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Faddish v. General Electric Co.

October 20, 2010

RUTH FADDISH, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JOHN FADDISH, DECEASED, PLAINTIFF,
v.
GENERAL ELECTRIC CO. ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

CONSOLIDATED UNDER MDL 875

Transferred from the Southern District of Florida

MEMORANDUM

Before the Court is Defendant General Electric's Motion for Summary Judgment, and Objections to the Magistrate Judges' Report and Recommendation that summary judgment in favor of General Electric be denied.

I. BACKGROUND

This case is part of MDL-875, the consolidated asbestos products liability multidistrict litigation pending in the Eastern District of Pennsylvania. The instant claims are based on failure to warn causes of action under Florida law. (Compl. ¶5.; Pl.'s Resp. to Def.'s Mot. Summ. J., doc. no. 129, at 8.) Plaintiff's husband and the injured party in the instant case, John Faddish ("Mr. Faddish"), was a serviceman in the U.S. Navy.

Mr. Faddish served aboard the U.S.S. Essex from 1958-1961. (Suppl. Compl. ¶¶ 3-5.) Plaintiff alleges that Mr. Faddish's death from mesothelioma was related to asbestos-containing General Electric ("GE") products used aboard the U.S.S. Essex. (Id.) It is undisputed that GE manufactured four Ship Service Turbo Generators ("SSTG") that were installed on the U.S.S. Essex (Def.'s Mot. Summ. J., doc. no. 105-1, at 3.)*fn1

GE moved for summary judgment, asserting that Plaintiff has failed to raise a genuine issue of material fact as to whether GE products were the cause of Mr. Faddish's asbestos-related injuries. Pursuant to this Court's referral order, the Panel issued an R&R denying GE'S Motion for Summary Judgment on the issue of product identification only, finding that the combination of Mr. Faddish's testimony and Plaintiff's expert witness could lead a reasonable jury to find that asbestos-insulated GE products were a substantial contributing cause to Mr. Faddish's injuries. (R&R, doc. no. 161, at 6.)

GE raises numerous objections to the Panel's R&R, including a general objection to the ultimate conclusion that summary judgment in favor of GE should be denied. (Def.'s Objects., doc. no. 189 at 2). GE asserts that Mr. Faddish's deposition testimony and Plaintiff's expert report are insufficient to raise a genuine issue of fact. (Id.)

Additionally, GE moves for summary judgment on two grounds that are outside the scope of this Court's referral order to the Panel. First, GE argues that the asbestos-containing gaskets, packing and insulation "as delivered by GE for use on the Essex in 1942 would have been removed and replaced by other parties before Faddish's arrival on that ship" and that they cannot be held liable for replacement parts that they did not manufacture or supply. (Def.'s Mot. Summ. J., doc. no. 105-1, at 20.) Second, General Electric argues that it is entitled to summary judgment as a matter of law based on the government contractor defense. (Id. at 30.)

II. LEGAL STANDARD

Pursuant to 28 U.S.C. § 636(b)(1)(C), "[a] judge of the Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.

When evaluating a motion for summary judgment, Federal Rule of Civil Procedure 56 provides that the Court must grant judgment in favor of the moving party when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact . . . ." Fed. R. Civ. P. 56(c)(2). A fact is "material" if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248-49. "In considering the evidence, the court should draw all reasonable inferences against the moving party." El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).

"Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, 'the burden on the moving party may be discharged by showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (quoting Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)). Once the moving party has thus discharged its burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in [Rule 56]--set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).

III. DISCUSSION

A. GE's Objections to the Panel's R&R

GE has raised seven objections to the Panel's R&R, in addition to generally objecting to the ultimate determination that there remains a genuine issue of material fact as to whether GE products were a substantial contributing cause of Mr. Faddish's asbestos-related injuries. For the reasons set forth below, each of Defendant GE's objections are overruled, and the Court adopts the Panel's findings.

1. The Panel Erred in its Choice of Law Analysis by Failing to Recognize that Florida does not have a "Significant Relationship" with this Litigation

Notably, GE objects to the Panel's choice of law approach, but not to the Panel's ultimate determination that Florida law is applicable to this case. A multi-district litigation transferee court is bound by the transferor court's substantive law, including choice of law rules. Menowitz v. Brown, 991 F.2d 36, 40 (2d Cir. 1993). Therefore, Florida choice of law rules must be applied.

The Panel found that Florida courts apply the "significant relationship" test to determine what law applies and concluded that, "in accordance with this standard, the court will apply Florida law in deciding the substantive issues in the case at bar." (R&R at 2 n.1 (citing Connell v. Riggins, 994 So. 2d 1174, 1176-77 (Fla. Dist. App. Ct. 2006))).

Under Florida law, the first step in conducting the "significant relationship" test is to determine which sovereigns have an interest in applying its laws, and whether there is a "true conflict" or merely a "false conflict" between the laws of the different sovereigns. Pycsa Panama, S.A. v. Tensar Earth Tech, Inc., 625 F. Supp. 2d 1198, 1218 (S.D. Fl. 2008). A "false conflict" exists "when the laws of the interested jurisdictions are the same." Id.

In determining the merits of an asbestos claim, Florida law and maritime law employ the same test for proximate causation. Compare Singleton Stone v. Amquip Corp., 98-cv-4691, 2000 WL 1448817 at *3 (E.D. Pa. Sep. 29, 2000) (applying "substantial contributing factor" test in products liability case under maritime law) with Reaves v. Armstrong World Industries, Inc., 569 So. 2d 1307, 1309 (Fl. Dist. App. Ct. 1990) (applying a "substantial contributing factor" test in an asbestos case). As no "true ...


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