ORDER
This mаtter comes before the Court on defendant Flowserve Corporation’s Motion for Summary Judgment (doc. 272). The Motion has been briefed and is ripe for disposition.
I. Relevant Background.
This is an asbestos action pending against 11 defendants,
On May 4, 2011, less than three months after his diagnosis, Morgan initiated this litigation against 42 named defendants (including Flowserve). Morgan’s pleadings alleged that he “was exposed to asbestos dust, asbestos particles, asbestos containing materials and products that were produced, manufaсtured, specified for use, installed, distributed, sold and/or placed into the stream of commerce by the producer and/or distributor Defendants during his employment as a machinist, engine room worker, and mechanic,” as a result of which he was “diagnosed with an asbestos related disease.” (Doc. 1, Exh. A-2, at 6.) On July 29, 2011, Morgan amended his Complaint to name certain additional defendants. (Doc. 4, Exh. B, at 1.)
Record facts concerning Morgan’s interactions with Flowserve products are as follows;
Morgan testified that the Alabama River Pulp facility had a chemical prep area that contained Durco pumps, and that Morgan and his crew worked on those Durco pumps infrequently. (Morgan Dep. Ill, at 180-81.)
Significantly, the record in the light most favorable to plaintiff confirms that Durco pumps were not made of asbestos and did not have exterior asbestos. (Morgan Dep. IV, at 63.) Alabama River Pulp did, however, use asbestos-containing interior packing in the pump shaft of those Durco pumps. (Id.)
With respect to Durco valves, there is limited evidence that such valves were in use at Alabama River Pulp during the period of Morgan’s employment. (Morgan Dep. IV, at 82-90.) Morgan was unable to identify any exposures he might have had to asbestos-containing products from Durco valves, except in the vaguest of terms. (Id. at 87-91.) Plaintiffs opposition to Flowserve’s Motion for Summary Judgment is couched exclusively in terms of evidence concerning Durco pumps; therefore, it does not appear that plaintiff is claiming (and certainly he has identified no еvidence supporting) that Flow-serve liability may be predicated on Morgan’s exposure to asbestos-containing products involved with Durco valves. For that reason, the analysis herein will center on Durco pump evidence. That said, the Court is aware of no reason (and plaintiff has identified none) why the result would be different in the Durco valve context than in the Durco pump context.
II. Summary Judgment Standard.
Summary judgment should be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v. Coats & Clark, Inc.,
III. Analysis.
Although Flowserve’s Motion for Summary Judgment raises a number of legal
A. Is the Bare Metal Defense Cognizable Under Alabama Law?
Many jurisdictions have embraced some form of this bare metal defense in the asbestos context. See, e.g., Lindstrom v. A-C Product Liability Trust,
The parties agree that the substantive law of Alabama governs here. Alabama appellate courts have not unequivocally resolved the question of whether the bare metal defense is available in asbestos cases under state law. See Holland v. Armstrong Int'l Inc.,
Fortunately, Alabama case law does provide helpful guidance to inform such a prediction. In particular, the Alabama Supreme Court has held “that a distributor or manufacturer of a nondefective component is not liable for defects in a product that it did not manufacture, sell, or otherwise place in the stream of commerce.” Sanders v. Ingram Equipment, Inc.,
Plaintiff counters that Alabama law would impose a duty to warn on Flowserve in this context. As an initial matter, plaintiff does not and cannot challenge the well-settled principle that, under Alabama produets-liability law, “a defect in the product must be affirmatively shown” by the plaintiff. Tanksley v. ProSoft Automation, Inc.,
There is an obvious tension between the Sanders tenet that a manufacturer is not liable for defects in a product that it did not place in the stream of commerce, on the one hand, and the Sears ruling that a manufacturer is liable for alterations to its product that are reasonably foreseeable. If the alteration giving rise tо liability under Sears is the addition of a component part that the defendant manufacturer did not place in the stream of commerce (and for which Sanders would preclude liability), then does the Sanders rule or the Sears rule control? Fortunately, the Alabama Supreme Court answered this question in Hannah v. Gregg, Bland & Berry, Inc.,
Considering all of the foregoing authorities in the aggregate, the Court concludes that (i) the prevailing majority rule
B. Application of Bare Metal Defense to Record Facts.
To recapitulate the relevant summary judgment evidence, Flowserve manufactured Durco pumps “that required fluid sealing component parts, such as gaskets, packing and/or mechanical seals, for proper function and operation.” (Doc. 312-7, at 3.) Some of those packings and gaskets were made with asbestos. (Id.) Brand-new Durco pumps “contained third-party manufactured sealing devices pre-installed at Duriron facilities.” (Id.) The Alabama River Pulp plant where Morgan worked commenced operations in 1978 and utilized a number of Durco pumps, which would have been shipped to the plant with Duriron-installed packing and gaskets (if they needed gaskets at all). Periodically, Alabama River Pulp would replace its Durco pumps’ packing and gaskets with replacement components that cоntained asbestos, and were manufactured and supplied by third parties. Plaintiff has no evidence that Flowserve supplied or had any in
At the outset, plaintiff endeavors to shoehorn this case within the Hannah caveat to Sanders, insisting that the Hannah situation (in which a plaintiff sought to recover оn a theory that the defendant’s product is itself defective) “is precisely the situation at hand in the present case.” (Doc. 312, at 26.) Obviously, no asbestos dust or fibers emanated from Durco pumps themselves; rather, as Morgan testified, any dust encountered during the process of replacing packing for such pumps “would have to be from the packing,” not from the pump. (Morgan Dep. 11, at 351.) Nonetheless, plaintiff posits that Flowserve’s liability in this case derives “in part from the defective design of its pumps that required the use of asbestos-containing component parts.” (Doc. 312, at 26.) But plaintiff has identified no record evidence — and the Court has found none — that the Durco pumps in use at Alabama River Pulp “required the use of asbestos-containing component parts.” There is no evidence, for example, that these pumps would not function properly if their packing was not made of asbestos. Morgan conceded that during this period of time, “some packing contained asbestos and some didn’t.” (Morgan Dep. IV, at 71.) The record is devoid of evidence from which a reasonable fact finder could conclude that the Durco pumps in use at Alabama River Pulp were designed to require asbestos packing, to the exclusion of other kinds of packing materials. Of course, speculation and conjecture are not valid grounds for denying summary judgment relief.
There being no record basis for a defective design claim against Flowserve and plaintiff not having delineated any other ground for her claim that the Durco
Under a generous reading of plaintiffs summary judgment brief, plaintiff seeks to forestall this result on two grounds. First, plaintiff appears to contend that the bare metal defense does not exonerate Flowserve because the Durco pumps at Alabama River Pulp were newly purchased and were shipped with original equipment manufacturer (“OEM”) parts, including packing and gaskets. In other words, plaintiffs position is that Durco pumps already had asbestos-containing packing and gaskets in them when Flow-serve shipped them to Alabama River Pulp. If that statement were accurate, then it would imply that Flowserve placed those asbestos-containing components in the stream of commerce and- may be held liable (notwithstanding the bare metal defense) for any exposures to asbestos dust that Morgan suffered from those OEM components (as opposed to replacement components, for which Flowserve would not have been in the chain of distribution
Second, plaintiff attempts to formulate a basis for holding Flowserve liable on the theory that it recommended replace
IV. Conclusion.
“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris,
For all of the foregoing reasons, the Court finds that there are no genuine issues of material fact, and that movant is entitled to judgment as a matter of law. Defendant Flowserve Corporation’s Motion for Summary Judgment (doc. 272) is granted, and plaintiff’s claims against that
Notes
. Flowserve Corporation was formerly known as The Duriron Company, Inc. For the sake of consistency and clarity, that entity will be referred to herein as "Flowserve,” regardless of what the company's actual name may have been at a particular time.
. Initially, there were numerous other named defendants; however, the ranks of defendants have dwindled as a result of settlements and voluntary dismissals. All 11 remaining defendants have pending, ripe summary judgment motions that have been taken under submission.
. The Court is mindful of its obligation under Rule 56 to construe the record, including all evidence and factual inferences, in the light most favorable to the nonmoving party. See Skop v. City of Atlanta, GA,
. Morgan’s deposition was taken multiple times in this case, including discovery depositions taken on August 16, 2011 and August 25, 2011, and trial depositions taken on September 2 and 8, 2011. For purposes of this Order, citations to Morgan’s August 16 deposition will take the form "Morgan Dep. I," while citations to the August 25 deposition will take the form “Morgan Dep. II,” those to the September 2 deposition will take the form "Morgan Dep. Ill,” and those to the September 8 deposition will take the form "Morgan Dep. IV.”
. Morgan reinforced these points by testifying that he “looked in to every job that was being ... performed. And all the pumps, ... whatever was being done to them, I wanted to know what it was. I wanted to know what kind of condition they were when they come in, plus, you know, see it. ... I wanted to see it for myself. And a lot of times I put my hands on it just to feel it. And the same thing with the machine work. I went by every job to see ... what was going on.” (Morgan Dep. Ill, at 231.) As for the daily clean-up process in Alabama River Pulp’s machine and pump shops, Morgan explained that at the end of each day, the crew would “air hose things off, and then sweep it up,” including "dirt and dust and what asbestos was there in the dirt and dust.” (Id. at 232.)
. Flowserve asks the Court to strike as inadmissible all of Morgan’s deposition testimony concerning Durco pumps and valves because it followed from leading questions to which defense counsel objected. The Federal Rules of Civil Procedure provide that, on summary judgment, "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.” Rule 56(c)(2), Fed.R.Civ.P. But there is no absolute prohibition on leading questions on direct examination. The applicable evidentiary rule is that "[Heading questions should not be used on direct examination except as necessary to develop the witness's testimony.” Rule 611(c), Fed. R.Evid. Use of leading questions on direct examination may be permitted in the trial court’s discretion. See, e.g., United States v. Kuehne,
.Specifically with respect to Durco pumps, Morgan testified, "I’d have it in my hands and looked at it when the ... pump man would tear it apart.” (Id. at 57.)
. In response to a line of questioning concerning Durco pumps, Morgan explained that the exposure to asbestos dust came from the process of removing old packing, to-wit: "And so if you’re getting the old out, that’s where your dust comes in ... and my thing was to make sure that the stuffing box is cleaned up good before going back with new packing to get the right result from packing. So there's — there’s your dust.” (Mоrgan Dep. IV, at 69.)
. When asked whether the pumps themselves contained asbestos, Morgan responded, "No.” (Morgan Dep. II, at 350.) When asked whether the asbestos dust he encountered during the maintenance and repair of pumps at Alabama River Pulp was from the packing or the pump itself, Morgan responded, "Well, it would have to be from the packing, you know.” (Id. at 351.)
. That said, Flowserve has provided the Court with an on-point unpublished opinion from the Circuit Court of Mobile County, Alabama, styled Robert Patrick, et al. v. Ametek, Inc., et al. (Doc. 272, Exh. G). The Patrick decision, authored by Circuit Judge Joseph S. Johnston, applies Alabama law to the same circumstances presented here {i.e., whether Flowserve, as a manufacturer of bare-metal pumps, may be held liable for asbestos-containing components made and supplied by third parties). Judge Johnston found that, under Alabama law, "a manufacturer of a non-defective product cannot be held liable for a defective product subsequently associated with that product which it did not manufacture or supply.” {Id. at 6.) He adopted the legal principle articulated in other jurisdictions that “[sjince this defendant did not manufacture or market the asbestos-containing material nor did it have control over the type of materials selected, it was not liable.” {Id. at 8.) The Patrick order concluded that "[b]e-cause the Plaintiffs have failed to meet the threshold requirement of showing ... that the Plaintiff worked with an asbestos-containing product manufactured, sold, distributed or otherwise placed in the stream of commerce by FLOWSERVE, Plaintiffs have failed to establish the requisite causal nexus between such products and Mr. Patrick's injury.” {Id. at 9.)
. As one court explained, "Where, as here, the defendant manufacturer did not incorporate the defective component into its finished product and did not place the defective component into the stream of commerce, the ra7 tionale for imposing liability is no longer present. The manufacturer has not had an opportunity to test, evaluate, and inspect the component; it has derived no benefit from its sale; and it has not represented to the public that the component part is its own.” O’Neil,
. "Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.” Cordoba v. Dillard’s, Inc.,
. See Lindstrom,
. Indeed, plaintiff cites testimony that Morgan "started that mill up. All the pumps at the startup were new, purchased from whichever pump manufacturer .... At that point, they were the first оnes to repair the pumps in the shop.” (Ronald Melvin Morgan Dep., at 92.) Also, Flowserve acknowledged that its new pumps "contained third-party manufactured sealing devices preinstalled at Duriron facilities.” (Doc. 312-7, at 3.) These facts raise a reasonable inference that when Durco pumps were shipped to Alabama River Pulp at the time of the plant's start-up in 1978, they contained packing manufactured by third parties and installed by Flowserve. If Morgan was exposed to asbestos dust from the OEM packing, then the bare metal defense would not preclude plaintiff's claims against Flowserve relating to those exposures, which would concern asbestos products that Flowserve had distributed with its new pumps.
. Contrary to plaintiff's allegation, the record shows that Flowserve "never manufactured, supplied or recommended the use of asbestos flange gasket mаterial in connection with any of Duriron (or other) products.” (Doc. 312-7, at 3.) And Morgan testified that he had no knowledge of Flowserve supplying any original flange gaskets at all on Durco pumps. (Morgan Dep., at 80-81.) As for the OEM packing materials, the record is silent as to whether they were made with asbestos or not.
. The record shows that Morgan spent his first year at Alabama River Pulp as a machinist, but that he never did hands-on work with Durco pumps. Plaintiff's exposure evidence focuses exclusively on his role as foreman of the pump shop, a job he assumed after a year at the mill. If the packing and gaskets on Durco pumps were replaced during that first year, then, there is no evidentiary basis for concluding that Morgan would have been exposed to them or that he would have been in close proximity to them. After all, he did not do hands-on work on Durco pumps, and he would not have been supervising others doing such work. So the timing of when those OEM packing materials were replaced is potentially critical. The record is completely silent on this question.
.Even if such evidence did exist, plaintiff might run headlong into a limitations problem with regard to asbestos exposures from the OEM packing. Recall that Morgan began working at Alabama River Pulp in 1978. If his exposures to asbestos released from OEM packing and gaskets from Durco pumps happened earlier than May 19, 1979, plaintiff’s claims relating to such exposures would be time-barred under well-settled Alabama law. See, e.g., Holland v. Armstrong Int’l, Inc.,