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Willis v. Buffalo Pumps, Inc.

United States District Court, S.D. California

July 21, 2014

BUFFALO PUMPS INC., et al., Defendants

Decided Date: July 18, 2014.

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[Copyrighted Material Omitted]

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For Viola Willis, Plaintiff: Lance Randall Stewart, LEAD ATTORNEY, Napoli Bern Ripka Shkolnik, Ladera Ranch, CA; William Y. Sung, LEAD ATTORNEY, Napoli Bern Ripka Shkolnik & Associates, LLP, Ladera Ranch, CA.

For Buffalo Pumps, Inc., Defendant: Glen R. Powell, LEAD ATTORNEY, Gordon & Rees, LLP, San Francisco, CA.

For Foster Wheeler Energy Corporation, Defendant, Cross Defendant: Charles Park, LEAD ATTORNEY, Brydon Hugon & Parker, San Francisco, CA.

For John Crane, Inc., Defendant: Andrew S. Russell, Julia A. Gowin, Michael B. Giaquinto, LEAD ATTORNEYS, Hawkins, Parnell, Thackston & Young, LLP, Los Angeles, CA.

For Metalcad Insulation Corporation, Defendant: Bradford J. DeJardin, Courtney Vaudreuil, LEAD ATTORNEYS, McKenna Long & Aldridge LLP, Los Angeles, CA; Mary T. McKelvey, LEAD ATTORNEY, Polsinelli LLP, Los Angeles, CA.

For Warren Pumps, LLC, Defendant, Cross Defendant: John F. Hughes, LEAD ATTORNEY, Law Offices of Gordon & Rees, LLP, San Francisco, CA.

For Yarway Corporation, Defendant: Meghan Phillips, LEAD ATTORNEY, Morgan, Lewis & Bockius, LLP, Los Angeles, CA.

For Crane, Co., Defendant: Stephen P. Farkas, LEAD ATTORNEY, Kirkpatrick & Lockhart Preston Gates Ellis, LLP, Los Angeles, CA; Bradley William Gunning, K & L Gates LLP, Los Angeles, CA; Kathleen L. Beiermeister, Meagher and Geer PLLP, Scottsdale, AZ.

For Crane, Co., Cross Claimant: Bradley William Gunning, K & L Gates LLP, Los Angeles, CA; Kathleen L. Beiermeister, Meagher and Geer PLLP, Scottsdale, AZ.

For John Crane, Inc., Cross Defendant: Michael B. Giaquinto, LEAD ATTORNEY, Hawkins, Parnell, Thackston & Young, LLP, Los Angeles, CA.

For Metalcad Insulation Corporation, Cross Defendant: Courtney Vaudreuil, LEAD ATTORNEY, McKenna Long & Aldridge LLP, Los Angeles, CA.

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BARRY TED MOSKOWITZ, Chief United States District Judge.

Defendant Foster Wheeler Energy Corporation (" Foster Wheeler" ) has moved for Summary Judgment against Plaintiffs. (Doc. 229). For the following reasons, Defendant's motion is granted in part and denied in part.


Plaintiff Donald Willis was allegedly exposed to asbestos while serving in the United States Navy between 1959 and 1980 as a result of his work with asbestos-containing products. (Doc. 291, First Amended Complaint (" FAC" ) ¶ 2; exs. A, C). Defendant allegedly supplied gaskets and refractory products containing asbestos to two of the ships Mr. Willis was assigned to: the USS O'Callahan and the USS Brooke. (Doc. 272-47, Exhibit 3 to Plaintiff's Separate Statement, Federal Report In the Case of Donald Willis re: Naval Career (" Federal Report" ) § 12 at 5-6).

In 2012, Donald Willis was diagnosed with Malignant Mesothelioma - a form of cancer that can be caused by inhalation of asbestos particles. (FAC ¶ 1, 3; ex. B). Donald Willis and his wife, Viola Willis, brought suit alleging a number of claims including negligence, strict liability, false representation, intentional failure to warn, premises owner/contractor liability, and loss of consortium. (FAC ¶ ¶ 20-125).

Donald Willis died from Malignant Mesothelioma on May 5, 2013. (FAC ex. B). Viola Willis subsequently amended the complaint to include a cause of action for wrongful death and was substituted in her deceased husband's place so that she could assert his original claims. (FAC ¶ ¶ 8-10, 86-121).

On October 4, 2013, Defendant moved for summary judgment. (Doc. 229).


A motion for summary judgment will be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91

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L.Ed.2d 202 (1986). The moving party bears the burden of proof and " must produce either evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000) (citing High Tech Gays v. Defense Indus. Sec. Clearance Office, 895 F.2d 563, 574 (9th Cir. 1990)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (" [T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." ).

Further, " [i]f the defendant is moving for summary judgment based on an affirmative defense for which it has the burden of proof, the defendant 'must establish beyond peradventure all of the essential elements of the . . . defense to warrant judgment in [its] favor.'" Stuart v. RadioShack Corp., 259 F.R.D. 200, 202 (N.D. Cal. 2009) (citing Martin v. Alamo Cmty. College Dist., 353 F.3d 409, 412 (5th Cir.2003), Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1177 (9th Cir.2006)); see also Vasquez v. City of Bell Gardens, 938 F.Supp. 1487, 1494 (C.D. Cal. 1996) (citations omitted).

Finally, when ruling on a summary judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)).


Defendant advances several arguments in favor of summary judgment. First, Plaintiff cannot establish that Donald Willis was exposed to asbestos from a Foster Wheeler product. Second, Plaintiff cannot establish that exposure to asbestos from any Foster Wheeler product was a substantial factor causing Donald Willis's disease. Third, the Government Contractor Defense relieves Foster Wheeler of any liability for defective design and failure to warn claims. Fourth, the Sophisticated User Doctrine applies to relieve Foster Wheeler of any duty to warn. Fifth, Plaintiff cannot establish her claim for False Representation. Sixth, Plaintiff cannot establish her claim for Intentional Failure to Warn. Seventh, Plaintiff cannot establish entitlement to punitive damages. The court will consider each of these arguments in turn.[1]

I. Threshold Exposure

Plaintiff's claims require proof that Defendant caused or contributed to Donald Willis's exposure to asbestos. Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 975, 67 Cal.Rptr.2d 16, 941 P.2d 1203 (1997) (" [P]laintiffs [bear] the burden of proof on the issue of exposure to the defendant's product." ); McGonnell v. Kaiser Gypsum Co., 98 Cal.App.4th 1098, 1103, 120 Cal.Rptr.2d 23 (2002) ( " A threshold issue in asbestos litigation is exposure to the defendant's product. The plaintiff bears the burden of proof on this issue. If there has been no exposure, there is no causation." (citations omitted)).

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Defendant advances two arguments regarding threshold exposure. First, Defendant contends there is no evidence that Plaintiff had any initial threshold exposure to an asbestos product supplied by Defendant. Second, Defendant reasons that it cannot be held liable for component parts it did not manufacture, supply, or specify. See O'Neil v. Crane Co., 53 Cal.4th 335, 342, 135 Cal.Rptr.3d 288, 266 P.3d 987 (2012). The Court will address each of these arguments.

First, the Court rejects Defendant's assertion that Plaintiff has produced no evidence that Defendant's products caused Plaintiff's threshold exposure to asbestos. Plaintiff has put forth evidence that Donald Willis served as a Boiler Tender on the USS O'Callahan and USS Brooke and that his work involved operation, repair, and maintenance of boilers and auxiliary equipment. (Federal Report § § 12-13 at 5-6). Mr. Willis testified that the boilers on the O'Callahan and Brooke were made by Defendant Foster Wheeler. (Doc. 272-18, Exhibit YY to Exhibit 1, Deposition of Donald C. Willis (" Willis Depo." ) Vol. I 61:2-25; 90:1-7, Vol. II 202:21-24). There is evidence suggesting that Foster Wheeler provided the original gaskets in the boilers and specified and provided replacement gaskets for the Navy to use. (Willis Depo. Vol. V 593:8-594:1, 595:1-7, 596:13-598:9, 670:7-25; Doc. 272-10, Exhibit R1 to Exhibit 1, " Description, Operation and Maintenance Instructions" at 612).

Mr. Willis also testified that Foster Wheeler personnel supervised the removal and replacement of the original boiler refractory on the Brooke (Willis Depo. Vol. V 640:5-21, 642:8-643:12, 647:8-24, 649:8-15, Vol. VI 725:1-21, 728:7-22, 731:13-732:5; Doc. 272-10, Exhibit R2 to Exhibit 1, Dept. of Navy Correspondence dated November 12, 1965). Additionally, Plaintiff has produced a receipt showing that Defendant invoiced the Navy for a Harbison Walker Lightweight Castable Refractory. (Doc. 272-16, Exhibit WW1 to Exhibit 1, Foster Wheeler Corp. Invoice at USSBROOKE00000508, 510). Finally, Plaintiff has produced evidence that the gaskets originally installed in the boilers, the replacement gaskets specified by Foster Wheeler, and the refractory provided by and replaced by Foster Wheeler all contained asbestos. (Federal Report § 14 at 7-8; Doc. 272-12, Exhibit AA to Exhibit 1, Deposition of Captain William Lowell (" Lowell Depo." ) 94:19-95:13, 120:3-12; Doc. 272-16, Exhibit WW1 to Exhibit 1, Flexitallic Gasket Co. Invoice at USSBROOKE00000325, Garlock Inc. Invoice at USSBROOKE00000354; Doc. 272-17, Exhibit WW2 to Exhibit 1, Foster Wheeler Energy Corp. Invoices at USSO'CALLAHAN00000030, 00000168-00000172, 00000274; Willis Depo. Vol. V 659:4-25; Doc. 272-18, Exhibit ZZ to Exhibit 1, Amato v. Johns-Manville Corp., Harbison-Walker Refractories Answers to Interrogatories, Answer to Interrogatory No. 3 at 13a).

Based on the foregoing, the Court finds that Plaintiff has carried her burden of satisfying the threshold exposure requirement to establish causation. A reasonable jury could conclude that Foster Wheeler provided and/or specified the asbestos-containing products that exposed Mr. Willis to asbestos.

The Court must also consider Defendant's second argument: even if Defendant caused Mr. Willis's exposure to component parts containing asbestos, Defendant is nonetheless not liable for component parts it did not manufacture, sell, supply, or specify. Defendant correctly notes that the California Supreme Court limited third-party liability for asbestos exposure in O'Neil, wherein the Court

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held that " a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer's product unless the defendant's own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products." 53 Cal.4th at 342. The defendants in O'Neil sold pumps and valves to the United States Navy for use on warships. Id. The Court's decision hinged on the particular facts of the case: first, the defendants neither manufactured nor sold asbestos component parts, id.; second, the initial asbestos parts supplied with the pumps and valves were replaced before the plaintiff ...

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