United States District Court for the Northern District of California
In this wrongful death action, it is claimed that Decedent William Ankiel Jr. had exposure to asbestos-containing equipment during his service aboard a Navy vessel.
Mr. Ankiel served in the U.S. Navy as a boiler room technician aboard the USS Hollister from October 1975 to April 1978. As part of his work, he operated the boilers in the fire rooms, repaired equipment such as valves, pumps, and boilers, and cleaned machinery spaces for general upkeep. In April 2022, Mr. Ankiel was diagnosed with malignant mesothelioma and passed away shortly after diagnosis. As such, it is asserted that Mr. Ankiel’s mesothelioma was caused by exposure to asbestos from his handling of various equipment components on the USS Hollister, including insulation, gaskets, and packing manufactured by defendants.
Three sets of motions were ultimately brought before the court: (1) – Defendant’s motion to strike shipmate Terry Orton’s testimony and motions to exclude the testimony of various experts; (2) – Defendants’ motions for summary judgment filed by various manufacturer defendants; and (3) – Plaintiffs’ motions for summary judgment regarding defendants.
Defendant’s Motion to Strike Mr. Orton’s testimony
“While the evidence presented at the summary judgment stage does not yet need to be in a form that would be admissible at trial, the proponent must set out facts that it will be able to prove through admissible evidence.” Norse v. City of Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010). At the summary judgment stage, the focus is therefore not on the “admissibility of the evidence’s form,” but rather on the “admissibility of its contents.” Fraser v. Gooddale, 342 F.3d 1032, 1036 (9th Cir. 2003). This defendant’s motion objects to the admissibility of the re-direct examination of Mr. Orton, who served aboard the USS Hollister with Mr. Ankiel, from 1976 to 1978, on multiple grounds. Among other things, defendant argued the questioning to Mr. Orton were leading and the probative value of Mr. Orton’s testimony was substantially outweighed by unfair prejudice, confusing the issues, misleading the jury, and other related factors pursuant to F.R.E. 403. The court initially found the questioning on re-direct examination were not leading because they did not suggest a correct or preferred answer. See McCormick on Evidence § 6 (7th ed. 2014). The court also found the probative value of Mr. Orton was “high” as it pertained to the central issue of causation and the testimony was not unfairly prejudicial or confusing. Consequently, the court denied defendant’s motion to strike Mr. Orton’s testimony.
Defendant’s Daubert Motions
F.R.E. 702 allows a qualified expert to testify “in the form of an opinion or otherwise” where: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” Expert testimony is admissible under F.R.E. 702 if the expert is qualified and if the testimony is both relevant and reliable. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 597, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); see also Hangarter v. Provident Life & Acc. Ins. Co., 373 F.3d 998, 1015 (9th Cir. 2004). F.R.E. 702 “contemplates a broad conception of expert qualifications.” See Hangarter, 373 F.3d at 1018 (emphasis in original).
Courts consider a purported expert’s knowledge, skill, experience, training, and education in the subject matter of his asserted expertise. United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 2000); see also Fed. R. Evid. 702. Relevance, in turn “means that the evidence will assist the trier of fact to understand or determine a fact in issue.” Cooper v. Brown, 510 F.3d 870, 942 (9th Cir. 2007); see also Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (“The requirement that the opinion testimony assist the trier of fact goes primarily to relevance.”) (quotation omitted). Under the reliability requirement, the expert testimony must “ha[ve] a reliable basis in the knowledge and experience of the relevant discipline.” Primiano, 598 F.3d at 565. To ensure reliability, the court “assess[es] the [expert’s] reasoning or methodology, using as appropriate such criteria as testability, publication in peer reviewed literature, and general acceptance.” Id. at 564.
Defendant’s Motion to Exclude Evidence and/or Testimony by Plaintiff’s Naval Experts
Defendant moved to exclude specific evidence and testimony by plaintiffs’ naval experts — Michael Poulson and Captain Arnold Moore — by specifically claiming that both experts lack sufficient foundation and personal knowledge to assert that Mr. Ankiel was exposed to asbestos from working on defendant’s pumps. The Court found that both experts permissibly relied on the testimony of Mr. Ankiel’s shipmates, combined with their expertise about naval operations, in forming their opinions. For instance, Capt. Arnold Moore relied on Mr. Orton’s testimony that he and Mr. Ankiel removed and replaced asbestos packing and gaskets on defendant’s pumps. In addition, the court noted Mr. Poulson relied on the deposition testimony of Mr. Orton and Mr. Edwards — shipmates of Mr. Ankiel — that demonstrated Mr. Ankiel spent numerous hours daily in the fireroom and/or engineering spaces of the USS Hollister to perform routine maintenance as well as emergency repairs to Defendants’ boilers and pumps. To the extent that defendants believes these opinions and inferences are unreasonable, then defendant may cross-examine the experts at trial. As such, the court denied Defendant’s motion to exclude evidence and/or Testimony by Plaintiffs’ Naval Experts.
Defendants’ Motion to Exclude “Every Exposure” Testimony or Argument
Defendants next seeks to exclude expert testimony or argument from several of plaintiffs’ experts on the basis that they rely on the “every exposure” theory. Under the “every exposure” theory, which the Ninth Circuit has rejected as viable theory of causation, every exposure to asbestos, no matter how insignificant, contributes to the total dose and is a substantial factor in causing disease. See, e.g., McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1177 (9th Cir. 2016). Defendant further complains that plaintiffs’ experts fail to conduct “any quantitative dose reconstruction or analysis relating to Mr. Ankiel’s purported asbestos exposures.”
Dr. David Zhang
The court initially found Dr. Zhang conducted a case-specific analysis drawing from Mr. Ankiel’s shipmates’ testimonies about the frequency and type of his exposure to conclude that, in total, Mr. Ankiel inhaled a significant amount of carcinogenic asbestos fibers while working on the ship. Given the amount inhaled, Dr. Zhang concluded that the cumulative dose of asbestos to which Mr. Ankiel was subjected to on the ship was a substantial factor in causing his mesothelioma. Such evidence is admissible, and useful to the jury in assessing causation. And “just because [Dr. Zhang] did not perform a quantitative dose reconstruction does not mean that his opinion is necessarily deficient.” See Marcus v. Air & Liquid Sys. Corp., No. 22-CV-09058-HSG, 2024 U.S. Dist. LEXIS 110891, 2024 WL 3171840, at *7 (N.D. Cal. June 24, 2024). Dr. Zhang’s report explains in detail how different doses of asbestos fibers can increase the risk of mesothelioma, which is useful to a jury. Id. Dr. Zhang’s report also opined that “each significant exposure [Mr. Ankiel] experienced contributed to the cumulative dose that caused the development of his pleural malignant mesothelioma,” and that “cumulative significant exposures to each company’s asbestos-containing products substantially contributed to the development of [Mr. Ankiel’s] malignant mesothelioma.”
Defendant objected that this opinion is an impermissible “every exposure” opinion. For the same reason courts have prohibited an “every exposure” opinion, “courts have also rejected the so-called ‘cumulative exposure’ theory — that every exposure which contributes to a plaintiff’s cumulative exposure is a contributing cause to that plaintiff’s asbestos-related disease.” Carpenter v. 3M Co., No. CV 20-11797-MWF (MAAX), 2022 U.S. Dist. LEXIS 226395, 2022 WL 17885688, at *12 (C.D. Cal. Dec. 13, 2022). Otherwise, experts would be rendering the “substantial factor” test meaningless by concluding that every exposure to asbestos, regardless of how minuscule, is a substantial factor in causing mesothelioma. But Dr. Zhang’s report does not so opine. Instead, he opines that “each significant exposure” was a substantial factor, and he provides studies that describe the doses of asbestos fibers that correspond to higher levels of mesothelioma, so that the jury can assess which doses are significant enough to be a substantial factor. That information is both helpful to the jury and does not constitute an impermissible “every exposure” opinion. Thus, the court found that the opinions offered in Dr. Zhang’s report were reliable, and admissible under FRE 702 and Daubert.
Dr. Marty Kanarek
Defendant complained that Dr. Kanarek’s report does not contain specific references to defendant’s products. However, the court noted that it does not need to because plaintiffs seek to use Dr. Kanarek as a general causation expert. Moreover, while Dr. Kanarek does not provide a quantitative dose reconstruction, his report is relevant and helpful to the jury in many other ways. The report details the relationship between asbestos and mesothelioma generally; the relative potency of different types of asbestos fiber; the quantities of exposures that have led to mesothelioma; and studies documenting high quantities of fiber released during gasket removal replacement. While Dr. Kanarek does state in his report that “there is no known safe level of exposure,” that is not an “every exposure” opinion. Saying that there is no certain level of asbestos exposure known not to cause cancer is not the same as the converse: that every exposure will be a substantial factor in causing mesothelioma. The court reiterated again that, as a general causation expert, Dr. Kanarek cannot take the stand at trial and testify that Mr. Ankiel’s work around defendant’s pumps was a substantial factor in causing his mesothelioma. Notwithstanding, the court ultimately held that Dr. Kanarek’s report was both admissible under F.R.E. 702 and Daubert.
Dr. Perry Gottesfeld and Dr. Arnold Brody
Lastly, defendant objected to these expert reports on the same grounds – the “any exposure theory – and should therefore be excluded. However, Dr. Gottesfeld did not offer any opinions that come close to propounding the “any exposure” theory.” What he did offer — how much fiber is released from each type of activity that Mr. Ankiel may have engaged in while on the ship — was found to be helpful to the jury. Similarly, the bulk of Dr. Brody’s report does not rely on “any exposure” theory. Accordingly, the court held Dr. Gottesfeld and Dr. Brody’s respective expert reports were both admissible under F.R.E. 702 and Daubert.
Motions for Summary Judgment
F.R.E. 56 governs motions for summary judgment. Summary judgment permits a court to enter judgment on factually unsupported claims, see Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986), and may also be used on affirmative defenses. Dam v. General Electric Co., 265 F.2d 612, 614 (9th Cir. 1958). Granting summary judgment is proper if 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 fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The moving party has the initial burden of demonstrating that summary judgment is proper. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). The burden then shifts to the opposing party to provide admissible evidence beyond the pleadings to show that summary judgment is not appropriate. See Celotex, 477 U.S. at 322, 324, 106 S.Ct. 2548. The court must review the record as a whole and draw all reasonable inferences in favor of the non-moving party. Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). However, unsupported conjecture or conclusory statements are insufficient to defeat summary judgment. Id.; Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient” to survive summary judgment. Anderson, 477 U.S. at 252. A party opposing summary judgment must come forward with “significant probative evidence tending to support its claim that material, triable issues of fact remain.” Sanchez v. Vild, 891 F.2d 240, 242 (1989).
Defendants’ Motions for Summary Judgment
Causation — Defendants argue first that plaintiffs’ evidence cannot establish causation. To prove causation, plaintiffs must show that (1) he was actually exposed to defendants’ asbestos-containing materials, and that (2) this exposure was a “substantial contributing factor” in causing his injury. McIndoe, 817 F.3d at 1174 (citation omitted).
Actual Exposure — One defendant specifically argued that plaintiffs’ evidence was deficient because plaintiffs failed to identify a particular pump on which Mr. Ankiel specifically worked. Yet such evidence, while persuasive, is not necessary for a jury to reasonably conclude that Mr. Ankiel was exposed to Warren pumps during his time aboard the USS Hollister. See Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1038 (D. Haw. 2013) (“[T]he court rejects Defendants’ arguments that plaintiffs must present direct evidence that Cabasug recalled working on a particular product by the Defendant.”). The court instead found that plaintiffs have produced plenty of other evidence that would support such a conclusion. For instance, Mr. Ankiel’s shipmate – Mr. Orton – testified that he and Mr. Ankiel worked on “everything in that boiler room, including “pumps, almost every day.” Mr. Orton also testified having a specific recollection of seeing Mr. Ankiel working on defendant’s pump if such a pump was installed in the boiler room. Plaintiffs also presented records indicating that defendant manufactured pumps for the USS Hollister and supplied replacement parts to the Navy in 1978. Taken together, this was sufficient evidence for a reasonable jury to find that Mr. Ankiel was exposed to asbestos from defendant’s pumps.
The other defendant moved for summary judgment on a slightly different theory. This defendant argued that plaintiffs fail to show that any of its replacement components – here, packing and gaskets made from asbestos – were in use on the ship during Mr. Ankiel’s service. However, the court found that this defendant did not contest that its pumps were installed in the USS Hollister’s fire room or that its replacement parts contained asbestos. However, the court found plaintiffs produced much evidence to the contrary. For instance, Mr. Ankiel’s shipmates testified that based on their experience replacing gaskets as boiler technicians, gaskets for the defendant’s pump fit exactly and would not have fit gaskets for other brands of pumps on the ship. Moreover, plaintiffs’ expert Capt. Moore testified that pump gaskets had to be made by hand — if not made by the original equipment manufacturer (OEM), who has pre-existing stamp molds—which is time consuming and more prone to error. There was also circumstantial evidence presented including, without limitation, that defendant supplied replacement gaskets to the U.S. Navy during an unspecified time period. As such, the court found plaintiffs presented sufficient evidence from which a jury could infer that defendants’ replacement parts were more likely than not to have been present in its pumps when Mr. Ankiel was on the ship.
In view of the above and construing the evidence in the light most favorable to plaintiffs, the court found that there was sufficient evidence for a reasonable jury to find that Mr. Ankiel’s was exposed to defendants’ respective asbestos-containing products.
Substantial Factor — After finding sufficient evidence of actual exposure, the court must next evaluate whether a reasonable jury could find that any such exposure was more likely than not to be a substantial contributing factor to Mr. Ankiel’s mesothelioma. Plaintiffs bear the burden of showing that Ankiel had “substantial exposure to the relevant asbestos for a substantial period of time.” McIndoe, 817 F.3d at 1176. “Evidence of only minimal exposure to asbestos is insufficient.” Id. Rather, “there must be a high enough level of exposure that an inference that the asbestos was a substantial factor in the injury is more than conjectural.” Id. (internal quotation marks and citations omitted). Defendants argued that this case is analogous to McIndoe. In McIndoe, the Ninth Circuit affirmed the district court’s finding that the plaintiffs failed to show exposure to asbestos for a substantial period of time. The court concluded that evidence suggesting “McIndoe was ‘frequently’ present during the removal of insulation” and “present 20-30 times during such removal” was not sufficient to satisfy the substantial factor test. Id. Moreover, the plaintiffs there failed to present any evidence of the amount or duration of asbestos exposure.
Here, unlike in McIndoe, the court found that plaintiffs have presented evidence that for approximately two-and-a-half-years, Mr. Ankiel personally removed gaskets and packing “[a]lmost every day,” far exceeding the “20-30 times” McIndoe was exposed to dust from similar activities as discussed above. Plaintiffs have also provided expert testimony that established the amount of Plaintiffs’ exposure to asbestos. Activities such as gasket removal and replacement have been shown to expose workers to between 1.7 to 6.8 asbestos fibers per cubic centimeter of air, far exceeding the OSHA Permissible Exposure Limit for asbestos of 0.1 fibers/cc. Plaintiffs’ experts calculated that over an eight-hour workday, this level of exposure would result in the worker inhaling roughly 16,000,000 long asbestos fibers (shown to be highly carcinogenic), plus billions or even trillions of shorter fibers (which still carry carcinogenic potential). In addition, plaintiffs’ causation expert described studies showing a significantly increased risk of mesothelioma even from a much lower quantity of exposure to asbestos fibers than Mr. Ankiel’s exposure. Taken together, a reasonable jury would be able to infer from plaintiffs’ evidence that exposure to defendants’ respective products were each substantial factors in Mr. Ankiel’s development of mesothelioma. Accordingly, defendants’ respective motions for summary judgment based on causation were denied.
Government Contractor Defense
A defendant next moved for summary judgment with respect to plaintiffs’ failure to warn and design defect claims based on a government contractor defense. Plaintiffs did not oppose defendant’s motion as to the design defect claims and therefore summary judgment was granted with respect to those claims. However, summary judgment was denied as to the failure to warn claims. When state law would otherwise impose liability on a defendant’s failure to warn or design defect, that law can be displaced when the defendant can show that: (1) the government exercised its discretion and approved certain warnings; (2) the contractor provided the warnings required by the government; and (3) the contractor warned the government about dangers in the equipment’s use that were known to the contractor but not to the government. Getz v. Boeing Co., 654 F.3d 852, 866-67 (9th Cir. 2011). As a preliminary matter, both parties have produced enough evidence for a reasonable jury to draw either conclusion as to the government’s state of knowledge about the dangers of asbestos. For instance, plaintiffs produced some evidence that the Navy regarded gaskets and packing as negligible sources of asbestos exposure, and that the Navy did not consider asbestos to be a hazard generally until the 1970s. The defendant, meanwhile, produced evidence supporting the opposite conclusion. For instance, defendant presented evidence that the Navy commissioned studies and reports demonstrating high levels of asbestos exposure from installing and removing materials in firerooms and engine rooms. defendant also provided expert evidence contending that the Navy knew of the dangers of asbestos generally.
The Navy’s uncertain state of knowledge, in turn, creates a triable issue of fact as to the first prong of the Getz test. To establish government approval, a defendant must show “more than a rubber stamp.” Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 748 (9th Cir. 1997) (citation omitted). “The mere signature of a government employee on the ‘approval line’ of a contractor’s [instruction manual], without more, does not establish the government contractor defense.” Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir. 1989) (rejecting the defense as to a design defect claim even though the Navy had approved the design specifications in question because the specifications had been left by the Navy to the contractor’s discretion). While defendant produced evidence that the Navy generally exercised control over and review written communication regarding equipment it procured, there was no evidence of a particular review procedure in place or that such review was exercised for replacement equipment such as packing and gaskets. Moreover, because the Navy’s state of knowledge about the asbestos risks associated with packing and gaskets is disputed, it is also unclear whether the Navy’s approval of technical manuals without asbestos warnings was due to conscious disregard (i.e., exercising discretion), or wholesale delegation to the contractor and/or blind approval due to a lack of knowledge of the relevant dangers (i.e., rubber stamping). The court therefore found a genuine dispute of material fact with respect to at least one prong of the Getz elements. Defendant was therefore not entitled to summary judgment based on a government contractor defense as to plaintiffs’ failure to warn claims.
Non-Pecuniary Damages
In Atlantic Sounding v. Townsend, 557 U.S. 404, 129 S. Ct. 2561, 174 L. Ed. 2d 382 (2009), the Supreme Court identified a two-step framework for determining which types of damages a plaintiff can seek under general maritime law: (1) whether the relief sought has been historically available under general maritime law, and (2) whether any statute explicitly precludes the requested relief. Id. at 407. More recently, in The Dutra Group v. Batterton, 588 U.S. 358, 139 S. Ct. 2275, 204 L. Ed. 2d 692 (2019), the Court reaffirmed this framework and added a third step based on whether “policy grounds” nevertheless compel the requested damages. Id. at 2283. The Court further clarified that the analysis about what relief is available is “based on the particular claims involved.” Id. at 2278, 2283 (recognizing that different types of marine torts “have different origins and may on occasion call for application of slightly different principles and procedures”).
Punitive Damages — Defendants sought summary judgment on plaintiffs’ claims for punitive damages. While Plaintiffs cite authority that punitive damages were available for “various maritime torts stretching back to the 1800s,” including marine trespass and intentional torts, they have not put forth any evidence that punitive damages were historically available for negligence and strict liability claims specifically—the claims at issue here. Thus, Plaintiffs failed to establish that the relief sought has been historically available under general maritime law. See Elorreaga v. Rockwell Automation, Inc., No. 21-CV-05696-HSG, 2022 U.S. Dist. LEXIS 121911, 2022 WL 2528600, at *5 (N.D. Cal. July 7, 2022). Plaintiffs’ failure to satisfy step one of the Townsend framework is “practically dispositive” of the unavailability of punitive damages. Batterton, 139 S. Ct. at 2283.
Other Damages — Defendants also sought summary judgment as to plaintiffs’ claims for loss of consortium and plaintiffs’ claims for damages associated with Mr. Ankiel’s loss of future earnings and pain and suffering. Loss of future earnings is a type of pecuniary damages, which may be permitted under the parallel statutory scheme of the Jones Act. See 2 Am. Law Torts § 8:33. But plaintiffs have brought this suit as a wrongful death action, and such damages are unavailable in wrongful death actions, which give survivors a right of action for losses they suffered as a result of the decedent’s death not injuries suffered by the decedent himself. See In re Korean Air Lines Disaster of Sept. 1, 1983, 117 F.3d 1477, 1480, 326 U.S. App. D.C. 127 (D.C. Cir. 1997) (applying maritime law), aff’d sub nom. Dooley v. Korean Air Lines Co., 524 U.S. 116, 118 S. Ct. 1890, 141 L. Ed. 2d 102 (1998). As such, plaintiffs produced no historical evidence demonstrating that any of these types of damages were routinely allowed in negligence and strict liability actions under maritime law. Accordingly, defendants’ motions for summary judgment were granted as to plaintiffs’ claims for punitive damages, loss of consortium, pain and suffering, and loss of future earnings.
Plaintiffs’ Motions for Summary Judgment
Plaintiffs sought summary judgment as to defendants’ affirmative defenses based on “sophisticated user” and sophisticated intermediary” theories as well as defendants’ “superseding cause” affirmative defense.
Sophisticated user defense — The sophisticated user defense is “no more than an expression of common sense as to why a party should not be liable when no warnings or inadequate warnings are given to one who already knows or could reasonably have been expected to know of the danger.” Cabasug v. Crane Co., 988 F. Supp. 2d 1216, 1221 (D. Haw. 2013) (citation omitted). None of the defendants have produced direct evidence that Mr. Ankiel—just seventeen years old when he started working on this ship—knew of or could reasonably have been expected to know of the asbestos risks associated with replacing pump packing and gaskets.
The circumstantial evidence put forth also did not support a reasonable inferences of such knowledge either. For instance, there was no evidence that meeting were held or the dangers of asbestos were conveyed to Mr. Ankiel or any other sailor. Due to the lack of any supporting direct or circumstantial evidence from which a jury could reasonably infer that Mr. Ankiel knew or could reasonably be expected to know of the dangers at issue, summary judgment was proper for plaintiffs as to defendants’ sophisticated user defense. Cf. Cabasug, 988 F. Supp. 2d at 1223-24 (denying summary judgment on the sophisticated user defense when defendants produced evidence of specific safety meetings plaintiff attended and plaintiff’s own admission that he understood asbestos could be hazardous).
Sophisticated intermediary defense — Manufacturers of a product are absolved from liability caused to an ultimate end-user (here, Mr. Ankiel) if they establish that they: (1) knew that an intermediary (i.e., the Navy) was aware of the dangers of asbestos, and (2) reasonably concluded that the intermediary would provide warnings to its employees. Cabasug, 988 F. Supp. 2d at 1219. Although defendants produced evidence that the Navy knew generally of the dangers of asbestos, there is no evidence in the record that supported an inference that defendants knew of the Navy’s state of knowledge at the time. Nor did defendants show that they had reason to believe that the Navy would take affirmative steps to warn its employees about the dangers of servicing the equipment at issue. As such, plaintiffs were granted summary judgment as to defendants’ sophisticated intermediary defense.
Superseding cause defense — “The doctrine of superseding cause is applied where the defendant’s negligence in fact substantially contributed to the plaintiff’s injury, but the injury was actually brought about by a later cause of independent origin that was not foreseeable. It is properly applied in admiralty cases.” Exxon Co. U.S.A. v. Sofec, Inc., 517 U.S. 830, 116 S. Ct. 1813, 135 L. Ed. 2d 113 (1996) (alterations omitted) (quoting 1 T. Schoenbaum, Admiralty and Maritime Law § 5-3 at 165-166 (2d ed. 1994)). “Superseding cause operates to cut off the liability of an admittedly negligent defendant.” Id. at 837-38 (citation omitted). The Restatement (Second) of Torts § 442 provides a list of considerations that are important in determining whether the intervening force was foreseeable. Particularly relevant here are: (a) whether the intervention brings about harm different in kind from that which would otherwise have resulted from the actor’s negligence; (b) the fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation[.]
Court’s Finding
With regard to the superseding cause defense, the court found that defendants failed to produce any evidence demonstrating that the Navy’s failure to warn was unforeseeable or that it produced harm that was “different in kind.” Moreover, that the Navy knew about the risks of asbestos at the time—which itself is a disputed fact—is not enough to render its failure to warn “extraordinary.” See In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 815 (9th Cir. 1992) (holding district court correctly ruled that Navy’s failure to warn did not absolve defendants of liability for plaintiff’s asbestos-related injuries because defendants failed to adduce any evidence suggesting the Navy’s actions were extraordinary or unforeseeable).
In view of the above, Summary Judgment was granted in plaintiffs’ favor as to defendants’ superseding cause defense.
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