Jurisdiction: United States District Court for the Western District of Washington
Plaintiff Shirley Johnson sued multiple defendants for the mesothelioma-caused death of decedent, Lonnie “Bill” Stubblefield Jr., including Todd Shipyard and Lockheed Shipbuilding Co., both of which overhauled Navy ships in the 1970s and 1980s.
Decedent Bill Stubblefield was diagnosed with mesothelioma in November 2022 and died the next month. He was not deposed before his death. His brother and coworker Robert Stubblefield testified as to decedent’s exposure history while working at both shipyards as an outside contractor, and at Todd as an employee from 1978 to 1982.
The court ruled on several motions.
I. Jurisdiction
Plaintiff originally filed in Washington state court and Todd removed in April 2024 based on the government contractor defense. Plaintiff argued for remand to state court due to amending her complaint to excise the government contractor related claim. However, the court ruled plaintiff has not in fact successfully done so, and moreover, has added a claim in admiralty, giving the federal court Article III admiralty jurisdiction. For the purposes of admiralty jurisdiction, vessels in dry dock at shipyards, like those that decedent worked on, are considered to be in navigable waters. Furthermore, courts have found that asbestos injuries suffered on Navy ships have a connection to maritime commerce.
II. Motions to Exclude
Defendants moved to exclude the opinions of plaintiff’s experts, industrial hygienist Christopher DePasquale and Dr. Stephen Haber. Each expert opined that decedent would have been exposed to asbestos from the removal of insulation from Navy ships based on historical study of the industry. The court, applying a Daubert analysis, ruled inadmissible those parts of these two experts’ testimonies. The courts noted these experts issued their opinions having never reviewed the specifications of the specific vessels decedent worked on and thus lacked foundation to opine that decedent was actually exposed to asbestos from the insulation or other equipment aboard those ships. The exposure opinions, based on assumptions without articulated methodologies, are thus the exact type of ipse dixit routinely excluded under Daubert.
The court also excluded Dr. Haber’s opinion that every exposure to asbestos was a substantial cause of decedent Stubblefield’s mesothelioma. Such “each and every exposure” theories, and related “cumulative exposure” theories, have been rejected by other courts in this district for being “not tied to the severity of exposure, is not based on sufficient supporting facts and data, cannot be tested, and does not have a known error rate.” Jack v. Borg-Warner Morse TEC LLC, 2018 U.S. Dist. LEXIS 135424, at *10 (W.D. Wash. Aug. 10, 2018).
III. Motions for Summary Judgment
The court ruled that plaintiff has not made a claim under strict products liability, and that maritime law applies to this case.
Todd moved for summary judgment, arguing there is no evidence of record that any insulation disturbed in decedent’s presence contained asbestos. The court ruled in favor of Todd, holding that despite testimony that workers ripped up insulation around decedent and evidence that ships decedent worked on used both asbestos-containing and non-asbestos-containing insulation at some point, there are no facts offered showing that any asbestos-containing materials were actually disturbed around decedent due to the work of other trades.
Furthermore, the court ruled Todd is also entitled to summary judgment for want of showing that any exposure to asbestos was a substantial contributing factor to decedent’s injuries. The court cited a lack in the record as to air measurements of asbestos on the ships on which decedent worked. The lack of quantifying evidence proved to be an evidentiary hole that was not filled by the general assumptions cited above. The court further found plaintiff’s general citations to transcripts without specifying page numbers to be inadequate and against local rules.
Lockheed also moved for summary judgment on the same grounds. The court found for Lockheed, noting that even taking inferences in favor of non-movant plaintiff, that decedent did indeed work on the vessels at Lockheed as alleged by plaintiff, and that they did indeed contain asbestos (contested by Lockheed), there still is no evidence of record that any asbestos was disturbed in the presence of the decedent. Decedent’s brother’s testimony could not place decedent or himself on any Lockheed ship at any specific time. Just because decedent Stubblefield worked for some unidentified period of time aboard vessels that contained asbestos does not lead automatically to the inference that the asbestos was disturbed while he worked at the shipyard or on that vessel. Furthermore, plaintiff has not shown substantial contributing factor either, as the court has already rejected the “each and every exposure”/”cumulative exposure” theories which plaintiff would have to rely on for liability to be found against Lockheed.
A copy of the decision can be found here.