Court Denies Boiler Defendant’s Motion for Summary Judgment in Maritime Case

U.S. District Court for the Eastern District of Virginia, Norfolk Division, March 3, 2022

Plaintiff Jerome Gehant served in the US Navy from 1967 until 1970 on the USS America as a boiler technician. The plaintiff alleges that the insulation, gaskets, insulating cement, and packing on, around, and inside the boilers contained asbestos. He specifically claims that the Foster Wheeler boilers on the ship did not contain warnings about the dangers of asbestos, and that Foster Wheeler knew that asbestos and asbestos-containing products posed a significant health risk. The plaintiff died as a result of his malignant mesothelioma on August 12, 2021.

Foster Wheeler filed a motion for summary judgment, arguing that: (1) The plaintiff cannot meet his burden to establish that Foster Wheeler owed the plaintiff a duty to warn under the DeVries test, (2) The plaintiff’s claims are barred by the government contractor defense, and (3) there is no causal connection between Foster Wheeler’s alleged failure to warn and the plaintiff’s claimed injuries.

The court considered the Supreme Court’s ruling in Air & Liquid Systems Corp. v. DeVries, which held that a manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has a reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger. Foster Wheeler argued that the Navy controlled every aspect of the ship and its equipment and machinery, including the boilers. Foster Wheeler further claimed that due to the strict Navy Military Specifications, the Navy actually directed Foster Wheeler to incorporate asbestos-containing parts, rather than the other way around. The court reviewed these Military Specifications, and found only one mention of asbestos, which did not clearly direct the use of asbestos-containing parts. Given this, the court found that there is a triable issue of fact regarding whether Foster Wheeler directed than an asbestos-containing part be used pursuant to the DeVries test.

The court then reviewed prior maritime asbestos litigation involving Foster Wheeler, including an internal memorandum discussing the hazards of insulation dust, and concluded that there was a triable issue of fact regarding whether Foster Wheeler knew or had reason to know that the integrated parts were dangerous.

Further, the court rejected Foster Wheeler’s argument that Navy sailors would have been aware of the dangers of asbestos. The plaintiff argued that since Foster Wheeler knew asbestos was dangerous and did not provide warnings, it could not reasonably believe that the sailors using the boilers would realize the danger. Other courts have found that, while the Navy was aware that asbestos was dangerous, it was unaware that asbestos-based gaskets precented a risk to sailors. Citing Hammell, 2020 U.S. Dist. LEXIS 159038, 2020 WL 5107478, at *7; and Spurlin, 537 F. Supp. 3d at 1174. Additionally, Plaintiff noted a 1962 government memorandum which states that asbestos-containing packing and gaskets “are not considered a significant hazard.” Ultimately, the court found that there was a triable issue of fact regarding whether Foster Wheeler reasonably believed that the end users of the product were aware of the danger, and so there was a triable issue of fact on each prong of the DeVries test.

The court then turned to the defendant’s second argument, the government contractor defense. In 2016, the Fourth Circuit reversed its long-standing precedent that the government contractor defense is not available in failure to warn cases. Ripley v. Foster Wheeler, LLC, 841 F.3d 207, 209 (4th Cir. 2016.). The court adopted the test elucidated by the Supreme Court in Boyle v. United Technologies Corp., which held that “design defects in military equipment do not give rise to state-law tort claims if, ‘(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.'” Id.

In Sawyer v. Foster Wheeler LLC, the Fourth Circuit expressly modified the Boyle test for failure to warn claims. 860 F.3d 249, 256 (4th Cir 2017). The test for failure to warn claims requires the defendant to establish that “(1) the government exercised its discretion and approved certain warnings; (2) the contractor provided the warnings required by the government; [and] (3) the contractor warned the government about dangers in the equipment’s use that were known to the contractor but not to the government.” Id.

Foster Wheeler argued that the Navy did not allow equipment manufacturers to make independent determinations about the inclusion of asbestos warnings and that the Navy had final say on all warnings. The plaintiff responded that the Navy did allow asbestos warnings, as nothing in the Navy’s specifications precluded such a warning. The court noted that the plaintiff had put forth evidence that the Navy would have allowed a product manufacturer to put an asbestos warning on its products, and the court held that here was a triable issue of fact as to whether the government would have allowed Foster Wheeler to place asbestos warning labels on its boilers.

The court then examined whether the contractor provided the warnings required by the government. Foster Wheeler argued that the government’s review, acceptance, and use of the boilers and boiler manual was sufficient to satisfy this prong, as the Navy would not have allowed its products if Foster Wheeler’s equipment and manual had not met the government specifications. The plaintiff argued that the Navy’s specifications actually required warnings regarding hazards inherent in products, and that by failing to include an asbestos warning, Foster Wheeler did not conform to the specifications. The court found that there is a triable issue on whether the military specifications required equipment producers to place warnings on their products or prohibited them from doing so, and so the court could not determine at this stage whether the defendant confirmed to those same specifications.

With respect to whether the defendant warned the government about dangers in the equipment’s use that were known to the contractor but not to the government, Foster Wheeler argued that the Navy was well-acquainted with the health hazards associated with asbestos. The plaintiff responded that the Navy’s knowledge of the general hazards of asbestos was not sufficient to prove that the Navy knew of the hazards of the construction, use, or regular maintenance of integrated products containing asbestos, and that there was no evidence that Foster Wheeler warned the Navy of any hazards related to the exposure to asbestos from the construction, use, or regular maintenance of its boilers. The court found the evidence before it comparable to that in Willis v. BW IP International Inc., and determined that there was a triable issue of fact as to whether the Navy was unaware of the specific dangers of asbestos gaskets and insulation and whether Foster Wheeler was in a position to warn the Navy of those dangers.

Finally, the court examined the issue of causation. Foster Wheeler argued that the Navy had superior knowledge of the hazards of asbestos and warned its sailors accordingly, that the plaintiff never saw any manuals or specifications pertaining to Foster Wheeler’s boilers and so he never would have seen a warning had Foster Wheeler provided one, and that the plaintiff relied on the Navy to instruct him on how to perform their job and did not rely on civilian manufacturers. The plaintiff responded that Foster Wheeler cannot disprove causation by simply blaming the Navy, and that regardless of whether the plaintiff ever saw a manual, Foster Wheeler could have placed warnings on the products and their packaging.

The standard for causation in a products liability case under maritime law, often referred to as the Lindstrom framework, requires that the plaintiff show: “(1) he was exposed to the defendant’s product, and (2) the product was a substantial factor causing the injury he suffered.” Wilson v. AC&S, Inc., No. 4:14cv91, 2015 U.S. Dist. LEXIS 156743, 2015 WL 7313391, at *3 (E.D. Va. Nov. 19, 2015) (citations omitted). It is not sufficient to show merely that a defendant’s product existed at the plaintiff’s workplace. Courts applying the Lindstrom framework often incorporate the “regularity, frequency, and proximity” test from Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986). Under Lohrmann, “[t]o support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.”

The court considered the rulings of other courts based on varying evidence. Ultimately, the court found the plaintiff had provided sufficient evidence to establish that Foster Wheeler’s product exposed him to asbestos, as he testified in detail regarding the work he performed on Foster Wheeler’s product. Therefore, there was a triable issue of fact as to whether Foster Wheeler’s failure to warn the plaintiff about the dangers of asbestos was a substantial factor in causing his injury, and the court denied Foster Wheeler’s motion for summary judgment.

Read the full decision here.