United States District Court, N.D. California
GERALDINE HILT, as Wrongful Death Heir, and as Successor-in-Interest to ROBERT HILT, Deceased, and KRISHNA TINDALL, SHERLYN HILT, KIMBERLY CRAWFORD, DARPHINE ROLAND, as Legal Heirs of ROBERT HILT, Deceased, Plaintiffs,
FOSTER WHEELER LLC FKA FOSTER WHEELER CORPORATION, et al., Defendants.
ORDER DENYING FOSTER WHEELER'S MOTION FOR SUMMARY
CHARLES R. BREYER United States District Judge
brought this case to recover damages for harm allegedly
caused by Defendants' asbestos-containing products. In
2014, the Eastern District of Pennsylvania granted summary
judgment in favor of Defendant Foster Wheeler LLC
(“Foster Wheeler”). Order Granting Summary
Judgment (dkt. 48, Ex. A) at 7. All other defendants were
subsequently dismissed through settlements or voluntary
dismissals. Final Judgment (dkt. 26). Plaintiffs appealed the
order granting summary judgment. Notice of Appeal (dkt. 27).
On appeal, the Ninth Circuit reversed the Eastern District of
Pennsylvania and remanded the case to this Court “to
consider any remaining grounds in Foster Wheeler's motion
for summary judgment.” Hilt v. Foster Wheeler,
LLC, 690 Fed.Appx. 482, 483 (9th Cir. Apr. 26, 2017).
Having done so, the Court DENIES Foster Wheeler's motion
for summary judgment, for the reasons discussed below.
1965 and 1972, Decedent Robert Hilt (“Hilt” or
“Decedent”) worked as a laborer and machinist at
Hunters Point Naval Shipyard in San Francisco. See
Plts.' Special Interrogatory Responses (dkt. 48, Ex. B,
attached therein as Ex. B), No. 1. During that time, Hilt
worked aboard a number of different ships, including the
USS Bradley and the USS Constellation.
See id. According to Hilt, he worked “down in
the boiler room” on both ships for at least several
months, within two to three feet of the boilermakers, who
were removing asbestos-containing firebrick and refractory
materials from the boilers. Hilt Depo. Vol. I (dkt. 48, Ex.
C, attached therein as Ex. A) at 42:2-44:2, 47:11-49:20. The
removal of these materials created “lots of dust”
that “floated around quite a bit.” Id.
at 43:1-8. The record indicates that the boilers installed on
the USS Bradley and the USS Constellation,
near which Hilt worked, were Foster Wheeler boilers.
See Plts.' Special Interrogatory Responses, Nos.
1 and 3. The insulation and refractory materials utilized in
Foster Wheeler boilers contained asbestos. See Sworn
Statement of Arthur Christenson (Foster Wheeler's Person
Most Knowledgeable) (dkt. 48, Ex. C, attached therein as Ex.
I) at 143. In 2008, Hilt was diagnosed with malignant
mesothelioma; he passed away two years later as a result of
the disease. See Raybin Decl. (dkt. 48, Ex. C,
attached therein as Ex. K), Ex. 2.
commenced this action in 2011, bringing tort claims to
recover damages against various defendants. See FAC
(dkt. 48, Ex. B, attached therein as Ex. A). Upon the
case's transfer to the Eastern District of Pennsylvania,
Defendant Foster Wheeler moved for summary judgment on
November 5, 2012. See MSJ (dkt. 48, Ex. B). In its
motion, Foster Wheeler asserted two bases on which summary
judgment should be granted. First, Foster Wheeler
argued that Plaintiffs had proffered “no evidence
establishing that Decedent was exposed to asbestos from any
Foster Wheeler product.” Id. at 9.
Second, Foster Wheeler contended that even if
Plaintiffs had provided evidence that Hilt had worked around
Foster Wheeler products, Plaintiffs had not overcome the
“bare metal” defense-that is, they had failed to
“submit evidence that Foster Wheeler manufactured, sold
or supplied the actual asbestos-containing component parts
(e.g., gasket, packing or insulation material) to which
[Hilt] was exposed.” Id. at 12.
their opposition, Plaintiffs noted that
“defendant's motion only raises the issue of
exposure to asbestos-containing component parts for which it
is liable. No other issues are properly before this
Court.” Opp. (dkt. 48, Ex. C) at 2. Among other
materials, Plaintiffs submitted declarations from asbestos
consultant Charles Ay and physician Dr. Daniel Raybin.
See Ay Decl. (dkt. 48, Ex. C, attached therein as
Ex. J); Raybin Decl. Based on his experience and review of
Hilt's deposition testimony, Mr. Ay concluded:
Because the USS Bradley (FF-1041) and USS
Constellation (CVA-64) were relatively new ships when
decedent worked aboard them, not only is it more likely than
not that decedent was exposed to and inhaled respirable
asbestos fibers in concentrations orders of magnitude above
background or ambient levels from asbestos-containing
refractory original to the Foster boilers but, it is
virtually impossible for decedent to have avoided being
exposed to asbestos dust from this original refractory.
Ay Decl. ¶ 36. Based on his medical training,
experience, and review of the record, Dr. Raybin concluded
that “the dust from the asbestos-containing refractory
cement from the Foster boilers that decedent breathed in, as
a result of his work with and around Foster boilers . . .,
was a substantial factor in causing decedent's
asbestos-related disease.” Raybin Decl. ¶ 18.
reply, Foster Wheeler argued that the court should discredit
Mr. Ay's and Dr. Raybin's opinions because both Mr.
Ay and Dr. Raybin lacked personal knowledge, and therefore
had no foundation, to form their opinions. See Reply
(dkt. 48, Ex. D) at 11-14.
Eastern District of Pennsylvania granted summary judgment in
favor of Foster Wheeler. In doing so, the court noted that
Foster Wheeler's motion contained two arguments:
Product Identification / Causation Foster Wheeler
contends that Plaintiff's evidence is insufficient to
establish that any product for which it is responsible caused
Decedent's asbestos-related injury. Defendant has also
submitted objections to Plaintiff's evidence pertaining
to product identification and causation (the declarations and
reports of Charles Ay and Dr. Daniel Raybin).
Bare Metal Defense Foster Wheeler asserts the bare
metal defense, arguing that, under both maritime and
California law, it had no duty to warn about and cannot be
liable for injury arising from any product or component ...