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Carroll v. ABB, Inc.

United States District Court, W.D. Wisconsin

April 12, 2017

PATRICIA L. CARROLL, individually and as personal representative of THE ESTATE OF RONALD KENNETH CARROLL, deceased Plaintiff,
v.
ABB, INC., ATWOOD & MORRILL CO., INC., A.W. CHESTERTON COMPANY, CRANE CO., CROSBY VALVE, INC., FLOWSERVE U.S. INC., INGERSOLL RAND COMPANY and JOHN CRANE INC., Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE.

         Having been diagnosed with mesothelioma just three months earlier, Ronald Carroll died on July 23, 2015. Unquestionably, Carroll's long-term exposure to asbestos while working in the Navy and later at Wisconsin Power & Light contributed to his contracting mesothelioma, a debilitating, ultimately fatal, lung disease uniquely caused by asbestos. In this civil suit, however, plaintiff Patricia Carroll, Ronald Carroll's wife and the personal representative of his estate, bring claims against other defendants, manufacturers of asbestos products or of industrial equipment in which asbestos was used, alleging that their products were also causes of Ronald Carroll's death.

         Before the court are defendants' motions for summary judgment, arguing primarily that plaintiff cannot prove that any of defendants' products caused Ronald Carroll's injury and that defendants cannot be held liable for risks of harm introduced by third party manufacturers of asbestos products under the so-called “bare metal” defense. (Dkt. ##228, 252, 253, 261, 271, 278, 291, 303.) For the reasons explained below, the court will grant summary judgment to all defendants except John Crane Inc., the single manufacturer for which plaintiff has presented enough evidence for a reasonable jury to infer that its products were a cause of Carroll's asbestos-related injury, UNDISPUTED FACTS[1]

         A. Ronald Carroll's Exposure to Asbestos at Wisconsin Power & Light

         While plaintiff acknowledges that Ronald Carroll was exposed to “respirable” asbestos while working as a “boiler tender helper” and “boiler tender” for the U.S. Navy between 1956 and 1959, the claims against defendants in this case arise from the time Carroll spent working at Wisconsin Power & Light (“WP&L”) between 1959 and 1974.[2] After joining WP&L in 1959 as a “plant helper” at its Rock River generating station, located just outside Beloit, Wisconsin, in 1963, Carroll became an “auxiliary equipment operator” at WP&L's Blackhawk generating station in Beloit. Carroll then worked as a “boiler operator” between 1966 and 1973 or 1974, at which time he became a “meter reader.” As a meter reader, Carroll no longer worked inside of the plants.

         Both the Rock River and Blackhawk facilities had “enclosed units, ” and Carroll worked in that unit at each plant. As a boiler operator, Carroll was responsible for turning on the boilers in the morning and turning them off at night, as well as cleaning up, repairing leaky valves, conducting “overhauls” and performing maintenance work. In each of those capacities, Carroll was exposed to asbestos by working with insulation, packing, gaskets, valves, pumps, boilers, steam traps, air compressors, drum and feed lines, steam pipes and turbines. To make matters worse, Carroll performed all of those tasks without wearing a mask or any other form of respiratory protection.[3]

         In addition to these exposures, each of the four boilers at each WP&L plant would be overhauled approximately once every four years, which would require: shutting down the boiler; installing and removing insulation; removing and installing gaskets on valves; “repacking valves”; overhauling air compressors; tearing down turbines; and reinsulating turbines with “asbestos mud.” As a result, overhauls were a further contributor to Carroll's asbestos exposure. Additionally, repairing valves would require Carroll to remove and re-install gaskets and packing, which routinely included asbestos exposures, and he also replaced gaskets on steam traps, drums and feed lines, boilers, pumps, turbines and compressors, as well as removed packing from pumps, again resulting in asbestos exposures.

         B. Carroll's WP&L Coworkers

         Most of plaintiffs' facts are derived from deposition testimony from three of Carroll's coworkers, Gene Samuelson, Robert Rygh and Dale Herman. Between 1968 and 1973, Samuelson worked with Carroll as both an auxiliary equipment operator and a boiler operator. Both Rygh and Herman worked with Carroll as boiler operators between 1967 and 1973. Because work shifts rotated, boiler operators did not work with the same person for the same number of days each week, but Samuelson and Carroll worked together on the same shift most of the time. While a boiler operator's daily job duties changed depending on the shift worked, they also generally shared the same tasks.

         During the graveyard shift, when the boilers were turned off for the night, these tasks included cleaning up, sweeping and repairing leaky valves, which, as already discussed, entailed removing and replacing the packing in them. Samuelson recalled that all of the valves that he worked on used asbestos regardless of their size. Herman had the same impression: the gaskets they removed and replaced contained asbestos because they were being used for high-heat applications. Herman saw Carroll repack valves at the Rock River plant, and they also worked together on repacking condensate pumps and boiler feed pumps at that plant. Consistent with Samuelson and Herman, Rygh also testified that Carroll and he used asbestos rope packing for valves that were necessary for high pressure steam.[4]

         According to Samuelson, replacing packing involved removing the old packing, cleaning the equipment and putting the new packing in. The old packing was typically in poor shape when removed, requiring the boiler operator to use tools to try to remove it without it breaking completely, and then to blow the rest of the packing out with an air hose or his or her own breath. To install new “rope packing” into a “valve stem, ” the individual would measure and cut the packing to the proper size, and then tap it into the valve with a hammer.

         Repacking valves could take up a considerable amount of a boiler operator's time in a given week, particularly if an overhaul was taking place. Indeed, a single valve could take multiple hours to repack, and a single boiler unit could have at least 200 valves that needed their “bonnet gaskets” to be replaced. Additionally, Herman estimated that Carroll would likely repack a condensate pump once or twice a year as part of routine maintenance or in response to a leak. Replacing packing in various types of pumps, which also took place during overhauls and other routine maintenance, required a similar process. Similarly, boiler operators replaced rope-type gaskets that sealed the fire doors on the boilers with a cutting tool and a hammer. Overall, “repacking” work required boiler operators to be close to the valves and pumps, which could cause the packing material to get on their clothes, blow into in their faces and float in the air.

         Based on his own experiences, Herman estimated that the gaskets Carroll would have replaced over the course of his career at WP&L numbers in the hundreds. Regardless of the type of gasket being removed and installed, Carroll's coworkers testified that dusty conditions inside both WP&L's Blackhawk and Rock River plants were common. They also agreed that they never saw any warnings regarding working with asbestos before 1974, which was Carroll's last year as a boiler operator.

         C. Defendants

         The remaining defendants in this case are: A.W. Chesterton; Crosby Valve LLC; Flowserve US, Inc.; Atwood & Morrill Co.; Ingersoll Rand Company; ABB, Inc.; John Crane Inc.; and Crane Co.[5] All defendants are manufacturers of industrial equipment in which asbestos replacement parts were used, manufacturers of asbestos replacement components, or both.

         OPINION

         Plaintiff's amended complaint contains claims against the remaining defendants for products liability, conspiracy, negligence per se and punitive damages. Plaintiff brings the products liability claims under both strict liability and negligence theories, but the parties generally ignore any substantive distinctions between those theories.

         Each of the defendants moves for summary judgment on all claims. As an initial matter, plaintiff offers no facts or argument in support of its conspiracy and negligence per se claims, and so they will be dismissed. As to plaintiff's remaining products liability claims, defendants' motions generally present similar arguments regarding plaintiff's causation evidence and the “bare metal defense, ” which the court addresses below. As for the request for punitive damages, that is resolved by looking at the merits of the underlying substantive claims.

         I. Causation

         Whether under a strict liability or negligence theory, to prevail on a products liability claim, a plaintiff must prove that the alleged defect caused injury.[6] See Morden v. Continental AG, 2000 WI 51, ¶ 45, 235 Wis.2d 325, 611 N.W.2d 659 (negligence); Zielinski v. A.P. Green Indus., Inc., 2003 WI.App. 85, ¶ 8, 263 Wis.2d 294, 661 N.W.2d 491 (strict-products-liability). To determine whether a plaintiff has sufficient evidence to prove causation at summary judgment, the court must evaluate “whether the defendant's negligence was a substantial factor in contributing to the result.” Zielinski, 2003 WI.App. 85 at ¶ 16 (citation omitted).

         With respect to what evidence constitutes an adequate showing of causation, Wisconsin courts have further held that:

If there is no credible evidence upon which the trier of fact can base a reasoned choice between two possible inferences, any finding of causation would be in the realm of speculation and conjecture. Speculation and conjecture apply to a choice between liability and nonliability when there is no reasonable basis in the evidence upon which a choice of liability can be made. A mere possibility of causation is not enough; and when the matter remains one of pure speculation or conjecture or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Id. at ¶ 16 (alterations and internal quotation marks omitted) (quoting Merco Distrib.Corp. v. Commercial Police Alarm Co., 84 Wis.2d 455, 458-59, 460, 267 N.W.2d 652 (1978)). Moreover, regarding asbestos-related litigation in particular, Wisconsin courts have declined to adopt bright-line causation tests, choosing instead to weigh whether a defendant's product was a substantial factor causing injury “based on the totality of the circumstances surrounding the work . . . and the products . . . generally used.” Id. at ¶

         II. Bare ...


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