Gorton v. Air & Liquid Systems Corp.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RHONDA J. GORTON, Personal ) Civ. Action No. 1:17-1110

Representative for the Estate of )

THOMAS D. GORTON, II, and in )

her own right, )

)

Plaintiff, )

v. )

Warren Pumps, LLC, )

)

Defendant. )

OPINION

I. Introduction

Decedent Thomas Gorton (“Mr. Gorton”), the husband of plaintiff Rhonda J.

Gorton (“Mrs. Gorton”), developed mesothelioma, allegedly due to his occupational

exposure to the asbestos-containing products manufactured by, among others,

defendant Warren Pumps, LLC (“Warren Pumps”). Mrs. Gorton brought this lawsuit,

which was removed to this court, on behalf of Mr. Gorton’s estate and in her own right.

Mrs. Gorton reached settlement agreements with many of the defendants in the

litigation. Warren Pumps is the remaining defendant in this case.

Pending before the court is a motion for summary judgment filed by Warren

Pumps. As fully explained in this opinion, the motion for summary judgment will be

granted because—based upon the undisputed evidence of record—a trier of fact could

not find in Mrs. Gorton’s favor with respect to her fraudulent concealment claim and

Warren Pumps is entitled to the government contractor defense, which is a defense to

all other claims asserted by Mrs. Gorton.

II. Procedural History Relevant to the Filing of the Pending Motion for

Summary Judgment

On April 9, 2020, Mrs. Gorton filed the second amended complaint in this case.

(ECF No. 422.) She asserts the following claims against Warren Pumps: (1) product

liability; (2) breach of implied warranty; (3) negligence; and (4) fraudulent concealment.

(Id.) Mrs. Gorton asserts a claim for loss of consortium, which is derivative of the four

other claims she asserts against Warren Pumps. (Id.); Boldt v. Taylor, No. CV 21-

03204, 2022 WL 2803105, at *7 (D.N.J. July 18, 2022). On February 9, 2022, Warren

Pumps filed an answer to the second amended complaint. (ECF No. 563.)

On January 6, 2023, Warren Pumps filed the pending motion for summary

judgment and material statement of facts. (ECF Nos. 595, 596.) On February 13, 2023,

Mrs. Gorton filed a response in opposition to the motion for summary judgment and a

responsive statement of material facts. (ECF Nos. 606, 607.) On February 27, 2023,

Warren Pumps filed a reply brief and a reply statement of facts. (ECF Nos. 609, 610.)

On March 11, 2023, the parties filed the combined concise statement of material facts

(“CCSMF”). (ECF No. 611.) The parties each substituted certain exhibits. (ECF Nos.

612, 614.) The motion for summary judgment having been fully briefed is now ripe to be

decided by the court.

III. Factual Background

A. Mrs. Gorton’s Service of the Complaints upon Warren Pumps

On October 2, 2012, Mrs. Gorton filed a lawsuit in the Dauphin County Court of

Common Pleas against Warren Pumps (and other defendants) alleging that Mr. Gorton

contracted a nonmalignant, asbestos-related injury (the “non-malignancy” lawsuit). The

non-malignancy lawsuit is venued in the Dauphin County Court of Common Pleas.

(CCSMF (ECF No. 611) ¶ 1.) On May 17, 2017, Mrs. Gorton filed this lawsuit in the

Dauphin County Court of Common Pleas, asserting a personal injury claim based upon

the allegations that Mr. Gorton contracted mesothelioma as a result of his exposure to

asbestos (the “personal injury lawsuit”). (Id. ¶ 2.)

On or about May 22, 2017, Mrs. Gorton via “Certified Mail” mailed the complaint

filed in the Dauphin County Court to:

Warren Pumps, LLC

82 Bridges Avenue

P.O. Box 969

Warren, MA 01083

(ECF No. 595-5 at 2.) The “Domestic Return Receipt” indicates that on May 25, 2017,

the delivery was “Received by…D Evans” at the same address. (ECF No. 595-5 at 2.)

Warren Pump’s registered agent was and currently is CT Corporation (“CT

Corp.”) at 155 Federal St. Ste. 700, Boston, Massachusetts 02110. (ECF No. 595-6 ¶

6.) Claims, including asbestos-related injuries, are expected to be served on Warren

Pump’s registered agent, CT Corp., and typically are served on CT Corp. to ensure that

the claim is properly received and defended in the applicable jurisdiction. (ECF No. 595-

6 ¶ 7.) If a legal pleading for asbestos-related claims is sent to Warren Pumps at 82

Bridges Ave, Warren, Massachusetts, it is forwarded to the appropriate handling

attorney for that respective jurisdiction. (ECF No. 595-6 ¶ 8.) Warren Pumps was not

aware of any alleged attempt by Mrs. Gorton to mail anything to Warren Pumps until it

was shown a certified return receipt with a date stamp of May 25, 2017, which indicated

that “D. Evans” signed for a certified mailing. (ECF No. 595-6 ¶ 9.)

Deborah Evans (“Evans”) was a former employee at Warren Pumps from

approximately 2016 to 2020. She was hired to perform administrative tasks. (ECF No.

595-6 ¶ 4.) Evans was not: (1) an executive officer, partner or trustee or Warren Pumps;

(2) a manager, clerk or other person in charge of any regular place of business or

activity of Warren Pumps; or (3) an agent authorized by Warren Pumps in writing to

receive service of process on behalf of Warren Pumps. (ECF No. 595-6 ¶ 5.)

On June 23, 2017, the personal injury lawsuit was removed to the United States

District Court for the Middle District of Pennsylvania based upon federal officer

jurisdiction, pursuant to 28 U.S.C. §§ 1442(a)(1) and 1446. (Id. ¶ 3.)

On March 6, 2018, Mr. Gorton passed away. (Id. ¶ 4.) On July 9, 2018, Mrs.

Gorton filed an amended complaint in this personal injury lawsuit to substitute Mr.

Gorton’s estate as a party and assert an action for wrongful death. On April 9, 2020,

Mrs. Gorton filed a second amended complaint. (Id. ¶ 5.) On October 6, 2021, Mrs.

Gorton filed a motion for entry of default against Warren Pumps, LLC, which was

entered by the Clerk of the Court on the same date. On January 7, 2022, the default

judgment was vacated. (Id. ¶ 6.) The court ordered Mrs. Gorton to serve Warren Pumps

with the second amended complaint on or before January 24, 2022. On January 19,

2022, Mrs. Gorton served the second amended complaint upon Warren Pumps, via CT

Corp. (Id. ¶ 7.)

B. Relevant Depositions with respect to the Motion for Summary Judgment

Mr. Gorton was deposed twice with respect to his exposure onboard the USS

Blue—once in 2011 as a co-worker in a separate case and once in 2017 with respect to

this case. (CCSMF (ECF No. 611) ¶ 13.) Mr. Gorton’s coworker onboard the USS Blue,

Karl Thompson (“Thompson”), was also deposed with respect to this case. (Id.)

On May 17, 2011, Mr. Gorton testified in connection with a lawsuit filed in

Madison County, Illinois, on behalf of Alvin Nall (“Nall”) whom Mr. Gorton met while

serving in the United States Navy. (Id. ¶ 14.) Mr. Gorton and Nall attended electrician

mate school for eighteen weeks. (Id. ¶ 15.) They learned about working with electricity

with respect to electrical motors, controllers, electrical distribution, generators, and other

electrical items. (Id.) In late 1959, Mr. Gorton and Nall were assigned to the USS Blue.

Id.

C. Mr. Gorton’s Service onboard the USS Blue

1. Generally

From 1959 to 1961, the USS Blue performed ship maneuvers and battle

exercises off the coast of California in the Pacific Ocean. (CCSMF (ECF No. 611) ¶

47.) Mr. Gorton boarded the USS Blue toward the end of 1959. (CCSMF (ECF No. 611)

¶ 44.) Warren Pumps manufactured fire and bilge pumps, emergency feed pumps, and

main condenser circulating pumps that were onboard the USS Blue during Mr. Gorton’s

service. (ECF No. 606-6 at 5.) The pumps manufactured by Warren Pumps onboard the

USS Blue utilized braided asbestos packing.1 (ECF No. 606-10 at 7.) Mr. Gorton never

saw a warning on any of the equipment in the compartments below deck from the

manufacturer with respect to the hazards of asbestos. (ECF No. 595-2 at 116.)

2. Mr. Gorton’s Duties as an Electrician Mate

While serving aboard the USS Blue, Mr. Gorton worked as an electrician mate.

He worked an eight-hour shift each day maintaining electrical lighting distribution,

1 Warren Pumps sold pumps to the Navy which included asbestos-containing

gaskets and packing. (CCSMF (ECF No. 611) RSP ¶ 49.)

standing watch on a switchboard in the engine rooms, and maintaining all electrical

devices on the ship, including lighting, motors, and generators. (CCSMF (ECF No. 611)

at ¶ 16; ECF No. 606-2 at 70.) He stood watch four hours per day and then spent the

other four hours of his shift doing repair work on electrical systems on the ship.

(CCSMF (ECF No. 611) ¶ 48.) While one electrician mate stood watch for four hours,

the other electrician mates carried out their assignments throughout various

compartments of the ship. (Id.¶ 17.) There was an electrical shop onboard the USS

Blue where the electrician’s mates performed a lot of their repair work. (CCSMF (ECF

No. 611) ¶ 46.) Mr. Gorton, however, worked in every compartment on the ship.

(CCSMF (ECF No. 611) ¶ 49.)

3. Mr. Gorton’s Work in the Engine Rooms and Boiler Rooms

It was a regular part of Mr. Gorton’s duties to go into the engine room and fire

room onboard the USS Blue. (ECF No. 606-2 at 20.) Mr. Gorton and the other

electricians spent more time in the engine rooms than the aft boiler room or forward

boiler room because the switchboards on which the electricians worked were located in

the engine rooms. (ECF No. 606-2 at 75.) Mr. Gorton was in the aft engine room and

forward engine room every other day or a couple times per week. (Id. at 75-76.) Mr.

Gorton was in the aft boiler room and forward boiler room less than a couple times per

week, but more than once a month. The electricians were “[c]onstantly replacing light

bulbs” in those rooms because the environment in those rooms was “very harsh on

electrical equipment.” (Id. at 76.) In the boiler rooms, Mr. Gorton worked on and around

electrical equipment including level lamps, pump motors, and electrical controllers.

(CCSMF (ECF No. 611) ¶ 50.) While in the engine or fire room, Mr. Gorton cleaned

switchboards with chemicals. (CCSMF (ECF No. 611) ¶ 60.)

4. Duties of Machinist Mates

Machinist mates performed work in the engine rooms onboard the USS Blue.

(ECF No. 606-2 at 17.) Mr. Gorton explained that the machinist mates “would maintain

the ship’s propulsion system, the evaporators,…water purification system, the reduction

hears. They were in charge of all the propulsion system within the engine room.” (Id.)

Mr. Gorton, as an electrician mate, was responsible for the electrical motors on the

pumps located in the engine rooms. The electrical motors were the “driving force that

operated the pump.” (Id. at 18.) Boiler tenders and fire technicians were assigned to the

fire rooms, (Id. at 17-18.)

Machinist mates performed maintenance duties including repairing and replacing

components of the pumps. (ECF No. 606-2 at 19.) Machinist mates were responsible

for using “[p]acking material…[and] gaskets” to make sure the valves and pumps

maintained “the proper seal.” (Id.)

Mr. Gorton described the work he witnessed the machinist mates perform on the

pumps in his presence:

[T]hey would disassemble them from the in-line with the steam lines or the

water lines…and they would either have a replacement pump available or

that section would be isolated to where it would be bypassed until that could

be repaired.

…

I saw…the gasket material they would have to put between the couplings

and the valves.

(ECF No. 606-3 at 33.)

Mr. Gorton could not “recall exactly,” but was “sure” the machinist mates

removed packing material from the pumps in his presence. He explained:

[W]hen they disassembled a valve or disassembled a coupling, there was

[gasket] material used to seal them, prevent the water leaks or steam leaks,

whatever it might be.

(ECF No. 606-3 at 33-33.)

The machinist mates performed the foregoing work in the presence of Mr.

Gorton. (Id.) Mr. Gorton was in the vicinity of a machinist mate when they performed

work on a pump “every time…[he] had a [four-hour] watch.” (Id. at 19-20.) Mr. Gorton

explained:

And then when there was any type of electrical – or electricians

needed in that – in that compartment for any type of work, there was at least

one or two of us available in the engine or fire room.

(ECF No. 606-2 at 20.)

Machinist mates worked on all the pumps onboard the USS Blue. (ECF No. 606-

2 at 50.) Mr. Gorton recalled being present while machinist mates worked on pumps “in

general,” but did not have a specific recollection about the kinds of pumps on which

those machinist mates worked or the manufacturers of the pumps on which the

machinist mates worked. (ECF NO. 606-2 at 50-51.) Mr. Gorton assisted machinist

mates in taking pumps offline. He did the electrical work himself and assisted them in

removal of the pump. He disconnected the electrical motors of the pipes, removed

(unbolted) the pipes, and carried the pipes. (ECF No. 595-2 at 56-57.) Mr. Gorton could

not recall how often he assisted machinist mates in taking pumps offline. (Id. at 56.)

Mr. Gorton was alongside machinists when they disassembled and scraped the

“pieces of the pump[,]” i.e., “when they took it apart, they’d have to scrape the gasket

material loose.” (CCSMF (ECF No. 611) RSF ¶ 18.)

5. Mr. Gorton’s Work on the Pumps

Mr. Gorton’s work on the pumps onboard the USS Blue was “continuous[,]” i.e.,

“every day…[he] had one of them that would fail that…[he would] be working on.” (ECF

No. 606-3 at 40.) There were “a lot” of pumps onboard the USS Blue. (ECF No. 606-3

at 40.) Mr. Gorton could not estimate how many pumps were onboard the USS Blue.

(Id.)

Mr. Gorton worked “in conjunction with the machinist that was working on the

pump” because the work was “all connected together.” (ECF No. 606-3 at 25.) Mr.

Gorton performed the electrical portion of the work on the pumps. (Id.) Mr. Gorton

explained:

[I]f there was a line that had asbestos wrapped around those water

lines or steam lines, they would be disconnected right in our proximity within

a few feet of where we were working.

(ECF No. 606-3 at 25.)

A “controller” or “motor controller” is the switching unit of a pump. (ECF No. 606-

3 at 34.) They had buttons on them and contacts inside of them. When a motor

controller was turned on, it provided power to the pump, i.e., it was the switch for the

pump. (Id.) The motor controllers were comprised, in part, of “Bakelite.”2 Specifically,

2 As discussed below, Bakelite was used in all the controllers and circuit breakers

onboard the USS Blue. Mr. Gorton learned about Bakelite and that it was an asbestos-

containing product at the Navy electrician school. (CCSMF (ECF No. 611) RSF ¶ 23.)

the portion of the motor controller where the contacts of the switch inside the

termination points were on “Bakelite strips,” which were comprised of asbestos. (Id.)

The motor controllers contained asbestos. Mr. Gorton explained:

Anytime the cable passed through a bulkhead, we would handle a

sealing compound made up of asbestos, any type of – in the controllers

there was separators between the circuits that were made of asbestos

material.

It produces a lot of heat. Anytime you have electric flow, you have

heat. There’s a problem with that so it has to be separated by these

insulators.

(ECF No. 606-2 at 20-21.)

“[T]here were times” that when the electrician mates were called to a pump to

disconnect the pump’s power, the electrician mates disconnected the pump’s power

and “could simply walk away from that pump….” (ECF No. 606-5 at 103.) If the

electrician mates needed to work on a motor controller, they would remove it from the

pump and “take it either to work on it on the main deck or to the shop.” (ECF No. 606-5

at 80.) When work was done on the controllers it created dust that he breathed. He

testified that this work was done daily. (CCSMF (ECF No. 611) RSF ¶ 21.) It was a

regular part of Mr. Gorton’s job to work on controllers and there were always at least

one or two malfunctioning controllers on the ship. (CCSMF (ECF No. 611) RSF ¶ 22);

ECF No. 606-3 at 38.) Bakelite was used in all the controllers and circuit breakers

onboard the USS Blue. Mr. Gorton learned about Bakelite and that it was an asbestos-

containing product at the Navy electrician school. (CCSMF (ECF No. 611) RSF ¶ 23.)

The electrician mates and machinist mates or boiler tenders worked “side by

side[,]” i.e., within four feet or less of each other, when the machinist mates or boiler

tenders were packing and repacking the pumps onboard the USS Blue. (ECF No. 606-2

at 23.) Mr. Gorton described the machinist mates or boiler tenders job packing and

repacking the pumps as “disassembling the pump[s].” (Id. at 24.) The machinist mates

scraped pieces of the pump to loosen the gasket material. (Id.) Mr. Gorton learned that

the gasket material was “asbestos-based material.” (ECF No. 606-3 at 33-34.) Mr.

Gorton knew “at the time” that the packing material and the gasket material were made

of asbestos. (ECF No. 606-3 at 167-68.)

The pumps on which Mr. Gorton worked onboard the USS Blue had “a lot” of

different names, including: “Pacific,” “Buffalo,” “Peerless,” “Blue Goulds,” and “Warren.”

(ECF No. 606-2 at 22-23.) Some3 unspecified pumps had insulation wrapped around

them and the insulation was removed from those pumps. (CCSMF (ECF No. 611) ¶ 28.)

Some of the pumps onboard the USS Blue contained insulation, including, but

not limited to, steam pipes. (ECF No. 606-2 at 25.) Sometimes the insulation had to be

removed from the pipes for work to be performed on the pipes. (Id. at 25.) Mr. Gorton

was present when asbestos insulation was removed from those insulation-containing

pumps and he breathed the dust created from the removal of the insulation. (Id. at 25.)

The removal of the insulation from those pipes created dust, in which Mr. Gorton

breathed. (Id. at 25-26.)

3 When questioned about which equipment onboard the USS Blue had insulation on

it, Mr. Gorton responded:

Some of the pumps, the – the valves were wrapped in it, the fuel

lines were wrapped in it. Everything – all the lines, all the pipes were

wrapped with asbestos.

(ECF No. 595-2 at 25.)

Mr. Gorton did not have knowledge about a pump’s repair history or how often it

was repaired or what those repairs were before he boarded the USS Blue. He did not

know if any packing or gasket removed from any pump was original to that pump.

(CCSMF (ECF No. 611) ¶ 33.)

Mr. Gorton admitted that he did not know how many pumps manufactured by

Warren Pumps were on board the USS Blue. (CCSMF (ECF No. 611) ¶ 36.) Mr. Gorton

believed the pumps manufactured by Warren Pumps were in the engine rooms and fire

rooms of the USS Blue. (CCSMF (ECF No. 611) ¶ 37.) Mr. Gorton did not know what

kind of pumps the pumps manufactured by Warren Pumps were, and he could not

describe the size of those pumps. (CCSMF (ECF No. 611) ¶ 38.) Mr. Gorton had no

information about the purpose or function of a Warren Pump or the systems in which a

Warren Pump was used. (CCSMF (ECF No. 611) ¶ 39.)

Mr. Gorton did not have a specific recollection of being around someone

performing work on a Warren Pump when Nall was present. (ECF No. 606-2 at 88.)

Once the electrician mates disconnected the power for a pump, they would not “wait

around” while the machinist mates or boiler tender performed repairs on the pump;

rather, they would “[g]o do something else.” (ECF No. 606-2 at 78.) The electrician

mates were present when the machinist mates or boiler tenders accessed the internal

components of a pump; indeed, Mr. Gorton recalled being the presence of machinist

mates when they replaced bearings and repacked pumps. (Id. at 53.)4 The electrician

mates had to remove gasket material or were “near in the vicinity of someone removing

gasket material.” (ECF No. 606-2 at 107.)

4 This testimony all concerns “Peerless” pumps. (ECF No. 606-2 at 54.)

6. Duties of the Boiler Tenders

Boiler tenders were responsible for the valves in the fire room and engine rooms

on the USS Blue. (ECF No. 606-3 at 32.) Mr. Gorton was present when boiler tenders

worked on the valves. (Id.) He explained the boiler tenders’ work on the valves as

follows:

A lot of leaks would appear, and they would have to shut some

systems down and then replace the gasket material between fittings and or

pumps, and then that’s when we would be involved as electricians to do the

electrical portion.

…

We’d have to shut the power down, and if there was something wrong

with the electrical motor, we’d have to remove that and get it sent over to

the tender to get it rewound or whatever the need might be. Most of the time

it was just water leaks, and the electrical portion was okay, intact.

(ECF No. 606-3 at 33.) The boiler tenders had to remove packing material as part of their

jobs because “when they disassembled a valve or dissembled a coupling, there was

Gask[et] material used to seal them, prevent the water leaks or steam leaks, whatever it

might be.” (Id.)

Mr. Gorton worked directly on electrical equipment that contained asbestos and

on packing material that he used on electrical cables in order to make a watertight seal.

(CCSMF (ECF No. 611) ¶ 30.)

Mr. Gorton encountered thermal pipe insultation when he disconnected pump

motors from pumps. (CCSMF (ECF No. 611) ¶ 51.) When the USS Blue went to sea,

Mr. Gorton was in the presence of thermal pipe insulation5 repairs and the dust it

created. (CCSMF (ECF No. 611) ¶ 52.) Mr. Gorton shut the power down to electrically

5 When an insulated piece of equipment or section of pipe was repaired or

maintained, it was necessary to first remove the insulation. (ECF No. 595-2 at 116.)

driven pumps and repaired the motor or allowed the machinist mate to repair the pump.

(CCSMF (ECF No. 611) ¶ 53.)

7. The 1961 Overhaul of the USS Blue

In 1961, a yearlong shipyard overhaul of the USS Blue occurred to turn the USS

Blue into an antisubmarine ship. (ECF No. 606-2 at 28; ECF No. 606-3 at 18.) The USS

Blue was placed into dry dock at Hunter Points in San Francisco, California. Mr. Gorton

explained:

[F]rom the deck – the main deck up was removed, the stacks, the

mast, the bridge. All the compartments that were above the deck were taken

off the ship.

Down in the engine rooms they overhauled the reduction gears, the

propulsion system, re-rerouting fuel lines, steam lines.

We would stand fire watch down in those compartments and that

[asbestos] dust was common in all the spaces that we worked in.

…

[The asbestos was] [f]rom the fuel lines, the steam lines that were

wrapped in the asbestos material. The yard workers were doing –

performing the work and we were there for fire watch.

(ECF No. 606-2 at 28; ECF No. 606-3 at 18.) Mr. Gorton described the work he performed

during his eight-hour watches as part of the overhaul as follows:

When we removed the entire superstructure, our job was to go in

there and pull everything electrical out of that – all the compartments,

including the bridge.

That had to do with lighting, all the cabling had to be removed, all the

motor controllers, any motors, fans, exhaust fans. Everything that was

electrical we had to remove before they cut the superstructure off.

(ECF No. 606-2 at 29.) The electrician mates “stood watch down…in the engine rooms”

and also “spent time in the fire rooms, engine rooms, and every compartment on the

ship.” (ECF No. 606-3 at 18.)

Thompson and Mr. Gorton were exposed to asbestos during the overhaul of the

USS Blue. The electrician mates stood fire watches for the civilians on board who were

“tearing it all apart” and removing and installing asbestos pipe insulation. (ECF No. 606-

5 at 47.) “[I]t was really a dusty, dirty job….” (Id.)

Mr. Gorton was exposed to asbestos dust during the one-year FRAM overhaul of

the USS Blue at Hunter’s Point Naval Shipyard. As part of the overhaul Mr. Gorton and

his fellow electricians removed all electrical equipment from all the compartments on the

ship, including all the motors, motor controllers, fans, exhaust fans, and everything

electrical. (CCSMF (ECF No. 611) RSF ¶ 11.) Mr. Gorton testified that during the one-

year period while the ship was in dry dock, he was present eight hours every day when

the civilian contractors tore out all the insulation on the ship and reinstalled new

equipment including insulation on all the equipment. (CCSMF (ECF No. 611) RSF ¶

12.)

8. Packing and Gaskets

The packing and gaskets were supplied to the machinist’s mates or boiler

technicians by the Navy. (CCSMF (ECF No. 611) ¶ 34.) Mr. Gorton did not observe

packing or gaskets that contained asbestos while on the USS Blue. Another person,

however, told him that packing or gaskets on board the USS Blue contained asbestos.

(CCSMF (ECF No. 611) ¶ 35.)

Mr. Gorton worked with packing material himself. The packing material was “in a

rope form and it came packages in…a plastic wrap and…[the electrician mates] would

wrap that around the cables or whatever…[they] were trying to seal to make it

watertight.” (ECF No. 606-2 at 27.) The packing material with which Mr. Gorton worked

was the same packing material that machinist mates and boiler tenders used to pack

the valves and pumps. (Id.)

Mr. Gorton was told that the gaskets contained asbestos. (CCSMF (ECF No.

611) ¶ 56.) He testified that the gaskets were manufactured by Owens-Corning and

CertainTeed. (CCSMF (ECF No. 611) ¶ 57.)

During the overhaul, Mr. Gorton was frequently a bystander to the removal and

installation of thermal pipe insulation, which contained asbestos. (CCSMF (ECF No.

611) ¶ 61.)

Mr. Gorton produced a document to Warren Pumps containing lists of:

“Companies worked for[;]” “Work environment[;]” “Elect Equip Suppliers[;]” and

“Equip[.]” (ECF No. 595-10.) Warren Pumps is not listed on the document under any of

the foregoing categories. (Id.) Mr. Gorton testified that the list was made as support for

his 2011 deposition. (ECF No. 595-5 at 7.)

Thompson was deposed in this personal injury case on February 22, 2021.

(CCSMF (ECF No. 611) ¶ 67.) As electricians aboard the USS Blue, Thompson and

Mr. Gorton worked on 110, 240, and 440 voltage equipment including motor fans, circuit

breakers and anything electric, except for communication devices and lines. (CCSMF

(ECF No. 611) ¶ 68.) They encountered and worked around every rating including

gunner’s mates, machinist’s mates, boiler tenders, and the entire crew because they

went into every compartment to fix electrical devices. (CCSMF (ECF No. 611) ¶ 69.)

Thompson testified that Mr. Gorton and he were present when machinist’s mates

worked on pumps. (CCSMF (ECF No. 611) ¶ 70.) Neither Thompson nor Mr. Gorton

worked on any “pump piece of equipment other than the actual motor.” (ECF No. 606-5

at 117-18.) Thompson did not identify Warren Pumps as a manufacturer of the pumps

onboard the USS Blue on which Thompson and Mr. Gorton worked in his deposition

testimony or in his affidavit. (ECF No. 606-5 at 24-28; ECF No. 606-4.)

Thompson and Mr. Gorton on an emergency basis, i.e., not with any regularity,

had to pull the pumps out of the “line.” (ECF No. 606-5 at 70-72.) The electrician mates

worked together to pull the pumps out of the line. (Id. at 71.) [G]enerally,” pulling a pipe

out of line occurred in port and not while the USS Blue was out at sea. (Id. at 72.)

During Thompson’s deposition, he testified that in the engine rooms, there were

“all kinds of circulating pumps, fire pumps, fire and flushing pumps, all kinds of electrical

pumps down there.” (ECF No. 606-5 at 21.) In the same deposition, he testified that he

did not remember “simply a fire pump on the USS Blue.” (Id. at 107.)

Thompson and Mr. Gorton worked side by side with machinist mates in the

engine rooms. (ECF No. 606-5 at 21.) Thompson explained:

Down in the machinist mate compartment, we called it the engine

rooms, and they would have all kinds of circulating pumps, fire pumps, fire

and flushing pumps, all kinds of electrical pumps down there.

And they had mechanical pumps. And whenever a pump or

something would go wrong, we would be right there. When they pulled it

apart, we would have to disconnect it. And then we would pull the motor out

or whatever went wrong [with] it, and repair it and get it back in shape.

(ECF No. 606-5 at 21.) The electrician mates were present when the machinist mates

worked on the pumps. Thompson explained:

[W]e would generally get a repair or somebody would say that the fire

flushing pump number 1 would go out. We would kill the power to it. Meet

them down there. We would disconnect the power to it. The[n] they would

tear the lines off of it, and we would unbolt the motor and pull it out

altogether.

(ECF No. 606-5 at 21-22.) Thompson did not recall doing work on any specific

pump manufactured by any specific manufacturer. (ECF No. 606-5 at 77.)

The electrician mates worked on “everything that was electrical that didn’t have

anything to do with electronics.” (ECF No. 606-5 at 29.) Thompson explained:

[W]e would be right there when we disconnected the power from it,

pull the lines out. They would unhook the steamlines or the lines going to it.

We would pull the motor out and get it out of the engine room or fire room,

take it up on the main deck.

If we could repair it, we could. If we had to order a new one or send

it to a tender to get it rewound, that’s what we would do. They always had

a spare – each system had a spare, like if one broke down you could switch

the other one.

(ECF No. 606-5 at 30.)

When the machinist mates changed the packing, the electrician mates, e.g.,

Thompson and Mr. Gorton, were “[a]lmost elbow to elbow” with the machinist mates.

The electrician mates “wanted to make sure that they didn’t tighten them too much,

or…[the electrician mates] would have a problem with…[their] motor when [they

were]….there.” (ECF No. 606-5 at 37.) The electrician mates worked “[a]lmost elbow to

elbow” with the machinist mates when they were changing the packing “maybe every

week or so.” (ECF No. 606-5 at 38.) Thompson could not estimate how many pumps

were on the USS Blue. He testified: “I couldn’t even estimate. I wouldn’t have any idea.

Lots of them.” (Id. at 39.) Thompson explained:

You got to realize that this steel box you’re in is a ship. And it’s just

packed with equipment in there to make it run. And it has a whole bunch of

different pumps and motors and stuff like that. And every once in a while,

you would have one go out. That’s what you would have to fix. And one of

them would start leaking and you would have to fix it. You wouldn’t do it all

the time. It was just once in a while when one went bad.

(ECF No. 606-5 at 38.) Thompson’s job onboard the USS Blue did not entail working on

the internal components of a pump. (ECF No. 606-5 at 102.)

D. The Navy’s Procurement of Equipment from Warren Pumps6

Navy warships are some of the most complex machines ever designed and

constructed. (ECF No. 595-13 ¶ 6.) They are designed to operate effectively in very

harsh and hostile environments. (Id. ¶ 7.) There has never been any one company

within the United States that can design, construct, and deliver a complete Navy

warship. The Navy itself had to undertake the design and technical documentation of

the complex and warships and develop ways to verify the performance and reliability of

the new designs. (Id. ¶ 8.)

During the 1940s, the Bureau of Ships (“BUSHIPS”) was a “key organization”

within the Navy for the design, procurements, construction and maintenance of Navy

ships. (Id. ¶ 10.) BUSHIPS was comprised of a broad assortment of engineers and

6 Mrs. Gorton points to a “Military Specification Manual, Service (Instruction

Books) for Shipboard Electrical and Mechanical Equipment” (“Military Specification

Manual”) in support of its allegation that the Navy required express warnings on

equipment provided by manufacturers. As Warren Pumps points out, however, the

Military Specification Manual is dated June 6, 1961, and Warren Pumps sold the pumps

for use onboard the USS Blue in the 1940s. (ECF No. 606-9 at 2; ECF No. 612-2 ¶ 17.)

Mrs. Gorton relies upon a deposition of Adam Martin (“Martin”), who in 1983

testified in another asbestos case, had worked as a packaging inspector and specialist

at a military supply depot, and was an Action Officer for Military Standard 129. Martin

testified that nothing in Military Standard 129 prohibited manufacturers from placing

warnings on their products. (ECF No. 606-12 at 20, 29, 30-31.) Warren Pumps argues,

among other things, that Military Standard 129 was published in 1951, i.e., nearly ten

years after Warren Pumps manufactured pumps for use on USS Blue, and, therefore,

Military Standard 129 is not relevant to this case. Mrs. Gorton included “Military

Standard Marking for Shipment and Storage,” MIL-STD-129B, as Exhibit L in this case.

MIL-STD-129B has date of April 10, 1957. MIL-STD-129B superseded MIL-STD-129A,

which is dated February 8, 1954. Thus, it appears that Warren Pumps is correct that its

manufacture of the pumps for USS Blue predated the military standard upon which Mrs.

Gorton relies in this case.

technical personnel and was responsible for all technical aspects of Navy warships. (Id.

¶ 11.) BUSHIPS contracted with industry and other government agencies to procure the

required equipment and materials needed to construct and test the Navy’s warships.

(Id. ¶ 9.) The Navy developed specifications for use in procuring equipment from

manufacturers for installation on its ships. (Id. ¶ 16, 21.) The specifications presented

very detailed descriptions of what the government mandated when procuring equipment

and invoked other specifications. The detailed descriptions included: (1) chemical

composition; (2) dimensions; (3) required testing and performance demonstrations; (4)

required labeling; (5) packing and shipping requirements. (Id. ¶ 21.) During the 1930s,

1940s, and early 1950s, the specifications were called General Specifications for

Machinery (“GENSPECs”). (Id.¶ 21.)

Equipment installed aboard 1940s destroyers such as the USS Blue (DD-744)

was required to meet Navy GENSPECs. (ECF No. 595-13 ¶ 48.) Reciprocating-type

pumps were subject to GENSPEC Subsection S47-1 (Reciprocating Pumps, Direct-

Acting Steam and Motor Driven) and centrifugal-type pumps were subject to GENSPEC

Subsection S47-2 (Centrifugal and Axial Flow Pumps) issued by the Bureau of

Engineering of the Navy Department. (Id.) Subsections S47-1 and S47-2 incorporated,

in turn, many others, including GENSPEC Subsection S1-1 (Plans). (Id. ¶ 49.)

GENSPEC S1-1 is dated March 1, 1941. (ECF No. 595-14 at 46.)

The Navy maintained the responsibility to develop the GENSPECS,

“MILSPECS”7 and other standards for the manufacture and supply of equipment used in

the construction, maintenance, and repair of Navy ships. Specifications for any

7 MILSPECs is not defined in the affidavit.

equipment intended for use aboard Navy ships were drafted, approved, and maintained

by the Navy. Once promulgated, only the Navy could make changes or modifications to

those specifications. GENSPECS and MILSPECS were prepared by hundreds of Navy

engineers highly qualified in specialty areas such as, among many other things, valves,

pumps, steam turbines, gas turbines, reduction gears, ship propulsion, electrical

systems, and auxiliary equipment. (Id. ¶ 22.)

Manufacturers were required to submit a preliminary detailed drawing describing

all aspects of how they intended to fulfil the technical requirements in the Navy’s

specifications and contract documents. The Navy reviewed and directed modifications

to the detailed drawings. (ECF No. 595-13 ¶ 34-35.) Approval by the Navy of the

drawings was required prior to manufacturing to ensure that the pumps and

accompanying documentation conformed with all government specifications. (Id. ¶ 34-

35.) Compliance with the standards and specifications issued for equipment supplied for

ultimate use aboard Navy ships was directly monitored by Navy representatives who

worked on-site at vendor facilities to exercise primary, front line control and direction

over the work performed for the Navy by original equipment manufacturers. (Id. ¶ 42.)

Technical specifications also

included detailed requirements regarding all written materials supplied with

the components. In addition to drawings and plans, this written material

often also included operator reference materials to assist the equipment

operators in operating, servicing, and maintaining such equipment and to

assist the Navy training establishment to develop instructional materials and

courses.

(ECF No. 595-13 ¶ 36-37.) “Navy personnel or those of the Navy’s Design Agents

participated intimately in the preparation and review of…instruction books and technical

manuals in a standardized format used by the Navy.” (ECF No. 595-13 ¶ 37.)

Manufacturers of equipment were required to submit draft manuals to the Navy for

detailed review and feedback. (ECF No. 595-13 ¶¶ 37-38.) The Navy’s review of

preliminary technical manuals often resulted in

lengthy memoranda detailing word-by-word line edits to the content

of technical manuals submitted for approval, including the wording of

instructional material and warnings….

…

As a result of this review and approval process, these manuals

include safety information to the extent – and only to the extent – directed

by the Navy. Manufacturers of components and equipment were not

permitted, under the specifications, associated regulations and procedures,

nor under the actual practice as it evolved in the field, to include any type of

warning or caution statement in instruction books or technical manuals,

beyond those required and approved by the Navy without prior discussion

and approval by the Navy.

(ECF No. 595-13 ¶¶ 38-39.) The Navy exercised this level of control over “written

communication regarding equipment it procured…to ensure consistency of that

information with the overall goals and priorities of the Navy in operations.” (ECF No. 595

¶ 40.) It has been explained:

Uniformity and standardization of any communication, particularly

safety information, are critical to the operation of the Navy and Navy ships.

The Navy could simply not operate safely and effectively if personnel were

trained differently, using inconsistent information received from different

manufacturers. If every equipment, structural steel and pipe manufacturer

were allowed to decide on the need for, and provide its own safety and

health warnings (including those concerning asbestos insulation that might

be used on or around its product), inconsistent warnings would certainly

have results. If each were to warn about all the possible substances that

might be used on or around its equipment, sailors would quickly become

inundated with inconsistent information on a myriad of substances.

Therefore, the Navy’s detailed specification of and control over what

warnings were required, both on equipment and in technical documentation,

was logical and necessary.

(ECF No. 595-13 ¶ 41.)

Any pumps, pump packaging and/or manuals that were shipped for installation

on a Naval warship would have been supplied pursuant government contract

specifications. (ECF No. 595-13 ¶¶ 38, 45, 51b.) “The ultimate confirmation that all

specification, standards and contract requirements have been complied with occurs

when the Navy accepts the ‘product’ and authorizes payment…When the Navy accepts

and pays for the contracted product this verifies that all contract requirements have

been satisfactorily met.” (ECF No. 595-13 ¶ 47.)

During the 1940s through 1975, asbestos-containing materials were the most

commonly utilized materials for insulation, gaskets and packing for pumps and other

machinery and components. Navy pump specifications during this period required the

use of compressed asbestos sheet gaskets for sealing pump casings. (ECF No. 606-10

at 14-15.)

Warren Pumps supplied pumps for installation on the USS Blue. (ECF No. 595-

13 ¶ 51b.) Warren Pumps’ equipment could not have been installed aboard Navy

vessels unless that equipment was first determined by the Navy to be in conformity with

all applicable Navy specifications, i.e., the GENSPECs, and contractual requirements.

(ECF No. 595-13 ¶ 42.)

The Navy’s review and approval processes for pumps supplied to the USS Blue

contained multiple layers of review by or on behalf of the Navy. (Id. ¶ 51b.)8 In other

words, Warren Pumps was “required to comply with technical specifications in all details

in order for the Navy to accept the equipment.” (ECF No. 595-13 ¶ 23.) The pumps

8 There are two paragraph 51s in Warren Pump’s exhibit M. The court considers

the first paragraph 51, paragraph 51a and the second paragraph 51, paragraph 51b.

(ECF No. 595-13 at 20.)

shipped for installation aboard the USS Blue complied with and were manufactured in

accordance with United States government contracts and pursuant to the pertinent

Navy GENSPECs. (ECF No. 595-13 ¶ 51b.) The Navy reviewed the preliminary

drawings and dictated changes to the design features of the pumps manufactured by

Warren Pumps before the Navy approved those design features. (Id.) The Navy’s

specifications included detailed requirements for testing of equipment to ensure its

suitability for the unique environment aboard Navy ships. (Id. ¶ 43.) The Navy, through

a series of in-plant and post-delivery inspections and testing, verified that the pumps

and documentation delivered to it by Warren Pumps complied in-full with its

specifications and conformed to the approved drawings and documentation. (ECF No.

595-13 ¶¶ 38, 45, 51b.) The Navy accepted and approved the manuals for Warren

pumps aboard the USS Blue. In other words, the manuals were in full compliance with

military specifications. (ECF No. 595-13 ¶ 51b.)

E. Asbestos-Hazard Knowledge

As early as 1922, the Navy recognized the health hazards associated with

airborne asbestos dust and the appropriate protective measures to prevent asbestos

exposure. (ECF No. 595-15 ¶ 28.) In 1939, the “Annual Report of the Surgeon General

of the Navy” (the “Annual Report”) addressed the “Hazards of Asbestos,” and described

asbestosis as “an industrial disease of the lungs incident to inhalation of asbestos dust

for prolonged periods.” (ECF No. 595-15 ¶ 31.) The Annual Report recognized the risk

from “continued exposure to present occupational conditions” at Navy facilities, and

directed appropriate methods for preventing such exposures, recommending the use of

local exhaust ventilation to control asbestos dust exposure for insulators in the

fabrication shop. (Id.) “[A]t least by the early 1940’s, the Navy had become a leader in

the field of occupational medicine relating to, among other things, asbestos dust

inhalation exposure.” (ECF No. 595-15 ¶ 27.) In the early 1940s, the Navy recognized:

(1) a need for the use of respirators, local exhaust ventilation, and wetting of asbestos

containing materials to prevent asbestos exposure; (2) the need for medical

examinations of personnel exposed to asbestos; (3) asbestos-related disease was a

potential hazard of shipyard work; and (4) a need for employee safety training, including

training with respect to the use of personal protective equipment. (Id. ¶¶ 32-36.)

By the 1970s, the Navy determined that asbestos posed a potential hazard in the

industrial environment and on ships where it was installed. The Navy implemented an

aggressive program to implement procedures to protect sailors and anyone else on

board. (ECF No. 606-17 at 5.) David P. Sargent, Jr. (“Sargent”), who served as an

Admiral in the Navy, testified in a separate lawsuit that he personally was unaware of

the dangers of asbestos exposure until the mid to late 1970s. The Navy had determined

by then that, in fact, asbestos did pose a potential hazard not just in an industrial

environment, but also on-board ships where it was installed. (ECF No. 606-17 at 4.)

Mechanical engineers employed by Warren Pumps were members of the

American Society of Mechanical Engineers (“ASME”) during “[c]ertain periods of time.”

(CCSMF (ECF No. 611) RSF ¶ 51; ECF No. 614-1 at 16.) As early as 1933, ASME

recognized in an article that asbestos dust was hazardous, and the inhalation of

asbestos dust could cause “occupational disabilities.” (ECF No. 614-1 at 14.)

An article published in a January 1946 edition of “Southern Power and Industry”

provided that “exposure to asbestos is toxic.” (ECF No. 614-1 at 25.) A predecessor to

Warren Pumps advertised in the same January 1946 edition of “Southern Power and

Industry.” (Id. at 23-24.)

According to Roland Doktor, the corporate designee for Warren Pumps, Warren

Pumps did not locate and is not aware of any information or evidence to show that

Warren Pumps was aware of any potential hazard associated with exposure to

asbestos-containing components incorporated into its pumps at any time during the

1940s when Warren Pumps sold its pumps to the Navy for used onboard the USS Blue.

(ECF No. 612-2 ¶ 17.)

F. Experts

Dr. Howard Kipen (“Kipen”) provided an expert report in this matter dated

January 23, 2016. Kipen concluded that Mr. Gorton’s exposures to asbestos-containing

products in the Navy, both as a bystander and his own work, were significant

contributing causes to his development of mesothelioma. (CCSMF (ECF No. 611) RSF

¶ 41.) Dr. Richard Kradin (“Kradin”) issued an initial report and a supplemental report in

this matter. Kradin concluded that Mr. Gorton suffered from diffuse malignant

mesothelioma. Kradin further reviewed Mr. Gorton’s exposure history to pumps and

other equipment and found they were all substantial contributing factors for his

mesothelioma. Kradin in his supplemental report detailed and quantified Mr. Gorton’s

exposure to respirable fibers from various products he was exposed to in the Navy.

(CCSMF (ECF No. 611) RSF ¶ 42.)

III. Summary Judgment Standard of Review

Rule 56 of the Federal Rules of Civil Procedure “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.” Marten v. Godwin, 499

F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986)).

An issue of material fact is in genuine dispute if the evidence is such that a

reasonable trier of fact could return a verdict for the nonmoving party. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); see Doe v. Abington Friends Sch., 480 F.3d 252,

256 (3d Cir. 2007) (“A genuine issue is present when a reasonable trier of fact, viewing

all of the record evidence, could rationally find in favor of the non-moving party in light of

his burden of proof.”) (citing Anderson, 477 U.S. at 248; Celotex Corp., 477 U.S. at 322-

23).

“[W]hen 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 . . . . Where the record taken as a whole could

not lead a rational trier of fact to find for the nonmoving party, there is no

genuine issue for trial.”

Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita, 475 U.S. at 586-87).

In deciding a summary judgment motion, a court must view the facts in the light

most favorable to the nonmoving party, must draw all reasonable inferences in favor of

the non-moving party, and resolve all doubts in favor of the nonmoving party. Doe v.

Cty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001); Woodside v. Sch. Dist. of Phila.

Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001); Heller v. Shaw Indus., Inc., 167 F.3d

146, 151 (3d Cir. 1999). A court must not engage in credibility determinations at the

summary judgment stage. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639,

643 n.3 (3d Cir. 1998).

IV. Discussion

A. Applicable Law

In this court’s opinion denying the motion for summary judgment filed by then-

defendant Eaton Corporation, the court held that pursuant to Federal Rule of Civil

Procedure 9(h), Pennsylvania common law applied to the case because there existed

multiple bases for this court’s jurisdiction over the case and Mrs. Gorton did not elect to

invoke the special admiralty rules. As Warren Pumps points out in its motion for summary

judgment, this holding was erroneous.9 Rule 9(h) governs whether special admiralty

procedural rules will govern a case, e.g., there is no right to a trial by jury in a case

governed by the special rules of admiralty. Garczynski v. Rossilli, No. CIV.A. 00-1553,

2002 WL 35072899, at *1 (D.N.J. Apr. 5, 2002).10 Rule 9(h) does not govern whether the

substantive maritime law11 applies to a case. One district court has explained:

9 The outcome of the court’s decision with respect to Eaton’s motion for summary

judgment would have been the same if the court applied admiralty law rather than

Pennsylvania law.

10 The court in Garczynski explained:

The most relevant consequence for our purposes of an identification of a

claim as an admiralty or maritime claim is that the matter is subject to bench

trial. Rule 9(h) “effectively precludes trial by jury for cases in which the court

has jurisdiction through admiralty or some other means and the plaintiff

identifies the claim as one brought in admiralty, and those in which the

court's exclusive jurisdiction is in admiralty.” Gaines v. Ampro Fisheries,

Inc., 836 F.Supp. 347, 348–49 (E.D.Va.1993). Federal Rule of Civil

Procedure 38(e) also provides that “[t]hese rules shall not be construed to

create a right to trial by jury of the issues in an admiralty or maritime claim

within the meaning of Rule 9(h).” Fed.R.Civ.P. 38(e).

Garczynski v. Rossilli, No. CIV.A. 00-1553, 2002 WL 35072899, at *1 (D.N.J. Apr. 5,

2002).

11 One court has explained:

The Supreme Court has established a two-part test to determine if a

tort claim is an admiralty or maritime claim for jurisdictional purposes: first,

the alleged tort must have “occurred on navigable water” or have been

“caused by a vessel on navigable water”; and second, “ ‘the general

features of the type of incident involved’ ” (a) must be of a nature that “has

‘a potentially disruptive impact on maritime commerce,’ ” and (b) must have

a general character that “shows ‘a substantial relationship to traditional

There are three primary sources of admiralty law. First, under Article

(III) of the U.S. Constitution, the judicial power of the United States extends

to “all Cases of admiralty and maritime Jurisdiction.”…From this grant of

power the federal courts have authority to develop a substantive body of

law applicable to cases within the admiralty and maritime jurisdiction….This

substantive body of judge-made law is known as the general maritime law.

As such, the general maritime law of the United States is a component of

federal common law that furnishes the rule of decision in admiralty and

maritime cases in the absence of preemptive legislation….

The second primary source of admiralty law arises from Congress'

exercise of its constitutional powers under the Admiralty Clause and the

Commerce Clause….Where Congress has enacted legislation, the general

maritime law is subordinated either by preemption, or by virtue of having

been made to conform and/or comport with such legislation….

The third primary source of admiralty law is found in the several

international conventions in the maritime field….These conventions

regulate the global shipping industry, ensuring the smooth operation of

vessels from different nations. This is accomplished by negotiating an

international convention on a particular topic, followed by adoption of such

agreements through domestic legislation….The United States is a party to

many international conventions.

The general maritime law provides remedies for injuries and damage

caused by negligence and intentional misconduct, and in certain cases,

without regard to negligence…Since the substantive law applicable in cases

of admiralty jurisdiction is federal law,…the federal courts, in the absence

of a preemptive statute, are free to fashion federal common law remedies.

Hendricks v. Transportation Servs. of St. John, Inc., No. Civ. 626/1995, 1999 WL 395121,

at *4-5 (Terr. V.I. Apr. 26, 1999) (footnotes omitted).

maritime activity.’ ” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock

Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995)

(quoting Sisson v. Ruby, 497 U.S. 358, 363-65, 110 S.Ct. 2892, 111

L.Ed.2d 292 (1990)).

Vargas v. APL Ltd., No. 15CV6981ILGRML, 2022 WL 757082, at *5–6 (E.D.N.Y. Mar. 11,

2022).

With respect to the locality test, one district court has explained:

[T]he locality test's focus on the place of the injury suggests that inquiry into

the precise location in which the injuries were suffered is necessary. Navy

workers…frequently split at least some portion of their time between ships

on navigable waters and land. In addition, unlike other torts, asbestos-

related disease has a long latency period and plaintiffs often rely on expert

testimony that all non-trivial exposures to asbestos contribute to the disease

process. See generally Harville, 731 F.2d at 782. Thus, in the case of

asbestos-related disease arising from work on or around ships, the Court

concludes that the locality test is satisfied as long as some portion of the

asbestos exposure occurred on a vessel on navigable waters.

Conner v. Alfa Laval, Inc., 799 F. Supp. 2d 455, 466 (E.D. Pa. 2011). Here, the

allegations are that Mr. Gorton was exposed to Warren Pumps’ asbestos-containing

pumps while on navigable waters on board the USS Blue and while the USS Blue was

in drydock during the overhaul. The locality test is, therefore, satisfied because “some

portion of the asbestos exposure occurred on a vessel on navigable waters.” Id.

With respect to the first part of the connection test, i.e., the potentially disruptive

impact on maritime commerce, the court in Conner explained:

The Court's first task under this test is to determine whether the

asbestos exposure Plaintiffs allege had a potentially disruptive impact on

maritime commerce when characterizing the incidents generally….See

Grubart, 513 U.S. at 534, 115 S.Ct. 1043. In these cases, the incidents can

be characterized as exposure to allegedly defective products on or around

Navy ships. Viewed in this light, the Court concludes that the incidents

plainly had a potentially disruptive impact on maritime commerce as to the

injured parties in Conner, Prange, and Stone. All three, after all, served

aboard Navy vessels that routinely sailed and docked on navigable

waters….They were effectively sailors, whose job was to maintain

equipment that was integral to the functioning of the ships on which they

served. See Tritt v. Atl. Richfield Co., 709 F.Supp. 630, 632 (E.D.Pa.1989).

Under such circumstances, exposure to defective products could

“potentially slow or frustrate the work being done on the vessel.” Jones, 650

S.E.2d at 854.

Indeed, exposure to defective products creates unsafe working

conditions that could cause labor shortages on the ships due to injuries

sustained aboard. See Lambert, 70 F.Supp.2d at 884. And a shortage of

this nature “could be exacerbated by fear of exposure by crew members

and potential crew members alike.”….Id. Any such occurrence would

disrupt the Navy's ability to protect other commercial ships at sea if called

upon to do so.

Moreover, the allegedly defective products in these cases were often

insulated with asbestos or incorporated with asbestos-containing

component parts to prevent fires aboard ships. See Johns–Manville Corp.

v. United States, 855 F.2d 1571, 1571 (Fed.Cir.1988) (“Due to the heat

resistant and fire retardant properties of asbestos it was used in insulating

ships' boilers, steam pipes, pumps, and other equipment.”); Tritt, 709

F.Supp. at 632. Fire, as the Supreme Court recognized in Sisson, is “one of

the most significant hazards facing commercial vessels.” Sisson, 497 U.S.

at 362, 110 S.Ct. 2892. With fewer workers available to work with equipment

in which asbestos was used for heat resistance, a fire could erupt and

disrupt commercial vessels. See id. at 363, 110 S.Ct. 2892.

Conner, 799 F. Supp. 2d at 467–68. Based upon the foregoing, the first part of the

connection test is satisfied here because the undisputed evidence of record shows that

Mr. Gorton was an electrician onboard the USS Blue and was responsible for maintaining

the electrical equipment onboard the ship. Under those circumstances, his exposure to

Warren Pumps’ alleged defective products had the potential to disrupt maritime

commerce.

With respect to the second part of the connection test, i.e., the substantial

relationship to traditional maritime activity, the court in Conner explained:

The Court's role in this regard is to assess whether the “tortfeasor's

activity ... is so closely related to activity traditionally subject to admiralty law

that the reasons for applying special admiralty rules would apply in the suit

at hand.” Grubart, 513 U.S. at 539–40, 115 S.Ct. 1043. Viewing the activity

generally as the Court must, see Sisson, 497 U.S. at 364, 110 S.Ct. 2892,

the Court finds that the activity engaged in by the numerous defendants in

these cases was the manufacture of products for use on vessels.

Indeed, unlike the asbestos manufacturers who were defendants in

many of the prior cases deciding whether maritime jurisdiction applies to

asbestos products liability claims, see supra Part III.B.1, the products

manufactured in these cases—turbines, pumps, purifiers, generators,

boilers, valves, gaskets, packing, and steam traps—were essential for the

proper functioning of ships and made for that purpose. The Court therefore

concludes that their allegedly defective production bears a substantial

relationship to traditional maritime activity. See Jones, 650 S.E.2d at 855

(holding the substantial relationship prong of the connection test was

satisfied because the defendant's products were produced and advertised

for the marine industry).

Conner, 799 F. Supp. 2d at 469. Here, the undisputed evidence of record shows that

Warren Pumps manufactured the pumps at issue for the specific used by the Navy

onboard the USS Blue. Thus, the second part of the connection test is also satisfied.

Based upon the foregoing, while Mrs. Gorton did not invoke the special admiralty

procedural rules in her complaint, the substantive maritime law is applicable to this case.

B. Government Contractor Defense with respect to the claims for

Product Liability, Breach of Implied Warranty, and Negligence

In Koutsoubos v. Boeing Vertol, Division of Boeing Co., 755 F.2d 352 (3d Cir.

1985), a case arising under admiralty law, the Third Circuit Court of Appeals recognized

the government contractor defense as a “federal common law…defense to liabilities

incurred in the performance of government contracts.” Id. at 355. The court of appeals

explained that—“in cases involving products developed specially for the military that are

alleged to be defectively designed”—the government contractor defense has the

following three elements:

(1) the government established the specifications for the alleged defective

product;

(2) the allegedly defective product met the government's specifications in

all material respects; and

(3) the government knew as much as or more than the defendant about

the hazards of the product.

Id. at 354 (citing In re “Agent Orange” Prod. Liab. Litig., 534 F.Supp. 1046

(E.D.N.Y.1982)).

In Boyle v. United Technologies Corporation, 487 U.S. 500, 512 (1987), the

Supreme Court of the United States, in a diversity jurisdiction case arising under Virginia

law, addressed the federal common law government contractor defense. The Third Circuit

Court of Appeals has explained the import of Boyle as follows:

In Boyle, the Supreme Court held that before resort is made to state

law in a diversity case that involves the application of the government

contractor defense to a military contractor, it is necessary to determine

whether state tort law is in significant conflict with the federal interests

associated with federal procurement contracts. See 487 U.S. at 507–09,

108 S.Ct. at 2515–16. If such a significant conflict is found to exist, state tort

law is pre-empted and the government contractor defense as defined by

federal law will apply. See id. at 512, 108 S.Ct. at 2518.

Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 69–70 (3d Cir. 1990). The Court in Boyle

set forth three elements a defendant being sued for design defects in military equipment

must prove to be entitled to the government contractor defense:

(1) the United States approved reasonably precise specifications;

(2) the equipment conformed to those specifications; and

(3) the supplier warned the United States about the dangers in the use of

the equipment that were known to the supplier but not to the United States.

Boyle, 487 U.S. at 512.12

As noted above, Boyle was a diversity jurisdiction case arising under Virginia

state law. The Court’s explanation of the federal contractor defense, however, was a

statement of federal common law, which applies to, among others, cases arising under

admiralty law. See William C. Buckhold & Lisa D. Goekjian, The Government

Contractor's Defense to Product Liability Claims, 99 Com. L.J. 64, 85 (1994) (“The

government contractor defense is as much a part of federal law as the common law of

12 The Third Circuit Court of Appeals has explained Boyle impact on its decision in

Koutsoubos as follows:

Prior to Boyle, courts generally considered Feres to be the source of

the government contractor defense. See, e.g., Koutsoubos v. Boeing Vertol,

Div. of Boeing Co., 755 F.2d 352, 354 (3d Cir.), cert. denied, 474 U.S. 821,

106 S.Ct. 72, 88 L.Ed.2d 59 (1985); McKay v. Rockwell Int'l Corp., 704 F.2d

444, 449 (9th Cir.1983), cert. denied, 464 U.S. 1043, 104 S.Ct. 711, 79

L.Ed.2d 175 (1984). In Boyle, however, the Court explicitly rejected Feres

as the basis for the defense, reasoning that the Feres doctrine is too broad

because it would render contractors immune for injuries caused by any

standard equipment purchased by the government, and too narrow

because it would permit state regulation of military decisions through tort

actions brought by civilians. Boyle, 487 U.S. at 510–11, 108 S.Ct. at 2517–

18. Instead of relying on Feres, which applies only to torts arising out of

military service, the Court instead relied on the discretionary function

exception of the FTCA, which applies to government action in both military

and nonmilitary matters.

Carley v. Wheeled Coach, 991 F.2d 1117, 1121, 28 V.I. 310, 317–18 (3d Cir. 1993).

admiralty or the statutory liability provisions of the Death on the High Seas Act or Suits

in Admiralty Act. Moreover, the basis for the defense, the exercise of discretion by

federal officials, is a bar to tort liability under state or federal law.”). The government

contractor defense as explained by the Court in Boyle, therefore, applies to cases

arising under admiralty law like the instant action filed by Mrs. Gorton against Warren

Pumps.13

With respect to failure to warn claims, one district court recently explained:

[T]he first prong of Boyle is altered to preclude liability where the

government exercised discretion and approved the warnings. See Tate v.

Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995). Courts require the

government approval to “transcend rubber stamping” for the defense to

shield a government contractor from liability for failure to warn. Id. at 1156–

5. The choice of equipment-related warnings involves exercises of

governmental discretion in the same way as does the selection of

equipment design. See Jurzec v. American Motors Corp., 856 F.2d 1116,

1118-19 (8th Cir. 1988); Myslakowski v. U.S., 806 F.2d 94, 97-98 (6th Cir.

1986), cert. denied, 480 U.S. 948 (1987); Nicholson v. United Techs. Corp.,

697 F. Supp. 598, 604 (D. Conn. 1988). As Tate observed, “[w]hen the

government exercises its discretion and approves designs prepared by

private contractors, it has an interest in insulating its contractors from liability

for such design defects ... Similarly, when the government exercises its

discretion and approves warnings intended for users, it has an interest in

13 The court in Elorreaga v, Rockwell Automation, Inc., Civ. A. No. 21-5696, 2023

WL 2769146, at *3 (N.D. Cal. Mar. 31, 2023), held that the general contractor defense

set forth in Boyle does not apply to cases like the instant action that arise under

admiralty law. The court explained that the Ninth Circuit Court of Appeals recognized

“that Boyle is premised on preemption concerns that do not exist where….claims are

brought under federal law.” Id. at *5. As explained above, however, Boyle recognized

the general contractor defense as a federal common law defense. Admiralty law applies

the federal common law. Under those circumstances, the court does not find Elorreaga

persuasive. The court finds the court in Elorreaga was mistaken about the law, and, in

any event, the holding of that case contradicts the Third Circuit Court of Appeals’

recognition of the government contractor defense in Koutsoubos, 755 F.2d at 355,

which arose under admiralty law.

insulating its contractors from state failure to warn tort liability.” Tate, 55

F.3d at 1157 (citing Boyle, 487 U.S. at 511-12).

Hilster v. Air & Liquid Sys. Corp., No. 2:20-CV-01537-MJH, 2022 WL 1720321, at *5–6

(W.D. Pa. May 27, 2022). The general contractor defense will apply to bar product

liability claims based upon the defendant’s failure to warn when the following three

elements are satisfied:

(1) the United States exercised its discretion and approved the warnings, if

any;

(2) the contractor provided warnings that conformed to the approved

warnings; and

(3) the contractor warned the United States of the dangers in the

equipment's use about which the contractor knew, but the United States did

not.”

Id. at *6.

“The government contractor defense as explained in Boyle applies to strict

liability, negligence, and breach of warranty claims arising out of design or

manufacturing defects.” Lofgren v. Polaris Indus. Inc., No. 3:16-CV-02811, 2021 WL

2580047, at *4 n.22 (M.D. Tenn. June 23, 2021) (citing decisions). The government

contractor defense also applies to product liability claims based upon allegations that

the defendant failed to warn others about the dangers of its product, including claims

based upon allegations that the defendant negligently failed to warn others about the

dangers of its product. Id.

Here, Mrs. Gorton asserts claims for product liability, breach of warranty, and

negligence based upon Warren Pumps’ defective design of its pumps supplied to the

Navy for used onboard the USS Blue. Mrs. Gorton also asserts product liability and

negligence claims based upon Warren Pumps’ alleged failure to warn others about the

dangers of its pumps supplied to the Navy for use onboard the USS Blue. The court,

therefore, will consider whether Warren Pumps is entitled to summary judgment with

respect to each of those sets of claims.

1. Product Liability, Breach of Implied Warranty, and Negligence Design

Claims

a. Whether the United States approved reasonably precise

specifications

The undisputed evidence of record shows that:

- the Navy developed specifications for use in procuring equipment from

manufacturers for installation on its ships, i.e., GENSPECS, (ECF No. 595-13

¶ 16, 21);

- the specifications presented very detailed descriptions of what the government

mandated when procuring equipment and invoked other specifications. The

detailed descriptions included: (1) chemical composition; (2) dimensions; (3)

required testing and performance demonstrations; (4) required labeling; (5)

packing and shipping requirements (id. ¶ 21);

- the Navy maintained the responsibility to develop the GENSPECS,

“MILSPECS” and other standards for the manufactured and supply of

equipment used in the construction, maintenance and repair of Navy ships (id.

¶ 22);

- specifications for any equipment intended for use aboard Navy ships were

drafted, approved and maintained by the Navy (id.);

- once promulgated, only the Navy could make changes or modifications to those

specifications (id.);

- GENSPECS and MILSPECS were prepared by hundreds of Navy engineers

highly qualified in specialty areas such as, among many other things, valves,

pumps, steam turbines, gas turbines, reduction gears, ship propulsion,

electrical systems and auxiliary equipment (id.)

- manufacturers were required to submit a preliminary detailed drawing

describing all aspects of how it intended to fulfil the technical requirements in

the Navy’s specifications and contract documents (ECF No. 595-13 ¶ 34-35);

- the Navy reviewed and directed modifications to the detailed drawings (id.);

- approval by the Navy of the drawings was required prior to manufacturing to

ensure that the pumps and accompanying documentation conformed with all

government specifications (id. ¶ 34-35); and

- the Navy’s review and approval processes for pumps supplied to the USS Blue

contained multiple layers of review by or on behalf of the Navy. (id. ¶ 51b.)

Mrs. Gorton did not adduce any evidence to create a material dispute of fact with

respect to whether the Navy approved reasonably precise specifications for the

manufacture of pumps onboard the USS Blue. Under those circumstances, a trier could

only find that—with respect to Mrs. Gorton’s product defect claims—the Navy approved

reasonably precise specifications for the manufacture of the pumps supplied by Warren

Pumps onboard the USS Blue.

b. Whether the equipment conformed to those specifications

Warren Pumps adduced evidence to show its pumps could not have been

installed aboard Navy vessels, e.g., the USS Blue, unless that equipment was first

determined by the Navy to be in conformity with all applicable Navy specifications, i.e.,

the GENSPECs, and contractual requirements. (ECF No. 595-13 ¶ 42.) Under those

circumstances, that the USS Blue contained pumps manufactured by Warren Pumps is

circumstantial evidence that those pumps confirmed to the Navy’s reasonably precise

specifications. Hilster, 2022 WL 1720321, at *6 (explaining that this factor was satisfied

by the exact evidence presented in this case, i.e., the affidavit from David P. Sargent

(“Sargent”), retired Navy Rear Admiral, which provides that pumps manufactured by

Warren Pumps would not have been accepted and utilized onboard a Navy vessel

unless they complied with the Navy’s reasonably precise specifications). Mrs. Gorton

did not adduce any evidence to create a triable issue of fact with respect to whether the

pumps manufactured by Warren Pumps and used onboard the USS Blue by the Navy

conformed with the Navy’s reasonably precise specifications.

c. Whether the supplier warned the United States about the dangers in

the use of the equipment that were known to the supplier but not to

the United States

Warren Pumps does not argue or adduce any evidence to show that it warned

the Navy about the dangers of asbestos in its pumps supplied to the Navy; rather,

Warren Pumps argues that the Navy’s knowledge of the hazards of asbestos was

superior to its knowledge of the hazards of asbestos exposure.

Warren Pumps adduced the following evidence about the Navy’s knowledge

about the hazards of asbestos at the time it worked with the Navy to manufacture the

pumps used onboard the USS Blue, i.e., in the 1940s:

- as early as 1922, the Navy recognized the health hazards associated with

airborne asbestos dust and the appropriate protective measures to prevent

asbestos exposure (ECF No. 595-15 ¶ 28);

- in 1939, the “Annual Report of the Surgeon General of the Navy” (the “Annual

Report”) addressed the “Hazards of Asbestos,” and described asbestosis as

“an industrial disease of the lungs incident to inhalation of asbestos dust for

prolonged periods” (ECF No. 595-15 ¶ 31);

- the Annual Report recognized the risk from “continued exposure to present

occupational conditions” at Navy facilities, and directed appropriate methods

for preventing such exposures, recommending the use of local exhaust

ventilation to control asbestos dust exposure for insulators in the fabrication

shop (id.)

- “[a]t least by the early 1940’s, the Navy had become a leader in the field of

occupational medicine relation to, among other things, asbestos dust

inhalation exposure.” (ECF No. 595-15 ¶ 27);

- in the early 1940s, the Navy recognized: (1) a need for the use of respirators,

local exhaust ventilation, and wetting of asbestos containing materials to

prevent asbestos exposure; (2) the need for medical examinations of

personnel exposed to asbestos; (3) asbestos-related disease was a potential

hazard of shipyard work; and (4) a need for employee safety training,

including training with respect to the use of personal protective equipment (id.

¶¶ 32-36); and

- by the 1970s, the Navy determined that asbestos posed a potential hazard in

the industrial environment and on ships where it was installed. At that time,

the Navy implemented an aggressive program to implement procedures to

protect sailors and anyone else on board (ECF No. 606-17 at 5).

With respect to Warren Pump’s knowledge about the hazards of asbestos

exposure, there is no evidence of record to show that Warren Pumps was aware of any

potential hazard associated with exposure to asbestos-containing components

incorporated into its pumps at any time during the 1940s when Warren Pumps sold its

pumps to the Navy for used onboard the USS Blue. (ECF No. 612-2 ¶ 17.) Mrs.

Gorton14 relies upon the following to show that Warren Pumps’ knowledge of the

14 Mrs. Gorton relies upon an affidavit by Lawrence Stilwell Betts (“Betts”) from a

different lawsuit for the proposition that “[p]rior to the 1970’s the U.S. Navy was

unaware of the hazards posed by asbestos[; indeed,] the proven association of

asbestos and mesothelioma was not established until the work of Selikoff and his

associates in 1972.” (CCSMF (ECF No. 611) RSF ¶ 46.) Mrs. Gorton also relies upon

the deposition of Roger B. Horne (“Horne”), who formally served in the Navy, from a

different lawsuit in which he testified that prior to approximately 1968, the Navy did not

recognize the significance of the problem posed by asbestos exposure or that it could

lead to the development of cancer. (CCSMF (ECF No. 611) ¶ 47.) Warren Pumps

objects to Mrs. Gorton’s reliance upon Betts’ affidavit and Horne’s deposition because

Mrs. Gorton did not disclose those individuals as witnesses in this case. (Id. ¶¶ 46-47.)

Warren Pumps argues that Mrs. Gorton’s reliance upon Betts’ affidavit and Horne’s

deposition is improper because Mrs. Gorton did not disclose either individual as a

witness or expert witness in this case.

Even if consideration of this evidence was proper (despite Warren Pumps’

representations that Mrs. Gorton did not disclose Betts or Horne as witnesses or expert

witnesses in this case), Mrs. Gorton did not adduce evidence sufficient to create a

triable issue of fact about Warren Pumps’ knowledge about the dangers of asbestos

during the relevant time. Under those circumstances, a reasonable trier of fact could not

find that—even if the Navy was unaware of the dangers of asbestos during the relevant

time—Warren Pumps’ knew about the dangers of asbestos during the relevant time

period, i.e., Warren Pumps’ knowledge concerning the dangers of asbestos was

superior to the Navy’s knowledge concerning the dangers of asbestos during the

relevant time. The court need not, therefore, determine whether Mrs. Gorton’s reliance

upon Betts’ affidavit and Horne’s deposition is proper.

hazards of asbestos exposure was superior to the Navy’s knowledge of asbestos

exposure:

- mechanical engineers employed by Warren Pumps were members of ASME

“at certain times” and in 1933, ASME published an article recognizing that

asbestos dust was hazardous, and the inhalation of asbestos dust could

cause “occupational disabilities” (ECF No. 614-1 at 14);

- an article published in a January 1946 edition of “Southern Power and

Industry” provided that “exposure to asbestos is toxic” and a predecessor to

Warren Pumps advertised in the same January 1946 edition of “Southern

Power and Industry” (ECF No. 614-1 at 23-24).

At best, the foregoing evidence that Warren Pumps should have known that in certain

circumstances, exposure to asbestos was hazardous. The foregoing evidence does not,

however, raise a triable issue of fact with respect to what Warren Pumps actually knew

at the time it manufactured and sold pumps to the Navy for use onboard the USS Blue.

Getz v. Boeing Co., 654 F.3d 852, 866 (9th Cir. 2011) (“Boyle…does not require a

contractor to warn about dangers of which it merely should have known”). Significantly,

the undisputed evidence of record does not show that Warren Pumps’ knowledge was

superior to the Navy’s knowledge about the danger of asbestos used in its pumps sold

to the Navy for use onboard the USS Blue. Warren Pumps, therefore, was not required

to warn the Navy about those dangers to be entitled to the government contractor

defense.

d. Conclusion with respect to product defect claims

Warren Pumps satisfied its summary judgment burden to show that based upon

the undisputed evidence of record, it is entitled to the government contractor defense

with respect to Mrs. Gorton’s product defect claims. The motion for summary judgment

will be granted with respect to Mrs. Gorton’s claims for product liability, breach of

implied warranty, and negligent design.

2. Product Liability for Failure to Warn and Negligent Failure to Warn

a. Whether the United States exercised its discretion and approved

warnings

There is no evidence of record to show that any of the pumps supplied by Warren

Pumps to the Navy for use onboard the USS Blue contained any warnings with respect

to the hazards of asbestos exposure, whether on the pumps or in manuals

accompanying the pumps. Warren Pumps argues that the Navy—in an effort to

maintain uniformity and consistency within its “vast organization”—exercised its

discretion to control and approved “the content of all written materials accompanying

pumps[,]” including “any label plates affixed to [the pumps[.]” (ECF No. 595 at 11.)

Warren Pumps relies upon the following evidence in support of that argument:

− the Navy developed specifications for use in procuring equipment from

manufacturers for installation on its ships (ECF No. 595-13 at 16, 21);

− the specifications presented very detailed descriptions of what the

government mandated when procuring equipment and invoked other

specifications. The detailed descriptions included: (1) chemical composition;

(2) dimensions; (3) required testing and performance demonstrations; (4)

required labeling; (5) packing and shipping requirements (id. ¶ 21);

− Warren Pumps’ equipment could not have been installed aboard Navy

vessels unless that equipment was first determined by the Navy to be in

conformity with all applicable Navy specifications, i.e., the GENSPECs, and

contractual requirements (ECF No. 595-13 ¶ 42);

− the Navy maintained the responsibility to develop the GENSPECS,

“MILSPECS”15 and other standards for the manufactured and supply of

equipment used in the construction, maintenance and repair of Navy ships

(id. ¶ 22);

− specifications for any equipment intended for use aboard Navy ships were

drafted, approved and maintained by the Navy (id.);

15 MILSPECs is not defined in the affidavit.

− once promulgated, only the Navy could make changes or modifications to

those specifications (id.);

− GENSPECS and MILSPECS were prepared by hundreds of Navy engineers

highly qualified in specialty areas such as, among many other things, valves,

pumps, steam turbines, gas turbines, reduction gears, ship propulsion,

electrical systems and auxiliary equipment (id. ¶ 22);

− Warren Pumps supplied pumps for installation on the USS Blue (ECF No.

595-13 ¶ 51b);

− Warren Pumps was “required to comply with technical specifications in all

details in order for the Navy to accept the equipment.” (ECF No. 595-13 ¶ 23);

− technical specifications included detailed requirements regarding all written

materials supplied with the components. In addition to drawings and plans,

this written material often also included operator reference materials to assist

the equipment operators in operating, servicing, and maintaining such

equipment and to assist the Navy training establishment to develop

instructional materials and courses (ECF No. 595-13 ¶ 36-37);

− “Navy personnel or those of the Navy’s Design Agents participated intimately

in the preparation and review of…instruction books and technical manuals in

a standardized format used by the Navy” (ECF No. 595-13 ¶ 37);

− manufacturers of equipment were required to submit draft manuals to the

Navy for detailed review and feedback (ECF No. 595-13 ¶¶ 37-38);

− the Navy’s review of preliminary technical manuals often resulted in lengthy

memoranda detailing word-by-word line edits to the content of technical

manuals submitted for approval, including the wording of instructional

material and warnings (ECF No. 595-13 ¶¶ 38-39);

− as a result of this review and approval process, these manuals include safety

information to the extent – and only to the extent – directed by the Navy.

Manufacturers of components and equipment were not permitted, under the

specifications, associated regulations and procedures, nor under the actual

practice as it evolved in the field, to include any type of warning or caution

statement in instruction books or technical manuals, beyond those required

and approved by the Navy without prior discussion and approval by the Navy

(id.);

− the Navy exercised this level of control over “written communication regarding

equipment it procured…to ensure consistency of that information with the

overall goals and priorities of the Navy in operations.” (ECF No. 595 ¶ 40);

and

− uniformity and standardization of any communication, particularly safety

information, are critical to the operation of the Navy and Navy ships. The

Navy could simply not operate safely and effectively if personnel were trained

differently, using inconsistent information received from different

manufacturers. If every equipment, structural steel and pipe manufacturer

were allowed to decide on the need for, and provide its own safety and health

warnings (including those concerning asbestos insulation that might be used

on or around its product), inconsistent warnings would certainly have results.

If each were to warn about all the possible substances that might be used on

or around its equipment, sailors would quickly become inundated with

inconsistent information on a myriad of substances. Therefore, the Navy’s

detailed specification of and control over what warnings were required, both

on equipment and in technical documentation, was logical and necessary

(ECF No. 595-13 ¶ 41).

In an effort to create a triable issue of fact with respect to whether Warren Pumps

is entitled to the government contractor defense with respect to Mrs. Gorton’s failure to

warn claims, specifically with respect to whether the Navy exercised its discretion with

respect to warnings accompanying the pumps supplied by Warren Pumps, Mrs. Gorton

relies upon a deposition of Adam Martin (“Martin”), who in 1983 testified in another

asbestos case that he had worked as a packaging inspector and specialist at a military

supply depot, and was an Action Officer for Military Standard 129. Martin testified that

nothing in Military Standard 129 prohibited manufacturers from placing warnings on

their products. (ECF No. 606-12 at 20, 29, 30-31.) Mrs. Gorton argues that that the

Navy not only permitted, but expressly required, warnings on equipment provided to the

Navy by manufacturers. (ECF No. 670 at 11.) Even if Mrs. Gorton’s readings of the

MILSPECS is correct, the MILSPECS upon which Mrs. Gorton relies were issued or

became effective after Warren Pumps manufactured the pumps at issue in this case in

the 1940s. MIL-STD-129B is dated April 10, 1957. MIL-STD-129B, which superseded

MIL-STD-129A, is dated February 8, 1954.

Mrs. Gorton also cites to SeaNav 6260.005, which was issued in 1956, and MIL-

C-2212, which was first published in 1957. Those military standards and regulations

became effective after Warren Pumps manufactured the pumps in issue in this case for

their use by the Navy onboard the USS Blue. Warren Pumps adduced evidence to

show that its pumps at issue in this case were built pursuant to GENSPEC Subsection

S1-1, Section A1 (General Requirements), GENSPEC Subsection S47-1, and

GENSPEC Subsection S47-2. S1-1 is dated March 1, 1941.

Based upon the foregoing, Mrs. Gorton did not adduce evidence to create a

triable issue of fact with respect to whether the Navy exercised discretion with respect

to the issuance of warnings on the pumps supplied to the Navy by Warren Pumps. The

undisputed evidence of record shows that the Navy approved reasonably precise

specifications with respect to the manufacturing of the pumps supplied by Warren

Pumps, which included a careful review, control, and approval of all written material

accompanying the pumps.

b. Whether Warren Pumps provided warnings that conformed to the

approved warnings

Warren Pumps adduces the following evidence of record to show that the pumps

it supplied to the Navy for use on board the USS Blue, including all written material

included with the pumps, conformed to the reasonably precise specifications issued by

the Navy:

− Warren Pumps’ equipment could not have been installed aboard Navy

vessels unless that equipment was first determined by the Navy to be in

conformity with all applicable Navy specifications, i.e., the GENSPECs, and

contractual requirements (ECF No. 595-13 ¶ 42);

− Warren Pumps was “required to comply with technical specifications in all

details in order for the Navy to accept the equipment.” (ECF No. 595-13 ¶ 23.)

− “The ultimate confirmation that all specification, standards and contract

requirements have been complied with occurs when the Navy accepts the

‘product’ and authorizes payment…When the Navy accepts and pays for the

contracted product this verifies that all contract requirements have been

satisfactorily met.” (ECF No. 595-13 ¶ 47.)

− the Navy accepted and approved the manuals for Warren pumps aboard the

USS Blue and therefore the manuals were in full compliance with military

specifications (ECF No. 595-13 ¶ 51b).

In response, Mrs. Gorton argues that whether Warren Pumps conformed to the

Navy’s reasonably precise specifications with respect to warnings is a triable issue of

fact because MIL-STD-129 required Warren Pumps to issue warnings with respect to its

pumps, and Warren Pumps did not issue any warnings with respect to those pumps.

According to Mrs. Gorton, the Navy’s acceptance of the pumps does not show that

Warren Pumps complied with the Navy’s reasonably precise specifications. As

described above, however, MIL-STD-129 post-dated Warren Pumps’ manufacture of

the pumps at issue in this case, and, therefore, whether Warren Pumps complied with

that MILSPEC with respect to the pumps at issue is not relevant to whether Warren

Pumps is entitled to summary judgment based upon the government contractor

defense.

Based upon the foregoing, the undisputed evidence of record shows that the

pumps supplied to the Navy by Warren Pumps, including the written material

accompanying the pumps, conformed to the reasonably precise specifications approved

by the Navy.

c. Whether Warren Pumps warned the United States of the dangers in

the equipment's use about which the contractor knew, but the United

States did not

As discussed above, a reasonable trier of fact could not find that Warren Pumps’

knowledge was superior to the Navy’s knowledge about the dangers of the asbestos

used in the pumps Warren Pumps supplied to the Navy for use onboard the USS Blue.

d. Conclusion with respect to failure to warn claims

Warren Pumps adduced evidence to show that: (1) the Navy exercised discretion

with respect to the written materials accompanying and placed on the pumps supplied

by Warren Pumps for use onboard the USS Blue, i.e., the Navy approved reasonably

precise specifications with respect to the written materials accompanying those pumps;

(2) Warren Pumps conformed to the Navy’s requirements with respect to those written

materials; and (3) Warren Pumps’ knowledge was not superior to the Navy’s knowledge

about the dangers of the asbestos used in the pumps Warren Pumps supplied to the

Navy for use onboard the USS Blue. Mrs. Gorton did not adduce any evidence to

create a triable issue of fact with respect to these issues. Under those circumstances,

Warren Pumps is entitled to summary judgment with respect to Mrs. Gorton’s failure to

warn claims based upon its entitlement to the government contractor defense. The

motion for summary judgment will be granted on that basis with respect to Mrs. Gorton’s

product liability claims for failure to warn and negligent failure to warn.

C. Fraudulent Concealment

Having concluded that the undisputed facts of record show that Warren Pumps is

entitled to summary judgment based upon the government contractor defense with

respect to Mrs. Gorton’s claims for product liability (defect and failure to warn), breach

of implied warranty, and negligence, the only claim remaining in the case is the claim for

fraudulent concealment.

“Federal courts sitting in admiralty apply the general maritime law as developed

by the federal courts proceeding ‘in the manner of [ ] common law court[s].’” Blank River

Servs., Inc. v. Towline River Serv., Inc., 395 F. Supp. 3d 589, 604 (W.D. Pa. 2019)

(quoting The Dutra Grp. v. Batteron, ––– U.S. ––––, 139 S. Ct. 2275, 2278, 204 L.Ed.2d

692 (2019)). When admiralty law is silent with respect to the law of a claim, courts look

to state law. Wheelings v. Seatrade Groningen, BV, 516 F. Supp. 2d 488, 497 (E.D. Pa.

2007) (“State law may supplement maritime law when maritime law is silent or where a

local matter is at issue, but state law may not be applied where it would conflict with

federal maritime law.”). Here, the parties agree that to the extent admiralty does not

apply to a claim in this case, Pennsylvania law is applicable. Under Pennsylvania law,

the elements of fraudulent concealment are:

(1) (a) A misrepresentation or

(b) A concealment;

(2) Which is material to the transaction at hand;

(3) (a) Made with knowledge of its falsity or recklessness as to whether it is

true or false (for a misrepresentation), or

(b) Calculated to deceive (for a concealment);

(4) With the intent of misleading another into relying on it;

(5) Justifiable reliance on the misrepresentation; and

(6) A resulting injury proximately caused by such reliance.

SodexoMAGIC, LLC v. Drexel Univ., 24 F.4th 183, 205 (3d Cir. 2022).

As discussed above, the undisputed evidence of record shows that Warren Pumps

did not possess knowledge about the dangers of the asbestos-containing pipes it supplied

to the Navy for use onboard the USS Blue that was superior to the knowledge of the Navy

with respect to those asbestos-containing pipes. Under those circumstances, a

reasonable trier of fact could not find that Warren Pumps concealed from the Navy any

information about the dangers of asbestos that was material to any transaction identified

by Mrs. Gorton. Warren Pumps, therefore, is entitled to summary judgment with respect

to Mrs. Gorton’s claim for fraudulent concealment.16

16 Warren Pumps in its motion for summary judgment does not specifically argue

that it is entitled to summary judgment with respect to the fraudulent concealment claim

because there is no evidence of record to show that Warren Pumps concealed from the

Navy any information about the dangers of asbestos when it sold to the Navy the

asbestos-containing pumps for use onboard the USS Blue. The Third Circuit Court of

Appeals has explained:

District courts have “the power to enter summary judgments sua

sponte, so long as the losing party was on notice that she had to come

forward with all of her evidence.” Celotex, 477 U.S. at 326; Fed. R. Civ. P.

56(f). Notice is sufficient if the party “had reason to believe the court might

reach the issue and received a fair opportunity to put its best foot forward.”

Gibson v. Mayor & Council of Wilmington, 355 F.3d 215, 223 (3d Cir. 2004)

(citation omitted); see also Acumed LLC v. Advanced Surgical Servs., Inc.,

561 F.3d 199, 223 (3d Cir. 2009) (requiring a court to give “notice of its

intention to consider granting summary judgment so that [the parties] have

an opportunity to marshal evidence on the motion”).

Vanhook v. Cooper Health Sys., No. 21-2213, 2022 WL 990220, at *4 (3d Cir. Mar. 31,

2022). Here, Mrs. Gorton knew this court was going to decide whether there was evidence

of record to show that Warren Pumps knew about the dangers of asbestos when it sold

pumps to the Navy for used onboard the USS Blue and that Warren Pumps’ knowledge

of the danger of asbestos was superior to the Navy’s knowledge of the dangers of

asbestos because Warren Pumps argued in its motion for summary judgment that it is

entitled to the government contractor’s defense because, among other things, the

evidence of record does not show that it’s knowledge about the dangers of asbestos was

greater than the Navy’s knowledge about the danger of asbestos when Warren Pumps

sold the Navy pumps for use onboard the USS Blue. Under those circumstances, Mrs.

Gorton had the opportunity to produce all her evidence with respect to those issues. Mrs.

Gorton failed to adduce evidence to create a triable issue of fact about whether Warren

Pumps was aware of the danger of asbestos at the time it sold the pumps to the Navy for

use onboard the USS and whether Warren Pumps’ knowledge about the dangers of

asbestos was superior to the Navy’s knowledge about the dangers of asbestos during the

D. Other Arguments made by Warren Pumps

Having concluded that—based upon the undisputed evidence of record—a

reasonable trier of fact could not find in Mrs. Gorton’s favor with respect to the fraudulent

inducement claim and that a reasonable trier of fact could only find that Warren Pumps is

entitled to the government contractor defense with respect to Mrs. Gorton’s other claims,

the court need not address the other arguments raised by Warren Pumps in its motion for

summary judgment.

V. Conclusion

For the reasons set forth in this opinion, Warren Pumps’ motion for summary

judgment will be granted and judgment will be entered in its favor with respect to all

claims. An appropriate order and judgment will be entered.

BY THE COURT,

Dated: June 6, 2023 /s/ JOY FLOWERS CONTI

Joy Flowers Conti

Senior United States District Judge

same period. Mrs. Gorton, therefore, did not adduce any evidence to show that Warren

Pumps concealed any information about the dangers of asbestos from the Navy. A sua

sponte grant of summary judgment is, therefore, appropriate in this case with respect to

the claim for fraudulent concealment although Warren Pumps did not specifically raise

the issue in its motion for summary judgment.