United States District Court, D. Wyoming
RONALD P. JOHNSON, as Personal Representative of THE ESTATE OF H. PAUL JOHNSON, deceased, Plaintiff,
ALLIS-CHALMERS CORPORATION PRODUCT LIABILITY TRUST, et al., Defendants
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For Ronald P Johnson, INDIVIDUALLY AND AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF H. PAUL JOHNSON, DECEASED, Plaintiff: G Patterson Keahey, Jr, LEAD ATTORNEY, PRO HAC VICE, LAW OFFICES OF G. PATTERSON KEAHEY, PC, BIRMINGHAM, AL; Lawrence Holcomb, LEAD ATTORNEY, LAW OFFICES OF G. PATTERSON KEAHEY, Birmingham, Alabama.
For A.W. CHESTERTON COMPANY, Defendant: WALTER S. JENKINS, LEAD ATTORNEY, MARON MARVEL BRADLEY & ANDERSON LLC, PHILADELPHIA, PA.
For BECHTEL, INC., Defendant: CHRISTOPHER CONLEY, LEAD ATTORNEY, EVERT & WEATHERSBY, LLC, ATLANTA, GA; T Thomas Singer, Axilon Law Group, PLLC, Billings, MT.
For CBS Corporation, SUCCESSOR BY MERGER WITH CBS CORPORATION, formerly known as, Viacom Inc, formerly known as, Westinghouse Electric Corporation, Defendant: Tracy H Fowler, SNELL & WILMER LLP.
For FMC Corporation, INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO PEERLESS PUMP CO., Defendant: James C Worthen, LEAD ATTORNEY, MURANE & BOSTWICK, Casper, WY.
For GARDNER DENVER, INC., Defendant: Jeff S Meyer, LEAD ATTORNEY, Andrew F Sears, MURANE & BOSTWICK, Casper, WY.
For General Electric Company, Defendant: Megan Overmann Goetz, LEAD ATTORNEY, PENCE & MacMILLAN, Laramie, WY; LaMar F Jost, PRO HAC VICE, WHEELER TRIGG O'DONNELL, Denver, CO.
For Metropolitan Life Insurance Company, Defendant: Christopher C Voigt, LEAD ATTORNEY, CROWLEY FLECK, Billings, MT.
For BECHTEL, INC., Cross Claimant: CHRISTOPHER CONLEY, LEAD ATTORNEY, EVERT & WEATHERSBY, LLC, ATLANTA, GA.
For General Electric Company, Cross Defendant: Megan Overmann Goetz, LEAD ATTORNEY, PENCE & MacMILLAN, Laramie, WY; LaMar F Jost, PRO HAC VICE, WHEELER TRIGG O'DONNELL, Denver, CO.
For Metropolitan Life Insurance Company, Cross Defendant: Christopher C Voigt, LEAD ATTORNEY, CROWLEY FLECK, Billings, MT.
For CBS Corporation, SUCCESSOR BY MERGER WITH CBS CORPORATION, Cross Defendant: Tracy H Fowler, SNELL & WILMER LLP.
For BECHTEL, INC., Cross Defendant: CHRISTOPHER CONLEY, LEAD ATTORNEY, EVERT & WEATHERSBY, LLC, ATLANTA, GA.
For CBS Corporation, SUCCESSOR BY MERGER WITH CBS CORPORATION, Cross Defendant: Tracy H Fowler, LEAD ATTORNEY, SNELL & WILMER LLP, Salt Lake City, UT.
For General Electric Company, Cross Claimant: Megan Overmann Goetz, LEAD ATTORNEY, PENCE & MacMILLAN, Laramie, WY; LaMar F Jost, PRO HAC VICE, WHEELER TRIGG O'DONNELL, Denver, CO.
MEMORANDUM AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Scott W. Skavdahl, United States District Judge.
This matter comes before the Court on motions for summary judgment filed by the following defendants (collectively, " Defendants" ):
(1) Gardner Denver, Inc. (ECF No. 151);
(2) Bechtel, Inc. (ECF No. 152);
(3) FMC Corporation (ECF No. 153);
(4) CBS Corporation (ECF No. 155); and
(5) General Electric Company (ECF No. 156).
Plaintiff Ronald Johnson filed responses opposing each motion. (ECF Nos. 160-164.) The Court heard oral argument on the matters on March 28, 2013. Having considered the motions and responses, the arguments of counsel, the record herein, and being otherwise fully advised, the Court finds the motions should be granted.
This multidistrict litigation was centralized in the Eastern District of Pennsylvania in 2011. The Pennsylvania federal court then transferred the lawsuit to this Court in December 2013 under 28 U.S.C. § 1404(a), primarily based on witness convenience and evidence availability. (ECF No. 187.)
Plaintiff Ronald Johnson is the appointed personal representative of the estate of H. Paul Johnson (Mr. Johnson). Mr. Johnson died in December 2009 from malignant mesothelioma (a form of cancer most commonly caused by exposure to asbestos).
Plaintiff contends Mr. Johnson was exposed to Defendants' asbestos during his years of employment in Wyoming. Mr. Johnson worked as a carpenter at the Dave Johnston Power Plant in Wyoming from approximately 1952 to 1963. In 1963, he became a " Business Agent" (union representative) for the carpenters union. As a Business Agent, he traveled throughout much of Wyoming to visit his carpenter constituents, meet with businesses, and address any work complaints. Of significance here, Mr. Johnson visited the Dave Johnston Power Plant (DJPP), the Jim Bridger Power Plant (JBPP), and the FMC Green River soda ash plant at least every month as a Business Agent. He remained a union representative until at least 1978 or 1979, when it appears he moved to Washington State for a while. He later returned to Wyoming (but it's unclear when), where he spent the remainder of his life.
Plaintiff asserts these five defendants either produced asbestos-containing products to which Mr. Johnson was exposed (on a theory of strict product liability) or owned/maintained/controlled the premises on which Mr. Johnson was subjected to asbestos inhalation (on a theory of premises liability). Specifically, Plaintiff alleges Mr. Johnson's work as a Business Agent took him all over the facilities for various formal and informal meetings, which exposed him to the full gamut of each facility's conditions. Defendants seek summary judgment, arguing Plaintiff cannot identify any evidence linking them to Mr. Johnson's mesothelioma.
Preliminarily, the Court must resolve a choice of law question. The parties disagree regarding whether Wyoming or Pennsylvania's substantive law governs this lawsuit. Plaintiff argues Wyoming law applies and is less stringent than Pennsylvania's well-developed asbestos law, and Defendants disagree among themselves.
This lawsuit was transferred from Pennsylvania to Wyoming pursuant to 28 U.S.C. § 1404(a). The United States Supreme Court has made clear that the substantive law of the transferor court applies.
We decide that, in addition to other considerations, these policies require a transferee forum to apply the law of the transferor court, regardless of who initiates the transfer. A transfer under § 1404(a), in other words, does not change the law applicable to a diversity case.
Ferens v. John Deere Co., 494 U.S. 516, 523, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990); see also Benne v. Int'l Bus. Machines Corp., 87 F.3d 419, 423 (10th Cir. 1996) (" The rule is settled that when a district court grants a venue change pursuant to 28 U.S.C. § 1404, the transferee
court is obligated to apply the law of the state in which the transferor court sits." ). Therefore, this Court must apply Pennsylvania substantive law to this case, which includes Pennsylvania's choice-of-law provisions. See Trierweiler v. Croxton & Trench Holding Corp., 90 F.3d 1523, 1532 (10th Cir. 1996) (" where a case is transferred from one forum to another under 28 U.S.C. § 1404(a), as here, then the transferee court must follow the choice of law rules of the transferor court" ).
I. Pennsylvania's Choice-of-Law Rules
Pennsylvania's choice-of-law jurisprudence in personal injury actions sets forth a two-step inquiry:
[T]he first step in a choice of law analysis under Pennsylvania law is to determine whether a conflict exists between the laws of the competing states. If no conflict exists, further analysis is unnecessary. If a conflict is found, it must be determined which state has the greater interest in the application of its law.
Titeflex Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 88 A.3d 970, 2014 PA Super 43, 2014 WL 868623, at *6 (Pa. S.Ct. 2014). Significant to this case, though, " [u]nder general conflict of laws principles, where the laws of the two jurisdictions would produce the same result on the particular issue presented, there is a 'false conflict,' and the [c]ourt should avoid the choice-of-law question." 2014 PA Super 43, Id. at *7 (quoting Williams v. Stone, 109 F.3d 890, 893 (3d Cir. 1997)). As examined infra, the Court finds no true conflict between the applicable Pennsylvania and Wyoming substantive law, and therefore never progresses beyond the first step of Pennsylvania's choice-of-law test.
II. Choice-of-Law Analysis Concerning Causation
The two causes of action at issue in the motions for summary judgment are strict product liability and negligence (premises liability). Both Pennsylvania and Wyoming recognize product liability claims based on § 402 of the Restatement (Second) of Torts and require a plaintiff to prove causation as an element of their claim, i.e., that the allegedly defective product was the legal cause of the plaintiff's injuries. See, e.g., Reott v. Asia Trend, Inc., 2010 PA Super 176, 7 A.3d 830, 835 (Pa. S.Ct. 2010); Ogle v. Caterpillar Tractor Co., 716 P.2d 334, 342-44 (Wyo. 1986). Pennsylvania and Wyoming's negligence law is identical as well. Pertinent here, both require the plaintiff to prove causation as an element of negligence. See, e.g., Yorty v. PJM Interconnection, L.L.C., 2013 PA Super 265, 79 A.3d 655, 662 (Pa. S.Ct. 2013); Formisano v. Gaston, 2011 WY 8, 246 P.3d 286, 290 (Wyo. 2011).
To prove legal causation, both states require the plaintiff to show the defendant's product or negligence was a " substantial factor" in bringing about the plaintiff's harm. Pennsylvania recently commented:
[T]he defendant's conduct must be shown to have been the proximate cause of plaintiff's injury. Proximate cause is a term of art denoting the point at which legal responsibility attaches for the harm to another arising out of some act of defendant; and it may be established by evidence that the defendant's negligent act or failure to act was a substantial factor in bringing about the plaintiff's harm.
Polett v. Pub. Commc'ns, Inc., 2013 PA Super 320, 83 A.3d 205, 212 (Pa. S.Ct. 2013) (quoting Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280, 1284 (Pa. 1978)). Wyoming describes legal causation in the same terms:
In order to qualify as a legal cause, the conduct must be a substantial factor in bringing about the plaintiff's injuries.
Collings v. Lords, 2009 WY 135, 218 P.3d 654, 657 (Wyo. 2009) (quoting Foote v. Simek, 2006 WY 96, 139 P.3d 455, 463 (Wyo. 2006)).
On this much at least, the parties seem to agree. The disagreement arises when looking specifically at asbestos cases. Pennsylvania has entertained a significant number of asbestos cases and has refined its test for substantial-factor causation to a greater degree (with specific regard to asbestos cases) than has Wyoming. To establish a specific defendant's liability in an asbestos claim, the plaintiff " must establish that the injuries were caused by a product of the particular manufacturer or supplier." Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, 52 (Pa. S.Ct. 1988). To this end, Pennsylvania has adopted the " frequency, regularity, and proximity" standard for determining substantial-factor causation in asbestos cases. Gregg v. V-J Auto Parts Co., 596 Pa. 274, 943 A.2d 216, 225-27 (Pa. 2007). This standard refers to the claimant's level of exposure to a particular defendant's asbestos-containing product, i.e., it requires the plaintiff to demonstrate the frequency of the use of the product and the regularity of the claimant's employment in proximity thereto. Eckenrod, 544 A.2d at 53. Additionally, Pennsylvania specifies this test is appropriately applied at the summary judgment stage. Gregg, 943 A.2d at 227.
This " frequency, regularity, and proximity" standard is undoubtedly a more refined approach to asbestos causation than Wyoming has applied. However, it is only that--a refinement of the substantial factor requirement for proving causation. It is not a different legal rule or test. Recent Pennsylvania cases reinforce the fact that the " frequency, regularity, and proximity" standard measures substantial-factor causation:
o The three factors " are to be applied in an evaluative fashion as an aid in distinguishing cases in which the plaintiff can adduce evidence that there is a sufficiently significant likelihood that the defendant's products caused his harm, from those in which such likelihood is absent on account of only casual or minimal exposure to the defendant's product." Gregg, 943 A.2d at 225.
o " Moreover, with regard to causation, in Gregg v. V-J Auto Parts Company, 596 Pa. 274, 943 A.2d 216 (2007), our Supreme Court explained the appropriate application of the 'frequency, regularity, and proximity' criterion to asbestos product cases at the summary judgment stage." Vanaman v. DAP, Inc., 2009 PA Super 27, 966 A.2d 603, 607 (Pa. S.Ct. 2009).
o " Contrary to Crane's and Dana's arguments, we do not find that Appellee's expert's so-called " generalized" opinion in this case contravenes the substantial-factor test for causation as stated in Gregg." Estate of Hicks v. Dana Companies, LLC, 2009 PA Super 220, 984 A.2d 943, 957 (Pa. S.Ct. 2009).
Thus, the " frequency, regularity, and proximity" standard is not a new or different test or additional element. Instead, it explains what a plaintiff must show in an asbestos case to prove causation, that is, to prove the defendant's actions or products were a substantial factor in bringing about the plaintiff's harms. Accordingly, no conflict exists between Pennsylvania and Wyoming's law on causation.
As further evidence that no conflict exists, the Tenth Circuit, in an unpublished opinion applying Wyoming causation law to an asbestos case, commented that instructing a jury on the " more specific causation test" of frequency/regularity/proximity " would not have been improper," but was unnecessary. McMahon v. Celotex Corp., 962 F.2d 17, at *2 (10th Cir. 1992) (unpublished). The Tenth Circuit noted
that the parties in that case were " not in dispute over whether 'frequency, regularity, and proximity' are factors in proving whether a given exposure was a 'substantial factor' in a plaintiff's injury." Id. Consequently, if the Wyoming Supreme Court were faced with the issue, this Court is confident it would apply the well-developed and well-reasoned " frequency, regularity, and proximity" standard when determining substantial-factor causation in an asbestos case.
For purposes of this case, however, the comparison of Pennsylvania's and Wyoming's causation law is academic. Even were the Wyoming Supreme Court to refuse to apply the " frequency, regularity, and proximity" factors, such refusal would not affect the summary judgment decision in this case. " Under general conflict of laws principles, where the laws of the two jurisdictions would produce the same result on the particular issue presented, there is a 'false conflict,' and the [c]ourt should avoid the choice-of-law question." Titeflex Corp., A.3d , 2014 PA Super 43, 2014 WL 868623, at *7. As detailed below, the Court will apply Wyoming's generalized law on substantial-factor causation, which Plaintiff claims is more lenient. Even under this standard, however, the Court finds no competent evidence suggesting Defendants' products or actions were a substantial factor in Mr. Johnson's mesothelioma. Consequently, recognizing the rather strange procedure, the Court will apply Wyoming's substantial-factor causation test to Defendants' summary judgment motions, which will prove there exists only a " false conflict" in the states' law because the result will be the same. This, in turn, will confirm that Pennsylvania substantive law governs under Pennsylvania's choice-of-law test.
III. Choice of Law Analysis Concerning Statute of Repose
Several Defendants seek summary judgment on the alternative ground that the statute of repose bars Plaintiff's claims against them. They argue the applicable " real property improvement" statute of repose requires summary judgment in their favor. Again, the parties disagree whether Wyoming's or Pennsylvania's construction statute of repose applies to this case.
Pennsylvania's construction statute of repose is 12 years:
(a) General rule.--Except as provided in subsection (b), a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of
construction or construction of the improvement.
(2) Injury to property, real
or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.
.... [Subsection (b)'s exceptions do not apply to this case.]
42 Pa. C.S.A. § 5536. Wyoming's construction statute of repose uses very similar language, but is only 10 years long. Wyo. Stat. Ann. § 1-3-111(a).
In applying Pennsylvania's choice-of-law test, this two-year difference between the states' statutes of repose offhand suggests a conflict of laws. Again, however, " [u]nder general conflict of laws principles, where the laws of the two jurisdictions would produce the same result on the particular issue presented, there is a 'false conflict,' and the [c]ourt should avoid the choice-of-law question." Titeflex Corp.,
__ A.3d __, 2014 PA Super 43, 2014 WL 868623, at *7. In the instant case, there is no contention that the two-year difference could produce a different result under the statute of repose issue. The claims involving the statute of repose defense assert construction was completed in 1980 or earlier, well more than 12 years before this lawsuit was filed. Accordingly, finding only a " false conflict" between the states' statutes of repose, the Court therefore applies Pennsylvania's statute of repose (because Pennsylvania is the transferor jurisdiction).
The Court now turns to the merits of the parties' summary judgment arguments. The Court begins by setting forth the applicable summary judgment principles, then it will separately consider the parties' causation arguments and their statute of repose arguments.
I. General Summary Judgment Standard
" The court shall grant summary judgment 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." Fed.R.Civ.P. 56(a). A dispute is genuine " if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way," and it is material " if under the substantive law it is essential to the proper disposition of the claim." Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013) (internal quotation marks omitted). In considering the motion, the Court must view the record and all reasonable inferences that might be drawn from it in the light most favorable to the party opposing summary judgment. Dahl v. Charles F. Dahl, M.D., P.C. Defined Ben. Pension Trust, 744 F.3d 623, 2014 WL 643017, at *4 (10th Cir. 2014).
The moving party has " both the initial burden of production on a motion for summary judgment and the burden of establishing that summary judgment is appropriate as a matter of law." Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2003)). If the moving party carries this initial burden, the nonmoving party may not rest on its pleadings, but must bring forward specific facts showing a genuine dispute for trial as to those dispositive matters for which it carries the burden of proof. Id. (citing Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)).
In pressing their respective burdens, the parties' must rely on evidence that would be admissible at trial. See Fed.R.Civ.P. 56(c)(2); Argo v. Blue Cross & Blue Shield of Kansas, Inc., 452 F.3d 1193, 1199 (10th Cir. 2006). " An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4).
Unsubstantiated allegations carry no probative weight in summary judgment proceedings. Phillips v. Calhoun, 956 F.2d 949, 951 n.3 (10th Cir. 1992). To defeat a motion for summary judgment, evidence, including testimony, must be based on more than mere speculation, conjecture, or surmise. See Rice v. United States, 166 F.3d ...