U.S. District Court for the District of New Jersey, August 31, 2020
The plaintiff, Linda Hammell, alleges that her husband decedent Arthur Hammell contracted mesothelioma and died from exposure to asbestos. By way of background, the decedent enlisted in the Naval Reserve in 1960, and served on active duty in the U.S. Navy from April 1962 through September 1964.
During the decedent’s time on active duty, he was assigned to the U.S.S. Charles H. Roan (Roan) where he maintained boilers, forced draft blowers, valves, pumps, and other equipment. Four forced draft blowers were manufactured by Westinghouse which were furnished to the Navy in the 40s. The use of asbestos in or with these blowers was either expressly required by Navy specifications or was considered and approved by the Navy. The asbestos-containing gaskets Westinghouse used was compliant with the Navy’s specifications. These gaskets were expected to wear out and periodically require replacement. Replacement gaskets were selected by the Navy based on its specifications. There were also two Foster Wheeler boilers in the forward fireroom of the Roan. The Navy supervised and controlled the design, manufacture, testing, and acceptance of the boilers on the Roan. As with the Westinghouse force draft blowers, the Navy was in “full control” of “any maintenance, repair, overhaul, or modernization work” on the Roan, and dictated the “type of materials to be removed, replaced, or installed in conjunction with that work.” Moreover, the Foster Wheeler boilers incorporated parts that contained asbestos, such as gaskets, sheet, and packing. It was expected that gaskets must periodically be replaced. There is no evidence Foster Wheeler supplied or installed any replacement asbestos-containing gaskets for the Roan’s boilers.
Defendants Foster Wheeler and Westinghouse moved for summary judgment on the basis that the plaintiff cannot establish that the manufacturers had a duty to warn for injuries caused by asbestos manufactured and furnished by third parties. Foster Wheeler also sought summary judgment on the basis that the plaintiff cannot establish that its failure to warn was the proximate cause of the decedent’s injuries. Finally, Westinghouse also argued it is entitled to summary judgment because the government contractor defense bars the plaintiff’s claims.
Turning to the duty to warn, the court indicated that the decision in DeVries provides the relevant test for the defendants’ duty to warn. In the context of maritime torts, a product manufacturer has a duty to warn when: “its product requires incorporation of a part [that makes the integrated product dangerous for its intended uses]”; “the manufacturer knows or has 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.” Specifically, for the first element, a product requires incorporation of a part when “the product in effect requires the part . . . to function as intended,” such as when “a manufacturer directs that the part be incorporated”; “a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part”; or “a product would be useless without the part.” Applying the DeVries test, the court found there was a dispute of material fact which precludes summary judgment for the defendants.
Next, the court evaluated Foster Wheeler’s argument that the plaintiff cannot show that its failure to warn the decedent of the asbestos hazards was the proximate cause of his injuries because the plaintiff “explicitly acknowledged that he repeatedly ignored warnings and essentially engaged in conduct he knew could harm him,” such as smoking. Considering the undisputed facts in the record documenting that the decedent’s exposure to asbestos on the Roan, as well as his testimony that “had [he been informed about the hazards of asbestos while he served aboard the Roan, he would have taken precautions to the best of his ability, the court found that Foster Wheeler fails to demonstrate as a matter of law that the plaintiff cannot establish proximate cause.
Lastly, turning to Westinghouse’s argument that the plaintiff’s claims are barred by the government contractor defense because the Navy was aware of the hazards of asbestos and approved the Westinghouse force draft blowers. The court found there is a dispute of material fact over whether the government knew as much or more than Westinghouse about the hazards of the Westinghouse force draft blowers or asbestos.
Consequently, the court denied defendants’ motion for summary judgment.