WILLIAM H. STEELE, Chief District Judge.
This matter comes before the Court on defendant Warren Pumps, LLC's Motion for Summary Judgment (doc. 267). 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 Warren). 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.)
The record reflects that Warren manufactures pumps, some of which include packing and gasket components. (Doc. 317-8, at 2.) Such gaskets and packing materials "were manufactured and supplied to Warren Pumps by others, and some of them contained encapsulated asbestos fibers." (Id.) Warren "did not design, manufacture, or process any `asbestos products,'" but rather "is a pump manufacturer." (Doc. 317-9, at 3.) Record facts concerning Morgan's interactions with Warren's products are as follows:
Upon leaving Maxwell Construction in 1972, Morgan next worked with Warren pumps during his employment at the Alabama River Pulp paper mill from 1979 to 1992. (Morgan Dep. I, at 199-200.) Initially, Morgan helped with construction of the mill, including installation of pumps and boiler couplings. (Morgan Dep. III, at 97.) For approximately his first year at Alabama River Pulp, Morgan worked as a machinist. (Morgan Dep. IV, at 123-24.) On August 1, 1979, he became foreman of the mill's machine shop, after which he no longer did "hands-on" maintenance work, but closely supervised others. (Id. at 124.) Morgan also set up and supervised the pump shop at Alabama River Pulp. (Morgan Dep. I, at 99; Morgan Dep. III, at 74.) In his supervisory role, Morgan was present in the machine and pump shops "every day and seen what was done and particularly in the tearing down and making sure it's cleaned up right when it went back together." (Morgan Dep. II, at 163.) Although he did not perform hands-on work on pumps, Morgan testified, "I got these eyeballs down there and I run these fingers around things and then when it was being cleaned up, I've got to breathe about as much dust and dirt as [the hands-on workers] did." (Id. at 165.)
According to Morgan, "Warren had the greatest number of pumps in [Alabama River Pulp] than any other brand name." (Morgan Dep. IV, at 113.) He recalled installing "[b]rand new" Warren pumps at Alabama River Pulp before the mill commenced production. (Morgan Dep. I, at 98, 216-17.) Morgan admitted, however, that he "installed very few of them." (Id. at 221.) Warren pumps "were probably in every area of the mill." (Id. at 217.) Morgan and his crew were responsible for repacking and changing gaskets on Warren pumps. (Id. at 230.) This process would generate asbestos dust in the pump shop, to which Morgan was exposed because these activities would occur in his presence and under his close, direct supervision. (Morgan Dep. III, at 230-31.) As Morgan put it, there "would always be a ... good bit of dust in ... cleaning up that stuffing box, in particular. And if your gasket is stuck on a flange, that could be a lot of dust too." (Id. at 172-73.)
When asked whether the pumps themselves contained asbestos, Morgan responded, "No." (Morgan Dep. II, at 350.) When asked whether the asbestos dust he encountered during the maintenance and repair of pumps was from the packing or the pump itself, Morgan responded, "Well, it would have to be from the packing, you know." (Id. at 351.) Morgan acknowledged that it is impossible to tell whether the packing and gaskets being removed from a particular pump are original or replacement components. (Morgan Dep. IV, at 112.) When asked if he knew whether he removed the original packing from Warren pumps, Morgan responded, "No, I wouldn't know. Could have been changed a hundred times." (Morgan Dep. I, at 212.) Morgan acknowledged that packing on Warren pumps would be changed out "fairly often." (Id.) With regard to replacing gaskets on Warren pumps, Morgan agreed that "there's no way to tell whether they were the original gaskets," although he also testified about a particular gasket "that would come with the pump." (Id. at 231-32.) Morgan did not know which distributors or supply houses supplied the gaskets and packing used at Alabama River Pulp, and he was not involved in ordering or purchasing those items. (Id. at 100, 230-31.) As for replacement gaskets, all Morgan knew was that they "would come from a spare part that purchasing had bought from somebody." (Id. at 232.)
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 (11
Warren's Motion for Summary Judgment raises a number of legal challenges to plaintiff's claims. Two of these issues loom large. First, Warren asserts that, to the extent plaintiff's claims relate to alleged exposures to its asbestos-containing products that predate 1979, such claims are time-barred under Alabama law. Second, Warren invokes the so-called "bare metal defense," by arguing that "Morgan can only offer speculation and conjecture that Warren manufactured, sold, supplied or otherwise placed into the stream of commerce any asbestos-containing component to which he alleges exposure." (Doc. 267-1, at 18.) Each of these contentions will be addressed in turn.
The parties' briefs address in some detail evidence that Morgan encountered Warren pumps during his employment with the U.S. Navy from 1950-1954, the U.S. Coast Guard from 1959-1963, and Maxwell Construction Company from 1968-1972. To the extent that plaintiff would predicate Warren's liability on these exposures, however, his claims suffer from an insuperable legal defect. Under well-established, unambiguous Alabama law, any claims against Warren for exposure to asbestos during the period from 1950 to May 1979 are time-barred by the applicable Alabama limitations period. See Ala. Code § 6-2-38(l) ("All actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.").
Historically, Alabama applied a "last exposure rule" governing commencement of the limitations period for claims alleging personal injuries resulting from exposure to a harmful substance, regardless of when those injuries were manifested. See Garrett v. Raytheon Co., 368 So.2d 516, 521 (Ala. 1979) ("[W]e hold that the statute of limitations ... began to run when plaintiff was last exposed to radiation and plaintiff's ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered."). Shortly after Garrett was decided, the Alabama legislature stepped in to modify the judge-made accrual rule in the asbestos context, enacting the following provision: "A civil action for any injury ... resulting from exposure to asbestos, including asbestos-containing products, shall be deemed to accrue on the first date the injured party, through reasonable diligence, should have reason to discover the injury giving rise to such civil action." Ala. Code § 6-2-30(b). This "discovery rule" for accrual of personal injury claims in asbestos cases took effect on May 19, 1980. The following year, the Alabama Supreme Court examined the retroactivity of § 6-2-30(b), and held that if, before the effective date of that provision, "one year had elapsed between the date of plaintiff's exposure and the date on which plaintiff's action was commenced, then that claim is nevertheless barred by the statute of limitations." Tyson v. Johns-Manville Sales Corp., 399 So.2d 263, 267 (Ala. 1981). Subject to that important caveat, the Tyson Court expressly upheld § 6-2-30(b)'s establishment of "a discovery rule for the accrual of asbestos injury actions in Alabama." Id. at 272.
In the three decades since Tyson was decided, Alabama courts have consistently hewed to the principle that if a plaintiff's last exposure to a defendant's asbestos-containing product predated May 19, 1979, then the resulting personal injury claims were time-barred before § 6-2-30(b) was ever enacted and cannot be revived by operation of that statute. See, e.g., Henderson v. MeadWestvaco Corp., 23 So.3d 625, 630 (Ala. 2009) (following Tyson's determination that asbestos claims are time-barred if, as of May 19, 1980, one year had elapsed between the date of exposure and date of commencement of suit); Johnson v. Garlock, Inc., 682 So.2d 25, 28 (Ala. 1996) (reaffirming principle that "§ 6-2-30 cannot apply retroactively to actions already barred by the statute of limitations as interpreted and applied in Garrett").
The net result, then, is that Alabama has different rules for accrual of personal injury actions relating to asbestos exposure, depending on whether the last exposure occurred prior to May 19, 1979 (in which case the Garrett "last exposure rule" governs) or whether the last exposure occurred thereafter (in which case the § 6-2-30(b) "discovery rule" applies).
As the foregoing discussion demonstrates, any claims relating to Morgan's exposure to Warren's asbestos-containing products during the 1950-May 1979 time period are time-barred by straightforward application of black-letter Alabama law, as set forth in Tyson and its progeny. See, e.g., Henderson, 23 So.3d at 630 ("Tony Henderson's claim of personal injury resulting from exposure to asbestos would have accrued in 1972, on the date of his last exposure to asbestos at CAPCO. Based on the one-year statute of limitations applicable to personal injury claims at the time ..., his claim was time-barred in 1973.").
Under Alabama law and uncontroverted record facts, Morgan's claims of personal injury resulting from exposure to Warren asbestos-containing products in the U.S. Navy would have accrued in 1954, his claims resulting from exposure in the U.S. Coast Guard would have accrued in 1963, and his claims resulting from exposure at Maxwell Construction would have accrued in 1972, when he was last exposed to such products at each of those workplaces. Based on the one-year statute of limitations applicable at the time, Morgan's claims for these exposures would have become time-barred in 1955, 1964 and 1973, respectively, several decades before he actually sued Warren. By operation of the Tyson line of Alabama Supreme Court decisions, those time-barred claims were not revived, revitalized or resuscitated by the Alabama legislature's subsequent enactment of § 6-2-30(b).
In response, plaintiff cites an Alabama Supreme Court decision holding that an asbestos plaintiff "is entitled to recover all damages which proximately flowed from his injury if his action is brought within the statutory period of limitations." Cazalas v. Johns-Manville Sales Corp., 435 So.2d 55, 57 (Ala. 1983). The fundamental question raised by Warren's summary judgment motion is not whether plaintiff is entitled to damages for asbestos exposures predating May 1979, but whether "his action is brought within the statutory period of limitations" at all; therefore, Cazalas is inapposite. Without a post-1979 exposure to Warren asbestos-containing products, plaintiff's claims against this defendant necessarily fail on timeliness grounds. What the measure of damages would be if plaintiff did have any timely claims against Warren is beyond the scope of the summary judgment analysis.
Accordingly, the Court concludes that plaintiff's claims for pre-1979 exposure to asbestos-containing products manufactured or distributed by Warren are not timely under Alabama law; therefore, Warren's Motion for Summary Judgment will be
As indicated supra, plaintiff's claims against Warren survive summary judgment only if the record reveals genuine issues of fact as to whether he was exposed to asbestos from that defendant's products after May 19, 1979. Warren posits that this question must be answered in the negative because, while Morgan worked in close proximity to Warren pumps being repaired at Alabama River Pulp from 1979 to 1992, any asbestos dust created by those activities came from third-party packing and gaskets, not from Warren's pumps themselves. Plaintiff responds that Warren is legally responsible for asbestos packing and gaskets used in its pumps, no matter who manufactured or distributed those components. This disagreement is, at its core, a dispute about whether Alabama law recognizes the "bare metal defense" in products cases.
Many jurisdictions have embraced some variant of the bare metal defense in the asbestos context. See, e.g., Lindstrom v. A-C Product Liability Trust, 424 F.3d 488, 495 (6
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 (11
Plaintiff counters that Alabama law would impose a duty to warn on Warren 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 Warren pumps (which, by themselves, are bare metal products to which third-party packing and gaskets are added), 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 Warren 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 Warren pumps, for which Warren 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 in other jurisdictions is to recognize the "bare metal defense" (under which a pump manufacturer such as Warren cannot be liable for a third party's asbestos materials used with its products, where the pump manufacturer was not in the chain of distribution of such asbestos-containing materials); (ii) the trend in other jurisdictions favors adoption of that defense for sound and even compelling policy reasons;
To recapitulate the record evidence, Warren manufactured and sold pumps. Some of those pumps contained gasket and packing components, and some of those components had encapsulated asbestos fibers. These components were manufactured and supplied by third parties, not by Warren. The Alabama River Pulp paper mill where Morgan worked commenced operations in 1978 and utilized Warren pumps, which were purchased for that facility in brand-new condition. Periodically, Alabama River Pulp would replace its Warren pumps' packing and gaskets with replacement components that contained asbestos, and were manufactured and supplied by third parties. The record is devoid of evidence that Warren supplied or had any involvement with the production, selection, ordering, or shipment of replacement packing and gaskets used by Alabama River Pulp. Plaintiff seeks to hold Warren liable in this action because the process of replacing packing and gaskets on its pumps at Alabama River Pulp produced dust, which Morgan breathed because he worked as foreman in the machine and pump shops in close proximity to workers performing these tasks. Plaintiff's theory is that the dust from these packings and gaskets contained asbestos and substantially caused or contributed to Morgan's contraction of malignant mesothelioma.
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. 317-1, at 36.) Obviously, no asbestos dust or fibers emanated from Warren pumps because those were bare metal; rather, any dust encountered during the process of replacing packing and gaskets on those machines would be from the packing and gaskets, not from the pumps. Nonetheless, plaintiff posits that Warren's liability in this case derives "in part from the defective design of its pumps that required the use of asbestos-containing component parts." (Id.) But plaintiff has identified no record evidence — and the Court has found none — that the Warren pumps in use at Alabama River Pulp "required the use of asbestos-containing component parts." There is no indication, for example, that these pumps would not function properly with non-asbestos packing or gaskets.
There being no record basis for a defective design claim against Warren and plaintiff not having delineated any other ground for his claim that the pumps themselves were defective, the claims against Warren lie outside the Hannah caveat (i.e., that a manufacturer may be held liable, notwithstanding Sanders, when the plaintiff pursues claims that the defendant's product is itself defective). Plaintiff seeks to hold Warren liable not because its pumps were defective, but because Alabama River Pulp installed asbestos packing and gaskets in those pumps. The asbestos components, not the pumps, were the defect. But Warren neither manufactured the packing and gaskets nor placed them in the stream of commerce; indeed, Morgan's testimony is that those components "would come from a spare part that purchasing had bought from somebody." (Morgan Dep. I, at 232.) The clear thrust of the bare metal defense is that a manufacturer cannot be held liable for asbestos-containing products used in conjunction with its bare metal pumps, absent evidence that the manufacturer was part of the chain of distribution for those components. Accordingly, to the extent that plaintiff would predicate liability on a theory that Warren "fail[ed] to warn of the dangers presented by these component parts" despite knowledge that the components supplied with its pumps "would foreseeably be replaced by comparable asbestos-containing components" (doc. 317-1, at 36), those claims fail as a matter of law. Under the bare metal defense, Warren is not liable for harm caused by, and owed no duty to warn Morgan or anyone else concerning the hazards of, asbestos-containing packing and gaskets that users of its pumps might install, where Warren did not manufacture, sell or distribute such asbestos-containing components to Alabama River Pulp.
Notwithstanding the foregoing, plaintiff seeks to forestall this result on two additional grounds. First, plaintiff insists that the bare metal defense does not exonerate Warren because "Plaintiff has produced evidence that Decedent was exposed to original gaskets from Warren pumps." (Doc. 317-1, at 38.) The theory is that Warren sent brand-new pumps to Alabama River Pulp with original equipment manufacturer ("OEM") gaskets, to which Morgan was exposed by being present when the OEM gaskets were changed out. Certainly, the bare metal defense would not preclude Warren from being liable if Morgan were exposed to asbestos dust from OEM components distributed and placed in the stream of commerce by Warren (as opposed to replacement components, for which there is zero evidence that Warren was part of the chain of distribution). There is record evidence that the mill was new when Morgan began working there.
Where this argument breaks down is that plaintiff has presented nothing more than speculation that (i) those OEM internal impeller gaskets contained asbestos, (ii) the process of replacing those particular gaskets created dust,
Second, plaintiff attempts to create Warren liability on the theory that it recommended replacement parts for its pumps in a manual used by Alabama River Pulp employees. The idea is that Warren "specif[ied] particular gaskets and packing for use" (doc. 317-1, at 38), and is therefore culpable for any asbestos exposure to Morgan arising from such specifications. Setting aside the legal merit of that contention, the facts simply do not support it. The only evidence cited by plaintiff for such a proposition is general testimony that "every manufacturer has the recommended spare parts in their OEM manuals that the store room would generate their list of in-stock inventory that they would have." (Ronald Melvin Morgan Dep., at 101.) Plaintiff identifies no evidence whatsoever that (i) Warren provided such a manual to Alabama River Pulp in connection with its pumps; (ii) if so, what types of replacement packing and gaskets were recommended therein; (iii) whether those recommended replacement components did or did not contain asbestos; and (iv) whether Alabama River Pulp adhered to those recommendations in ordering and stocking replacement packing and gaskets for Warren pumps during the relevant time period.
"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). Such is the case here. This record, taken as a whole, could not lead a rational trier of fact to find that Morgan was exposed to asbestos after May 19, 1979 from a product that Warren manufactured, sold, distributed, or otherwise placed in the stream of commerce. Of course, from 1979 through 1992, Morgan worked around and in close proximity to Warren pumps. But 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, those pumps were used with components that might have contained asbestos, and Morgan might have been exposed to dust from packing and gaskets when they were replaced. The pumps' mere compatibility for use with asbestos-containing components is not a design defect. Moreover, aside from OEM components as to which there is no evidence of exposure by Morgan, plaintiff has not shown that Warren was 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 Warren owed no duty to warn under Alabama law for asbestos exposures from packing and gaskets that Warren did not manufacture, sell, distribute or otherwise place in the stream of commerce. Absent a causal nexus between Warren's products (i.e., the 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.
In other words, no reasonable jury could conclude from this record that Morgan's illness and death were caused by asbestos exposure that (i) was attributable to Warren and (ii) occurred after the effective date of the discovery rule of accrual fashioned by § 6-2-30(b).
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 Warren Pumps, LLC's Motion for Summary Judgment (doc. 267) is
