Insulation Used On Nuclear Prototype “Ordinary Consumer Product” and Not Subject to Military Contractor Defense

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Plaintiffs Wayne and Tina Yocum filed a renewed motion to remand which defendant CBS Corporation (Westinghouse) opposed. Wayne Yocum was diagnosed with mesothelioma and died on February 5, 2017. Without oral argument, the court granted the plaintiffs’ renewed motion to remand.

Wayne Yocum served in the Navy from 1965-75. Westinghouse supplied the asbestos-containing insulation that was used in his presence during his naval training on the A1W, a working prototype of a nuclear propulsion system. The plaintiffs originally filed this action in California, and only alleged strict products liability/design defect and loss of consortium against Westinghouse. Four days after Mr. Yocum’s death, Westinghouse filed for removal based on federal officer jurisdiction. The plaintiff filed a motion to remand, which the court denied, based upon untimely procedural attacks and proper subject matter jurisdiction. At a June 2017 scheduling conference, the court invited the plaintiff to file a renewed motion because it was reconsidering the issue of whether Westinghouse raised a colorable military contractor defense.

Westinghouse asserted the military/contractor defense, which immunized military contractors from liability when: 1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. In such situations, the government must have been sufficiently involved in the design of the defective feature or defective warnings so it can be said that the contractor is acting under the color of his duties as an agent of a federal officer. However, the military contractor defense was only available when the contractor produced “military equipment;” it did not apply to an ordinary consumer product purchased by the armed forces. The Ninth Circuit held: “Where the goods ordered by the military are those readily available in substantially similar form to commercial users, the military contractor defense does not apply.”

Westinghouse argued that the object at issue should be the A1W as a whole, not just the insulation. “This evidence is inapposite to the crucial question: was the insulation supplied by Westinghouse ‘developed on the basis of involved judgments made by the military,’ or was it ‘an ordinary consumer product purchased by the armed forces’? … Westinghouse does not dispute that the insulation it supplied to the A1W was a ‘commercially-available product.'” Further, the fact that the insulation met the military’s specifications did not by itself make it “military equipment.”

Read the full decision here.