Regardless of Whether New York or Maritime Law Applied, Government Contractor and Bare Metal Defenses Insufficient to Grant Summary Judgment to Foster Wheeler U.S. District Court for the Northern District of New York, March 21, 2016

The plaintiff alleged the decedent was exposed to asbestos while serving in the Navy from 1947-52, and while on board the USS Charles H. Roan. Defendants Foster Wheeler and General Electric removed to federal court pursuant to the federal officer statute. Foster Wheeler moved for summary judgment based on: (1) the government contractor defense; (2) bare metal defense; and (3) its products were not a substantial factor in causing injury. Crane Co. also moved for summary judgment; Crane, CBS Corp., and Foster Wheeler also filed motions in limine to preclude the testimony of the plaintiffs’ expert, Dr. Steven Markowitz. The court denied the summary judgment of Foster Wheeler

The decedent provided deposition testimony over the course of five days. While on board the USS Roan, he worked the valves controlling the amount of water going to the boilers, and also lit and cleaned the burners. The court provided a lengthy summary of decedent’s testimony. Pursuant to a naval contract, Foster Wheeler furnished four Babcock and Wilcox boilers for the ship. The plaintiffs argued Foster Wheeler supplied asbestos gaskets, rope, and tape for use in the boiler and the plaintiff’s naval expert, Captain Moore, testified that the decedent was exposed to asbestos from replacement gaskets.

Drawings showed that Crane valves were present where the decedent worked, including on the Foster Wheeler boilers. The plaintiff argued that Crane specified the use of asbestos in boiler check valves; Crane argued the drawings relied upon by the plaintiff were made to comply with Navy specifications, not Crane specifications.

The court applied maritime law to the plaintiff’s claims. First, Foster Wheeler argued it was entitled to summary judgment pursuant to the government contractor defense, which protects independent contractors from tort liability associated with their performance of government contracts. In this case, for this defense to apply, Foster Wheeler must show that its failure to warn resulted from a discretionary decision by the Navy; Foster Wheeler cannot generally claim the Navy had control over the project. Foster Wheeler’s conclusory statements that the Navy required it to provide boilers were insufficient to create a question of fact.

Second, Foster Wheeler argued it was entitled to summary judgment due to the bare metal defense, where defendants can only be held liable for component parts that it manufactured or distributed. Crane also argued it was not legally responsible for asbestos-containing materials it did not place into the stream of commerce. The court carefully examined the evidence in the record, and conflicting case law. The court stated: “This Court will follow that middle path. In general, consistent with the bare metal defense, a manufacturer is not liable for materials it did not supply. But a duty may attach where the defendant manufactured a product that, by necessity, contained asbestos components, where the asbestos-containing material was essential to the proper functioning of the defendant’s product, and where the asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else.” In this case, the record contained sufficient evidence for a jury to conclude that defendants’ products required asbestos in order to function; on these facts, a duty to warn could attach, and summary judgment was denied. Further, even if the court analyzed this case under New York law, the result would be the same.

Third, Foster Wheeler argued its products were not a substantial factor in the decedent’s injury. Here, questions of fact prevented the court from granting summary judgment on this ground, and the court examined the opinions of the plaintiff’s expert Dr. Markowitz in so finding.

Finally, the court denied the defendants’ motions in limine to exclude Dr. Markowitz, on various grounds.

Read the full decision here.

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