Johnson v. Allis-Chalmers Corp. Prod. Liab. Trust

11 F.Supp.3d 1119

Ronald P. JOHNSON, as Personal Representative of the Estate of H. Paul Johnson, deceased, Plaintiff

v.ALLIS–CHALMERS CORPORATION PRODUCT LIABILITY TRUST, et al., Defendants.

Case No. 14–CV–011–SWS.

United States District Court, D. Wyoming.

Signed April 7, 2014.

G. Patterson Keahey, Jr., Lawrence Holcomb, Law Offices of G. Patterson Keahey, PC, Birmingham, AL, for Plaintiff.

Owens–Illinois Inc., pro se.

Walter S. Jenkins, Maron Marvel Bradley & Anderson LLC, Philadelphia, PA, Christopher Conley, Evert & Weathersby, LLC, Atlanta, GA, T. Thomas Singer, Axilon Law Group, PLLC, Christopher C. Voigt, Crowley Fleck, Billings, MT, James C. Worthen, Jeff S. Meyer, Andrew F. Sears, Murane & Bostwick, Casper, WY, Megan Overmann Goetz, Pence & MacMillan, Laramie, WY, Lamar F. Jost, Wheeler Trigg O'Donnell, Denver, CO, Tracy H. Fowler, Snell & Wilmer LLP, for Defendants.

MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

SCOTT W. SKAVDAHL, District Judge.

This matter comes before the Court on motions for summary judgment filed by the following defendants (collectively, “Defendants”):

(1) Gardner Denver, Inc. (ECF No. 151);

(2) Bechtel, Inc. (ECF No. 152);

(3) FMC Corporation (ECF No. 153);

(4) CBS Corporation (ECF No. 155); and

(5) General Electric Company (ECF No. 156).

Plaintiff Ronald Johnson filed responses opposing each motion. (ECF Nos. 160–164.) The Court heard oral argument on the matters on March 28, 2013. Having considered the motions and responses, the arguments of counsel, the record herein, and being otherwise fully advised, the Court finds the motions should be granted.

BACKGROUND

This multidistrict litigation was centralized in the Eastern District of Pennsylvania in 2011. The Pennsylvania federal court then transferred the lawsuit to this Court in December 2013 under 28 U.S.C. § 1404(a), primarily based on witness convenience and evidence availability. (ECF No. 187.)¹

Plaintiff Ronald Johnson is the appointed personal representative of the estate of H. Paul Johnson (Mr. Johnson). Mr. Johnson died in December 2009 from malignant mesothelioma (a form of cancer most commonly caused by exposure to asbestos).

Plaintiff contends Mr. Johnson was exposed to Defendants' asbestos during his years of employment in Wyoming. Mr. Johnson worked as a carpenter at the Dave Johnston Power Plant in Wyoming from approximately 1952 to 1963. In 1963, he became a “Business Agent” (union representative) for the carpenters union. As a Business Agent, he traveled throughout much of Wyoming to visit his carpenter constituents, meet with businesses, and address any work complaints. Of significance here, Mr. Johnson visited the Dave Johnston Power Plant (DJPP), the Jim Bridger Power Plant (JBPP), and the FMC Green River soda ash plant at least every month as a Business Agent. He remained a union representative until at least 1978 or 1979, when it appears he moved to Washington State for a while. He later returned to Wyoming (but it's unclear when), where he spent the remainder of his life.

Plaintiff asserts these five defendants either produced asbestos-containing products to which Mr. Johnson was exposed (on a theory of strict product liability) or owned/maintained/controlled the premises on which Mr. Johnson was subjected to asbestos inhalation (on a theory of premises liability). Specifically, Plaintiff alleges Mr. Johnson's work as a Business Agent took him all over the facilities for various formal and informal meetings, which exposed him to the full gamut of each facility's conditions. Defendants seek summary judgment, arguing Plaintiff cannot identify any evidence linking them to Mr. Johnson's mesothelioma.

CHOICE–OF–LAW

Preliminarily, the Court must resolve a choice of law question. The parties disagree regarding whether Wyoming or Pennsylvania's substantive law governs this lawsuit. Plaintiff argues Wyoming law applies and is less stringent than Pennsylvania's well-developed asbestos law, and Defendants disagree among themselves.

This lawsuit was transferred from Pennsylvania to Wyoming pursuant to 28 U.S.C. § 1404(a). The United States Supreme Court has made clear that the substantive law of the transferor court applies.

We decide that, in addition to other considerations, these policies require a transferee forum to apply the law of the transferor court, regardless of who initiates the transfer. A transfer under § 1404(a), in other words, does not change the law applicable to a diversity case.

Ferens v. John Deere Co., 494 U.S. 516, 523, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990) ; see also Benne v. Int'l Bus. Machines Corp., 87 F.3d 419, 423 (10th Cir.1996) (“The rule is settled that when a district court grants a venue change pursuant to 28 U.S.C. § 1404, the transferee court is obligated to apply the law of the state in which the transferor court sits.”). Therefore, this Court must apply Pennsylvania substantive law to this case, which includes Pennsylvania's choice-of-law provisions. See Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir.1996) (“where a case is transferred from one forum to another under 28 U.S.C. § 1404(a), as here, then the transferee court must follow the choice of law rules of the transferor court”).

I. Pennsylvania's Choice–of–Law Rules

Pennsylvania's choice-of-law jurisprudence in personal injury actions sets forth a two-step inquiry:

[T]he first step in a choice of law analysis under Pennsylvania law is to determine whether a conflict exists between the laws of the competing states. If no conflict exists, further analysis is unnecessary. If a conflict is found, it must be determined which state has the greater interest in the application of its law.

Titeflex Corp. v. Natl. Union Fire Ins. Co. of Pittsburgh, 88 A.3d 970, 979, 2014 WL 868623, at *6 (Pa.Super.Ct.2014). Significant to this case, though, “[u]nder general conflict of laws principles, where the laws of the two jurisdictions would produce the same result on the particular issue presented, there is a ‘false conflict,’ and the [c]ourt should avoid the choice-of-law question.” Id. at 979, at *7 (quoting Williams v. Stone, 109 F.3d 890, 893 (3d Cir.1997) ). As examined infra, the Court finds no true conflict between the applicable Pennsylvania and Wyoming substantive law, and therefore never progresses beyond the first step of Pennsylvania's choice-of-law test.

II. Choice–of–Law Analysis Concerning Causation

The two causes of action at issue in the motions for summary judgment are strict product liability and negligence (premises liability). Both Pennsylvania and Wyoming recognize product liability claims based on § 402 of the Restatement (Second) of Torts and require a plaintiff to prove causation as an element of their claim, i.e., that the allegedly defective product was the legal cause of the plaintiff's injuries. See, e.g., Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa.Super.Ct.2010) ; Ogle v. Caterpillar Tractor Co., 716 P.2d 334, 342–44 (Wyo.1986). Pennsylvania and Wyoming's negligence law is identical as well. Pertinent here, both require the plaintiff to prove causation as an element of negligence. See, e.g., Yorty v. PJM Interconnection, LLC, 79 A.3d 655, 662 (Pa.Super.Ct.2013) ; Formisano v. Gaston, 2011 WY 8, 246 P.3d 286, 290 (Wyo.2011).

To prove legal causation, both states require the plaintiff to show the defendant's product or negligence was a “substantial factor” in bringing about the plaintiff's harm. Pennsylvania recently commented:

[T]he defendant's conduct must be shown to have been the proximate cause of plaintiff's injury. Proximate cause is a term of art denoting the point at which legal responsibility attaches for the harm to another arising out of some act of defendant; and it may be established by evidence that the defendant's negligent act or failure to act was a substantial factor in bringing about the plaintiff's harm.

Polett v. Pub. Commc'ns, Inc., 83 A.3d 205, 212 (Pa.Super.Ct.2013) (quoting Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284 (1978) ). Wyoming describes legal causation in the same terms:

In order to qualify as a legal cause, the conduct must be a substantial factor in bringing about the plaintiff's injuries.

Collings v. Lords, 218 P.3d 654, 657 (Wyo.2009) (quoting Foote v. Simek, 139 P.3d 455, 463 (Wyo.2006) ).

On this much at least, the parties seem to agree. The disagreement arises when looking specifically at asbestos cases. Pennsylvania has entertained a significant number of asbestos cases and has refined its test for substantial-factor causation to a greater degree (with specific regard to asbestos cases) than has Wyoming. To establish a specific defendant's liability in an asbestos claim, the plaintiff “must establish that the injuries were caused by a product of the particular manufacturer or supplier.” Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 52 (1988). To this end, Pennsylvania has adopted the “frequency, regularity, and proximity” standard for determining substantial-factor causation in asbestos cases. Gregg v. V–J Auto Parts Co., 596 Pa. 274, 943 A.2d 216, 225–27 (2007). This standard refers to the claimant's level of exposure to a particular defendant's asbestos-containing product, i.e., it requires the plaintiff to demonstrate the frequency of the use of the product and the regularity of the claimant's employment in proximity thereto. Eckenrod, 544 A.2d at 53. Additionally, Pennsylvania specifies this test is appropriately applied at the summary judgment stage. Gregg, 943 A.2d at 227.

This “frequency, regularity, and proximity” standard is undoubtedly a more refined approach to asbestos causation than Wyoming has applied. However, it is only that—a refinement of the substantial factor requirement for proving causation. It is not a different legal rule or test. Recent Pennsylvania cases reinforce the fact that the “frequency, regularity, and proximity” standard measures substantial-factor causation:

• The three factors “are to be

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