SPEARMAN, J.
¶ 1 This appeal stems from an asbestos lawsuit. Kay Morgan appeals the summary judgment dismissal of the Morgans' claims against Aurora Pump Co., Buffalo Pumps, Inc., Elliott Co., IMO Industries, Inc. (formerly DeLaval Turbine, Inc.), Leslie Controls, Inc., Warren Pumps LLC, Weir Valves & Controls USA, Inc. (formerly Atwood & Morrill Co., Inc.), and Wm. Powell Co. (Respondents).
¶ 2 On August 29, 2007, James and Kay Morgan filed a lawsuit against approximately 50 defendants for personal injuries sustained by James Morgan due to asbestos exposure. Their claims were primarily based on the theories of products liability, negligence, strict liability under RESTATEMENT (SECOND) OF TORTS § 402, and breach of warranty. Morgan had been employed by PSNS from 1952 to 1989. He worked as a pipefitter/steamfitter from 1952 to 1957 and from 1959 to 1963, and as a marine/mechanical engineering technician and design division test coordinator from 1963 to 1989. In 2006 or 2007, he was diagnosed with mesothelioma. Morgan died in January 2008, before his deposition could be completed. After his death, Kay Morgan maintained the action.
¶ 3 Respondents are manufacturers of pumps and valves. Morgan alleges that while he was employed at PSNS, Respondents supplied his employer with pumps and valves that included packing or gaskets containing asbestos. He further alleges that Respondents supplied replacement packing or gaskets to PSNS that also contained asbestos. Morgan claims that when he and others in his presence worked on Respondents' products, asbestos fibers were released into the air. He claims that he developed mesothelioma as a result of inhaling some of these fibers.
¶ 4 Respondents filed separate motions for summary judgment dismissal of Morgan's claims, relying primarily on Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (2008) and Simonetta v. Viad Corp.,
¶ 5 The trial court granted the Respondents' motions and dismissed Morgan's claims with prejudice. Morgan appeals.
¶ 6 The court reviews summary judgment decisions de novo, engaging in the same inquiry as the trial court. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794-95, 64 P.3d 22 (2003). "When ruling on a summary judgment motion, the court is to view all facts and reasonable inferences therefrom most favorably toward the nonmoving party." Lybbert v. Grant County, State of Wash., 141 Wn.2d 29, 34, 1 P.3d 1124 (2000) (citing Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wn.2d 891, 897, 874 P.2d 142 (1994)). Summary judgment is proper if the pleadings, depositions, answers, and admissions, together with the affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
¶ 7 It is well settled that asbestos plaintiffs in Washington may establish exposure to a defendant's product through direct or circumstantial evidence. Allen v. Asbestos Corp., Ltd., 138 Wn.App. 564, 571, 157 P.3d 406 (2007). "[I]nstead of personally identifying the manufacturers of asbestos products to which he was exposed, a plaintiff may rely on the testimony of witnesses who identify manufacturers of asbestos products which were then present at his workplace."
¶ 8 It is equally well settled that the plaintiff in a product liability or negligence action bears the burden to establish a causal connection between the injury, the product and the manufacturer of that product. RCW 7.72.030(1); Iwai v. State, 129 Wn.2d 84, 96, 915 P.2d 1089 (1996): Lockwood, 109 Wash.2d at 245, 744 P.2d 605. In Lockwood, the Washington Supreme Court set forth several factors for courts to consider when evaluating whether sufficient evidence of causation exists against a particular defendant: (1) plaintiff's proximity to the asbestos product when the exposure occurred and the expanse of the work site where asbestos fibers were released; (2) the extent
¶ 9 The Lockwood court held that the worker established a prima facie case against the manufacturer of asbestos cloth "by presenting evidence that exposure to asbestos causes asbestosis; that once asbestos dust is released, it can remain in the air and drift with air currents for a long period of time; and that [defendant's asbestos] product was located at shipyards where [the worker] was employed during the period when he worked there," even though he did not introduce evidence that he directly handled the defendant's asbestos products.
¶ 10 In Berry v. Crown Cork & Seal Co., Inc., 103 Wn.App. 312, 14 P.3d 789 (2000), we held that the evidence was sufficient to raise a genuine issue of material fact that a PSNS machinist was exposed to asbestos-containing products of the defendant. The machinist worked at PSNS for six years aboard a number of ships and worked around insulators who used insulation materials that created substantial amounts of dust. Id. at 318, 14 P.3d 789. The machinist offered testimony that a distributor was among those who supplied asbestos-containing thermal insulation material to PSNS; certain brands of asbestos-containing thermal insulation were commonly used on ships repaired at PSNS; PSNS obtained those products from distributors; and defendant had been a distributor of those brands of products. See id. at 315-18, 14 P.3d 789. The machinist also offered expert testimony that "because asbestos dust had the ability to drift, an asbestos product used in one part of a ship could expose `workers in vast areas in a shipyard.'" Id. at 318, 14 P.3d 789. The machinist did not submit evidence that he worked directly with the distributor's asbestos products and the evidence did not show how much, if any, of defendant's product was actually released into the shipyard. But this court held that the evidence created a prima facie case under the Lockwood exposure test. Id. at 323-25, 14 P.3d 789. In doing so, we rejected the defendant's argument that the evidence required "impermissible speculation" because the plaintiff did not provide evidence as to how much and how often PSNS purchased products from the defendant as opposed to other distributors. Id. at 324-25, 14 P.3d 789. We wrote, "The extent to which [defendant] supplied the products as compared with other distributors is irrelevant for purposes of summary judgment." Id. at 325, 14 P.3d 789.
¶ 11 In this case, at summary judgment, Morgan provided the declaration and deposition testimony of Melvin Wortman, the declarations of Dr. Eugene Mark and James Millette, Ph.D., the deposition testimony of Jack Knowles, and his own interrogatory answers.
¶ 12 Jack Knowles was a pipefitter at PSNS, where he worked with Morgan. Knowles testified that they worked on three aircraft carriers together: the USS Roosevelt, the USS Midway, and the USS Coral Sea. When they worked together, he and Morgan spent most of their time aboard ship and in machinery spaces. Knowles saw Morgan remove and install piping from equipment, as well as dismantle sections of piping and dismantle valves from piping. Knowles testified that the work Morgan did on flanges included removing asbestos coating on flanges, cutting insulation back from the flanges, removing flange gaskets, and cutting away pieces of pipe to remove flanges.
¶ 13 Knowles testified that Morgan and other workers in Morgan's presence worked with and around new and existing
¶ 14 The deposition and declaration of Melvin Wortman were taken in another case and related to the period from 1967 to 1971, when he was the superintendent of machinists at PSNS.
¶ 15 James Millette, Ph.D., stated in his declaration:
Additionally, he stated that during the time period in question, gaskets and packing to which Morgan was exposed were primarily made of asbestos.
¶ 16 Dr. Eugene Mark, a pathologist, concluded that Morgan had "developed a diffuse malignant mesothelioma of the pleura" and
¶ 17 In addition, Morgan points to certain "admissions from defendants" as corroborating his evidence about where the original and replacement packing and gaskets came from. Specifically, each of the Respondents, other than Warren, conceded that the new pumps or valves that it supplied included asbestos-containing packing and gaskets and that it sold, in varying degrees, asbestos-containing replacement packing or gaskets.
¶ 18 Based on this evidence, Morgan argues that he has raised a genuine issue of material fact that he was exposed to asbestos contained in products that were made, sold, or supplied to PSNS by each of the Respondents and that such exposure was a substantial factor in causing his mesothelioma.
¶ 19 Respondents acknowledge supplying PSNS with pumps or valves, but argue that Morgan's evidence is insufficient to create a material dispute about whether the new pumps and valves or the replacement materials they supplied to PSNS contained asbestos. For example, Aurora claims that "the only evidence regarding a brand-new Aurora pump that was sent to PSNS concerns a GNC-17 End Suction Navy Pump that was shipped in 1960 and that was used to pump aviation fuel on the U.S.S. Coral Sea." It claims that pump utilized mechanical seals that eliminated the need for packing and internal gaskets, and thus a jury could not reasonably infer that Morgan was exposed to asbestos packing or gaskets that it sold or supplied. IMO argues that "[e]ven if one could conclude that Mr. Knowles observed Mr. Morgan working around DeLaval pumps in which new packing supplied by DeLaval was being installed, there is no basis to also conclude that the packing contained asbestos. . . . [T]he evidence regarding the particular types of pumps described by Mr. Farrow and Mr. Knowles is that the `vast majority' did not have asbestos-containing packing (or gaskets)." Weir argues that "while there is evidence that Atwood & Morrill may have sold some replacement parts to the Navy, plaintiff offered no evidence to prove that any asbestos-containing replacement parts supplied by Atwood & Morrill were actually present at PSNS, or were ever used on any ship in Mr. Morgan's presence."
¶ 20 The Respondents also contend that Morgan presented insufficient evidence that he worked on or around any of their products in such a manner that he was exposed to any asbestos. For example, Weir points out that Michael Farrow testified that he saw Morgan working with Atwood valves "`many times.'" But Weir contends that when pressed for specifics, Farrow could only point to an instance when Morgan removed an Atwood valve "from the machinery space in the engine room aboard the USS Princeton in March 1954." Farrow did not know whether the valve contained asbestos packing, nor did he see Morgan working on the internal components of the valve.
¶ 21 Finally, Respondents argue that even to the extent Morgan offered evidence of his exposure to asbestos contained in products that they sold, the evidence is insufficient to establish a material dispute that the exposure was a substantial factor in causing his mesothelioma. They contend that the evidence of Morgan's exposure to their individual products is insufficient as a matter of law to find that their products were a substantial factor in causing his disease, particularly in comparison to his exposure to other asbestos-containing products at PSNS. They also argue, in regard to Morgan's exposure to asbestos in packing, that it cannot be a substantial factor because Morgan's own expert opined that new and unused packing is not "friable," i.e., does not release respirable asbestos fibers when manipulated. In addition, Respondents point out that Morgan's causation experts have no personal knowledge of Respondents' specific products or of Morgan's alleged exposure to them but instead rely on the testimony of Farrow, Knowles and Wortman.
¶ 23 First, Morgan has presented evidence that he was exposed to asbestos contained in products manufactured, sold, or supplied by Respondents. This evidence is found in the combined testimony of various witnesses. Knowles testified that he saw Morgan, or other workers in Morgan's presence, work on the internal parts of all of the Respondents' pumps and valves. And all of the Respondents, except Warren, acknowledge supplying replacement parts to PSNS on occasion. In addition, Wortman testified that approximately 50 percent of replacement parts he saw came from the original manufacturers.
¶ 24 The Respondents vigorously contest this evidence, but the majority of their arguments go to the weight and credibility of Morgan's evidence or attempt to contradict his evidence with their own evidence.
¶ 26 The next issue is whether Morgan presented sufficient circumstantial evidence to create an issue of fact that under Lockwood, his alleged exposure to Respondents' asbestos products was a substantial factor in causing his mesothelioma. The first factor concerns Morgan's proximity to the asbestos product when the exposure occurred and the expanse of the work site where asbestos fibers were released. The second factor is the extent of time the plaintiff was exposed to the product. "The proximity and time factors can be satisfied if there is evidence that the plaintiff worked at a job site where asbestos products were used, particularly where there is expert testimony that asbestos fibers have the ability to drift over an entire job site." Allen, 138 Wash.App. at 571, 157 P.3d 406. Morgan worked as a pipefitter at PSNS for approximately nine years and developed mesothelioma.
¶ 27 The third factor is the types of asbestos products to which a plaintiff was exposed and the ways in which the products were handled and used. Here, the asbestos attributed to Respondents was in packing and gaskets that either arrived at PSNS with or inside their pumps and valves, or were supplied to PSNS as replacement packing and gaskets. The parties generally dispute both that Respondents' pumps and valves contained asbestos and that they were handled
¶ 28 The last Lockwood factor is the evidence presented as to medical causation of the plaintiff's particular disease.
Lockwood, 109 Wash.2d at 248-49, 744 P.2d 605 (internal citation omitted). Here, pathologist Eugene Mark, M.D., concluded that Morgan had "developed a diffuse malignant mesothelioma of the pleura" and that the asbestos to which Morgan was reportedly exposed while working at PSNS was the cause of the disease. Respondents do not allege that there was any other factor causing Morgan's mesothelioma besides his exposure to asbestos at PSNS.
¶ 29 Respondents argue that the evidence of Morgan's exposure to their individual products is insufficient as a matter of law to find that their products were a substantial factor in causing his disease, particularly considering his likely exposure to other asbestos-containing products at PSNS. While we do not decide the frequency of asbestos exposure a plaintiff must demonstrate to survive summary judgment, we note that this case involves allegations of more than a single instance of exposure to asbestos from each Respondent's products. Knowles testified that Morgan worked with new and existing pumps or valves—plural—from each Respondent, which means that Morgan could have been exposed to asbestos in each Respondent's products numerous times during the years he worked at PSNS, particularly in his capacity as a pipefitter/steamfitter. For purposes of summary judgment, this showing is sufficient.
¶ 30 Finally, regarding Respondents' government-contractor defense, we agree with the trial court that it is an affirmative defense that is fact-intensive and a matter for the jury.
¶ 31 In sum, Morgan alleges evidence that raises an issue of material fact as to whether he was exposed to asbestos from each Respondent and whether the exposure was a substantial factor in causing his mesothelioma. The trial court erred in dismissing his claims on summary judgment.
¶ 32 Reverse.
WE CONCUR: GROSSE and SCHINDLER, JJ.
In response, Morgan points out that in Timberline Air v. Bell Helicopter-Textron, 125 Wn.2d 305, 324-30, 884 P.2d 920 (1994), the Washington Supreme Court explained that the issues are "generally different in a government specification defense based on warnings than in a government specification defense based on design defect." He also points out that Buffalo admits that the military specification defense was only raised with regard to Morgan's design defect claim. "Thus, there is no basis to dismiss plaintiffs' warning claims based upon the government-contractor defense."
Morgan argues that evidence that he worked with or around material originally supplied by DeLaval was contained in Knowles's testimony: He answered "yes" to the question, "Do you recall seeing other people work with packing in Mr. Morgan's presence on brand-new DeLaval pumps?" Morgan argues that IMO's claim that he worked only around fuel oil/lube oil pumps and its corporate representative's testimony that the vast majority of those gaskets and packing were non-asbestos materials did not have to be believed by the jury, because there was conflicting testimony. Morgan points to Knowles' testimony that "`most of that [packing] was a pliable asbestos.'"