ASBESTOS MDL CASE
OLIVER D. SMITH and PEGGY ANN BOWEN SMITH,
CRANE CO.; et al.,
IN THE DISTRICT COURT HARRIS COUNTY, TEXAS
11TH JUDICIAL DISTRICT
OLIVER D. SMITH and PEGGY ANN BOWEN SMITH,
CRANE CO.; et al.,
IN THE DISTRICT COURT GALVESTON COUNTY, TEXAS
122ND JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANT CRANE CO.’S TRADITIONAL MOTION FOR PARTIAL SUMMARY JUDGMENT ON CLAIMS RELATING TO INSULATION AND EXTERNAL FLANGE GASKETS THAT IT DID NOT MAKE OR SELL
Plaintiffs Oliver D. Smith and Peggy Ann Bowen Smith (“Plaintiffs”), file this Response in opposition to Defendant Crane Co.’s Traditional Motion for Summary Judgment, and, in support thereof, would respectfully show the Court as follows:
Crane Co.’s traditional motion for partial summary judgment raises the exact same argument, rejected at the October 5 hearing on its no-evidence motion, that it did not have a duty to warn Plaintiff Oliver Smith of the dangers posed by thermal insulation and gaskets that were manufactured and supplied by third parties. After extensive argument by counsel for both sides, Crane Co.’s no-evidence motion for summary judgment was denied in its entirety. Given the Court’s previous ruling on this matter, Plaintiffs requested that Crane Co. withdraw this motion. Crane Co. has refused to do so, preferring to waste the Court’s time on what is essentially a motion for reconsideration.
This Court has already considered Crane Co.’s argument under the no-evidence standard, finding that Plaintiffs’ evidence raises genuine issues of material fact with regard to Crane Co.’s duty. By definition, Crane Co. cannot meet the higher traditional summary judgment burden of disproving Plaintiffs’ claims as a matter of law. There is no new law or evidence in this case that would warrant reconsidering this Court’s prior ruling that Crane Co. had a duty to warn Mr. Smith regarding the foreseeable use of asbestos-containing component parts.
The only evidence offered by Crane Co. in support of its motion is Mr. Smith’s testimony that the valves and pumps did not come with thermal insulation already installed and that the replacement gaskets were not supplied by Crane Co. This evidence is not new – as Plaintiffs already discussed in their no-evidence response and as set forth below, Mr. Smith identified other manufacturers of the asbestos-containing thermal insulation and gaskets that he used with Crane Co. valves and pumps. This does not alter the conclusion that, because Crane Co. designed its valves and pumps to be used with asbestos-containing parts and knew that those parts would have to be disturbed and replaced during routine maintenance, Crane Co. had a duty to warn of the hazards posed by the reasonably foreseeable use of its products. Therefore, Crane Co. has not met its summary judgment burden and its motion should be denied.
Crane Co. Manufactured Pumps and Valves with Asbestos-Containing Component Parts That Crane Co. Knew Would Have to Be Periodically Replaced.
Crane Co. has admitted that its valves and pumps incorporated asbestos-containing gaskets and packing as component parts, although it purchased those parts from third parties. See Crane Co.’s Second Supplemental Interrogatory Responses, excerpts attached hereto as Exhibit A, at Interrogatory No. 1, pp. 42-46. Thus, Crane Co.’s valves and pumps were shipped with asbestos-containing component parts. See id.
Crane Co. has also admitted that it was aware that gaskets, packing, and discs contained in its industrial equipment may need to be replaced from “time-to-time.” See id. at Interrogatory No. 8, p. 52-53. The company’s own vice president of environmental health and safety, Anthony Pantaleoni, 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, Sept. 6, 2006, (“Pantaleoni Testimony”), excerpts attached hereto as Exhibit B, at 1523, 1569-70. Mr. Pantaleoni testified as follows:
Q. And Crane Co. knew in the ‘50’s that their valves would have to be maintained in the sense of gasket change-out and packing change-out. Right?
A. All equipment has to be maintained.
Q. So [it was] foreseeable to Crane Co. that this stuff would take place. Right?
Id. at 1570:6-12.
Not only did Crane Co. know that gaskets and packing would have to be periodically replaced, it knew that asbestos-containing parts would be used. For 50 years Crane Co. sold replacement parts that contained asbestos. Crane Co.’s Second Supplemental Interrogatory Responses at Interrogatory No. 1, pp. 44-45 (Exhibit A). From 1920 through the mid-1970s, Crane Co. offered for sale asbestos-containing sheet packing and gasket material with the name “Cranite” stamped on the product, which material could be used with Defendant’s valve and pump equipment. See id. 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 Interrogatory No. 1, p. 45.
Crane Co.’s own expert in industrial hygiene, Donna Lingo, testified in this case that asbestos gaskets were the most commonly available and commonly used parts with Crane Co. valves. See Deposition of Donna Lingo, Oct. 2, 2007, (“Lingo Depo.”), excerpts attached hereto as Exhibit C, at 91:5-15. Ms. Lingo testified by deposition as follows:
Q. And my question is  under what circumstances would you have expected asbestos containing gaskets to be used with Crane valves?
A. . . . I don’t know that it would be anything other than that was what was commercially available, that was what was specified in a lot of engineering drawing[s], that was what was common. I’ve seen testimony that that was the most common of the sheet gaskets available. They were also the least expensive and what was available.
Id. at 91:5-15.
Thus, Crane Co. was aware that users of its pumps and valves would be removing and replacing asbestos-containing gaskets and packing.
Mr. Smith was Exposed to Respirable Asbestos Fibers While Working With and Around Crane Co.’s Equipment.
In 1957, Oliver Smith began working as a pipefitter apprentice at the Borden chemical plant in Texas City, Texas. See Deposition of Oliver Smith, Volume I, Feb. 22, 2007, (“Smith Depo. Vol. I”), attached hereto as Exhibit D, at 20:1-20, 22:14-25. After three years he became a pipefitter, and continued in that position at the Borden plant until 1968. See id. at 20:10-21. In
1968 Mr. Smith began working for various contractors, one of which was Raytheon Engineers and Constructors. See id. at 40:8-41:15. Between 1968-1970, Mr. Smith worked for a total of about a year and a half for Raytheon, all of which was spent as a pipefitter at the Union Carbide plant in Texas City, Texas. See id.
Mr. Smith recalled working with Crane Co. valves at both the Borden and Union Carbide plants. See id. at 85:6-10; Deposition of Oliver Smith, Volume II, Feb. 23, 2007, (“Smith Depo. Volume II”), attached hereto as Exhibit E, at 65:18-66:1. He was able to identify the valves as manufactured by Crane Co. because the Crane name was written in raised lettering on the valve itself. See Smith Depo. Vol. Iat 85:11-14; Smith Depo. Vol. II at 67:14-18. Most of the Crane Co. valves he worked with were globe valves and gate valves. See Smith Depo. Vol. II at 77:4-7. Many of the valves were on steam lines. See id. at 68:16-25. On some occasions Mr. Smith would work with the internal components of the Crane Co. valves if they needed to be dismantled and rebuilt. See id. at 70:9-19. Mr. Smith’s co-worker, Finis Spier, testified that he often worked beside Mr. Smith and that their job duties with respect to Crane valves involved removing the valves, replacing the valves, and repairing the valves by replacing packing and/or gaskets. See Deposition of Finis Spier, Sept. 5, 2007, (“Spier Depo.”), attached hereto as Exhibit F, at 45:12-46:6.
In order to access the valves, Mr. Smith would often have to remove the exterior thermal insulation. See Smith Depo. Volume II at 63:17-64:1. The insulation was generally on the pipes that lead up to the connection with the valve. See id. at 64:3-7. However, for some heat applications the valve itself would also be insulated. See id. at 64:8-19. Mr. Smith testified that disturbing this insulation exposed him to asbestos. See id. at 63:17-64:1. The brands of insulation used at the Borden and Union Carbide plants were Kaylo, Thermasil, and Thermabestos. See Smith Depo. Vol. I at 69:19-73:19. Mr. Smith was able to identify those brands by the manufacturer’s name on the packaging. See id. Each of the brands of thermal insulation contained asbestos during the years that Mr. Smith had to remove insulation around Crane Co. valves: Kaylo contained 15% asbestos from 1958 to 1972; Thermasil contained 10% amosite asbestos from 1956 to 1969, then 8.6% until 1970; and Thermobestos contained 5-10% asbestos from 1939 to 1973. See Asbestos: Publication of Identifying Information, 55 Fed. Reg. 5144 (Feb. 13, 1990), excerpts attached hereto as Exhibit G.
Mr. Smith’s work with Crane Co. valves involved removing and replacing the packing material. See Smith Depo. Vol. I at 83:4-14. He would perform this work himself and also assist others in doing so. See id. The valves had to be repacked periodically because over time the packing would deteriorate under the pressure and heat. See id. at 83:16-84:3. In order to remove the packing, Mr. Smith would completely open the valve handle and then either use a flexible hook or a pointed tool to dig into the packing and pull it out of the valve. See Smith Depo. Vol. II at 73:9-13, 73:25-74:8. After that, Mr. Smith described the process was as follows: “you take a screwdriver or some tool that you can get back into the packing gland with and scrape everything out, remove all the residue and the particles and then you cut your packing to size and install it.” Id. at 74:8-12. Repacking the valves could take as much as four to six hours depending on how long the valve had been in service and how well it had been maintained, but the average repacking job took about two to three hours. See id. at 72:20-73:8. A lot of Mr. Smith’s work with packing materials was on valves at the Borden plant. See Smith Depo. Vol. I at 62:11-23.
The process of repacking the Crane Co. valves released dust into the air from the packing material. See id. at 63:2-11, 84:5-22. Mr. Smith recalled that he breathed that dust into his lungs. See id. at 63:13-19, 84:24-85:2. The packing material he worked with was manufactured by Crane Co. See id. at 62:8-63:24. From 1920 through the mid-1970s, 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. See Crane Co.’s Second Supplemental Interrogatory Responses, at Interrogatory No. 1, pp. 44-45 (Exhibit A). 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.
Both Mr. Smith and his co-worker, Finis Spier, recall that it was often necessary to scrape out the old gaskets from flanges attached to Crane Co. valves. See Deposition of Oliver Smith, Sept. 27, 2007 (“Smith 9/27/07 Depo.”), excerpts attached hereto as Exhibit H, at 23:19-25:16, 32:2-8; Spier Depo. at 46:8-24 (Exhibit F). As Mr. Smith testified, “if [the gaskets] were in a hot system . . . the gasket was practically fused to the flange on the piping and the valve as well.” Smith 9/27/07 Depo. at 24:18-21. Mr. Smith had to use a scraper, wire brush, or electric knife to remove the gasket material from the flanges. See id. at 24:24-25:5. Scraping out the old gaskets typically took 20 to 30 minutes. See id. at 27:23-28:14. Scraping off the dried gaskets was a dusty process. See Spier Depo.at 47:4-14 (Exhibit F).
Mr. Smith also worked with Crane Co. pumps. See Smith Depo. Vol. I at 75:1-14 (Exhibit D). He mostly worked around Crane Co. pumps at the Borden plant, but he also recalls them at the two Amoco facilities in Texas City were Mr. Smith worked about 500 hours total from 1967 to 1970. See Smith Depo. Vol. I at 28:18-29:5, 34:8-21, 74:9-9-12; Smith Depo. Vol. II at 80:14-22 (Exhibit E). Mr. Smith knew that the pumps were manufactured by Crane Co. because the Crane name was spelled out in raised letters on the pump castings. See Smith Depo. Vol. I at 75:16-19; Smith Depo. Vol. II at 81:23-82:2. The Crane Co. pumps he worked with were centrifugal pumps. See Smith Depo. Vol. I. at 75:20-76:4.
Mr. Smith was exposed to the internal component parts of Crane Co. pumps when he would assist the machinists in tearing down the pumps. See Smith Depo. Vol. II at 82:7-11 (Exhibit E). He also regularly changed out the packing in Crane Co. pumps. See id. at 83:2-84:17. Removing and replacing the packing material in the pumps involved the same process as repacking the valves. See id. at 83:2-5. Mr. Smith would remove the packing with a tool that would cut into the packing so that he could pull it out and then he had a curved sharp pointed tool he used to dig it out. See id. at 83:5-10. Then he would press the new packing material into the packing gland. See id. at 83:11-14. On average it would take about two hours to change out the packing in a Crane Co. pump. See id. at 83:15-20. The pumps would need to be repacked sometimes as often as every two weeks and at least every several weeks. See id. at 84:10-17. Mr. Smith testified that he used the same asbestos-containing packing material on Crane Co. pumps that he used on the valves. See id. at 82:15-83:1; Smith Depo Vol. I at 62:8-15 (Exhibit D).
Mr. Smith further testified that he was exposed to dust from thermal insulation that had to be removed from the pipes leading up the pumps:
Q. The Crane pumps, do you believe you were exposed to insulation being used on that pump?
A. Some, yes.
A. The piping is insulated all the way up to the suction discharge flange. Then if we had to have the insulation removed for access to the pump on the – yeah, to the pump or discharge suction piping off the pump, then it would be at that time.
Q. Did this work create dust?
A. It would create a certain amount. It would be a certain amount of dust, certain amount of fibers in the atmosphere depending on how much you breathe of it.
Q. Were you ever close enough on this work being done on Crane pumps that you would breathe this dust into your lungs?
Smith Depo. Vol. I at 76:5-77:7 (Exhibit D) (objections omitted). As described above, asbestos-containing thermal insulation was used at the Borden plant where Mr. Smith did most of his work on Crane Co. pumps. See id. at 69:19-73:19, 74:9-16; Asbestos: Publication of Identifying Information (Exhibit G).
STATEMENT OF INTENT TO USE SUMMARY JUDGMENT EVIDENCE
Exhibit A:Excerpts of Crane Co.’s Second Supplemental Interrogatory Responses, produced herein on Oct. 2, 2007;
Exhibit B:Excerpts of 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, Sept. 6, 2006;
Exhibit C:Excerpts of the Deposition of Donna Lingo, taken herein on Oct. 2, 2007;
Exhibit D:Excerpts of the Deposition of Oliver Smith, Volume I, taken herein on Feb. 22, 2007;
Exhibit E:Excerpts of the Deposition of Oliver Smith, Volume II, taken herein on Feb. 23, 2007;
Exhibit F:Excerpts of the Deposition of Finis Spier, taken herein on Sept. 5, 2007;
Exhibit G:Excerpts of Asbestos: Publication of Identifying Information, 55 Fed. Reg. 5144 (Feb. 13, 1990);
Exhibit H:Excerpts of the Deposition of Oliver Smith, taken herein on Sept. 27, 2007.
Exhibit I:Motion and Order denying Yarway’s Motion for Summary Judgment, Simkins v. Gneral Motors Corp., No. CC-03-02935-B, Dallas County Court at Law No. 2, May 25, 2005;
Exhibit J:Order Denying Foster Wheeler’s Motion for Summary Judgment, Grove v. Dresser Industries, Inc., No. D030286-C, 260th Judicial District, Orange County Texas;
Exhibit K: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;
Exhibit L: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;
Exhibit M:Transcript of Motion Hearing, Feb. 17, 2006, Jensen v. Saberhagen, Superior Court of State of Washington, King County, No. 04-2-20249-3 SEA; and
Exhibit N:Transcript of Rulings on Motions in Limine, Jan. 27, 2005, Walraven v. A.W. Chesterton Co., Superior Court of Commonwealth of Massachusetts, Suffolk County, No. 04-3940.
SUMMARY JUDGMENT STANDARD
The function of summary judgment is “not to deprive litigants of the right to a jury trial,” but rather to eliminate patently unmeritorious claims and defenses. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex. 1979); Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex. 1972); Federal Petroleum Co. v. Gas Equip. Co., 105 S.W.3d 281, 284 (Tex. App.—Corpus Christi 2003, no pet. h.). A traditional summary judgment may not be granted unless the motion and summary judgment evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion. Tex. R. Civ. P. 166a(c). When a movant files a motion for summary judgment based on the summary judgment evidence, the motion cannot be granted unless the movant’s evidence, as a matter of law, either conclusively establishes all the elements of the movant’s defense or disproves the facts of at least one element of the plaintiff’s claim. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471-72 (Tex. 1991).
In deciding whether a genuine fact issue exists, this Court must, as always, take as true all evidence favorable to the non-movant, and draw every reasonable inference, and resolve any doubts, in favor of non-movant. Kassen v. Hatley, 887 S.W.2d 4, 9 (Tex. 1994); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Summary judgment may be granted only if reasonable minds could not differ about the conclusions to be drawn from the facts in the record. Childs v. Hausseker, 974 S.W.2d 31, 44 (Texas 1998). All doubts about the existence of a genuine issue of material fact should be resolved against the moving party. See M.D. Anderson, 28 S.W.3d at 23; Johnson Cty. Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996).
In the instant case, Crane Co. has not met its burden to negate an element of Plaintiffs’ claims and establish entitlement to judgment as a matter of law. However, even if it is found that Crane Co. has met its burden, Plaintiffs have presented sufficient competent evidence to raise a genuine issue of material fact which precludes the granting of summary judgment.
ARGUMENT AND AUTHORITIES
Crane Co. Is Liable to Plaintiffs for Injuries Caused by the Foreseeable Uses of Its Valves, Even if the Asbestos Hazard Arises from Component or Replacement Parts Manufactured by Another Company.
A manufacturer is liable for all harm caused by the intended or reasonably foreseeable use of its product. See Otis Elevator Co. v. Wood, 436 S.W.2d 324, 328 (Tex. 1968); Lozano v. H.D. Indus., Inc., 953 S.W.2d 304, 316 (Tex. App. – El Paso 1997, no pet.); Pearson v. Hevi-Duty Elec., 618 S.W.2d 784, 787 (Tex. App. – Houston [1st Dist.] 1981, writ ref’d n.r.e.). In a marketing defect case, “[i]f a manufacturer knows or should know of potential harm to a user because of the nature of its product, the manufacturer is required to give an adequate warning of such dangers.” Bristol-Myers Co. v. Gonzalez, 561 S.W.2d 801, 804 (Tex. 1978); Fibreboard v. Pool, 813 S.W.2d 658, 688 (Tex. App. – Texarkana 1991, writ denied). Particularly 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. See Fibreboard, 813 S.W.2d at 688.
The manufacturer’s duty to warn extends to the dangers resulting from the foreseeable removal and replacement of component parts 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). The reason for this rule is that “[t]he duty to warn, even in terms of replacement, continues to depend upon the foreseeable manner and environment of the use of the product.” Id. (emphasis added). In USX Corp., the seller of an elevatorwas sued after a replacement cylinder slipped and caused the elevator to fall. See id. at 478. Although the evidence in that case was not sufficient to establish that it was foreseeable that the replacement cylinder would malfunction, the court absolutely rejected the argument that the seller had no duty to warn because it was not involved with the marketing of the replacement cylinder. See id. at 482 n.7, 488. Rather, the court held that as a matter of law the manufacturer or supplier of the product does have a duty to warn of hazards arising from the foreseeable use of replacement parts, even when those replacement parts are marketed by third parties. See id. at 488, 488 n.16.As the court explained, “it may be possible for the original retailer to foresee the occurrence of a defectively manufactured replacement part.” Id. at 488 n.16 (emphasis added); 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) (holding that the manufacturer of a tractor could be held liable for a failure to warn of harm caused by component parts manufactured by a third party).
Foreseeability is the touchstone in determining a manufacturer’s duty to warn. For example, Texas courts have held that manufacturers have a duty to warn of dangers associated with misuse of their product as long as such misuse was foreseeable. See Roberts v. W-W Trailer Mfrs., Inc., No. 14-01-00065-CV, 2002 Tex. App. LEXIS 1154, at *9 (Tex. App. – Houston [14th Dist.] Feb. 14, 2002, no pet. h.) (not designated for publication); Coleman v. Cintas Sales Corp., 40 S.W.3d 544, 550-51 (Tex. App. – San Antonio 2001, pet. denied). Moreover, manufacturers have a duty to warn regarding potential harm resulting from anticipated or reasonably foreseeable alterations or modifications of the product. See Salinas, 818 S.W.2d at 488 n.16; General Motors Corp. v. Saenz, 829 S.W.2d 230, 236-37 (Tex. App. – Corpus Christi 1991), rev’d on other grounds, 873 S.W.2d 353 (Tex. 1993). In General Motors, there was a modification of a General Motors truck by the installation of a large water tank on the truck chassis that exceeded the maximum weight limit of the vehicle. See 829 S.W.2d at 234. In rejecting General Motors’s argument that it did not have a duty to warn, the court held that “[i]f it is foreseeable that a product will be modified, a manufacturer has a duty to adequately warn of known or foreseeable dangers associated with such modifications.” Id. at 236-37; see also Hamilton v. Motor Coach Indus., Inc., 569 S.W.2d 571, 575-76 (Tex. Civ. App. — Texarkana 1978, no writ) (holding that a seller is subject to liability if it can anticipate the product 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. App. – Houston [14th Dist.] 1968, writ ref’d n.r.e.) (holding that a product is defective as a matter of law if its anticipated use is likely to create a dangerous condition).
At least two Texas courts have concluded that under Texas law equipment manufacturers have a duty to warn with respect to exterior insulation and other asbestos-containing component parts. See 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), attached hereto as Exhibit I; Order Denying Foster Wheeler’s Motion for Summary Judgment, Grove v. Dresser Industries, Inc., No. D030286-C (260th Judicial District, Orange County Texas), attached hereto as Exhibit J. In the Simkins case, the court denied a no-evidence summary judgment in which the defendant made the exact same argument that Crane Co. has made here, namely that it did not have a duty to warn regarding asbestos-containing products manufactured by other companies. In addition, in the Grove case, the court denied the defendant’s motion seeking summary judgment on the grounds that it did not have a “duty to warn of hazards of exterior insulation.”
Crane Co.’s motion should similarly be denied. Under Texas law, Crane Co. had a duty to warn Mr. Smith of the dangers associated with the use of external insulation and replacement gaskets and packing. It was certainly reasonably foreseeable to Crane Co. that asbestos gaskets, packing and insulation would be placed on and adjacent to its valves and pumps, since these items were required and necessary for Crane Co.’s equipment to function properly as designed. Crane Co. has even admitted that it knew users would have to periodically remove and replace the gaskets and packing in order to maintain the valves and pumps in good working order. See Crane Co.’s Second Supplemental Interrogatory Responses, at Interrogatory No. 8, pp. 52-53 (Exhibit A); Pantaleoni Testimony at 1570:6-12 (Exhibit B). Accordingly, Crane Co.’s duty to warn extended to the external insulation, gaskets, and packing used in conjunction with its products.
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. Smith 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 this 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. As the court explained, “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.” 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).
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 hereto as Exhibit K (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 L; Transcript of Motion Hearing, Feb. 17, 2006, Jensen v. Saberhagen, Superior Court of State of Washington, King County, No. 04-2-20249-3 SEA, at 22-23, attached hereto as Exhibit M (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);Transcript of Rulings on Motions in Limine, Jan. 27, 2005, Walraven v. A.W. Chesterton Co., Superior Court of Commonwealth of Massachusetts, Suffolk County, No. 04-3940, attached hereto as Exhibit N, 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 regarding dangers posed by the foreseeable use of asbestos-containing component and replacement parts.
The Authority Relied on by Defendant is Inapposite.
Crane Co. relies on Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608, 614 (Tex. 1996), Walton v. Harnischfeger, S.W.2d 225, 228 (Tex. App. – San Antonio 1990, writ denied), and Johnson v. Jones-Blair Paint Co., 607 S.W.2d 305, 306 (Tex. App. – Eastland 1980, writ ref’d n.r.e.), to contend that there is no duty under Texas law to warn of the risks of using a product made by another manufacturer. These cases do not support Crane Co.’s position that it did not have a duty in this case.
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. See 927 S.W.2d at 611. Another company, Kelsey-Hayes, subsequently marketed its own wheel, with a design based on, but modified from, Firestone’s original design. See id. 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. See id. at 613. The obvious, fundamental distinction between Barajas and the present case is that the plaintiff in Firestone sought to hold the defendant liable for a death resulting from a product Firestone did not design, make or sell, whereas here, Mr. Smith’s death resulted from a foreseeable use of Crane Co.’s own product which itself contained asbestos parts that inevitably would need replacement.
The other two cases relied on by Crane Co. are likewise inapposite. The Walton case involved the failure of a nylon strap that was used in conjunction with the defendant’s crane equipment. See 796 S.W.2d at 226. As pointed out in the USX Corp. opinion, the Walton case did not involve a component part of the defendant’s product and is therefore distinguishable from cases, such as the instant matter, that involve the manufacturer’s liability for dangers posed by the foreseeable use of component parts. See USX Corp., 818 S.W.2d at 488-89. Similarly, the Johnson case involved a paint manufacturer’s failure to warn of the hazards of removing paint with gasoline and there were no component or replacement parts at issue. See 607 S.W.2d at 305.
Unlike in the cases raised by Crane Co., the evidence presented here, at a minimum, raises an issue of fact as to Plaintiffs’ negligence and strict liability claims. The asbestos insulation, gaskets and packing at issue were component or replacement parts that Crane Co. knew would be used with its valves and pumps as designed. Since Crane Co. also knew that asbestos was unreasonably dangerous, it had a duty to warn potential users of this danger. Crane breached that duty by completely failing to place any warnings on its products.
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.
- ↑ Crane Co.’s traditional motion for summary judgment was filed on October 1, 2007, several days before the October 5 hearing on its no-evidence motion.
- ↑ Pursuant to 42 U.S.C. § 1507, the contents of the Federal Register are subject to judicial notice. Plaintiffs respectfully request that the Court take judicial notice of the contents of the Federal Register relied on by Plaintiffs as summary judgment evidence in this case.
- ↑ 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….’).