Elorreaga v. ABB, Inc.

Background

Roberto Elorreaga sued after developing malignant pleural mesothelioma, alleging that he was exposed to asbestos-containing products or equipment while working aboard United States Navy vessels and in Navy shipyards. The opinion states that he served aboard the USS Rupertus and USS Cowell in several roles, including machinist’s mate, fireman’s apprentice, and electrician’s mate. After Mr. Elorreaga died in October 2021, his wife, Rosemary Elorreaga, and sons, Robert Paul Elorreaga, Richard Andrew Elorreaga, and Ronald Edward Elorreaga, continued the case.

The pending motions were filed by the plaintiffs and by General Electric Company, ViacomCBS Inc., Air & Liquid Systems, and Warren Pumps, LLC. The defendants sought summary judgment, which is a ruling entered when the evidence shows no genuine dispute over a fact that could affect the outcome and the moving party is entitled to judgment as a matter of law. The plaintiffs sought partial summary judgment on the government-contractor defense.

Government-Contractor Defense

The defendants argued that the federal government contractor defense protected them from liability because they allegedly supplied asbestos-containing materials in compliance with Navy specifications. Under the test described in Boyle v. United Technologies Corp., a contractor must show that the United States approved reasonably precise specifications, that the equipment conformed to those specifications, and that the contractor warned the United States about dangers known to the contractor but not to the government.

The plaintiffs argued that the defense could not apply because their claims arose under federal maritime law. The court agreed. Relying on the Ninth Circuit’s discussion of the defense in Gomez v. Campbell-Ewald Co., the court explained that the Boyle doctrine is based on federal preemption—the displacement of state law when it conflicts with federal interests. Because preemption was not at issue when the claims arose under federal maritime law, the court held that the government-contractor defense did not apply here.

The court therefore denied the defendants’ motions for summary judgment on that defense and granted the plaintiffs’ motion for partial summary judgment as to the defense.

Exposure and Causation

The defendants also argued that the plaintiffs lacked sufficient evidence to show that Mr. Elorreaga encountered asbestos from their products or that any such exposure was a substantial contributing factor in causing his mesothelioma. The court stated that the plaintiffs could satisfy the substantial-factor test by presenting evidence of substantial exposure to relevant asbestos for a substantial period, including evidence about the amount or duration of exposure. Minimal exposure would not be enough, and the court noted that the Ninth Circuit had rejected the theory that every exposure to asbestos is automatically a substantial factor.

For General Electric, the court found evidence that Mr. Elorreaga regularly worked on GE control panels and arc chutes, cleaned them, and created dust during that work. The record also included evidence that GE products during the relevant period contained encapsulated chrysotile asbestos and that GE knew some of its electrical products contained asbestos. The court found that this evidence, although not overwhelming, could allow a reasonable jury to find exposure to asbestos from GE products.

For ViacomCBS, the court found evidence that Mr. Elorreaga worked with Westinghouse electrical equipment and was near a Westinghouse turbine while its asbestos-containing insulation was removed and reapplied. The court concluded that the plaintiffs had presented sufficient evidence of exposure to asbestos-containing products from or attributable to Westinghouse.

For Warren Pumps, the evidence showed that Mr. Elorreaga performed maintenance on Warren pumps, removed insulation, replaced gaskets, and used a wire brush, creating visible dust. He also testified that he was near Warren-pump maintenance performed by others. Although Warren challenged the detail and reliability of this testimony, the court viewed those challenges as factual disputes for the jury.

For Air & Liquid Systems and Buffalo Pumps, the evidence showed that Mr. Elorreaga worked on Buffalo pumps, replaced gaskets, cleaned debris with a wire brush, and was present while others worked on Buffalo pumps. The record also included evidence that Buffalo pumps were designed to use asbestos packing and gasket material and that some original materials supplied during the relevant period contained asbestos. The court found that Air & Liquid Systems had not shown entitlement to summary judgment on this issue.

Overall, the court held that, viewing the evidence in the plaintiffs’ favor as required at summary judgment, the plaintiffs had raised genuine disputes about whether Mr. Elorreaga was exposed to asbestos-containing products made, sold, or supplied by each defendant and whether that exposure was a substantial factor in causing his disease. The court stated that the defendants could challenge the evidence at trial through contrary evidence and cross-examination.

Other Issues and Disposition

The defendants also argued that the plaintiffs could not recover punitive damages or loss-of-consortium damages under federal maritime law. The court stated that it had already granted in part and denied in part an earlier motion to dismiss, including granting the defendants’ motion as to those requests under general maritime law. The court therefore treated the defendants’ summary-judgment arguments on those issues as moot and stated that the plaintiffs’ arguments were preserved for appeal.

The court denied Defendants’ motions for summary judgment, identified as Docket Nos. 123, 125, 129, and 130, and granted Plaintiffs’ motion for summary judgment as to the government-contractor defense. It also set a telephonic case-management conference for May 2, 2023, directed the parties to meet and confer, and ordered them to submit a revised joint case-management statement. Judge Haywood S. Gilliam, Jr. signed the order.