By David Yucht, J.D.
In the Fifth Circuit, a jury’s allocation of fault for asbestos-related injury will not be disturbed, even if there is no direct evidence that an injured person had worked with a specific company’s products.
A federal judge in Louisiana found that the estate of a naval machinist mate made sufficient showings that the decedent was exposed to asbestos from various manufacturers’ asbestos-containing products while serving on board two nuclear submarines. Consequently, the court denied summary judgment dismissing the case as to three manufacturers, Air & Liquid Systems Corp., Flow serve US, Inc., and Spirax-Sarco, Inc. However, the estate had insufficient evidence as to Velan Valve Corp. and was unable to prove successor liability as to Tate Andale, Inc. for products made by the Andale Co. (McAllister v. McDermott, Inc., August 14, 2020, Dick, S.).
A U.S. Navy machinist mate served on two nuclear submarines during the 1960s. He worked in the engine rooms maintaining equipment. He worked with and around asbestos-containing gaskets, packing, and insulation while maintaining valves, pumps, and steam traps. Because pre-formed gaskets were not available, machinist mates were required to make custom asbestos gaskets. The machinist mate at issue also allegedly was exposed to dust when he removed old asbestos gaskets from equipment. Other workers in his presence often worked with asbestos-containing products, exposing him to asbestos dust. In addition, he worked with asbestos-containing packing that was used as a seal on pumps and valves. He developed mesothelioma in 2017. He suednumerous companies, including Tate Andale, Spirax-Sarco, Velan Valve, Air & Liquid Systems, and Flow serve US, alleging that he was exposed to asbestos and asbestos-containing products manufactured by them or their predecessors. His estate pursued his case following his death. The five companies mentioned here moved for summary judgment.
Substantial factor causation. The court concluded that summary judgment was improper for most of these companies. Under general maritime law, to recover against any of the companies, the estate needed to prove that the injury was "legally caused" by that company. A proximate, or legal, cause is "something more than ‘but for’ causation, and the negligence must be a ‘substantial factor’ in the injury." Whether a company’s conduct was a substantial factor in causing injury is an issue for a jury to consider unless a court determines that reasonable people could not differ. In the U.S. Court of Appeals for the Fifth Circuit, a jury’s allocation of fault for asbestos-related injury will not be disturbed, even if there is no direct evidence that an injured person had worked with a specific company’s products.
Concerning Velan Valve, however, the court found that the estate failed to present sufficient evidence demonstrating exposure to Velan products. Although the decedent had identified several manufacturers in his testimony, he never identified a Velan product. Likewise, no other fact witness identified any Velan products on board the decedent’s vessels, and the estate’s expert witness could not cite to any naval records placing Velan products aboard the submarines on which the decedent had served. A mere possible presence of Velan products aboard the submarines was insufficient to make out a case.
The motion for summary judgment filed by Air & Liquid, as successor by merger to Buffalo Pumps, Inc., was denied. The decedent had testified that he worked on Buffalo pumps many times and described what a Buffalo pump looked like. The estate also pointed to documents evidencing the sale of Buffalo pumps for use aboard both the decedent’s vessels. These documents indicated that the Buffalo pumps used on at least one of the ships had asbestos-containing gaskets and packing. Flow serve’s motion also was denied, substantially for the same reasons as Air & Liquids’ motion, i.e., the decedent identified working on Flow serve’s predecessors’ asbestos-containing products while serving on the submarines.
Successor liability. Based on Louisiana law, the court found that Tate Andale was not liable as the successor to Andale. In Louisiana, as well as in most U.S. jurisdictions, when a corporation sells all its assets to another entity, the purchaser is not responsible for the seller's liabilities unless: (1) the purchaser agreed to assume the obligations; (2) the purchaser is merely a continuation of the selling corporation; or (3) the reason for the sale was to escape liability. Here, Tate Andale did not agree to assume the Andale Co.’s liabilities. Moreover, Tate Andale was not "a mere continuation of the Andale Company" because they were separate corporations that did not have commons hare holders, directors, officers, or employees, and Tate Andale did not purchase all the Andale Co.’s assets. Additionally, there was no evidence that the transaction was entered into for the purpose of escaping liability.
Supply chain liability. The court found that Spirax-Sarco (Sarco) was not entitled to summary judgment. A manufacturer has a duty to warn when its product requires incorporation of a part which the manufacturer should know likely makes the product dangerous and a user would have no reason to believe that the product with the incorporated component is dangerous. Here, the estate presented evidence that Sarco clearly contemplated that its steam traps would be used in conjunction with asbestos-containing flange gaskets. The decedent had testified that he recalled working with Sarco traps aboard the submarines because he remembered the name embossed on the product. He also testified that his work on all steam traps, including Sarco’s, involved disconnecting old traps, scraping asbestos gaskets from the tie-in flanges, and installing new traps. He recalled being trained to handle Sarco products, and he recalled that Sarco manuals specified using asbestos gaskets because of the high temperatures at which the steam traps operated. The decedent had seen no asbestos warnings on Sarco products.
The case is No. 18-361-SDD-RLB.
Attorneys: Frank J. Swarr (Landry & Swarr, LLC) and Brett Fuller (Simmons Hanley Conroy) for Belinda D. McAllister, James T. McAllister, III and Sean McAllister. Brady L. Green (Wilbraham, Lawler & Buba, PC) and Jeffrey P. Hubbard (Hubbard Mitchell Williams and Strain, PLLC) for Air & Liquid Systems Corp. Jamie H. Baglio (Pugh, Accardo, Haas, Radecker & Carey, LLC) for Anco Insulations, Inc. Brandie Mendoza Thibodeaux (MG+M Law Firm) for Aurora Pump Co. Lawrence G. Pugh, III (Pugh, Accardo, Haas, Radecker & Carey, LLC) for Tate Andale, Inc. Ralph H. Wall (Couhig Partners, LLC) for Spirax-Sarco, Inc. f/k/a Sarco Co., Inc. Richard Munice Crump (Maron Marvel Bradley Anderson & Tardy LLC) for Velan Valve Corp. Stacey Leigh Strain (Hubbard, Mitchell, Williams, and Strain, PLLC) for Flowserve US, Inc.
Companies: Air & Liquid Systems Corp.; Anco Insulations, Inc.; Aurora Pump Co.; American Standard, Inc. d/b/a The Trane Co.; Tate Andale, Inc.; Spirax-Sarco, Inc. f/k/a Sarco Co., Inc.; Velan Valve Corp.; Flowserve US, Inc.
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