Sebright v. General Electric Company

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

GLENN E. SEBRIGHT, Individually )

and as a Parent, Guardian and )

Next Friend of CAITLIN N. SEBRIGHT,)

and SUZANNE L. SEBRIGHT, )

Plaintiffs, )

)

v. ) CIVIL ACTION

) NO. 19-10593-WGY

GENERAL ELECTRIC CO., CBS )

CORP., VELAN VALVE CORP., )

)

Defendants. )

___________________________________)

YOUNG, D.J. March 11, 2021

MEMORANDUM OF DECISION

I. INTRODUCTION

General Electric Co. (“GE”), GE’s Mot. Summ. J., ECF No.

163; and Velan Valve Corp. (“Velan”), Velan’s Mot. Summ. J., ECF

No. 166, each move for summary judgment contending it is not the

proper target of the asbestos litigation brought by Glenn E.

Sebright, individually and on behalf of his daughter Caitlin N.

Sebright, and his wife Suzanne L. Sebright (collectively,

“Sebright”). See Am. Compl., ECF No. 79.

Glenn E. Sebright is a former machinist mate in the United

States Navy (“Navy”) who suffers from malignant mesothelioma, a

degenerative lung disease, as a result of asbestos exposure.

Id. ¶¶ 8-11. Sebright has brought claims against numerous

corporations, including GE and Velan, that he alleges bear

partial responsibility for his condition. These claims are:

negligence (count I) for failure to warn about the dangers of

asbestos exposure, id. ¶¶ 12-18; breach of express and implied

warranties (count II) because the corporations’ products were

not merchantable, safe, and fit for ordinary purposes due to

their toxicity, id. ¶¶ 19-26; loss of parental society (count

III) brought by and on behalf of Sebright’s severely disabled

daughter Caitlin Sebright, id. ¶¶ 27-29; and loss of consortium

(count IV) brought by Sebright’s wife, Suzanne Sebright, id. ¶¶

30-32.

During the motion hearing held on November 10, 2020, the

Court held that maritime law applies to the dispute at hand.

Tr. Zoom Hr’g Held Nov. 10, 2020 (“Tr.”) 27, ECF No. 213. The

Court also denied GE’s summary judgment motion as to counts I

and II, and in relation to the application of the government

contractor defense. Id. 25. The parties were allotted

additional time to brief the viability of Sebright’s claims

under maritime law for counts III and IV. Id. 27. After

careful consideration of the parties’ arguments and for the

reasons set out below, the Court ALLOWS GE’s summary judgment

motion as to counts III and IV.

The Court ALLOWS Velan’s summary judgment motion. For the

reasons set out below, Sebright has failed to adduce evidence as

to an element of a cause of action for which he bears the burden

of proof at trial. The Court thus does not reach counts II, III

and IV of Sebright’s claims against Velan. This memorandum of

decision explains the Court’s reasoning.

II. Procedural History

A. Velan

Velan filed a motion and memorandum for summary judgment in

August 2020. See Velan Mot. Summ. J.; Velan Mem. Supp. Mot.

Summ. J. (“Velan’s Mem.”), ECF No. 167. Sebright filed an

opposition, and Velan filed a reply. See Pl.’s Mem. Opp’n Mot.

Summ. J. (“Pl.’s Opp’n Velan”), ECF No. 174; Velan’s Reply Pl.’s

Opp’n Velan’s Mot. Summ. J. (“Velan’s Reply”), ECF No. 181.

Velan has filed a statement of material facts. See Velan’s

Statement Undisputed Facts (“Velan’s SOF”), ECF No. 168.

Sebright has filed its own statement of material facts, which

includes a “Statement of Additional Undisputed Material Facts.”

See Pl.’s Resp. Velan’s Statement Undisputed Facts (“Pl.’s SOF

Velan”), ECF No. 175.

B. GE

GE filed a motion and memorandum for summary judgment in

August 2020. See GE Mot. Summ. J; GE Mem. Supp. Mot. Summ. J.

(“GE’s Mem.”), ECF No. 164. Sebright filed an opposition, and

GE filed a reply. See Pl.’s Mem. Opp’n Mot. Summ. J. (“Pl.’s

Opp’n GE”), ECF No. 170; GE’s Reply Resp. Mot. Summ. J. (“GE’s

Reply”), ECF No. 182. GE and Sebright both filed separate

statements of material facts and Sebright included a “Statement

of Additional Undisputed Material Facts.” See GE’s Statement

Undisputed Facts (“GE’s SOF”), ECF No. 165; Pl.’s Statement

Facts GE (“Pl.’s SOF GE”), ECF No. 171.

Following the hearing in this matter on November 10, 2020,

the parties filed supplements to their oral arguments. See GE’s

Suppl. Oral Arg. Mot. Summ. J., ECF No. 204; Pl.’s Resp. GE’s

Suppl. Oral Arg. Mot. Summ. J., ECF No. 210.

The parties also filed additional briefs relating to the

viability of counts III and IV under maritime law. See Pl.’s

Mem. Law Supp. Loss Consortium and Loss Parental Society Claims

Under Maritime Law (“Pl.’s Mem. Supp.”), ECF No. 209; GE’s Mem.

Law Supp. Dismissal Loss Parental Society Claim (Count Three)

and Loss Consortium Claim (Count Four) (“GE’s Mem. Opp’n”), ECF

No. 208.

III. Evidence

Extensive evidence has been adduced in this case, including

numerous depositions of fact and expert witnesses.

A. Sebright’s Evidence

Sebright relies on testimony provided by three fact

witnesses. In addition to his own deposition testimony provided

on October 8 and 9, 2020, see Pl.’s SOF GE, Ex. 1, Videotaped

Dep. Glenn E. Sebright (“Sebright Dep. I”), ECF No. 171-2; Pl.’s

SOF GE, Ex. 2, Videotaped Dep. Glenn E. Sebright (“Sebright Dep.

II”), ECF No. 171-3, Sebright relies on the testimony of a

former shipmate on the USS Boston, George Hiltz (“Hiltz”), see

Pl.’s SOF GE, Ex. 4, Videotaped Dep. George Hiltz (“Hiltz

Dep.”), ECF No. 171-5, and on that of another former shipmate on

board the USS Little Rock, Michael Poulson (“Poulson”), see

Pl.’s SOF GE, Ex. 3, Videotaped Dep. Michael Poulson (“Poulson

Dep.”), ECF No. 171-4.

Poulson, in addition to his factual testimony, also

purports to be an expert based on his experience in the ship

repair and asbestos remediation industry. See generally Pl.’s

SOF GE, Ex. 5, Background & Op. Michael H. Poulson (“Poulson

Rep.”), ECF 171-6. As an expert, Poulson was deposed twice, on

June 5, 2020 and July 1, 2020. See Pl.’s SOF GE, Ex. 6,

Videoconference Dep. Michael H. Poulson (“Poulson Exp. Dep. I”),

ECF No. 171-7; Pl.’s SOF GE, Ex. 7, Videoconference Dep. Michael

H. Poulson (“Poulson Exp. Dep. II”), ECF No. 171-8. Velan filed

a Daubert motion to exclude Poulson’s expert testimony on

November 6, 2020. See Velan’s Daubert Mot. Exclude Expert Test.

Report Michael Poulson, ECF No. 199.

Sebright’s other expert witnesses are Dr. Candace Su-Jung

Tsai (“Tsai”), Brent Staggs, M.D. (“Staggs”), and David Rosner,

Ph.D. (“Rosner”).

Rosner is a professor of public health and social history

at the Columbia University Mailman School of Public Health. See

Pl.’s Mem. Opp’n Def. Air & Liquid Corp.’s Mot. Summ. J. (“Pl.’s

Opp’n Air & Liquid”), Ex. F, Expert Report Gerald Markowitz PhD

& David Rosner PhD (“Rosner & Markowitz Report”) 2, ECF No. 132-

7.1 Rosner’s expert testimony focuses on the public and

industrial health history of asbestos products in the United

States. Id. Rosner was deposed on February 17, 2020 in the

unrelated matter of Hailey v. Air & Liquid Sys. Corp., Civil

Action No. DKC 18-2590, 2020 WL 4732141 (D. Md. Aug. 14, 2020),

see GE’s SOF, Ex. 45, Telephone Dep. David Rosner, Ph.D.

(“Rosner Dep. I”), ECF No. 165-47, and, for the case at hand, on

July 15, 2020, see Pl.’s SOF GE, Ex. 13, Videoconference Dep.

David Rosner, Ph.D. (“Rosner Dep. II”), ECF No. 171-14. Rosner

has also authored a rebuttal report in relation to testimony

provided by GE’s expert witness, Captain Joselyn Senter. See

Pl.’s SOF GE, Ex. 47, Resp. Report Joselyn C. Senter (“Rosner

Rebuttal”), ECF No. 171-48. In a Daubert motion filed on

October 14, 2020, GE challenged Rosner’s opinions regarding GE’s

duty to warn sailors of asbestos hazards. See GE’s Rule 702

Daubert Mot. Exclude Expert Test. Dr. David Rosner, ECF No. 194.

1 Sebright does not expressly rely on the Rosner & Markowitz

Report in relation to GE’s summary judgment motion. It is

available on the docket.

Tsai is an industrial hygienist who opined on Sebright’s

exposure to asbestos in a report dated December 23, 2019. See

Pl.’s SOF GE, Ex. 41, Asbestos Exposure Assessment Mr. Glenn

Sebright (“Tsai Rep. with Add.”), ECF No. 171-42. Tsai amended

her report on April 27, 2020. Id. at 18-19. Tsai also issued a

rebuttal report on June 20, 2020 in relation to testimony

provided by GE’s expert, Captain Joselyn Senter. See Pl.’s SOF

GE, Ex. 48, Response to Report of Joselyn C. Senter (“Tsai

Rebuttal”), ECF No. 171-49. Tsai has been deposed three times:

on June 11, 2020, see Pl.’s SOF GE, Ex. 8, Dep. Candace Su-Jung

Tsai, MS, SCD, CIH (“Tsai Dep. I”), ECF No. 171-9, on July 9,

2020, see Pl.’s SOF Velan, Ex. 16, Dep. Candace Su-Jung Tsai,

MS, SCD, CIH (“Tsai Dep. II”), ECF No. 175-17, and on July 21,

2020, see Pl.’s SOF GE, Ex. 10, Dep. Candace Su-Jung Tsai, MS,

SCD, CIH (“Tsai Dep. III”), ECF No. 171-11. Questioning the

reliability of the scientific methods applied by Tsai in her

report on December 23, 2019, Velan filed a Daubert motion to

exclude her testimony on October 14, 2020. See Velan’s Daubert

Mot. Exclude Expert Test. Report Dr. Candace Tsai (“Mot. Exclude

Tsai”), ECF No. 193.

Staggs is a medical doctor and pathologist who opined on

Sebright’s diagnosis of mesothelioma in an expert report dated

October 1, 2019, see Pl.’s Opp’n Air & Liquid, Ex. M, Reports

RE: Sebright, Glenn E. (“Staggs Report”), ECF No. 132-14,2 and a

supplemental report dated January 21, 2020, see Pl.’s SOF GE,

Ex. 40, Reports RE: Sebright Glenn E. (“Staggs Supp. Rep.”), ECF

No. 171-41. Staggs was deposed on June 3, 2020. See Pl.’s SOF

GE, Ex. 11, Videoconference Dep. Brent C. Staggs, M.D. (“Staggs

Dep.”), ECF No. 171-12.

B. GE’s Evidence

GE introduced expert testimony of its industrial hygienist,

Captain Joselyn Senter (“Senter”). In his report dated November

17, 2016, Senter opined on the Navy’s industrial hygiene history

and programs during the relevant time period relevant. See

Pl.’s SOF GE, Ex. 45, Report Joselyn C. Senter, CIH (“Senter

Rep.”), ECF No. 171-46. Senter was deposed on August 7, 2020.

See Pl.’s SOF GE, Ex. 31, Dep. Joselyn C. Senter (“Senter

Dep.”), ECF No. 171-32. GE also relies on a letter drafted by

Senter on May 6, 2020. See Pl.’s SOF GE, Ex. 46, Letter Re:

Glenn Sebright v General Electric (“Senter Letter”), ECF No.

171-47. Sebright filed a motion to strike Senter’s testimony on

September 4, 2020. See Pl.’s Mot. Strike Expert Test. Joselyn

C. Senter, ECF No. 172.

2 Sebright does not expressly rely on the Staggs Report in

relation to Velan’s summary judgment motion. It is available on

the docket.

GE further relies on the testimony of former GE employee

Paul Banaszewski (“Banaszewski”). He opined on GE’s steam

turbine design, manufacture, installation, operation, and

maintenance in an affidavit dated August 13, 2020, see GE’s SOF,

Ex. 9, Aff. Paul A. Banaszewski (“Banaszewski Aff.”), ECF No.

165-11, and a supplemental affidavit dated September 14, 2020,

see GE’s Reply, Ex. 1, Supplemental Aff. Paul A. Banaszewski

(“Banaszewski Supp. Aff.”), ECF No. 183-1. Banaszewski was

deposed on February 24, 2006, in the unrelated matter of French

v. Saberhagen Holdings, Inc., No. 07-2-28888-1, in the Superior

Court of Washington for King County. See Pl.’s SOF GE, Ex. 15,

Dep. Expert Witness Paul Banaszewski (“Banaszewski Dep.”), ECF

No. 171-16.

C. The Expert Evidence

Most of the expert witness evidence, including the

witnesses’ individual expertise, has been challenged in various

reciprocal Daubert motions and motions to strike. As the Court

stated during the November 10, 2020 hearing, these motions will

be considered at trial, see Tr. 29, but for the sake of

completeness, the Court will limn the expert testimony here,

though it expresses no opinion thereon.

The Rosner & Markowitz Report states that, by the 1930s, it

was well recognized in the industrial hygiene and occupational

health community that inhaling asbestos dust is hazardous. See

Rosner & Markowitz Report at 11-17. The problem was also known

to industry, governmental agencies, and insurance companies at

the time. Id. at 18. By 1955, the American Conference of

Governmental Industrial Hygienists had adopted a toxic limit of

five million particles of asbestos dust per cubic foot of air.

Id. at 19-20 & n.53. By the 1960s, the medical community was

aware that asbestos exposure could cause lung cancer,

mesothelioma, and other diseases. Id. at 5. Mesothelioma

tumors occurring 20-40 years after asbestos exposure were also

documented by the 1960s. Id. at 31-32. These rare tumors were

known to affect even workers with “relatively light,

intermittent, exposure to asbestos,” including workers in the

building trades who were exposed to asbestos incidentally in the

course of their duties. Id. at 33.

In his deposition for the instant case, Rosner stated that

from 1967 to 1980, “any major organization of any significant

size . . . would know that asbestos was a dangerous product.”

Rosner Dep. II at 48:8-49:13. In his rebuttal report in

response to Senter, GE’s industrial hygienist, Rosner also

stated that there is extensive documentary evidence that the

Navy and GE were aware of the dangers associated with inhaling

asbestos dust by World War II. See Rosner Rebuttal at 2-3.

Staggs analyzed whether Sebright’s mesothelioma was

connected to his asbestos exposure. See generally Staggs Supp.

Rep. Staggs identified Sebright as having a significant history

of asbestos exposure from his time in the Navy, primarily from

inhaling asbestos-containing dust, as well as from his time as a

heavy equipment operator after his discharge. Id. at 4. Staggs

noted that mesothelioma is caused by the cumulative dose of

asbestos exposure over a lifetime, so the greater the dose of

exposure over time, the higher the chance of contracting the

disease. Id. Staggs concluded that Sebright’s mesothelioma was

caused by asbestos exposure over his working lifetime but could

not specify more closely the relative importance of contributing

factors. Id. at 5.

Tsai, who examined Sebright’s records, testified that

Sebright’s asbestos exposure on board the two naval vessels

would have often been thousands to millions of times higher than

the background concentration. Tsai Rep. with Add. at 13. Most

of Tsai’s testimony is disputed. See Mot. Exclude Tsai. Tsai

does not provide a quantitative assessment of Sebright’s

exposure to asbestos during his work in the Navy due to the lack

of sampling data. Tsai Dep. III at 545:5-15, 585:1-9. She also

does not provide a product-specific allocation of Sebright’s

exposure risk. Id. at 589:1-24.

According to Poulson, the turbine insulation on the

generator sets in the fire room of the USS Little Rock, which,

like much of the coverings for the steam-driven equipment there,

was made of asbestos-containing material. See Poulson Dep. at

84:24-85:17. Poulson reports that at the time of his deployment

on the USS Little Rock, he was unaware of and unable to identify

asbestos products. Id. at 69:6-12, 87:15-21. He realized that

he had been exposed to asbestos after his discharge from the

Navy when he began working in the asbestos abatement industry.

Id. at 69:6-12, 91:3-14. He then learned to recognize and

distinguish visually between different types of asbestos and

asbestos-containing products. Id. at 85:4-24; Poulson Exp. Dep.

I at 171:4-172:1. Poulson continued to work in the asbestos

abatement industry in various positions for 23 years, primarily

in shipyards on the west coast of the United States. See

Poulson Dep. at 34:1-35:4, 85:4-88:1. His work involved

asbestos removal and abatement from more than 100 Navy warships

of various sizes and descriptions. Id. at 20:12-21:3, 213:16-

24.

IV. UNDISPUTED FACTS

A. Undisputed Facts as to Sebright

Sebright was diagnosed with malignant mesothelioma in April

2016. See Pl.’s SOF GE, Ex. 38, Lab Results 4-5, ECF No. 171-

39. Mesothelioma is a disease of the lungs that is in most

cases fatal within 12 to 18 months following diagnosis. Staggs

Dep. at 187:11-12.

Sebright enlisted in the Navy in 1968. Sebright Dep. I at

58:4-58:17. During his service for the Navy, he worked on two

different vessels, the USS Boston and the USS Little Rock. Id.

at 64:6-65:4, 67:12, 108:22-109:5.

1. On Board the USS Boston

Upon completion of his initial training, Sebright boarded

the USS Boston in October 1968 while the vessel was undergoing a

scheduled three-month overhaul at the Boston Naval Shipyard.

See id. at 64:8-65:19.

In May 1969, the USS Boston sailed to Vietnam to support

operations there, and it later returned to the United States.

Id. at 75:5-14, 100:7-12; Pl.’s SOF GE, Ex. 42, Military Service

Records (“Service Records”) 2, ECF No. 171-43 (showing that

Sebright received the Vietnam Campaign Medal). Between December

1969 and May 1970, the USS Boston was in the process of being

decommissioned at the Boston Naval Shipyard. Sebright Dep. I at

100:14-21. Sebright left the USS Boston in May 1970 and ended

his period of enlistment in November 1971. Id. at 102:24-25,

107:8-9; Service Records 33. Sebright reenlisted in August 1974

and served an additional two years on the USS Little Rock before

receiving an honorable discharge on September 14, 1976.

Sebright Dep. I at 107:22-108:7; Service Record 36.

While aboard the USS Boston, Sebright had the rank of

fireman and was assigned to tend a particular generator in Fire

Room 2 for the entirety of his stay. See Sebright Dep. I at

65:22, 70:3-8. There were four fire rooms on the ship, each

sealed off from the others, but Sebright occasionally stood

watch in the other fire rooms as well. Id. at 69:1-2, 70:9-

71:2. Sebright’s job as a fireman primarily entailed watching

his generator and conducting scheduled maintenance work on it

and the associated valves and pumps in regular intervals of

approximately three months. Id. at 75:15-77:11, 195:2-21.

Sebright’s duties also included cleaning his workspace on and

around his generator. See Hiltz Dep. at 170:11-17.

Fire Room 2 of the USS Boston measured approximately 40

feet by 30 feet, comprising two levels separated by a mixture of

grates and solid plating. See Sebright Dep. I at 92:20-93:3;

Hiltz Dep. at 70:4. Sebright’s equipment was located on both

levels of the fire room. See Sebright Dep. I at 93:5-93:15.

Temperatures in the fire room usually ranged between 100-110

degrees Fahrenheit, and the sailors were given salt tablets to

prevent dehydration. See Hiltz Dep. at 136:22-137:4. Many

pieces of equipment in the fire room were packed with asbestos

as insulation. Id. at 137:5-15.

Sebright did not perform any maintenance work on any

equipment during the initial three-month overhaul of the USS

Boston. See Sebright Dep. I at 71:4-72:3. During the overhaul,

Sebright recalled being present in the vicinity while more

senior firemen performed maintenance work on his generator. Id.

Their work included repacking valves and pumps associated with

Sebright’s generator. Id. at 72:4-73:15. Sebright’s duties

were primarily to clean up after them. Id. at 71:21-72:3.

In addition to his own deposition statement, Sebright

relies on deposition statements made by his shipmate, George

Hiltz. See generally Hiltz Dep. Hiltz attended to boiler

equipment in the same Fire Room Number 2 of the USS Boston as

Sebright between October 1968 and the end of 1969 or the

beginning of 1970. Sebright Dep. I at 19:7-15, 94:6-8; Hiltz

Dep. at 48:13-50:20. There was some overlap of shifts during

which Sebright and Hiltz worked in Fire Room 2 at the same time.

Sebright Dep. I at 94:9-18. Hiltz estimates that the overlap in

concurrent shifts in Fire Room 2 was between 50% and 60% of the

time. Hiltz Dep. at 68:1-8.

Hiltz stated that he could not recall whether Sebright was

present for any particular repairs or maintenance work, but that

Sebright typically would walk around or work somewhere in the

room during many repairs. Hiltz Dep. at 73:15-23. Hiltz also

recalls that the air in Fire Room 2 was often thick with dust

particles that he believed to be asbestos, particularly when the

sailors conducted any type of maintenance on the pipes or

gaskets. Id. at 137:16-138:22. Hiltz further recalls that the

sailors routinely would use knives and picks to cut through

asbestos insulation when conducting repairs or maintenance on

equipment. Id. at 140:20-142:5. This repair work released dust

into the air, which the sailors inhaled. Id. at 143:11-145:5;

see Sebright Dep. I at 133:6-20. Hiltz also noted that the air

circulation blowers in the fire room “could have” recirculated

dust from elsewhere on the ship into Fire Room 2. Hiltz Dep. at

171:22-172:4; see Sebright Dep. I at 84:6-13.

During the vessel’s decommissioning phase, Sebright’s

duties included cleaning his generator and preserving it.

Sebright Dep. I at 100:14-101:12. This work involved scraping

paint off the exterior of the generator, cleaning its metal

surface, and treating it with primer to limit corrosion. Id.

Sebright also described cleaning crevices between the generator,

reduction gears, and the turbine, and draining and cleaning out

the inside of a condenser unit associated with his generator.

See Sebright Dep. II at 134:22-136:6.

2. On Board the USS Little Rock

While on board the USS Little Rock, Sebright once again

oversaw a fire room generator and stood watch in one of the

vessel’s engine rooms. See Sebright Dep. I at 111:1-113:11.

The fire room on board the USS Little Rock was slightly smaller

than the one on the USS Boston. Id. at 114:24-115:1-3; see

Sebright Dep. II at 188:18-20. The room had two levels, an

upper and a lower level. See Poulson Dep. at 51:20-52:16.

During his deployment on the USS Little Rock, Sebright held the

rank of petty officer, but his maintenance duties were

essentially the same as aboard the USS Boston. Sebright Dep. I

at 116:10-21. Sebright recalls performing regular and

preventative maintenance work on the generators in the USS

Little Rock fire room. See id. at 116:10-117:12. His work also

included repacking equipment and replacing leaking valves. Id.

at 117:13-119:6. Sebright performed this work by cutting away

insulation material to gain access to the leaking valve and by

hammering gaskets to fit around pipes. Id. Sebright also

recalls that to re-apply new insulation around replaced valves,

he had to mix powdered insulating material with water. Id. at

125:11-25. He recalls that the bags containing the powder were

made of clear plastic without any writing on them. Id. at

125:21-126:4. Handling the powder created dust. Id. at 125:17-

20. Sebright describes this work as identical to that performed

in Fire Room 2 on the USS Boston. Id. at 117:15, 118:9-11,

125:24-25.

Poulson, Sebright’s shipmate aboard the USS Little Rock,

served as a boiler technician in the same fire room of the USS

Little Rock as Sebright between mid- to late 1975 and the end of

1976. See id. at 20:6-10; Poulson Dep. at 43:20-24, 44:6-25.

While on the USS Little Rock, Poulson recalls that Sebright

worked as a machinist’s mate, mostly on the upper level of the

fire room, tending to two steam-driven turbine generators

located there. See Poulson Dep. at 50:1-17, 51:20-52:60.

Poulson would work throughout the fire room. Id. at 52:2-16.

Poulson describes the fire room on the USS Little Rock, as well

as the entire ship, as being in general disrepair. Id. at 76:4-

10, 78:22-79:8, 213:16-214:13. He describes insulation material

constantly falling off the equipment, requiring it to be picked

up from the floor on a regular basis. Id. at 78:22-24. Poulson

recalls that to perform certain maintenance tasks on equipment

within the fire room, sailors had to stand or climb on the

insulation applied around drain pipes and other equipment

because there were no ladders in the fire room. Id. at 72:10-

74:6.

Sebright left the USS Little Rock in September 1976. See

Sebright Dep. I at 132:10-13.

B. Undisputed Facts as to GE

GE manufactured the generator sets that were installed in

the fire rooms of the USS Boston and the USS Little Rock. See

id. at 71:12-16, 113:14-17; Hiltz Dep. at 47:17-48:9; GE’s SOF ¶

1. A generator set consists of a steam turbine and a generator

unit, connected by a rotating shaft. See Poulson Dep. at 164:8-

18; Hiltz Dep. at 48:7-9; Banaszewski Aff. ¶ 10. The purpose of

the generator sets was to convert thermal energy contained in

steam that was produced in boilers into electricity for use on

board the two vessels. See Banaszewski Aff. ¶ 3. GE’s

generator sets were installed into the USS Boston and the USS

Little Rock upon construction of the vessels in the 1940s. Id.

¶ 10. GE delivered the generator sets to the Navy without heat

insulation (“bare metal”). Id. ¶¶ 2, 5.

GE designed and manufactured the generator sets in

accordance with specifications formulated by the Navy

(“MILSPECs”). Id. ¶ 4. MILSPECs contain very detailed

requirements to ensure that the equipment will be suitable for

wartime operations, and they are formulated with an emphasis on

durability. Id.; see Banaszewski Supp. Aff. ¶ 9.

According to Sebright and Poulson, the generator sets on

board the USS Boston and the USS Little Rock were insulated with

removable pads or covers. See Sebright Dep. II at 208:2-22;

Poulson Dep. at 174:4-176:9. Only the turbine unit of the

generator set required thermal insulation. Poulson Dep. at

174:4-22. Sebright remembers a removable cover that was strung

around the turbine unit. Sebright Dep. II at 208:2-22. Poulson

also remembers that the pads were secured with lagging hooks and

wire. Poulson Dep. at 174:23-175:2. According to Sebright,

removable pads or covers were easier to handle and remove than

having to mix and re-apply packing material each time the

generator set required maintenance. See Sebright Dep. II at

208:2-22.

Poulson remembers that Sebright supervised but also

performed maintenance work on the two generators on the upper

level of the fire room on the USS Little Rock. Poulson Dep. at

82:14-84:13. This involved turning off one generator while

continuing to operate the other. Id. at 84:02-84:13. To access

the parts of the generator that required maintenance, the fire

room crew, including Sebright, would remove insulation pads from

the equipment and lay them on the ground. Id. at 183:9-184:9.

When finished, the crew, including Sebright, would put the

generator parts back together and re-apply the insulation pads.

Id. at 83:18-84:12, 69:1-17. Poulson describes the insulation

pads as being made of asbestos. Id. at 69:1-12.

On the USS Boston, Sebright conducted scheduled maintenance

work on his generator and the associated valves and pumps.

Sebright Dep. I at 75:15-77:11, 195:2-21. This work included

cutting away insulation material, replacing leaking valves, and

repacking equipment. Id. at 117:13-119:6.

C. Undisputed Facts as to Velan

Velan manufactures valves. Pl.’s SOF Velan, Ex. 15; Dep.

Ewart Francois (“Francois Dep.”) 22:6-22, ECF No. 175-16. Ewart

Francois, a Velan representative, was deposed on June 30, 2011

in the unrelated matter of Hays v. A.W. Chesterton, Inc., E.D.

PA Civil Action No. 09-93728-ER. See id. at 1. Velan began

manufacturing valves in 1950, several years after the USS Boston

and the USS Little Rock were built and commissioned by the Navy.

Id. at 28:10-12; Banaszewski Aff. ¶ 10.

Valves on steam-powered vessels are disposable items that

are replaced frequently during operation of the vessel. Poulson

Exp. Dep. II at 293:4-14. A vessel includes a great number of

different types of valves for different purposes. Id. at

308:11-310:13. Whereas some types of valves require thermal

insulation to prevent a loss of thermal energy, other types,

such as fuel oil or potable water valves, do not. Id.

Velan is not listed as a manufacturer for “major equipment

present during the construction and overhauls of the USS Boston”

in the ship’s records. See Velan’s SOF ¶ 5 (citing Velan’s SOF,

Ex. B, JRG Asbestos Research, ECF No. 168-2; Velan’s SOF, Ex. C,

JRG Asbestos Research, ECF No. 168-3). Sebright did not

identify Velan as a manufacturer of valves observed by him on

the USS Boston; he identified only Foster, Chapman, Rockwell,

and Copes. See Sebright Dep. I at 72:16-20.

During his deposition as a fact witness, Poulson did not

identify Velan valves on board the USS Little Rock. See

generally Poulson Dep. In his expert report, however, Poulson

identified Velan as an equipment manufacturer for the USS Boston

and the USS Little Rock. Poulson Rep. at 8. In his deposition

as an expert, Poulson stated that he remembered working on

equipment manufactured by the companies listed in his report.

Poulson Exp. Dep. I at 90:6-22. Poulson reviewed the

specifications of the USS Oklahoma City, a “sister ship” to the

USS Little Rock, to confirm the list of equipment on the ship.

See Poulson Dep. at 36:11-40:19. He then created a list of

equipment manufacturers that he recalled from his work on the

USS Little Rock. See Mem. Supp. Air & Liquid’s Mot. Summ. J.,

Ex. E (“Poulson’s List”), ECF No. 128-5.3 This list does not

include Velan. See id.

As an expert witness, Poulson testified that valves and

other equipment bearing heat or steam on board the USS Boston

and the USS Little Rock would have been insulated and sealed

with asbestos-containing material when Sebright worked on them.

See Poulson Exp. Dep. II at 308:8-310:13. Poulson further

testified that he could not confirm which type of valves Velan

would have supplied to the Navy for use on the USS Boston or the

USS Little Rock. Id. at 314:3-11. Poulson also testified that

he was unable to determine whether Velan sold any valves to the

Navy that contained asbestos-containing gaskets or packing for

use on the USS Little Rock or the USS Boston. Id. at 314:19-

315:9.

3 Velan does not rely on the content of Poulson’s List for

its arguments. Poulson’s List is available on the docket.

Some Velan valves that were sold to the Navy contained

asbestos components. See Francois Dep. at 28:13-29:12.

The only source of evidence for the presence of Velan

valves in Fire Room 2 on board the USS Boston is Hiltz’s

deposition testimony. See Hiltz Dep. at 134:7-136:6. During

Velan’s direct examination on valves, Hiltz testified that

“Velan looked familiar.” Id. at 135:22. Hiltz estimated that

there were between 30 to 60 valves in Fire Room 2 of the USS

Boston. Id. at 134:7-136:6. He further estimated that

approximately one sixth of these valves, or approximately five

to ten valves, were manufactured by Velan. Id. Hiltz testified

that he saw Velan valves less often than other valves. Id. at

135:22-24. Hiltz also testified that approximately 75% of the

valves in Fire Room 2, including the Velan valves, were re-

packaged and re-gasketed while the USS Boston was in the Boston

Naval Shipyard. Id. at 149:18-150:6. This work included the

removal of valve insulation, including from Velan valves, to

access leaking flanges. Id. at 158:23-159:23. According to

Hiltz, he would use a knife to cut away insulation material.

Id. Hiltz testified that this process created dust, which

everyone working in the area would inhale. Id. Hiltz further

testified that he hammered out gaskets on valves, including

Velan valves, and that he believed that the resulting dust

contained asbestos. Id. at 165:13-169:2.

Hiltz also testified that Sebright worked within 15 to 40

feet of Hiltz’s work and that Sebright had to walk across the

boiler room space where Hiltz worked to get to his own

workspace. Id. at 154:23-155:24.

Tsai does not mention Velan in her expert report. See

generally Tsai Rep. with Add; see also Tsai Dep. III at 588:24-

589:2; Tsai Dep. II at 247:21-248:7. In her deposition

testimony, Tsai also confirmed that she did not have any

specific information regarding whether any equipment

manufactured by any particular company, including Velan,

contained asbestos. See Tsai Dep. III at 456:10-16, 589:8-24;

Tsai Dep. II at 246:16-248:17.

V. ANALYSIS

A. Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A dispute regarding a material fact is

considered genuine “if the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Conversely,

“[w]here the record taken as a whole could not lead a rational

trier of fact to find for the non-moving party, there is no

‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat.

Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).

“[T]he plain language of Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that

party’s case, and on which that party will bear the burden of

proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). “When the moving party has carried its burden under

Rule 56(c), its opponent must do more than simply show that

there is some metaphysical doubt as to the material facts.”

Matsushita, 475 U.S. at 586. In determining the merits of a

summary judgment motion, “the court should review all of the

evidence in the record.” Reeves v. Sanderson Plumbing Products,

Inc., 530 U.S. 133, 150 (2000). “In doing so, however, the

court must draw all reasonable inferences in favor of the

nonmoving party, and it may not make credibility determinations

or weigh the evidence.” Id.

B. Applicable Law

In relation to the issue of substantial factor causation

and the applicable test for establishing exposure to asbestos,

Sebright appears to rely on Massachusetts law.4 See Pl.’s Opp’n

4 Sebright’s reliance on Massachusetts law in his memorandum

in opposition to GE’s motion for summary judgment contradicts

GE 2. GE argues that maritime substantive law ought apply

because Sebright’s alleged injuries occurred aboard naval

vessels in a manner that allows for federal maritime

jurisdiction. See GE’s Reply 5-6.

At the November 10, 2020 hearing, the Court held that

maritime law governs the dispute at hand. See Tr. 27.

Maritime jurisdiction applies to personal injury claims if

the alleged injury satisfies the “location” and “connection”

tests. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock

Co., 513 U.S. 527, 534 (1995). The “location” test asks whether

the injury occurred in or was caused by a vessel on navigable

waterways, and the “connection” test asks whether the type of

incident has a “substantial relationship to traditional maritime

activity” and “a potentially disruptive impact on maritime

commerce.” Id. (quotations omitted). The location test is

satisfied if some of the alleged asbestos exposure occurred on

navigable waters. See Conner v. Alfa Laval, Inc., 799 F. Supp.

2d 455, 467 (E.D. Penn. 2011). This requirement is met here

Sebright’s arguments made in an earlier pleading filed in the

instant case in response to a motion for summary judgment filed

by Air & Liquid. Compare Pl.’s Opp’n GE 2 with Pl.’s Opp’n Air

& Liquid 3. In his memorandum in opposition to Air & Liquid’s

motion, Sebright argued that maritime substantive law ought

apply in this context because his injuries occurred aboard naval

vessels in a manner that allows for federal maritime

jurisdiction. See Pl.’s Opp’n Air & Liquid 3 (citing Jerome B.

Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527,

534 (1995)).

because at least some of the alleged exposure to asbestos

products occurred while Sebright was deployed at sea. See

Sebright Dep. I at 75:5-24. The connection test is also

satisfied because injuries incurred while conducting operations

and maintenance on a vessel bear a substantial relationship to,

and have a potentially disruptive impact on, maritime commerce.

See Lambert v. Babcock & Wilcox, Co., 70 F. Supp. 2d 877, 884

(S.D. Ind. 1999); Conner, 799 F. Supp. 2d at 465; John Crane,

Inc. v. Jones, 650 S.E. 2d 851, 854-55 (Va. 2007). For example,

in Lambert v. Babcock & Wilcox, Co., the district court,

applying Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock

Co., 513 U.S. 527, held that maritime jurisdiction applied to

the case of a technician on a naval vessel who was exposed to

asbestos while working in the boiler room because the

maintenance of the boiler room was essential to the ship’s

participation in maritime commerce. 70 F. Supp. 2d at 884.

Thus, this Court may exercise maritime jurisdiction over the

case.

Generally, “[w]ith admiralty jurisdiction comes the

application of substantive admiralty law.” East River S.S.

Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986);

see Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 410 (1953)

(holding that admiralty substantive law applied in a case

originally brought in diversity, when the court also had

admiralty jurisdiction); In re Asbestos Prods. Liab. Litig. (No.

VI), 873 F.3d 232, 235 (3d Cir. 2017); Conner, 799 F. Supp. 2d

at 469 (concluding maritime law applied in three cases that had

a sufficient maritime nexus and did not apply in a fourth that

did not).

Admiralty law governs insofar as it conflicts with state

law. See Southern Pac. Co. v. Jensen, 244 U.S. 205, 216 (1917).

The “savings clause” of 28 U.S.C. § 1333, however, reserves “to

suitors in all cases all other remedies to which they are

otherwise entitled.” 28 U.S.C. § 1333(1). This clause has been

interpreted to allow federal courts to apply state law remedies

and causes of action under admiralty jurisdiction so long as

they are not expressly contradicted by admiralty law. See

Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 214-16 (1996)

(allowing application of state wrongful death remedy when

federal law reserved the remedy to the states).

C. Count I: Negligence5

In count I, Sebright seeks damages for conscious pain and

suffering based on the defendants’ alleged failure to instruct

and warn him of the dangers associated with the handling and use

of the defendants’ allegedly asbestos-containing products during

his service on board the USS Boston and the USS Little Rock.

5 Sebright chose not to advance a cause of action sounding

in strict liability. See Am. Compl. ¶ 4.

See Am. Compl. ¶¶ 12-18. Sebright also claims that the

defendants owed a continuing duty to instruct and warn him. Id.

¶ 14.

Sebright’s claim, as advanced, is a product liability

claim. Id. ¶ 4. In duty-to-warn cases, courts consider causes

of action sounding in strict liability and negligence as very

similar, if not interchangeable. See May v. Air & Liquid Sys.

Corp., 129 A.3d 984, 998 (Md. 2015); In re N.Y.C. Asbestos

Litig., 59 N.E. 3d 458, 475 n.7 (N.Y. 2016).

Maritime law has recognized principles of negligence and

product liability. See Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 631–32 (1959); East River, 476

U.S. at 865.

To recover under a negligence theory, Sebright must

demonstrate, inter alia, that GE had a duty to warn him of the

dangers of asbestos posed by the equipment in the fire rooms of

the USS Boston and the USS Little Rock that had been

manufactured and supplied by GE to the Navy. See In re N.Y.C.

Asbestos Litig., 59 N.E. 3d at 469. The question has been the

subject of a recent Supreme Court decision in the maritime law

context in Air and Liquid Systems Corp. v. DeVries, 139 S. Ct.

986 (2019).

1. Duty to Warn

GE contends that there is insufficient evidence for a jury

to infer that the factual bases for the requirements enumerated

in DeVries are met. See GE’s Mem. 7-17. Sebright disagrees.

See Pl.’s Opp’n GE 7-19.

In DeVries, the Supreme Court considered the question of

whether a manufacturer of a product has a duty to inform and

warn of the dangers posed by a product in the maritime context

if the dangerous elements were added to the product after the

manufacturer delivered it to the customer. 139 S. Ct. at 991.

The Supreme Court resolved a circuit split on this issue. Id.

at 992-93. One line of reasoning adopted by some courts prior

to the DeVries decision was to impose a duty to warn if it were

foreseeable to a product manufacturer that its product would be

used together with a dangerous element or other product. See,

e.g, Kochera v. Foster Wheeler, LLC, Case No. 14-CV-29-SMY-SCW,

2015 WL 5584749, *4 (S.D. Ill. Sept. 23, 2015); Chicano v.

General Elec. Co., No. Civ.A. 03-5126, 2004 WL 2250990, *9 (E.D.

Pa. Oct. 5, 2004). The opposite approach was to impose no duty

to warn if the product had been supplied to the customer “bare

metal,” i.e., without a dangerous element, and the dangerous

element was added later by the customer. See, e.g., Lindstrom

v. A-C Prod. Liab. Tr., 424 F.3d 488, 492, 495-97 (6th Cir.

2005); Evans v. CBS Corp., 230 F. Supp. 3d 397, 403–05 (D. Del.

2017); Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1041 (D. Haw.

2013). A third approach struck a middle ground between the two

others, providing that a product manufacturer has a duty to warn

if its product requires the use of dangerous elements and the

“manufacturer knows or has reason to know that the integrated

product is likely to be dangerous for its intended uses.”

DeVries, 139 S. Ct. at 993-94; see, e.g., Quirin v. Lorillard

Tobacco Co., 17 F. Supp. 3d 760, 769–70 (N.D. Ill. 2014).

In DeVries, the Supreme Court adopted the third, middle-

ground approach in the maritime law context and established a

new three-prong test (“the DeVries test”) to determine whether a

manufacturer has a duty to warn of a dangerous product:

In the maritime tort context, a product manufacturer

has a duty to warn when (i) its product requires

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.

139 S. Ct. at 995. As in the instant case, the plaintiffs in

DeVries were Navy veterans who had served aboard Navy vessels

for several years before being diagnosed with cancer. Id. at

991-92. The defendants in DeVries, some of which were or are

still parties to the instant action, were manufacturers of

equipment which required asbestos-containing parts and

insulation to function properly. Id. at 991. The plaintiffs

claimed that their cancer was caused by exposure to the

manufacturers’ asbestos-containing products while they were

working on board Navy vessels. Id. at 992. As in the case at

bar, the plaintiffs in DeVries advanced their claims under

maritime tort law theories of negligence and product liability.

Id. at 993. For their part, some of the manufacturers relied on

the “bare-metal defense,” claiming that their products were

supplied to the Navy free of asbestos-containing elements and

that those elements were added to their product later by the

Navy. Id. at 991. In rejecting the manufacturers’ “bare-metal

defense”, the Supreme Court pointed out that a product

manufacturer is in a better position to warn users of dangers

associated with a product than a parts manufacturer, and that a

duty to warn does not impose undue burdens on product

manufacturers. Id. at 994-95.

a. General Considerations

It is the role of the federal courts to fill the DeVries

test with life and meaning when administering their maritime

jurisdiction. See Exxon Shipping Co. v. Baker, 554 U.S. 471,

489-90 (2008).

In its decision in DeVries, the Supreme Court expressly

recognized the special responsibility of the federal courts for

the welfare of seamen generally and for the Navy veterans and

their families specifically. See 139 S. Ct. 995; see also

Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 417

(2009).

GE contends that the decision in DeVries is to be applied

narrowly. See GE’s Mem. 7; GE’s Reply 11 & n.4. Sebright

argues that the decision has a wider scope. See Pl.’s Opp’n GE

9.

Describing the decision as “tightly cabined,” the Supreme

Court in DeVries emphasized that its ruling “applies only in

certain narrow circumstances”: cases in which a product requires

a dangerous element in order to function as intended. See 139

S. Ct. at 995. The Court did, however, clarify that the new

rule also applies in “certain related situations, including”

when a product requires replacement parts in the future and when

a product would be useless without the part, “so long as 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.” Id. at 995-96. The use of the word

“including” suggests that this list of additional circumstances

is not exclusive. See id. at 995.

The fact that the three prongs of the newly established

DeVries test are connected by the word “and” signifies that the

requirements are cumulative, meaning that Sebright must

establish all three prongs of the test at trial. See id.

b. Classification of Equipment and Whether it

was Dangerous

The products at issue in the instant case are the turbine

sets supplied by GE to the Navy for use in the fire rooms of the

USS Boston and the USS Little Rock when the vessels were built

in the 1940s. See GE’s SOF ¶¶ 1, 34, 35. GE asserts that the

turbine sets for both vessels were delivered to the Navy in a

“bare metal” state, i.e., lacking exterior insulation. See GE’s

SOF ¶ 1.6 It has not been established that the turbine sets

contained interior asbestos components. See Pl.’s SOF GE, Ex.

20, Dep. Under Oral Examination David Skinner (“Skinner Dep.”)

92:9-93:7, ECF No. 171-21.7 It has been established, however,

that the turbine elements of the GE generator sets were

insulated with lagging pads. See Sebright Dep. II at 208:2-22;

Poulson Dep. at 174:4-176:9.

As a threshold issue, GE contends that Sebright failed to

demonstrate that the lagging pads contained asbestos, i.e., that

they are “dangerous” under DeVries. See GE’s Reply 6-7. With

respect to insulation pads applied to the GE turbine on the USS

6 At Pl.’s SOF GE ¶ 1, Sebright contends that the generator

sets were supplied with asbestos-containing packing, gaskets, or

insulation.

7 Contrary to Sebright’s assertions in Pl.’s SOF GE ¶ 1,

Skinner does not state that “all GE marine turbines had asbestos

gaskets through at least the 1960s.” Skinner answers the same

direct question once in the affirmative and once in the

negative. See Skinner Dep. at 92:9-93:7.

Boston, Sebright primarily relies on the purported expert

testimony of Poulson, who stated that the steam turbine side of

generator sets on Navy vessels was typically covered with

asbestos insulation. See Pl.’s Opp’n GE 5 (citing Poulson Exp.

Dep. II at 396:9-22). With respect to the insulation materials

applied to the GE turbines on board the USS Little Rock,

Sebright also relies on the testimony of Poulson who testified

that the fire room crew, including Sebright, would remove

insulation pads from the equipment and lay them on the ground.

Poulson Dep. at 183:9-184:9. When finished, the crew, including

Sebright, would put the generator parts back together and re-

apply the insulation pads. Id. at 69:1-17, 83:18-84:12.

Because Sebright has made a “showing sufficient to

establish the existence of an element essential to [his] case,

and on which [he] will bear the burden of proof at trial,” see

Celotex, 477 U.S. at 322, there is a genuine issue of material

fact and summary judgment is not warranted on this issue.

c. Whether Products Require Incorporation of

an Asbestos-Containing Part

GE contends that its turbines were delivered to the Navy

without external insulation. See GE’s SOF ¶ 1. GE and Sebright

expend considerable effort in discussing whether GE’s products

“required” the use of asbestos-containing elements under the

DeVries test. See 139 S. Ct. at 995.

GE argues that in order to prove at trial that the GE

generator set turbines “required” asbestos insulation, Sebright

must demonstrate one of the following: (i) that GE directed the

Navy to use asbestos lagging pads as insulation; (ii) that

asbestos insulation was delivered together with the GE turbines;

or (iii) that the turbines would be useless without asbestos

insulation.8 See GE’s Mem. 12-13; GE’s Reply 12 (citing DeVries,

139 S. Ct. at 995-96).

With respect to element (i), GE contends that Sebright

cannot show that GE directed the Navy to use asbestos lagging

pads as insulation because all the equipment provided to the

Navy by GE was designed and manufactured in accordance with

MILSPECs, which originated with the Navy. See GE’s Mem. 12;

GE’s SOF ¶¶ 79-81. Sebright argues that GE was able to

challenge, revise, and negotiate changes to Navy MILSPECs. See

Pl.’s SOF GE ¶¶ 79-81. In that regard, Sebright relies on the

witness testimony of Everett Ratzlaff to demonstrate that GE had

an impact on Navy specifications for equipment. See id. ¶ 79

(citing Pl.’s SOF GE, Ex. 19, Dep. Everett Ratzlaff (“Ratzlaff

Dep.”) 101:1-102:10, ECF No. 171-20). A review of that

testimony, however, does not support Sebright’s argument.

Ratzlaff expressly states that influencing Navy specifications

8 As discussed above, the list in DeVries, 139 S. Ct. at

995-96, is likely not meant to be exclusive.

was a rare and onerous process that, in the example provided by

Ratzlaff, took over a year. Ratzlaff Dep. at 101:1-102:10.

Ratzlaff’s testimony does not support Sebright’s contention that

GE directed the Navy to use lagging pads that contained

asbestos, let alone any specific elements of equipment.

Lastly, with respect to element (iii), GE argues that the

applicable standard as to whether the GE turbine “required”

asbestos insulation is whether the turbine would be “useless”

without asbestos insulation. GE’s Mem. 12-13; GE’s Reply 12

(citing DeVries, 139 S. Ct. at 995-96). In this context, GE

contends that the generator sets would have been perfectly

operational without any, let alone asbestos-containing,

insulation. GE’s Mem. 12-13; GE’s Reply 12. Sebright contends

that DeVries does not require that a product be rendered

“useless” without a “required” part. Pl.’s Opp’n GE 9.

Sebright further states that operating GE turbines without heat

insulation would result in the overheating of the units. Id.

10. In support, Sebright refers to the deposition testimony

provided by Banaszewski. See id. (citing Banaszewski Dep. at

88:11-89:10). Sebright fails to mention, however, that Skinner

stated in his deposition that operating a GE turbine of the same

kind as those at issue in this case without heat insulation

would be undesirable because there would be negative effects on

the efficiency of the unit due to heat loss and a loss of

response capability because of the development of internal rubs.

See Skinner Dep. at 83:18-85:18. Skinner also confirmed that a

lack of external insulation would mean that the outside of the

unit would be extremely hot and pose a high risk of burn

injuries. Id.

At the outset, the Court notes that, contrary to GE’s

views, DeVries does not provide that the lack of a part must

render a product useless for that part to qualify as “required.”

The reference in DeVries to the term “useless” was made to

clarify a number of “related situations” as examples that the

new rule is meant to encompass. See 139 S. Ct. at 995-96.

Throughout the decision in DeVries, the Supreme Court emphasizes

that a part must be “required” for the product to function as

intended. Id. at 991-96. The Supreme Court’s focus is

therefore on the circumstances and the purpose for which a

product is intended to be used. This is very much in line with

the generally accepted underlying objective of product

liability, which is to protect the user from injury or damage

sustained while using the product for its intended purpose.

See, e.g., In re N.Y.C. Asbestos Litig., 59 N.E. 3d at 472.9 For

9 The decision in In re New York City Asbestos Litigation

was based on New York state law and not maritime legal

principles. See 59 N.E. 3d at 469. It is, however, cited in

the DeVries decision as a basis for the Supreme Court’s

formulation of its new test. See 139 S. Ct. at 996.

the case at hand, this means that the proper inquiry under the

first prong of DeVries is whether the GE turbine could function

as intended, i.e., whether it could perform the purpose for

which it was intended, without heat insulation. The parties

disagree about whether GE’s turbines “required” heat insulation

that contained asbestos. Compare GE’s Mem. 12-13, and GE’s

Reply 12, with Pl.’s Opp’n GE 9-10. The proper inquiry under

the first prong of the DeVries test, however, is whether GE’s

“product requires incorporation of a part.” See 139 S. Ct. at

995 (emphasis added). The test does not require Sebright to

establish under prong one that the part be dangerous on its own.

See id. Rather, DeVries requires that “the integrated product

is likely to be dangerous.” Id. at 996; see also In re N.Y.C.

Asbestos Litig., 59 N.E. 3d at 474 (stating that danger arising

from the combined use of the product, including the part at

issue, triggers the duty to warn). It is therefore not

necessary, under prong one of DeVries, to discuss whether the GE

turbines would have “required” asbestos insulation and whether

alternatives to asbestos insulation materials were available at

the time. The proper inquiry is whether the turbines “required”

heat insulation at all in order to function properly for their

intended uses.

Specifically, Sebright has adduced testimony from Hiltz,

Poulson, and Sebright himself, showing that operating the

generator sets without heat insulation would have rendered the

fire rooms on the USS Boston and the USS Little Rock intolerable

workspaces by increasing an already very high temperature to

unbearable levels. See Hiltz Dep. at 136:22-137:4; Sebright

Dep. II at 180:1-9, 182:5-19; Poulson Dep. at 124:25-125:16,

212:18-214:13, 215:13-18. The generator sets were intended to

be operated in confined and isolated spaces aboard Navy vessels

by Navy sailors. See Poulson Dep. at 214:17-217:4. Without

heat insulation, GE’s generator sets could not have been

operated and maintained in the fire rooms on board the USS

Boston and the USS Little Rock. See Hiltz Dep. at 136:22-137:4;

Sebright Dep. II at 180:1-9, 182:5-19; Poulson Dep. at 124:25-

125:16, 212:18-214:13, 215:13-18. Sebright has therefore

adduced sufficient evidence to allow a reasonable factfinder to

conclude that heat insulation was “required” to be applied to

the exterior of the GE generator sets in order to allow them to

be operated in their intended setting.

Since GE is contesting these issues, a genuine issue of

material fact has been raised in relation to the first prong of

the DeVries test, and summary judgment would be inappropriate.

d. Whether the Manufacturer Knows or has Reason

to Know That the Integrated Product is

Likely to be Dangerous for its Intended Uses

The second prong of the DeVries test asks whether the

manufacturer knew or should have known that the integrated

product is likely to be dangerous for its intended uses. See

139 S. Ct. at 995. Thus, the central question under prong two

is whether GE was aware that its products would be combined with

asbestos heat insulation for use in fire rooms on Navy warships.

See id. It is important to note that the duty to warn in

product liability cases, whether based on strict liability or

negligence, is of a continuous nature. See In re N.Y.C.

Asbestos Litig., 59 N.E. 3d at 472. A manufacturer is therefore

required to warn of dangers that it becomes aware of subsequent

to the sale of its products. Id. It is also important to note

that prong two in DeVries requires knowledge that it is “likely”

that the integrated product is dangerous. 139 S. Ct. at 995.

It does not require a showing of certainty. Id.

GE contends that at the time the two vessels were launched

in the 1940s, GE would not have had reason to know that

maintenance on its equipment would cause asbestosis, lung

cancer, or mesothelioma. GE’s Mem. 14.

The second prong of the DeVries test, however, does not

require knowledge of the likelihood of the occurrence of a

particular set of symptoms or diseases. See 139 S. Ct. at 995.

It merely requires a showing of knowledge or reason to know of a

likely danger posed by the integrated product sold by a

manufacturer. Id.

Sebright’s expert witness Rosner offers testimony that

there is extensive documentary evidence that the Navy and GE

were aware of the dangers associated with inhaling asbestos dust

by the time of World War II. See Rosner Rebuttal 2.

GE claims, in this context, that MILSPEC MIL-I-16411 and

other Navy specifications allowed the use of glass fiber and

other heat insulation materials as a substitute for asbestos

products. See GE’s SOF ¶¶ 85-86; GE’s Mem. 13. Since

alternatives to asbestos products were available to the Navy to

apply to GE’s turbines, GE argues that it could not have known

whether it would have been dangerous to work with or near its

generator sets. GE’s Mem. 13. Sebright contends that any

substitute for asbestos-containing heat insulation material

permitted in Navy specifications required some asbestos

component. Pl.’s SOF GE ¶¶ 85-86.

GE further contends that GE generator sets were designed

and built to require as little maintenance, and therefore as

little contact with asbestos-containing insulation materials, as

possible. See GE’s Mem. 14-15; GE’s SOF ¶¶ 94-96 (citing

Banaszewski Aff. 11-12). GE argues that, on this basis, it

could not have known that its products would pose a danger to

Navy sailors. GE’s Mem. 14-15. In this context, Sebright has

adduced evidence from Poulson, who testified that all equipment

in the fire rooms, including turbine generators, required

periodic maintenance and repairs. See Poulson Exp. Dep. II at

448:4-20. Sebright also provided evidence relating to the

details of such maintenance and repairs for steam generator sets

provided to the Navy by GE. See Pl.’s SOF GE ¶ 94 (citing Pl.’s

SOF GE, Ex. 18, Instruction Book 400-KW AC + 50-KW DC Ship’s

Service Turbine-Generator Set (“Instruction Book”) 26, ECF No.

171-19).

Sebright has raised a genuine issue of material fact in

relation to the second prong of the DeVries test. See 139 S.

Ct. at 995. Summary judgment is therefore inappropriate.

e. Whether the Manufacturer has No Reason to

Believe That the Product’s Users Will

Realize That Danger

Under the third prong of the DeVries test, Sebright is

required to demonstrate that GE had no reason to believe that

the user of its generator set would realize the danger emanating

from the integrated product. See 139 S. Ct. at 995.

As a threshold issue, it will be necessary to establish

whose awareness of any danger is material under the third prong

in DeVries -- in effect, who is the “user” to which prong three

refers. See id. In its original memorandum, GE advanced

arguments that revolved around whether GE had reason to believe

that the Navy would have or should have realized the danger.

See GE’s Mem. 8-12. In its later reply, GE then appears to have

adapted its position slightly to address any possible awareness

by “the Navy or its personnel.” See GE’s Reply 13-15. Sebright

has argued from the outset that the test in prong three of

DeVries refers to Sebright’s awareness as the “end user” of GE’s

product. See Pl.’s Opp’n GE 12.

Generally, product liability protects the user of a product

who may or may not be the initial purchaser. See In re N.Y.C.

Asbestos Litig., 59 N.E. 3d at 470 (quoting McLaughlin v. Mine

Safety Appliances Co., 181 N.E.2d 430, 433 (N.Y. 1962)). The

concept primarily protects the individuals who are likely to be

harmed by the product.10 See id. In the instant case, the

persons most likely to come into contact with GE generator sets

were the equipment operators, not the Navy as an abstract

organization. See Cabasug v. Crane Co., 988 F. Supp. 2d 1216,

1229 (D. Haw. 2013) (citing Mack v. Gen. Elec. Co., 896 F. Supp.

2d 333, 341 (E.D. Pa. 2012)). Sebright, being one such

equipment operator, demonstrably had no knowledge of the

prevalence of asbestos at his workplace when he worked on board

the USS Boston and the USS Little Rock. See Sebright Dep. II at

280:6-281:8; Sebright Dep. I at 169:22-24.

The above interpretation is problematic, however, as

Justice Gorsuch recognized in DeVries, 139 S. Ct. at 999

10 Purely pecuniary interests that are not related to

physical injuries or loss of property can be addressed in breach

of warranty claims. See East River, 476 U.S. at 874.

(Gorsuch, J., dissenting), and as GE contends in its reply, see

GE’s Reply, 13-14. How was GE to know what Sebright or any

other sailor on board the USS Boston or the USS Little Rock

might have known at the relevant time and how can this possibly

be demonstrated at trial? GE argues that the test in prong

three in DeVries is “clearly an objective standard.” GE’s Reply

14. Presumably, this means that the “user” under DeVries is an

abstract concept, instead of a concrete person, perhaps

encompassing a certain class of sailors working with GE’s

products in fire rooms on board Navy vessels at the relevant

time.

This Court holds that the “users” under the third prong of

the DeVries test are any and all potential and actual operators

of specific products. True, the test does not refer to specific

individual(s), as Sebright suggests. See Pl.’s Opp’n GE, 12 &

n.78. As discussed above, the contention that the Navy is to be

considered a “user” under prong three is equally unavailing.11

Notwithstanding the above, the wording of prong three in

DeVries is somewhat confusing. See 139 S. Ct. at 995. First,

11 This appears to have been the basis of the discussion

relating to prong three in DeVries in Hammell v. Air & Liquid

Systems Corp., Civil Action No. 14-00013 (MAS)(TJB), 2020 WL

5107478, at *7 (D.N.J. Aug. 31, 2020). The court in Hammell,

however, did not opine on the interpretation of the term “users”

in prong three of the DeVries test.

all three prongs of the test are formulated in the present

tense, see id., despite the fact that most events that would

likely be relevant for its application occurred sometime in the

past. This makes it difficult to determine whose knowledge at

what point in time may be material under the test.12

Second, under the third prong of the DeVries test, Sebright

is required to demonstrate that GE “has no reason to believe

that the product’s users will realize that danger.” Id. As GE

suggests, it seems sensible to consider the requirement not met

if GE had any reason to believe that a Navy sailor, such as

Sebright, was aware of the presence and dangers of asbestos at

his workspace. See GE’s Mem. 8.13 As the prong is formulated,

however, Sebright is required to demonstrate the absence of GE’s

reasons for believing. See DeVries, 139 S. Ct. at 995.

The origin of the three-prong test in DeVries lies in

Section 388 of the Restatement (Second) of Torts,14 which the

12 If the duty to warn under DeVries is a continuing duty,

arguably what counts is GE’s knowledge at all relevant times.

DeVries makes no determination as to whether the duty to warn is

a continuing duty.

13 In its reply, GE confuses the requirements under the

third prong of the DeVries test by contending that Sebright has

“not proven that there was no reason for GE to believe that the

Navy or its personnel would not realize the hazards of

asbestos.” GE’s Reply 13 (emphasis added).

14 Section 388 of the Restatement (Second) of Torts reads as

follows:

Supreme Court appears to have adopted in part for the purposes

of formulating its new test. See 139 S. Ct. at 993-94 (citing

Restatement (Second) of Torts § 388 (Am. L. Inst. 1965)). This

is helpful for the Court’s attempts to construe and apply the

DeVries test in the case at hand.

Much of GE’s argumentation focuses on the Navy’s awareness

of the dangers of asbestos at different points in time. See

GE’s Mem. 8-10; GE’s SOF ¶¶ 36-65. GE also places great

emphasis on a statement made by Rosner during his deposition to

show that it was reasonable for GE to assume that the Navy would

warn its sailors of the hazards of asbestos. See GE’s Reply 15;

GE’s Mem. 10. GE cites Rosner’s testimony as follows: “General

Electric knew what the Navy knew and that they assumed the Navy

was doing the right thing.” GE’s Mem. 10 (quoting Rosner Dep.

One who supplies directly or through a third person a

chattel for another to use is subject to liability to those

whom the supplier should expect to use the chattel with the

consent of the other or to be endangered by its probable

use, for physical harm caused by the use of the chattel in

the manner for which and by a person for whose use it is

supplied, if the supplier

a) knows or has reason to know that the chattel is or is

likely to be dangerous for the use for which it is

supplied, and

b) has no reason to believe that those for whose use the

chattel is supplied will realize its dangerous

condition, and

c) fails to exercise reasonable care to inform them of its

dangerous condition or of the facts which make it likely

to be dangerous.

II at 107:18-20). GE further refers to Rosner’s testimony that

GE “would have had a reasonable expectation that the Navy would

inform and protect sailors from dangers.” Id. (quoting Rosner

Dep. II at 111:21-112:2). Sebright contends that both

statements were taken out of context and that Rosner did not in

fact purport to make these statements on behalf of GE, nor did

Rosner mean to make a statement regarding GE’s understanding of

the information that the Navy may or may not have communicated

to its sailors. See Pl.’s SOF GE ¶¶ 66-67. Sebright contends

that Rosner’s entire statements should be considered in their

full context, see id., which can be found at Rosner Dep. II at

106:10-107:21, 110:18-113:20. Lastly, GE points to numerous

documents that it purports show GE’s awareness of protective

measures that were introduced by the Navy in the 1970s to

protect “its personnel.” GE’s Mem. 10-12 (citing GE’s SOF ¶¶

68-76; GE’s SOF, Exs. 35-43, ECF Nos. 165-37 to 165-45). In

response, Sebright contends that these documents are not on

point and that the referenced passages are taken out of context.

Pl.’s SOF GE ¶¶ 68-76.

By making the above arguments, GE effectively invokes the

“sophisticated purchaser” defense, which provides that “a

manufacturer or supplier of a product is absolved of liability

for any harm that comes to the ultimate end-user if . . . it was

reasonable for the manufacturer or supplier to rely on the

intermediary to warn the ultimate end user (e.g., the plaintiff

or seaman/employee).” Mack, 896 F. Supp. 2d at 341. Whether

the “sophisticated purchaser” defense applies in the maritime

law product liability context is a matter of debate. See

Stevens v. Foster Wheeler, LLC, C.A. No. 14-157S, 2016 WL

8577465, at *4 (D.R.I. Oct. 14, 2016); Mack, 896 F. Supp. 2d at

339-40. The court in Mack v. General Electric Co. ultimately

rejected the application of the “sophisticated purchaser”

defense in maritime law cases involving alleged exposure of

maritime workers to asbestos. See 896 F. Supp. 2d at 343.

In the context of maritime law, cases involving asbestos

exposure of Navy seamen give rise to special circumstances that

require a careful balancing of interests. See id. at 342; May,

129 A.3d at 988. In the case at hand, this includes the fact

that Sebright might not have recourse against anyone other than

equipment manufacturers.15 Seamen are considered “wards of

admiralty.” See Townsend, 557 U.S. at 417. It is a stated goal

of maritime law to protect “those who are particularly

15 Sebright did not advance a claim against the Navy

presumably because of the Feres doctrine, which provides that

the federal government is not liable under the Federal Tort

Claims Act for injuries to servicemen arising out of or in the

course of activity incident to military service. Feres v.

United States, 340 U.S. 135, 146 (1950). The Court in DeVries

also stated that all suppliers of asbestos components in that

case were bankrupt. 139 S. Ct. at 992. It can be assumed that

this is likely the case in the instant matter as well.

vulnerable to the perils of the sea as a result of their

employment.” Fisher v. Nichols, 81 F.3d 319, 323 (2d Cir.

1996). Instructive in this regard is the decision in Mack:

[R]ecognition of a sophisticated purchaser defense

would have two effects . . . . [A]t least with

respect to Navy seamen, it would have the effect of

leaving them (and their survivors) with no remedy.

This is because the sophisticated purchaser defense

places the burden of warning (and accompanying

liability for failing to warn) on the purchaser of the

asbestos, which, in the case of Navy seaman, was the

United States Navy. As such, the recognition of a

sophisticated purchaser defense under maritime law

would have the effect of thwarting the primary aim of

maritime law of protecting and providing remedies for

those who work at sea.

896 F. Supp. 2d at 342.

Sebright has presented evidence that he was never warned

about the dangers of asbestos. See Sebright Dep. II at 225:9-

226:16, 279:25-280:10. Hiltz and Poulson made similar

statements in their depositions. See Poulson Dep. at 69:6-12,

87:15-21; Hiltz Dep. at 72:5-11. Sebright has also adduced

evidence indicating that both GE and the Navy were aware at the

time the USS Boston and the USS Little Rock were launched, and

when Sebright worked on board both vessels, that asbestos was

harmful to human health, see Rosner & Markowitz Report 17-18;

Rosner Dep. II at 48:1-51:14, and that, apparently, neither

chose to warn sailors like Sebright of its dangers, see Sebright

Dep. II at 280:23-281:8; Sebright Dep. I at 169:22-24.

Support for the views expressed in Mack can be found in the

“Comment on Clause (b)” in section 388 of the Restatement

(Second) of Torts, which reads:

However, the condition, although readily observable,

may be one which only persons of special experience

would realize to be dangerous. In such case, if the

supplier, having such special experience, knows that

the condition involves danger and has no reason to

believe that those who use it will have such special

experiences will enable them to perceive the danger,

he is required to inform them of the risk of which he

himself knows and which he has no reason to suppose

that they will realize.

Restatement (Second) of Torts § 388 cmt. cl. (b) (Am. L.

Inst. 1965). In “Comment on Clause (c)” in section 388 of the

Restatement (Second) of Torts, the following is stated:

Here, as in every case which involves the determination of

the precautions which must be taken to satisfy the

requirements of reasonable care, the magnitude of the risk

involved must be compared with the burden which would be

imposed by requiring them, and the magnitude of the risk is

determined not only by the chance that some harm may result

but also the serious or trivial character of the harm which

is likely to result . . . . [I]f the danger involved in

the ignorant use of a particular chattel is very great, it

may be that the supplier does not exercise reasonable care

in entrusting the communication of the necessary

information even to a person whom he has good reason to

believe to be careful. Many such articles can be made to

carry their own message to the understanding of those who

are likely to use them by the form in which they are put

out, by the container in which they are supplied, or by a

label or other device, indicating with a substantial

sufficiency their dangerous character.

Id. cmt. cl. (c) (citations omitted).

The Supreme Court in DeVries alludes to a balancing of

risks and burdens by stating that to issue a warning requires

relatively little effort compared to the cost of possible

injuries suffered from the exposure to harmful products. See

139 S. Ct. at 995 (balancing the “light burden on manufacturers”

of providing a warning against the Court’s “special solicitude

for the welfare of those who undertake to venture upon hazardous

and unpredictable sea voyages” (quotations omitted)).

Consequently, a balancing of risks and burdens ought take

place under prong three of the DeVries test in each individual

case. The balancing ought include a weighing of the risk of

harm posed by the integrated product to the user against the

time, cost, and effort required of the manufacturer to warn the

user directly of that risk. Thus, if an integrated product

creates a significant and non-obvious risk to a user’s life or

physical wellbeing, and if the manufacturer’s burden of warning

the user of that risk directly is slight, the user is to be

presumed ignorant of the danger posed by the integrated product

under prong three of the DeVries test, whether or not the user

can be expected to be warned of the danger by the product’s

purchaser as well.

It will be for the jury to decide whether the balancing of

risks and burdens in the case before this Court will give rise

to such presumption. An affirmative finding will effectively

preclude the “sophisticated purchaser” defense as mounted by GE

in this case. The Court concludes that, in situations such as

that before it in the case at hand, the above amendment to prong

three of the DeVries test is necessitated by the federal courts’

overarching mandate to protect the interests of seamen in the

absence of applicable statutory law. See Townsend, 557 U.S. at

417.

Here, Sebright’s allegation that he had no knowledge of the

existence or danger arising from the presence of asbestos at his

workplace on board the USS Boston and the USS Little Rock has

not been challenged by GE. See Sebright Dep. II at 280:23-

281:8; Sebright Dep. I at 169:22-24. The same is true of

Sebright’s evidence that Hiltz and Poulson lacked knowledge of

the dangers of asbestos at the time. See Poulson Dep. at 69:6-

12, 87:15-21; Hiltz Dep. at 72:5-11, 166:9-24. Sebright has

also adduced evidence indicating that both GE and the Navy were

aware at the time the USS Boston and the USS Little Rock were

launched, and when Sebright worked on board both vessels, that

asbestos was harmful to human health. See Rosner & Markowitz

Report 17-18; Rosner Dep. II at 48:8-51:14.

On this basis, the Court rules that Sebright has adduced

sufficient evidence to raise a genuine dispute as to material

facts relating to the third prong of the DeVries test. Drawing

every reasonable inference in favor of Sebright as the non-

moving party, see Reeves, 530 U.S. at 150, summary judgment is

inappropriate.

2. Causation

GE contends that Sebright has not demonstrated that an

adequate warning would have prevented Sebright’s injuries. See

GE’s Mem. 15-17.

A products liability plaintiff alleging failure to warn

must prove that “the absence of adequate warnings or

instructions was the proximate cause of plaintiff’s injury.”

Cruz-Vargas v. R.J. Reynolds Tobacco Co., 348 F.3d 271, 276 (1st

Cir. 2003) (quotation omitted).

Sebright stated that had he known about the dangers of

asbestos he would have requested permission from his superiors

to use personal protective equipment. See Sebright Dep. II at

226:18-227:7. Sebright also testified that he thought his

request would have been granted. Id.

GE contends that Sebright would have had to follow lawful

orders as a sailor in the Navy during wartime, even if those

orders had put him at risk of bodily injury. See GE’s Mem. 16-

17; GE’s SOF ¶ 98 (citing Sebright Dep. I at 59:16-60-19;

Sebright Dep. II at 282:13-283:8; Hiltz Dep. at 27:20-28:8;

Rosner Dep. II at 279:11-280:18; Poulson Dep. at 99:10-102:20).

Sebright responds that it was possible to do both things at

the same time; he could have complied with lawful orders while

wearing protective gear. See Pl.’s Opp’n GE 17. In addition,

all the evidence to which GE refers deals with the chain of

command in the Navy and shows that a failure to follow orders

would have resulted in disciplinary consequences. See Sebright

Dep. I at 59:16-60:19; Sebright Dep. II at 282:13-283:8; Hiltz

Dep. at 27:20-28:8; Rosner Dep. II at 279:11-280:18; Poulson

Dep. at 99:10-102:20. The testimony does not, however,

establish that Sebright ever received or would have received an

order not to wear protective equipment when working in the fire

rooms of the USS Boston and the USS Little Rock.

This divergence in evidence places the issue in controversy

and gives rise to a genuine dispute as to a material fact.

Summary judgment is therefore inappropriate.

3. Substantial-Factor Causation

To prove negligence under maritime law, Sebright must show

that there is a causal nexus between his exposure to GE’s and

Velan’s products and his injury. See Lindstrom, 424 F.3d at

492.16 To do so, Sebright must prove that “(1) he was exposed to

the defendant’s product, and (2) the product was a substantial

factor in causing the injury he suffered.” Id. “Total failure

to show that the defect caused or contributed to the accident

will foreclose as a matter of law a finding of strict products

16 DeVries abrogated Lindstrom, see 139 S. Ct. at 994.

Because DeVries addresses only a manufacturer’s duty to warn and

the validity of the “bare metal defense” under maritime law, see

139 S. Ct. at 992, the “substantial factor causation”

requirements imposed by Lindstrom remain applicable.

liability.” Stark v. Armstrong World Indus., 21 F. App’x 371,

376 (6th Cir. 2001). “A mere ‘minimal exposure’ to a

defendant’s product is insufficient to establish causation.”

Krik v. BP Am., Inc., E.D. Pa. Civil Action No. 11-63473-ER,

2012 U.S. Dist. LEXIS 88591, at *13 (E.D. Pa. May 15, 2012)

(quoting Lindstrom, 424 F.3d at 492). “As Lindstrom teaches,

‘the plaintiff must show a high enough level of exposure that an

inference that the asbestos was a substantial factor in the

injury is more than conjectural.’” Krik v. Crane Co., 76 F.

Supp. 3d 747, 753 (N.D. Ill. 2014) (quoting Lindstrom, 424 F.3d

at 492 (quotations omitted)). “[W]hat exposure constitutes

‘minimal’ as opposed to ‘substantial’ exposure depends on the

particular circumstances of each case.” Cabasug, 989 F. Supp.

2d at 1038.

For example, evidence that [the plaintiff] worked on a

vessel in which a Defendant’s products were present,

on its own, is insufficient to raise a genuine issue

of material fact that [the plaintiff] was exposed to

such products . . . . Plaintiffs may, however, raise

a genuine issue of material fact by presenting direct

evidence that [the plaintiff] worked on (or, depending

on the particular fact, near) the asbestos-containing

components of specific products. Alternatively,

Plaintiffs may present circumstantial evidence of

exposure by presenting evidence that the Defendant’s

products were prevalent on the vessels on which [the

plaintiff] worked and that [the plaintiff] regularly

worked on those types of products. In this latter

case, evidence of regarding the prevalence of a

Defendant’s product, combined with evidence of [the

plaintiff’s] regular duties, may support the

reasonable inference that [the plaintiff] worked on a

particular product.

Id. at 1037-38.

“To 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.” Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156,

1162-63 (4th Cir. 1986).

a. Velan

Sebright’s claims against Velan are limited to alleged

asbestos exposure from Velan valves in Fire Room 2 on the USS

Boston. See Pl.’s SOF Velan ¶ 4. Thus, the issue of

“substantial factor causation” is the only one raised by Velan

in support of its motion for summary judgment. See Velan’s Mem.

5-15; Velan’s Reply 3-8. The central question as to Velan is

therefore whether Sebright was exposed to a sufficient degree to

asbestos contained within or combined with Velan’s products

during his work on the USS Boston. See Pl.’s SOF Velan ¶¶ 6-69.

Sebright argues that there is sufficient evidence for a jury to

infer that Velan’s products contributed substantially to his

exposure, Pl.’s Opp’n Velan 2-9, while Velan argues that there

is insufficient evidence to support such an inference as matter

of law, Velan’s Mem. 5-15. For the below reasons, Velan

prevails.

i. Use of Velan Products on Board the USS

Boston

Velan argues that Sebright has been unable to show that

Velan valves were used in Fire Room 2 when Sebright worked

there. See Velan’s Mem. 7-8; Velan’s Reply 7-8. Specifically,

Velan contends that Sebright cannot show that Velan valves were

used on the USS Boston when the vessel was launched, as the

company came into existence several years later. See Francois

Dep. at 28:10-12; Banaszewski Aff. ¶ 10. Velan is also not

listed as a manufacturer for “major equipment present during the

construction and overhauls of the USS Boston” in the ship’s

records. Velan’s SOF ¶ 5 (citing Velan’s SOF, Ex. B, JRG

Asbestos Research, ECF No. 168-2; Velan’s SOF, Ex. C, JRG

Asbestos Research, ECF No. 168-3). Sebright did not identify

Velan as a manufacturer of valves observed by him on the USS

Boston (he identifies Foster, Chapman, Rockwell and Copes).

Sebright Dep. I at 72:16-20. Poulson mentions Velan in his

report as a manufacturer of equipment for the USS Boston and the

USS Little Rock. Poulson Rep. at 8. In his deposition, Poulson

stated that he remembered working on equipment manufactured by

the companies listed in his report. Poulson Exp. Dep. I at

90:6-22. Poulson’s List -- a document listing equipment

manufacturers that he recalled from his work on the USS Little

Rock -- does not include Velan. See generally Poulson’s List.

Sebright’s only fact witness to identify Velan valves in Fire

Room 2 on board the USS Boston is Hiltz. See generally Hiltz

Dep. During Velan’s direct examination on valves, Hiltz

testified that “Velan looked familiar.” Hiltz Dep. at 135:22.

Hiltz estimated that there were between 30 to 60 valves in Fire

Room 2 of the USS Boston. See Hiltz Dep. at 134:7-136:6. He

further estimated that approximately one sixth of these valves

were Velan valves. Id. Hiltz testified that he saw Velan

valves less often than other valves. Id. at 135:22-24.

Sebright’s evidence in support of his claim that he was

exposed to asbestos through Velan’s valves on board the USS

Boston is, at best, borderline to establish sufficiency under

the applicable legal standards. “[A] mere showing that

defendant’s product was present somewhere at plaintiff’s place

of work is insufficient.” Lindstrom, 424 F.3d at 492 (citing

Stark, 21 F. App’x at 376). On the other hand, Hiltz remembers

working on Velan valves. Hiltz Dep. at 134:7-136:6. The fact

that the likely quantity of Velan valves is based on an estimate

should not distract from the fact that Hiltz confirms the

presence of Velan valves in Fire Room 2 of the USS Boston when

Sebright worked there with Hiltz. See id. Drawing all

reasonable inferences in favor of Sebright as the nonmoving

party, see Reeves, 530 U.S. at 150, Sebright has adduced just

enough evidence to give rise to a genuine material factual

dispute, see Fed. R. Civ. P. 56(a).

ii. Whether any Velan Valves on Board the

USS Boston Contained Asbestos

Velan further challenges Sebright’s evidence by stating

that Sebright is unable to show that any Velan valves in Fire

Room 2 on board the USS Boston contained asbestos. See Velan’s

Reply 7-8. Sebright has been able to establish that some Velan

valves that were sold to the Navy contained asbestos components.

See Francois Dep. at 28:13-29:12. The evidence also shows that

valves on steam-powered vessels are disposable items that are

replaced frequently during operation of the vessel. See Poulson

Exp. Dep. at II 293:4-14. Poulson also confirmed that a steam-

powered vessel typically includes a great number of different

types of valves for different purposes. Id. at 308:11-310:13.

While some types of valves require thermal insulation to prevent

a loss of thermal energy, other types, such as fuel oil or

potable water valves, do not. Id.

Tsai does not mention Velan in her expert report. See

generally Tsai Rep. with Add.; see also Tsai Dep. III at 588:24-

589:2; Tsai Dep. II at 247:21-248:7. In her deposition

testimony Tsai confirmed that she did not have any specific

information regarding whether any equipment manufactured by any

particular company, including Velan, contained asbestos. See

Tsai Dep. III at 456:10-16, 589:8-24; Tsai Dep. II at 246:16-

248:17. Poulson testified that equipment, including valves,

bearing heat or steam on board the USS Boston and the USS Little

Rock at the time would have been insulated and sealed with

asbestos-containing material. Poulson Exp. Dep. II at 308:8-

310:13. Poulson further testified, however, that he could not

confirm what type of valves Velan would have supplied to the

Navy for use on the USS Boston or the USS Little Rock. Id. at

314:3-11. Poulson also testified that he was unable to

determine whether Velan sold any valves to the Navy that

contained asbestos-containing gaskets or packing for use on the

USS Boston or USS Little Rock. Id. at 314:19-315:9.

Based on the above, Sebright has been unable to show that

the valves Hiltz identified as Velan valves contained asbestos.

To infer that they likely did would be to assume an element of

Sebright’s claim, which he is required to demonstrate at trial.

On the basis of the adduced evidence, however, Sebright cannot

show at trial that the Velan valves Hiltz identified in Fire

Room 2 of the USS Boston contained any asbestos. Hiltz stated

in his deposition that he could not identify asbestos at the

time he worked for the Navy and that he did not know then that

asbestos was harmful. Hiltz Dep. at 137:22-138:7. Poulson, who

may or may not be able to make this determination on the basis

of his expertise in the asbestos abatement trade, is not a fact

witness on this issue because he has never been on board the USS

Boston. See Poulson Exp. Dep. I at 35:13-14. Drawing all

possible inferences in Sebright’s favor, see Reeves, 530 U.S. at

150, the adduced evidence is insufficient to create a genuine

issue of material fact, see Fed. R. Civ. P. 56(a), and summary

judgment is appropriate.

iii. Whether Sebright had Sufficient Contact

with Velan Products

Lastly, Velan contends that Sebright has failed to adduce

enough evidence to establish that Sebright’s contact with Velan

valves was a “substantial factor” in causing Sebright’s

mesothelioma. See Velan’s Mem. 5-15; Velan’s Reply 5-7. Hiltz

testified that an estimated 75% of the valves in Fire Room 2,

including the Velan valves, were re-packaged and re-gasketed

while he was working in Fire Room 2. See Hiltz Dep. at 149:18-

150:6. This work included the removal of insulation on valves,

including Velan valves, to access leaking flanges. Id. at

158:23-159:23. According to Hiltz, he would use a knife to cut

away insulation material. Id. Hiltz testified that this

process created dust, which everyone working in the area would

inhale. Id. Hiltz further testified that he hammered out

gaskets on valves, including Velan valves, and that he believed

that the material that became airborne during that process

contained asbestos. Id. at 165:13-169:2. Hiltz estimates that

the overlap in concurrent shifts between him and Sebright during

their deployment in Fire Room 2 on the USS Boston was between

50% and 60% of the time. Id. at 68:1-8. Hiltz further

testified that Sebright worked within 15 to 40 feet of Hiltz’s

workspace and that Sebright had to walk across the boiler room

space where Hiltz worked in order to get to his own workspace.

Id. at 154:23-155:24.

Tsai stated that to determine the asbestos exposure risk of

a bystander, she would require information as to the bystander’s

proximity to the work performed, the nature of the work

performed, the duration of the work, whether the work is

performed in a confined space and whether any valves at issue

contained asbestos-containing gaskets and packing. See Tsai

Dep. III at 590:10-601:21. As discussed above, the last element

on this list is unavailable from the adduced evidence. Tsai

confirmed this in her deposition, stating that none of this

information was available to her in order to allow her to opine

as to whether Sebright may have been exposed to asbestos from

work performed on any Velan valves. Id. at 614:17-618:06.

Staggs stated that a bystander’s exposure risk is

determined on the basis of information regarding the bystander’s

proximity to the work that is being performed and the frequency

and regularity with which the proximity occurs. See Staggs Dep.

at 155:4-162:3. He stated that, generally, bystander exposure

is less than direct exposure and that an exposure risk decreases

if proximity to the work at issue decreases. Id. at 157:18-20.

Staggs further stated that the information which he reviewed in

relation to Sebright’s work on and in proximity to asbestos-

containing products was adequate for him to conclude that

Sebright’s exposure was sufficiently substantial and significant

to cause his malignant mesothelioma. See id. at 156:15-157:4;

Staggs Supp. Rep. at 5. Again, as for Tsai’s expert opinion,

for Staggs’ views to be applicable to Velan valves, the evidence

would have to contain sufficient grounds to allow an assumption

that the specific valves at issue contained asbestos. Sebright

has been unable to make this showing.

As stated above, a theoretical or mere “‘minimal exposure’

to a defendant’s product is insufficient” to establish

causation. Lindstrom, 424 F.3d at 492. “[T]he evidence

illustrating the factual controversy cannot be conjectural or

problematic; it must have substance in the sense that it limns

differing versions of the truth which a factfinder must

resolve.” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d

5, 8 (1st Cir. 1990) (quoting Mack v. Great Atl. & Pac. Tea Co.,

871 F.2d 179, 181 (1st Cir. 1989)). Here, no two different

versions of the truth are presented. Sebright’s evidence is

missing an element.

Therefore, even resolving every doubt in favor of Sebright

as the nonmoving party and construing the evidence in the light

most favorable to Sebright, see Reeves, 530 U.S. at 150, the

evidence simply is not sufficient to overcome Velan’s summary

judgment motion. Sebright cannot establish that exposure to a

Velan valve containing asbestos was a substantial factor in

causing his mesothelioma, and his evidence does not allow a

factfinder to decide in his favor with respect to his claims

against Velan. See Liberty Lobby, 477 U.S. at 248. Sebright

cannot show what kind of valves Hiltz identified as being Velan

valves, which is important to establish whether any such valve

would have contained asbestos. Sebright therefore failed to

make a showing sufficient to establish the existence of an

element essential to his case at trial. See Celotex, 477 U.S.

at 322. On this basis, summary judgment is appropriate on

Velan’s motion, ECF No. 166.

b. GE

The central issue as to GE is whether Sebright was exposed

sufficiently to asbestos contained within or combined with GE’s

products during his work on either the USS Boston or the USS

Little Rock. See Pl.’s SOF GE ¶¶ 1-33. Sebright argues that

there is sufficient evidence for a jury to infer that GE’s

products contributed substantially to his exposure, see Pl.’s

Opp’n GE 2-7, while GE argues that there is insufficient

evidence to support such an inference as matter of law, see GE’s

Mem. 3-7.

i. Whether the Generator Insulation Pads

Contained Asbestos

GE contends that Sebright cannot establish that the

insulation pads on the GE generator turbines contained asbestos.

See GE’s Mem. 4; GE’s Reply 6-7.

With respect to insulation pads applied to the GE turbine

on the USS Boston, Sebright relies primarily on the expert

testimony of Poulson, who stated that the steam turbine sides of

generator sets on all Navy vessels at the relevant time were

typically covered with asbestos insulation. See Pl.’s Opp’n GE

5 (citing Poulson Exp. Dep. II at 396:9-22, 455:16-456:2). With

respect to the insulation materials applied to the GE turbines

on board the USS Little Rock, Poulson testified that the fire

room crew, including Sebright, would remove insulation pads from

the equipment and lay them on the ground. See Poulson Dep. at

183:9-184:9. When finished, the crew, including Sebright, would

put the generator parts back together and re-apply the

insulation pads. Id. at 69:1-17, 83:18-84:12. Poulson learned

to identify asbestos products after he left the Navy and joined

the asbestos abatement trade. Id. at 69:6-12, 85:4-24, 87:15-

21; Poulson Exp. Dep. I at 171:4-172:1. Poulson stated that he

learned to differentiate between types of asbestos on the basis

of exterior color. Poulson Exp. Dep. II at 390:21-391:24. He

also stated that his previous preliminary identifications of

asbestos samples have been confirmed “by bulk analysis, by

industrial hygienists, 100 percent of the time. I’ve never been

wrong. Ever.” Id. at 391:21-24. Even if Poulson does not

qualify as an expert under Federal Rule of Evidence 702 and his

opinions are limited to his own observations and Federal Rule of

Evidence 701, his testimony permits a reasonable inference in

Sebright’s favor, which creates a genuine dispute as to a

material fact on the issue of whether the lagging pads contained

asbestos.

ii. Whether Sebright Performed Work in

Proximity to Generators

GE further contends that Sebright failed to demonstrate

that he performed any work on or near either the generator sets

at issue or their insulation during his work on the USS Boston

and on the USS Little Rock. GE’s Mem. 4-5. Sebright has,

however, adduced evidence that he was present during maintenance

work on his generator performed by more senior firemen during

the initial overhaul period on board the USS Boston. See

Sebright Dep. I at 71:4-72:3. The senior firemen’s work

included repacking valves and pumps associated with “his”

generator set. Id. at 72:10-73:11. Sebright’s primary duties

were to clean up after them. Id. at 71:21-72:3. Sebright also

testified that he conducted preventative maintenance work on the

generator set and the associated valves and pumps on a regular

basis. Id. at 75:15-77:11, 195:2-21. Sebright’s duties also

included the cleaning of his workspace on and around the

generator set. Hiltz Dep. at 170:5-15. Again, with respect to

the insulation materials applied to the GE turbines on board the

USS Little Rock, Sebright relies on the witness testimony of

Poulson who testified that the fire room crew, including

Sebright, would remove insulation pads from the equipment and

lay them on the ground. See Poulson Exp. Dep. II at 183:9-

184:9. When finished, the crew, including Sebright, would put

the generator parts back together and re-apply the insulation

pads. Id. at 69:1-17, 83:18-84:12. Sebright testified that he

had to remove the lagging pads on the turbine units of his

generator set about four times a year to conduct regularly

scheduled preventative maintenance. Sebright Dep. II at 193:1-

194:17. He stated that “it always had a heavy layer of dust

under there.” Id. at 193:12-13. He also testified that the

dust became airborne and that he inhaled it. Id. at 193:14-18.

The above evidence raises enough of an inference to create a

genuine dispute as to a material fact on the issue of whether

Sebright worked on or near the insulation material associated

with the GE generator set on both the USS Boston and the USS

Little Rock.

iii. Sufficiency of Asbestos Exposure

Lastly, GE contends that Sebright failed to establish that

his work on or near the generator sets exposed him to asbestos

to a degree sufficient to be a substantial factor in causing his

injuries. See GE’s Mem. 6-7.

Sebright stated that he inhaled dust from underneath

asbestos insulation lagging on the GE generator turbine at least

about four times per year. See Sebright Dep. II at 193:1-

194:17. Assuming that this occurred only on board the USS

Little Rock, where Sebright was deployed for two years between

November 1974 and 1976, Sebright Dep. I at 20:12-13, 109:1, this

particular exposure occurred at least eight times. This

evidence alone raises an inference of more than minimal

exposure. See Lindstrom, 424 F.3d at 492.

GE further contends that Sebright’s expert evidence is

insufficient to establish “substantial factor causation” under

Lindstrom. See GE’s Mem. 6-7; GE’s Reply 11. Sebright has

adduced evidence from Tsai, who stated that Sebright’s asbestos

exposure on board the two naval vessels would have been

thousands to millions of times higher than the background

concentration. See Tsai Rep. with Add. at 13. Due to the lack

of sampling data, however, Tsai does not provide a quantitative

assessment of Sebright’s exposure to asbestos during his work in

the Navy. See Tsai Dep. III at 545:5-15; 585:1-9. She also

does not provide a product-specific allocation of Sebright’s

exposure risk. Id. at 589:1-24. Sebright’s expert witness

Staggs stated that the information which he reviewed in relation

to Sebright’s work on and in proximity to asbestos-containing

products was adequate for him to conclude that Sebright’s

exposure was sufficiently substantial and significant to cause

his malignant mesothelioma. Staggs Supp. Rep. at 5; Staggs Dep.

at 156:15-157:4.

The above evidence raises a genuine issue of fact as to

whether Sebright was exposed to GE’s asbestos-containing

generator set, and whether this exposure was a substantial

factor in causing his mesothelioma. Summary judgment on this

issue is therefore inappropriate.

D. Count II: Breach of Express and Implied Warranties

In count II, Sebright seeks to recover for breach of

express and implied warranties, asserting that GE’s products

were not merchantable, safe, suitable, or fit for their ordinary

purposes due to their toxicity. See Am. Compl. ¶¶ 19-26.

Neither GE nor Sebright raise any independent arguments in

their briefs related to count II, and no additional facts are

addressed by the parties.

On this basis, GE’s motion for summary judgment relating to

count II of Sebright’s complaint is DENIED.

E. Counts III and IV: Loss of Parental Society and Loss

of Consortium

Sebright further claims loss of parental society in count

III, brought on behalf of Sebright’s severely disabled daughter

Caitlin Sebright, see id. ¶¶ 27-29, and loss of consortium in

count IV, brought by Sebright’s wife Suzanne Sebright, id. ¶¶

30-32.

The issue whether loss of consortium and loss of parental

society claims are available remedies under maritime law

principles (and whether or to what extent state law applies) was

discussed during the November 10, 2020 hearing, but no ruling

was made by the Court. See Tr. 19:21-20:8. The parties were

invited to file, and subsequently did file, supplemental briefs

on the issue. See Pl.’s Mem. Supp.; GE’s Mem. Opp’n.

This Court held in Horsley v. Mobil Oil Corp., 825 F. Supp.

424 (D. Mass. 1993), aff’d, 15 F.3d 200 (1st Cir. 1994), on the

basis of the Supreme Court’s decision in Miles v. Apex Marine

Corp., 498 U.S. 19 (1990), that loss of consortium claims are

precluded in personal injury actions by Jones Act17 seamen, see

Horsley, 825 F. Supp. at 427. The Court further decided that

the same result applies to parental consortium claims and claims

that are based on general maritime law principles rather than

the Jones Act. Id. at 427 n.4. (citing Murray v. Anthony J.

Bertucci Constr. Co., 958 F.2d 127, 132 n.3. (5th Cir. 1992)).

Lastly, the Court decided that if a corresponding remedy is

available under state law, it must not be applied to contradict

17 These actions are brought pursuant to 46 U.S.C. § 30104.

maritime law principles. Id. In this jurisdiction, therefore,

state law remedies are unavailable to spouses and dependents of

injured seamen under Massachusetts state law, since the general

maritime law does not permit them. Id.

Sebright argues that this approach is inapposite in the

present factual setting, following the Supreme Court’s decision

and reasoning in Atlantic Sounding Co. v. Townsend, 557 U.S. 404

(2009). See Pl.’s Mem. Supp. 2-7.

Sebright places much reliance on Townsend, applying its

reasoning analogously to the facts of the present case. See id.

at 5-7. In Townsend, the Supreme Court decided that punitive

damages for willful and wanton disregard of maintenance and cure

obligations are available as matter of general maritime law

because they existed in tandem with and outside the scope of the

Jones Act remedies. 557 U.S. at 424. The Supreme Court in

Townsend, however, expressly distinguished the facts of the case

from those in Miles. See id. at 420-22. Miles therefore

remains good law, and with it, this Court’s decision in Horsley.

Sebright further points out that Miles involved Jones Act

claims, whereas Sebright expressly does not seek remedies under

the Jones Act. Pl.’s Mem. Supp. 3. On this basis, Sebright

argues that because he seeks remedies under a product liability

cause of action that exists independently within maritime law,

the Townsend principles ought apply here. Id. at 3-5.

The Court sees no reason to depart from an established line

of precedent in Horsley that is unimpaired and, above all, on

point. As matter of stare decisis, this Court is bound by the

First Circuit’s affirmance of its own decision in Horsley. See

generally 15 F.3d 200. The cases cited by Sebright which

expressly allow loss of consortium claims under general maritime

law, applying the Townsend approach, are not binding on this

Court because they originate in other federal circuits. See

generally Morgan v. Almars Outboards, Inc., 316 F. Supp. 3d 828

(D. Del. 2018); Barrette v. Jubilee Fisheries, Inc., No. C10-

01206 MJP, 2011 WL 3516061 (W.D. Wash. Aug. 11, 2011).

The Supreme Court decision in Yamaha Motor Corp. v.

Calhoun, 516 U.S. 199, which allows the application of state law

remedies “for the wrongful deaths of nonseafarers in territorial

waters,” id. at 215, is distinguishable from the matter before

the Court. As discussed in the applicable law section above,

see supra section V.B., because Sebright allegedly incurred his

injuries while conducting operations and maintenance on a

vessel, maritime law applies in this case. See Lambert, 70 F.

Supp. 2d at 884; Conner 799 F. Supp. 2d at 465; John Crane, 650

S.E. 2d at 854-55. Sebright cannot, therefore, be considered a

“nonseafarer,” and Calhoun is distinguishable from the present

case on this basis.

Accordingly, counts III and IV are not cognizable under

general maritime law. The Court therefore ALLOWS GE’s summary

judgment motion as to those counts.

F. Government Contractor Defense

GE claims that Sebright’s claims against it are barred by

the government contractor defense under the requirements

established in Boyle v. United Technologies Corp., 487 U.S. 500,

512 (1988). See Answer Am. Compl. GE 20, ECF No. 83.18 “The

government contractor defense . . . generally immunizes

government contractors from civil liability arising out of the

performance of federal procurement contracts.” Bailey v.

McDonnell Douglas Corp., 989 F.2d 794, 797 (5th Cir. 1993). For

GE to obtain summary judgment based on this defense, GE must

demonstrate that: (1) the Navy approved reasonably precise

specifications; (2) the equipment conformed to those

specifications; and (3) GE warned the Navy about the dangers in

the use of the equipment that were known to GE but not to the

Navy. Boyle, 487 U.S. at 512.

Since GE is moving for summary judgment on an affirmative

defense upon which it bears the burden of proof at trial, it

must demonstrate “the absence of a genuine issue of material

18 The defense is labeled “Seventy-First Affirmative

Defense,” but ought have been labeled “Seventy-Second

Affirmative Defense.”

fact as to all three (3) prongs of the Boyle test.” See Willis

v. BW IP Int’l Inc., 811 F. Supp. 2d 1146, 1157 (E.D. Pa. 2011).

As a threshold issue, Sebright contends that the government

contractor defense does not apply in failure to warn situations.

Pl.’s Opp’n GE 17-19. Specifically, Sebright argues that Boyle

was a design defect case, and therefore, the rationale that led

to the establishment of the three-prong test therein does not

apply. Id. 18. In support of his contention, Sebright relies

on Holdren v. Buffalo Pumps, Inc., 614 F. Supp. 2d 129 (D. Mass.

2009) (Gertner, J.).19 See id. Contrary to Sebright’s argument,

however, Holdren does not preclude the application of the

government contractor defense -- it merely modifies it. See 614

F. Supp. 2d at 142. “In order for a contractor to avoid

liability, the decision not to warn must be the government’s,

not the contractor’s, and it must reflect a federal interest

incompatible with the important health and safety requirements

of state law.” Id. at 137. Under the adapted standard,

according to Holdren, the contractor in failure to warn cases

must demonstrate that: “(1) the government issued reasonably

precise specifications governing warnings; (2) the contractor

provided the warnings required by the government; and (3) the

contractor warned the government about dangers in the

19 The decision in Holdren was made in the context of a

motion for remand. 614 F. Supp. 2d at 135.

equipment’s use that were known to the contractor but not to the

government.” Id. at 142 (citing Hilbert v. McDonnell Douglas

Corp., 529 F. Supp. 2d 187, 198 (D. Mass. 2008) (Gertner, J.)).

In addition, Holdren holds that a manufacturer must show under

prong one of the adapted standard that:

[T]he federal government issued reasonably precise

specifications covering warnings -- specifications

that reflect a considered judgment about the warnings

at issue. Short of this, the manufacturer must show

either back-and-forth negotiations over the warning or

“some extrinsic evidence that the government exercised

independent judgment” in such a way as to preclude the

warning.

Id. at 143 (quoting Hilbert, 529 F. Supp. 2d at 199). The

contractor must show “that the government exercised its

discretion in connection with the warnings in some meaningful

way.” Id. “Put differently, under Boyle, for the military

contractor defense to apply, government officials ultimately

must remain the agents of decision.” In re Joint E. & S. Dist.

N.Y. Asbestos Litig., 897 F.2d 626, 630 (2d Cir. 1990). A

showing that the government had general control over the project

is insufficient, see In re Katrina Canal Breaches Litig., 620

F.3d 455, 461 (5th Cir. 2010), as is mere “rubber-stamping” of a

contractor’s decision, see Trevino v. General Dynamics Corp.,

865 F.2d 1474, 1486 (5th Cir. 1989).

In support of its claim regarding the applicability of the

government contractor defense, GE offers evidence in the form of

Banaszewski’s testimony regarding the level of involvement of

the Navy in the design and manufacture of its equipment by GE.

See Banaszewski Aff. ¶ 4. The referenced passage does not,

however, speak to any Navy requirements relating to warnings.

See id.

Sebright invokes the MIL-I-15024 §3.4.1.7. specification to

support his contention that the Navy required manufacturers to

include warnings on the products manufactured for them, and

therefore, that it was GE’s independent decision not to supply

warnings on its products. Pl.’s Opp’n GE 19 (citing Pl.’s Opp’n

GE, Ex. 32, Interim Military Specification Identification Plates

4, ECF No. 171-33). In contrast, testimony provided by former

GE employee Ratzlaff appears to suggest that the Navy generally

did not require GE to provide warnings with its equipment and

that the Navy would have rejected warning labels because it

wanted to train its own sailors. See Ratzlaff Dep. at 148:7-

149:11. GE also refers to a copy of a photograph of a Navy

maintenance card from 1974 that had been on board a different

World War II vessel (the USS Sperry) as proof that the Navy

exercised its discretion as to whether to warn sailors of the

dangers of asbestos. See GE’s Reply 17-18 (citing GE’s Reply,

Ex. 4, Navy Maintenance Card, ECF No. 183-4).

On the basis of the above evidence, GE is unable to

demonstrate that there is no genuine issue of material fact as

to the elements of the government contractor defense that it is

required to prove at trial. Summary judgment is therefore

inappropriate. Moreover, as Sebright has not squarely admitted

those elements and the jury is free to disbelieve GE’s evidence

even though unrebutted, see Reeves, 530 U.S. 133 at 150-51,

summary judgment cannot issue.

VI. CONCLUSION

In conclusion, the Court DENIES GE’s summary judgment

motion, ECF No. 163, as to counts I and II and in relation to

the application of the government contractor defense, and ALLOWS

GE’s summary judgment motion as to counts III and IV.

The Court ALLOWS Velan’s motion for summary judgment, ECF

No. 166.

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

DISTRICT JUDGE