Michael Farrow And Lidia Farrow, Apps. v. Flowserve Us, Inc., Res. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MICHAEL FARROW and LIDIA
FARROW, No. 69917-2-1
Appellants, DIVISION ONE
PUBLISHED IN PART OPINION
ALFA LAVAL, INC. (sued individually
and as successor-in-interest to THE
DELAVAL SEPARATOR COMPANY
t-3 c •", cz
and SHARPLES CORPORATION); c=> •.—
ANCHOR/DARLING VALVE rn
COMPANY; AURORA PUMP
COMPANY; BEAIRD COMPANY; I
BUFFALO PUMPS, INC. (sued
individually and as successor-in-
interest to BUFFALO FORGE
COMPANY); BW/IP INTERNATIONAL, CO
INC. (sued individually and as
successor-in-interest to BYRON
JACKSON PUMP COMPANY);
CAMERON INTERNATIONAL
CORPORATION f/k/a COOPER
CAMERON CORPORATION (sued
individually and as successor-in-interest
to COOPER-BESSEMER
CORPORATION); CARRIER
CORPORATION; CLA-VAL CO.;
CLEAVER-BROOKS, INC. f/k/a AQUA-
CHEM, INC. d/b/a CLEAVER-BROOKS
DIVISION (sued individually and as
successor-in-interest to DAVIS
ENGINEERING COMPANY); COLTEC
INDUSTRIES, INC. (sued individually
and as successor-in-interest to
No. 69917-2-1/2
FAIRBANKS MORSE ENGINE);
CRANE CO. (sued individually and as
successor-in-interest to COCHRANE
CORPORATION and CHAPMAN
VALVE CO.); CRANE
ENVIRONMENTAL, INC. (sued
individually and as successor-in-interest
to COCHRANE CORPORATION);
CROSBY VALVE, INC.; EATON
HYDRAULICS, INC. (sued individually
and as successor-in-interest to
VICKERS INC.); ELLIOTT
TURBOMACHINERY COMPANY a/k/a
ELLIOTT COMPANY; E.J. BARTELLS
SETTLEMENT TRUST; FAIRBANKS
MORSE PUMP CORPORATION; FMC
CORPORATION (sued individually and
as successor-in-interest to PEERLESS
PUMP COMPANY); FRYER-
KNOWLES, INC.; FRYER-KNOWLES,
INC., a Washington corporation;
GARLOCK SEALING
TECHNOLOGIES, L.L.C. (sued
individually and as successor-in-
interest to GARLOCK, INC.); GENERAL
MOTORS CORPORATION (sued
individually and as successor-in-interest
to HARRISON THERMAL SYSTEM and
HARRISON RADIATOR); GOULDS
PUMPS, INC.; HARDIE-TYNES, L.L.C.
(sued individually and as successor-in-
interest to HARDIE-TYNES
MANUFACTURING COMPANY);
HARDIE-TYNES MANUFACTURING
COMPANY; HOKE INCORPORATED;
HOPEMAN BROTHERS, INC.;
HOPEMAN BROTHERS MARINE
INTERIORS, L.L.C. a/k/a HOPEMAN
BROTHERS, INC.; IMO INDUSTRIES,
INC. (sued individually and as
successor-in-interest to DELAVAL
TURBINE, INC. and C.H. WHEELER);
ITT INDUSTRIES, INC. (sued
individually and as successor-in-
interest to BELL & GOSSETT,
KENNEDY VALVE MANUFACTURING
No. 69917-2-1/3
CO., KENNEDY VALVE, INC. and
KENNEDY VALVE CO); INVENSYS
SYSTEMS, INC. (sued individually and
as successor-in-interest to EDWARD
VALVE & MANUFACTURING); J.T.
THORPE & SON, INC.; JOHN CRANE,
INC.; LESLIE CONTROLS, INC.; M.
SLAYEN AND ASSOCIATES, INC.;
MCWANE INC. (sued individually and
as successor-in-interest to KENNEDY
VALVE MANUFACTURING COMPANY,
KENNEDY VALVE INC. and KENNEDY
VALVE COMPANY); METALCLAD
INSULATION CORPORATION;
METROPOLITAN LIFE INSURANCE
COMPANY; PLANT INSULATION
COMPANY; RAPID-AMERICAN
CORPORATION (sued as successor-in-
interest to PHILIP CAREY
MANUFACTURING CORPORATION);
SB DECKING, INC. f/k/a SELBY
BATTERSBY & CO.; SEPCO
CORPORATION; STERLING FLUID
SYSTEMS, INC. f/k/a PEERLESS
PUMPS CO; SYD CARPENTER,
MARINE CONTRACTOR, INC.;
THOMAS DEE ENGINEERING CO.,
INC.; TRIPLE A MACHINE SHOP, INC.;
TYCO FLOW CONTROL, INC. (sued
individually and as successor-in-interest
to THE LUNKENHEIMER COMPANY,
and HANCOCK VALVES); WARREN
PUMPS, L.L.C. (sued individually and
successor-in-interest to QUIMBY
PUMP COMPANY); WEIR VALVES &
CONTROLS USA, INC. f/k/a
ATWOOD & MORRILL; THE WILLIAM
POWELL COMPANY; YARWAY
CORPORATION; and DOES 1-450
INCLUSIVE,
Defendants,
FLOWSERVE US INC. (sued
individually and as successor-in-
interest to DURCO INTERNATIONAL,
No. 69917-2-1/4
BYRON JACKSON PUMP COMPANY, )
ALDRICH and EDWARD VALVE & )
MANUFACTURING), )
)
Respondents. ) FILED: March 3,2014
)
Dwyer, J. — Michael Farrow died in 2008 as a result of contracting
mesothelioma. Prior to his death, he and his wife, Lidia Farrow, filed a lawsuit
against a number of defendants, including Flowserve US Inc., who they sued
individually and as successor-in-interest to Edward Valves, Inc. (EVI). The
Farrows alleged that Michael had contracted mesothelioma as a result of being
exposed to asbestos-containing products while working at the Puget Sound
Naval Shipyard (PSNS) over the span of two decades. Melvin Wortman, a
superintendent at the PSNS during part of Farrow's tenure, was deposed in a
different lawsuit, and subsequently died before Farrow's case could be heard.
Initially, the trial court allowed Farrow to offer Wortman's testimony, over EVI's
hearsay objection, pursuant to the "predecessor in interest" exception of ER
804(b)(1).1 However, after excluding Wortman's testimony as to several other
defendants, the trial court reversed course and excluded his testimony in this
case, leading to its grant of Flowserve's motion for summary judgment. The trial
court erred in making the latter rulings. Accordingly, we reverse and remand for
further proceedings.
1 (b) Hearsay Exceptions. The following are not excluded by the hearsay
rule if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony given as a witness at another hearing
of the same or a different proceeding, or in a deposition taken in compliance with
law in the course of the same or another proceeding, if the party against whom
the testimony is now offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination.
ER 804.
No. 69917-2-1/5
Farrow worked at the PSNS as a pipefitter from 1953 to 1962 and in the
design shop from 1963 to 1974. As part of his work in both positions, he spent a
significant amount of time aboard ships installing and repairing valves, removing
and replacing packing material around the valves' stems, and removing and
replacing flange gaskets. One brand of valve that Farrow worked on and around
"many times" was the Edward valve. Farrow removed insulation pads from
Edward valves, removed flange gaskets from and fabricated flange gaskets on
Edward valves, and removed packing from Edward valves and replaced the old
packing with new packing. When Farrow or others nearby removed insulation
from Edward valves, the air would be dusty and Farrow would breathe that dust.
When Farrow or others nearby would remove gaskets from Edward valves, the
air would be dusty and Farrow would breathe that dust. When Farrow or others
nearby would fabricate gaskets on Edward valves, the air would be dusty and
Farrow would breathe that dust. When Farrow or others nearby would remove
old packing from Edward valves, it would very often be dusty and Farrow would
breathe that dust. When Farrow or others nearby would replace old packing with
new packing, it would be dusty and Farrow would breathe that dust.
Melvin Wortman was a superintendent of machinists at the PSNS from
approximately 1968 until 1976. Although Wortman is now deceased, he is
significant in this case because of deposition testimony he gave in a previous
King County Superior Court case: Nelson v. Buffalo Pumps, Inc., No. 08-2-
17324-1 SEA. Wortman testified that because the Navy and the PSNS were
No. 69917-2-1/6
focused on increasing their quality control during the time when he was
superintendent, "there was a great increase in going to the original vendor for
repair parts." He testified that in later years approximately 50 percent of the
replacement parts obtained for the PSNS were procured from original
manufacturers.2 Wortman's deposition in the Nelson case was taken over a
three-day period, during which time questions were asked by attorneys for
defendants Crane Co., Buffalo Pumps, Ingersol Rand, and Warren Pumps, and
by attorneys for the plaintiffs. Buffalo Pumps manufactured pumps, whereas
Crane Co., manufactured valves, and both of these defendants' products were
on ships repaired at the PSNS. See Braaten v. Saberhaqen Holdings, 137 Wn.
App. 32, 37, 151 P.3d 1010 (2007), rev'd 165 Wash. 2d 373, 394-95, 198 P.3d 493
(2008).
Flowserve's CR 30(b)(6)3 witness in this case, James Tucker, testified that
EVI began manufacturing valves containing asbestos in the 1930s; that EVI
manufactured valves that contained asbestos at the time the valves left the
factory; that the asbestos contained in Edward valves at the time they left the
factory for installation included both packing and gaskets; and, that Edward
valves were designed to contain asbestos until 1985. He also testified that EVI
supplied replacement asbestos gaskets with new valves that already
incorporated an original asbestos gasket; that EVI also separately sold
replacement asbestos gaskets, including sheet gasket material; and, that EVI
sold replacement asbestos packing separately as well. Although Tucker
2 However, Wortman testified that he was not familiar with Edward valves.
3This rule allows a corporation to designate a witness to testify on its behalf.
6
No. 69917-2-1/7
admitted that EVI sold original and replacement packing, he testified that EVI
never manufactured, distributed, or sold any external insulation or flange
gaskets. Additionally, Tucker testified that he was unaware of any sales of
replacement packing to the Navy and that, in preparing to testify as a CR
30(b)(6) witness, he had found no company records indicating otherwise.
Flowserve moved for summary judgment on June 28, 2012. During oral
argument, and in connection with the issue ofthe admissibility ofWortman's
testimony, Flowserve's counsel, Randy Aliment—who was not present at
Wortman's deposition4—admitted that he would not have asked Wortman
additional questions had he been present. The trial court, relying in part on
attorney Aliment's assertion that he would not have asked Wortman additional
questions had he been present, ruled that Wortman's deposition testimony was
admissible pursuant to ER 804(b)(1) and denied Flowserve's motion for summary
judgment. The court explained its ruling on the admissibility of Wortman's
testimony, in pertinent part, as follows:
It is telling, indeed, that had Mr. Aliment been there or a
representative from EVI, that they would not have asked any other
questions because, let's face it, once you have testimony that, "No,
Edwards Valve is not familiar with me, to me," I don't know any
attorney who would ask any further questions at that point. In fact,
it would probably be malpractice to ask any further questions at that
point.
So if someone had been there, they would not have asked
any other questions other than those questions which were asked
by other counsel, and those other counsel had similar interests, not
identical interests, but similar interests to EVI's counsel. And - and
to the extent their interests were identical, those questions were
asked. I can't imagine any additional benefit to EVI had counsel
been present than existed - than occurred during the deposition.
4 Neither Flowserve nor EVI was a party to the case in which Wortman was deposed.
No. 69917-2-1/8
Several months later, in support of their separate motions for summary
judgment against Farrow, a number of other defendants filed motions to exclude
or strike Wortman's testimony. Several defendants, including Alfa Laval,
opposed the admission of Wortman's deposition based upon ER 804(b)(1) and
the King County Asbestos Order (KCAO), an order applying to all asbestos cases
filed in the King County Superior Court. With respect to ER 804(b)(1), Alfa Laval
contended that the deposition could be admitted only "when a party or its
predecessor [in] interest has had an opportunity to cross-examine the witness, at
the original deposition or subsequently." With respect to the KCAO, Alfa Laval
contended that because the plaintiffs failed to follow the procedure dictated by
the KCAO—requiring parties to give notice to parties against whom the
deposition may subsequently be used—the plaintiffs were precluded from
seeking admission of the deposition testimony, notwithstanding the provisions of
ER 804(b)(1). The KCAO states, in pertinent part:
5.6 Depositions, generally
d. Pre-Deposition Statement In order to minimize
time, travel expenses, and surprise to counsel or parties who may
not desire to attend all depositions, there shall be attached to each
notice of deposition a statement containing the following
information (except depositions of individual plaintiffs).
(7) That any party intending to use a deposition as
a "Style" deposition, orto use it in certain other trials, shall serve
the pre-deposition statement described in this Section (d) as well as
a notice of "Style" deposition and/or a notice of deposition for said
othertrials, upon counsel for all parties who are intended to be
bound thereby.
On December 13, 2012, the trial court issued a written order granting Alfa Laval's
No. 69917-2-1/9
motion to strike Wortman's deposition testimony "as to those moving/joining
defendants who were not notified of and who did [not] have counsel at the
Wortman ... deposition."
On December 26, 2012, Flowserve filed a second summary judgment
motion, asserting that the "law of the case" doctrine and judicial economy
compelled a grant of summary judgment in its favor. During the second
summary judgment hearing, attorney Aliment stated that although—as he
indicated during the first summary judgment hearing—he would not have asked
additional product identification questions of Wortman, "there were a number of
questions that could have/should have been asked by competent counsel about
the replacement part issue, which became central to his testimony." The trial
court then reversed its prior ruling, excluded Wortman's deposition testimony,
and granted Flowserve's motion for summary judgment. The court provided the
following explanation for its rulings:
Now, Mr. Aliment I think was a little bit caught off guard I
think when the Court last July asked him some questions relating to
questions he would have asked at the Wortman deposition, and -
but I do take his statements at face value, and he was really
addressing whether- as we have discussed it, whether the -
whether he would have gilded the lily in terms of the Wortman
deposition had he been present or had been given notice. And I
think that's absolutely true.
But Mr. Aliment's renewed motion for summary judgment is
not only as he's renewed it, but he's basically saying, "Give me
summary judgment for the same reason you gave Ms. Dinsdale,"'
and the basis for Ms. Dinsdale's motion was, number one, defects
in the case law and, number two, defects in the style order local
rules.
So, long story short, the motion to strike the Wortman
' Counsel for a different defendant.
No. 69917-2-1/10
deposition is granted. That - that the motion being granted, there
are no genuine issues of material fact remaining. It is the Plaintiff's
burden to prove - demonstrate some admissible evidence
establishing causation. Even though all inferences are in favor of
the non-moving party, the - the Plaintiff must still come forward with
some admissible evidence establishing the elements of their cause
of action, and they have failed to do so in this particular case now
that the Wortman deposition has been stricken. Therefore, I will
grant both motions by Mr. Aliment.
Farrow appeals from the trial court's grant of Flowserve's motion to strike
Wortman's deposition testimony and from its grant of summary judgment in favor
of Flowserve.
Farrow contends that the trial court erred by excluding Wortman's
deposition testimony as inadmissible hearsay. This is so, Farrow asserts,
because certain defendants in the case in which Wortman was deposed were
predecessors in interest to Flowserve within the meaning ascribed by ER
804(b)(1). We agree.
"We review de novo a trial court ruling on a motion to strike evidence
made in conjunction with a summary judgment motion." Rice v. Offshore Svs.,
Inc., 167 Wash. App. 77, 85, 272 P.3d 865, review denied, 174 Wash. 2d 1016 (2012);
accord Parks v. Fink, 173 Wash. App. 366, 375, 293 P.3d 1275 ("We review the
admissibility of evidence in summary judgment proceedings de novo." (citing
Folsom v. Burger King, 135 Wash. 2d 658, 663, 958 P.2d 301 (1998))), review
denied, 177 Wash. 2d 1025 (2013).
10
No. 69917-2-1/11
Division Three recently examined how the "predecessor in interest"
exception of ER 804(b)(1)6 has been interpreted by federal courts and by
Washington state courts, concluding that both have interpreted the exception
broadly, focusing on opportunity and similar motive.
Indeed, the courts have dispensed with any technical and narrow
definition of the term and instead examine whether the party
against whom the evidence was previously offered had an
opportunity and similar motive to develop and challenge the
testimony by cross-examination. So a previous party having like
motive to develop the testimony by cross-examination about the
same matter is a predecessor in interest to the present party for
purposes of this rule.
Acord v. Pettit, 174 Wash. App. 95, 105, 302 P.3d 1265 (emphasis added), review
denied, 178 Wash. 2d 1005 (2013). Although the Acord court's assessment of
federal court interpretations was accurate, its review of Washington court
interpretations was not: specifically, it was mistaken that Washington courts had
earlier held that a previous party with a like motive to develop testimony by cross-
examination about the same matter was considered a predecessor in interest to
the present party. In support of its erroneous conclusion, the Acord court cited
two Washington cases, neither of which supported the proposition for which it
was cited. The first of these cases did not explain who may constitute a
predecessor in interest. Instead, it merely reiterated that which ER 804(b)(1)
already states: "the predecessor in interest exception requires the predecessor to
have the opportunity to examine the witness." Allen v. Asbestos Corp., 138 Wn.
App. 564, 578-79, 157 P.3d 406 (2007). The second decision also did not
determine who it was that might constitute a predecessor in interest. Instead, it
6ER 804(b)(1) is identical to Fed. R. Evid. 804(b)(1). State v. DeSantiaqo. 149 Wash. 2d
402, 414, 68 P.3d 1065 (2003).
11
No. 69917-2-1/12
addressed whether, assuming that the testimony at issue was already admissible
pursuant to ER 804(b)(1), the rule allowed only the proponent of the testimony at
the former proceeding to introduce the testimony at the subsequent proceeding.
State v. Whisler. 61 Wn. App 126, 135, 810 P.2d 540 (1991).
Nevertheless, the Acord court correctly concluded that federal courts have
held that a previous party with a like motive and an opportunity to develop
testimony by cross-examination about the same matter is a predecessor in
interest to the current party. Indeed, the Third, Fourth, Sixth, Eighth, and Tenth
circuits all look to whether the former party had a similar motive and an
opportunity to develop testimony through cross-examination in determining
whether the former party is a predecessor in interest to the latter within the
meaning ofthe rule. See Home v. Owens-Corning Fiberolas Corp., 4 F.3d 276,
282 (4th Cir. 1993); O'Banion v. Owens-Corning Fiberolas Corp.. 968 F.2d 1011,
1015 (10th Cir. 1992); Azalea Fleet. Inc. v. Dreyfus Supply &Mach. Corp., 782
F.2d 1455, 1461 (8th Cir. 1986); Clav v. Johns-Manville Sales Corp., 722 F.2d
1289, 1294-95 (6th Cir. 1983); Llovd v. Am. Exp. Lines. Inc., 580 F.2d 1179,
1187 (3d Cir. 1978)7
"Washington courts treat as persuasive authority federal decisions
interpreting the federal counterparts ofour own court rules." Young v. Key
Pharm.. Inc., 112 Wash. 2d 216, 226, 770 P.2d 182 (1989): accord State v.
DeSantiago. 149 Wash. 2d 402, 414, 68 P.3d 1065 (2003). Moreover, our Supreme
7Many ofthe federal cases interpreting the language of ER 804(b)(1) are asbestos
cases. Although it is not surprising that the admissibility of deposition testimony from since-
deceased witnesses is a recurring issue in asbestos cases, given thatasbestos-related diseases
have a long latency period between exposure and manifestation ofthe disease, it does
underscore the critical nature of the evidentiary question presented in this appeal.
12
No. 69917-2-1/13
Court, in the absence of prior state interpretation, has been willing to adopt
federal interpretations of evidentiary rules where the rules are identical. State v.
Land. 121 Wash. 2d 494, 498-500, 851 P.2d 678 (1993); State v. Terrovona. 105
Wash. 2d 632, 639-41, 716 P.2d 295 (1986): accord Int'l Ultimate. Inc. v. St. Paul
Fire & Marine Ins. Co.. 122 Wash. App. 736, 748, 87 P.3d 774 (2004). Extensive,
uniform federal authority interpreting ER 804(b)(1) exists without conflicting
precedent in any federal or Washington appellate court. Recognizing that this
persuasive authority is extensive and uniform and exists without conflicting
precedent in Washington, we adhere to the federal court interpretation of the
predecessor in interest language of ER 804(b)(1).
When opposing admission of evidence pursuant to ER 804(b)(1), counsel
must "explain as clearly as possible . . . why the motive and opportunity ofthe
defendants in the first case was not adequate to develop the cross-examination
which the instant defendant would have presented to the witness." Dvkes v.
Ravmark Indus.. Inc.. 801 F.2d 810, 817 (6th Cir. 1986); O'Banion, 968 F.2d at
1015 n.4. In United States v. DiNapoli. 8 F.3d 909 (2d Cir. 1993), the court was
not persuaded "by the Government's contention that the absence ofsimilar
motive is conclusively demonstrated by the availability at the grand jury ofsome
cross-examination opportunities that were forgone." DiNapoli, 8 F.3d at 914. In
explaining why it was not persuaded, the court noted that, "[i]n virtually all
subsequent proceedings, examiners will be able to suggest lines of questioning
that were not pursued at a prior proceeding." DiNapoli. 8 F.3d at 914; cf. Dykes,
801 F.2d at 817 ("[W]e would have been much more impressed with the
13
No. 69917-2-1/14
defense's objections had they articulated before the trial court in the first
instance, and later before us, precisely what lines of questioning they would have
pursued.").
During the second summary judgment hearing, attorney Aliment asserted
that he would not have asked additional product identification questions, but that
competent counsel should have asked additional questions about Wortman's
testimony related to obtaining replacement parts from the original manufacturers.
On appeal, Flowserve asserts that the defendants in Nelson did not have a
similar motive to Flowserve because (1) none of the other equipment
manufacturers had a motive to discredit Wortman as a witness whose testimony
might show that EVI in particular supplied replacement parts to the Navy and, (2)
in fact, each manufacturer hoped to spread liability to as many parties as
possible. These assertions are unavailing.
All of the manufacturers were interested in discrediting Wortman's
testimony, which supported Farrow's position that if he worked with or around
valves at PSNS that were being repaired or replaced during a period of years in
the 1960s and 1970s, he would likely have been exposed to new and
replacement asbestos-containing insulation, gaskets, and packing supplied to the
PSNS by the manufacturers during that time period. Furthermore, although each
manufacturer may have hoped to spread liability to as many parties as possible if
their respective defenses failed, that fact would not extinguish the shared motive
of discrediting Wortman's testimony so that no manufacturer would be held liable.
Accordingly, we conclude that certain defendants present at Wortman's
14
No. 69917-2-1/15
deposition had an opportunity and a similar motive to Flowserve to develop
Wortman's deposition testimony. Therefore, Wortman's deposition testimony
does not constitute hearsay pursuant to the predecessor in interest exception of
ER 804(b)(1). To the extent that it was excluded as hearsay, the trial court
erred.8
The remainder of this opinion has no precedential value. It will, therefore,
be filed for public record in accordance with the rules governing unpublished
opinions.
Ill
Farrow next contends that the trial court erred by granting summary
judgment in favor of Flowserve. This is so, Farrow asserts, because Wortman's
deposition testimony, considered along with Tucker's and Farrow's testimony,
creates genuine issues of material fact. We agree.
"This court's review of orders granting or denying summary judgment is de
novo, and we engage in the same inquiry as the trial court." Rafel Law Grp.
PLLC v. Defoor. 176 Wash. App. 210, 218, 308 P.3d 767 (2013), review denied.
8During oral argument, Flowserve's counsel stated that Farrow's purported failure to
comply with the KCAO did not present an independent ground for affirmance and that Flowserve
was not asserting that it did. To the extent that Flowserve's briefing could be construed to
contradict counsel's statement, we rely on counsel's concession that Flowserve does not view the
question ofFarrow's compliance with the KCAO as an independent ground for affirmance.
However, even absent counsel's concession, it is clearthata violation ofthe KCAO would not
present an independent ground for affirmance. This isso because the trial court failed to
consider the factors required by Burnet v. Spokane Ambulance, 131 Wash. 2d 484, 933 P.2d 1036
(1997), on the record before excluding Wortman's testimony, as is mandated by Jones v. City of
Seattle. Wn.2d 314 P.3d 380, 391 (2013).
Moreover, even if the trial court had considered the Burnet factors, there is no evidence
in the record that Farrow willfully violated the KCAO. Thus, the trial court could not have properly
excluded the testimony. Jones disavowed the usual presumption that violating a rule constitutes
a willful act, holding instead that willfulness must be demonstrated. Jones, 314 P.3d at 391. In
holding that merely violating a rule does not equate to a willful violation, Jones was unequivocal:
"Something more [than a violation of a discovery order] is needed." Jones, 314 P.3d at 391.
15
No. 69917-2-1/16
316 P.3d 495 (2014). Summary judgment is appropriate where there is no
genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law. CR 56(c).
Asbestos plaintiffs in Washington may establish exposure to
a defendant's product through direct or circumstantial evidence.
fAllen v. Asbestos Corp.. Ltd.. 138 Wash. App. 564, 571, 157 P.3d
406 (2007).] A plaintiff need not offer a detailed recollection of facts
surrounding the exposure to the asbestos-containing product.
Morgan v. Aurora Pump Co.. 159 Wash. App. 724, 729, 248 P.3d
1052 (2011).] "'[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.'"
[Morgan. 159 Wash. App. at 729 (alteration in original) (quoting
Lockwood v. AC & S. Inc.. 109 Wash. 2d 235, 246-47, 744 P.2d 605
(1987))].
Montanevv. J-M Mfg. Co.. _ Wn. App. _, 314 P.3d 1144, 1145-46 (2013).
However, the plaintiff must produce evidence that he or she was harmed by
exposure to asbestos material that the defendant placed in the stream of
commerce. Braaten v. Saberhaoen Holdings, 165 Wash. 2d 373, 383-93, 198 P.3d
493 (2008); Simonetta v. Viad Corp., 165 Wash. 2d 341, 350-63, 197 P.3d 127
(2008). Thus, summary judgment is not appropriate where evidence
demonstrates "that [the plaintiff] worked around materials that created asbestos
dust aboard ships, that certain brands of asbestos-containing products were
commonly used on ships repaired at [the plaintiff's] workplace, and the defendant
distributed those specific brands of products to the plaintiff's employer."
Montanev, 314 P.3d at 1146 (citing Berrv v. Crown Cork &Seal Co.. 103 Wn.
App. 312, 315-18, 14 P.3d 789 (2000)). We review asbestos cases with an
awareness of the proof problems inherent in cases of this type.
16
No. 69917-2-1/17
"Because of the long latency period of asbestosis, the plaintiff's
ability to recall specific brands by the time he brings an action will
be seriously impaired. A plaintiff who did not work directly with the
asbestos products would have further difficulties in personally
identifying the manufacturers of such products. The problems of
identification are even greater when the plaintiff has been exposed
at more than one job site and to more than one manufacturer's
product."
Montanev. 314 P.3d at 1146 (quoting Lockwood. 109 Wash. 2d at 246-47).
As in Montanev. Farrow presented evidence that (1) he worked on and
around Edward valves that created asbestos dust, which he breathed during the
several decades in which he worked as a pipefitter and in the design shop at the
PSNS; (2) he worked on or around Edward valves many times; and (3) EVI
placed into the stream of commerce asbestos-containing products used at the
PSNS. Although Tucker, EVI's CR 30(b)(6) witness, testified that EVI never
manufactured, distributed, or sold any external insulation or flange gaskets, he
admitted that EVI sold original and replacement packing. This evidence that EVI
sold original and replacement packing—coupled with Farrow's testimony that he
removed and replaced packing from Edward valves, and Wortman's testimony
that the majority of replacement parts at the PSNS in later years were procured
from the original manufacturer—could allow a trier offact to reasonably infer that
EVI placed asbestos-containing materials into the stream of commerce, which
resulted in Farrow working on or around those products. This evidence is
sufficient to survive summary judgment. Accordingly, the trial court erred by
ruling to the contrary.
17
No. 69917-2-1/18
Reversed and remanded.
%dLlnM',:
18