Wannall v. Honeywell International, Inc.
2013 U.S. Dist. LEXIS 68523
| D.C. Cir. | 2013Background
- Decedent died July 28, 2010 from malignant pleural mesothelioma allegedly caused by asbestos in Bendix brakes.
- Plaintiff claims exposure occurred during decedent's shade-tree automotive repairs and Bendix brake use; decedent also had Navy and Fort Belvoir asbestos exposure.
- Potential sources of exposure include Naval service, Fort Belvoir work, and Bendix brake dust; multiple exposures could have contributed to cancer.
- MDL proceedings consolidated pretrial, with remand to this court for trial; only John Crane, Inc. and Honeywell remained viable defendants.
- Virginia Supreme Court decided Boomer in January 2013, rejecting the substantial contributing factor standard for mesothelioma causation and requiring a two-step sufficiency inquiry.
- Honeywell moved for reconsideration after Boomer; plaintiff supplemented with a February 2013 Markowitz declaration, which the court later struck as untimely and prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation standard post-Boomer | Boomer governs; Bendix exposure could be independently sufficient to cause mesothelioma. | Boomer requires specific level-of-exposure evidence showing independence and sufficiency for each exposure. | Boomer governs; plaintiff must show independently sufficient exposure; summary judgment granted. |
| Timeliness and admissibility of Markowitz Declaration | Declaration responds to Boomer; timely under Rule 26/37 and court directives. | Declaration is untimely under Rule 26 and MDL scheduling; constitutes a sham/ad hoc opinion. | Declaration excluded as untimely and prejudicial; strike granted. |
| Effect of excluding Markowitz Declaration on causation | Pre-February 2013 record suffices under Boomer to create a genuine issue of fact. | Record does not contain Boomer-compliant proof of independently sufficient Bendix brake exposure. | Without the Declaration, no Boomer-compliant evidence; defendant entitled to summary judgment. |
Key Cases Cited
- Boomer v. Ford Motor Co., 736 S.E.2d 724 (Va. 2013) (two-step causation: level of exposure and sufficiency for mesothelioma)
- Owens-Corning Fiberglas Corp. v. Watson, 413 S.E.2d 630 (Va. 1992) (exposure evidence may support proximate cause in asbestos cases)
- Virginia Supreme Court Bellwether, 243 Va. 128, 413 S.E.2d 630 (1992) (Watson citation associated with causation standard in asbestos cases)
- Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630 F.3d 217 (D.C. Cir. 2011) (interlocutory Rule 54(b) reconsideration flexibility)
- Cobell v. Norton, 224 F.R.D. 266 (D.D.C. 2004) (discretion in reconsidering interlocutory orders; Rule 54(b))
- Lujan v. National Wildlife Fed’n, 497 U.S. 871 (U.S. 1990) (limits on standing; advisory on evidence and reliance)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (burden on movant to show absence of genuine fact)