U.S. District Court for the Western District of Washington, December 12, 2019 and December 16, 2019

WASHINGTON – On December 12 and December 16, 2019, the United States District Court for the Western District of Washington issued summary judgment decisions for defendants Honeywell International, Inc. Honeywell and Foster Wheeler Energy Corporation respectively, in the Estate of Rudie Klopman-Baerselman matter. In brief, the court denied summary judgment to Honeywell, and granted summary judgment to Foster Wheeler.

The plaintiff alleged that the decedent, Rudie Klopman-Baerselman, was diagnosed with mesothelioma as a result of his alleged exposures to asbestos while performing automotive maintenance work on his personal vehicles from 1966 to1997, which included his use of Bendix brakes, and from serving as a Dutch Merchant Marine from approximately 1955 to 1959. While the decedent did not identify Foster Wheeler as a source of his alleged exposures to asbestos, the plaintiff offered evidence purporting to show that Foster Wheeler manufactured asbestos-containing equipment aboard one of the marine vessels on which the decedent served.

Honeywell’s Motion

The defendant, Honeywell, sued as successor-in-interest to Bendix Corporation and filed a motion for summary judgment arguing that the plaintiff had admitted that he had no claim against Honeywell by untimely responding to a request for admission propounded by a co-defendant. They argued that the decedent’s mesothelioma was caused by his career exposures to amphibole asbestos—not any chrysotile asbestos fibers used in Bendix brakes. In support of this argument, Honeywell produced evidence that only amphibole fibers, and no chrysotile fibers, were found in the decedent’s lung tissue following a fiber burden analysis. Honeywell further argued that punitive damages were not permitted under Washington law, and thus should be precluded.

In opposition, the plaintiff offered the decedent’s own testimony that he performed hundreds of brake jobs during the time period at issue, and preferred Bendix brakes, as well as evidence that Bendix sold asbestos-containing brakes from 1939 to 2001. The plaintiff also relied on the opinions of three of its experts who opined that the decedent’s substantial exposure to asbestos from Bendix brakes caused his mesothelioma.

At the outset, the court declined to decide on the issues of requests for admissions and punitive damages, citing Honeywell’s incomplete briefing of same.

Applying Washington State substantive law regarding summary judgment, including an analysis of the Lockwood factors, the court held that the plaintiff had offered sufficient evidence for a jury to find causation, through the decedent’s testimony, other witness testimony, applicable scientific literature regarding asbestos exposure from automotive work, and the plaintiff’s expert opinions.

Because genuine issues of material fact with regard to the plaintiff’s products liability claim remained, summary judgment as to that claim was denied. Importantly, however, Honeywell’s motion sought dismissal of all of the plaintiff’s claims, which included broad claims of negligence, conspiracy, strict liability, and premises liability. The court held that because the plaintiff had not sufficiently presented evidence to establish genuine issues of material fact with regard to those claims, they should be dismissed, and only the products liability claim should remain.

Foster Wheeler’s Motion

Foster Wheeler’s motion for summary judgment first argued that the plaintiff’s claims were time-barred under Dutch law, which it argued should apply to the case, and second that the plaintiff had failed to set forth evidence that the decedent was exposed to asbestos from a product produced by Foster Wheeler.

In opposition, the plaintiff argued that Foster Wheeler failed to file an answer to the plaintiff’s complaint and thus waived its affirmative defense as to statute of limitations. The plaintiff further argued that he had produced sufficient evidence of the decedent’s exposure to asbestos from Foster Wheeler products through his work aboard the marine vessels.

Foster Wheeler conceded that it inadvertently failed to answer the plaintiff’s complaint, but argued that it should still be permitted to raise its affirmative defenses.

The court held that where there is no prejudice to the plaintiff, the failure to file an answer is not automatically a waiver of affirmative defenses. However, Foster Wheeler had failed to file an answer for nearly two years that the case was pending, filed on the same day as the summary judgment deadline, which was after discovery had closed, and two months out from trial. For these reasons, the court found prejudice to the plaintiff, and held that Foster Wheeler had waived its Dutch statute of limitations defense.

Notwithstanding, the court held that under Washington law, the plaintiff had not offered evidence showing that Foster Wheeler products caused the decedent’s mesothelioma. Considering the Lockwood factors, the court found that while the plaintiff had produced evidence of the decedent’s general exposures to asbestos aboard marine vessels, such evidence did not show that the decedent used or was exposed to any asbestos-containing product specifically manufactured or supplied by Foster Wheeler. Summary judgment was, therefore, granted in favor of Foster Wheeler.

Read the case decision here.