On April 02, 2013 a
Motion,Ex Parte
was filed
involving a dispute between
Cumbie, Duane,
Cumbie, Mitchell Duane,
and
Ameron International Corporation,
Bechtel Construction Company,
Bechtel Group Inc,
Bechtel Power Corporation,
Bp Amoco Chemical Company,
Conocophillips Company F K A Phillips Petroleum Company Individually,
Dow Chemical Company,
Exxon Mobil Corporation,
Fluor Constructors International Inc,
Fluor Corporation,
Fluor Daniel Maintenance Services Inc (Individually And As Successor-,
Fluor Daniel Services Corporation (Individually And As Successor-In-,
Fluor Daniel Williams Brothers (Individually And As Successor-In-,
Fluor Enterprises Inc F K A Fluor Daniel Inc (Individually And,
Fluor Enterprises Inc F K A Fluor Daniels Inc (Individually And,
Fluor Holding Company Llc (Individually And Incorrectly Sued As,
Fluor Holding Company Llc Individually And Incorrectly Sued As,
Fluor Maintenance Inc Incorrectly Sued As Fluor Daniel Williams,
Fluor Texas Inc (Individually And Incorrectly Sued As Successor-In-,
Guard-Line Inc,
Lgs Technologies Lp (Individually And As Successor-In-Interest To,
Pharmacia Corporation F K A Monsanto Company,
Riley Power Inc (F K A Babcock Borsig Power, Inc., F K A D. B. Riley,
Standard Oil Corporation,
The Dow Chemical Company,
Union Carbide Chemicals And Plastics Inc,
Union Carbide Corporation D B A Union Carbide Chemicals And Plastics,
United States Steel Corporation F K A United States Steel Llc,
for MDL - Asbestosis
in the District Court of Harris County.
Preview
-
84 ORIGINAL
PRE-TRIAL JUDGE
oe
Se.
BEFORE THE ASBESTOS MDL YX, Ws
a
CAUSE NO. 2013-19399-ASB
.
Ve
DUANE CUMBIE § IN THE DISTRICT court § Na
HARRIS COUNTY, TEXAS
ZE Ze
VS. § ms we EX
§ VOueR Zz
AMERON INTERNATIONAL §
CORPORATION, et al § 11™ JUDICIAL DISTRICT
Transferred From
CAUSE NO. 13-02987-D
DUANE CUMBIE § IN THE DISTRICT COURT
VS. § DALLAS COUNTY, TEXAS
§
AMERON INTERNATIONAL §
CORPORATION, et al § 95 JUDICIAL DISTRICT
DEFENDANT AMERON INTERNATIONAL CORPORPORATION’S
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant, Ameron International Corporation, (hereinafter referred to as
"Defendant" or “Ameron”) and files this its Motion for Summary Judgment and in support
thereof would show unto the Court as follows:
I
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
This is an asbestos exposure case filed on March 14, 2013, wherein Plaintiff Duane
Cumbie (hereinafter referred to as “Plaintiff’) alleges that he contracted an asbestos-related
disease through the course and scope of his employment with various companies. In the Petition,
Plaintiff alleges that each Defendant is liable in negligence, strict products liability and gross
negligence. This case is currently set for trial on October 21, 2013.
AMERON’S MOTION FOR SUMMARY JUDGMENT Page |
Plaintiff has had ample time to conduct discovery and produce evidence. Nevertheless,
Plaintiff has not provided any evidence to substantiate a claim against Ameron. In addition,
Plaintiff has failed to produce any evidence that he either worked with or around any Ameron
asbestos-containing product at any of the locations at which he was employed. In fact, the
summary judgment evidence establishes that Mr. Cumbie was not exposed to an Ameron
asbestos-containing product during the time period in which he alleges. Accordingly, Plaintiff's
claim against Ameron must fail.
Il.
SUMMARY JUDGMENT EVIDENCE
The pleadings on file in the above numbered and styled cause, and the arguments and
authorities in this motion for summary judgment, conclusively establish that the applicable state
law bars all claims of Plaintiff against Defendant Ameron. Defendant relies on and presents the
following evidence, filed contemporaneously with this motion, which is competent to negate one
or more of the essential elements of each of Plaintiff's causes of action:
Exhibit A: Deposition Transcript of Duane Cumbie.
Exhibit B: Affidavit of Ralph Friedrich.
Til.
PLAINTIFF WAS NEVER EXPOSED TO A AMERON
ASBESTOS-CONTAINING PRODUCT
All of the product identification testimony of the alleged exposure to Ameron products
comes from Mr. Cumbie himself. Mr. Cumbie was deposed over several days regarding his
work history, exposure history and product identification. See Exhibit A. Mr. Cumbie testified
that in the late 1960s, while working at Dow in Plant B, he worked with Bondstrand pipe.! See
Exhibit A, p.17, lines 3-6; p.22, line 23 to p.23, line 3; p.269, lines 6-14. He testified that he
" Bondstrand was the trade name of the pipe manufactured by Ameron. See Exhibit B.
AMERON’S. TION FOR SUMMARY JUDGMENT Page 2
fabricated pipe in a shop for approximately 6 months. He described the pipe as red thread and
>
green thread. When asked the color of the pipe, Mr. Cumbie provided the following description:
Q. What color was the Bondstrand pipe?
A. Well, we had red thread and green thread. Beyond that, I didn't know a
whole lot about it.
Q. The overall color, though.
A. Probably darkish green-brown colors.
See id. p.25, line 22 to p.26, line 1.
JK
Q. When you talked about the pipe being red thread and green thread, can you
tell me what you mean by that?
A. Well, it had a spiral -- looked like wire running through there. And you
could either tell it was either red or it was green. Now, I'm assuming they
were used for
different services.
Q. Okay. And when you talk about a spiral running through the pipe, are you
talking about the outside of the pipe?
A. You--no. The coating on it. It was kind of built into the coating.
Q. So, if you were looking at one of those pieces of pipe on the outside and
holding it, you could see either a red thread or a green thread?
A. Yes.
Q. Okay. And were you able to connect a red-thread pipe to a green-thread
pipe?
A. We wasn't told to do so.
Q. Okay. So, did you only connect green thread to green thread?
A. Yes, sir.
Q. Okay. And you had indicated earlier that the pipe itself, along with this green
thread and red thread, throughout the outside was a -- a dark green or brown
color?
A. Well, it was a darkish color.
Q. Okay. It was light enough that you could see the other colors of green and red,
though?
A. Yeah. You could see the green thread and red thread in it.
See id., p.270, line 270 to p.271, line 5.
Mr. Cumbie described these pipes as being made of fiberglass. See id., p.273, lines 4-11.
He also did not recall any names or other writing on the pipe. See id. p.280, lines 15-19. He did
not recall seeing the name “Bondstrand” written on any of this piping. See id., p.286, lines 11-
AMERON’S MOTION FOR SUMMARY JUDGMENT Page 3
13, The red thread and green thread pipes were the only pipes he used on this project at Dow.
See id. p.271, lines 12-15. Mr. Cumbie does not associate any other type of pipe with
Bondstrand other than these red thread and green thread pipes. See id., p.286, lines 17-19. Mr.
Cumbie testified this was the only time in his career that he ever worked with any pipes that he
associated with Bondstrand. See id., p.23, lines 5-11.
Despite Mr. Cumbie’s testimony, the red thread and green thread containing pipes he
worked with at Dow were not Bondstrand pipes. See Exhibit B, Affidavit of Ralph Friedrich.
Mr. Friedrich was employed by Ameron from 1971 until December 2011. See id. Mr. Friedrich
held a number of positions at Ameron including: director of engineering; director of engineering
and fabrication division; supervising engineer; senior engineer; junior engineer; and staff
engineer. See id. He was also was Senior Vice-President — Technology from January of 2007
until his retirement in December 2011. See id. Mr. Friedrich is familiar with the Bondstrand
pipes manufactured by Ameron. See id. During Mr. Friedrich’s period of employment
Bondstrand pipe was either gray or black in color and in certain years before the coloring was
added to the resin, the Bondstrand pipe was the color of the resin material itself - amber. See id.
Bondstrand pipe never contained red or green thread. Bondstrand pipe was also never a
dark green-brown color See id. Rather, Red Thread and Green Thread were trademarks for
piping manufactured by another company. See id. Furthermore, Ameron manufactured both
asbestos and non-asbestos pipe during the relevant time period — the late 1960s. See Exhibit B.
See id. There is no summary judgment evidence that the red thread and green thread containing
pipe that Mr. Cumbie associated with Bondstrand actually contained asbestos. More
importantly, even if for the sake of argument only, the Court assumes the pipe Mr. Cumbie
AMERON’S MOTION FOR SUMMARY JUDGMENT Page 4
describes was Bondstrand, there is no evidence that it was a series of Bondstrand which
contained asbestos.
Despite his assertion that the pipe he was working with was Bondstrand, Mr. Cumbie’s
description of the pipe does not match that of a Bondstrand product. Also, there is no evidence
to support the conclusion that the pipe Mr. Cumbie associates with Bondstrand contained
sbestos.
Mr. Cumbie’s description of fabricating the pipe is not consistent with Bondstrand. Mr.
Cumbie testified that he used a mandrel with a cutter blade to shave the glaze off of the outside
of the pipe and make tapered ends. See Exhibit A, p.28, line 9 to p.29, line 1; p.274, line 7 to
p.275, line 5; p.281, line 22 to p. 282, line 19. Mr. Cumbie clearly described tapering the ends of
the pipe he associated with Bondstrand, but Bondstrand did not have tapered ends. A “cutter
blade” is consistent with the equipment which was used to fabricate Red Thread and Green
Thread pipe, but not Bondstrand. Bondstrand pipe did not have tapered ends and required a
single point cutting tool. See Exhibit B, Affidavit of Ralph Friedrich. Moreover, Mr. Cumbie did
not recall seeing a manufacturer’s name on the Red Thread or Green Thread pipe, and testified
that he was told it was Bondstrand. See Exhibit A, p.280, lines 15-19; p.286, lines 1-13.
However, each piece of Bondstrand pipe was labeled or stenciled with the name “Bondstrand.”
See Exhibit B, Affidavit of Ralph Friedrich.
The summary judgment evidence establishes that Mr. Cumbie did not work with any
Bondstrand pipe. Furthermore, there is no evidence that the pipe that Plaintiff associates with
the name Bondstrand contained asbestos. Plaintiff has the burden of proving that he worked with
Bondstrand pipe and that the pipe contained asbestos. There is no evidence in this record
AMERON’S MOTION FOR SUMMARY JUDGMEN Page 5
sufficient to create a genuine issue of material fact on this issue. Accordingly, Ameron is
entitled to summary judgment.
Iv.
PRAYER
Defendant Ameron prays that this motion be granted, that the Court render summary
judgment that Plaintiff take nothing by his claims against Ameron, and that Ameron have all
other relief to which it may show itself entitled.
Respectfully submitted,
BAILEY CROWE KUGLER & ARNOLD LLP
6550 Bank of America Plaza
901 Main Street
Dallas, Texas 75202
214/231-0555 — Telephone
214/231-0556 — Facsimile
By
ELEIS KU!
State Bar No. 06571020
TROY D. HELLING
State Bar No. 24007340
COUNSEL FOR DEFENDANT AMERON
INTERNATIONAL CORPORATION
AMERON’S MOTION FOR SUMMARY JUDGMENT Page 6
CERTIFICATE OF SERVICE
A true and correct copy of the above and foregoing has been served upon Plaintiff's
Counsel, via LexisNexis, and to All Known Counsel of Record, via LexisNexis, on [3 Gay of
August, 2013.
TROY D. HELLING
Lf ‘7
17313390v1
.MERON’S MOTION FOR SUMMARY JUDGMEN’ Page 7
Preview
- 84 ORIGINAL PRE-TRIAL JUDGE oe Se. BEFORE THE ASBESTOS MDL YX, Ws a CAUSE NO. 2013-19399-ASB . Ve DUANE CUMBIE § IN THE DISTRICT court § Na HARRIS COUNTY, TEXAS ZE Ze VS. § ms we EX § VOueR Zz AMERON INTERNATIONAL § CORPORATION, et al § 11™ JUDICIAL DISTRICT Transferred From CAUSE NO. 13-02987-D DUANE CUMBIE § IN THE DISTRICT COURT VS. § DALLAS COUNTY, TEXAS § AMERON INTERNATIONAL § CORPORATION, et al § 95 JUDICIAL DISTRICT DEFENDANT AMERON INTERNATIONAL CORPORPORATION’S MOTION FOR SUMMARY JUDGMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Defendant, Ameron International Corporation, (hereinafter referred to as "Defendant" or “Ameron”) and files this its Motion for Summary Judgment and in support thereof would show unto the Court as follows: I PROCEDURAL HISTORY AND FACTUAL BACKGROUND This is an asbestos exposure case filed on March 14, 2013, wherein Plaintiff Duane Cumbie (hereinafter referred to as “Plaintiff’) alleges that he contracted an asbestos-related disease through the course and scope of his employment with various companies. In the Petition, Plaintiff alleges that each Defendant is liable in negligence, strict products liability and gross negligence. This case is currently set for trial on October 21, 2013. AMERON’S MOTION FOR SUMMARY JUDGMENT Page | Plaintiff has had ample time to conduct discovery and produce evidence. Nevertheless, Plaintiff has not provided any evidence to substantiate a claim against Ameron. In addition, Plaintiff has failed to produce any evidence that he either worked with or around any Ameron asbestos-containing product at any of the locations at which he was employed. In fact, the summary judgment evidence establishes that Mr. Cumbie was not exposed to an Ameron asbestos-containing product during the time period in which he alleges. Accordingly, Plaintiff's claim against Ameron must fail. Il. SUMMARY JUDGMENT EVIDENCE The pleadings on file in the above numbered and styled cause, and the arguments and authorities in this motion for summary judgment, conclusively establish that the applicable state law bars all claims of Plaintiff against Defendant Ameron. Defendant relies on and presents the following evidence, filed contemporaneously with this motion, which is competent to negate one or more of the essential elements of each of Plaintiff's causes of action: Exhibit A: Deposition Transcript of Duane Cumbie. Exhibit B: Affidavit of Ralph Friedrich. Til. PLAINTIFF WAS NEVER EXPOSED TO A AMERON ASBESTOS-CONTAINING PRODUCT All of the product identification testimony of the alleged exposure to Ameron products comes from Mr. Cumbie himself. Mr. Cumbie was deposed over several days regarding his work history, exposure history and product identification. See Exhibit A. Mr. Cumbie testified that in the late 1960s, while working at Dow in Plant B, he worked with Bondstrand pipe.! See Exhibit A, p.17, lines 3-6; p.22, line 23 to p.23, line 3; p.269, lines 6-14. He testified that he " Bondstrand was the trade name of the pipe manufactured by Ameron. See Exhibit B. AMERON’S. TION FOR SUMMARY JUDGMENT Page 2 fabricated pipe in a shop for approximately 6 months. He described the pipe as red thread and > green thread. When asked the color of the pipe, Mr. Cumbie provided the following description: Q. What color was the Bondstrand pipe? A. Well, we had red thread and green thread. Beyond that, I didn't know a whole lot about it. Q. The overall color, though. A. Probably darkish green-brown colors. See id. p.25, line 22 to p.26, line 1. JK Q. When you talked about the pipe being red thread and green thread, can you tell me what you mean by that? A. Well, it had a spiral -- looked like wire running through there. And you could either tell it was either red or it was green. Now, I'm assuming they were used for different services. Q. Okay. And when you talk about a spiral running through the pipe, are you talking about the outside of the pipe? A. You--no. The coating on it. It was kind of built into the coating. Q. So, if you were looking at one of those pieces of pipe on the outside and holding it, you could see either a red thread or a green thread? A. Yes. Q. Okay. And were you able to connect a red-thread pipe to a green-thread pipe? A. We wasn't told to do so. Q. Okay. So, did you only connect green thread to green thread? A. Yes, sir. Q. Okay. And you had indicated earlier that the pipe itself, along with this green thread and red thread, throughout the outside was a -- a dark green or brown color? A. Well, it was a darkish color. Q. Okay. It was light enough that you could see the other colors of green and red, though? A. Yeah. You could see the green thread and red thread in it. See id., p.270, line 270 to p.271, line 5. Mr. Cumbie described these pipes as being made of fiberglass. See id., p.273, lines 4-11. He also did not recall any names or other writing on the pipe. See id. p.280, lines 15-19. He did not recall seeing the name “Bondstrand” written on any of this piping. See id., p.286, lines 11- AMERON’S MOTION FOR SUMMARY JUDGMENT Page 3 13, The red thread and green thread pipes were the only pipes he used on this project at Dow. See id. p.271, lines 12-15. Mr. Cumbie does not associate any other type of pipe with Bondstrand other than these red thread and green thread pipes. See id., p.286, lines 17-19. Mr. Cumbie testified this was the only time in his career that he ever worked with any pipes that he associated with Bondstrand. See id., p.23, lines 5-11. Despite Mr. Cumbie’s testimony, the red thread and green thread containing pipes he worked with at Dow were not Bondstrand pipes. See Exhibit B, Affidavit of Ralph Friedrich. Mr. Friedrich was employed by Ameron from 1971 until December 2011. See id. Mr. Friedrich held a number of positions at Ameron including: director of engineering; director of engineering and fabrication division; supervising engineer; senior engineer; junior engineer; and staff engineer. See id. He was also was Senior Vice-President — Technology from January of 2007 until his retirement in December 2011. See id. Mr. Friedrich is familiar with the Bondstrand pipes manufactured by Ameron. See id. During Mr. Friedrich’s period of employment Bondstrand pipe was either gray or black in color and in certain years before the coloring was added to the resin, the Bondstrand pipe was the color of the resin material itself - amber. See id. Bondstrand pipe never contained red or green thread. Bondstrand pipe was also never a dark green-brown color See id. Rather, Red Thread and Green Thread were trademarks for piping manufactured by another company. See id. Furthermore, Ameron manufactured both asbestos and non-asbestos pipe during the relevant time period — the late 1960s. See Exhibit B. See id. There is no summary judgment evidence that the red thread and green thread containing pipe that Mr. Cumbie associated with Bondstrand actually contained asbestos. More importantly, even if for the sake of argument only, the Court assumes the pipe Mr. Cumbie AMERON’S MOTION FOR SUMMARY JUDGMENT Page 4 describes was Bondstrand, there is no evidence that it was a series of Bondstrand which contained asbestos. Despite his assertion that the pipe he was working with was Bondstrand, Mr. Cumbie’s description of the pipe does not match that of a Bondstrand product. Also, there is no evidence to support the conclusion that the pipe Mr. Cumbie associates with Bondstrand contained sbestos. Mr. Cumbie’s description of fabricating the pipe is not consistent with Bondstrand. Mr. Cumbie testified that he used a mandrel with a cutter blade to shave the glaze off of the outside of the pipe and make tapered ends. See Exhibit A, p.28, line 9 to p.29, line 1; p.274, line 7 to p.275, line 5; p.281, line 22 to p. 282, line 19. Mr. Cumbie clearly described tapering the ends of the pipe he associated with Bondstrand, but Bondstrand did not have tapered ends. A “cutter blade” is consistent with the equipment which was used to fabricate Red Thread and Green Thread pipe, but not Bondstrand. Bondstrand pipe did not have tapered ends and required a single point cutting tool. See Exhibit B, Affidavit of Ralph Friedrich. Moreover, Mr. Cumbie did not recall seeing a manufacturer’s name on the Red Thread or Green Thread pipe, and testified that he was told it was Bondstrand. See Exhibit A, p.280, lines 15-19; p.286, lines 1-13. However, each piece of Bondstrand pipe was labeled or stenciled with the name “Bondstrand.” See Exhibit B, Affidavit of Ralph Friedrich. The summary judgment evidence establishes that Mr. Cumbie did not work with any Bondstrand pipe. Furthermore, there is no evidence that the pipe that Plaintiff associates with the name Bondstrand contained asbestos. Plaintiff has the burden of proving that he worked with Bondstrand pipe and that the pipe contained asbestos. There is no evidence in this record AMERON’S MOTION FOR SUMMARY JUDGMEN Page 5 sufficient to create a genuine issue of material fact on this issue. Accordingly, Ameron is entitled to summary judgment. Iv. PRAYER Defendant Ameron prays that this motion be granted, that the Court render summary judgment that Plaintiff take nothing by his claims against Ameron, and that Ameron have all other relief to which it may show itself entitled. Respectfully submitted, BAILEY CROWE KUGLER & ARNOLD LLP 6550 Bank of America Plaza 901 Main Street Dallas, Texas 75202 214/231-0555 — Telephone 214/231-0556 — Facsimile By ELEIS KU! State Bar No. 06571020 TROY D. HELLING State Bar No. 24007340 COUNSEL FOR DEFENDANT AMERON INTERNATIONAL CORPORATION AMERON’S MOTION FOR SUMMARY JUDGMENT Page 6 CERTIFICATE OF SERVICE A true and correct copy of the above and foregoing has been served upon Plaintiff's Counsel, via LexisNexis, and to All Known Counsel of Record, via LexisNexis, on [3 Gay of August, 2013. TROY D. HELLING Lf ‘7 17313390v1 .MERON’S MOTION FOR SUMMARY JUDGMEN’ Page 7