Boiler Defendant Had No Duty to Warn; Granted Summary Judgment

U.S. District Court for the Southern District of New York, September 16, 2021

The decedent, John Grimes, and his domestic partner filed two lawsuits in New York State Court against two different sets of defendants, alleging that the decedent developed mesothelioma as a result of his exposure to asbestos-containing products while working at the Brooklyn Navy Yard in the early 1960s.

The decedent testified that he worked aboard the USS Constellation, and defendant Foster Wheeler admitted that it manufactured boilers that were present on this ship. While the decedent testified that he observed others performing work on boilers on this ship, Foster Wheeler denies that their boilers required asbestos-containing products, contained asbestos-containing pads, and required external insulation. Foster Wheeler filed four Daubert motions to exclude or limit the plaintiff’s expert testimony, as well as a motion for summary judgment.

Foster Wheeler first argued that maritime law applies to the plaintiff’s claims. To determine whether maritime law governs the plaintiff’s negligence claims, the court turned to the two-part test articulated by the Supreme Court in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S. Ct. 1043, 130 L. Ed. 2d 1024 (1995).

First, the “location test” examines whether “the tort occurred on navigable water or whether the injury suffered on land was caused by a vessel on navigable water.” Grubart, 513 U.S. at 534. The court determined that the USS Constellation was within navigable waters, even if it was dry-docked during the plaintiff’s alleged exposure.

Second, because the “location test” was satisfied, the court must consider the “connection test” and “assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce,” and “determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.” Id. A naval worker getting injured during repair or maintenance to a completed vessel such as the Constellation has such a disruptive impact on maritime commerce. Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 250 (2d Cir. 2014). Further, the alleged exposure occurred within the ship’s boiler rooms while workers were making repairs, which surely has a “substantial relationship to traditional maritime activity.” Grubart, 513 U.S. at 534. Therefore, the court held that both prongs of the Grubart test were satisfied, and that maritime law therefore applies to the plaintiff’s claims.

Foster Wheeler then argued that pursuant to Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 203 L. Ed. 2d 373 (2019), it cannot be held liable for a failure to warn of the dangers of asbestos-containing products that may have been added to its boilers. In response to Foster Wheeler’s motion, the plaintiff asserted for the first time that the decedent worked on the USS Roan, which also had Foster Wheeler boilers aboard. The court refused to consider this evidence of any exposure to Foster Wheeler boilers aboard this vessel because the plaintiff failed to identify it during discovery and because it was overly speculative to assume that the decedent had worked aboard this second ship.

Similarly, the plaintiff urged the court to reject the affidavits of two Foster Wheeler corporate representatives, as they were not disclosed as experts and failed to submit expert reports. However, the court held that timely-disclosed corporate representatives may testify and submit affidavits based on knowledge gained and records reviewed in their capacity as corporate representatives.

The court then turned to the merits of Foster Wheeler’s motion for summary judgment. Under maritime law, a manufacturer may be held liable for failing to warn about the hazards of third-party asbestos-containing products used with its equipment. See DeVries, 139 S. Ct. at 991. The three-part test set forth in DeVries sets forth that a manufacturer has a duty to warn when:

(i) its product requires the incorporation of a part;

(ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses; and

(iii) the manufacturer has no reason to believe that the product’s users will realize that danger.

Id. After examining the evidence before it, the court held there is no genuine dispute that Foster Wheeler boilers aboard the USS Constellation did not require the incorporation of asbestos-containing insulation. Even if the Navy incorporated asbestos insulation with the Foster Wheeler boilers, the plaintiff failed to establish that Foster Wheeler directed the Navy to do so. The plaintiff further failed to establish that any such asbestos-containing components were necessary for the operation of the boilers. Because the plaintiff failed to meet the first prong of the DeVries test, she cannot establish that Foster Wheeler had a duty to warn under maritime law. Therefore, the court held that summary judgment is proper in favor of Foster Wheeler.

Read the full decision here.