Filed
`D.C. Superior Court
`09/30/2022 22:53PM
`Clerk of the Court
`
`SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
`Civil Division
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`KIMBERLIN CHANEY, Widow and
`Personal Representative of the Estate of
`SYILVESTER CHANEY, Deceased
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`Plaintiff,
`v, o Civil Action No; 2021 CA 001599 A
`Hon. Judge Alfred S, Inving, Jr
`3M COMPANY fk/a MINNESOTA
`MINING & MFG. CO., et al.
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`Defendants.
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`PLAINTIFF'S OPPOSITION TO CLEAVER-BROOKS, INC.'S
`MOTION FOR SUMMARY JUDGMENT AS TO ALL CLAIMS'
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`ORAL ARGUMENT REQUESTED
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`COMES NOW Plaintiff, Kimberlin Chaney, widow and personal representative of the
`Estate of Sylvester Chaney (“Plaintiff™), bv and through undersigned counsel, pursuant to Super.
`Ct. Civ. R, 12-1 and 56, and in Opposition to Defendant Cleaver-Brooks, Inc.’s (“Cleaver-
`Brooks™) Motion for Summary Judgment as to All Claims (“Motion™) to respectfully request that
`the Motion be denmed. As grounds therefor, Plamtff states genuine issues of matenal fact exist to
`warrant denial of Cleaver-Brooks® maotion,
`I INTRODUCTION
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`Sylvester Chaney was diagnosed with mesothelioma in December 2020 when he was
`only sixty-two (62 ) years old. On May 12, 2021, he and his wife, Kimberlin, filed this action
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`against vanous defendants, alleging his mesothelioma was caused by his exposure to asbestos
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`I For purposes of this Opposition, Plaintiff docs not challenge Cleaver-Brooks™ Motion for Partial Summany
`Judgment as o ber breach of warranty or strct labiliny design defect clims (b suill maintains both her singt
`linbility and negligen Failane 10 wam claim).
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`components that Defendants manufactured, sold, and supplied for their equipment to function as
`intended. Mr. Chaney died from his mesothelioma in November of 2021 at the age of 63.
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`As it pertains to Cleaver-Brooks, Mr. Chaney was exposed to ashestos between 1982 and
`1983 when he worked as an apprentice steamfitter for American Combustion and encountered
`older Cleaver-Brooks boilers at various jobsites including, among others, an apartment complex
`in Congress Heights and numerous D.C. public schools, Duning his work prepanng Cleaver-
`Brooks boilers for maintenance, he sustained significant exposures to asbestos rope, asbestos
`tadpole gaskets, asbestos insulating cement, and asbestos Vee Block Mix which Cleaver-Brooks
`incorporated, specified, and supplied as replacement panis so its boilers would function as
`intended.
`11. STATEMENT OF MATERIAL FACTS
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`A, PlaintilT's Response to Cleaver-Brooks' Statement of Material Facts:
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`1. Admined that Mr. Chaney was exposed to asbestos through his work as a
`steamfitter from 1982 through 2013, In 1987, he graduated from his apprenticeship to a
`journeyman steamfitter. Deposition of Sylvester Chaney, Vol II, dated October 7, 2021, at
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`283 16-20, attached hereto as Exhibit A,
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`2, Admined.
`3. Admitted.
`4, Admitted that Mr, Chaney worked for American Combustion as a steamfitter’s
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`apprentice for approximately one year, from 1982 to 1983, Moreover, Mr. Chaney's Social
`Security Earmings Report demonstrates that the majonty (75%) of his work with American
`Combustion was in 1982. See Social Security Eamings Report, attached hereto as Exhibit B.
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`While working for American Combustion, Mr. Chaney prepped firetube boilers by opening them
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`up and ¢leaning out the dust, Deposition of Sylvester Chaney, Vol. 1, dated October 6, 2021, at
`108:1-20, attached hereto as Exhibit C. In addition, he routinely removed and scraped, with a
`wire brush or a putty knife, rope and door gaskets from the boiler surfaces and cleaned dusty
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`debris from inside the boiler doors. fd. at 117:4-118:16
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`5, Admitted.
`0. Admirtted.
`7. Assuming the brochure referenced through the link is genuine and authentic, the
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`document speaks for itself.
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`8. Admitted.
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`9. Admitted.
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`10, Admitted
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`1. Admitted.
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`12. Mr. Chaney testified that, out of the approximately one hundred (100) different
`boilers he worked on during his employment at American Combustion, the majority were
`Cleaver-Brooks boilers. Ex. C at 142:16-143:12.
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`13, Mr. Chaney may not have had personal knowledge of the asbestos content of the
`rope, gaskets, or cement but Cleaver-Brooks' Operation, Service and Parns Manual 125 Thra 350
`HP, Manual Part No. 750-91, revised July 1976, specified the use of asbestos rope, asbestos
`tadpole gaskets, insulating cement and Vee Block Mix in its borlers. Exhibit D at Figure 7-6, 7-
`7, p- 7-13. The manual further states that opening the doors would expose insulating refractory,
`“Wee block™ mix, asbestos rope, and asbestos gaskets and provided that all hardened and brittle
`asbestos rope and gaskets should be removed, wire brushed and replaced. fd at 7-13
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`Additionally, Cleaver-Brooks sold replacements of these asbestos-containing items from the
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`mid-1970s through the mid-1980s. fd at pp. 8-1 — 8-9; see alvo, Cleaver-Brooks™ Nlustrated
`Parts List”, dated “January 1983", attached hereto as Exhibit E; Cleaver-Brooks Sales Invoices
`from the mid-1980s at Exhibit F.
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`14, Mr. Chaney testified that he did not know the specific date of manufacture of the
`boilers that he worked on, but by looking at the boilers he perceived them to be “older”. Ex. C at
`144:9-145:2. Cleaver-Brooks™ corporate witness, John Tometta, testified, based on Mr. Chaney's
`descriptions of the boilers, that Mr. Chaney was likely working en Cleaver-Brooks” Model CB
`firetube boilers, rated between 125 to 350 horsepower, that were manufactured in the 19605 or
`1970s. See Deposition of John Tornetta, dated September 20, 2022, at 52.18-58:11, T1:6-72:17,
`attached hereto as Exhibit G.
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`15 Admted
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`16, Admitted, bt see | 14, supra.
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`B. Plaintiff"s Further Statement of Material Facts
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`(1) Sylvester Chaney's work on Cleaver-Brooks® boilers exposed him to
`asbhestos,
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`17 Mr. Chaney joined the US Steamfitters Local 602 in 1982 as an apprentice
`steamfitter. Ex. C at 56:21-57:4, 58:16-59:1.
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`18, Mr. Chaney's first job was as a steamfitters apprentice working for American
`Combustion from 1982 to 1983, fd. at 79:1-11,
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`19. Mr. Chaney's Social Security Eamings Report demonstrates that the majority
`{75%) of his work with American Combustion was in 1982, See Ex. B
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`20, Mr. Chaney testified that he worked on various Cleaver-Brooks firetube boilers
`while with American Combustion and he described the boilers as “older” boilers. Ex. C at
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`144:9-145:2
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`21, Cleaver-Brooks™ firetube boilers of the type Mr. Chaney serviced can last up to
`fifty (50) years but have a more usual life span of twenty (20) vears. Ex. G at 49:18-50:4; 51:15-
`52:2. 52:18-539 Cleaver-Brooks' corporate representative, John Tometta, confirmed that a
`five-year-old Cleaver-Brooks firetube boiler would be a fairly young boiler. I at 53:10-533:15.
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`21 While working for American Combustion, Mr. Chaney worked on more than fifty
`(50) model CB firetube boilers which, more likely than not, would have been manufactured in
`the 1960s and the 1970s. Ex. C at 142:16-143:12; Ex. G at 55:7-56:17.
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`23, Each of the Cleaver-Brooks firetube boilers on which Mr. Chaney performed
`maintenance would have onginally been manufactured and sold wath asbestos-contaiming
`components including asbestos-containing tadpole door gaskets and asbestos-containing rope.
`fd. at 56:22-59:12.
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`24, The Model CB firetube Cleaver-Brooks boilers on which Mr. Chaney worked,
`which were manufactured in the 19605 through the mid-1970s, would have originally been sold
`with ashestos-containing Vee block mix castable insulation in the front and rear doors. Il at
`58:13-59:12.
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`25, Once he opened the door to a Cleaver-Brooks boiler, Mr, Chaney removed the
`dust and debris and scraped away the old rope and gaskets so the replacement rope and gaskets
`could be installed. Ex. © at 108:1-20. Cleaning the debris out from inside the boiler took thinty
`{30 ) to forty (40) minutes each time, Td a1 113:9-16
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`26, The gaskets were difficult for Mr. Chaney to remove because they were adhered
`to the boiler’s surface due to heat such that he always used a wire brush or scraper to ensure the
`gasket was removed completely. fd at 112:19-113:5, 117:4-12 It took him thirty (30) minutes or
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`longer each time to remove the door gaskets. fd at 117:13-21.
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`27, The rope was incorporated on the doors of the boilers, I at 115:11-21. Part of
`the rope fell loose when he opened the door to the boilers, and he had to use a wire brush or
`seraper to remove the remaining rope from the door. fo ar 116:15-117:12. The process of
`brushing and scraping to remeve the rope from the door created dust. Fd. Tt took him thirty (30)
`minutes or more to remove the rope from the boiler doors. ff. at 118:3-8.
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`28, In addition to removing gaskets and rope and cleaming out the boilers, Mr, Chaney
`assisted the journeyman in installing new gaskets and rope. Jd. at 120:7-16. To install new rope,
`they measured it then cut it with scissors or a knife. Jo. at 125:20-126:6, He cut some rope and
`witnessed others cutting rope. fd. at 126:7-16.
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`29, Every job Mr. Chaney performed on boilers involved the removal of rope and
`gaskets as descnbed above, Id. at 149:2-11
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`30, Mr. Chaney was also exposed to cracked and deteriorated Vee Block insulation
`{which he referred to as cement) inside the door of the Cleaver-Brooks boilers that required
`cement (o patch the cracks. fd, at 146:15-148:7, 14918-22 Ex. Gat 107:11-109:13.
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`(ii} Cleaver-Brooks designed its boilers to use asbestos, and specified and
`sold replacement asbestos components to be incorporated into its
`boilers during maintenance to ensure proper operation amd
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`Tunctionality.
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`31. Cleaver-Brooks manufactured several models of firetube boilers for heating and
`processing. See, Cleaver-Brooks Catalog of Packaged Boilers for Heating and Processing,
`attached hereto as Exhibit H, Cleaver-Brooks boasted that its engineering staff, “the largest and
`best qualified in the packaged boler industry, 15 continually improving its product through active
`research and developmenmt work. The Cleaver-Brooks boiler you select is designed and
`engineered 1o highest standards in the industry.” I at p. 2.
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`32. Cleaver-Brooks" manuals wvenfy its boilers incorporated wvarious asbestos-
`containing components, including asbestos rope, asbestos gaskets, asbestos insulating cement,
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`and asbestos Vee Block mix and specified the use of the same as replacement parts that Cleaver-
`Brooks would provide, See, ez, Ex. D at pp. 7-9 (Fig. 7-6) through 7-13; 8-1 through 8-2, 8-9,
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`33, Not only did Cleaver-Brooks specify and require asbesios components to be
`incorporated into its various boiler models, including the types of boilers Mr. Chaney identified
`and serviced, it also provided instruction on inspecting, removing and replacing asbestos rope,
`asbestos gaskets, asbestos cement and asbestos Vee Block mix. See, Cleaver-Brooks CBH
`Package Steam baoilers, at p. 6-7, attached hereto as Exhibit 1, Cleaver-Brooks Rear Door
`Refractory, at p. 10, attached hereto as Exhibit J, Cleaver-Brooks CB, CB-LE Packaged Boilers,
`at CB-Man-002411, attached hereto as Exhibit K.
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`34, Cleaver-Brooks' corporate witness, John Tornetta, agreed Cleaver-Brooks knew
`its boilers had to be periodically serviced; otherwise, they would not last for decades or function
`as intended without nisk of injury. Deposition of John Tomnetta (Robaey), dated November 28,
`2006, at 1526:07-1526:21, attached hereto as Exhibit L.
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`35, Specifically, Cleaver-Brooks knew that the asbestos-containing gaskets, rope and
`cement it sold in its firetube boilers needed 10 be replaced as pant of regular maintenance of those
`boilers. Ex. G at 47:16-48:7.
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`36, During the 1960s and 1970s when Cleaver-Brooks was selling asbestos-
`containing boilers with asbestos-containing rope, asbestos door gaskets and asbestos Vee-block
`mix (among other ashestos components ), Cleaver-Brooks was unaware of any suitable asbestos-
`free substitutes that would perform the same function as those asbestos component parts. fel at
`59:19-60:14
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`37. The asbestos tadpole door gaskets, of which there were 3 per boiler on the type of
`Cleaver-Brooks firetube boilers that Mr. Chaney serviced, were important to the function of the
`boiler in that they kept the hot gases inside the pressure vessel and the combustion air within the
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`chamber in which it belonged. fd at 60:16-61:21.
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`38, The asbestos Vee-block mix was cntically important to the function of the CB
`model firetube boilers on which Mr. Chaney worked because it insulated the front and rear doors
`from the hot combustion gases and prevented the door from deteriorating. fo at 61-63,
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`39 While some CB maodel firetube boilers were marketed with Vee-block mix that
`would last “indefinitely”, Cleaver-Brooks' representative, Mr. Tornetta, testified he would not
`have chosen that word and that on larger diameter boilers it would be more common to need to
`change out the Vee-block mix within a 20-year window. I at 125:18-128:22,
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`40. The asbestos-containing rope on the Cleaver-Brooks Model CB firetube boilers
`would generally have run across the batfle in the rear door. The asbestos rope served,
`importantly, to prevent gases from directly coming out of the furnace mto the third and fourth
`pass of the boiler. fd at 64:1-65:4.
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`41. According to Mr. Tomnetta, periodic maintenance of Cleaver-Brooks baoilers could
`be performed every year or every two years. Deposition of John Tometta (Cotton), dated
`December 20, 2002, at 72:16-72:22, attached hereto as Exhibit M.
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`42, As Cleaver-Brooks™ own Operation, Service and Parts manual provides:
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`Q. DOOR CLOSING AND SEALING
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`Whenever the front or rear door is opened for inspection, the
`head gaskets should be checked for hardening and brittleness.
`Doubtful gaskets should be replaced, Coat the gasket with an oil
`and graphite mixture before closing the door. Make certain that all
`gasket retaining rivels are in place. The flange of the door should
`be clean and free of any hardened cement, scale, etc.
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`Check the condition of the asbestos rope used as a baffle seal.
`Replace if necessary, IF the rope 15 1n good condition, hiberally coat
`it with an insulating pulp prior to closing. Make sure that the rope
`is properly positioned.
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`If it is necessary to replace the rope, wire brush the tube sheet
`area to remove all old sealing material, Place a new pece of 1-
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`1/27 diameter asbestos rope (853-924) on the lip of the baffle tile,
`Hold it in place with furnace cement or an adhesive !
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`43, Cleaver-Brooks has conceded it specified and sold asbestos rope and asbestos
`gaskets for its boilers into the late 1980 s,
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`Q You've actually seen invoices, because I've shown
`them to you, where Cleaver-Brooks 15 indicating
`they're selling asbestos rope into the mid to late
`1980s; right?
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`A Yes. That's what I was just talking about.*
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`Q. You've actually seen reference that Cleaver-Brooks
`was selling asbestos gaskets as replacement parts
`through the mid 1o late 19805, right?
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`A I can’t recall the exact time frame, but it wouldn't
`surprise me if we saw references to that fn the mid
`1980 or even later”
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`44, Cleaver-Brooks specifically designated in its manuals and brochures, by pan
`number, the replacement parts that a customer should order from Cleaver-Brooks or a local
`authonzed Cleaver-Brooks sales agent to replace original, worn-out matenals. Ex. G at 44:18-
`453:4; 134:20=135:5; 179 10=1T2:14.
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`45, By way of example, Cleaver-Brooks recommended in its 1976 Operation Service
`and Parts Manual for CB model firetube boilers rated between 125hp and 350hp (Ex. D) that
`customers order replacement parts including, but not limited to, asbestos tadpole gaskets, rope
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`and cement from their local Cleaver-Brooks representative. Ex. G at 44:18-45:17; 113:7-114:14;
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`Ex. D at 8-1 and 8-2; see also Ex. E atp. 2.
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`EOEx.Datpd-13
`* Ex. L at 1532:04-1532:07, 1533:03-1533.08;
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`46, Cleaver-Brooks™ representative, Mr, Tornetta, confirmed that Mr. Chaney worked
`on Cleaver-Brooks firetube boilers, Model CB, that were rated between 125hp and 350hp. Ex. G
`at 71:6-72:17.
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`47, Cleaver-Brooks recommended that its customers keep a supply of replacement
`parts on hand. /. at 114:7-114:14.
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`48, In the relevant time frame, the authonzed Cleaver-Brooks sales agent for
`Washington, D.C. was Tate Engineering. Id. at 195:22-196:7.
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`49, Certain replacement parts, such as asbestos tadpole door gaskets, were made
`specifically o0 accommodate Cleaver-Brooks firetube boilers and were manufactured with
`specific holes of different sizes located at particular locations on the gasket and were pre-
`fabricated to wathin 1/64 of an inch, The holes matched wp with existing bolts on the Cleaver-
`Brooks boiler as well as locations to attach the gaskets by a series of clips and/or split rivets, Jd
`at 135:22-137:21; see also Drawing for Cleaver-Brooks tadpole gasket, attached hereto as
`Exhibit N.
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`50. Mr. Chaney testified that the tadpole door gaskets he used came with pre-
`fabricated holes designed for the Cleaver-Brooks boilers on which he worked and that he used
`corresponding clips. Ex. C at 110:20-111:3; 122:4-122:8; Ex. G at 92:5-92:20.
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`51. Cleaver-Brooks has no evidence of anyone other than Cleaver-Brooks or its
`authorized sales agents selling customized, predrilled asbestos-containing tadpole gaskets for the
`doors of Cleaver-Brooks' firetube boilers in the 1970"s through 1982, Jd at 143:13-144:12;
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`161:1-162:14
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`(iii) Cleaver-Brooks Begins its Transition to Non-ashestos Alternative
`Components for its boilers in the 1980°s
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`52. Cleaver-Brooks® engineers had to approve of any change of asbestos-containing
`material 1o a non-asbestos substitute which might affect the function of the boiler. More
`specifically, a non-asbestos substitute material would need to be tested by Cleaver-Brooks
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`engineers for both form and function pnor to approval of any change in matenals. Ex. G at
`38:10-39:1; 157:5-15T:12;, 210:10-210:17
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`53. Cleaver-Brooks® customers relied on Cleaver-Brooks to designate matenals and
`component parts that would pernit 115 boalers to function properly. Cleaver-Brooks™ customers
`had no obligation to independently hire engineers o test whether a non-asbestos component
`might work as well as an asbestos component. fd at 42:12-43:13,
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`54, The evidence shows that, in the fall of 1980, Cleaver-Brooks™ engineers were
`engaged in a study of potential non-asbestos materials as substitutes for its asbestos gaskets. Id,
`at 202:20-205:20
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`55. On October 20, 1980, a Cleaver-Brooks engineer requested that Cleaver-Brooks
`change its asbestos tadpole gaskets to fiberglass, The reason was to remove asbestos from the
`product. Jd at 151:5-151:11; 153:1-153:3; 164:7-164:17; Exhibit O (Request for Engineering
`Change re Tadpole Gaskets). That started a process of review that ultimately resulted in two
`engineenng change notices gomg out on November 20 and December 16, 1980, 1o commence
`implementation of the change. Ex. G at 154:1-155:10; 171:10-172:8; 173:13-174:13.
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`S, Importantly, however, the change was not immediate and had no impact on
`Cleaver-Brooks’ existing inventory of ashestos tadpole gaskets, Cleaver-Brooks' personnel were
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`instructed to use the existing stock. Jd at 153:14-153:17; Ex. O.
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`5T The notice of the proposed change from asbestos tadpole gaskets to fiberglass was
`only distributed internally at Cleaver-Brooks and was not sent to the local Cleaver-Brooks sales
`agents or Cleaver-Brooks' customers. Ex. G at 178:18-179:20.
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`58, Cleaver-Brooks sales agents with existing stock of asbestos components had no
`notice of any proposed changeover to non-asbestos matenals. M at 178:22-179:8; 180:16-181:2.
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`59, Customers who followed Cleaver-Brooks™ recommendation to maintain spare
`parts at their facility would not have been aware of any changeover. Id at 179:21-180:6,
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`60. The Cleaver-Brooks part number for its firetube boiler, tadpole-style door gaskets
`was 853-394 Ex. O, Ex. G at 173:13-174.5.
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`61. While Cleaver-Brooks™ corporate designee testified that he would be surpnised if
`Cleaver-Brooks had enough existing imventory of asbestos-contaiming tadpole gaskets to last a
`vear (Ex. G at 181:4-181:13), the 1983 Cleaver-Brooks “Illustrated Parns List” shows asbestos
`tadpole gaskets for sale at part no. 853-394. Ex. E at 000700-705 (at 705).
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`62, Moreover, there is evidence that Cleaver-Brooks sold 32 asbestos tadpole gaskets
`{part no. 853-394) in January of 1984 to the Washington Mavy Yard (ie., after Mr. Chaney
`stopped working for Amenican Combustion), indicating it had not yet exhausted its inventory,
`See Exhibit P attached hereto
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`63, In 1982, when he performed the majority of his work for American Combustion,
`Mr, Chaney would have been scraping and wire brushing tadpole gaskets on the front and rear
`doors of Cleaver-Brooks firetube boilers that would most likely have been installed on the
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`bailers in 1981, or perhaps earlier. Ex. G at 118:20-119:10. Accordingly, the old tadpole gaskets
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`" Cleaver-Brooks confimeed (hat unbess Mr. Chaney had been able 1o identify, by name, specific schools or
`buildings a1 which he worked on Cleaver-Brooks boilers forty vears ¢adier, it would not be able 1 locme
`invoices elaing 1o those boilers. Ex. Gt 258-26: 10,
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`would have been installed well before the exhaustion of Cleaver-Brooks™ remaining asbestos-
`containing inventory.
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`64, On September 13, 1982, a Cleaver-Brooks engineer requested that Cleaver-
`Brooks change cerain of the ashestos rope in its firetube boilers o fiberglass. fd at 183:4-
`183:19; 187:4-187:8; Exhibit (} (Request for Engineering Change re Asbestos Rope).
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`65, The request, just as with the tadpole gaskets, noted that inventory would not be
`affected and that existing stock of asbestos rope was to be used. Ex. G at 187:18-187:21; Ex. Q.
`That request started a review process that resulted in an engineering nofice going out on
`Movember 15, 1982 notifving personnel that the change was approved. Ex. G at 188:8-188:21.
`Thereafter, on November 29, 1982 a notice was sent intemmally at Cleaver-Brooks to implement
`that change noting specifically that existing stock of inventory was to be exhausted and that
`approximately 5 months of asbestos rope stock remained on hand - fe., through May of 1983
`T at 189:10-190:4; 193:21-194:16.
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`66, The notice of the proposed change from asbestos rope 1o fiberglass was only
`distributed internally at Cleaver-Brooks and was not sent to the local Cleaver-Brooks sales
`agents or Cleaver-Brooks' customers, T at 178:18-179:20,
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`67. Any old rope that Mr, Chaney would have removed in 1982 into 1983, with
`accompanying scraping or wire-brushing activity, from Model CB, Cleaver-Brooks firetube
`boilers would have, more likely than not, been asbestos-containing because any rope he
`encountered would have been installed one to two vears prior (see § 41, supra) to Cleaver-
`Brooks ever even approving a fiberzlass substitute and certainly well before depletion of its
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`inventory of ashestos rope.
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`68, Moreover, there 15 evidence that Cleaver-Brooks continued to sell asbestos rope
`for its boilers into 1985, including to its local D.C. sales agent, Tate Engineering. Ex. G at
`281:17-282:15; Exhibit R (January 24, 1985 Cleaver-Brooks invoice), Exhibit R-1 (Cleaver-
`Brooks invoices dated 1985),
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`69, Additionally, Cleaver-Brooks continued to sell asbestos cement through its
`authonzed D.C. sales agent, Tate Engineening, through 1985, Ex. G at 285:14-286:11; Exhibit
`8 (Cleaver-Brooks invoice dated Apnl 12, 1985),
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`70, Mr. Tometta has testified previously that Cleaver-Brooks™ records reflect sales of
`ashestos rope and cements into the mid- to late *80s,
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`0 CB8, would you agree, is also a collection of
`documents which relate to invoices showing the
`sale of ashestos rope, asbestos cement and
`ordinary materials in the mid 1980s, through 1983 -
`- through September of 1988, right?
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`THE COURT: I am sorry, September. September 1980
`through September | 983
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`MR. KRAFT No, January 1983 through 13 September
`1988.
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`THE COURT: Thank you
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`MR. KRAFT: You're welcome.
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`A Yes, that's the way if's listed on the invoices.
`Cleaver Brooks was selling what it at least refers
`to in the invoices as ashestos-containing
`replacement parts for its boilers through the
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`19705 into the 1980s and even listed through the
`late 19805, correct,
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`(08 What's listed on the invoice says ashestos?
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`A Yes®
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`* Ex. L at 15357-06-13537:22; xee alvo, Invoices for asbestos rope, asbestos braided rope and ashestos
`cement being sold between Januwary 1983 and September 19, 1998 attached hercte as Ex, F.
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`71, The 1983 Cleaver-Brooks “lllustrated Paris List” specified S-pound bags of
`asbestos cement 1o be incorporated into its boilers at “Parnt No. 872-26 | Cement, Asbestos (For
`Resealing Door).”’
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`{ivl At the time of Mr. Chaney's exposures. Cleaver-Brooks knew or
`should have known of the risks rom exposure to ashestos.
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`72, Cleaver-Brooks knew by the early 1970s that inhaling asbestos dust could cause
`disease. Ex. G at 238:22-239:7 More specifically, Cleaver-Brooks knew by the early 1970s
`that asbestos exposure could cause cancer and mesothelioma. fd at 239:8-23916.
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`713 In 1979, three vears prnior to Mr. Chaney’s first work on a Cleaver-Brooks baoiler,
`Cleaver-Brooks was sued in a mesothelioma case alleging that it had failed to warn about the
`hazards of asbestos. Deposition of John Tometta (NYCAL) dated August 27, 2015, anached
`hereto as Exhibit T at 20:13-17,
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`74, Cleaver-Brooks could have placed wamings on its boilers and its replacement
`component parts regarding the hazards of asbestos, including diseases such as cancer or
`mesothelioma. Ex. G at 240:12-241:6; 242:6-242:12. Cleaver-Brooks never issued any such
`warnings. fd. at 242:13-242:20,
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`. ARGUMENT
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`A, Summary Judgment Standard
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`Summary judgment may be granted when there is no genuine issue as to any material fact
`and the moving party is entitled to judgment as a matter of law. Super. Ct. Civ. R 36{c). The
`maoving party bears the burden of proving the absence of a genuine issue of material fact. Cirany
`v. My Depi. Stores, T86 A 2d 580, 583 (D.C. 2001). In reviewing the record, the evidence is to
`be viewed in the light most favorable to the non-moving party. Weakley v. Burnham Corp., 871
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`A2d 1167, 1173 (D.C. 20058). Moreover, in reviewing the evidence, all reasonable inferences
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`Ex. E at CBLAN 000703,
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`must be drawn in the non-movant’s favor, Propp v Comferpart Jatern., 39 A 3d 856, 871
`(D.C. 2012). Summary judgment may be granted only when the moving party is entitled to
`judgment as a matter of law and it 15 “quite clear what the truth is”, Sartor v, Arkansas Neticwal
`Cras Corp,, 321 US. 620, 627, 64 5.C1, 724, 728 (1944) It is not the function of the court to
`resolve factual issues, but rather merely to determine whether any relevant factual issues exist
`frternational Underwriters, Inc, v. Boyle, 365 A.2d 779, 782 (D.C. 1976),
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`The D.C. Coun of Appeals has decided what is now the leading precedent For evaluating,
`at the summary judgment level, the viability of asbestos personal injury claims filed in this
`Court: Weakley v. Burnfuoen Cerp., 871 A2d 1167 (DC. 2005) Weakley establishes the
`following key principles. On a motion for summary judgment an asbestos victim must adduce
`evidence that demonstrates two elements of proof: first, he must offer “proof that fhe [ and e
`defendams’ products were in the same place at the same fime”” Jd at 1174 (emphasis in
`original ). However, this “standard [does not] requirfe] the plaintff to recall and specify a
`particular time and a particilar place™ where the exposure occurred. /o (emphasis in onginal),
`Second, he must “also establish that his exposure to each defendant’s product was a *substantial
`factor” contributing to his having contracted asbestosis.™ fol at 1175
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`B. Cleaver-Brooks owed Mr. Chaney a duty of reasonable care to warn him of
`the hazards of asbestos-containing components incorporated into its boilers.
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`Cleaver-Brooks contends summary judgment is appropriate in this case because there is
`no evidence Mr. Chaney was exposed to asbestos: (1) from an original component incorporated
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`into a boiler by Cleaver-Brooks, or (2) from a replacement component that Cleaver-Brooks
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`placed into the stream of commerce.” In addition, Cleaver-Brooks contends there is no evidence
`Mr. Chaney worked with any Cleaver-Brooks boiler component that contained asbestos.”
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`Cleaver-Brooks misreads the evidence of record and the law applicable to this case. lis
`argument is grounded on a legal theory frequently characterized as the “bare-metal” defense
`which finds a manufacturer is not responsible for dangers created by the maintenance of its
`product when a replacement component, manufactured by a third-party, causes injury. However,
`the “bare-metal” defense has no application where, as here, the manufacturer designed its boilers
`to use ashestos components and where it incorporated asbestos components into its boilers. And
`when maintenance was required, the manufacturer recommended and sold replacement asbestos
`components to ensure its boilers would continue to function as intended.
`
`Although the “bare metal” defense appears to be one of first impression in the District of
`Columbia, instructive and controlling authonity from Maryland’s highest Court favors this Count
`find the “bare-metal” defense does not insulate Cleaver-Brooks from liability for its failure to
`warn Mr, Chaney of the health hazards of asbestos, May v. dir & Liguid Systems Corp, 129
`A 3d 984 (Md. 2015). This autherity, and its underlying reasoning, is supported by a recent
`asbestos decision from the United States Supreme Court in dir & Liguicd Sys. Carp. v, Delries,
`139 5.Ct. 986 (2019} and the national trend that finds manufacturers can be liable for third-pany
`ashestos components that were required to be installed in equipment under the same or similar
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`circumstances found in this case,
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`Def. Mot ar %2,
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`R
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`" Under the law of this District. decisions in matters of first impression, Courts look to the common law
`of Marvliand and the decizions of its couns. See Sodid Rock Church, Diseiples of Chrise v, Friendship
`Fuh, Charter Sch., Inc., 925 A 2d 354, 561 (D, 2007 ) (citing fre re C AP, 633 A 2d TET, 790 (D.C,
`1993) (“District denves s common law from Marvland and decisions of Marvland counts on
`gquestions of common law are authontative in the absence of Disinct authony, ")),
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`For the following reasons, Cleaver-Brooks™ Motion for Summary Judgment based on the
`bare metal defense should be denied.
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`1. The May factors favor a finding that Cleaver-Brooks breached a duoty to
`warn Mr. Chaney of the hazards of the asbestos components that were
`required for its boilers to operate as intended.
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`Like Cleaver-Brooks attempts here, the manufactuning defendants in May v. dir & Liguid
`Svstems argued they could not be held hiable for their farlure to warn the plammtff about the
`hazards of exposure to asbestos from replaceable ashestos components that the defendants had
`not manufactured or sold but were nonetheless integral to the operation of their equipment. Quite
`simply, the May defendams claimed they did not owe the plaintiff a duty of care because they did
`not place the asbestos components that caused the injury into the stream of commerce '
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`The plamtift in Meay was a machimist mate in the United States Navy and was exposed (o
`asbestos on naval vessels between 1956 and 1976 when he removed and replaced gaskets and
`packing on pumps that were used in the ship's high-pressure steam system.' After being
`diagnosed with mesothelioma, he brought state law negligence and strict liability claims against
`the manufacturers of the pumps for their failure to warn.'® Like the facts of this case, it was
`undisputed that the manufacturers in May did not warn about the hazards of asbestos. " And, like
`the scrapers and wire brushes Mr. Chaney used to remove asbestos rope, gaskets and cements
`from Cleaver-Brooks boilers, the tools used by the plaintiff in May to remove asbestos gaskets
`and packing generated airborne asbestos fibers.'® Finally, the plaintiff in May, like Mr. Chaney,
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`could not establish he was exposed to asbestos components originally installed or sold by the
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`N Ay at 987.
`E
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`3 I, at UR6,
`W I ar 987
`] M
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`manufacturing defendant.'™ On these facts, the Circuit Count of Baltimore City granted summary
`judgment, and the Court of Special Appeals affirmed.'’
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`On appeal, Maryland's Court of Appeals initially noted that: “[i]f the asbestos dust that
`May inhaled was from the original gaskets and packing in the pumps sold by Respondents, this
`would be a straightforward negligent and strict liability failure to wam case” '® However, under
`the facts of the case, the Court expressed skepticism with the defendants’” argument that Ford
`Maotor Co. v. Wood