WILLIAM H. STEELE, Chief Judge.
This matter comes before the Court on defendant Flowserve Corporation's Motion for Summary Judgment (doc. 272). The Motion has been briefed and is ripe for disposition.
This is an asbestos action pending against 11 defendants,
On May 4, 2011, less than three months after his diagnosis, Morgan initiated this litigation against 42 named defendants (including Flowserve). Morgan's pleadings alleged that he "was exposed to asbestos dust, asbestos particles, asbestos containing materials and products that were produced, manufactured, specified for use, installed, distributed, sold and/or placed into the stream of commerce by the producer and/or distributor Defendants during his employment as a machinist, engine room worker, and mechanic," as a result of which he was "diagnosed with an asbestos related disease." (Doc. 1, Exh. A-2, at 6.) On July 29, 2011, Morgan amended his Complaint to name certain additional defendants. (Doc. 4, Exh. B, at 1.)
Record facts concerning Morgan's interactions with Flowserve products are as follows:
Morgan testified that the Alabama River Pulp facility had a chemical prep area that contained Durco pumps, and that Morgan and his crew worked on those Durco pumps infrequently. (Morgan Dep. III, at 180-81.)
Significantly, the record in the light most favorable to plaintiff confirms that Durco pumps were not made of asbestos and did not have exterior asbestos. (Morgan Dep. IV, at 63.) Alabama River Pulp did, however, use asbestos-containing interior packing in the pump shaft of those Durco pumps. (Id.)
With respect to Durco valves, there is limited evidence that such valves were in use at Alabama River Pulp during the period of Morgan's employment. (Morgan Dep. IV, at 82-90.) Morgan was unable to identify any exposures he might have had to asbestos-containing products from Durco valves, except in the vaguest of terms. (Id. at 87-91.) Plaintiff's opposition to Flowserve's Motion for Summary Judgment is couched exclusively in terms of evidence concerning Durco pumps; therefore, it does not appear that plaintiff is claiming (and certainly he has identified no evidence supporting) that Flowserve liability may be predicated on Morgan's exposure to asbestos-containing products involved with Durco valves. For that reason, the analysis herein will center on Durco pump evidence. That said, the Court is aware of no reason (and plaintiff has identified none) why the result would be different in the Durco valve context than in the Durco pump context.
Summary judgment should be granted only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)) (footnote omitted). "In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11th Cir.1992) (internal citations and quotations omitted). "Summary judgment is justified only for those cases devoid of any need for factual determinations." Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir.1987) (citation omitted).
Although Flowserve's Motion for Summary Judgment raises a number of legal
Many jurisdictions have embraced some form of this bare metal defense in the asbestos context. See, e.g., Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 495 (6th Cir.2005) (affirming grant of summary judgment for manufacturer of valves that used asbestos packing materials and gaskets, where defendant did not provide replacement packing or gaskets, such that "any asbestos that [defendant] may have been exposed to in connection with a Henry Vogt product would be attributable to some other manufacturer," and "Henry Vogt cannot be held responsible for material `attached or connected' to its product"); Faddish v. Buffalo Pumps, 881 F.Supp.2d 1361, 1372 (S.D.Fla.2012) ("A number of state courts ... have concluded that a defendant manufacturer is not liable for a third party's asbestos-containing products when the defendant is not within the `chain of distribution' of the asbestos product. ... Predicting that the Florida Supreme Court would follow this trend, this court likewise concludes that the defendant `bare metal' suppliers cannot be liable for a third party's asbestos containing products under the facts presented in this case."); Conner v. Alfa Laval, Inc., 842 F.Supp.2d 791, 801 (E.D.Pa. 2012) (collecting cases and holding that "under maritime law, a manufacturer is not liable for harm caused by, and owes no duty to warn of the hazards inherent in, asbestos products that the manufacturer did not manufacture or distribute," such that defendants who made products that used asbestos insulation, gaskets and packing could not be held liable when they did not manufacture or distribute the asbestos products themselves); Surre v. Foster Wheeler LLC, 831 F.Supp.2d 797, 801-02 (S.D.N.Y.2011) (granting summary judgment to manufacturer of boilers in asbestos case, where "Crane did not manufacture or place into the stream of commerce the asbestos to which Surre was exposed," "there is no evidence that Pacific boilers required asbestos insulation to function," and "there is no evidence that Crane played any role in choosing the type of insulation Surre applied"); O'Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987, 996-97 (2012) (rejecting claim that pump manufacturers were liable for asbestos packing and gaskets used by customer where "it is undisputed that O'Neil was exposed to no asbestos from a product made by the defendants," "there was no evidence that defendants' products required asbestos-containing gaskets or packing in order to function," and "[t]he defective product in this setting was the asbestos insulation, not the pumps and valves to which it was applied after defendants' manufacture and delivery"); Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493, 502 (2008) ("Because we have held ... that there is no duty to warn of the dangers of other manufacturers' asbestos products, we also conclude that there was no duty to warn with respect to replacement packing and gaskets.... [T]hese manufacturers should not be held liable for harm caused by asbestos-containing
The parties agree that the substantive law of Alabama governs here. Alabama appellate courts have not unequivocally resolved the question of whether the bare metal defense is available in asbestos cases under state law. See Holland v. Armstrong Int'l, Inc., 2012 WL 7761422, *1 n. 1 (E.D.Pa. Nov. 28, 2012) ("The Court has reviewed the caselaw cited by the parties and has determined that Alabama law on this issue is not settled.").
Fortunately, Alabama case law does provide helpful guidance to inform such a prediction. In particular, the Alabama Supreme Court has held "that a distributor or manufacturer of a nondefective component is not liable for defects in a product that it did not manufacture, sell, or otherwise place in the stream of commerce." Sanders v. Ingram Equipment, Inc., 531 So.2d 879, 880 (Ala.1988); see also Brest v. Chrysler Corp., 939 F.Supp. 843, 848 (M.D.Ala.1996) ("Under Sanders, it is well established in Alabama that a manufacturer can only be held liable for defects in the products that it manufactured, sold, or otherwise placed in the stream of commerce."). Moreover, the Eleventh Circuit interpreted Alabama law in analogous circumstances in Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465 (11th Cir.1993). In that case, the plaintiff's decedent was killed while mounting a Goodyear tire on a multi-piece rim for which the tire had been specifically designed. The plaintiff's evidence was that a defect in the rim (which was manufactured by a third party), not the tire, caused the accident. Relying on Sanders for the proposition that the manufacturer of a non-defective component cannot be held liable for injuries caused by a product that it did not manufacture, sell, or otherwise place in the stream of commerce, the Eleventh Circuit concluded that "Goodyear would have no duty to give a warning concerning a mismatched or defective rim manufactured by [someone else]." Id. at 472. On the
Plaintiff counters that Alabama law would impose a duty to warn on Flowserve in this context. As an initial matter, plaintiff does not and cannot challenge the well-settled principle that, under Alabama products-liability law, "a defect in the product must be affirmatively shown" by the plaintiff. Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1051 (Ala. 2007) (citations omitted). In an attempt to shoulder this burden as to Flowserve pumps (which, by themselves, are bare metal products as to which third-party packing and gaskets are added by the end user), plaintiff suggests that Alabama River Pulp's use of dangerous asbestos-containing packing and gaskets on those pumps was a foreseeable modification or alteration of the product which does not relieve Flowserve of responsibility for the resulting defect (i.e., components that released respirable asbestos dust when replaced). See generally Sears, Roebuck and Co. v. Harris, 630 So.2d 1018, 1027 (Ala. 1993) (explaining that "the mere fact that a product has been altered or modified does not necessarily relieve the manufacturer or seller of liability" and that a manufacturer remains liable "if the alteration or modification was reasonably foreseeable" to it). Plaintiff's theory, then, is that Alabama River Pulp's use of asbestos-containing packing and gasket materials was a foreseeable modification to Flowserve pumps, for which Flowserve owed a duty to warn under Alabama law, and that this Court therefore should not apply the "bare metal defense" doctrine.
There is an obvious tension between the Sanders tenet that a manufacturer is not liable for defects in a product that it did not place in the stream of commerce, on the one hand, and the Sears ruling that a manufacturer is liable for alterations to its product that are reasonably foreseeable. If the alteration giving rise to liability under Sears is the addition of a component part that the defendant manufacturer did not place in the stream of commerce (and for which Sanders would preclude liability), then does the Sanders rule or the Sears rule control? Fortunately, the Alabama Supreme Court answered this question in Hannah v. Gregg, Bland & Berry, Inc., 840 So.2d 839 (Ala.2002). In Hannah, the plaintiff's decedent was killed in a workplace accident involving machines whose electrical controls included control panels provided by Westinghouse. The plant operator modified the Westinghouse control panels by adding additional buttons. Plaintiff's theory was that the accident's cause was a worker pressing the wrong button on the Westinghouse control panel. When plaintiff sued under the AEMLD, Westinghouse argued that it was entitled to summary judgment under Sanders because the defects in the industrial machines were unrelated to the control panel it supplied. The Hannah Court rejected this argument, reasoning that (i) plaintiff's theory was that the Westinghouse controls themselves were defective because they omitted safety devices, and (ii) "Sanders is inapplicable when the plaintiff seeks to recover based upon the theory that the product supplied by the defendant is itself defective." Id. at 855. So Hannah teaches that if a manufacturer is sued for defects in its own product (rather than for defects in some third party's component part used with that product), then Sanders does not preclude liability under Alabama law.
Considering all of the foregoing authorities in the aggregate, the Court concludes that (i) the prevailing majority rule
To recapitulate the relevant summary judgment evidence, Flowserve manufactured Durco pumps "that required fluid sealing component parts, such as gaskets, packing and/or mechanical seals, for proper function and operation." (Doc. 312-7, at 3.) Some of those packings and gaskets were made with asbestos. (Id.) Brandnew Durco pumps "contained third-party manufactured sealing devices pre-installed at Duriron facilities." (Id.) The Alabama River Pulp plant where Morgan worked commenced operations in 1978 and utilized a number of Durco pumps, which would have been shipped to the plant with Duriron-installed packing and gaskets (if they needed gaskets at all). Periodically, Alabama River Pulp would replace its Durco pumps' packing and gaskets with replacement components that contained asbestos, and were manufactured and supplied by third parties. Plaintiff has no evidence that Flowserve supplied or had any involvement
At the outset, plaintiff endeavors to shoehorn this case within the Hannah caveat to Sanders, insisting that the Hannah situation (in which a plaintiff sought to recover on a theory that the defendant's product is itself defective) "is precisely the situation at hand in the present case." (Doc. 312, at 26.) Obviously, no asbestos dust or fibers emanated from Durco pumps themselves; rather, as Morgan testified, any dust encountered during the process of replacing packing for such pumps "would have to be from the packing," not from the pump. (Morgan Dep. II, at 351.) Nonetheless, plaintiff posits that Flowserve's liability in this case derives "in part from the defective design of its pumps that required the use of asbestos-containing component parts." (Doc. 312, at 26.) But plaintiff has identified no record evidence — and the Court has found none — that the Durco pumps in use at Alabama River Pulp "required the use of asbestos-containing component parts." There is no evidence, for example, that these pumps would not function properly if their packing was not made of asbestos. Morgan conceded that during this period of time, "some packing contained asbestos and some didn't." (Morgan Dep. IV, at 71.) The record is devoid of evidence from which a reasonable fact finder could conclude that the Durco pumps in use at Alabama River Pulp were designed to require asbestos packing, to the exclusion of other kinds of packing materials. Of course, speculation and conjecture are not valid grounds for denying summary judgment relief.
There being no record basis for a defective design claim against Flowserve and plaintiff not having delineated any other ground for her claim that the Durco
Under a generous reading of plaintiff's summary judgment brief, plaintiff seeks to forestall this result on two grounds. First, plaintiff appears to contend that the bare metal defense does not exonerate Flowserve because the Durco pumps at Alabama River Pulp were newly purchased and were shipped with original equipment manufacturer ("OEM") parts, including packing and gaskets. In other words, plaintiff's position is that Durco pumps already had asbestos-containing packing and gaskets in them when Flowserve shipped them to Alabama River Pulp. If that statement were accurate, then it would imply that Flowserve placed those asbestos-containing components in the stream of commerce and may be held liable (notwithstanding the bare metal defense) for any exposures to asbestos dust that Morgan suffered from those OEM components (as opposed to replacement components, for which Flowserve would not have been in the chain of distribution
Second, plaintiff attempts to formulate a basis for holding Flowserve liable on the theory that it recommended replacement
"Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted). This record, taken as a whole, could not lead a rational trier of fact to find that Morgan was ever exposed to asbestos from a product that Flowserve manufactured, sold, distributed, or otherwise placed in the stream of commerce. Morgan worked around and in close proximity to pumps manufactured by Flowserve. Those pumps were bare metal. Plaintiff has adduced no evidence that they were defective. They did not emit asbestos dust or fibers. To be sure, installed in or with those pumps were packing and (perhaps) gaskets that potentially contained asbestos and produced dust to which Morgan was exposed in his capacity as pump shop foreman after August 1979. The pumps' mere compatibility for use with asbestos-containing components is not a design defect. Moreover, aside from OEM components to which Morgan appears never to have been exposed, Flowserve was not involved in the chain of distribution for those packing and gasket materials, all of which were manufactured and sold by third parties. Under Sanders and other Alabama authority, as well as the reasonable prediction that the Alabama Supreme Court would adopt the majority rule and extend Sanders principles to embrace the so-called "bare metal defense," the Court concludes that Flowserve owed no duty to warn under Alabama law for asbestos exposures from packing and gaskets that Flowserve did not manufacture, sell, distribute or otherwise place in the stream of commerce. Absent a causal nexus between Flowserve's products (i.e., the Durco pumps) and Morgan's injuries and death, plaintiff's claims against this defendant fail, as a matter of law. Plaintiff offers nothing more than conjecture and speculation to create such a nexus. That is not enough.
For all of the foregoing reasons, the Court finds that there are no genuine issues of material fact, and that movant is entitled to judgment as a matter of law. Defendant Flowserve Corporation's Motion for Summary Judgment (doc. 272) is