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Quirin v. Lorillard Tobacco Co.

United States District Court, N.D. Illinois, Eastern Division

February 14, 2014

MARILYN F. QUIRIN, Special Representative of the Estate of RONALD J. QUIRIN, Deceased, Plaintiff,
v.
LORILLARD TOBACCO COMPANY, et al., Defendants

Page 761

For Marilyn F. Quirin, Special Representatitve of the Estate of Ronald J. Quirin, Deceased, Plaintiff: Gary Paul, PRO HAC VICE, Waters, Kraus & Paul, El Segundo, CA; Gibbs C Henderson, PRO HAC VICE, Dallas, TX; Robert Neil Wadington, Robert N. Wadington & Associates, Chicago, IL.

For Lorillard Tobacco Company, formerly known as P. Lorillard Co. also known as Lorillard Tobacco Company, Defendant: Kurt Edward Reitz, LEAD ATTORNEY, Thompson Coburn, Belleville, IL; James David Duffy, Thompson Coburn LLP, Chicago, IL; Kevin C. Mcginley, Thompson Coburn Llp, Belleville, IL; Ricardo G. Cedillo, PRO HAC VICE, Davis, Cedillo & Mendoza, San Antonio, TX.

For Crane Co., Defendant: Catherine Lynn Carlson, Susan Gunty, LEAD ATTORNEYS, Gunty and McCarthy, Chicago, IL; James Paul Kasper, LEAD ATTORNEY, Gunty & McCarthy Law Offices, Chicago, IL; David A. Rammelt, K& L Gates LLP, Chicago, IL; Michael James Ross, Terry Budd, PRO HAC VICE, K& L Gates Llp, Pittsburgh, PA.

For Georgia-Pacific LLC, (sued individually and as successor-in-interest to Besteall Gypsum Company), Defendant, Cross Defendant, Cross Claimant: Adam H Doeringer, LEAD ATTORNEY, Swanson, Martin & Bell, Llp, Chicago, IL; Michael William Drumke, LEAD ATTORNEY, Swanson, Martin & Bell, Chicago, IL.

For Hollingsworth & Vose Company, Inc., Defendant: Kurt Edward Reitz, LEAD ATTORNEY, Thompson Coburn, Belleville, IL; James David Duffy, Thompson Coburn LLP, Chicago, IL; Kevin C. Mcginley, Thompson Coburn Llp, Belleville, IL.

For Crane Co., Cross Claimant, Cross Defendant: Catherine Lynn Carlson, Susan Gunty, LEAD ATTORNEYS, Gunty and McCarthy, Chicago, IL; James Paul Kasper, LEAD ATTORNEY, Gunty & McCarthy Law Offices, Chicago, IL; Michael James Ross, Terry Budd, K& L Gates Llp, Pittsburgh, PA.

For Hollingsworth & Vose Company, Inc., Cross Defendant, Cross Claimant: Kurt Edward Reitz, LEAD ATTORNEY, Thompson Coburn, Belleville, IL; James David Duffy, Thompson Coburn LLP, Chicago, IL.

For Lorillard Tobacco Company, Cross Defendant, Cross Claimant: Kurt Edward Reitz, LEAD ATTORNEY, Thompson Coburn, Belleville, IL; James David Duffy, Thompson Coburn LLP, Chicago, IL; Ricardo G. Cedillo, Davis, Cedillo & Mendoza, San Antonio, TX.

Page 762

MEMORANDUM OPINION & ORDER

JOAN B. GOTTSCHALL, United States District Judge.

Plaintiff Marilyn F. Quirin, special representative of the estate of Ronald J. Quirin (" Quirin" ), has sued defendant Crane Co. on a negligence theory, alleging that Mr. Quirin developed and died from mesothelioma substantially caused by his exposure to asbestos-containing materials while working with Crane Co. valves during his naval service. Now before the court is Crane Co.'s motion for summary judgment. Crane Co. argues that it owed no legal duty to Mr. Quirin and therefore cannot be held liable for negligence. Because a genuine dispute of fact exists as to whether Crane Co. owed a duty to Mr. Quirin and whether Crane Co.'s products were a proximate cause of his injuries, the motion is denied.

I. Legal Standard for Summary Judgment

Summary judgment is appropriate when the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Smith v. Hope Sch., 560 F.3d 694, 699 (7th Cir. 2009). " [A] factual dispute is 'genuine' only if a reasonable jury could find for either party." SMS Demag Aktiengesellschaft v. Material Scis. Corp., 565 F.3d 365, 368 (7th Cir. 2009). The court ruling on the motion construes all facts and makes all reasonable inferences in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is warranted when the nonmoving party cannot establish an essential element of its case on which it will bear the burden of proof at trial. Kidwell v. Eisenhauer, 679 F.3d 957, 964 (7th Cir. 2012).

II. Facts

Mr. Quirin was diagnosed with mesothelioma on or about December 27, 2011. In 2012, Mr. Quirin and his wife, Marilyn, filed a complaint against numerous defendants

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in the Circuit Court of Cook County, alleging claims for injuries caused by asbestos exposure. Mr. Quirin passed away on March 31, 2013, and Mrs. Quirin was appointed his executor. The case was removed to federal court on diversity grounds in April 2013, and Plaintiff's Fifth Amended Complaint was filed in this court on April 26, 2013. The defendants that remain in the case are Crane Co., Georgia-Pacific LLC, Hollingsworth & Vose Co., and Lorillard Tobacco Co. Against each defendant, Quirin brings negligence claims under the Wrongful Death Act and the Illinois Survival Act. Quirin alleges that the defendants failed to exercise ordinary care and caution in various ways, such as by including asbestos in their products, marketing and distributing products containing asbestos, failing to provide warnings to people working around the products, and failing to provide instructions as to safe methods for working with asbestos-containing products.

Crane Co. has moved for summary judgment on Quirin's negligence claims. For purposes of the motion, the court takes the following facts from the parties' Local Rule 56.1 Statements of Facts (" SOFs" ), to the extent that they are supported by admissible evidence and relevant to issues raised in Crane Co.'s motion.

Quirin's allegations against Crane Co. focus exclusively on the period of Mr. Quirin's naval service. Mr. Quirin enlisted in the United States Navy in September 1953. After basic training and machinist mate school, his first naval assignment was aboard the USS Tolovana, from May 1954 to August 1957. The Tolovana was a fleet tanker built during World War II, approximately nine years prior to Mr. Quirin's service. Mr. Quirin first worked as an apprentice machinist and was then promoted to machinist mate third-class. He was assigned to take care of auxiliary pumps, steam lines, and winches aboard the ship.

In performing his machinist mate duties, Mr. Quirin had to remove or repair valves when they no longer sealed properly. Crane Co. sold industrial valves, used to control the flow of fluids. Quirin's expert in Navy practices, Captain William Lowell, testified that he reviewed documents for the original construction of the Tolovana, which indicated that the ship utilized over a thousand Crane Co. valves. Mr. Quirin, who was deposed twice before his death, also recalled that Crane Co. was the main brand of valve present on the Tolovana and that the Crane valves were embossed with the brand's name.

Crane Co. valves were made of metal. The metal in the valves was not itself the source of any asbestos fibers. Quirin alleges, however, that Mr. Quirin worked with asbestos-containing gaskets, packing material, pipe covering, and insulation that were used with Crane Co. valves, and that he inhaled asbestos fibers emanating from those materials. Gaskets are sealing devices used to seal the connection points between equipment and piping, in between lengths of piping, and inside certain equipment. Some of the valves on the Tolovana attached to adjacent piping with bolted flanges, which were sealed with " flange gaskets." Packing is a sealing device used to create a seal around moving parts, such as in the stem of a valve.

Not all of the gaskets and packing used with the valves contained asbestos. The Navy also used gaskets made of rubber, paper, leather, canvas, and metal, and packing made of cotton, flax, ramie, rayon, lead, leather, and carbon. But Crane Co. knew that some of its valves would be used in high-temperature operations. Quirin's expert Dr. Carl Brodkin testified that the " gasket and packing material that during that timeframe in the hot steam-powered

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applications that [Mr. Quirin] was working with would have to a high degree of medical certainty represented [sic] asbestos-containing materials." (Pl.'s SOF Ex. 3 (Brodkin Dep.) 48:23-49:1.) Captain Lowell testified, " It would be my opinion, more likely than not, that the Crane valves had asbestos packing. And on those valves that didn't have metallic bonnet gaskets, such as the cargo system or the low pressure steam system like was up on deck, it would be my opinion, ...


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