Opinion
C.A. No. N10C-09-211 ASB
05-31-2012
IN RE ASBESTOS LITIGATION: THOMAS MILSTEAD Limited to: Superior-Lidgerwood-Mundy Corp.
Appearances: Michael L. Sensor, Esquire Perry & Sensor Wilmington, Delaware Counsel for Plaintiffs Paul D. Sunshine, Esquire McGivney & Kluger, P.C. Wilmington, Delaware Counsel for Defendant
MEMORANDUM OPINION
Appearances:
Michael L. Sensor, Esquire
Perry & Sensor
Wilmington, Delaware
Counsel for Plaintiffs
Paul D. Sunshine, Esquire
McGivney & Kluger, P.C.
Wilmington, Delaware
Counsel for Defendant
JOHN A. PARKINS, JR., JUDGE
Plaintiff, Thomas Milstead, worked in the United States Navy as a machinist mate from 1965-1969. He alleges asbestos exposure stemming from M.T. Davidson Co.'s pumps. Defendant, the successor-in-interest to M.T. Davidson Co., moves for summary judgment on product nexus grounds and asserts it did not owe a duty to Plaintiff for asbestos-containing replacement parts added to its products after sale. Therefore, this motion comes down to two issues. Whether product nexus is met for the original asbestos-containing parts of Defendant's pumps and whether Defendant owes a duty for asbestos-containing replacement parts added to its pumps after sale. Based on the reasoning below, the court finds Plaintiff has not made a prima facie case for product nexus with original asbestos-containing parts manufactured by Defendant and under Maryland law a manufacturer does not owe a duty to warn for asbestos-containing replacement parts. Therefore, summary judgment is GRANTED.
FACTS
Plaintiff served in the navy from 1965-1969 and served onboard the USS Independence. He stood watch over the machinery in main machine room number one and repaired broken machinery. This included working on pumps. In main machine room number one there were two M.T. Davidson auxiliary pumps, which likely contained asbestos. There is no direct evidence that Plaintiff worked on those pumps, but Plaintiff has provided circumstantial evidence to establish Plaintiff likely was exposed to asbestos emanating from Defendant's pumps. However, Plaintiffs' expert, Captain William Lowell, testified the pump's original packing and gaskets would likely have been removed before Plaintiff ever boarded the ship. Therefore, any asbestos exposure from Defendant's pumps would have come from replacement parts. Defendant's pumps were frequently maintained and that maintenance included the removal of component parts and packing and their replacement. There is no evidence in the record establishing Defendant as the manufacturer or seller of the asbestos-containing replacement parts.
STANDARD OF REVIEW
In considering a motion for summary judgment the court views the facts in the light most favorable to the nonmoving party and will only grant summary judgment when "the moving party has demonstrated that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law." The question of whether a legal duty exists "is a question of law for the Court to determine."
Bantum v. New Castle County Co-Tech Educ. Ass'n, 21 A.3d 44, 48 (Del. 2011) (citations omitted).
Riedel v. ICI Americas Inc., 968 A.2d 17, 20 (Del. 2009) (citing New Haverford P'ship v. Stroot, 772 A.2d 792, 798 (Del. 2001)); see Simonetta v. Viad Corp., 197 P.3d 127, 131 (Wash. 2008) (en banc).
PRODUCT NEXUS ANALYSIS
The Maryland Court of Appeals recently provided the product nexus standard in asbestos cases in Reiter v. Pneumo Abex, LLC. The court explained:
8 A.3d 725, 732 (Md. 2010) (emphasis added).
Whether the exposure of any given bystander to any particular supplier's product will be legally sufficient to permit a finding of substantial-factor causation is fact specific to each case. The finding involves the interrelationship between the use of a defendant's product at the workplace and the activities of the plaintiff at the workplace. This requires an understanding of the physical characteristics of the workplace and of the relationship between the activities of the direct users of the product and the bystander plaintiff. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product.
Id. (quoting Eagle-Picher Indus. v. Balbos, 604 A.2d 445, 460 (Md. 1992)) (internal citation omitted).
Viewing the evidence in the light most favorable to Plaintiffs, a reasonable jury could infer that Plaintiff worked around Defendant's pumps and that the pumps had asbestos-containing parts and packing in/around them. However, there is no evidence in the record to support a finding that Plaintiff was exposed to an original asbestos-containing part manufactured or supplied by Defendant. Plaintiffs' own expert opined it is more likely than not the original asbestos components had been removed from Defendant's products prior to Plaintiff even boarding the ship. Therefore, summary judgment is GRANTED on product nexus grounds for Defendant's original asbestos-containing parts.
REPLACEMENT PARTS ANALYSIS
The parties agree that Defendant's pumps underwent frequent maintenance in which component parts and packing were removed and replaced. Plaintiffs allege liability against Defendant for other manufacturers packing and replacement parts added to the pumps after sale. Defendant directs the court to a decision by the Court of Special Appeals of Maryland, Ford Motor Co. v. Wood and argues it is not liable for replacement parts added to its product after sale. In response Plaintiffs argue that any language in the decision to that effect is dicta and Maryland trial courts have not interpreted it in the manner argued by Defendant.
703 A.2d 1315 (Md. Ct. Spec. App. 1998) (noting this case has been cited with approval nationally).
In Wood a former mechanic sued Ford among others alleging asbestos exposure. The jury returned a verdict for the plaintiff and the defendant appealed. One of the questions before the court was "[w]hether there was sufficient evidence of Mr. Wood's exposure to Ford's brake and clutch parts to submit to the jury the issue of substantial factor causation in the Wood case."The court also recognized that the plaintiff "raise[d] the novel question of whether Ford can be held liable for failure to warn of the latent dangers of asbestos-containing brake and clutch products that it neither manufactured nor placed into the stream of commerce." The court determined the replacement parts liability theory had not been tried and the trial court was correct to not allow that theory to go to the jury. Important here, however, is that he court found, as an alternative basis for its holding, that manufacturers are not liable for injuries caused by replacement parts it did not manufacture. Hence, it is not dicta. Even assuming the Court of Special Appeals' language is dicta, this court finds it persuasive in predicting how Maryland's highest court would rule on the issue.
Id. at 1319.
Id.
Id. at 1330.
The Wood court considered several decisions nation-wide. The court stated, that the plaintiff's argument "that [defendant] had a duty to warn of the dangers associated with the foreseeable uses of its vehicles, obscures the fact that she really is attempting to hold [defendant] liable for unreasonably dangerous replacement component parts that it neither manufactured nor placed into the stream of commerce." The court recognized that defendants may have liability for defective component parts manufactured by another if the defendant "incorporated the defective component into its finished product." However, that "assembler's liability" theory is "not advanced by making a manufacturer liable for component parts that it did not market or place into the stream of commerce, and thus, [courts] have limited liability to those entities in the defective component's chain of distribution." The court noted that "regardless of whether [defendant's] duty to warn sounds in negligence or strict liability, it has a duty to warn only by virtue of its manufacture or sale of unreasonable dangerous products." Accordingly, the court found no "liability under that theory as a matter of law."
Id. at 1331.
Id. (citations omitted).
Id. (citation omitted).
Id. at 1331 n. 7.
Id. at 1331.
Plaintiffs point to one hearing transcript in Barnes v. ACandS, Inc. in which the Circuit Court for Baltimore City considered many issues in a consolidated case. The exact holding is unclear as the court denied summary judgment and stated "if there is a problem, we'll talk about it on Tuesday."However, plaintiffs direct this court to the court's statement regarding Wood:
Transcript of Oral Argument, Consolidated Case No. 24X09000503 (Md. Cir. Ct. Nov. 3, 2011) (noting this case has been referred to at times as the Triplett case by the parties).
Id. at 179:21-180:1.
I think, honestly, the way I generally dealt with that is I have basically said, rightly or wrongly, that as long as the use of asbestos technologically was the obvious thing to do and was the integral part—referring back to an earlier argument—an integral part of the system that was designed and built at which it was operating, that the manufacturer of the bare metal will be responsible. It is a debatable argument. It has been held different ways different places. That is how I generally dealt with it.The trial court judge in Barnes acknowledged, however, that courts have gone different directions on this issue.
Id. at 171:11-172:2.
This court finds the Special Court of Appeals decision persuasive and predicts the Maryland Court of Appeals would hold similarly. Therefore, the court finds Defendant does not owe Plaintiff a duty to warn for replacement parts it did not manufacture or place in the stream of commerce sounding under negligence or strict liability under Maryland law.
The court also finds Defendant does not owe a duty under a design defect theory for the reasons stated on the record at oral argument.
This reasoning applies similarly to Plaintiffs' strict liability design defect claim. Plaintiffs argue the court must employ the "consumer expectations test." However, before the court would consider that test it must determine if Maryland would recognize the claim for replacement parts. Maryland adopted strict liability in Phipps v. General Motors Corp. That doctrine developed from a series of cases that were "a departure from, and an exception to, the general rule that a supplier of chattels was not liable to third persons in the absence of negligence or privity of contract." Maryland courts have explained"
363 A.2d 955, 963 (Md. 1976) (citing Restatement (Second) of Torts §492(A)) (1965).
Restatement (Second) of Torts §492(A) cmt. B (1965).
to recover in an action for strict liability, "it must be established that (1) the product was in a defective condition at the time that it left the possession or control of the seller, (2) that is was unreasonably dangerous to the user or consumer, (3) that the defect was a cause of the injuries, and (4) that the product was expected to and did reach the consumer without substantial change in its condition."
Halliday v. Sturm, Ruger & Co., Inc., 92 A.2d 1145, 1150 (Md. 2002) (quoting Phipps, 363 A.2d at 958).
The American Law Institute did not take a position as to whether strict liability applied "to the seller of a component part of a product to be assembled." The Wood court recognized this "assembler's liability" has been justified by other courts
Id. at Caveat 3.
because the assembler derives an economic benefit from the sale of a product that incorporates the component; the assembler has the ability to test and inspect the component when it is within its possession; and by including the component in its finished product, the assembler represents to the consumer and ultimate user that the component is safe.However, the court recognized a limitation on that liability to products that the defendant "placed into the stream of commerce." Considering Wood together with Maryland's strict liability jurisprudence, the court finds the asbestos-containing replacement parts here are not part of the product sold by Defendant because they were not placed into the stream of commerce by Defendant. Therefore, Defendant is not liable for them under strict liability and the court need not consider the consumer expectations test. Because the court has find liability does not attach for replacement parts under a failure to warn theory in strict liability and negligence as well as strict liability design defect theory, summary judgment is GRANTED as to replacement parts.
Wood, 703 A.2d at 1331 (citations omitted).
Id. (citations omitted).
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CONCLUSION
The court finds Plaintiff has not produced evidence that Plaintiff was exposed to asbestos from original asbestos-containing parts manufactured or supplied by Defendant, and under Maryland law Defendant does not owe a duty to warn for asbestos-containing replacement parts. Accordingly, Defendant's motion for summary judgment is GRANTED.
IT IS SO ORDERED.
______________________
Judge John A. Parkins, Jr.