Frequency, Regularity, Proximity: The Western District of Washington Requires More Than a Product’s Presence to Find Causation

By Jonah Hall on April 4, 2023

Posted in Asbestos, Legislative & Judicial Updates, Product Liability, Toxic Torts

On March 9, 2023, a federal judge granted summary judgment on causation to three manufacturers of asbestos-containing products in a maritime lawsuit arising from the death of Thomas Deem from mesothelioma. The judge held that Ms. Deem had failed to put on evidence sufficient to show that Decedent’s exposure to the products manufactured by three defendants—John Crane, Inc. (“JCI”), Crosby Valves, LLC, and the William Powell Company—was a substantial contributing factor to his developing mesothelioma. See Sherri L. Deem v. Air & Liquid Systems Corp., et al., No. 17-5965BHS (W.D. Wash. Mar. 9, 2023).

Background

Plaintiff Sherri L. Deem alleged that her husband, Thomas Deem, developed mesothelioma because of his exposure to asbestos while working at the Puget Sound Naval Shipyard (“PSNS”) from February 1974 to February 1981. Causation was an essential element of her claim.

In Washington State, to prove causation against a particular defendant, Ms. Deem was required to show that her husband was actually exposed to asbestos-containing materials by that particular defendant and that the exposure was a substantial contributing factor in causing his injuries. Meeting the substantial contributing factor test requires showing more than a causal or minimum contact with the product. Rather, proving an exposure was a substantial contributing factor in causing an injury is a function of frequency, regularity, and proximity.

JCI, Crosby Valves, and William Powell Company all moved for summary judgment on the grounds that Ms. Deem could not prove that exposure to their products was a substantial contributing factor to her husband’s mesothelioma. Ms. Deem offered the testimony of two of her late husband’s coworkers, Mr. David Wingo and Mr. Lawrence Foster, and the expert opinions of Captain Arnold Moore, Doctor Holstein, and Doctor Scaggs to attempt to prove that exposure to these products was a substantial contributing factor to her husband’s mesothelioma.

Court’s Decision

With respect to JCI, the Court granted summary judgment because there was no evidence from which a reasonable jury could find that Mr. Deem had substantial exposure to JCI asbestos for a substantial period of time such that it could be a substantial contributing factor. Both Wingo and Foster testified that they could not recall ever seeing Mr. Deem in the vicinity of a JCI product. The testimony of Captain Moore that JCI packing material was used at PSNS and the corporate representative testimony of JCI that it sold asbestos packing and gasket material were insufficient to establish that those products were a substantial contributing factor to Decedent developing the disease.

Likewise, the Court granted summary judgment to Crosby Valve because neither Ms. Deem’s fact witnesses nor her experts could place a Crosby product in any place that Deem worked at the PSNS and therefore could not prove Crosby’s products were a substantial contributing factor. Though Wingo testified that he saw Mr. Deem inhale dust from the removal and replacement of asbestos containing gaskets, packing, and insulation associated with valves manufactured by Crosby, Wingo could not state whether he (Wingo) ever worked on a Crosby valve. Ms. Deem’s medical expert was similarly unable to tie Mr. Deem’s mesothelioma to asbestos from a Crosby product. Merely putting on evidence that Crosby sold asbestos-containing valves to the Navy and that Crosby valves required insulation and gaskets was insufficient to constitute a substantial contributing factor.

Finally, the Court granted summary judgment to William Powell on similar grounds. Both Wingo and Foster testified that they never worked with or around William Powell’s products while working at the PSNS, and Captain Moore could not place Mr. Deem in the vicinity of Powell valves. The Court rejected the argument that these products were a substantial contributing factor of Mr. Deem’s injuries just because they and other asbestos-containing products were prevalent aboard the ships at PSNS.

A Prospective Perspective

The Deem Court’s ruling is an endorsement of the principle that merely showing the presence of a product and the prevalence of asbestos at a particular place is not enough to establish a product was a substantial contributing factor to the plaintiff’s asbestos-related injuries. Rather, the plaintiff must put on evidence of exposure to a specific product on a regular basis over an extended period of time in proximity to where the plaintiff actually worked. Critical to this showing is the frequency, regularity, and proximity with which the plaintiff was exposed. Despite this ruling, plaintiff’s attorneys will likely continue to file claims against asbestos defendants even where the most they can show is that a product was present in a particular location.