Summary Judgment Recommended for Naval Boiler Manufacturer on Issues of Product Identification and Bare Metal Defense U.S. District Court for the District of Delaware, August 21, 2017

The plaintiff filed suit alleging Mr. Tallman developed mesothelioma while serving in the U.S. Navy from 1947-67. Foster Wheeler removed the case to the United States District Court.

Mr. Tallman served on board the USS Caloosahatchee as a boiler tender from 1948-56. Specifically, the plaintiff contended that Mr. Tallman’s mesothelioma developed as a result of exposure to asbestos for which Foster Wheeler was responsible. Two fact witnesses were offered for deposition. Mr. Nealon testified that he served on board the USS Caloosahatchee from 1951-54. He recalled Mr. Tallman making asbestos insulation that went around steam valves. However, Mr. Nealon was unable to recall the name or brand of the boilers he and the plaintiff cleaned. The second fact witness, Mr. Schaufele, testified that he did not recall repair or maintenance work with Mr. Tallman but then stated he recalled Mr. Tallman cleaning out boilers made by Foster Wheeler.  The plaintiff argued that Mr. Tallman was exposed to asbestos insulation from the linings of the Foster Wheeler boilers.

The court started its discussion with an overview of the standard for summary judgment. Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact. Here, the parties agreed that maritime law applied. For causation, the standard requires the plaintiff to show that he “was exposed to the defendants product and that the product was a substantial factor in causing the injury he suffered.” The court quickly recommended granting summary judgment. As for the fact witnesses, the court found that neither Mr. Nealon nor Mr. Schaufele’s testimony established exposure to asbestos from a Foster Wheeler product. For example, nothing in the record stated that the valves the plaintiff may have packed were made by any particular defendant let alone Foster Wheeler. Moreover, neither witness confirmed exposure from the cleaning of the interior of the boilers. Although the testimony confirmed the presence of Foster Wheeler boilers there was nothing to rise to the level of substantial factor in the light most favorable to the plaintiff.

The plaintiff argued that under the Qurin case Foster Wheeler is liable for exposure to its product including replacement parts and therefore the bare metal defense was not applicable. In support, the plaintiff submitted Foster Wheeler technical manuals illustrating the use of asbestos parts. However, the court was not persuaded as the submission did not establish any relation to the USS Caloosahatchee. As the court has previously declined to follow Qurin, it declined to do so here and found the bare metal defense applicable.

Foster Wheeler also argued it was entitled to the government contractor defense. The defense shields against liability in a failure to warn case for a federal contractor when 1) the federal government approved reasonably precise specifications, 2) the equipment conformed to those specifications, and 3) the supplier warned the federal government about the dangers in the use of the equipment that were known to the supplier but not the federal government. Here, Foster Wheeler submitted evidence that the government was involved in “the design and manufacture of all products” on its warships. Additionally, evidence suggested that the navy would not permit suppliers like Foster Wheeler from labeling any equipment with warnings. The plaintiff countered with its own evidence from Captain Arnold Moore which illustrated the navy’s demand for information on hazards associated with products supplied by others. A question of fact was thus presented according to the court. However, Foster Wheeler was entitled to summary judgment on causation and maritime law as discussed above. The court also denied the plaintiff’s demand for punitive damages and entered summary judgment in favor of Foster Wheeler.

Read the full decision here.

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