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In Re: Hawaii State Asbestos v. Crane Company

September 26, 2011

IN RE: HAWAII STATE ASBESTOS
ROGER E. NELSON AND ROSALIE J. NELSON, PLAINTIFFS,
v.
CRANE COMPANY, ETC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER GRANTING DEFENDANT'S MOTION TO STAY ALL PROCEEDINGS PENDING A DECISION ON TRANSFER BY THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

Before the Court are: Plaintiffs Roger E. Nelson and Rosalie J. Nelson's ("Plaintiffs") Motion to Remand, filed June 30, 2011 (dkt. no. 9); and the Motion to Stay All Proceedings Pending a Decision on Transfer by the Judicial Panel on Multidistrict Litigation ("Motion to Stay"), filed by Defendant Air & Liquid Systems Corporation, successor-by-merger to Buffalo Pumps, Inc. ("Buffalo"), on July 13, 2011 (dkt. no. 58). On August 8, 2011, Buffalo and Defendant Crane Company ("Crane") each filed a memorandum in opposition to the Motion to Remand (dkt. nos. 79, 81). Plaintiffs filed their reply on August 15, 2011 (dkt. no. 85). Plaintiffs filed their memorandum in opposition to the Motion to Stay on August 8, 2011 (dkt. no.78), and Buffalo filed its reply on August 15, 2011 (dkt. no. 84).*fn1

These matters came on for hearing on August 29, 2011. Appearing on behalf of Plaintiffs were Gary Galiher, Esq., L. Richard DeRobertis, Esq., Diane Ono, Esq., Ilana Waxman, Esq., Todd Eddins, Esq., Michael Ragsdale, Esq., Scott Saiki, Esq., and Clarisse Kobashigawa, Esq. Appearing on behalf of Buffalo were Steven Hisaka, Esq., and James Scadden, Esq. Appearing on behalf of Crane were Lee Nakamura, Esq., and Joseph Kotowski, III, Esq. Appearing on behalf of Ingersoll were John Lacy, Esq., and Corlis Chang, Esq. Appearing on behalf of Goulds was Christopher Goodwin, Esq.*fn2 After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, Buffalo's Motion to Stay is HEREBY GRANTED for the reasons set forth below, and the case, including Plaintiffs' Motion for Remand is HEREBY STAYED until November 8, 2011.

BACKGROUND

Plaintiffs filed their Complaint on May 17, 2011 in the Circuit Court of the First Circuit, State of Hawai`i ("the State Court"). The case was identified as Nelson v. Crane Co., et al., Civil No. 11-1-0998-05 (RAN) ("Nelson").

The Complaint states that Roger Nelson served in the United States Navy ("Navy") from approximately 1960 to 1968 "aboard the following ships: USS Mansfield (DD-728) [("Mansfield")], which was in Pearl Harbor Naval Shipyard during the times [he] was on board, and USS Cockrell (DD-366) [("Cockrell")] which was homeported at Pearl Harbor in 1962." [Complaint at ¶ 6.] Rosalie Nelson is his wife. [Id. at ¶ 1.]

The Complaint identified the following defendants: Crane, Aurora, Bayer, Union, Buffalo, Defendant Certainteed Corporation ("Certainteed"), Cleaver-Brooks, Goulds, IMO, Ingersoll, John Crane, Lynch, Met Life, Warren Pumps, William Powell, Kaiser Gypsum, Kelly-Moore, and Georgia-Pacific (all collectively "Defendants").

The Complaint alleges that, inter alia, Bayer, Union, Certainteed, John Crane, Lynch, Kaiser Gypsum, Kelly-Moore, and Georgia-Pacific (collectively "General Supplier Defendants") manufactured, sold and/or supplied certain generically similar asbestos products which were ultimately used by insulators and others, and/or to which they came in contact, while working in their trades and occupations in the State of Hawai`i and other locations. . . . [They] also manufactured, sold and/or supplied certain generically similar asbestos products to Pearl Harbor Naval Shipyard and other shipyards and ships for use in the general overhaul, building, refitting and maintenance of ships. [Id. at ¶ 5.]

The Complaint also alleges that Crane, Aurora, Buffalo, Cleaver-Brooks, Goulds, IMO, Ingersoll, Met Life, Warren, and William Powell (collectively "Navy Contractor Defendants") sold and supplied certain equipment to the United States Navy and Pearl Harbor Naval Shipyard and other shipyards, which contained asbestos gaskets and/or packing, required asbestos insulation, or required other asbestos containing parts to function properly; and also sold replacement component parts for their equipment, including asbestos gaskets and packing which were identical to their commercial counterparts. [Id.]

Plaintiffs allege that Roger Nelson "was repeatedly exposed to great quantities of asbestos from Defendants' asbestos-containing products and equipment" when he worked on the Mansfield and the Cockrell. [Id. at ¶ 6.] Plaintiffs also allege that he "was repeatedly exposed to asbestos from Defendant's (sic) asbestos drywall products", including asbestos containing joint compound, from approximately 1956 to 1978 while performing home repair work at his homes in California and Virginia. [Id.] During all of these times, Roger Nelson allegedly inhaled asbestos dust and fibers from Defendants' products. Plaintiffs claim that this exposure directly and proximately caused him to develop "malignant mesothelioma and other asbestos-related diseases and injuries to his lungs, chest cavity, cardiovascular system and other parts of his body[.]" [Id.] Plaintiffs did not discover his conditions until about March 2011. [Id.]

The Complaint alleges the following claims:

1) negligence ("Count I");*fn3

2) strict liability ("Count II");*fn4

3) breach of express and implied warranty against the General Supplier Defendants ("Count III");

4) a claim against the General Supplier Defendants alleging liability for Roger Nelson's injuries in proportion to each of their shares of the asbestos materials market ("Count IV");

5) a claim against the General Supplier Defendants alleging liability based on a theory of industry-wide or enterprise liability ("Count V");

6) a claim against the General Supplier Defendants alleging that they intentionally caused Roger Nelson's injuries by knowingly delivering products in an unsafe and defective condition ("Count VI");

7) loss of consortium by Rosalie Nelson ("Count VII");

8) a claim that Met Life conspired to conceal information about the hazards that asbestos posed to workers and bystanders in the industry ("Count VIII");*fn5 and

9) a claim for punitive damages because Defendants, as early as 1929, possessed medical and scientific data indicating that asbestos and asbestos-containing products were hazardous to the health of Roger Nelson and others in similar positions, but they ignored and disregarded this data ("Count IX").

Plaintiffs seek: general, special, and punitive damages; costs incurred; prejudgment interest; and any other appropriate relief. [Id. at pg. 15.]

I. Removal

On June 22, 2011, Buffalo filed its Notice of Removal of Civil Action Under 28 U.S.C. Sections 1442 and 1446 ("Notice of Removal").*fn6 [Dkt. no. 1.] Buffalo asserted that § 1442 applies because the instant case involves a person, Buffalo, acting under the authority of either a United States officer or agency. [Notice of Removal at ¶ 1 (citation omitted).] Buffalo also claims that any equipment that it manufactured for the Navy to be used aboard Navy vessels or in Navy shipyards "was manufactured under the direction and control of a federal officer." [Id. at ¶ 6 (citing Exh. 2 (Decl. of Ret. Adm. Roger Horne); Exh. 3 (Aff. of Martin Kraft)).] Buffalo claims that it manufactured and designed equipment for the Navy according to the Navy's detailed specifications and that the Navy enforced those specifications and exerted close control over all design specifications, including equipment warnings. [Id.]

Also on June 22, 2011, Buffalo filed its Notice of Tag-Along Action.*fn7 [Dkt. no. 5.] It notifies the Court that the case is a potential "tag-along action" subject to transfer to the United States District Court for the Eastern District of Pennsylvania ("MDL Court") pursuant to 28 U.S.C. ยง 1407 under a July ...


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