By Joshua Frumkin, J.D.
Manufacturers have a duty to warn consumers, including the Navy, of dangers posed by any integrated components of their machinery.
In a suit over a naval worker's death from mesothelioma allegedly caused by asbestos exposure, the District Court of New Jersey denied two manufacturers' motions for summary judgment. The court ruled in a decision designated as not for publication that the manufacturers had a duty to warn of dangers posed by parts containing asbestos, even if the U.S. Navy specifically requested or affirmed that those parts should contain asbestos (Hammell v. Air & Liquid Systems Corp., August 31, 2020, Shipp, M.).
From April 1962 through September of 1964, a naval worker maintained the boilers, valves, pumps, and other equipment in the forward fire room of the U.S.S. Charles G. Roan (the Roan). Four forced draft blowers (FDBs) were manufactured by CBS Corporation (Westing house) and installed in the Roan's forward fire room. The fire room had little to no ventilation. The FDBs were constructed with gaskets containing asbestos either with Navy approval or per direct Navy instruction.
When the asbestos-containing gaskets needed replacement, the Navy replaced them with other gaskets also containing asbestos according to the FDB original design drawings. There is no evidence that Westing house manufactured or supplied any replacement gaskets. Additionally, two boilers manufactured by Foster Wheeler Energy Corporation (Foster Wheeler) also were installed on the Roan. These boilers were exact duplicates of an earlier design which the Navy previously oversaw, reviewed, and approved. The boilers also included parts containing asbestos, such as gaskets and insulation, requiring periodic replacement with comparable parts.
There was no evidence that Foster Wheeler manufactured or supplied replacement asbestos-containing parts for the boilers. There were asbestos-free alternative parts available for both the FDBs and boilers, but the Navy opted to continue using asbestos until the late 1960s and mid-1970s. The naval worker's duties included replacing those asbestos-containing parts, which produced asbestos-containing dust. Installation of other parts also produced asbestos-containing dust. Subsequently, the naval worker was diagnosed with mesothelioma and ultimately died.
Prior knowledge of hazards. The Navy knew of some hazards caused by asbestos as early as 1922, but in relying on a 1946 study, the Navy did not realize the dangers from asbestos in shipyard applications until as late as 1964. Even then, that knowledge was limited to asbestosis and not to cancer. The Navy asserted that the asbestos-containing gaskets did not pose a significant health hazard as late as 1978. However, the medical community knew that asbestos dust caused asbestosis by the 1930s, that it caused cancer by the 1940s, and that it caused mesothelioma by the 1960s. Westing house specifically knew that asbestos was harmful in the early 1940s.
Both manufacturers failed to warn. Following recent U.S. Supreme Court precedent concerning maritime torts (Air & Liquid Systems Corp. v. DeVries, 139 S. Ct. 986 (2019) [see Products Liability Law Daily’s March 20, 2019 analysis]), a manufacturer has a duty to warn when: (1) its products require the incorporation of a part that makes the integrated product dangerous during regular use; (2) the manufacturer knows or has reason to know of this danger; and (3) the manufacturer has no reason to believe that the products’ users will realize that danger. Specifically, the integrated part at issue must be required for the product to function as intended: either the manufacturer directed that the part be integrated or knew that the product will require replacement with a similar part, or that the product will be useless without that part.
The court identified disputes of material fact for all three elements of the DeVries test thereby precluding summary judgment for both manufacturers. First, there was a dispute over whether the manufacturers required incorporation of asbestos-containing parts. There was evidence that the products required those parts, but there was a dispute over whether the manufacturers or the Navy originally specified incorporation of the parts into the product designs at issue. Although the manufacturers asserted that the asbestos-containing gaskets were not strictly required, but were only optimal, the court was not swayed. The Supreme Court previously held that asbestos-containing parts are considered "required" under DeVries where it was an "economic necessity" to include the asbestos, even if alternatives existed.
Secondly, the court found a dispute of material fact concerning whether the manufacturers knew or should have known that their products were dangerous in their intended uses due to their asbestos-containing parts. The court rejected the manufacturers’ argument that the worker’s represent ativeneeded to show that the FDBs and boilers were dangerous, not merely that the asbestos parts were dangerous, because the manufacturers knew that asbestos was dangerous, that the FDBs and boilers required routine replacement of asbestos-containing parts, and that replacement would release dangerous asbestos dust.
Finally, the court found a dispute of material fact over whether the manufacturers had reason to believe that the Navy would realize the danger—the manufacturers even conceded that while the Navy believed that asbestos-containing gaskets presented no health hazard, they knew better. As such, the court found that both manufacturers failed to establish entitlement to summary judgment as a matter of law.
Asbestos was a substantial factor in causation. In addition, the court rejected Foster Wheeler's argument that its failure to warn was not the proximate cause of the worker’s injuries because he had ignored warnings and engaged in other harmful conduct, such as smoking. Under maritime law, a manufacturer's negligence must have been a substantial factor in causing the injury—namely, that there was sufficient exposure to asbestos that the inference of its causation was more than mere conjecture. Due to the undisputed facts in the record documenting the worker's significant exposure to asbestos on the Roan, and based on the worker's testimony that he would have taken safety precautions had he been warned to do so, the court found that Foster Wheeler did not demonstrate as a matter of law that the worker’s representative could establish proximate cause.
Government contractor defense in applicable. The court rejected Westing house's argument that Navy approval of the FDBs shielded it from liability. The government contractor defense shields a manufacturer from liability where: (1) the government approved reasonably precise specifications for a product; (2) the product conformed to those specifications; and (3) the manufacturer warned the government of dangers posed by the product which were known to it but not to the government. The third prong can be satisfied by a showing that the government knew as much or more about the product's hazards than the manufacturer. Here, the court found a genuine dispute of material fact over that third prong. Because the Navy erroneously believed that asbestos-containing gaskets posed no health hazard in shipyard applications, but Westing house was correctly aware of the danger, a genuine dispute of material fact existed on this issue. As such, the court refused to apply the government contractor defense to Westing house.
The case is No. 14-00013 (MAS) (TJB).
Attorneys: Amber Rose Long (Levy Konigsberg, LLP) for Linda Hammell. Michael Joseph Block (Wilbraham, Lawler &Buba) for Air & Liquid Systems Corp.
Companies: Air & Liquid Systems Corp.
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