IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

NORTHERN DIVISION

VALERIE K. PRESLEY, etc., )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 11-0444-WS-N

 )

BILL VANN COMPANY, INC., et al., )

 )

Defendants. )

 ORDER

This matter is before the Court on the motion of defendant Cameron 

International Corporation (“Cameron”) for summary judgment. (Doc. 131). The 

parties have filed briefs and evidentiary materials in support of their respective 

positions, (Docs. 132, 151, 160), and the motion is ripe for resolution. After 

careful consideration, the Court concludes that the motion is due to be denied.

BACKGROUND

The plaintiff’s decedent filed suit against a slew of defendants based on his 

exposure to asbestos and resulting health problems. After several years before an 

MDL judge, the case is back before the Court, though with considerably fewer 

defendants. Cameron’s motion is based on the “bare metal defense.”

DISCUSSION

Summary judgment should be granted only if “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). The party seeking summary judgment bears “the initial 

burden to show the district court, by reference to materials on file, that there are no 

genuine issues of material fact that should be decided at trial.” Clark v. Coats & 

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Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its 

burden in either of two ways: (1) by “negating an element of the non-moving 

party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the 

party bearing the burden of proof at trial will not be able to meet that burden.” Id. 

“Even after Celotex it is never enough simply to state that the non-moving party 

cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 

1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992). 

“If the party moving for summary judgment fails to discharge the initial 

burden, then the motion must be denied and the court need not consider what, if 

any, showing the non-movant has made.” Fitzpatrick v. City of Atlanta, 2 F.3d 

1112, 1116 (11th Cir. 1993); accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 

608. 

“If, however, the movant carries the initial summary judgment burden ..., 

the responsibility then devolves upon the non-movant to show the existence of a 

genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving 

party fails to make ‘a sufficient showing on an essential element of her case with 

respect to which she has the burden of proof,’ the moving party is entitled to 

summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 

477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a 

party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may ... 

consider the fact undisputed for purposes of the motion ....”).

In deciding a motion for summary judgment, “[t]he evidence, and all 

reasonable inferences, must be viewed in the light most favorable to the 

nonmovant ....” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 

(11th Cir. 2003).

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There is no burden on the Court to identify unreferenced evidence 

supporting a party’s position.1 Accordingly, the Court limits its review to the 

exhibits, and to the specific portions of the exhibits, to which the parties have 

expressly cited. Likewise, “[t]here is no burden upon the district court to distill 

every potential argument that could be made based upon the materials before it on 

summary judgment,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 

(11th Cir. 1995), and the Court accordingly limits its review to those arguments the 

parties have expressly advanced.

The plaintiff’s decedent spent several decades in the Navy and Coast 

Guard. It is uncontroverted that his only exposure to products manufactured, sold 

or otherwise provided by the defendant’s predecessor was aboard the Coast Guard 

buoy tender Salvia from 1958 to 1960. The products at issue are two CooperBessemer engines.

The parties agree that Alabama substantive law applies. Two years ago, the 

Court performed a painstaking Erie analysis and concluded that “the Alabama 

Supreme Court would adopt the bare metal defense.” Morgan v. Bill Vann Co., 

969 F. Supp. 2d 1358, 1367 (S.D. Ala. 2013). The plaintiff (represented by the 

same counsel as in Morgan) disagrees with that conclusion but offers nothing that 

draws it into question. The bare metal defense is thus potentially applicable.

“The clear thrust of the bare metal defense is that a manufacturer cannot be 

held liable for asbestos-containing products used in conjunction with its bare metal 

[product], absent evidence that the manufacturer was part of the chain of 

distribution for those products.” Morgan, 969 F. Supp. 2d at 1369. “Under the 

 1 Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it 

may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 

F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the 

referenced portions of these [summary judgment] materials, but is not required to do 

so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and 

“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a 

massive record ....” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d 

1057, 1061 (11th Cir. 2011) (internal quotes omitted). 

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bare metal defense, [a defendant] is not liable for harm caused by, and owe[s] no 

duty to warn [a plaintiff] or anyone else concerning the hazards of, asbestoscontaining packing and gaskets that users of [its product] might install, where [the 

defendant] did not manufacture, sell or distribute such asbestos-containing 

components.” Id.

The predicate for the bare metal defense is, of course, that the defendant’s 

product contained no asbestos implanted by the defendant when the plaintiff 

encountered it. The defendant has failed to demonstrate the absence of a genuine 

issue of material fact as to this threshold issue. That is, the defendant has neither

negated the presence of asbestos in its original product2 nor pointed to anything in 

the record that shows the plaintiff will be unable at trial to offer evidence that the 

original engines contained asbestos that was still there in 1958. 

The defendant relies on its understanding that, in his deposition, the 

plaintiff’s decedent “did not testify that the engine’s [sic] themselves contained 

asbestos, but rather, Kite believed that the external insulation or blankets placed on 

the engines, as well as replacement gaskets and packing, contained asbestos.” 

(Doc. 132 at 5 (emphasis in original)). He did not, however, testify that the 

gaskets containing asbestos were (or were exclusively) replacement gaskets; 

indeed, he did not use the word “replacement” at all. Instead, he testified that “the 

gaskets and things that they used was asbestos gaskets.” (Doc. 132-3 at 2).3 

Because the plaintiff’s decedent did not testify that the original gaskets contained 

no asbestos, and because he did not limit his asbestos exposure to replacement 

 2 The defendant has not, for example, offered an affidavit from a knowledgeable 

corporate representative that completed Cooper-Bessemer engines of the type and vintage 

present on the Salvia did not include any asbestos-containing components. The 

defendant’s ipse dixit that “it is undisputed that the Cooper-Bessemer engine itself was 

not made of asbestos,” (Doc. 132 at 4), does not substitute for record evidence.

3 The defendant concedes that these gaskets were part of the engines’ exhaust 

system. (Doc. 132 at 13). There were also head gaskets. (Doc. 151 at 14).

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gaskets, the defendant has failed to show that the plaintiff cannot prove exposure 

to asbestos present in the original engines. 

Although the plaintiff has dodged this bullet, she should not derive undue 

comfort from her escape. While the initial burden on this motion lies with the 

defendant, at trial the plaintiff will bear the burden of producing evidence that her 

decedent was exposed to asbestos original to the Cooper-Bessemer engines.

CONCLUSION

For the reasons set forth above, Cameron’s motion for summary judgment 

is denied.

DONE and ORDERED this 4th day of August, 2015.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

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