United States District Court, E.D. Pennsylvania
OBEDIAH WALKER III, As Executor of the Estate of Obediah Walker, Jr. Plaintiff,
VIAD CORP, Defendant.
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.)
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. (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).
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.)
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.
Motion to Strike (Doc. No. 65) is now ripe for disposition.
For reasons discussed infra, Plaintiff's Motion
to Strike will be denied.
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.
Decedent's Alleged Exposure to Asbestos-Containing
Products and Death from Lung Cancer
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.)
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
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.)
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.)
Defendant's Alleged Culpability as Successor in Interest
to Griscom Russell Company
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.)
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.
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