spending approximately 50% of their time in the engine room, which was typically around 115 degrees Fahrenheit. Much of the machinery in the engine room was insulated, and Owens later learned that this insulation contained asbestos. He could not recall if the insulation had warning labels regarding asbestos. Electricians like Walker assisted machinists with repairs, during which asbestos insulation was often removed, breaking into brittle pieces and potentially releasing harmful fibers. Owens acknowledged the dangers of working in such conditions, confirming that Walker would have been exposed to asbestos while assisting in these tasks. Walker also worked on pumps, which were likely wrapped in asbestos-containing insulation, although Owens did not specify any manufacturers of the pumps on board.

Decedent, a long-time smoker, was diagnosed with mesothelioma in December 2013 and died on March 17, 2014. Post-mortem pathology revealed he actually succumbed to invasive non-small cell carcinoma, not mesothelioma. To investigate potential asbestos exposure while aboard the U.S.S. Plymouth Rock, Plaintiff hired expert Kenneth S. Garza, a Certified Industrial Hygienist. Garza's report concluded that the products in question contained asbestos and that significant airborne asbestos exposure occurred during their installation, removal, and manipulation. He noted that such exposure would affect both workers and bystanders, leading to contamination of clothing. Garza emphasized that airborne asbestos can remain suspended and be re-entrained, posing ongoing risks. He found no evidence of engineering controls, training, or protective measures to mitigate asbestos exposure, highlighting a lack of adherence to recommended industrial hygiene practices.

Asbestos exposure has been extensively documented as a health risk, with significant findings emerging since the 1930s. By 1955, a definitive link between asbestos and lung cancer was established, followed by a similar conclusion regarding mesothelioma in 1965. Dr. Jerrold L. Abraham, a medical expert, reviewed the Decedent's medical history posthumously for litigation purposes. He found that asbestos exposure significantly increases the risk of lung cancer, particularly when combined with cigarette smoking. Importantly, he noted that a diagnosis of asbestosis is not required for asbestos exposure to lead to lung cancer, as these are distinct health outcomes. Dr. Abraham affirmed that the Decedent, Mr. Walker, had a history of both asbestos exposure and smoking, which he determined were substantial contributing factors to the development of Mr. Walker's lung cancer.

Plaintiff alleges that Defendant Ingersoll-Rand Company manufactured a fire pump on the U.S.S. Plymouth Rock, to which Decedent was exposed to asbestos during insulation removal by machinists. The claim references a Synopsis of Machinery and Hull Data for the U.S.S. Fort Snelling, acknowledging that while it pertains to a different ship, it encompasses the U.S.S. Plymouth Rock's class, specifically noting that the fire pump on the U.S.S. LSD 30 (identified as the U.S.S. Plymouth Rock) was manufactured by Ingersoll-Rand. The Synopsis specifies that the fire pump is a turbine-driven centrifugal type. Further support includes an Ingersoll-Rand packing manual indicating that centrifugal fire pumps are to be packed with asbestos, depending on the temperature of the water handled. An instruction manual for boiler feed pumps mentions the need for an "asbestos spacer," although there is no evidence of such a pump on the U.S.S. Plymouth Rock.

Similarly, Plaintiff claims that pumps manufactured by Defendant Warren Pumps aboard the U.S.S. Plymouth Rock exposed Decedent to asbestos during insulation stripping. The claim cites the same Synopsis for support, which identifies specific pumps on the U.S.S. Plymouth Rock that were made by Warren Pumps. Documents reveal that Warren Pumps required steam cylinders on certain pumps to be insulated with materials containing 85% magnesia, typically associated with asbestos. Blueprints indicate that both the bilge and fuel oil tank stripping pumps and emergency feed pumps included asbestos insulation rings. Additionally, invoices demonstrate that Warren Pumps supplied various asbestos-containing components to the Navy for their pumps.

Plaintiff alleges that Defendant Blackmer Pump Co. manufactured a pump on the U.S.S. Plymouth Rock, which exposed Decedent to asbestos when machinists removed insulation in his presence. The claim references the Synopsis of Machinery and Hull Data for the U.S.S. Fort Snelling, indicating that the D.O transfer pump on the U.S.S. Plymouth Rock was made by Blackmer Pump Co. Additionally, an informational packet from Blackmer Pump Co. reveals that their pumps contain "teflon impregnated asbestos" packing and an asbestos gasket. An advertisement from October 1936 does not clarify if the pumps were shipped with these asbestos components pre-installed. 

Plaintiff initiated two state court actions concerning Decedent's asbestos exposure while in the Navy. The first action was filed on February 5, 2014, against fifteen manufacturers, including Blackmer Pump Co., in the Court of Common Pleas of Philadelphia County. Decedent provided a videotaped deposition shortly after the lawsuit was filed, but the defendants did not cross-examine him. He passed away from lung cancer on March 17, 2014, without further deposition. The case was removed to federal court on October 12, 2016. On November 25, 2015, Plaintiff filed a second action against seven new manufacturers, which was also removed to federal court on January 15, 2016; only Viad Corporation remains as a defendant in that case.

Granting summary judgment is considered an extraordinary remedy, applicable when the movant demonstrates no genuine dispute over any material fact and is entitled to judgment as a matter of law, as defined by Fed. R. Civ. P. 56(a). The court assesses whether the evidence from pleadings, depositions, interrogatories, admissions, and affidavits supports this conclusion. A disputed fact is "genuine" if a reasonable jury could potentially favor the non-moving party, and a "material" fact is one that could impact the case's outcome. Once the moving party presents evidence negating material fact issues, the non-moving party must provide specific facts indicating a genuine dispute exists.

The court must believe the non-movant's evidence and draw reasonable inferences in their favor, focusing on whether factual issues warrant trial, rather than resolving those disputes. If no factual issues exist and only one reasonable conclusion is possible, summary judgment should be awarded to the moving party.

In the analysis section, Defendants assert similar arguments in their summary judgment motions: they claim Decedent's testimony is inadmissible hearsay, that no genuine issues of material fact exist regarding their products' contribution to Decedent's lung cancer, and they invoke the "bare-metal defense," arguing their products did not contain asbestos when sold and they aren't liable for asbestos products added later. The Plaintiff counters by asserting the admissibility of Decedent's testimony under the former testimony exception to hearsay, presenting evidence to support that Defendants' products significantly contributed to Decedent's condition, and challenging the applicability of the bare-metal defense. Consequently, Plaintiff seeks to deny Defendants' motions and proceed to trial. The Court will first consider the hearsay argument before addressing the Defendants' claims sequentially.

Decedent's deposition testimony is deemed inadmissible hearsay and cannot be considered for summary judgment purposes, as established in Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009). Defendants assert this claim, arguing that the deposition cannot be introduced at trial. Plaintiff counters that the testimony qualifies under the former testimony exception to the hearsay rule. The Court agrees with Defendants, referencing Federal Rule of Civil Procedure 32, which allows the introduction of a deceased witness's deposition at trial only if it adheres to the Federal Rules of Evidence. Out-of-court statements offered for their truth are generally hearsay and inadmissible due to reliability concerns (Fed. R. Evid. 802).

However, an exception exists under Federal Rule of Evidence 804(b) for depositions if the declarant is unavailable and the opposing party had an opportunity to cross-examine. A deceased declarant is considered unavailable (Fed. R. Evid. 804(a)(4)). The dispute centers on whether Defendants had a chance to cross-examine Decedent during his deposition on February 11, 2014, shortly after the plaintiff filed the lawsuit. The deposition indicated that Decedent, who was in hospice care, exhibited signs of confusion and forgetfulness, which raised concerns about his ability to provide reliable testimony. Defense counsel expressed that they did not have a proper opportunity to cross-examine him before the deposition concluded.

The legal document details a discussion among defense counsels regarding their decision not to cross-examine Mr. Walker, a terminally ill witness. Defense Counsel II indicated that despite an initial plan to question him, it became evident that Mr. Walker was in a poor state and unable to withstand further questioning. Plaintiff's Counsel contended that no one was denied the right to cross-examine, asserting that the decision not to proceed was made voluntarily by the defense, who were aware of the witness's deteriorating condition. Defense Counsel I expressed concern for Mr. Walker's well-being, stating that continuing the deposition would be inhumane and that the witness appeared borderline incompetent. The interplay among the counsels illustrates the defense's difficult position, as they felt compelled to prioritize the witness's health over their legal strategies.

Plaintiff's Counsel later framed the defense's decision as a waiver of the right to cross-examine, arguing that the options presented—meaningless questioning or no questioning—do not constitute a genuine choice. The document references a relevant case, Derewecki v. Penn R.R., where the court allowed deposition testimony to be used despite incomplete cross-examination, emphasizing that sufficient information had already been obtained. The court noted that further questioning would likely yield little benefit, paralleling the current situation with Mr. Walker.

Derewecki is distinguishable from the current case due to the absence of cross-examination by the defendants Ingersoll-Rand, Warren Pumps, and Blackmer Pump Co. In Derewecki, the defendant's counsel had begun cross-examination before the deponent's heart attack, while here, no such questioning occurred. The court in Derewecki noted that the defendant had little to gain from further questioning, unlike the defendants in this case, who needed to establish product identification crucial for the asbestos claims. The Decedent's testimony was critical for determining whether he had encountered the defendants' products, but his declining mental state and external pressures hindered this process.

The involvement of Union Carbide Corporation's counsel in questioning the Decedent is not relevant, as that attorney focused solely on Union Carbide products and lacked the motive to inquire about the other defendants' products. A comparison is made to the Third Circuit's ruling in Haas v. 3M Co., where partial cross-examination was permitted due to all defendants being present, allowing them to object and develop the testimony. However, in the current case, counsel for Ingersoll-Rand, Warren Pumps, and Blackmer Pump did not attend the deposition, missing the chance to object or ask relevant questions.

Consequently, the court concludes that the defendants lacked a meaningful opportunity for cross-examination, thus rendering the Decedent's deposition testimony inadmissible at trial under the hearsay rule's former testimony exception. Therefore, the court will not consider the deposition.

Defendants' motions for summary judgment are denied based on two main arguments they presented. First, they assert that the Plaintiff failed to provide sufficient evidence showing that their products significantly contributed to the Decedent's lung cancer. Second, they claim no liability for asbestos-containing products added to their pumps after sale to the U.S. Navy. The Court finds these arguments unpersuasive.

A critical point in this case is the applicable law, with Defendants advocating for maritime law while the Plaintiff favors Pennsylvania state law. The Court sides with the Defendants, citing the U.S. Constitution and relevant federal statutes that grant federal courts admiralty jurisdiction. To invoke maritime jurisdiction for asbestos claims, two tests must be satisfied: the locality test and the connection test. 

The locality test is met if any asbestos exposure occurred on a vessel in navigable waters, which can include service aboard Navy ships. The connection test requires showing that the asbestos exposure affects maritime commerce and that the defective products are linked to traditional maritime activities. The Court references a precedent indicating that exposure impacting vessel maintenance could disrupt maritime operations, and that defective products essential to vessel functionality relate closely to maritime activities. Thus, the application of maritime law is appropriate for claims involving sea-based Navy workers and products designed for use on vessels, while it does not apply to predominantly land-based Navy work.

Defendants argue for the application of maritime law based on the locality test, which the Court affirms. Plaintiff claims that Decedent developed lung cancer due to exposure to asbestos from Defendants' products while working as an electrician on the U.S.S. Plymouth Rock and other Naval vessels in the Philadelphia Naval Shipyard, confirming that the exposure occurred on navigable waters. The Court also agrees with Defendants' assertion that both prongs of the connection test are met; the Decedent's work on essential ship equipment could disrupt maritime commerce, and the products in question (pumps) are integral to maritime operations. Therefore, maritime law is applicable.

For a plaintiff to succeed under negligence or strict liability theories in an asbestos-related case, they must establish causation, showing both exposure to the defendant's product and that the product was a substantial factor in the resulting injury. Evidence can be direct or circumstantial, but mere minimal exposure is insufficient; substantial exposure is required to draw reasonable inferences about causation. The determination of what constitutes substantiality is typically a question for the fact-finder. 

In relation to Defendant Ingersoll-Rand Company, the Plaintiff has provided sufficient evidence for a reasonable jury to conclude that an Ingersoll-Rand centrifugal fire pump located on the U.S.S. Plymouth Rock significantly contributed to the Decedent's lung cancer and subsequent death.

Plaintiff has presented sufficient evidence for a reasonable jury to determine that the centrifugal fire pump was insulated with asbestos-containing materials. The Ingersoll-Rand Company packing manual indicates that centrifugal pumps designed for water temperatures up to 220 degrees Fahrenheit should use cotton or non-reinforced asbestos, while those for higher temperatures should use reinforced asbestos. Ingersoll-Rand manufactured a centrifugal fire pump used on the U.S.S. Plymouth Rock, suggesting that this fire pump was indeed insulated with asbestos. Testimony from James Owens, Decedent's supervisor, indicates that electricians, including Decedent, worked extensively in the engine room, where the fire pump was located. During maintenance, machinists removed asbestos insulation, releasing asbestos fibers into the air. Ingersoll-Rand's argument that the pump was turbine-driven and not serviced by electricians was rejected by the Court, which acknowledged that Decedent likely experienced asbestos exposure while in the engine room for two years, despite not directly working on the pump.

Regarding Defendant Warren Pumps, the Court found sufficient evidence to conclude that its pumps contributed to Decedent's lung cancer and death. Three types of Warren Pumps were identified on the U.S.S. Plymouth Rock: an emergency feed pump, a main circulating pump, and bilge fuel oil tank stripping pumps. These pumps required asbestos-containing parts and insulation, as demonstrated by documents indicating that steam cylinders on certain pumps should be insulated with materials containing 85% magnesia, typically associated with asbestos. Additionally, blueprints and invoices show that Warren Pumps provided various asbestos-containing components for its pumps. Thus, Plaintiff has established a basis for a jury to find that Decedent was exposed to hazardous asbestos fibers from Warren Pumps’ products.

Defendant Warren Pumps argues for judgment as a matter of law, claiming the Decedent likely never worked on turbine-driven pumps, which do not use electric motors. This argument is rejected, as is the assertion that Plaintiff's claim fails due to the lack of specific identification of Warren Pumps products by Mr. Owens. The court points out that the significant time lapse since the Decedent's service on the U.S.S. Plymouth Rock makes specific identification challenging. Under maritime law, a plaintiff can establish causation through circumstantial evidence, allowing the jury to consider that the Decedent spent a substantial amount of time in the engine room, where asbestos insulation from Warren Pumps products was removed by machinists.

Similarly, for Defendant Blackmer Pump Co., the court finds sufficient evidence for a jury to conclude that exposure to a Blackmer Pump was a substantial factor in causing the Decedent's lung cancer. Evidence includes the identification of a transfer pump manufactured by Blackmer Pump aboard the U.S.S. Plymouth Rock and documentation showing that these pumps contained asbestos parts. Testimony indicates that the Decedent worked extensively in the engine room, reinforcing the circumstantial evidence linking his exposure to Blackmer Pump products to his illness.

Lastly, the court addresses the "bare-metal defense" claimed by the Defendants, which posits that they are not liable for injuries related to asbestos because they only manufactured bare-metal pumps, with any necessary asbestos components added later. The court notes that the Third Circuit has recently examined this defense, suggesting possible limitations on its applicability. The question of whether the Defendants qualify for this defense will also be determined by a jury.

In Air and Liquid Systems Corp. v. DeVries, the plaintiffs claimed their husbands developed cancer and died due to asbestos exposure while serving in the U.S. Navy. The district court granted summary judgment for the defendant manufacturers based on a strict application of the bare-metal defense, which holds that manufacturers of bare-metal products are not liable for injuries caused by later-added asbestos materials. The Third Circuit reversed this, establishing that foreseeability is central to the bare-metal defense. A manufacturer can be liable if it should have reasonably foreseen that its product would be used with asbestos-containing parts, depending on specific circumstances, such as prior knowledge of asbestos hazards or if the product was designed to require such parts.

Regarding Ingersoll-Rand Company, the company argued it should not be liable for lung cancer as it sold its fire pump as bare metal. However, under the Third Circuit's standard, evidence suggests a reasonable jury could find that Ingersoll-Rand was aware of the hazards of asbestos when it sold the fire pump. Historical data indicates that the Navy recognized asbestos risks as early as 1922, with regulations established by the Walsh-Healy Act in 1951, and by 1955, a clear link between asbestos exposure and lung cancer had been established. Furthermore, there is evidence to support that Ingersoll-Rand knew its fire pump required asbestos insulation to operate effectively.

Plaintiff's response to Defendant Ingersoll-Rand's motion for summary judgment cites an Ingersoll-Rand packing manual for centrifugal pumps, indicating that pumps handling water up to 220 degrees Fahrenheit should use cotton or non-reinforced asbestos packing, while those exceeding 220 degrees Fahrenheit should use reinforced asbestos. The manual also stresses the importance of selecting and installing appropriate packing for optimal pump operation. This suggests that a reasonable jury could conclude that Ingersoll-Rand was aware that its centrifugal fire pump required asbestos insulation. Consequently, genuine issues of material fact exist regarding Ingersoll-Rand's knowledge of asbestos hazards at the time of selling fire pumps to the Navy.

Defendant Warren Pumps invokes the bare-metal defense, claiming no liability for the Decedent’s lung cancer due to not manufacturing or selling asbestos-containing products. However, evidence, including blueprints of their products, indicates the presence of asbestos insulating rings, raising questions about the applicability of the bare-metal defense. Additionally, there is evidence suggesting Warren Pumps knew of asbestos hazards and that its products required asbestos components for proper functionality, as shown by supplied asbestos-containing parts. Thus, issues of material fact persist regarding Warren Pumps' knowledge of asbestos hazards and the necessity of asbestos in its products.

Defendant Blackmer Pump Co. also claims the bare-metal defense, arguing it did not sell asbestos-containing products to the Navy, but the Court disagrees, indicating that similar issues of material fact are present. Consequently, the Court will deny summary judgment for both Warren Pumps and Blackmer Pump Co.

Uncertainty exists regarding whether the pumps sold for the U.S.S. Plymouth Rock contained asbestos. A 1936 advertisement from Blackmer Pump indicated that their pumps had "every desirable feature," while an informational packet referenced "teflon impregnated asbestos" packing and an asbestos gasket in the pumps. This raises a genuine issue of material fact as to whether the pumps were "bare metal" at the time of sale. Regardless, a jury might reasonably conclude that Blackmer Pump was aware of the dangers of asbestos when selling pumps to the Navy and knew that its pumps relied on asbestos-containing components for proper function. Evidence suggests that Blackmer Pump was likely cognizant of asbestos risks during the manufacturing and sale of its transfer pump. Consequently, genuine issues of material fact remain regarding Blackmer Pump Co.'s eligibility for summary judgment, leading the Court to deny motions for summary judgment from Blackmer Pump Co., Ingersoll-Rand Company, and Warren Pumps. Additionally, this case is part of a broader litigation involving Plaintiff Obediah Walker III and his father's alleged asbestos exposure during Navy service, with the second lawsuit filed in 2015 and subsequently consolidated for proceedings due to overlapping legal questions. Defendants currently in the case include Ingersoll-Rand Company, Warren Pumps, and Blackmer Pump Co. The document also outlines the nature of multidistrict litigation, which involves cases with common questions of fact pending in different jurisdictions that can be consolidated for pre-trial activities.

The United States Judicial Panel on Multidistrict Litigation, under 28 U.S.C. 1407, has the authority to determine the district to which cases are sent. In 1991, the panel centralized all personal injury cases related to asbestos products in the Eastern District of Pennsylvania, designated as MDL-875. Currently, the only open motions for summary judgment pertain to Civ. No. 16-5349, while an additional motion in Civ. No. 16-215 will be addressed in a separate opinion. Asbestos, a fibrous mineral utilized in various applications such as insulation and building materials, is associated with health risks, particularly mesothelioma, a cancer linked to asbestos exposure. Mr. Garza, a qualified professional with degrees in Biology and Environmental Science, holds certifications as an Industrial Hygienist and Asbestos Consultant. The text also defines re-entrainment as the process of dust being recirculated into the air stream. Additionally, it mentions that Magnesia 85%, an insulation product, contained up to 15% asbestos fibers. The deposition included nine defense attorneys, although only two are specifically quoted.