SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
MILTON DARWIN KNUTSON and DELORES MAY KNUTSON,
ALLIS-CHALMERS CORPORATION PRODUCT LIABILITY TRUST; ET AL.,
CASE NO. BC349841
[COMPLEX ASBESTOS LITIGATION-SUBJECT TO THE GENERAL ORDERS CONTAINED IN FILE NO. C700000.]
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT WARREN PUMPS, LLC’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, MOTION FOR SUMMARY ADJUDICATION OF ISSUES
PLAINTIFFS’ RESPONSE IN OPPOSITION TO WARREN PUMPS, LLC’S SEPARATE STATEMENT OF “UNDISPUTED” MATERIAL FACTS; PLAINTIFFS’ SEPARATE STATEMENT DISPUTED MATERIAL FACTS;
DECLARATION OF CAROLIN K. SHINING; PLAINTIFFS’ LODGMENT OF NON-CALIFORNIA AUTHORITIES; and
PROOF OF SERVICE
Hearing Date:April 20, 2007
Hearing Time:8:30 a.m.
Judge: Hon. Victor Person
Action Filed:March 29, 2006
Trial Date:May 29, 2007
MEMORANDUM OF POINTS AND AUTHORITIES
Table Of Contents
SUMMARY OF ARGUMENT
Plaintiffs MILTON KNUTSON and DELORES MAY KNUTSON (“Plaintiffs”) have brought negligence and strict liability claims against Defendant WARREN PUMPS, LLC (hereinafter “WARREN PUMPS” or “Defendant”) for damages arising out of MILTON KNUTSON’S exposure to asbestos from working with and around Defendant’s pumps. WARREN PUMPS is not entitled to summary judgment on Plaintiffs’ claims because it has not met its burden of showing that Plaintiffs cannot establish an element of their causes of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Defendant has therefore failed to shift the burden to Plaintiffs. (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 71-72.)
Assuming Defendant had shifted its burden, Plaintiffs have established a triable issue of material fact with regard to MR. KNUTSON’S exposure to asbestos from Defendant’s pumps. Deposition testimony and Navy documents establish that MR. KNUTSON was exposed to asbestos-containing internal component parts incorporated by WARREN PUMPS into its pumps.
Additionally, Plaintiffs have raised a triable issue of fact regarding MR. KNUTSON’S exposure to asbestos-containing internal and external component parts of Defendant’s pumps supplied by third parties. WARREN PUMPS is liable for injuries caused by its failure to warn of the dangers of such third-party component products because its pumps were designed to be used with asbestos-containing components and the use of such components was foreseeable to the intended use and maintenance of the pumps. See Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co., 129 Cal.App.4th 577, 583 (Cal.App. 2004); Skip Wright v. Stang Manufacturing (1997) 54 Cal. App.4th 1218, 1236; DeLeon v. Commercial Manufacturing and Supply Co. (1983) 148 Cal.App.3d 336, 350.
In addition, Plaintiffs have shown that WARREN PUMPS has failed to provide evidence to establish the three factors necessary to maintain a military contractor defense. In particular, Defendant has not shown and cannot show that any military specification ever prohibited a manufacturer from warning end users — either on product labels or in technical manuals — about the hazards associated with asbestos. See In re Hawaii Federal Asbestos Cases (1992) 960 F.2d 806 (9th Cir.); Butler v. Ingalls Shipbuilding, Inc.(1996) 89 F.3d 582 (9th Cir.); Snell v. Bell Helicopter Textron, Inc. (1997) 107 F.3d 744, 749 (9th Cir.); and Nguyen v. Allied Signal, Inc. (1998) 1998 WL 690854 at *4 (N.D.Cal.).
Because Defendant’s arguments fail as to MR. KNUTSON, they also fail as to the claims of MRS. KNUTSON.
Lastly, pursuant to C.C.P. §437c(h), Defendant’s motion should be continued until discovery is complete.
Accordingly, Defendant’s motion for summary judgment and/or summary adjudication should be denied.
STATEMENT OF FACTS
Plaintiff MILTON KNUTSON, age 69, has been diagnosed with malignant mesothelioma. Declaration of Carolin K. Shining, paragraph 2 (hereinafter “Shining Declaration.”) MR. KNUTSON served in the U.S. Navy from 1955-1958, then again from late 1961 through 1976. Shining Declaration, Exhibits A, B and C. During this period, MR. KNUTSON served as a fireman apprentice, fireman, second and third class machinist mates, increasing in stature through each tour of duty until he became an instructor of machinist mates and then finally, a Chief Machinist Mate. Deposition testimony of MILTON KNUTSON, July 10-15, 18 and 19, 2006 (excerpts of which are attached to the Shining Declaration as Exhibit D (Vol. 1, July 10), Exhibit E (Vol. III, July 11), Exhibit F (Vol. IV, July 12), Exhibit G (Vol. V., July 13), Exhibit H (Vol. 6, July 18), and Exhibit I (Vol. 7, July 19); each excerpt hereinafter referred to as “KNUTSON Deposition, Exhibit __.”)
Over his career as a fireman and machinist mate, MR. KNUTSON worked below deck in the confined machinery areas of several ships, including the following:
USS HANCOCKCVA-19, Essex-class aircraft carrier1955-1959
USS EPPERSONDD-719, Gearing-class destroyer1961-1962
USS COWELLDD-547, Fletcher-class destroyer1962-1966
USS PASSUMPSICAO-107, oil tanker1966-1968
USS MANATEEAO-58, oil tanker1971-1973
USS BLUE RIDGELCC-19, communications ship1973-1976
Shining Declaration, Exhibit A (work history attached to the case report); KNUTSON Deposition, Exhibit D, page 19, lines 18-22 (HANCOCK); Exhibit E, page 608, line 13 through page 60, line 21 (EPPERSON); Exhibit F, page 679, lines 1-10 (COWELL); Exhibit G, page 741, line 9 – 17 (PASSUMPSIC); Exhibit G, page 945, line 23 – page 946, line 6 (MANATEE); Exhibit H, page 1033, line 25 – page 1034, line 25 (BLUE RIDGE.) From 1968 – 1971, MR. KNUTSON was an instructor himself at the same location where he learned his skills as a machinist mate, Great Lakes Naval Training Center.
MR. KNUTSON recalled with great detail numerous repairs on hundreds of pumps of many varieties, including WARREN PUMPS. KNUTSON Deposition, Exhibit D, page 43, line 6 – page 44, line 20. MR. KNUTSON described the procedure for repacking a pump: “Well, first, you’d have to dig the packing out. You have a packing remover or – or you’d probably fashion something yourself if you couldn’t get a packing remover in there and get it dug out, then you’d blow it out with air, clean it up, then you’d cut your packing and start sliding the segments back in on the pumps.” KNUTSON Deposition, Exhibit D, page 34, lines 6-12; see also page 49, line 21 – page 50, line 11. MR. KNUTSON recalled that the process of performing this work brought him into contact with asbestos-containing materials including packing and gasket materials. Id.; see also KNUTSON Deposition, Exhibit F, page 571, line 6 through page 576, line 12 (discussing gasketing material removed from booster and condensate pumps on the USS HANCOCK.) One brand of packing that MR. KNUTSON recalled using was asbestos-containing JOHN CRANE packing. Id.; see also KNUTSON Deposition, Exhibit D, page 54, line 3 – page 55, line 25 and Shining Declaration, Exhibit J (John Crane asbestos packing.)
MR. KNUTSON also recalled that the procedure for repairing pumps required the sanding and scraping of asbestos-containing gasketing materials, blowing off residue with an air hose, clean up and replacing it with a new one. KNUTSON Deposition, Exhibit D, page 50, line 5 – page 51, line 14. This procedure also created dust. Id. MR. KNUTSON specifically recalled removing insulation from WARREN PUMPS on “hundreds” of occasions while in the U.S. Navy. KNUTSON Deposition, Exhibit D, page 72, line 2 – page 72, line 14. This was dusty work, performed by “beating it off the old casings on the steam pumps, cleaning it up, cutting it, putting it back on, blowing it off.” Id.
Lastly, MR. KNUTSON recalled being around and supervising other machinist mates on his crews while performing work with packing and gaskets on pumps, as well as removing insulation from pumps. KNUTSON Deposition, Exhibit D, page 82, line 13 – page 83, line 20; KNUTSON Deposition, Exhibit E, page 464, lines 7-12. He would also stand watch while others performed this dusty work. Id.
MR. KNUTSON never wore a mask or respiratory protection during this work. KNUTSON Deposition, Exhibit D, page 57, lines 13-20. Neither was MR. KNUTSON ever warned by anyone in the Navy that there were any health consequences to breathing asbestos dust, nor told to take any safety precautions while working around asbestos. KNUTSON Deposition, Exhibit H, page 11, line 11 through page 1095, line 6.
Defendant Has Failed to Shift Its Burden of Proof.
Summary judgment is a drastic measure that deprives the losing party of trial on the merits, and thus implicates the party’s constitutional right to a jury trial. Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395. The moving party’s papers are strictly construed, while the opposing party’s papers are liberally construed. Murillo v. Rite Stuff Food, Inc. (1998) 65 Cal.App.4th 833, 840. Any doubts about the propriety of granting the motion must be resolved in favor of the opponent. Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355.
A party moving for summary judgment bears the burden of persuasion that there is no triable issue of fact and that it is entitled to judgment as a matter of law. Aguilar, 25 Cal.4th at 850; Weinstein v. Dept’ of Transp. (2006) 139 Cal.App.4th 52, 57. A defendant can only satisfy its burden on summary judgment by showing that a necessary element of the plaintiff’s case cannot be established or that it has a complete defense to the cause of action. Code Civ. Pro. § 437c.; Aguilar, 25 Cal.4th at 850; City of San Diego v. Superior Court of San Diego (2006) 137 Cal.App.4th 21, 25. Under California law, “a defendant moving for summary judgment [must] present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” Id. at 854. Only if the defendant meets its burdens of persuasion and production does the burden shift to the plaintiff to show that a triable issue of material fact exists. Scheiding v. Dinwiddie (1999) 69 Cal.App. 4th 64, 71-72.
In Scheiding, the appellate court clearly stated that in order for the burden to shift, a defendant must do more than elicit questions from persons at a deposition who are not expected to have the discoverable information. See, e.g., Villa v McFerrin (1995) 35 Cal.App.4th 733. Indeed, the Scheiding court noted that “[n]o California case has concluded that a party moving for summary judgment can simply argue there is an ‘absence’ of facts to support the opposing party’s case. The statue itself states otherwise . . ..” Scheiding, 64 Cal.App.4th at 81 (emphasis in original); see also Gulf Ins. Co v. Berger, Kahn, (2000) 79 Cal.App.4th 114, 133-134.
Defendant does not, and indeed cannot, establish that MR. KNUTSON does not have evidence of exposure to asbestos-containing insulation products from numerous of its pumps. Indeed, there is substantial evidence of such exposure. Under these circumstances, Defendant has failed to shift its burden of proof and summary judgment should be denied.
Plaintiff Has Established Triable Issues of Fact.
Under every standard of causation articulated in any asbestos case brought before the California judiciary, triable issues of material fact are raised by the evidence proffered here by Plaintiffs. These issues include whether MR. KNUTSON was exposed to asbestos-containing internal components of Defendant’s pumps, as well as Defendant’s liability for exposure to asbestos-containing external gaskets and insulation used in conjunction with WARREN PUMPS.
Facts that tend to demonstrate whether a plaintiff presents sufficient evidence of exposure to a particular defendant’s asbestos-containing product have been articulated by several California courts. In Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1415, the court recognized that the concept and language of “substantial factor” in asbestos litigation might be “misused” by defendants if “weighted too heavily.” (emphasis added, cites omitted.) And, as explained in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal App 4th 953, 977:
[T]he jury should be told that the plaintiff’s or decedent’s exposure to a particular product was a substantial factor in causing or brining about the disease if in reasonable medical probability it was substantial factor contributing to the plaintiff’s or decedent’s risk of developing cancer.”
Courts have declined to hold that a plaintiff must prove exposure “extensive enough to cause substantial harm.” Lineaweaver, 31 Cal.App.4th at 1416; Rutherford, 16 Cal App 4th at 977. Consistent with BAJI 3.77 regarding concurrent causes, defendants’ products or conduct typically combine with other causes to result in the harm produced.
The Lineaweaver case established that circumstantial evidence of exposure to a given product can be sufficient to raise a triable issue of fact. Lineaweaver, 31 Cal.App.4th at 1420. There, the plaintiff produced sufficient evidence of exposure by establishing “that defendant’s product was definitively at his work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it . . . .” Id.
This criteria was recently further discussed in Jones v. John Crane Inc. (2005) 132 Cal.App.4th 990. The Jones court concluded that through evidence of plaintiff’s occupational exposure while in the Navy, which included asbestos releases from asbestos-containing packing and gasket products, plaintiff had proven enough exposure showing that the defendant’s rope packing was a substantial factor in contributing to the aggregate dose of asbestos that the plaintiff inhaled. Id. (emphasis added).
1.A triable issue of fact exists that MR. KNUTSON was exposed to asbestos-containing internal gaskets and packing in Defendant’s pumps.
In response to Defendant’s motion, Plaintiffs have produced evidence that MR. KNUTSON was exposed to asbestos dust from insulation that Warren Pumps itself installed in its own products and that he was exposed to asbestos dust generated by the insulation products that Defendant knew were required to be used in connection with its pumps. Throughout his naval career, MR. KNUTSON firmly recalled working with and around WARREN PUMPS. Shining Declaration, KNUTSON Depo., Exhibit D, page 43, line 6 – page 44, line 21; page 73, lines 15 – page 75, line 4; Exhibit I, page 1363, line 2 – page 1366, line 17. WARREN PUMPS’ own plans for the pumps it supplied to the Navy and the Navy’s Insulation Schedule reveal that Warren Pumps were used onboard many of the ships on which MR. KNUTSON served, including the USS EPPERSON and the USS COWELL, and that the pumps contained asbestos. See Exhibit L, (Fire and Bilge Pump); Exhibit M (Emergency Feed Pump); Exhibit N (Salt Water Booster Pump). The Navy’s Insulation Schedule also reflects that the fire and bilge pumps and the emergency feed pumps supplied by Warren Pumps for these two ships were “shipped completely insulated and lagged by the manufacturer.” Exhibit O, at page 7 (“Boilers, Machinery, and Misc. Equipment” and “General Notes,” No. 9).
While MR. KNUTSON served aboard the USS EPPERSON, he worked in the confined machinery spaces, and himself refurbished all the pumps on this vessel except for the circulating pumps. KNUTSON Deposition, Exhibit F, page 622, line 7 through page 624, line 12. On the USS COWELL, MR. KNUTSON also recalled working in the confined machinery spaces during times in which he and others were refurbishing the pumps there. KNUTSON Deposition, Exhibit F, page 695, line 13 – page 704, line 18; page 708, lines 6-14; page 719, lines 3-14. Thus MR. KNUTSON was exposed to WARREN PUMPS’ products, including those that themselves contained asbestos insulation supplied by Defendant.
MR. KNUTSON was also exposed to asbestos insulation manufactured and supplied by other companies, which insulation Defendant knew would be required for the operation of its pumps. Again, Warren Pumps’ own plans for its salt water booster pump used on the USS EPPERSON and USS COWELL show the use of asbestos gaskets with the pumps, Exhibit N (NSR-1884), asbestos insulation to which MR. KNUTSON was exposed when he refurbished the Warren Pumps’ equipment. And correspondence between the Federal Shipbuilding and Dry Dock Co. and the Supervisor of Shipbuilding confirms that additional types of WARREN PUMPS were validated for use on the USS EPPERSON, DD-719, Exhibit P, equipment to which MR. KNUTSON also was exposed.
MR. KNUTSON was also exposed to asbestos insulation used in conjunction with the Warren Pumps equipment when he taught machinist mates at Great Lakes Naval School. MR. KNUTSON was nearby while he watched his students rebuilding the pumps as part of their instruction. KNUTSON Deposition, Exhibit H, page 926, line 6 through page 927, line 20; page 931, line 17 – page 932, line 18; page 933, line 1 – page 934, line 18.
Under the standards set forth in Lineaweaver, 31 Cal.App.4th at 1415; Rutherford, 16 Cal App 4th at 977; and Jones, 132 Cal.App.4th at 990, Plaintiffs have produced sufficient evidence to create a triable issue of fact as to whether MR. KNUTSON’S exposure to asbestos from the equipment manufactured by WARREN PUMPS was a substantial factor in causing his disease. Defendant’s motion should be denied.
2.A triable issue of fact exists as to Defendant’s liability for exposure to asbestos-containing external gaskets and other asbestos insulation used in conjunction with WARREN PUMPS’ equipment.
Defendant contends that it is not liable for injuries caused by MR. KNUTSON’S exposure to asbestos-containing insulation because those products were affixed to its pumps by third parties subsequent to original sale and shipment. Defendant advances this argument, however, only by ignoring prevailing California law.
As an initial matter, well-settled California law provides that product manufacturers are liable for injury caused by component parts, even when supplied by third parties. In Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256, the California Supreme Court held that under strict liability, “regardless of their source . . . a manufacturer of a completed product cannot escape liability by tracing the defect to a component part supplied by another.” Id. at 261 (citing, inter alia, Dow v. Holly Manufacturing Co., 49 Cal.2d 720, 726-27). The Court went on to stress that, “even before such strict liability was recognized, the manufacturer of a completed product was subject to liability for the negligence of his suppliers or subcontractors that resulted in defects in the completed product.” Id.
Though Defendant fails to mention it, the precise argument raised in its motion has been considered and rejected in California. In Tellez-Cordova v. Campbell-Hausfeld/Scott Fetzger Co. (2004) 129 Cal.App.4th 577, the plaintiff was a lamp maker who worked for many years cutting, sanding and grinding metal parts with various power tools, including different types of grinders, that required the use of various abrasive wheels and discs. Id. at 579. After developing pulmonary fibrosis as a result of exposure to the toxic particles released during his work, the plaintiff sued the manufacturers of the grinders he had used as well as the makers of the various wheels, discs, and substances he had been exposed to while operating the grinders. Id. at 579 n.3. The grinder manufacturers moved to dismiss the plaintiff’s complaint, arguing that his injury was not caused by their grinders, but by the substances on and with which the plaintiff used the grinders. Id. at 581. The tool manufacturers also argued that their duty to warn was limited to their own products. Id. The California Court of Appeals flatly rejected such arguments.
In holding that the manufacturer of the grinder was liable for injuries caused by other parts used with the grinder, the critical fact was “not that [the defendants] manufactured component parts to be used in a variety of finished products, outside their control, but instead that [the defendants] manufactured tools which were specifically designed to be used with the abrasive wheels or discs they were used with, for the intended purpose of grinding and sanding metals . . . .” Id. at 582 (emphasis added). The court observed that the defendants were not required “to warn of defects in a final product over which they had no control, but of defects which occur when their products are used as intended – indeed  as they must be used.” Id. at 583. Because the grinders were specifically made to be used with the abrasive wheels and discs that in fact were used, the defendants could not complain “that it was impossible for them to foresee what attachment would be used and to what surface it would be applied.” Id. at 584. Finally, the court reasoned that because a manufacturer has a duty to warn of a foreseeable misuse of its product, it cannot logically “be exempt from liability for the consequences of the intended use.” Id.
Liability for injuries caused by the consequences of a product’s intended use therefore gives rise to a manufacturer’s duty to provide adequate warnings against the potential dangerous posed by the foreseeable combination of their products with other products. In Skip Wright v. Stang Manufacturing (1997) 54 Cal. App.4th 1218, the court considered whether a water deck gun used by firemen was defective when an affixed piece of pipe, that was not part of the deck gun, failed and caused a fireman’s injury. Id. at 1222-24. The affixed pipe was installed by another party. Id. at 1222. In determining whether the manufacturer of the water deck gun provided an adequate warning “against the potential dangerous and foreseeable ‘mismatch’” of the deck gun with the third party’s piece of pipe, the court concluded that “triable issues of fact exist[ed] on the ‘warning defect’ aspect of strict products liability.” Id. at 1236.
Similarly, in DeLeon v. Commercial Manufacturing and Supply Co. (1983) 148 Cal.App.3d 336, the court noted well-settled California law that “the design and manufacture of products should not be carried out in an industrial vacuum but with recognition of the realities of their everyday use.” Id. at 344 (quoting Cronin v. J.B.E. Olson Corp. (1972) 8 Cal.3d 121, 126.) In DeLeon, the court considered whether a storage bin was defective when an adjacent but unrelated piece of machinery severed the plaintiff’s arm. Id. at 340-41. The court held that there was a triable question of fact regarding whether the bin manufacturer was responsible under either strict liability warning defect and negligent failure to warn for the combination of the unrelated piece of machinery and bin together as an entire system. Id. at 350.
Here, Defendant designed its pumps in such a way that asbestos-containing replacement parts would have to be used. Defendant was fully aware that proper maintenance of the pumps would require periodically replacing parts as well as the associated packing and that the gaskets would sometimes have to be replaced; indeed, sixty percent of WARREN PUMPS’ production is in the manufacture of replacement parts. Doktor Deposition, Exhibit Q, page 58, line 21 – page 59, line 2. Because WARREN PUMPS could not be operated without the use of asbestos-containing gaskets and packing, Defendant is liable for MR. KNUTSON’S asbestos exposure during routine maintenance and repair of the pumps.
Defendant is similarly liable, under strict liability and negligence theories, for the actions of the third parties suppling asbestos insulation for use in conjunction with its pumps. MR. KNUTSON had to disturb the external insulation covering the pipes and pumps in order to change the gaskets around the pumps or even just to connect or disconnect the pipes from the pumps. Knutson Deposition, Exhibit D, page 34, lines 6-12. Defendant was certainly aware that its pumps would be connected to pipes by flange gaskets, since they were manufactured according to Navy specifications to permit such. Exhibits L, M, N, and O. Defendant also knew that the pumps and surrounding piping would be insulated externally, as this information too was clearly specified both on the plans Warren Pumps submitted to the Navy and the specifications the Navy provided to Warren Pumps. Id. Therefore, Defendant actually foresaw that the end user of its pumps would use asbestos-containing components to protect the pipes and gaskets sitting directly between the pipe connections and the pump itself.
Deposition testimony and discovery responses clearly establish that Defendant never issued any warnings related to use of asbestos-containing components used inside or in conjunction with its pumps. Doktor Deposition, Exhibit Q, page 54, lines 4-21. This included a lack of warnings on either instruction manuals provided with its products, or on the product itself. Id. This utter failure to warn was contrary to Defendant’s duty under California law to provide adequate warnings against the potential and dangerous foreseeable match of its products with asbestos-containing insulation, packing material, and gaskets. See Tella-Cordova, 129 Cal.App.4th at 583; Skip Wright, 54 Cal. App.4th at 1236; DeLeon, 148 Cal.App.3d at 350.
California law simply does not allow Defendant to escape liability under either strict liability or negligence by placing the blame on asbestos-containing component parts supplied by others.Because WARREN PUMPS were, by admission, designed to contain asbestos, as well as to be used in combination with asbestos gaskets, asbestos packing, and asbestos insulation, there is a triable issue of fact under both strict liability and negligent failure to warn theories. Defendant’s motion should be denied.
3.A triable issue of fact exists as to Defendant’s military contractor defense.
A defendant moving for summary judgment based on an affirmative defense “‘has the initial burden to show that undisputed facts support each element of the affirmative defense.'” Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289 (quoting Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854 (emphasis in quoted citation). “The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial.” Id. at 289-90. If the defendant does not meet its burden, the motion must be denied. Id. at 290. See also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 (If the defendant fails to address a single element or to produce substantial evidence supporting that element, the trial court cannot properly grant summary judgment — even if the plaintiff fails to introduce a scintilla of evidence challenging that element). Finally, the military contractor defense is an affirmative defense. Snell v. Bell Helicopter Textron, Inc.(1997) 107 F.3d 744, 748 (9th Cir.).
In In re Hawaii Federal Asbestos Cases (1992) 960 F.2d 806 (9th Cir.), the Ninth Circuit held that the military contractor defense did not shield the manufacturers of asbestos containing insulation products from liability to sailors who were exposed to manufacturers’ products while onboard Navy vessels. There, the court considered the evidence under the three factors set out in Boyle v. United Technologies Corp. (1988) 487 U.S. 500: whether “‘(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.’” 960 F.2d at 810, quoting Boyle, 487 U.S. at 512. Though the court recognized that the defendant manufacturers were required to adhere to military specifications, it also observed that those specifications “in no way prohibited [the defendants] from placing warnings on their insulation products.” 960 F.2d at 812. Because the manufacturers could have provided statements concerning the dangers of asbestos without violating the pertinent product specifications, the court found that there “existed no conflict between their state law duty to provide adequate warnings to the users of their insulation and the conditions imposed on them pursuant to the agreements they had entered into with the Government.” Id. Under such circumstances, held the court, the very first of the Boyle factors cannot be established: “that in making their decisions regarding warnings they were acting in compliance with ‘reasonably precise specifications’”Id at 813, quoting Boyle, 487 U.S. at 512.
In Butler v. Ingalls Shipbuilding, Inc.(1996) 89 F.3d 582 (9th Cir.), the Ninth Circuit again reached the same result in a case governed by California law. There, the court held that the military contractor defense did not protect the manufacturer of a ship’s ladder built to precise Navy specifications from the plaintiff’s failure to warn claim. Id. at 586. Although the military contractor defense “may be used to trump a design defect claim,” explained the court, the defense has no application to a failure to warn claim without evidence that the manufacturer’s decision not to warn was necessary for compliance with the Government’s “reasonably precise specifications.” Id. See also Snell v. Bell Helicopter Textron, Inc. (1997) 107 F.3d 744, 749 (9th Cir.) (under California law, helicopter manufacturer’s military contract defense was defeated by its own failure to demonstrate either that the government had considered appropriate warnings for the product or that the government had required the exclusion of warnings from the helicopter); and Nguyen v. Allied Signal, Inc. (1998) 1998 WL 690854 at *4 (N.D.Cal.)(in an asbestos case, defendant manufacturers had not established that their failure to warn of the dangers of their asbestos products was required by any Governmental prohibition against such warning).
The cases cited by WARREN PUMPS compel no different result. Indeed, as the Nguyen court observed, the plaintiff’s claim in Sundstrom v. McDonnell Douglas Corp. (1993) 816 F.Supp. 587 (N.D.Ca.), was based on the defective design of an ejection seat on a fighter aircraft – not the manufacturer’s failure to warn foreseeable users of the dangers of its product. Nguyen, 1998 WL 690854 at *3. And in Ramey v. Martin-Baker Aircraft Co. Ltd.(1989) 874 F.2d 946 (4th Cir.) the only case cited by Defendant in which the military contractor defense was held to bar a plaintiff’s failure to warn claim, the court utterly failed to consider the first factor enumerated in Boyle and relied upon by every court to decide the issue under California law – whether the Government’s precise specifications required the exclusion of a warning. Where the military specifications do not forbid the inclusion of a warning, then the specifications are not at odds with California’s law governing a manufacturer’s duty to warn, and the military contractor defense has no application. Butler, 89 F.3d at 586; Snell, 107 F.3d at 749; and Nguyen, at 1998 WL 690854 at *4.
Here, like the defendant manufacturers in the cases discussed above, WARREN PUMPS has completely failed to establish that Navy specifications required Defendant’s failure to warn of the hazards of asbestos contained in its pumps and of the asbestos present during the re-insulation of its pumps and the replacement of the pumps’ parts.
Defendant attempts to satisfy this burden with the affidavit of retired Rear Admiral Roger Horne. But Horne’s affidavit was executed and filed after the time had expired for filing summary judgment evidence; the affidavit cannot be admitted to prove the content of unidentified Navy specifications; and the affidavit is starkly at odds with testimony the retired Admiral has given in other cases. Horne’s affidavit simply does not establish that Defendant’s failure to warn of the dangers of asbestos was required by precise Navy specifications.
- The Horne affidavit should be stricken as untimely filed.
The affidavit of Roger B. Horne, Jr., upon which Defendant bases its military contractor defense, should be stricken from the record entirely. Defendant’s motion was filed on March 12, 2007. Yet, Horne’s affidavit was in fact not attached to the attorney declaration filed in support of Defendant’s motion. It was not until March 16, 2007 that Defendant mailed to Plaintiffs’ counsel the Horne affidavit to serve as Exhibit H to the supporting Declaration of Mary McKelvey. March 16, 2007 letter from Miguel Hernandez to Carolin Shining, attached as Exhibit V to Shining Declaration. This correspondence contained a fax copy of an affidavit that was signed and notarized on March 13, 2007, the day after Defendant’s deadline for filing its motion. Id.
It is well settled that “trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.” McMahon v. Superior Court, 106 Cal.App.4th 112, 118, (2003). Defendant’s counsel did not seek agreement in writing with Plaintiff’s counsel before attempting to file late evidence; and instead, suggested that the Court’s copy of the motion included the Horne affidavit, whereas Plaintiffs’ copy may not have. Shining Declaration, Paragraph 21. But an affidavit signed on March 13, 2007 could not have been included with a Declaration filed in Court on March 12, 2007. Exclusion of the late-signed and filed affidavit under such circumstances is not optional; “Trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.” McMahon, 106 Cal.App.4th at 118.
- The Horne affidavit is not admissible to prove the content of written navy specifications.
Even if the Horne affidavit had been timely filed, it still would be inadmissible to prove the content of written Navy specifications that allegedly prohibit a manufacturer from warning the nation’s young seamen about the dangers of working in confined spaces with asbestos containing equipment. Section 1523(a) of the California Evidence Code plainly provides that “oral testimony is not admissible to prove the content of a writing” except in circumstances not present here. Thus, Horne’s testimony cannot be used to establish the very first of the three factors necessary under Boyle to support application of the military contractor defense: whether the Government approved reasonably precise specifications. And, because WARREN PUMPS has failed to offer any evidence, much less substantial evidence, of a reasonably precise Navy specification that would prohibit a manufacturer from warning about the hazards of asbestos, Defendant has failed to carry its burden. Consumer Cause, 91 Cal.App.4th at 468. Thus, even if Plaintiff did not now offer even a scintilla of evidence challenging this element, Defendant’s motion should be denied.
- Horne’s affidavit fails to prove that no triable issue of fact exists concerning whether a reasonably precise Navy specification prohibited manufacturers from warning of the hazards of asbestos.
Finally, even had Horne’s affidavit been timely filed and even were it admissible to prove the content of reasonably precise military specifications, there still would remain triable issues of fact concerning the application here of the military contractor defense. This is because Horne has previously admitted, in testimony inconsistent with that given in his late-filed affidavit, that he has no knowledge of any Navy specification that forbade a warning concerning the hazards of asbestos.
First, retired Rear Admiral Horne has no basis on which to offer several of the opinions contained in his late-signed and filed affidavit. He, himself, never made any decisions concerning the use of asbestos aboard Navy vessels. HORNE Deposition,, Exhibit R, page 39, lines 6-14. Horne does not even know who was in charge of making such decisions. HORNE Deposition, Exhibit R, page 39, line 24 – page 40, line 1. Horne has no personal knowledge concerning any decision by the Navy to prohibit warnings of the dangers of asbestos on equipment installed in Navy vessels during much of the time that MR. KNUTSON served in the Navy. HORNE Deposition, Exhibit R, page 39, lines 18-23.
Further, the retired admiral is unaware of any Navy specification that prohibited a manufacturer from putting a warning label about asbestos on asbestos-containing products provided to the Navy. HORNE Deposition, Exhibit R, page 32, lines 6-15. He knows of no case where the Navy forbade placing a warning on equipment that contained asbestos insulation. HORNE Deposition, Exhibit R, page 54, line 24 – page 55, line 14. And he has admitted that there is no Navy specification dealing specifically with whether warnings should or should not be placed on asbestos-containing equipment aboard Navy vessels. HORNE Deposition, Exhibit R, page 58, line 25 – page 59, line 6.
Neither was Warren Pumps aware of any military specification that would prohibit it from placing a warning in any of its technical manuals. DOKTOR Deposition, Exhibit Q, page 44, line 17-20. In fact, Warren Pumps has been placing warnings on its pumps at least since 1978 that read: “Do not operate this equipment at design pressures or ratings other than it was designed for.” DOKTOR Deposition, Exhibit Q, page 54, lines 4-21. Defendant just never warned about asbestos. DOKTOR Deposition, Exhibit Q, page 155, lines 17-19.
Retired Rear Admiral Horne is aware, however, of a Navy specification that actually requires warning in technical manuals of procedures that cause serious injury or death and he has admitted that such specification refers not only to operating procedures, but also to installation, maintenance and repair. HORNE Deposition, Exhibit R, page 43, line 24 – page 44, line 7; page 46, lines 2-5, 13-21; page 47, lines 3-14; page 48, lines 1-4; Exhibit No. 2 to HORNE deposition. Navy personnel were made aware of how to maintain and repair Warren Pumps products by reference to these technical manuals. DOKTOR Deposition, Exhibit Q, page 31, lines 14-22; page 33, lines 9-12. Thus, had warnings been provided in these manuals, the sailors would have had an opportunity to learn how to protect themselves when working around the asbestos insulation the products required.
And although the retired Admiral holds a personal belief that warnings concerning asbestos would not generally belong in a technical manual, he has explained that his opinion is targeted at a particular piece of equipment where the insulation “is not something that the contractor furnishes as part of that equipment.” HORNE Deposition, Exhibit Q, page 98, line 13 – page 99, line 4. Obviously, the situation in this case is very different from that described by Horne; in this case, WARREN PUMPS actually supplied at least two of its pumps pre-insulated, as part of the equipment to which Plaintiff was exposed. See Exhibit O.
And, in stark contrast to his testimony now in his late signed and filed affidavit, Horne has previously testified that he has no idea what the Navy knew or what industry knew concerning the hazards of asbestos prior to 1968 or 1969; HORNE Deposition, Exhibit R, page 93, lines 23-25; or whether the Navy or any particular contractor knew more or less concerning the hazards of asbestos. HORNE Deposition, Exhibit R, page 94, lines 19-22.
Indeed, Horne has testified that he doesn’t even know when the Navy learned about the hazards of asbestos. HORNE Deposition, Exhibit R, page 52, lines 22-24. But he does know that if there were any kind of fatal hazard connected with the use of any naval equipment, the Navy would wants its sailors to know of the hazard and to be trained properly to deal with it. HORNE Deposition, Exhibit R, page 102, line 17 – page 103, line 8. And, when the Navy learned about the hazards of asbestos, the danger was considered serious. HORNE Deposition, Exhibit R, page 52, lines 1-9.
In short, retired Rear Admiral Horne’s late-signed and filed affidavit falls far short of demonstrating that “under no hypothesis” is there a material factual issue requiring trial on Defendant’s military contractor defense. Anderson, 72 Cal.App.4th at 289. Defendant’s motion on the military contractor defense should be denied.
Summary Adjudication of DELORES MAY KNUTSON’s Loss of Consortium Claim is Improper.
Because Defendant’s arguments fail as to MR. KNUTSON, they also fail as to MRS. KNUTSON’s loss of consortium claim.
Defendant’s Motion Should Be Continued Pursuant to C.C.P. §437c(h).
A party that stands in opposition to a summary judgment motion may seek a continuance of the motion if it can show, from affidavits offered, that additional time is needed to obtain facts essential to justify opposition to the motion. C.C.P. §437c(h). Once the showing is made, continuance is mandatory. Bahl v. Bank of America (2001) 89 Cal. App. 4th 389; Cooksey v. Alexakis (2004) 123 Cal. App. 4th 246, 253-54. Further, the motion should not be granted if discovery has not been completed or if the opposing party’s attempts to obtain important evidence have been frustrated. Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal. App. 4th 164, 174.
On February 19, 2007, plaintiffs’ noticed the deposition of WARREN PUMPS’ corporate representative for March 17, 2007. Shining Declaration, Exhibit S. WARREN served boilerplate objections. In an effort to meet and confer, Plaintiff’s counsel sent two letters and made several phone calls to defense counsel Mary McKelvy, but Ms. McKelvy stalled and failed to provide any dates certain for this deposition. Plaintiffs’ counsel specifically was willing to stipulate to hear this motion after the deposition, but defendant did not respond to this offer. Defendant WARREN PUMPS refuses to give a deposition relating to its liability in general, but instead tends to produce only documents in each case relating to a particular ship at issue. No responsive letters or telephone messages have been received in response to date. Shining Declaration, Exhibit T, paragraph 21. Thus, a continuance is mandatory as issues relating to those presented by defendant will be the subject of this deposition.
Defendant’s motion for summary judgment must be denied as it has failed to shift its burden to negate an element of Plaintiffs’ negligence and strict liability claims. Moreover, Plaintiffs have established triable issues of fact with respect to MR. KNUTSON’S exposure to asbestos-containing products manufactured by Defendant and Defendant’s liability for injury caused by its failure to warn of the dangers of the asbestos-containing component parts integral to the design and intended use of its pumps. Further, Plaintiffs have shown that Defendant has failed to prove that there exists no triable issue of fact regarding its military contractor defense. Defendant’s motion should be continued until discovery is complete and/or denied in all respects.
DATED this 6th day of April, 2007.
- ↑ “Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.” Cal. Evid. Code 1235.