U.S. District Court for the District of New Jersey, April 14, 2021
In this asbestos action, decedent Arthur Hammell served on the USS Charles H. Roan in the 1960s. During this time, the Roan was equipped with forced draft blowers manufactured by Westinghouse. Westinghouse previously moved for summary judgment on several grounds, all of which were denied by Judge Michael Shipp, as previously reported by the Asbestos Case Tracker.
Thereafter, Westinghouse moved for reconsideration of Judge’s Shipp’s ruling with regard to their government contractor defense argument. In his previous ruling, Judge Shipp found that the defendant did not meet the third prong of the government contractor defense as to whether “[the defendant] warned the United States about the dangers in the use of the equipment that were known to it but not to the United States” under Duenas v. Gen. Elec. Co. As such, Judge Shipp denied Westinghouse’s motion as there was a genuine issue of fact whether the United States knew “as much or more” than Westinghouse regarding the dangers of asbestos, as well as Westinghouse’s forced draft blowers.
In order to succeed on a motion for reconsideration, a party must show facts or controlling law that the court overlooked under Local Civil Rule 7.1. Here, Westinghouse argued that the court overlooked Dr. Samuel Forman’s testimony, which they believed establishes that the Navy knew asbestos gaskets were low dust producing, and therefore safe. However, the court did not accept Westinghouse’s argument. Not only did the court consider Dr. Forman’s report, instead, the court believed that Westinghouse’s cites to the Forman report only strengthened its previous findings. The court also pointed to inconsistent arguments in Westinghouse’s briefs, as Westinghouse’s summary judgment motion papers asserted that the Navy did not consider that gaskets “caused dust in shipboard applications.” Therefore, the court held that a dispute of material facts still existed “as to the Navy’s knowledge of the hazards of Westinghouse’s [forced draft blowers.] Thus, the court denied Westinghouse’s motion for reconsideration.