Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Walker v. Viad Corp.

United States District Court, E.D. Pennsylvania

July 1, 2019

OBEDIAH WALKER III, As Executor of the Estate of Obediah Walker, Jr. Plaintiff,
v.
VIAD CORP, Defendant.

          OPINION

          SLOMSKY, J.

         I. INTRODUCTION

         On November 25, 2015, Plaintiff Obediah Walker III (“Plaintiff”) filed this action in state court, claiming that his father, Obediah Walker, Jr. (“Decedent”), developed lung cancer after being exposed to asbestos-containing products while serving in the United States Navy. (Doc. No. 1 at 12.) Named as Defendants were several manufacturers, including Defendant Viad Corp (“Defendant” or “Viad Corp”), which is alleged to be the successor in interest to Griscom Russell Company, a now defunct company that manufactured and sold equipment to the Navy from the 1940s to the early 1960s. (Id. at 17.)

         On January 15, 2016, Defendant Viad Corp removed this case from the Court of Common Pleas of Philadelphia County to the United States District Court for the Eastern District of Pennsylvania as part of MDL-875.[1] (Doc. No. 1.) Aside from a Notice of Removal, Defendant did not file an Answer pursuant to Federal Rule of Civil Procedure 81(c)(1)-(2). (Id.)

         On July 31, 2017, Defendant filed a Motion for Summary Judgment. (Doc. No. 31.) On September 14, 2017, in its Reply to Plaintiff's Response in Opposition to the Motion for Summary Judgment, Defendant raised the successor in interest defense for the first time. (Doc. No. 37.) On February 14, 2019, Defendant's Motion for Summary Judgment was denied. (Doc. No. 58.) In an Opinion, this Court declined to address the successor in interest defense because it was (1) raised for the first time in the Reply to Plaintiff's Response, and (2) Defendant failed to file an Answer raising the defense. (Doc. No. 58.) However, the Court allowed Defendant to file a memorandum as to why the defense was not waived and as to why Defendant should be permitted to raise it at trial. (Doc. No. 58 at 27.)

         On February 22, 2019, Defendant filed an Answer, which included its successor in interest affirmative defense. (Doc. No. 60.) On February 27, 2019, Defendant filed a Memorandum of Law in support of this defense. (Doc. No. 62.) On March 12, 2019, Plaintiff filed the instant Motion to Strike the Answer. (Doc. Nos. 65.) On March 26, 2019, Defendant filed a Response in Opposition to Plaintiff's Motion. (Doc. No. 68.) Finally, on April 1, 2019, Plaintiff filed a Reply to Defendant's Response to the instant motion. (Doc. No. 69.)

         Plaintiff's Motion to Strike (Doc. No. 65) is now ripe for disposition. For reasons discussed infra, Plaintiff's Motion to Strike will be denied.

         II. BACKGROUND

         First, the Court will address the pertinent factual background of this case. Second, it will discuss Defendant Viad Corp's alleged culpability as the successor in interest to Griscom Russell Company. Finally, the Court will outline the relevant procedural history including the Court's Opinion on the Motion for Summary Judgment and the instant Motion to Strike.

         A. Decedent's Alleged Exposure to Asbestos-Containing Products and Death from Lung Cancer

         In 1969, Decedent Obediah Walker, Jr. enlisted in the United Sates Navy, and from 1969 until 1971, served on active duty as an electrician aboard the U.S.S. Plymouth Rock. (Doc. No. 26-1 ¶ 8.) Plaintiff claims that Decedent's work aboard the U.S.S. Plymouth Rock exposed him to asbestos. (Doc. No. 1.)

         Decedent maintained the electrical systems on the U.S.S. Plymouth Rock, and as a result, worked on every part of the ship. (Doc. No. 36-5 at 18:23-19:2.) In particular, electricians like Decedent worked in the ship's engine room repairing gauges, pipes, boilers, turbines and other machinery essential to the proper functioning of the ship. (Id. at 23:5-25:5.) The United States Navy required that all surfaces on the ship reaching 125 degrees Fahrenheit or more be covered with insulation containing asbestos. As a result, much of the machinery in the engine room was covered with insulation that needed to be stripped in order to perform necessary repairs. (Doc. No. 37-1.) Therefore, working in the engine room was dangerous because electricians like Decedent were likely to be exposed to asbestos fibers when insulation was stripped from machinery. (Id. at 32:18-22:4.)

         The electricians aboard the U.S.S. Plymouth Rock also worked on or near the ship's distillation plant. (Id. at 34:13-19.) A distillation plant is a piece of equipment that converts salt water into fresh water for consumption. (Id. at 34:20-35:2.) Like the machinery in the engine room, the distillation plant and pumps were covered with insulation containing asbestos that needed to be stripped in order to perform repairs. (Id.) While electricians did not personally strip the insulation from the distillation plant and supporting pumps, they stood watch in the “confined space” where the distillation plant was located. (Id. at 35:11-12.)

         In December 2013, Decedent, who smoked for the majority of his life, was diagnosed with mesothelioma. (Doc. No. 36-2.) He passed away less than four months later, on March 17, 2014. (Doc. No. 35-4.) After his death, post-mortem pathology testing showed that Decedent did not suffer from mesothelioma; rather, he died from invasive non-small cell carcinoma, a type of lung cancer. (See Doc. No, . 36-4.) Decedent's lung cancer appears to have been caused by exposure to asbestos. (Doc. No. 36-9 at 2.)

         B. Defendant's Alleged Culpability as Successor in Interest to Griscom Russell Company

         Plaintiff claims that the distillation plant aboard the U.S.S. Plymouth Rock was manufactured by Griscom Russell Company and that Decedent was exposed to asbestos when workers stripped insulation from the distillation plant and its supporting equipment. (Doc. Nos. 1, 36.) In support of this claim, Plaintiff points to the Synopsis of Machinery and Hull data for the U.S.S. Fort Snelling, a naval ship of the same class as the U.S.S. Plymouth Rock. (Doc. No. 36-6; Doc. No. 57 at 23:4-19.) The Synopsis notes that the document summarizes machinery aboard every ship that falls within the “U.S.S. LSD 28” class of Navy vessels, which includes vessels numbered “U.S.S. LSD 28, 29, 30, 31.” (See Doc. No. 36-6 at 1-18.) At the Motion for Summary Judgment hearing, Plaintiff stated the U.S.S. Plymouth Rock falls within the U.S.S. LSD 30 class of Navy vessels. (Doc. No. 57 at 23:4-19.) Significant here, the Synopsis states that the distillation plant aboard ships within the U.S.S. LSD Class 28 class, including the U.S.S. LSD 30, were manufactured by Griscom Russell Company. (Doc. No. 36-6 at 17.)

         Griscom Russell Company, which is now defunct, was a subsidiary of Hamilton-Thomas, a Delaware corporation. (Doc. No. 37 at 21.) From the 1940s to the early 1960s, Griscom Russell manufactured distillation plants used for the desalination of seawater aboard Navy vessels. (Id. at 16.) While these distillation plants were neither dangerous nor defective when sold, Navy safety regulations required them to be covered with asbestos-containing insulation. (Id.)

         In January 1962, Baldwin-Lima-Hamilton (“BLH-PA ”), a Pennsylvania corporation, purchased 93.4% of Hamilton-Thomas' stock in a cash deal. (Doc. No. 37 at 21.) In April 1962, Griscom Russell Company's shareholders voted to dissolve the corporation. (Id. at 26.) In October 1962, Griscom Russell Company sold its plant and all of its manufacturing equipment to more than ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.