In re Toy Asbestos Litigation

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 Case No. 19-cv-00325-HSG 8 IN RE TOY ASBESTOS ORDER GRANTING ARMSTRONG INTERNATIONAL INC.’S MOTION 9 FOR SUMMARY JUDGMENT 10 Re: Dkt. No. 446 [12] 13 Pending before the Court is Defendant Armstrong International, Inc.’s motion for summary 14 judgment. See Dkt. No. 446. For the reasons detailed below, the Court GRANTS the motion. 15 I. BACKGROUND 16 Plaintiffs Agnes Toy and Thomas Toy, Jr. initially filed this action in Alameda Superior 17 Court against over forty Defendants, alleging that Thomas H. Toy, Sr. developed malignant 18 mesothelioma and later died from exposure to asbestos-containing products or equipment that 19 Defendants either manufactured or supplied. See Dkt. No. 1-1. Defendants removed this action to 20 federal court, Dkt. No. 1, and Plaintiffs filed a second amended complaint on July 22, 2019, Dkt. 21 No. 247 (“SAC”). Plaintiffs bring causes of action against Defendant for (1) negligence; 22 (2)breach of implied warranty; (3) strict liability; (4) fraud and concealment; (5) conspiracy to 23 defraud and failure to warn; (6) wrongful death; and (7) loss of consortium. See id. at ¶¶ 7–96. 24 As relevant to this motion, Plaintiffs allege that Mr. Toy was exposed to asbestos from 25 Armstrong brand steam traps and strainers. See id. at ¶¶ 5–6. Mr. Toy testified that he worked 26 “exclusively” with Armstrong steam traps inside buildings at Treasure Island Naval Station 27 between 1974 and 1980. See Dkt. No. 493-2, Ex. 1 at 87:4–7; see also Dkt. No. 446-1, Ex. E at 1 maintenance on them or work on their internal components. Id. at 757:3–8, 757:23–24, 777:17– 2 20. Mr. Toy further testified that the steam traps required insulation, or “lagging.” See Dkt. No. 3 493-2, Ex. 1 at 88:5–10. As Mr. Toy explained, without insulation, the steam inside would turn to 4 water as it cooled and there would be water in the lines. See id. at 88:3–12. This would cause the 5 lines to “hammer.” Id. Therefore, in order to remove the steam trap, “sometimes” he would first 6 have to remove the insulation. See Dkt. No. 493-3, Ex. 2 at 758:20–24. Doing this would make 7 the room “dusty.” See Dkt. No. 493-2, Ex. 1 at 87:24–89:1. His face would be approximately two 8 and a half feet to three feet away from the insulation, and the rooms were small with no 9 ventilation. See id. at 89:2–11. 10 Mr. Toy also testified that the steam traps were connected to pipes with flanges. See id. at 11 89:16–19; see also Dkt. No. 493-3, Ex. 2 at 747:23–748:4. The steam traps helped supply the 12 island with steam necessary for heating and hot water. See Dkt. No. 493-3, Ex. 2 at 748:24– 13 751:23. Plaintiffs explain that when Mr. Toy removed a steam trap he also had to remove the 14 flange gasket material between the two flanges on the steam trap. See Dkt. No. 493-4, Ex. 3 at 15 124:5–14; see also Dkt. No. 493-3, Ex. 2 at 767:21–768:3. To do so, he had to clean the flanges 16 with a scraper and a mechanical wire brush. See Dkt. No. 493-2, Ex. 1 at 89:20–25. This process 17 would take approximately an hour, and Mr. Toy testified that he would generally do such work 18 daily. See Dkt. No. 493-3, Ex. 2 at 764:3–9, 767:21–768:6. 19 Defendant points out that elsewhere in his deposition Mr. Toy testified that he did not 20 know who manufactured or supplied the insulation, and he did not apply any new insulation to the 21 steam traps. See Dkt. No. 446-1, Ex. E at 758:20–759:23. Defendant further notes that Mr. Toy 22 could not identify the brand of the flange gaskets that he removed either. See id. at 766:2–14. He 23 also said that he could not recall where he got the new gaskets from when he would install new 24 steam traps. See id. at 771:14–774:2. 25 In its motion for summary judgment, Defendant urges that on this record there is no 26 evidence that Mr. Toy was exposed to any asbestos-containing part for which Defendant is 27 responsible. See Dkt. No. 446. Defendant argues that Plaintiffs’ causes of action are therefore 1 claim for conspiracy to defraud and failure to warn, and as to Plaintiffs’ claim for loss of 2 consortium. Id. 3 II. LEGAL STANDARD 4 Summary judgment is proper when a “movant shows that there is no genuine dispute as to 5 any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 6 A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson 7 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a dispute is “genuine” if there is evidence 8 in the record sufficient for a reasonable trier of fact to decide in favor of the nonmoving party. Id. 9 But in deciding if a dispute is genuine, the court must view the inferences reasonably drawn from 10 the materials in the record in the light most favorable to the nonmoving party, Matsushita Elec. 11 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 , 587–88 (1986), and “may not weigh the evidence 12 or make credibility determinations,” Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997), 13 overruled on other grounds by Shakur v. Schriro, 514 F.3d 878 , 884–85 (9th Cir. 2008). If a court 14 finds that there is no genuine dispute of material fact as to only a single claim or defense or as to 15 part of a claim or defense, it may enter partial summary judgment. Fed. R. Civ. P. 56(a). 16 III. EVIDENTIARY OBJECTIONS 17 Plaintiffs separately filed objections to evidence submitted by Defendant in support of its 18 motion for summary judgment. See Dkt. No. 494. Under Civil Local Rule 7-3(a), “[a]ny 19 evidentiary and procedural objections to the motion must be contained within the brief or 20 memorandum.” See Civil L.R. 7-3(a). The Court therefore DENIES these objections for failing 21 to comply with Civil Local Rule 7-3. 22 IV. DISCUSSION 23 As an initial matter, Plaintiffs do not oppose Defendant’s motion for summary judgment as 24 to their conspiracy to defraud and failure to warn claim. See Dkt. No. 493 at 1, 15. The Court 25 therefore GRANTS the motion as to this claim. Plaintiffs, however, contend that there are triable 26 issues of fact regarding whether Mr. Toy was exposed to asbestos-containing products for which 27 Defendant is liable. See id. at 10–15. They also argue that Defendant has misstated the law 1 A. Causation 2 The parties agree that California state law applies to Plaintiffs’ causes of action against 3 Defendant. See Dkt. No. 446 at 7; Dkt. No. 493 at 2, 10–11. Under California law, Plaintiffs must 4 establish that (1) Mr. Toy was exposed to asbestos from Defendant’s products; and (2) this 5 exposure was a substantial factor in causing Mr. Toy’s injury and death. See Rutherford v. 6 Owens-Illinois, Inc., 16 Cal. 4th 953 , 968–69 (Cal. 1997), as modified on denial of reh’g (Oct. 22, 7 1997). 8 Defendant argues that because Mr. Toy did not work on the internal components of any 9 Armstrong brand steam trap, Plaintiffs cannot establish that Mr. Toy was exposed to any asbestos 10 from Defendant’s products. See Dkt. No. 446. Defendant also argues that it cannot be held liable 11 for any component parts that it did not manufacture, supply, or specify. Id. (citing O’Neil v. 12 Crane Co., 53 Cal. 4th 335 , 347–65 (Cal. 2012)). In response, Plaintiffs appear to concede that 13 Mr. Toy did not work on the internal components of Armstrong steam traps. See generally Dkt. 14 No. 493. Nevertheless, Plaintiffs allege that Defendant is liable for Mr. Toy’s work with flange 15 gaskets and insulation “associated with” Armstrong traps. See id. at 1–8, 10–15. Plaintiffs thus 16 urge that Defendant is responsible for Mr. Toy’s exposure to Defendant’s own products and for 17 Mr. Toy’s exposure to third-party products that were used in combination with Armstrong steam 18 traps. Id. 19 i. Exposure to Armstrong Products 20 Plaintiffs have proffered evidence that Mr. Toy worked exclusively on Armstrong steam 21 traps, and that he removed and replaced them with new steam traps almost daily during the 22 approximately six years he worked at Treasure Island. See Dkt. No. 493-2, Ex. 1 at 87:4–7; see 23 also Dkt. No. 446-1, Ex. E at 745:20–22; Dkt. No. 493-3, Ex. 2 at 764:3–765:14; Dkt. No. 493-4, 24 Ex. 3 at 109:19–110:16. Some of these steam traps were connected to pipes with two flanges 25 bolted together, and between the flanges were flange gaskets.1 See Dkt. No. 493-2, Ex. 1 at 46:3– 26 11, 89:16–19; see also Dkt. No. 493-3, Ex. 2 at 747:23–748:4. Therefore, to remove and replace [27] 1 these steam traps, Mr. Toy had to unbolt the flanges. See Dkt. No. 446-1, Ex. E at 760:19–761:7; 2 see also id. at 745:23–746:9. Mr. Toy also testified that flange gasket material would stick to the 3 flanges, and it was important to have clean flanges to ensure a proper seal. See Dkt. No. 493-2, 4 Ex. 1 at 46:22–48:22. So Mr. Toy would also remove the flange gasket material with a scraper 5 and a mechanical wire brush before installing a new flange gasket and reconnecting the flanges. 6 See Dkt. No. 493-2, Ex. 1 at 89:20–25; see also Dkt. No. 493-3, Ex. 2 at 767:21–768:14; Dkt. No. 7 493-4, Ex. 3 at 124:5–14. Plaintiffs do not, however, have direct evidence of who manufactured 8 or supplied the flange gaskets that Mr. Toy removed or the new flange gaskets that he would 9 install. Mr. Toy testified that he did not know who manufactured the flange gaskets. See Dkt. No. 10 446-1, Ex. E at 766:2–14, 771:14–774:2. 11 Instead, Plaintiffs point to a deposition in another case in which Defendant’s 30(b)(6) 12 witness explained that Defendant sold some steam traps that contained asbestos-containing 13 gaskets, and that Defendant sold asbestos-containing replacement gaskets from 1954 to 1988. See 14 Dkt. No. 493-8, Ex. 7 (2017 Scare Depo.) at 20:9–22:2, 23:10–13, 24:4–25:14, 34:11–21. 15 Plaintiffs also point to several of Defendant’s catalogs and handbooks, which include compressed 16 asbestos gaskets in the “list of materials” for the steam traps. See Dkt. No. 493-9, Ex. 8 at 10, 13, 17 14; Dkt. No. 493-10, Ex. 9 at 2; Dkt. No. 493-12, Ex. 11 at 2; Dkt. No. 493-11, Ex. 10 at 8; see 18 also Dkt. No. 493-12, Ex. 11 at 38:8–16. 19 These materials do not, however, state that Defendant sold or supplied external flange 20 gaskets. To the contrary, in the excerpt of the 2017 Scare deposition that Plaintiffs identify, 21 Defendant’s 30(b)(6) witness explained that when he said that Defendant sold steam traps with 22 asbestos-containing gaskets he was referring to a single internal gasket between the cap and the 23 body of the steam trap. See Dkt. No. 493-8, Ex. 7 (2017 Scare Depo.) at 19:10–20:17, 21:13– 24 22:2; see also Dkt. No. 493-12, Ex. 11 (2008 Grubka Depo.) at 33:22–34:23. They do not discuss 25 the sale of external gaskets. Cf. Dkt. No. 493-8, Ex. 7 (2017 Scare Depo.) at 55:18–57:17 26 (describing importance of removing old internal gasket material between cap and body of steam 27 trap). But as noted above, Mr. Toy did not testify that he worked on any internal components of 1 Ex. E at 757:3–8, 757:23–24, 777:17–20. 2 Although one catalog noted that the “[t]raps can be furnished with any type of flanged 3 connection,” the catalog did not list or even reference flange gaskets for sale. See Dkt. No. 493-9, 4 Ex. 8 at 10. The only reference to Armstrong flange gaskets is from Mr. Toy’s deposition 5 testimony. He stated that “[t]he steam traps came with gaskets, I think,” though he did not specify 6 whether these were internal gaskets or flange gaskets. See Dkt. No. 493-4, Ex. 3 at 121:7–16. Mr. 7 Toy also confirmed, in response to a question from counsel, that he would remove “the original 8 gasketing material that had come with the Armstrong steam traps”: [9] Q. For the same traps at Treasure Island, can you tell us whether or 10 not you ever had to remove the original gasketing material that had come with the Armstrong steam traps when they were new? [11] DEFENSE ATTORNEY: Objection. That’s leading, it lacks 12 foundation, misstates prior testimony, and is compound. 13 THE WITNESS: Yeah, if we took the steam trap off. Each time the steam trap was removed, you had to renew the gasket. [14] 15 See id. at 124:5–14. But Mr. Toy’s answer simply confirms that he replaced the flange gaskets 16 between the flanges that connected the steam traps to pipes when he replaced steam traps. See 17 Dkt. No. 493-4, Ex. 3 at 124:5–14; see also Dkt. No. 493-3, Ex. 2 at 767:21–768:3. And 18 elsewhere Mr. Toy clarified that he did not know who manufactured the flange gaskets that he 19 removed or the new gaskets that he installed. See Dkt. No. 446-1, Ex. E at 766:2–14, 768:23– 20 769:4, 771:6–774:2. Mr. Toy even explained that sometimes he would make the gaskets for use 21 with the steam traps himself from sheet gasket material. See id. at 773:4–11. Consistent with this 22 testimony, Defendant also provides its own affirmative evidence: a declaration from its person 23 most knowledgeable that “Armstrong International, Inc. never sold sheet gasket material or flange 24 gaskets.”2 See Dkt. No. 446-1, Ex. I at ¶ 9. [25] 2 Although Plaintiffs suggest that Mr. Scare lacks foundation for this assertion, he explains in his [26] declaration that has worked at Armstrong since 1993. See Dkt. No. 446-1, Ex. I at ¶ 4. During his time there, he held various positions, including Vice President of Sales and Global Director of [27] Product Configuration. Id. He also explained that to prepare as the person most knowledgeable, 1 In the alternative, Plaintiffs appear to suggest that customers could have used the 2 Armstrong internal gaskets as replacement flange gaskets. See Dkt. No. 493 at 13. However, 3 there is simply no evidence in the record to support this assertion. Even viewing the evidence in 4 the light most favorable to Plaintiffs, the Court finds that there is insufficient evidence that 5 Defendant manufactured or supplied asbestos-containing flange gaskets, let alone that Mr. Toy 6 was exposed to such products. It would thus be unreasonable for a jury to infer from this evidence 7 that Mr. Toy was exposed to asbestos-containing products manufactured or supplied by 8 Defendant. 9 ii. Exposure to Third-Party Components 10 Plaintiffs also contend that Defendant is liable for third-party components as well—in 11 particular, third-party gaskets and insulation. Plaintiffs urge that Defendant understood the need 12 to remove gasket material when replacing steam traps and the benefit of insulating its steam traps, 13 and should be held responsible for their use. See Dkt. No. 493 at 12–15. 14 The California Supreme Court has clarified that “the reach of strict liability is not 15 limitless.” O’Neil v. Crane Co., 53 Cal. 4th 335, 348 (Cal. 2012). A plaintiff must have “proof 16 that [he] suffered injury caused by a defect in the defendant’s own product.” Id. (emphasis 17 added). Thus, a “product manufacturer generally may not be held strictly liable for harm caused 18 by another manufacturer’s product. Id. Similarly, “California law does not impose a duty to warn 19 about dangers arising entirely from another manufacturer’s product, even if it is foreseeable that 20 the products will be used together.” Id. at 361 . As relevant here, the California Supreme Court 21 has recognized a limited exception where the defendant bears some direct responsibility for the 22 harm, either because “the defendant’s own product contributed substantially to the harm” or “the 23 defendant participated substantially in creating a harmful combined use of the products.” Id. at 24 362. 25 The California Supreme Court did not explain what circumstances could fall within these 26 narrow exceptions. But the facts in O’Neil are instructive. The plaintiffs sued valve and pump [27] 1 manufacturers for a wrongful death allegedly caused by asbestos from insulation, gaskets, and 2 packing that were made by third parties and added to the valves and pumps post-sale and aboard 3 Navy ships. Id. Once onboard the ships, the valves were connected to other components with 4 asbestos-containing flange gaskets, and all metal components were covered in asbestos insulation. 5 See id. at 344 . It was undisputed that the defendant did not manufacture or sell the asbestos6 containing gaskets or insulation. See id. at 342 . There was no evidence that external insulation 7 was necessary for the valves and pumps to function. See id. at 344 . And the defendants also did 8 not “mandate or advise” that asbestos-containing insulation be used with their products. See id. at 9 349. 10 In remanding the case for entry of judgment of nonsuit in favor of the defendants, the 11 California Supreme Court noted that the products’ “mere compatibility for use with [asbestos12 containing] components is not enough to render them defective” or impose a duty of care on the 13 manufacturers. Id. at 350 , 364–66. The court thus rejected the plaintiffs’ attempt to hold 14 manufacturers liable “when it is foreseeable that their products will be used in conjunction with 15 defective products or replacement parts made or sold by someone else.” Id. at 362 ; see also id. 16 (“[T]he foreseeability of harm, standing alone, is not a sufficient basis for imposing strict liability 17 on the manufacturer of a non-defective product, or one whose arguably defective product does not 18 actually cause harm.”). The court reasoned that it was unreasonable to “require manufacturers to 19 investigate the potential risks of all other products and replacement parts that might foreseeably be 20 used with their own product and warn about all of these risks.” Id. at 363. The O’Neil court 21 explained that the actual danger posed to the decedent “resulted entirely from work performed on 22 asbestos products that defendants did not manufacture, sell, or supply,” and thus “[t]he connection 23 between defendants’ conduct and [the decedent’s] injury is extremely remote . . . .” Id. at 361, 24 365. 25 Here too, the actual danger that Plaintiffs allege is not from Defendant’s steam traps, but 26 rather from the asbestos-containing flange gaskets and external insulation manufactured and 27 supplied by third-parties. Plaintiffs assert that Defendant “specified” or “recommended” the use 1 Defendant touted the benefits of asbestos-containing gaskets and used them in their own steam 2 traps because they were “the best material to retain the pressure and integrity” of the traps. See, 3 e.g., Dkt. No. 493-12, Ex. 11 at 58:14–59:17; Dkt. No. 493-8, Ex. 7 at 30:25–34:21. Yet as 4 discussed at length above, these deponents discussed internal gaskets, not flange gaskets. 5 Plaintiffs also argue that Defendant knew it was important to completely remove old flange gasket 6 material before installing a new gasket. See Dkt. No. 493 at 13. Plaintiffs point to a 1988 7 Armstrong instructional video that depicts someone cleaning “the gasket seating surface,” 8 including flanges. See Dkt. No. 493-13, Ex. 12 at 91:1–93:23, 95:18–24; Dkt. No. 493-13, Ex. 7 9 at 57:4–17; see also Dkt. No. 493-13, Ex. 7 at 57:4–17. The mere foreseeability that someone 10 would have to remove old flange gasket material is not a sufficient basis for imposing liability on 11 the manufacturer of a product that did not directly cause the decedent harm. See O’Neil, 53 Cal. 12 4th at 362. 13 Similarly, the Court finds the fact that some of Defendant’s steam traps were later 14 insulated with asbestos insufficient to hold Defendant liable for asbestos that it did not 15 manufacture or supply. Mr. Toy testified that without insulation, the steam inside the trap would 16 turn to water as it cooled and there would be water in the lines. See Dkt. No. 493-2, Ex. 1 at 88:3– 17 12. A 1965 Armstrong catalog explained that “[s]team distribution pipes are insulated to 18 minimize” this issue. See Dkt. No. 493-16, Ex. 15. Another catalog in 1972 explained that a 19 specific type of steam trap “may be completely insulated without affecting trap operation.” See 20 Dkt. No. 493-17, Ex. 16. Plaintiffs also point out that in a deposition from an earlier case, one of 21 Defendant’s representatives stated that it was “possible” a customer could insulate a steam trap. 22 See Dkt. No. 493-19, Ex. 18 at 120:23–124:6; see also Dkt. No. 493-18, Ex. 17 at 26:5–17. At 23 best, Plaintiffs have proffered evidence that it was foreseeable that some of Defendant’s steam 24 traps would later be insulated. But as in O’Neil, Plaintiffs have not identified any evidence that 25 insulation generally—let alone asbestos-containing insulation—was necessary for the steam traps 26 to function properly. See O’Neil, 53 Cal. 4th at 344 . 27 Plaintiffs’ reliance on Willis v. Buffalo Pumps Inc., 34 F. Supp. 3d 1117 , 1122–23 (S.D. 1 exposed to asbestos in the original gaskets supplied by the defendant and that the defendant had 2 specified and/or supplied asbestos-containing replacement gaskets. See id. In contrast, Plaintiffs’ 3 evidence, even when viewed in the light most favorable to them, does not support the inference 4 that Defendant “mandate[d] or advise[d] that [asbestos-containing insulation or flange gaskets] be 5 used with [its] products.” O’Neil, 53 Cal. 4th at 349 . In short, the Court finds that Plaintiffs have 6 not raised a genuine dispute of material fact as to Defendant’s liability for third-party components 7 either.3 8 B. Loss of Consortium 9 Defendant also argues that Plaintiffs may not bring a cause of action for loss of consortium 10 because (1) Plaintiffs have not provided adequate causation evidence to establish that Defendant 11 caused Mr. Toy’s injuries; and (2) the loss of consortium claim is “subsumed” by the wrongful 12 death claim. See Dkt. No. 446 at 12–13. Nevertheless, as explained in Section IV.A above, the 13 Court finds that Plaintiffs have not proffered sufficient evidence to raise a genuine dispute of 14 material fact regarding whether Mr. Toy was exposed to asbestos-containing products for which 15 Defendant is responsible. The Court therefore does not reach this issue. 16 // 17 // 18 // 19 // 20 // 21 // 22 // 23 // [24] 3 The Court understands that Defendant Warren Pumps, LLC raised similar issues in its motion for [25] summary judgment. See Dkt. No. 454. As the Court acknowledged in its order denying that motion, the evidence Plaintiffs amassed against Warren was not particularly strong. See id. at Dkt. [26] No. 557 at 8. Nevertheless, the Court found that the evidence against Warren was somewhat more substantial, and thus adequate to defeat summary judgment. The Court also found that maritime [27] law applied to the claims against Warren, and the Supreme Court has applied a different standard 1 V. CONCLUSION 2 Accordingly, the Court finds that Defendant is entitled to summary judgment on each of 3 Plaintiffs’ claims, and the Court GRANTS the motion in its entirety. The Clerk is directed to 4 || enter judgment in favor of Defendant Armstrong International, Inc. The Court’s scheduling order 5 remains in effect as to the remaining Defendants. 6 IT IS SO ORDERED. 7 {| Dated: 5/20/2021 : Aitogurert 3, Adl_)). HAYWOOD S. GILLIAM, JR. 9 United States District Judge [16] = 17 Z 18