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Chesher v. 3M Co.

United States District Court, D. South Carolina, Charleston Division

March 29, 2018

JAMES WILSON CHESHER, and CHERYL ANN CHESHER, Plaintiffs,
v.
3M COMPANY, et al., Defendants.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         This matter is before the court on defendant Crane Co.'s (“Crane”) renewed motion for summary judgment, ECF No. 313. For the reasons stated below, the court grants the renewed motion for summary judgment.

         I. BACKGROUND

         James Wilson Chesher (“Chesher”) is a former machinist mate and a commissioned officer in the U.S. Navy. He and his wife, Cheryl Ann Chesher, (collectively, “plaintiffs”) allege that Chesher's exposure to asbestos throughout his Naval career caused him to develop mesothelioma. Compl. ¶¶ 31-34. Chesher served in the Navy from 1965 to 1989. For a significant portion of his career, Chesher conducted or oversaw maintenance and repair work on various types of equipment, including valves and de-aerating feed tanks-large tanks which remove dissolved oxygen from the water before it is sent to the boiler. ECF No. 226-1, Chesher Video Dep. at 21:21-22:17, 26:10-22; ECF No. 226-2, Chesher First Dep. at 147:7-14. Chesher's work on valves required him, or his subordinate, to remove and replace internal packing and bonnet gaskets, which were frequently made from asbestos-containing materials. Chesher Video Dep. at 26:10-22 (describing work on internal packing and bonnet gaskets); ECF No. 226-9, Pantaleoni Dep. at 24:5-26:24, 57:7-25, 63:3-64:22, 72:9-18 (discussing drawings of valves approved for use by the Navy that specified the use of asbestos-containing materials); ECF No. 226-10, Moore Aff. ¶ 17 (noting that Crane drawings specified use of asbestos containing internal packing and bonnet gaskets for certain valves installed on the USS Henderson and USS Fox). This work produced dust which Chesher breathed in. Pantaleoni Dep. at 27:20-28:25, 30:1-30:21. Chesher's work on de-aerating feed tanks required him to access nozzles inside the tank by crawling through a manhole. Chesher First Dep. at 53:11-15. The record contains evidence that this manhole was sealed by an asbestos-containing gasket, Moore Aff. ¶ 19, which needed to be removed and replaced whenever the tank was inspected. ECF No. 226-3, Chesher Second Dep. at 456:13-18.

         Crane supplied valves for use on board the ships where Chesher performed, or closely supervised, valve maintenance.[1] ECF No. 226-8, Crane Answers to Interrogs. at 20. Indeed, Chesher recalls working on Crane valves frequently throughout his career. Chesher Second Dep. at 420:4-15. Though Crane did not manufacture asbestos-containing sheet packing or gaskets, these products were installed in Crane's valves at the time they were supplied to the Navy, see Pantaleoni Dep. at 24:5-11, 24:24-25:5 (indicating that Crane would have to provide component parts as specified in design drawings at time of delivery), and Crane was aware that the valves' sheet packing and gaskets would need to be replaced periodically. ECF No. 226-5, Crane Catalog No. 60 at 10-11. Crane is also alleged to be the successor-in-interest to Cochrane Corp. (“Cochrane”), which manufactured the de-aerating feed tanks for two of the ships on which Chesher served. Moore Aff. ¶ 19. Like the gaskets used in Crane valves, the gaskets used to seal the manhole on the de-aerating feed tanks would have been replaced periodically-namely, each time the tanks were opened. Id. ¶ 20.

         On April 15, 2015, plaintiffs brought the instant action in the Court of Common Pleas in Richland County, South Carolina, alleging claims for negligence, gross-negligence, negligence per se, conscious pain and suffering, punitive damages, and loss of consortium against a number of defendants. The action was removed to this court on May 22, 2015. ECF No. 1. On March 4, 2016, Crane filed a Daubert motion to preclude specific causation testimony from plaintiffs' expert, Dr. Carlos Bedrossian (“Dr. Bedrossian”). ECF No. 181. The court held an evidentiary hearing on the matter on February 28, 2017, ECF No. 311, and issued an order granting Crane motion on July 21, 2017, ECF No. 312. On August 9, 2017, plaintiffs filed a motion for reconsideration of the order excluding Dr. Bedrossian's specific causation testimony. ECF No. 314. On August 1, 2017, Crane filed a renewed motion for summary judgment, ECF No. 313, and plaintiffs filed a response on August 10, 2017, ECF No. 315. On December 12, 2017, the court held a hearing on the motion for reconsideration and the renewed motion to dismiss, at which it denied Chesher's motion for reconsideration. ECF No. 321. The renewed motion for summary judgment has been fully briefed and is ripe for the court's review.

         II. STANDARD

         Summary judgment shall be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. The court should view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor. Id. at 255.

         III. DISCUSSION

         A. Jurisdiction and Choice of Law

         At the outset, the court notes that the parties agree that the issues presented by Crane's motion fall within the court's admiralty jurisdiction and that this case is therefore governed by maritime law. Def.'s Mot. 5-7; Pls.' Resp. 9. Nevertheless, the court briefly addresses the issue below in order to more authoritatively establish the basis of the court's jurisdiction and the source of the appropriate substantive law.

         The court has federal admiralty jurisdiction over a tort claim if conditions of location and “connection with maritime activity” are met. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). The location test is met if either “the tort occurred on navigable water” or the “injury suffered on land was caused by a vessel on navigable water.” Id. The connection test has two prongs: (1) “whether the incident involved was of a sort with the potential to disrupt maritime commerce”; and (2) “whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.” Id. at 539.

         In asbestos cases, courts applying the location test look to where the plaintiff was exposed to asbestos. See, e.g., Conner v. Alfa Laval, Inc., 799 F.Supp.2d 455, 466-67 (E.D. Pa. 2011); Bartel ex rel. Estate of Rich v. A-C Prod. Liab. Trust, 461 F.Supp.2d 600, 604-05 (N.D. Ohio 2006). Here, all of Chesher's work with Crane valves and Cochrane de-aerating feed tanks occurred when he was serving as a machinist mate and commissioned officer aboard ships in navigable water. Therefore, the location test is met.

         With respect to the first prong of the connection test-whether the incident involved was of a sort with the potential to disrupt maritime commerce-the court must look to the “potential effects” of the incident on maritime commerce and ask “whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping.” Grubart, 513 U.S. at 539. Asbestos MDL Judge Eduardo C. Robreno of the Eastern District of Pennsylvania has held that “claims involving plaintiffs who were sea-based Navy workers” as well as the claims of “shipyard workers” who were “primarily sea-based during the asbestos exposure” meet this test. Conner, 799 F.Supp.2d at 466-68. ...


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