TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW LINDA RICE, Individually and as Personal Representative of the Heirs and Estate of LARRY PRENTIS RICE, Deceased, the Plaintiffs in the above-entitled and numbered cause, and respectfully file and submit this their Response to Defendant Crane Co.'s Motion for Summary Judgment, and, in support thereof, would respectfully show the Court as follows:

SUMMARY OF PLAINTIFFS' POSITION

Plaintiffs' claims against Crane Co. arise from Mr. Rice’s exposure to asbestos while he repaired, serviced, and maintained the Defendant’s pumps and valves at various locations in Georgia, Texas and Florida. As designed, Defendant’s equipment came pre-installed with asbestos gaskets and packing. Crane Co. knew that its pumps and valves would inevitably need to be maintained and knew that the processes of repairing them necessarily involved removing and replacing insulation and removing dry gaskets and packing, and that these activities would release asbestos dust in the air. And Crane Co. knew that exposure to asbestos is hazardous. Consequently, under Texas law, Crane Co. owed a duty to Mr. Rice to warn him of the hazards of asbestos associated with working in, on and around its equipment. Defendant Crane Co.’s failure to provide any warning concerning this known inherent danger associated with its products contributed to cause the death of Mr. Rice. At a minimum, Plaintiffs' evidence raises a genuine issue of material fact concerning Defendant Crane Co’s duty which precludes the granting of summary judgment on Plaintiffs’ negligence and strict liability claims. In addition, Plaintiffs’ evidence also raises an issue of material fact as to Plaintiffs’ claims for gross negligence. The evidence here establishes that Defendant had actual knowledge of the hazards of asbestos back in the 1930s, yet continued to sell its products with asbestos packing and gaskets for the next fifty years without testing, without monitoring, and without warning. Defendant’s Motion should be denied.

FACTUAL BACKGROUND

MR. RICE WAS EXPOSED TO RESPIRABLE ASBESTOS FIBERS WHILE WORKING WITH AND AROUND CRANE CO.’S EQUIPMENT.

Larry Rice was diagnosed with mesothelioma in October of 2004, when he was 55 years old. Deposition of Larry Rice, taken in Rice v. Georgia-Pacific Corporation, No. 2005-01475 (Harris County, Texas, 11^th Judicial District)(May 10, 2005)(attached as Exhibit A), at 8-9. The malignant mesothelioma that resulted in Mr. Rice’s death was caused by occupational exposure to asbestos. See December 13, 2005 Report of Jerrold L. Abraham and Authenticating Affidavit 9 (attached as Exhibit B). When he died on May 13, 2006, Larry Rice left behind his wife, Linda, two children and three grandchildren. Exhibit A, Rice Deposition (May 10, 2005), at 11-12.

Mr. Rice quit high school in the 12^th grade and became an apprentice in the Pipefitters Union in Albany, Georgia, which apprenticeship lasted approximately six months. Id. at 16-17. As an apprentice, Mr. Rice began welding. Id. at 17. His first job lasted three months in 1967 at the Georgia-Pacific Paper Mill. Id. at 18.

On that job, Mr. Rice regularly installed and reassembled pumps and valves, which required going to the warehouse on the job to obtain new asbestos packing, and removing the old packing to replace with the new. Id. On a union job like the paper mill, a welder/pipefitter works next to millwrights, boilermakers, pipefitters, and insulators and is exposed to all of the same materials with which those tradesmen are working. Id. at 20. When the millwrights working around him installed pumps at the site, they would clean the surface where the pump is to be placed, remove the old packing and insulation, and put on the new pumps. Id. at 21-22. When they removed the old seals and cleaned the base with a wire brush or a grinding wheel, they used an air-powered tool to blow the seals loose from the gaskets that sent asbestos dust “flying around everywhere.” Id. at 22. Sometimes, the millwrights would be performing this work ten feet away and, sometimes, they would be right above Mr. Rice and the dust would be falling down on him. Id. at 23. One brand of pumps that Mr. Rice specifically recalled during the three months in 1967, when he worked at the Georgia-Pacific Paper Mill, was Crane. Id.

Mr. Rice specifically recalled seeing millwrights removing and replacing the packing on Crane pumps, which work exposed him to asbestos. Id. at 27. Mr. Rice breathed the asbestos dust that was created during this procedure on many occasions “for three months, the entire time I worked there.” Id. at 28. Mr. Rice even recalled many of the brands of asbestos packing that the millwrights used because he was working so closely to them that he could actually observe the workers removing the packing and gaskets from their packaging. Id.

Mr. Rice further recalled that gaskets were routinely used by millwrights and pipefitters on the Georgia-Pacific Paper Mill job as they worked on the pumps. Id. at 29. These were both sheet gaskets and pre-formed gaskets. Id. The sheet gaskets would have to be cut to fit with a razor-knife. Id. One of Mr. Rice’s jobs at this site was to go to the warehouse and get the new gaskets for use by the tradesmen. Id. Mr. Rice was also required to fashion gaskets to fit by using a hammer to hit the gasket needed to fit over a flange, which produced asbestos dust that Mr. Rice breathed in. Id. at 30-31. Mr. Rice recalled using asbestos gaskets manufactured by a number of different sources. Id. at 31-32.

Pipefitters working next to Mr. Rice also had to grind old gaskets. Id. at 33. The pipefitters would sometimes use a file and sometimes a scraper, but the old gaskets had been compressed for so long that, when the men took the flanges apart, the old gaskets would sometimes have to be filed off and sometimes have to be ground off with a wire brush that would be attached to the grinder. Id. at 33. When the men had to use the grinder, the dust “just flies everywhere.” Id. Mr. Rice was working close enough to the other tradesmen to have breathed that dust, which he believed was asbestos. Id. at 33-34. The pipefitters would have to grind off the gaskets on almost a daily basis. Id. at 34. Mr. Rice also had the responsibility for taking the old insulation materials removed from the equipment down to the dumpster, which again, created dust containing airborne asbestos. Id. at 34-35. This was a job that Mr. Rice did every third or fourth day. Id.

After working at the power plant in Georgia, Mr. Rice worked in Texas at Houston, Power & Light in Rosenberg, id. at 36, in a machine shop outside of Pasadena for Stouffer Chemical Company, id. at 38, and on a refinery for Brown & Root 40 or 50 miles east of Houston. Id. at 39.

Mr. Rice worked approximately two months for Houston, Power & Light at the Parrish Power Plant, where he was exposed to asbestos. Id. at 40-41. He worked there on new pumps manufactured by Crane. Id. at 47-48. He also saw millwrights working on Crane pumps at the Parrish Power Plant. Id. at 48. During the installation of these new pumps, the millwrights would wire-brush the base where the pump would be installed to remove the old asbestos material and, then, install the new pump, placing packing into the new pump at times. Id. at 49. Mr. Rice also remembered watching the millwrights installing new gaskets after removing the old. Id. The workers would use a grinding wheel to grind off an old gasket from a flange. Sometimes they would remove the grinding wheel from the tool and install a wire brush to grind off the old gasket. Id. at 52. The old asbestos gaskets would be placed in a bag and, when it was full, the laborers would take it down to the dumpster. Id. at 50. Mr. Rice further described his exposure to pipe insulation running to and from the pumps. The insulation would start from the first flange off the pump to the piping, all of which was insulated with pre-fabricated insulation sized to fit the various pipes. Id. at 50-51. All of the pipe insulation had to be cut to connect it to the flanges leading to and from the pumps, which process also created asbestos dust. Id. at 51.

In 1974, Mr. Rice moved to Florida. He began working for Florida Power in 1977. Id. at 66. He first worked at the Suwannee River Plant for three months, where he specifically recalled working on pumps manufactured by Crane. Id. at 75.

Mr. Rice also carefully described his work on Crane valves at the Suwannee River Plant: he would disassemble the valves, pull out the old packing, redo the packing, clean up the area where it had been, clean up the flanges with a wire brush and grinder and, then, reassemble the valve. Id. at 82; see also Deposition of Larry Rice, taken in Rice v. Georgia-Pacific Corporation, No. 2005-01475 (Harris County, Texas, 11^th Judicial District)(May 11, 2005)(attached as Exhibit C), at 310-12. He remembered using specific brands of new gaskets to replace the old, and, if the warehouse did not have the right size, he was required to make a gasket himself from sheet gasket material which, in the case of the Suwannee River Plant, had been sitting in the warehouse for years. Exhibit A, Rice Deposition (May 10, 2005), at 82. All of the valve work caused him to come into contact with asbestos dust. Id. at 83. He specifically recalled Crane valves, and testified that he came into contact with asbestos dust as a result of the work he did on Crane valves at the Suwannee River Plant. Id. at 82-84. In fact, Mr. Rice testified that he worked on Crane valves at Florida Power from 1977 through 1984. Exhibit C, Rice Deposition (May 11, 2005), at 312.

Mr. Rice’s co-workers also described his exposure to asbestos as a result of their work on valves manufactured by Crane Co. Calvin Beasley and Larry Rice worked together for years, beginning in the late 1970s when Mr. Rice began working for Florida Power. See Deposition of Calvin Beasley, taken in Rice v. Georgia-Pacific Corporation, No. 2005-01475 (Harris County, Texas, 11^th Judicial District)(February 12, 2007)(attached as Exhibit D), at 6-7. The two men were both certified welder mechanics. Id. at 8. When they worked together at the power plant at Avon Park, they would be assigned to certain valves at certain locations in the plant. Mr. Beasley specifically recalled Crane valves being used on that job. Id. at 13. In particular, he testified about removing old steam valves at Avon Park. Id. at 14. This work exposed Mr. Rice to asbestos. Id. at 16-17. When the men worked on a hot line, they would remove all the lagging, pull out the insulation, cut the valve out, bevel each end where the valve was removed, put the new valve in, replace all of the insulation, and put the lagging back on. Id. at 12. He and Mr. Rice were required to grind and prepare the line to put a new valve in and “the whole time you are doing that, everything is saturated with asbestos dust.” Id. at 17. Mr. Beasley was sure that the valve he recalled working on at Avon Park was a steam valve. Id. at 68-69. And he was sure that the Crane valve had insulation on the valve itself. Id. at 69-70. Both he and Mr. Rice breathed the dust from the insulation that was removed when they changed out the Crane valve. Id. at 139-40.

In addition, Mr. Greg Rupeck testified about his work together with Mr. Rice on valves manufactured by Crane Co. Mr. Rupeck and Mr. Rice began working together in 1977. See Deposition of Greg Rupeck, taken in Rice v. Georgia-Pacific Corporation, No. 2005-01475 (Harris County, Texas, 11^th Judicial District)(February 27, 2007)(attached as Exhibit E), at 10. The two men worked together at a number of plants in the Florida Power system. Id. at 16-17. Mr. Rupeck testified about some of the outages that he and Mr. Rice worked on together at the Crystal River Plant. On the second outage that Mr. Rupeck recalled at Crystal River, in 1986 and 1987, Mr. Rice worked on Crane valves. Id. at 45-46. Mr. Rice removed and replaced the packing on those valves. Id. There would be over 100 valves that would be replaced or repaired during an outage. Id. at 47-48. When a particular valve was repaired, it always involved the changing of packing and gaskets. Id. at 48-49. During an outage, Mr. Rice would have been exposed to asbestos while replacing the gaskets and packing in the valves that were disassembled. Id. at 34, 47.

At the Suwannee River Plant, Mr. Rice was also exposed to valves manufactured by Crane. Id. at 133. The valves were easily identifiable: the word “Crane” was embossed in the casing. Id. “You recognized it as, you know, Crane is Crane, it’s a staple, you know.” Id. at 135.

Mr. Rice did not learn that asbestos could be dangerous until 1980. Exhibit A, Rice Deposition (May 10, 2005), at 69. Prior to that, the workers had no respiratory protection. Id. He never saw a warning or a caution label on the container of an asbestos-containing product. Id. at 95. He would have been close enough to the containers to see a warning had there been one. Id. at 96. Had he ever seen a warning, he would have followed the rules for “wearing the right kind of respirator to protect myself.” Id.

CRANE CO. MANUFACTURED PUMPS AND VALVES THAT THEMSELVES CONTAINED ASBESTOS INSULATION AND THAT CRANE CO. KNEW WOULD HAVE TO BE DISTURBED WHEN REPLACED.

Crane Co. has admitted that, during the years of Mr. Rice’s employment as described above, it manufactured valves and pumps that contained asbestos-containing gaskets, packing, or discs, though it denies manufacturing the asbestos products it installed in its valves and pumps. See Crane Co.’s Supplemental Answers to Plaintiffs’ Master Interrogatories and Request for Production, filed in Malcom Lee Murphy v. Owens-Corning Fiberglas Corporation, No. CC-99-08033-B (County Court at Law No. 2 – Dallas County, Texas)(attached hereto as Exhibit F), at Interrogatory No. 4, pp. 6-7. Defendant marketed and sold its valves and pumps in several states, including all the states in which Mr. Rice worked: Florida, Georgia, and Texas. Id. at Interrogatory No. 17, p. 16.

In addition, from at least 1942, through the early 1980s, Crane Co. offered for sale asbestos-containing sheet packing or gasket material with the name “Cranite” stamped on the product, which material could be used with Defendant’s valve and pump equipment. Id. at Interrogatory No. 4, p. 8. Over the years, Crane Co.’s engineering purchase specifications for Cranite required that the packing was to include as much as 85% chrysotile asbestos fiber. Id. at attached CRTX1234, 1237-1239, and 1240-1244.

Crane Co. has also admitted that it was aware that gaskets, packing, and discs contained in its Crane Co. industrial equipment would need to be replaced from “time-to-time.” Id. at Interrogatory No. 44, p. 33. The company’s own vice president of environmental health and safety has admitted that it was completely foreseeable that the asbestos gaskets and packing contained in Crane Co.’s valves would have to be changed out periodically. See Trial Testimony of Anthony Pantaleoni in Joseph Norris v. Ampco Pittsburgh Corp, No. BC340413 (Superior Court of the State of California for the County of Los Angeles)(September 6, 2006)(transcript attached as Exhibit G), at 1523, 1569-70.

THE HAZARDS OF ASBESTOS WERE WELL KNOWN IN THE SCIENTIFIC AND INDUSTRIAL COMMUNITIES WHEN MR. RICE FIRST WORKED ON ONE OF DEFENDANT’S PUMPS OR VALVES IN 1967.

There can be no dispute that the hazards of asbestos exposure were well known in science and in industry by the time Mr. Rice first went to work as a pipefitters’ apprentice in 1967. Plaintiffs’ expert, Dr. Richard Lemen, has testified many times concerning what was known in the medical and scientific communities concerning the dangers of asbestos in general, and the fact that asbestos causes mesothelioma in particular. See, e.g., Affidavit of Richard A. Lemen, Ph.D., and accompanying “Asbestos Timetables – A Guide for Policymakers” (attached as Exhibit H). In the 1930s, an epidemiological study was published by the British government, reported the following year by the Journal of the American Medical Association, reporting that textile workers exposed to asbestos were at risk for contracting the disease asbestosis and, also, discussing how to remove the dust from the workers’ environment to reduce their exposure. Id. The study recommended ventilation systems, wetting down the work place to suppress dust, educating the workers, enclosing dusty areas, using warning signs and personal protective equipment, including respirators, and creating a work place changing facility, so workers would not take asbestos dust home on their clothing. Id. The study should have been valuable to a company like Crane Co., that sold products that contained asbestos parts needing periodic replacement, so that it would know that asbestos is dangerous and prevent workers from being exposed to asbestos products.

By the 1950s, there were several hundred articles in the medical and scientific literature discussing the hazards of asbestos. Id. In the 1930s, there first began to be an association in the scientific literature between asbestos and cancer. Id. The first links appeared in 1935, when physicians in the United States and in Britain reported seeing lung cancer occurring in their patients with asbestosis. Id. In 1942 and in 1949, the Journal of American Medical Association warned physicians of the possible association between asbestos and lung cancer. Id. In 1955, an epidemiologist, Dr. Richard Doll, published a study in a widely distributed journal in the U.S. concerning textile workers who contracted lung cancer at higher rates than workers not exposed to asbestos. Id. The study established, epidemiologically, a causative link between lung cancer and asbestos exposure. Id.

By the 1940s, the first case reports concerning mesothelioma began to appear in Europe. Id. at 28-30. In 1952, a report of two cases of mesothelioma occurring in Canadian asbestos miners was made. Id. In 1960, Dr. Wagner’s famous South African study establishing a link between asbestos exposure and mesothelioma was published. And in 1965, Dr. Selikoff’s well publicized conference at the New York Academy of Sciences was held, discussing asbestos and mesothelioma. Id.

Two years later, Mr. Rice first began to work around asbestos and Defendant’s valves and pumps.

THE HAZARDS OF ASBESTOS WERE WELL KNOWN TO CRANE CO. AS EARLY AS THE 1930S.

Crane Co. claims now that it first became aware in the 1970s of the dangers of asbestos exposure. Exhibit F, Crane Co.’s Supplemental Answers, at Interrogatory No. 25, p. 22. This choice of date is an obvious one, given that in the early 1970s, the federal government began promulgating OSHA regulations similarly designed to prevent the inhalation of asbestos fibers in the workplace. In 1971, the Federal Government began regulating the use of asbestos in the workplace, declaring that the former exposure standard for asbestos dust was unsafe. Emergency Standard for Exposure to Asbestos Dust, 36 Fed. Reg. 234, 235 (Dec. 7, 1971). In 1972, OSHA issued its first asbestos dust standards and regulations. Occupational Safety and Health Administration Standard for Exposure to Asbestos Dust, Federal Register, Volume 37, Number 7—January 12, 1972.

But if Crane Co. were to claim that it did not learn the hazards of asbestos until informed by the government, then a more appropriate date would be 1958, when all Texas employers were subject to governmental regulations involving certain required control measures designed to limit the exposure of its employees to asbestos dust. In July of 1958, Texas enacted its “Maximum Permissible Concentrations of Atmospheric Contaminants in Places of Employment,” which specifically addressed asbestos dust, limiting the maximum concentration level of asbestos fibers to 5 million parts per cubic foot. (attached as Exhibit I) This regulation applied “to all places of employment in Texas.” Crane Co.’s annual reports indicate that in 1960, 1961, and 1962, Defendant maintained a facility in Texas. Exhibit F, Crane Co.’s Supplemental Answers, at attached CRTX0001, 0015, 0019, 0028, 0037, and 0055. Obviously, then, Crane Co. could have known no later than 1958 that asbestos exposure is hazardous.

But the evidence reveals that Crane Co. knew the hazards of asbestos much, much earlier than that. In 1935, the Journal of Industrial Medicine published an article entitled, “Dusty Death,” which provided as follows:

There is a sinister ghost that stalks every industry – a ghost whose name itself is forbidding. It is called “pneumoconiosis” and it is quite as dangerous as it sounds; danger in more ways than one. Pneumoconiosis is the general scientific term applied to describe all types of dusted lungs. Its literal translation is “a dusted lung.” As a generic or family appellation, it embraces the diseases which may result from inhalation of any sort of microscopic particles, common or rare.

See “Dusty Death,” 4 Industrial Medicine 567 (Oct. 1935)(attached as Exhibit J). The Journal was published by the American Association of Industrial Physicians and Surgeons. Id. At the time the Dusty Death article was published, Dr. Andrew M. Harvey, of Crane Company in Chicago, Illinois, was a Director of the Association that published the journal. Thus, Crane’s own medical staff were themselves aware as early as 1935 of the hazards of the asbestos Crane placed in the valves it manufactured. Undoubtedly, Crane was also aware that, sandwiched among the same pages of the article describing the “dusty death” that awaited those exposed to asbestos, was an advertisement for a respirator that could be worn by workers to protect against that deadly inhalation of dust. Id.

In February of 1936, the Illinois Manufacturers’ Association published a report on a Special Session of the Illinois Legislature that called for legislation relating to occupational diseases. “Occupational Diseases, Health, Comfort and Safety Changes in the Blower Act,” 9 Industrial Review 1 (Feb. 1936)(attached as Exhibit K). The Report, published in the Industrial Review, noted the following with regard to the perceived need for legislation:

These measures are the result of extended consideration of this entire subject matter by the Occupational Diseases Committee of the association under the Chairmanship of O.E. Mount. This committee was appointed by the President of the Association early in 1933 to study the occupational diseases problem with a view to determining what remedial legislation was necessary in the State to bring about an equitable and practical system governing the rights, duties, and liabilities of employer, employees, and insurance carriers with respect to such diseases. At the time the committee was appointed, employers in the State were being flooded with damage suits, most of which were predicated on silicosis, asbestosis, and a variety of real and fancied lung afflictions.

Id. The report discussed a bill “to compel the using of a exhaust systems for removing dust and dirt from grinding, polishing, and buffing operations.”

Crane Co. was keenly aware in 1936 of the substance of the report and of the circumstances that led to the call for legislation. At the time the report was published, Mr. Robert Evensen of Crane Co. was a General Member of the Manufacturers’ Association. Id. Dr. A.N. Harvey, a Chief Surgeon with Crane Co., and Dr. J.H. Chivers, the Personnel Director of Crane Co., were both members of the medical department of the Illinois Manufacturers’ Association. Id. Further, Dr. Chivers was an actual sub-committee member who, during the period of several months, carried on the negotiations and the detailed work associated with the drafting of the bills discussed in the report. Id.

Regardless of what it claims now, Crane Co. knew back in the 1930s that asbestos dust was hazardous to those working around it.

DESPITE ITS ACTUAL KNOWLEDGE OF THE HAZARDS OF ASBESTOS, CRANE CO. DID ABSOLUTELY NOTHING TO PROTECT WORKERS LIKE MR. RICE FROM THE DANGERS ASSOCIATED WITH THE USE OF ITS EQUIPMENT.

Despite what was known to manufacturers generally and to Crane Co. in particular, Defendant waited until 1985 before it modified its engineering specifications to phase out asbestos-containing components from all of its valves, and even then asbestos remained in one of its valves designed for petroleum industry applications. Exhibit F, Crane Co.’s Supplemental Answers, at Interrogatory No. 52, p. 36.

Mr. Anthony Pantaleoni, Crane Co.’s own representative, would have expected a company with knowledge of dangers associated with its products to research those dangers, to test its products, and to warn end users. See Pantaleoni Transcript, Exhibit G, at 1565. Mr. Pantaleoni has testified that suppliers of asbestos containing products should have had “some type of formal procedure to determine whether or not those products that they were selling were hazardous.” Id. at 1553. But Crane Co. never did any research, any testing, or any warning. Id. at 1553, 1554; Exhibit F, Crane Co.’s Supplemental Answers, at Interrogatory No. 56, p. 37.

SUMMARY JUDGMENT STANDARD

Courts have recognized that summary disposition of a plaintiff's cause of action is inappropriate where the plaintiff presents circumstantial evidence of a causal link between exposure to toxic asbestos dust and a defendant's failure to warn of the dangers of such. Plaintiffs may defeat a summary judgment motion by asserting a prima facie case of exposure and causation. See Click v. Owens-Corning Fiberglas Corp., 899 S.W.2d 376, 377-78 (Tex. App.– Dallas 1992, writ denied). In Texas, a plaintiff's evidence of exposure to asbestos may be direct, indirect, or circumstantial. See id.; see also Celotex v. Tate, 797 S.W.2d 197, 203-05 (Tex. App.– Corpus Christi 1990, no writ).

When deciding whether there is evidence of a disputed issue of material fact that would preclude summary judgment, the court assumes that all evidence favorable to the non-movant is true. See Science Spectrum v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Specialty Retailers, Inc. v. De Moranville, 933 S.W.2d 490, 491 (Tex. 1996). The court must view the evidence in the light most favorable to the non-movant, indulging every reasonable inference in favor of the non-movant and resolving all doubts in its favor. See Science Spectrum, 941 S.W.2d at 911; Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Specialty Retailers, 933 S.W.2d at 491; Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).

In the instant case, viewing the evidence in the light most favorable to Plaintiffs, and indulging every reasonable inference in their favor, this Court must conclude that Plaintiffs have presented sufficient competent evidence to raise a genuine issue of material fact which precludes the granting of summary judgment.

STATEMENT OF INTENT TO USE SUMMARY JUDGMENT EVIDENCE

In support of Plaintiffs’ Response to Crane Co.’s No-Evidence Motion for Summary Judgment, Plaintiffs rely upon the following summary judgment evidence.

1. Deposition of Larry Rice, taken in Rice v. Georgia-Pacific Corporation, No. 2005-01475 (Harris County, Texas, 11^th Judicial District)(May 10, 2005), attached as Exhibit A;
2. December 13, 2005 Report of Jerrold L. Abraham and Authenticating Affidavit 9, attached as Exhibit B;
3. Deposition of Larry Rice, taken in Rice v. Georgia-Pacific Corporation, No. 2005-01475 (Harris County, Texas, 11^th Judicial District)(May 11, 2005), attached as Exhibit C;
4. Deposition of Calvin Beasley, taken in Rice v. Georgia-Pacific Corporation, No. 2005-01475 (Harris County, Texas, 11^th Judicial District)(February 12, 2007), attached as Exhibit D;

1. Deposition of Greg Rupeck, taken in Rice v. Georgia-Pacific Corporation, No. 2005-01475 (Harris County, Texas, 11^th Judicial District)(February 27, 2007), attached as Exhibit E;
2. Crane Co.’s Supplemental Answers to Plaintiffs’ Master Interrogatories and Request for Production, filed in Malcom Lee Murphy v. Owens-Corning Fiberglas Corporation, No. CC-99-08033-B (County Court at Law No. 2 – Dallas County, Texas), attached hereto as Exhibit F);
3. Trial Testimony of Anthony Pantaleoni in Joseph Norris v. Ampco Pittsburgh Corp, No. BC340413 (Superior Court of the State of California for the County of Los Angeles)(September 6, 2006), transcript attached as Exhibit G;
4. Affidavit of Richard A. Lemen, Ph.D., and accompanying “Asbestos Timetables – A Guide for Policymakers”, attached as Exhibit H;
5. July of 1958, Texas “Maximum Permissible Concentrations of Atmospheric Contaminants in Places of Employment”, attached as Exhibit I;
6. “Dusty Death,” 4 Industrial Medicine 567 (Oct. 1935), attached as Exhibit J; and
7. “Occupational Diseases, Health, Comfort and Safety Changes in the Blower Act,” 9 Industrial Review 1 (Feb. 1936), attached as Exhibit K.

ARGUMENT AND AUTHORITIES

UNDER TEXAS LAW, CRANE CO. IS LIABLE UNDER THEORIES OF NEGLIGENCE AND STRICT LIABILITY FOR ITS FAILURE TO WARN OF THE ASBESTOS-CONTAINING INSULATION, PACKING AND GASKETS USED IN CONJUNCTION WITH ITS PRODUCTS.

The crux of Crane Co.’s argument in its motion for summary judgment is that it cannot be held liable for injuries resulting from the placement of asbestos-containing insulation to the internal and external surfaces of Crane Co.’s equipment or from the asbestos-containing gaskets and packing used in and on such equipment. This argument must be rejected. Manufacturers such as Crane Co. that knew or should have known of potential harm to a user because of the nature of their products have a duty to give adequate warnings of such dangers. See Fibreboard v. Pool, 813 S.W.2d 658, 688 (Tex. App. – Texarkana 1991). When a product contains toxic or dangerous ingredients not obvious to the typical user, the manufacturer has a duty to know the danger and to issue an appropriate warning. Id. Crane Co. suggests that it had no duty to warn plaintiffs of the dangers of asbestos because it did not manufacture an asbestos-containing product to which Mr. Rice was exposed. Crane Co. makes this argument despite the fact that, as discussed above: (1) it knew that asbestos insulation was a component part of the valves and pumps it manufactured and that further insulation would be applied in, on and adjacent to its products; (2) it placed its pumps and valves into the stream of commerce with asbestos-containing components such as gaskets and packing; and (3) it knew its products would require regular maintenance, including the removal and replacement of asbestos insulation. Because the removal from and application of asbestos-containing insulation to Crane Co.’s valves and pumps was entirely foreseeable, as was the release of asbestos that occurred during the inevitable maintenance to Crane Co.’s equipment, Crane Co. owed a duty under Texas law to Mr. Rice to warn him of the hazards of asbestos associated with working in, on and around its equipment.

In view of the evidence here of the hazardous nature inherent in Defendant’s products as designed, a genuine issue of material fact has been presented concerning Defendant Crane Co.’s duty to warn Mr. Rice of the hazards of asbestos, which precludes the granting of summary judgment on Plaintiffs’ negligence and strict liability claims.

1. 1. Crane Co. is Liable for Harm Caused By The Necessary Replacement of Asbestos-Containing Insulation Whose Use Was Reasonably Foreseeable.

Under Texas law, the existence of a duty to warn of danger or instruct as to the proper use of a product is a question of law. See America Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 426 (Tex. 1997). The court makes a determination on duty from the facts surrounding the occurrence. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). In determining whether a defendant owed a duty to a plaintiff, the court considers the risk involved, foreseeability, and likelihood of injury. Phillips, 801 S.W.2d at 525. In analyzing the scope of a defendant's duty, the Supreme Court of Texas has focused on foreseeability. In doing so, the Court has repeatedly stated that "[f]oreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable." Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); see also Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 551 (Tex. 1985). Additionally, the Court has frequently set forth the following two-prong test for determining whether a general danger is foreseeable:

[I]t is not required that the particular accident complained of should have been foreseen. All that is required is (1) that the injury be of such a general character as might reasonably have been anticipated; and (2) that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.

Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (citing Texas Cities Gas Co. v. Dickens, 168 S.W.2d 208, 212 (1943)); San Antonio & A.P. Ry. Co. v. Behne, 231 S.W. 354, 356 (Tex. Comm'n App. 1921, judgm't adopted). The Court determines both the foreseeability of the general danger and the foreseeability that a particular plaintiff – or one similarly situated – would be harmed by that danger. Id.

Here, Crane Co. has admitted that it was aware that gaskets, packing, and discs contained in its Crane Co. industrial equipment would need to be replaced. Exhibit F, at Interrogatory No. 44, p. 33. The company’s own vice president of environmental health and safety has admitted that it was completely foreseeable that the asbestos gaskets and packing contained in Crane Co.’s valves would have to be changed out periodically. See Pantaleoni Transcript, Exhibit G, at 1523, 1569-70. Indeed, the Cranite replacement sheet packing sold by Crane itself contained up to 85% asbestos! Exhibit F, Crane Co.’s Supplemental Answers, at Interrogatory No. 4, p. 8; and attached CRTX1234, 1237-1239, and 1240-1244. Further, the use of replacement-asbestos insulation in Defendant’s products was completely foreseeable, in light of the fact that Crane Co. itself added asbestos products to its own equipment. Id. at Interrogatory No. 4, pp. 6-7. Any subsequent replacement of asbestos would have conformed to Crane Co.’s original design, and was thus certainly foreseeable. Because Texas law imposes a duty on manufacturers to provide warnings regarding foreseeable hazards associated with the use of their products, Crane Co.had a duty to warn Mr. Rice of the danger of asbestos exposure during the use of its pumps and valves.

1. 1. Crane Co.’s Duty to Warn Extended to the External Insulation, Gaskets, and Packing Since These Were Necessarily Used in Connection with Crane Co.’s Pumps and Valves.

A manufacturer’s duty to warn also extends to the removal and replacement of a component part during maintenance or servicing of the product. See USX Corp. v. Salinas, 818 S.W.2d 473, 488 (Tex. App. - San Antonio 1991, writ denied). See also Edgar v. General Electric Co., No. Civ.A. 3:00-CV-2729-, 2002 WL 318331, at *5 (N.D. Tex. Feb. 27, 2002)(manufacturer of a product can be held liable for a failure to warn for harm from component parts). The Salinas court explained that a manufacturer's duty extends to alterations or modifications that are reasonably foreseeable:

An alteration must be substantial in order to relieve the manufacturer or seller of liability, and not every change made to a product after it leaves the manufacturer will suffice to preclude liability. 3 AM LAW PROD LIAB 3D § 43:5 (1987). Generally, only alterations or modifications not reasonably foreseeable by the manufacturer or seller are sufficient to preclude imposition of liability. 3 AM LAW PROD LIAB 3D § 43:16 (1987); see Ford Motor Co. v. Russell & Smith Ford Co., 474 S.W.2d 549, 556 (Tex.Civ.App.--Houston [14th Dist.] 1971, no writ). Whether the alteration was substantial will frequently present a fact question. 63 AM. JUR. 2D PRODUCTS LIABILITY § 551 (1984). If the subsequent alteration is substantial, the burden is on the plaintiff to establish that it was objectively foreseeable that the alteration of the product would create a risk of injury; subsequent alterations are objectively foreseeable where in light of the general experience within the industry at the time the product was manufactured, they could have been reasonably anticipated by the manufacturer. 3 AM LAW PROD LIAB § 43:16 (1987). If a manufacturer or assembler surrenders possession and control of a product in which change will occur, or in which change can be anticipated to occur so as to cause a product failure, the existence of a defect at the time the product left the manufacturer or seller is established. Sharp v. Chrysler Corp., 432 S.W.2d 131, 136 (Tex.Civ.App.--Houston [14th Dist.] 1968, writ ref'd n.r.e.).

Salinas, 818 S.W.2d at 488 n.16. This legal tenet is echoed in the Texas Pattern Jury Charges - Malpractice, Premises & Products (2000). See also Wilson v. Cincinnati, Inc., No. 07-00-0344-CV, 2001 WL 41016, at *3 (Tex. App. - Amarillo Jan. 17, 2001) (not designated for publication). Similarly, Texas Pattern Jury Charge 70.5 instructs as follows:

A product is not in a defective condition, thus not unreasonably dangerous when sold, if the unreasonably dangerous condition is solely caused by a substantial change or alteration of the product after it is sold, and but for which unreasonably dangerous condition the event would not have occurred. "Substantial change or alteration" means that the configuration or operational characteristics of the product are changed or altered by affirmative conduct of some person in a manner that the defendant could not have reasonably foreseen would occur in the intended or foreseeable use of the product. Substantial change or alteration does not include reasonably foreseeable wear and tear or deterioration.

Id. (emphasis added).^[1]

As set forth above, it was reasonably foreseeable to Crane Co. that asbestos gaskets, packing and insulation would be placed on and adjacent to its valves, since these items were required and necessary for Crane Co.’s valves to function properly with the equipment for which they were designed. Accordingly, Crane Co.’s duty to warn extended to the external insulation, gaskets, and packing used in conjunction with its products.

1. 1. Numerous Other Courts Have Ruled That Equipment Manufacturers Have a Duty to Warn With Respect to Replacement and Exterior Insulation.

The existence of Crane Co.’s duty to warn Mr. Rice of the hazards of asbestos exposure associated with the use of its pumps and valves is firmly buttressed by the decisions from other courts across the nation on the same issue. Most recently, the Washington Court of Appeals, on almost identical facts, ruled that a duty existed on behalf of the defendant manufacturers to warn of the dangers of exterior asbestos insulation used with their products. See Braaten v. Saberhagen Holdings, 151 P.3d 1010 (Wash. App. 2007); and Simonetta v. Viad Corp., 151 P.3d 1019 (Wash. 2007);

The plaintiff in Braaten spent his career as a pipe fitter at a naval shipyard maintaining ship pumps, valves, and turbines. Braaten, 151 P.3d at 1012. Maintenance of this machinery required the removal of asbestos mud insulation, and the plaintiff could not service this machinery without disturbing the asbestos. Id. During the maintenance process, asbestos dust was released into the air, and the plaintiff breathed the dust, which exposure ultimately led to the plaintiff’s mesothelioma. 151 P.3d at 1013.

The court in Braaten noted that the use of asbestos on this machinery was not "by chance" but rather by design. Id. Moreover, the defendant manufacturers either sold products containing asbestos-containing products or were aware that asbestos insulation was regularly used in and around their machines on Navy ships. Id. With regard to Crane Co. in particular, the court observed: “Crane's bronze, iron, and steel valves all included asbestos packing and gaskets; asbestos sheet packing was described in the Crane catalog as ‘superior.’” Id. On these facts, the court in Braaten found that the defendant manufacturers, including Crane Co., owed the plaintiff a duty under both negligence and strict liability to warn of hazards associated with the use of Crane Co.’s equipment. 151 P.3d at 1014-1019.

The Washington Court of Appeals reasoned that the manufacturer's design of the product utilized a hazardous substance (asbestos insulation) that could be released during normal use (repair and maintenance). Id. at 1016. The court viewed the issue not as involving the dangers of a third-party product (as Defendant here has framed it), but rather as involving dangers associated with the manufacturers' own products, including pumps, valves, and turbines. Id. at 1018.

In ruling that the defendant manufacturers of pumps, valves, and turbines owed the plaintiff a duty to warn of dangers associated with the use of their products (the release of asbestos during maintenance), the Braaten court relied heavily on the Fifth Circuit’s decision in Stapleton v. Kawasaki Heavy Indus., Ltd., 608 F.2d 571 (5th Cir. 1979). Stapleton involved injuries resulting from a gasoline explosion that occurred when gasoline leaked from a motorcycle and was ignited by a nearby pilot light. 608 F.2d at 571. The leak occurred because the fuel switch was in the "on" position. Id. The plaintiff sued under negligence, strict liability, and breach of a duty to warn. Id. The jury found that the defendant's motorcycle was not defective in design, but that the manufacturer had breached its duty to warn of the danger of gasoline leaking when the fuel switch was in the "on" position. On appeal, the defendant manufacturer argued that the jury's findings were inconsistent. Id. at 571-72. The Fifth Circuit, however, affirmed the judgment of district court and observed:

The jury . . . could have meant that the motorcycle was not defective in the sense that there was something wrong with it that caused it to be unfit or unsuited for the purpose intended, but that defendants should have made greater efforts to warn users of the potential danger in failing to turn the fuel switch to the off position.

Id. at 572. So, too, reasoned the Washington Court of Appeals in Braaten, the valve, pump, and turbine manufacturers in the case before it had a duty to warn the plaintiff of hazards associated with the use of their products:

Products containing hazardous, injury-causing substances that can be released during normal use are unlike traditional defective products. There is nothing "wrong" with such products; they do not "malfunction." They are simply dangerous in ordinary use. This case involves the release of a hazardous substance from a product. In that way, it is more analogous to products liability cases involving gasoline or other hazardous substances.

. . . .

[T]he Stapleton case does demonstrate that there is an independent duty to warn when a manufacturer's product design utilizes a hazardous substance that can be released during normal use. Few would argue that [the defendant in Stapleton] had no duty to warn about gasoline leaking from its motorcycles because someone else manufactured the gasoline. Its product contained gasoline during normal use. Here, the pumps and pumps as designed contained asbestos during normal use. Also, the hazardous substance was released into the air as part of the regular operation and maintenance of pumps and pumps, rather than by accident as in Stapleton. This distinction strengthens the argument for a duty to warn in the present case.

Braaten, 151 P.3d at 1016-17. Thus, the Washington Court of Appeals held that the defendant manufacturers of pumps and valves, including Crane Co., had a duty to warn of the hazard of asbestos fibers released into the air during the normal repair and maintenance of their equipment. See also Simonetta, 151 P.3d 1019, 1023 (“[T]he danger of asbestos exposure is ‘inherent’ in the use of its product, because the evaporators were built with the knowledge that insulation would be needed for the units to operate properly and that workers would need to invade the insulation to service the units.”).

Other courts have similarly held that a manufacturer may be liable even if it did not manufacture, install, or supply the asbestos material used in or on or adjacent to its product. In Berkowitz v. AC&S, Inc., 733 N.Y.S.2d 410 (N.Y. App. 2001), the court affirmed the denial of the pump manufacturer's motion for summary judgment and found that the defendant may have had a duty to warn concerning the dangers of asbestos, which it had neither manufactured nor installed on its pumps. Id. at 411. Although the pumps could function without insulation, the purchaser had provided specifications involving insulation, and the court found it questionable whether the pumps-- transporting steam and hot liquids on board Navy ships--could be operated safely without insulation, which defendant knew would be made of asbestos. Id. Similarly, in Chicano v. Gen. Elec. Co., 03-5126, 2004 WL 2250990 at *6 (E.D. Pa. Oct. 5, 2004), the court found a genuine issue of material fact as to whether GE could reasonably foresee that a failure to include a warning regarding the use of asbestos-containing products to insulate its turbines would lead to asbestos-related illness, even though the asbestos insulation was manufactured by another entity and GE did not control what form of insulation would cover its turbines. Cf. Rauch v Am. Radiator & Standard Sanitary Corp., 104 NW 2d 607 (Iowa 1960) (holding manufacturer responsible for testing and inspecting replacement parts made by others).

Courts throughout the country have recognized that manufacturers of valves, pumps, turbines, boilers, and other equipment requiring asbestos may be held liable for asbestos exposure from their products. See, e.g., Roberts v. Owens-Corning Fiberglas Corp., 878 So.2d 631, 646-47 (La. App. 1 Cir. 2004) (upholding finding that plaintiff was exposed to asbestos released from boilers); Anderson v. Combustion Eng’g, Inc., 647 N.W.2d 460, 464 (Wis. App. 2002) (affirming judgment against boiler manufacturer for mesothelioma caused by exposure to asbestos insulation from its boilers); Abadie v. Metro. Life Ins. Co., 784 So.2d 46, 92 (La. App. 5 Cir. 2001) (reversing JNOV in favor of manufacturers of boilers that contained asbestos that "could have contributed" to plaintiffs’ exposure); White v. CBS Corp., 996 S.W.2d 920 (Tex. App. – Austin 1999, pet. denied) (finding that genuine issue of material fact existed as to whether turbines containing asbestos were installed at time of worker’s exposure).

In addition to these appellate court decisions, several trial courts – including Texas courts – have denied similar summary judgment motions from equipment defendants, finding that equipment manufacturers do indeed have a duty to warn with respect to exterior insulation. See Exhibit L, Motion and Order denying Yarway's Motion for Summary Judgment, Simkins v. General Motors Corp., No. CC-03-02935-B (Dallas County Court at Law No. 2, May 25, 2005); Exhibit M, Order Denying Foster Wheeler's Motion for Summary Judgment, Grove v. Dresser Industries, Inc., No. D030286-C (260th Judicial District, Orange County Texas).

Other states’ trial courts have also considered this issue and have rejected the argument set forth by Crane Co. See Notice of Ruling Denying Foster Wheeler, LLC's Motion for Summary Judgment, Williams v. Carver Pump Co., No. BC 309034 (Sup. Ct. of Ca., Los Angeles Cty., December 16, 2004), attached as Exhibit N (holding that because the equipment at issue required asbestos-containing insulation, "[t]his gave rise to a duty imposed on the manufacturer to warn of the hazard created by the insulation"); Order Denying Ingersoll-Rand's Motion for Summary Judgment, Landingin v. A.W. Chesterton Co., No. 437009 (Sup. Ct. of Ca., San Francisco Cty., Nov. 1, 2005), attached hereto as Exhibit O; Jensen v. Saberhagen, No. 04-2-20249-3 SEA, Motion Hearing, Feb. 17, 2006, at 22-23, attached hereto as Exhibit P (because pump manufacturer specified that replacement products used with its pumps contain asbestos, it had a duty to warn about the dangers inherent in its product); Walraven v. A.W. Chesterton Co., No. 04-3940 (Suffolk County, Jan. 27, 2005)(transcript attached as Exhibit Q), at 6-7 (denying motion for directed verdict, the trial court observed: “[T]here may be a duty to warn of a possible risk arising out of a foreseeable use by a third party or a foreseeable alteration. And I note here the alteration is simply adding an asbestos product as I understand it as an insulator rather than modifying the product, whether it's pump or valve or steam trap, to be a component part of something larger. And as I understand it, any addition of asbestos as an insulating system or feature was to facilitate a known or intended use of that product.”).

These many decisions from other states are compelling authority, and in complete alignment with established Texas law governing both negligence and strict liability claims: a manufacturer is under a duty to warn for alterations or modifications that are reasonably foreseeable and a product may be found unreasonably dangerous when used as intended, without warnings about how to safely avoid asbestos exposure.

D.The Authority Relied on by Defendant is Inapposite.

Without discussion, Crane Co. relies on Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996) and Sanchez v. Liggett & Myers, Inc., 187 F.3d 486 (5th Cir. 1999), to contend that there is no duty under Texas law to warn of the risks of using a product made by another manufacturer. Not only are these cases distinguished on their facts, but their analysis actually demonstrates that under Texas law, a product manufacturer has a duty to warn of foreseeable uses of its product, including the addition or replacement of components manufactured by another.

Barajas does not establish an absolute rule that a defendant can never be liable, regardless of the facts, for injuries sustained in connection with the use of a product manufactured and supplied by another entity. In Barajas, Firestone had introduced a new design for a type of truck wheel. Another company, Kelsey-Hayes, subsequently marketed its own wheel, with a design based on, but modified from, Firestone's original design. Firestone did not design or sell the wheel that fatally injured the decedent. Under such facts, Firestone was not liable because although it was the original designer, the product had been substantially altered. The obvious, fundamental distinction between Barajas and the present case is that the plaintiff there sought to hold Firestone liable for a death resulting from a product Firestone did not design, make or sell, whereas here, Mr. Rice’s death resulted from a foreseeable use of Crane Co.’s own product which itself contained asbestos parts that inevitably would need replacement.

The distinction is obvious from a review of Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591 (Tex. 1986), decided by the court the same year as Barajas. In Alm, the Texas Supreme Court held that "a designer who is not also the manufacturer should share the same duty [as a manufacturer] to develop a safe design . . . . [and] to exercise ordinary case in the design of its . . . system. . . ."; see also Easter v. Aventis Pasteur, Inc., No. 5:03-CV-141, 2004 WL 3104610, *9 (E.D. Tex. Feb. 11, 2004) (applying Texas law to hold that the original designer of a vaccine preservative, thimerosal, could be liable to a plaintiff injured by that preservative even though it had not manufactured or sold the thimerosal in the vaccines given to plaintiff). In Easter, the District Court held that where there is no substantial change to a product, a defendant who did not design the product nevertheless had a duty to warn potential users of the harms associated with the product:

Alm is analogous to this case. Lilly developed the design for thimerosal, used thimerosal in vaccines, licensed thimerosal to other manufactures, and after its patent expired, knew that other manufacturers had copied its thimerosal design for use in vaccines. Lilly was in the best position to know about the potentially harmful effects of thimerosal, to warn others about them, and even, as plaintiffs allege, to conceal them as well . . . . Under the holding in Alm, Lilly, as a designer, has a duty to develop a safe design for thimerosal. Also, Lilly's design of and intimate knowledge about thimerosal also gives use to a duty to inform users of hazards associated with the use of thimerosal . . . .

Id. at *9. In the instant matter, the replacement of the asbestos insulation inside, outside and adjacent to Crane Co.’s valves was simply a foreseeable (and necessary) alteration, which Texas law has long recognized does not preclude liability. See, e.g., General Motors Corp. v. Saenz, 829 S.W.2d 230, 236-37 (Tex. App. -- Corpus Christi 1992) ("If it is foreseeable that a product will be modified, a manufacturer has a duty to adequately warn of known and foreseeable dangers associated with such modifications."), rev'd on other grounds, 873 S.W.2d 353 (Tex. 1993); Salinas, 818 S.W.2d at 488 ("Generally, only alterations or modifications not reasonably foreseeable by the manufacturer or seller are sufficient to preclude imposition of liability); Hamilton v. Motor Coach Indus., Inc., 569 S.W.2d 571, 575-76 (Tex. Civ. App. -- Texarkana 1978, no writ) ("A seller is subjected to liability if he introduces into the channels of commerce a non-defective product that he can anticipate will undergo change and become unreasonably dangerous if the seller does not warn the consumer or user of such danger."); Sharp v. Chrysler Corp., 432 S.W.2d 131, 136 (Tex. Civ. App. - Houston [14th Dist.] 1968, writ ref'd n.r.e.) ("The rule is that if the manufacturer or assembler surrenders possession and control of a product in which change will occur, or in which the change can be anticipated to occur so as to cause a product failure, the existence of a defect at the vital times is established.").

Defendant’s reliance on Sanchez v. Liggett & Myers, Inc., 187 F.3d 486 (5th Cir. 1999) is similarly misplaced. In Sanchez, the family of a man who died from lung cancer after smoking cigarettes brought suit against the defendant manufacturer and others involved in the tobacco industry on theories of intentional fraud and misrepresentation, breach of implied warranty, violation of Texas Deceptive Trade Practices Act, and conspiracy. 187 F.3d at 488. The Fifth Circuit held that under no set of facts could the plaintiffs prove an essential element on each of those theories against anyone but the manufacturer and seller. 187 F.3d at 491. The court did not begin to discuss the issue in this case, which, as discussed above, has already been clearly decided in Texas, and in a multitude of other jurisdictions.

As Crane Co. designed its pumps and valves, the equipment was meant to be used with asbestos containing insulation. The valves came pre-installed with asbestos-containing gaskets and packing. Since Crane Co. knew that its valves required the use and replacement of asbestos insulation, gaskets, and packing in order to function properly, it was clearly foreseeable that insulation would be placed on the interior and the exterior of the valves and pumps and used in connecting the pumps and valves to the other equipment with which they were designed to operate. Further, Crane Co. knew that the asbestos-containing insulation, packing and gaskets would be disturbed during the regular maintenance and operation of its valves. Since Crane Co. also knew that asbestos was unreasonably dangerous, it had a duty to warn potential users of this danger. The evidence presented here, at a minimum, raises an issue of fact as to Plaintiffs’ negligence and strict liability claims.

THE SUMMARY JUDGMENT EVIDENCE RAISES A GENUINE ISSUE OF FACT WITH RESPECT TO CRANE CO.’S GROSS NEGLIGENCE.

Gross negligence is defined as “the breach of duty involving an extreme degree of risk, considering the probability and magnitude of the potential harm to others (an objective element) when the actor has actual awareness of the risk involved but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others (a subjective element).” General Motors Corp. v. Sanchez, 997 S.W.2d 584, 595 (Tex. 1999). “Circumstantial evidence is sufficient to prove either element of gross negligence.” Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).

Texas courts have held that circumstantial evidence is sufficient for a jury verdict of gross negligence in asbestos cases. See, e.g., Brown & Root, Inc. v. Shelton, ___ S.W.3d ___, 2003 WL 21771917 (Tex. App.–Tyler 2003, no pet.)(not designated for publication). In the Shelton case, the jury heard expert testimony from a pathologist that as early as 1955, the link between asbestos exposure and cancer was “essentially confirmed.” Id. at *7. The plaintiffs in that case also introduced evidence that the defendant was a member of the National Safety Council and, by its membership in the trade association, had access to articles “detailing the dangers of exposure to asbestos dust, including its link to mesothelioma.” Id. The appellate court held that this evidence was sufficient for the jury to find that Brown & Root had actual awareness of the extreme risk of asbestos in its products. The court also held that the plaintiff had introduced sufficient circumstantial evidence to establish Brown & Root’s conscious indifference with evidence that even though it knew of the dangers of asbestos as early as 1947, it still did not take adequate safety precautions at the plant where plaintiff was injured. The court held that “the evidence need not show, as Brown & Root contends, a particular example of Brown & Root making a recorded, contemporaneous decision to act with indifference as to this specific job. Rather, the evidence need only be such that reasonable inferences of a conscious decision could be made.” Id. at *9.

In this case, Plaintiffs have produced evidence that Crane Co. acted with actual awareness of the extreme risk of using the asbestos-containing products it sold and nevertheless sold those products in conscious indifference to the rights, safety, or welfare of others. As detailed above, the evidence here reveals that Crane Co. knew in the 1930s of the hazards of asbestos, yet did absolutely nothing to protect workers from the dangers associated with using its products. It is thus reasonable to infer that Defendant acted with conscious indifference to the safety of end users of its product, such as Mr. Rice.

Plaintiffs have produced more than a scintilla of evidence to raise a genuine issue of material fact that Crane Co. was grossly negligent in its sale of products containing asbestos parts that foreseeably would require manipulation and replacement. Crane Co.’s motion for summary judgment on Plaintiffs’ gross negligence claim should therefore be denied.

DEFENDANT’S MOTION SHOULD BE DENIED AS TO THE DERIVATIVE CLAIMS.

Because Defendant’s motion should be denied as to any claims of Mr. Rice, the motion should also be denied as to any derivative claims. See Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978).

CONCLUSION & PRAYER

WHEREFORE, premises considered, Plaintiffs respectfully request that this Court deny Crane Co.’s motion for summary judgment on all grounds and grant plaintiffs any and all further relief, at law or in equity, to which they may be entitled.

Respectfully submitted,

1. ↑ The position that a manufacturer or seller of a product remains liable for alterations or modifications that are reasonably foreseeable is not novel in any way. Courts throughout the country have so held. Alabama: Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839, 855 -855 (Ala. 2002) ("A manufacturer or seller remains liable if the alteration or modification did not in fact cause the injury, or if the alteration or modification was reasonably foreseeable to the manufacturer or seller"); Arizona: Anderson v. Nissei ASB Mach. Co., Ltd., 197 Ariz. 168, 173, 3 P.3d 1088, 1093 (Ariz.App. Div. 1,1999) ("In Arizona, only an unforeseeable modification of a product bars recovery from the manufacturer."); Connecticut: Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 236, 694 A.2d 1319, 1341 (Conn. 1997) ("In order to rebut the defendant's allegations of substantial change, the plaintiff must prove…. [a]lternatively, … that the alteration or modification: (1) was in accordance with the manufacturer's instructions or specifications; (2) was made with the manufacturer's consent; or (3) was the result of conduct that the manufacturer reasonably should have anticipated."); Idaho: Tuttle v. Sudenga Industries, Inc., 125 Idaho 145, 148-149, 868 P.2d 473, 476 - 477 (1994) (defense of substantial alteration or modification of product not available if "The alteration or modification was reasonably anticipated conduct, and the product was defective because of the product seller's failure to provide adequate warnings or instructions with respect to the alteration or modification."); Illinois: Davis v. Pak-Mor Mfg. Co. , 284 Ill.App.3d 214,220, 672 N.E.2d 771,775, 219 Ill.Dec.918,922 (Ill.App. 1 Dist.,1996): ("Where an unreasonably dangerous condition is caused by a modification to the product after it leaves the manufacturer's control, the manufacturer is not liable unless the modification was reasonably foreseeable." Foreseeability means "that which it is objectively reasonable to expect, not merely what might conceivably occur." (internal citations omitted)); Indiana: Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d 396, 404 (Ind.App. 1999) ("The modification or alteration defense is only applicable …where such modification or alteration is not reasonably expectable to the seller."); Iowa: Leaf v. Goodyear Tire & Rubber Co. , 590 N.W.2d 525, 529 -530 (Iowa 1999) ("….a manufacturer will remain liable for an altered product if it is reasonably foreseeable that the alteration would be made…."); Kansas: Howard v. TMW Enterprises, Inc., 32 F.Supp.2d 1244, 1252 (D.Kan.,1998) ("Under Kansas law, if a product is modified after delivery to the purchaser, the manufacturer may not be liable for defective design. The manufacturer must show, however, that the product modification was not foreseeable." (internal citation omitted)); Louisiana: Bourgeois v. Garrard Chevrolet, Inc., 811 So.2d 962, 965, (La.App. 4 Cir. 2002) ("The product's characteristic that renders it unreasonably dangerous under La. R.S. 9:2800.55 must exist at the time that the product left the control of its manufacturer, or result from a reasonably anticipated alteration or modification of the product.") Missouri: Vanskike v. ACF Industries, Inc., 665 F.2d 188, 195 (8th Cir. 1981)(applying Missouri law) ("…subsequent changes or alterations in the product do not relieve the manufacturer of strict liability if the changes were foreseeable…."); New Jersey: Brown v. U.S. Stove Co., 98 N.J. 155, 165-166, 484 A.2d 1234, 1239 (N.J.,1984) ("…a manufacturer can also be held liable under strict liability principles for design defects if it is objectively foreseeable that a substantial change in the product will cause injury."); New York: Cacciola v. Selco Balers, Inc., 127 F.Supp.2d 175, 187 (E.D.N.Y.,2001) ("[A]lthough it is virtually impossible to design a product to forestall all future risk-enhancing modifications that could occur after the sale, it is neither infeasible nor onerous, in some cases, to warn of the dangers of foreseeable modifications that pose the risk of injury."); Ohio: Barrett v. Waco Int'l, Inc. ,123 Ohio App.3d 1, 8, 702 N.E.2d 1216, 1220 (Ohio App. 8 Dist. 1997) ("Ohio courts have held that design defect claims may include the failure to design a product to prevent foreseeable misuse, including modifications. Welch Sand & Gravel, Inc. v. O & K Trojan, Inc., 107 Ohio App.3d 218, 224, 668 N.E.2d 529, 533 (1995). Although manufacturers need not guarantee that a product is incapable of causing injury, they must consider, inter alia, "the likelihood that the design would cause harm in light of the intended and reasonably foreseeable uses, modifications, or alterations of the product."); Pennsylvania: Shouey ex rel. Litz v. Duck Head Apparel Co., Inc. , 49 F.Supp.2d 413, 422 (M.D.Pa.,1999) ("A manufacturer or seller will not be liable if the product is made unsafe by subsequent changes unless the manufacturer or seller reasonably could have foreseen the alteration.") South Carolina: Small v. Pioneer Machinery, Inc., 329 S.C. 448, 466, 494 S.E.2d 835, 844 (S.C.App.,1997) ("An essential element of any products liability claim is proof that the product at the time of the accident was in essentially the same condition as when it left the hands of the defendant. However, …liability may be imposed upon a manufacturer or seller notwithstanding subsequent alteration of the product when the alteration could have been anticipated by the manufacturer or seller….').