Kimball v. Asbestos Corp. Ltd

ERNEST KIMBALL, for himself and as Personal Representative for the Estate of PHYLLIS KIMBALL, deceased, Appellant, v. ASBESTOS CORPORATION LTD; CROWN CORK & SEAL COMPANY, INC.; E.J. BARTELLS SETTLEMENT TRUST; FOSTER-WHEELER ENERGY CORP.; GARLOCK SEALING TECHNOLOGIES, LLC; GENERAL ELECTRIC COMPANY, a New York corporation; GOULDS PUMPS (IPG), INC.; IMO INDUSTRIES, INC., individually and as successor-in-interest to and f/k/a DELAVAL TURBINE, INC.; IMO DELAVAL INC.; INGERSOLL-RAND COMPANY, a Delaware corporation; METROPOLITAN LIFE INSURANCE CO.; PARKER LUMBER CO., INC.; SABERHAGEN HOLDINGS, INC.; UNIROYAL, INC.; VIACOM, INC., Successor by Merger to CBS Corporation, f/k/a WESTINGHOUSE CORPORATION; and WARREN PUMPS LLC, a Delaware limited liability company, Defendants, and ELLIOTT COMPANY d/b/a ELLIOTT TURBO MACHINERY CO., INC., a Delaware corporation; Respondent.

No. 60851-7-I

Court of Appeals of Washington, Division 1

November 10, 2008

UNPUBLISHED OPINION

AGID J.

Phyllis Kimball (Phyllis) died from mesothelioma caused by asbestos exposure. Phyllis's son, Ernest Kimball IV (Kimball) sued the Elliott Company (Elliott) on behalf of himself and as the personal representative of Phyllis's estate alleging that asbestos from Elliott's deaerating feedwater tanks caused Phyllis's death. Kimball appeals the trial court's order granting Elliott's motion for summary judgment, contending that he introduced sufficient evidence for a reasonable jury to find that Phyllis's exposure to Elliott's asbestos-containing products was a substantial factor causing her death. We agree and reverse.

FACTS

Phyllis's husband, Ernest Kimball III (Ernest), worked as a pipe fitter at the Puget Sound Naval Shipyard (PSNS) and died from intra-abdominal carcinomatosis, a cancer caused by his exposure to asbestos. Kimball asserts that while Ernest was working at PSNS, he would return home from work with asbestos dust on his clothes and that Phyllis's asbestos exposure resulted from her washing Ernest's clothes. Kimball testified that Ernest wore his work clothes home from work they were dusty, and Phyllis always did all of the family's laundry. Kimball also worked at PSNS for a year and a half as an insulator and asserts that his mother washed his clothes during that time as well.

Before his death, Ernest testified in a deposition that he worked as a pipe fitter, pipe fitter's helper, and a rigger at PSNS from 1946-1952 between seasons working as a commercial fisherman. From 1952 until he retired in 1986, Kimball worked as a pipe fitter at PSNS, where pipe fitters "renew[ed] the piping" in their shop and "went out and worked on every ship in the shipyard" when they "didn't have a waterfront crew." Ernest testified that his work in "the shop" formed the hub of his activities. PSNS dispensary records from 1978 state that Kimball had worked in the shipyard for 33 years and spent 50 percent of his time aboard ships. In those records, Ernest said that he was exposed to "asbestos by working with welders using asbestos, by working in the same space with rip-out and blow down and by making asbestos board and mud enclosures for '[illegible] bending.'"^[1] Elliott's expert declared that as a pipe fitter in Shop 56, Kimball's duties would have

principally involved removal, fabrication, and installation of piping systems with work both shipboard and in the Pipe Sh[o]p. His shipboard work would have involved the removal of old piping systems planned for renewal. His shop work would have involved making of targets from old pipe and making new pipe to the configuration of the old using these targets . These primary tasks would have involved working with and around asbestos-containing materials used for insulation and lagging on piping systems, both old and new, up through 1971 . . . His valve work would have taken him aboard ships as well as work in the Pipe Shop. These tasks would have involved working with and around asbestos-containing materials used for insulation and lagging on valves.

Elliott manufactured deaerating feedwater (DA) tanks and components, which the Navy installed on ships to remove dissolved gases from the water feeding the boilers.^[2] Elliott supplied complete DA tanks for at least three Midway class aircraft carriers, each of which had four DA tanks. On Midway class carriers, three of the four DA tanks were adjacent to the engine room, with one DA tank located inside the engine room. Essex class aircraft carriers required two DA tanks, and Elliot provided the upper half of the DA tanks on at least four Essex class aircraft carriers.

Asbestos insulation covered Elliott's DA tanks in accordance with Navy specifications. The insulation conserved heat and helped to make the area near the tanks habitable.^[3] Kimball offered deposition testimony from a shipyard worker with knowledge of Elliott DA tanks who said that it is not possible for a DA tank to operate properly in the absence of asbestos insulation; nor is it possible to perform necessary maintenance on a DA tank without disturbing some of the asbestos insulation or gaskets. Insulated steam and water pipes ran into and out of DA tanks. In the 1950's and 1960's, the Navy specified asbestos insulation for pipes. Elliott did not supply the pipes, or the asbestos insulation for the pipes or DA tanks. It did manufacture the tanks to accept asbestos insulation.

The DA tanks had one or two access manholes. "The United States Navy specified that manhole covers be installed with an asbestos-containing gasket." When Elliott supplied only the upper section of the DA tank, the shipbuilder supplied the asbestos-containing manhole gasket. Elliott did not manufacture asbestos-containing gaskets, but may have supplied the asbestos-containing manhole gaskets when it supplied the whole DA tank. If Elliott originally supplied an asbestos-containing manhole gasket, then Navy crewmembers performing routine maintenance likely would have replaced that gasket with a new asbestos-containing gasket by the time Kimball would have been working around the DA tanks. Navy crewmembers performed semiannual maintenance on the DA tanks.

Ernest provided names of all the ships he had worked on at PSNS. Of those ships, a document from Elliott's representative shows that about 10 aircraft carriers had two Elliott DA tanks each and about four destroyers had two Elliott DA tanks per ship. Elliott's expert testified that "[t]here certainly would" be pipe fitters in the engine compartment of a carrier during a typical overhaul, although in his opinion "the work performed by Mr. Kimball [Ernest] as a Shop 56 Pipefitter at Puget Sound Naval Shipyard would not have placed him working on any equipment manufactured by Elliott."

Kimball offered an expert declaration that "[t]he aerodynamic characteristics of asbestos allow asbestos released in a shipyard to drift widely and accumulate on the worker's clothes, even if the worker worked away from the ships where the asbestos was being released" and that "[a]sbestos exposure at naval shipyards from the late 1940s [through] the early 1970s was extensive and affected people who worked in parts of ships away from where asbestos was being used and indeed affected persons not working aboard ship[s] at all." Ernest testified that the asbestos disturbed by work on asbestos-containing equipment dispersed throughout, and beyond, shipboard spaces:

[Ernest:] They had blowers in the engineering space that won't let the asbestos dust settle. It just kept it going like that.

Q: I think you mentioned that, yes.

A: And they had suckers. They would suck – They would pull suckers down in your space, where asbestos was working. They'd bring it up, topside the next deck, and discharge it.

Based on Ernest's autopsy, Kimball's expert concluded that Ernest had high levels of asbestos exposure. Kimball offered deposition testimony that spouses of people with high levels of exposure get asbestos-related diseases.^[4] Another expert testified about the mechanism of this secondary asbestos exposure: "[t]he asbestos is then distributed in the worker's home when they came home and when their clothes were shaken out in preparation for washing at the home." Kimball offered deposition testimony that any type of occupational or bystander exposure above background levels would be a contributing factor in causing the mesothelioma and that "[i]t is also well accepted . . . that mesothelioma is caused by the combined exposure of an individual to asbestos prior to the cancer coming into existence." Kimball's expert concluded in a deposition that "[Phyllis] had a right pleural epithelial mesothelioma that . . . was caused by her bystander exposure to asbestos from basically washing her husband's clothing over a significant period of time and that her death was caused by mesothelioma."^[5]

Kimball filed a complaint against Elliott, among others, alleging that its asbestos-containing products caused Phyllis's mesothelioma. Elliott moved for summary judgment, claiming that Kimball could not submit sufficient evidence of Ernest's exposure to Elliott's asbestos-containing equipment and, thus, could not show that Elliott caused Phyllis's injuries. Kimball produced evidence in opposition to Elliott's summary judgment motion. Elliott replied in support of its motion for summary judgment and moved to strike much of Kimball's evidence.^[6] Kimball objected to the motion to strike.

The trial court struck evidence from Dr. Samuel Hammar ^[7] Dr. Dorsett Smith's 1995 deposition, Thomas Keenan's 2006 deposition, Andrew Churg's 1995 trial testimony, Barry Castleman's declaration, Robert Leonard's declaration, and the excerpts from the Dictionary of American Naval Fighting Ships. Except for Dr. Smith's testimony, which the trial court considered...