Joint Appendix — Air and Liquid Systems Corp., et al., Petitioners v. Roberta G. DeVries, Individually and as Administratrix of the Estate of John B. DeVries, Deceased, et al.
Supreme Court briefJul 9, 2018
Ask Donna
What actually matters in this document.
Text
No. 17-1104
IN THE
Supreme Court of the United States
AIR AND LIQUID SYSTEMS CORP., CBS
CORPORATION, AND FOSTER WHEELER LLC,
Petitioners,
v.
ROBERTA G. DEVRIES, Administratrix of the Estate
of John B. DeVries, Deceased, and Widow in her own
right,
Respondent.
INGERSOLL RAND COMPANY,
Petitioner,
v.
SHIRLEY MCAFEE, Executrix of the Estate of
Kenneth McAfee, and Widow in her own right,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals for the Third Circuit
JOINT APPENDIX (VOLUME I OF II)
SHAY DVORETZKY
Counsel of Record
JONES DAY
51 Louisiana Ave NW
Washington, DC 20001
Tel.: (202) 879-3939
sdvoretzky@jonesday.com
RICHARD PHILLIPS MYERS
Counsel of Record
PAUL, REICH & MYERS
1608 Walnut Street, Suite 500
Philadelphia, PA 19103
Tel.: (215) 735-9200
rmyers@prmpclaw.com
Counsel for Petitioner
CBS Corporation
Counsel for Respondents
Roberta G. DeVries and
Shirley McAffee
(Additional counsel listed on inside cover)
PETITION FOR CERTIORARI FILED JANUARY 31, 2018
CERTIORARI GRANTED MAY 14, 2018
CARTER G. PHILLIPS
Counsel of Record
SIDLEY AUSTIN LLP
1501 K Street, N.W.
Washington, DC 20005
Tel.: (202) 736-8270
cphillips@sidley.com
Counsel for Respondent
General Electric Co.
(continued from front cover)
i
TABLE OF CONTENTS
Page
VOLUME I
Docket Entries,
In re: Asbestos Products Liability Litigation
(No. VI), No. 16-2669 (3d Cir.) ............................... 1
Docket Entries,
In re: Asbestos Products Liability Litigation
(No. VI), No. 16-2602 (3d Cir.) ............................... 3
Docket Entries,
In re: Asbestos Products Liability Litigation
(No. VI), No. 15-2667 (3d Cir.) ............................... 5
Docket Entries,
In re: Asbestos Products Liability Litigation
(No. VI), No. 15-1278 (3d Cir.) ............................... 7
Docket Entries,
McAfee, et al. v. 20th Century Glove Corp. of
Texas, No. 5:13-cv-06856-GJP (E.D. Pa.) ............ 10
Docket Entries,
DeVries, et al. v. General Electric Co,, et al.,
No. 5:13-cv-00474-ER (E.D. Pa.) .......................... 13
Materials from District Court Proceedings
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 269-1, pages 2–18) (excerpts of Exhibit
A to Motion for Summary Judgment filed by
CBS Corporation) ................................................. 22
ii
TABLE OF CONTENTS
(continued)
Page
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 269-2, pages 2–38) (excerpts of Exhibit
B to Motion for Summary Judgment filed by
CBS Corporation) ................................................. 46
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 270-1, pages 2–53) (excerpts of Exhibit
A to Motion for Summary Judgment filed by
General Electric Company) .................................. 90
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 270-2, pages 2–19) (excerpts of Exhibit
B to Motion for Summary Judgment filed by
General Electric Company) ................................ 224
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 270-3, pages 7, 25, 33–34, 50–51, 56,
62) (excerpts of Exhibit C to Motion for
Summary Judgment filed by General Electric Company) ..................................................... 259
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 273, pages 14–49) (Exhibits A-C to
Motion for Summary Judgment filed by Imo
Industries, Inc.) .................................................. 266
iii
TABLE OF CONTENTS
(continued)
Page
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 274, page 16) (excerpt of Exhibit A to
Motion for Summary Judgment filed by Air
& Liquid Systems Corporation) ......................... 361
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 277-4, pages 1–4) (excerpts of exhibits
to Motion for Summary Judgment filed by
Foster Wheeler LLC) .......................................... 362
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 291, pages 13, 17, 19–22) (excerpts of
Exhibit A to Answer to Motion for Summary
Judgment of Foster Wheeler LLC) .................... 369
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 291, pages 27–29) (excerpts of Exhibit
B to Answer to Motion for Summary Judgment of Foster Wheeler LLC) ............................ 383
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 291, pages 33, 35) (excerpts of Exhibit
C to Answer to Motion for Summary Judgment of Foster Wheeler LLC) ............................ 389
iv
TABLE OF CONTENTS
(continued)
Page
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 291-1, pages 1–8) (excerpts of Exhibit
C to Answer to Motion for Summary Judgment of Foster Wheeler LLC, continued) .......... 391
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 294, pages 15–19) (excerpts to Exhibit
A of Answer to Motion for Summary Judgment of General Electric Company) .................. 398
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 294-3, pages 3–10) (excerpts to Exhibit
G of Answer to Motion for Summary Judgment of General Electric Company) .................. 410
VOLUME II
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 296, pages 20–22) (excerpts to Exhibit
A of Answer to Motion for Summary Judgment of CBS Corporation).................................. 420
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 296-1, pages 9–13) (Exhibit C of Answer to Motion for Summary Judgment of
CBS Corporation) ............................................... 427
v
TABLE OF CONTENTS
(continued)
Page
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 296-2, pages 18–21) (excerpts of Exhibit F of Answer to Motion for Summary
Judgment of CBS Corporation).......................... 437
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 296-2, pages 30–31, 34–36) (excerpts
of Exhibit G of Answer to Motion for Summary Judgment of CBS Corporation,
continued) ........................................................... 443
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 296-2, page 45 — Doc. 296-3, pages
1–2) (excerpts of Exhibit H of Answer to Motion for Summary Judgment of CBS
Corporation)........................................................ 448
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(excerpts of Exhibit H of Answer to Motion
for Summary Judgment of CBS Corporation, continued)................................................... 453
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 296-3, pages 8–9) (Exhibit I to Answer
to Motion for Summary Judgment of CBS
Corporation)........................................................ 459
vi
TABLE OF CONTENTS
(continued)
Page
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 297, pages 16–22, 28–29) (excerpts of
Exhibits B & C of Answer to Motion for Summary Judgment of IMO Industries, Inc.) .......... 463
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 298, page 19) (excerpts of Exhibit A of
Answer to Motion for Summary Judgment
by Buffalo Pumps, Inc) ....................................... 472
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 298-2, pages 7–8) (excerpts of Exhibit
D of Answer to Motion for Summary Judgment by Buffalo Pumps, Inc.) ............................ 473
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa.)
(Doc. 298-4, pages 6–10) (Exhibit J of Answer to Motion for Summary Judgment by
Buffalo Pumps, Inc.) ........................................... 480
McAffee v. 20th Century Glove Corp.,
No. 13-06856-ER (E.D. Pa.)
(Doc. 171, pages 18–31; 33–43) (excerpts of
Exhibits A & B of Ingersoll Rand Company's
Motion for Summary Judgment) ....................... 486
vii
TABLE OF CONTENTS
(continued)
Page
McAffee v. 20th Century Glove Corp.,
No. 13-06856-ER (E.D. Pa.)
(Doc. 203, pages 16–19, 22–24, 30–31, 37–
49) (excerpts of Exhibits A, B, & C of Answer to Motion for Summary Judgment of
Ingersoll-Rand Company) .................................. 557
McAffee v. 20th Century Glove Corp.,
No. 13-06856-ER (E.D. Pa.)
(Doc. 203-1, pages 1–2, 31–50) (excerpts of
Exhibit D of Answer to Motion for Summary
Judgment of Ingersoll-Rand Company) ............ 593
McAffee v. 20th Century Glove Corp.,
No. 13-06856-ER (E.D. Pa.)
(Doc. 203-2) (excerpts of Exhibit D of Answer to Motion for Summary Judgment of
Ingersoll-Rand Company, continued) ................ 642
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa., October 3,
2014) (order awarding summary judgment
to Warren Pumps) .............................................. 745
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa., October 3,
2014) (order awarding summary judgment
to IMO Industries, Inc.) ..................................... 757
DeVries, et al. v. General Electric Company,
et al., No. 13-cv-474 (E.D. Pa., October 10,
2014) (order awarding summary judgment
to General Electric Company)............................ 770
viii
TABLE OF CONTENTS
(continued)
Page
Materials from Third Circuit Proceedings
DeVries, et al. v General Electric Company,
et al., No. 15-1278 (3rd Cir.)
(Joint Appendix 729) .......................................... 782
DeVries, et al. v General Electric Company,
et al., No. 15-1278 (3rd Cir.)
(Joint Appendix 1508-12) ................................... 784
DeVries, et al. v General Electric Company,
et al., No. 15-1278 (3rd Cir.)
(Joint Appendix 1540-42) ................................... 797
Addendum A to Brief of Defendant-Appellee
General Electric Company,
No. 16-2602 (3d Cir.) .......................................... 803
1
GENERAL DOCKET
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
Court of Appeals Docket #: 16-2669
***
Appeal From: United States District Court for the
Eastern District of Pennsylvania
***
In re: Asbestos Products Liability Litigation (No. VI)
Date Filed
Docket Text
06/06/2016
CIVIL CASE DOCKETED. Notice
filed by Appellant Shirley McAfee in
District Court No. 5-13-cv-06856 and
2-01-md-00875. (DW) [Entered:
06/06/2016 02:43 PM]
***
CLERK ORDER The joint motion to
consolidate the appeals at Nos. 162602 & 16-2669 is granted. The actions are consolidated for all purposes, filed. [16-2602, 16-2669] (CJG)
[Entered: 06/23/2016 11:34 AM]
***
PRECEDENTIAL OPINION Coram:
VANASKIE, SHWARTZ and RESTREPO, Circuit Judges. Total
Pages: 19. Judge: VANASKIE Authoring. [16-2602, 16-2669] (CJG)
[Entered: 10/03/2017 09:24 AM]
JUDGMENT, Affirmed In Part as to
Appellants' strict liability claims.
06/23/2016
10/03/2017
10/03/2017
2
With respect to Appellants' negligence claims, the cases are Remanded to the District Court. Costs
shall not be taxed. [16-2602, 16-2669]
(CJG) [Entered: 10/03/2017 09:25
AM]
***
3
GENERAL DOCKET
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
Court of Appeals Docket #: 16-2602
***
Appeal From: United States District Court for the
Eastern District of Pennsylvania
***
In re: Asbestos Products Liability Litigation (No. VI)
Date Filed
Docket Text
5/31/2016
CIVIL CASE DOCKETED. Notice
filed by Appellant Roberta G. Devries
in District Court No. 5-13-cv-00474,201-md-00875. (CJG) [Entered:
05/31/2016 10:04 AM]
***
CLERK ORDER The joint motion to
consolidate the appeals at Nos. 162602 & 16-2669 is granted. The actions are consolidated for all purposes, filed. [16-2602, 16-2669] (CJG)
[Entered: 06/23/2016 11:34 AM]
***
PRECEDENTIAL OPINION Coram:
VANASKIE, SHWARTZ and RESTREPO, Circuit Judges. Total
Pages: 19. Judge: VANASKIE Authoring. [16-2602, 16-2669] (CJG)
[Entered: 10/03/2017 09:24 AM]
06/23/2016
10/03/2017
4
10/03/2017
JUDGMENT, Affirmed In Part as to
Appellants' strict liability claims.
With respect to Appellants' negligence claims, the cases are Remanded to the District Court. Costs
shall not be taxed. [16-2602, 16-2669]
(CJG) [Entered: 10/03/2017 09:25
AM]
***
5
GENERAL DOCKET
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
Court of Appeals Docket #: 15-2667
***
Appeal From: United States District Court for the
Eastern District of Pennsylvania
***
In re: Asbestos Products Liability Litigation (No. VI)
Date Filed
Docket Text
07/16/2015
CIVIL CASE DOCKETED. Notice
filed by Appellants Kenneth McAfee
and Shirley McAfee in District Court
No. 5-13-cv-06856 & 2-01-md-00875.
(OM) [Entered: 07/16/2015 05:12 PM]
***
ECF FILER: ELECTRONIC BRIEF
with Appendix Volume I on behalf of
Appellants Kenneth McAfee and
Shirley McAfee, filed. Certificate of
Service dated 11/16/2015 by ECF. -[Edited 11/20/2015 by EAF - Text edited to indicate Appendix attached;
Appendix Volume II removed and refied as of 11/20/15] (REP) [Entered:
11/16/2015 11:23 AM]
***
ECF FILER: ELECTRONIC APPENDIX VOLUME II on behalf of Appellants Kenneth McAfee and Shirley
McAfee, filed. Certificate of service
11/16/2015
11/20/2015
6
05/12/2016
dated 11/20/2015 by ECF. --[Edited
11/20/2015 by EAF - Text edited to
specify volume] (REP) [Entered:
11/20/2015 09:09 AM]
***
ORDER (VANASKIE, SHWARTZ
and RESTREPO, Circuit Judges)
Upon Consideration of the Arguments by Counsel Presented in their
Briefs, It is Hereby Ordered that the
Case is Summarily Remanded to the
District Court to consider these
items. In the event that a subsequent
appeal is taken after the proceedings
on remand have concluded, any future appeal will be considered by this
panel after completion of briefing,
filed. Judge: SHWARTZ Authoring,
(See Order for Full Text). (PDB) [Entered: 05/12/2016 04:28 PM]
***
7
GENERAL DOCKET
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
Court of Appeals Docket #: 15-1278
***
Appeal From: United States District Court for the
Eastern District of Pennsylvania
***
In re: Asbestos Products Liability Litigation (No. VI)
Date Filed
Docket Text
2/12/2015
CIVIL CASE DOCKETED. Notice
filed by Appellant Roberta G. Devries
in District Court No. 5-13-cv-00474
and 2-01-md-00875. (ARR) [Entered:
02/12/2015 04:25 PM]
06/09/2015
06/09/2015
***
ECF FILER: ELECTRONIC BRIEF
with Volume I of Appendix attached
on behalf of Appellant Roberta G.
Devries, filed. Certificate of Service
dated 06/09/2015 by ECF. [Appendix
Volumes II-VII were removed from
this entry by the Clerk as they were
re-filed separately]--[Edited
06/10/2015 by MS] (REP) [Entered:
06/09/2015 02:27 PM]
***
ECF FILER: ELECTRONIC APPENDIX on behalf of Appellant Roberta
G. Devries, filed. Certificate of service dated 06/09/2015 by ECF. (REP)
[Entered: 06/09/2015 04:02 PM]
8
08/10/2015
08/10/2015
02/05/2016
***
ECF FILER: JOINT SUPPLEMENTAL ELECTRONIC APPENDIX on behalf of Appellees Buffalo
Pumps Inc, CBS Corp, Foster
Wheeler LLC, GE Co, IMO Industries Inc and Warren Pumps, filed.
Certificate of service dated
08/10/2015 by ECF.--[Edited
08/11/2015 by MCW] (PJS) [Entered:
08/10/2015 03:33 PM]
ECF FILER: ELECTRONIC BRIEF
on behalf of Appellee Foster Wheeler
LLC, filed. Certificate of Service
dated 08/10/2015 by ECF. (LJJ) [Entered: 08/10/2015 04:22 PM]
***
ORDER (VANASKIE, SHWARTZ
and RESTREPO, Circuit Judges),
summarily remanding this case to
the District Court to determine
whether the District Court: (1) considered the negligence theory; (2)
concluded that the bare metal defense applies to it and why, or (3)
considered whether the circumstances listed in the case cited herein
should apply to a negligence claim
brought under maritime law (and if
not, why not, and if so, why and
whether the record here would support such a claim). In the event that
a subsequent appeal is taken after
9
the proceedings on remand have concluded, any future appeal will be considered by this panel after completion
of briefing, filed. Judge: SHWARTZ
Authoring (ARR) [Entered:
02/05/2016 05:41 PM]
***
10
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
(ALLENTOWN)
CIVIL DOCKET FOR CASE # 5:13-cv-06856-GJP
MCAFEE, et al. v.
20TH CENTURY GLOVE CORP. OF TEXAS
***
Date Filed
#
Docket Text
11/25/2013
1
08/25/2014
171
09/24/2014
203
NOTICE OF REMOVAL by
CBS CORPORATION, GENERAL ELECTRIC COMPANY
from Philadelphia Common
Pleas, case number 131000205.
Certificate of Service.(Filing fee
$ 400 receipt number
092116)(jwl, ) (Entered:
11/26/2013)
***
First MOTION for Summary
Judgment filed by INGERSOLL-RAND & CO..memorandum, certificate of service.(RYAN, DANIEL) (Entered: 08/25/2014)
***
RESPONSE to Motion
re 171 First MOTION for Summary Judgment of IngersollRand filed by KENNETH E.
MCAFEE. (Attachments:
# 1 Exhibit, # 2 Exhibit)(PAUL,
11
10/23/2014
218
07/08/2015
275
05/26/2016
280
ROBERT) (Entered:
09/24/2014)
***
ORDER THAT THE MOTION
FOR SUMMARY JUDGMENT
OF DEFENDANT INGERSOLL-RAND & CO. (DOC. NO.
171) IS GRANTED. SIGNED
BY HONORABLE EDUARDO
C. ROBRENO ON
10/22/2014.10/27/2014 ENTERED AND COPIES EMAILED.(jmg, ) (Entered:
10/27/2014)
***
NOTICE OF APPEAL by KENNETH E. MCAFEE. Copies to
Judge, Clerk USCA, Appeals
Clerk and (PAUL, ROBERT)
Modified on 7/10/2015 (fb). (Entered: 07/08/2015)
***
ORDER THAT THIS COURT
REAFFIRMS IT 10/22/14 ENTRY OF JUDGMENT AND DIRECTS ANY INTERESTED
PARTIES TO ITS REASONING SET FORTH IN ITS
5/19/16 EXPLANATORY ORDER. SIGNED BY HONORABLE EDUARDO C. ROBRENO
ON 5/25/16. 5/26/16 ENTERED
AND COPIES E-
12
MAILED.(mbh, ) (Entered:
05/27/2016)
05/31/2016
281
NOTICE OF APPEAL by KENNETH E. MCAFEE. Fee Not
Paid. Copies to Judge, Clerk
USCA, Appeals Clerk.(PAUL,
ROBERT) Modified on
5/31/2016 (fb). (Entered:
05/31/2016)
***
13
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
(ALLENTOWN)
CIVIL DOCKET FOR CASE #: 5:13-cv-00474-ER
DEVRIES, et al. v.
GENERAL ELECTRIC COMPANY et al.
***
Date Filed
#
Docket Text
01/25/2013
1
07/02/2013
168
NOTICE OF REMOVAL by
CBS CORPORATION, GENERAL ELECTRIC COMPANY
from Philadelphia CCP, case
number December 2012 No.
3661. (Filing fee $ 350 receipt
number 075971), Certificate of
Service.(tj, ) (Additional attachment(s) added on 1/28/2013:
# 1 Exhibits C-E) (tj,). (Entered: 01/28/2013)
***
AMENDED COMPLAINT with
Certificate of Service against
ALLEN-BRADLEY COMPANY, ALLEN-SHERMANHOFF, AMTICO, AURORA
PUMP, AZROCK INDUSTRIES, INC., BELL &
GOSSETT/DOMESTIC PUMP,
BRYANT HEATING AND
COOLING, BUFFALO
PUMPS, INC., BURNHAM
LLC, BW/IP, INC., CHICAGO
14
DRYER, CLEAVER BROOKS,
INC., COPES VULCAN,
CRANE CO., CROUSEHINDS, DAL-TILE, DENISON
INTERNATIONAL, DOVER
CORPORATION, EDWARDS
VALVE, ELLIOT GROUP U.S.
HEADQUARTERS, FOSTERWHEELER LLC, GARDNERDENVER-JOY COMPRESSORS, GENERAL ELECTRIC
COMPANY, GLASGOW, INC.,
GOODYEAR CANADA,
GOODYEAR TIRE & RUBBER
CO., GUARD LINE, INC.,
HAMPSHIRE INDUSTRIES,
HARNISCHFEGER CORP.,
HENKLES AND MCCOY,
INC., INSUL CORPORATION,
J.A. SEXAUER, METROPOLITAN LIFE INS. CO., MINNESOTA MINING & MANUFACTURING, OWENS-ILLINOIS,
INC., RILEY STOKER CORPORATION, SEPCO CORPORATION, UNITED CONVEYOR CORPORATION, UNIVERSAL REFRACTORIES,
WARREN PUMPS, WEL
MCLAIN, AMCHEM PRODUCTS, IMO INDUSTRIES,
INC., filed by JOHN B.
DEVRIES, ROBERTA G.
DEVRIES.(ti, ) Modified on
15
10/15/2013
263
10/15/2013
269
10/15/2013
270
10/15/2013
273
7/3/2013 (ti, ). (Entered:
07/03/2013)
***
MOTION for Summary Judgment filed by WARREN
PUMPS.Memorandum, Certificate of Service. (Attachments:
# 1 Exhibit A, # 2 Exhibit B,
# 3 Exhibit C, # 4 Exhibit D,
# 5Exhibit E, # 6 Exhibit F,
# 7 Exhibit G)(SCHEETS,
JOSHUA) (Entered:
10/15/2013)
***
MOTION for Summary Judgment filed by CBS CORPORATION.Memorandum, Certificate of Service. (Attachments:
# 1 Exhibit A, # 2 Errata B,
# 3 Exhibit C, # 4 Exhibit D,
# 5Exhibit E)(MCSHEA,
JOHN) (Entered: 10/15/2013)
MOTION for Summary Judgment filed by GENERAL
ELECTRIC COMPANY.Memorandum, Certificate of Service.
(Attachments: # 1 Exhibit A,
# 2 Exhibit B, # 3 Exhibit C,
# 4Exhibit D)(MCSHEA,
JOHN) (Entered: 10/15/2013)
***
MOTION for Summary Judgment filed by IMO INDUS-
16
TRIES, INC..Memoradum, Certificate of Service.(FONTAK,
JOSEPH) (Entered:
10/15/2013)
10/15/2013
274
10/15/2013
277
11/15/2013
291
MOTION for Summary Judgment filed by BUFFALO
PUMPS, INC..Memorandum,
Certificate of Service.(HOWARTH, JOHN) (Entered: 10/15/2013)
***
MOTION for Summary Judgment filed by FOSTERWHEELER LLC.Memorandum
of Law in Support of Motion for
Summary Judgment and Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13Exhibit M, # 14 Exhibit N)(JANICZEK, LEROY)
(Entered: 10/15/2013)
***
RESPONSE to Motion
re 277 MOTION for Summary
Judgment of Foster
Wheeler filed by JOHN B.
DEVRIES. (Attachments:
# 1 part 2, # 2 part 3, # 3 part
4, # 4 part 5, # 5 part 6,
17
# 6 part 7, # 7 part 8)(PAUL,
ROBERT) (Entered:
11/15/2013)
***
RESPONSE to Motion
re 270 MOTION for Summary
Judgment of General Electric filed by JOHN B.
DEVRIES. (Attachments:
# 1 part 2, # 2 part 3, # 3 part
4, # 4 part 5, # 5 part 6)(PAUL,
ROBERT) (Entered:
11/15/2013)
11/15/2013
294
11/15/2013
295
RESPONSE in Opposition
re 270 MOTION for Summary
Judgment of Plaintiffs filed by
GENERAL ELECTRIC COMPANY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit
D)(MCSHEA, JOHN) (Entered:
11/15/2013)
11/15/2013
296
RESPONSE to Motion
re 269 MOTION for Summary
Judgment of CBS Corporation filed by JOHN B.
DEVRIES. (Attachments:
# 1 part 2, # 2 part 3, # 3 part
4, # 4 part 5, # 5 part 6,
# 6 part 7)(PAUL, ROBERT)
(Entered: 11/15/2013)
11/15/2013
297
RESPONSE to Motion
re 273 MOTION for Summary
18
Judgment to IMO filed by
JOHN B. DEVRIES. (Attachments: # 1 part 2)(PAUL, ROBERT) (Entered: 11/15/2013)
11/15/2013
298
11/15/2013
301
10/06/2014
345
10/06/2014
346
RESPONSE to Motion
re 274 MOTION for Summary
Judgment of Buffalo
Pumps filed by JOHN B.
DEVRIES. (Attachments:
# 1 part 2, # 2 part 3, # 3 part
4, # 4 part 5)(PAUL, ROBERT)
(Entered: 11/15/2013)
***
RESPONSE to Motion
re 263 MOTION for Summary
Judgment to Warren
Pumps filed by JOHN B.
DEVRIES. (Attachments:
# 1 part 2, # 2 part 3, # 3 part
4)(PAUL, ROBERT) (Entered:
11/15/2013)
***
ORDER THAT THE MOTION
FOR SUMMARY JUDGMENT
OF DEFENDANT WARREN
PUMPS (DOC. NO. 263 ) IS
GRANTED. ETC. SIGNED BY
HONORABLE EDUARDO C.
ROBRENO ON 10/1/14. 10/6/14
ENTERED AND COPIES EMAILED.(va, ) (Entered:
10/06/2014)
ORDER THAT THE MOTION
FOR SUMMARY JUDGMENT
19
OF DEFENDANT IMO INDUSTRIES, INC. (DOC.
NO. 273 ) IS GRANTED.
SIGNED BY HONORABLE
EDUARDO C. ROBRENO ON
10/1/14. 10/6/14 ENTERED
AND COPIES EMAILED.(va, ) (Entered:
10/06/2014)
10/06/2014
347
10/15/2014
350
10/15/2014
351
ORDER THAT THE MOTION
FOR SUMMARY JUDGMENT
OF DEFENDANT BUFFALO
PUMPS, INC. (DOC. NO. 274 )
IS GRANTED. ETC. SIGNED
BY HONORABLE EDUARDO
C. ROBRENO ON 10/01/2014.
10/06/2014 ENTERED AND
COPIES E-MAILED. (va, ) (Entered: 10/06/2014)
***
ORDER THAT THE MOTION
FOR SUMMARY JUDGMENT
OF DEFENDANT CBS CORPORATION IS GRANTED.
SIGNED BY HONORABLE
EDUARDO C. ROBRENO ON
10/10/2014.10/15/2014 ENTERED AND COPIES EMAILED.(uh, ) (Entered:
10/15/2014)
ORDER THAT THE MOTION
FOR SUMMARY JUDGMENT
OF DEFENDANT GENERAL
ELECTRIC COMPANY IS
20
10/15/2014
353
01/26/2015
364
01/26/2015
365
02/12/2015
GRANTED. SIGNED BY HONORABLE EDUARDO C.
ROBRENO ON
10/10/2014.10/15/2014 ENTERED AND COPIES EMAILED.(uh, ) (Entered:
10/15/2014)
***
ORDER THAT THE MOTION
FOR SUMMARY JUDGMENT
OF DEFENDANT FOSTER
WHEELER LLC IS
GRANTED. SIGNED BY HONORABLE EDUARDO C.
ROBRENO ON
10/10/2014.10/15/2014 ENTERED AND COPIES EMAILED.(uh, ) (Entered:
10/15/2014)
***
NOTICE OF APPEAL by
JOHN B. DEVRIES. Copies to
Judge, Clerk USCA, Appeals
Clerk (Entered: 01/26/2015)
Clerk's Notice to USCA
re 364 Notice of Appeal : (ti, )
(Entered: 01/28/2015)
***
USCA Case Number 15-1278
for 364 Notice of Appeal filed
by JOHN B. DEVRIES. (ahf)
(Entered: 02/13/2015)
***
21
03/03/2016
368
ORDER of USCA as to 364 Notice of Appeal filed by JOHN B.
DEVRIES THAT THE CASE
IS SUMMARILY REMANDED
TO THE DISTRICT COURT
TO CONSIDER THESE
ITEMS; ETC. (ems) (Entered:
03/03/2016)
05/19/2016
369
05/23/2016
371
MEMORANDUM AND/OR
OPINION SIGNED BY HONORABLE EDUARDO C.
ROBRENO ON 5/18/16. 5/19/16
ENTERED AND COPIES
MAILED, E-MAILED.(ti, ) (Entered: 05/19/2016)
***
NOTICE OF APPEAL by
JOHN B. DEVRIES; no filing
fee paid. Copies to Judge, Clerk
USCA, and Appeals Clerk. (ti, )
Modified on 5/24/2016 (ti, ).
(Entered: 05/24/2016)
***
22
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
In Re: Asbestos Product )
Liability Litigation
)
)
)
All Actions
Civil Action No.
MDL 875
AFFIDAVIT OF ROGER B. HORNE JR.
RADM USN (RET)
1.
I am a retired Rear Admiral of the United
States Navy, in which I served between 1956 and 1991.
I began my Navy Career in 1956, immediately after
receiving a Bachelor of Science degree in Naval Engineering from the Unites States Naval Academy at Annapolis, Maryland. I have also received extensive
post-graduate education in naval engineering, including a Master of Science Degree in Mechanical Engineering from the U.S. Naval Postgraduate School, and
have taught Naval Engineering as a Visiting Professor at the University of Michigan. Throughout my
Navy career, I concentrated in areas of ship design,
engineering, construction, overhaul and inspection.
Ultimately, I achieved the rank of Chief Engineer and
Deputy Commander, Naval Sea Systems Command
(“NAVSEA”) for Ship Design and Ship Systems Engineering. Prior to that, I served as Deputy Commander,
NAVSEA for Facilities and Industrial Management;
Commander, Puget Sound Naval Shipyard; Commander, Engineering Duty Officer School; Production
and Repair Officer, Mare Island Naval Shipyard; Nuclear Engineering Manager, Puget Sound Naval Ship-
23
yard; Nuclear Submarine Inspection Officer, Supervisor of Shipbuilding Office, Ingalls Shipyard and Chief
Engineer in the USS Ozbourn (DD 846).
I have been involved in the construction or overhaul
of over 80 ships and submarines and served at sea. I
am proud that these vessels have performed many activities vital to the national defense. Examples of
these activities during my tenure include at sea task
force operations following the Korean war while doing
joint operations with ships of the Southeast Asia
Treaty Organization (“SEATO”); shipyard positions
including command with significant responsibilities
concerning vessels with vital missions during the Cold
War and Viet Nam war, as well as, senior positions
later in my career with significant responsibility concerning the overall management of industrial facilities in both private and public shipyards as well as the
design of new ships.
2.
While in the Navy, I was recognized for
achievements in the field of marine machinery and engineering, and I have received three National Legion
of Merit Awards and three Meritorious Service
Awards for Engineering and Industrial Achievement
and an award from the Marine Machinery Association.
3.
In addition to my training and experience in
Navy ship construction as outlined above, upon retirement, I taught part-time at the University of Michigan as a visiting professor in ship construction. Further, in civilian life, I had responsibility for the Marine and Aviation Section at Failure Analysis Associates located in Menlo Park California. On retirement
from Failure Analysis Associates I have been involved
with many asbestos related legal cases. Exhibit 1 is a
true, complete and correct copy of my curriculum vitae.
24
4.
Based on my naval experience and training,
general knowledge and review of the materials supplied me, I submit this Affidavit to attest to (a) the
Navy’s mission and the relevance of equipment design,
engineering, construction, repair, overhaul and inspection to that mission; (b) the centrality of equipment and materials such as propulsion turbines, turbine-generator sets and related equipment (“turbines”)
and asbestos thermal insulation to the Navy’s ability
to successfully wage wars in the 20th Century; and (c)
the importance of Navy designed and Navy controlled
asbestos warning procedures.
5.
Stated simply, the mission of the Navy is to
win wars, deter aggression and maintain freedom of
the seas. In the interests of the national defense, the
Navy has four primary areas of responsibility concerning ships and submarines: (1) the design and construction of naval forces necessary for effective prosecution of national defense; (2) the maintenance of naval ships and equipment essential to readiness for naval operations; (3) the development of new equipment
and weapon systems; and (4) support for its sailors.
6.
The country requires a Navy with offensive
capability that can project power to discourage aggressive action by other nations. There is never a time
when the Navy is not either engaged in combat or preparing for combat by readying its primary war weapons – ships and sailors – for battle. Even in times of
“peace” (when the Country is not officially at war or
when ships are not engaged in combat), the Navy provides important combat-related services. For example,
Navy submarines patrolling international waters
have been credited with assisting in the collapse of Soviet Russia during the nuclear arms race between the
25
United States and Russia commonly referred to as the
Cold War.
7.
Retaining a trained base of personnel, continually introducing state-of-the-art equipment and materials, and keeping in good repair its ships, aircraft
and auxiliary equipment are essential, inextricable
aspects of the Navy’s national responsibilities. For
this reason, the Navy’s effort to design, engineer, construct, repair, and inspect its ships, aircraft and auxiliary vessels, whether during operations or in shipyards, was and is critical to the Navy’s mission. Without continual training of personnel and construction
and repair of its ships and auxiliary equipment, the
Navy would not be capable of deterring aggression
and fighting wars.
8.
The Navy has a chain of command which establishes reporting authority from junior to senior officers and provides for the communication of instruction and orders among Navy personnel. To ensure
that all Navy personnel know and understand the
chain of command, enlisted personnel are taught it in
boot camp and officers learn about it in the Naval
Academy and other schools and college programs.
This chain of command is crucial to mission success
because it provides a single, uniform and effective
method of communication. The Navy’s chain of command enables the Navy to effectively organize its sailors and prepare them to respond to combat situations
and perform a variety of strategic operations at a moment’s notice. Obviously discipline is a key element
supporting the Navy’s mission. Personnel at all levels
must be relied upon to carry out the lawful orders of
their senior officers. Failure to have this ingrained in
26
the Navy culture would lead to chaos and mission failure in battle.
9.
The Navy chain of command concerning ship
construction involves several layers of authority related to technical and contractual control over Navy
shipbuilding. The Secretary of the Navy has ultimate
authority over the Navy and Navy shipbuilding; immediately below the Secretary, as has been the case
since the creation of NAVSEA is the Chief of Naval
Operations (“CNO”) to whom NAVSEA reports. Prior
to the establishment of NAVSEA, the Bureau of Ships
(“BUSHIPS”) controlled all combat ship design and
construction and reported to the CNO as well as a civilian Assistant Secretary of the Navy. Since the creation of NAVSEA, NAVSEA reports to the CNO for all
military ship design and construction.
10. The CNO is the top military official in the
Navy. The CNO has lead responsibility for all matters
of strategy, tactics and operations. Typically, the
CNO will identify a threat or a special need, and
NAVSEA will design ships and equipment to address
the CNO’s requirement. Designing a new ship is complex and involves the coordination of many engineering disciplines knowledgeable in the technical stateof-theart in their individual professional areas. It is
easy to understand Navy ships must satisfy a variety
of missions and, although some ships can carry out
multiple missions, there will be a need for a variety of
ships with different designs. Generally the need for
ships with specific mission capability will be conveyed
to the NAVSEA by the CNO. NAVSEA will respond
with concept designs. From this phase NAVSEA will
go through a series of design iterations (“design spiral”) in coordination with the CNO’s staff until finally
27
a detailed and a contract design is reached for the ship.
The design will set the needs for turbines along with
other equipment and weapon systems. The Navy has
its own engineers who specialize in turbines (machinery experts) and who are familiar with the state of the
art for commercial turbines. The Navy’s machinery
experts do not actually design turbines themselves,
but they use their expertise to develop a turbine design concept that contemplates emerging technology
and new materials, as well as military tactical needs.
Once a turbine design concept has been established,
the Navy’s machinery experts will consult with commercial turbine manufacturers concerning their turbine concept. Through a complex, iterative process
the Navy works closely with turbine manufacturers to
attain an ultimate turbine design that meets its new
military requirements. The Navy will use previously
developed military specifications (“MilSpecs”), create
any additional specifications that may be required,
and then issue a request for bids from qualified contractors in an effort to identify a contractor with the
capability and capacity to create a design and to manufacture a turbine that satisfies its new military requirements.
11. The design of turbines and development of
turbine military specifications are essential aspects of
the Navy’s shipbuilding program. These designs and
specifications are built on the totality of the Navy’s
experience in fighting and planning for wars – what
works, what is reliable, operation cycles, maintenance
problems, and a multitude of other factors uniquely
related to combat conditions. The ultimate design and
military specifications for turbines developed by the
28
Navy reflect the existing state-of-the-art and demonstrate the Navy’s operational experience in a variety
of circumstances. They reflect the turbine design
characteristics that directly impact the combat effectiveness of Navy ships and include among many other
attributes the following:
a. Reliability: Turbines must be designed so that
they are efficient and provide reliable power to
enable the ships to travel long distances over extended periods without undue maintenance.
b. Quietness: Turbines aboard surface ships and,
particularly, submarines must operate quietly
to help protect the ships from enemy detection.
c. “Battle” Hardness: Turbines must be able to
withstand the substantial shock sometimes experienced in battle. Material selection under
shock requirements often dictates the use of special materials not found in commercial turbines.
d. Maintainability: Turbines must be designed so
that they can be easily maintained at sea and
require infrequent repair and overhaul. Turbines also must be designed so that they are
compatible with standardized, replacement
parts (consumable items) carried in the Navy’s
stock system.
12. Further, regarding the Navy’s organization
for controlling material as well as ship construction
and maintenance, under the command of NAVSEA (as
was the case with BUSHIPS) the Navy’s shipbuilding
structure is comprised of several divisions and levels
of authority concerning equipment design, construction, repair and inspection. The Commander of Naval
29
Sea Systems and the Commander of Naval Supply direct technical and contractual control over shipboard
construction, as ·well as, equipment and material.
Both organizations have oversight responsibility concerning, among other things, equipment built for
Navy vessels, as well as, the Navy vessel itself. Compliance with the standards and specifications required
for ships and equipment built for Navy use was and is
directly monitored by Naval Machinery Inspectors
(some specializing in turbines) under both of these divisions. The Naval Machinery Inspectors are responsible to the Head of the Inspection Department for assuring that contractors follow the required military
specifications as they relate to naval machinery. Further, the Naval Machinery Inspectors report to their
superiors any violations or failures to comply with
specifications.
13. At times the machinery inspectors under Naval Supply have worked on-site at the vendors’ manufacturing facility for equipment, and the Supervisor of
Shipbuilding (reporting to BUSHIPS) had Navy inspectors that carried out their inspection and contractual responsibilities at the shipbuilding yards. At one
time in my career, the offices of the Supervisor of
Shipbuilding reported to me for administration of the
contracts for which they were responsible. Inspectors
within the Supervisor of Shipbuilding offices would
report to their superiors any violations or failures to
comply with specifications.
14. Whether aboard ship or in a shipyard, the
Navy Commander is the ultimate authority in all
things related to the ship’s operation or ship’s construction, repair and overhaul, including instructions
30
that might impact the health and safety of Navy sailors or civilian workers engaged in these activities.
The role of civilians both in Navy yards and in private
yards was to carry out work in accordance with military specifications. At a Navy Yard, the Navy itself
was directly involved in assuring the specifications
are followed because everyone in a Navy yard is either
an officer or a government contract worker. In a private yard, the Navy would have a local office of the
Supervisor of Shipbuilding staffed, with Navy officers
who are responsible for supervising all civilian activities and for inspecting and verifying purchasing documents and receiving equipment and material to ensure the ship construction and repair in the private
yard conforms to Navy specifications. The Supervisor
has to follow the requirements specified or get formal
waivers to the specifications of interest from
BUSHIPS. Through these means, the Navy has assurance that its ships meet the rigorous requirements
of wartime vessels.
15. The attached exhibits illustrate the organizational lines of command for technical and contractual
control over Navy shipbuilding. (See Exhibits 2 and
3). For a description of the responsibilities of each of
the parties reflected on the attached organizational
charts, refer to Exhibit 4, a document I prepared
which describes in detail each individual’s authority
and responsibilities and explains how each level of
command interrelates in the collective Navy effort to
design, build and maintain our Navy fleet. In addition,
this description identifies the several federal officers
who exercised control over equipment manufacturers,
including Westinghouse Electric Corporation (“Westinghouse”) and General Electric Company (“GE”),
31
whenever they built and supplied turbines to the
Navy during the past 50 or 60 years.
16. As noted, turbines built for Navy vessels, including Westinghouse and GE turbines, were manufactured according to plans and specifications prepared, written and issued exclusively by the Navy,
specifically NAVSEA or BUSHIPS. This is my experience having served as Chief Engineer and Deputy
Commander for NAVSEA’s Ship Design and Engineering Division. I was responsible to the Commander of NAVSEA for developing ship designs and
for overall technical support to the operating fleet,
maintenance of ships, and ships under construction.
Additionally, I was responsible for the maintenance of
Navy ship military specifications and for monitoring
compliance with the specifications by all vendors and
contractors of Navy equipment.
17. The MilSpecs for Navy equipment were
drafted, approved and maintained by the Navy, specifically NAVSEA, to address shipboard equipment
and materials requirements, and any changes to those
specifications were made by the Navy. NAVSEA
maintained and controlled the MilSpecs largely because it had superior knowledge of the demands and
requirements of combat-ready vessels. NAVSEA or
BUSHIPS also prepared contract specifications which
incorporated the MilSpecs. These specifications reflected the state-of-the-art and the special needs of
combat and combat support vessels destined to deter
or engage in war.
18. The specifications were communicated to
Westinghouse, GE and other similar vendors when
the Navy issued its Request for Proposal for certain
equipment. Attached hereto as Exhibit 5 is a brief
32
summary of Navy Ship Design and Naval Machinery
Military Specifications, as well as a brief summary of
the Navy Ship Design/Construction Procedures,
which explains how the Navy’s machinery vendors
were governed by the Navy’s specifications.
19. An illustration of the control the Navy exercised over production of its turbines is the process by
which turbines were made for the U.S.S Kitty Hawk,
a Navy aircraft carrier. Examples of the specifications
which applied to shipboard equipment for the U.S.S.
Kitty Hawk are attached hereto as Exhibits 6 and 7.
Exhibit 6 is an excerpt of a Military Specification concerning Turbine, Steam and General Auxiliary equipment (Naval Shipboard Use) identified as MIL-TI7523A (SHIPS) dated 1 August 1955. Exhibit 7 is
Bureau of Ships Contract Specification for Generator
Set, Steam Turbine, also identified as “SHIPS-G-1956”
dated 25 April 1955. Exhibit 8, attached hereto, is a
copy of Westinghouse’s purchase order for the turbines for the Kitty Hawk. This is evident based on the
following information: the reference on page l of Exhibit 8 to “CVA 63” is to the ship number assigned by
the Navy to the Kitty Hawk (CVA indicates it is an
aircraft carrier, and 63 is this carrier’s number). The
Customer Order No. “NOBS-67530” is a reference to
the Navy’s contract number, i.e. the contract issued by
BUSHIPS to Westinghouse to build the equipment described on page l of Exhibit 8. On page 4 of Exhibit 8,
there is a reference to “Bureau of Ships Contract Specification SHIPS-G-1956, dated 25 April 1955,” which
is Exhibit 7. On page 2 of Exhibit 8 is a reference to
“MIL-T-17523,” which is Exhibit 6, the military specification described above. These documents mean
that the Navy ordered from Westinghouse the turbine
33
equipment described in Exhibit 8, which incorporates
the specifications in Exhibits 6 and 7, for use aboard
the U.S.S. Kitty Hawk. As referenced throughout Exhibit 8, Westinghouse was to perform its work under
control of the Navy: e.g. “Inspection: At Contractor’s
Plant, Essington, Pennsylvania, By the Inspector of
Machinery, USN, Essington, Pennsylvania, except
Item 2 shall be inspected . . . by the Assistant Inspector of Naval Material, East Pittsburgh, Pennsylvania”
(Nme #4, p. 3); “Engineering service shall be performed . . . as directed by the Chief, Bureau of Ships
or his duly authorized representative” (p. 4); “Contractor agrees to enter into a standard government contract . . . from the Bureau of Ships or Department of
the Navy” (p. 5); “Contractor shall furnish the services
of competent engineer(s) . . . as directed by the Chief,
Bureau of Ships, or his duly authorized representatives.” (Item 7, p. 5.)
20. As illustrated by the Kitty Hawk documents,
all Navy vessel equipment, including Westinghouse
and GE turbines, was built according to Navy specifications and approved for installation aboard these
vessels exclusively by the Navy and its designated officers.
21. It should be easy to understand, and it is my
experience, that the Navy retained the ‘‘final say” over
the design attributes of naval ships and their equipment. As the purchaser, and having the engineering
expertise and experience as to what was needed for
naval combat vessels, the Navy retained final responsibility for the ultimate decision regarding how to resolve any disagreement between the Navy and a shipbuilder or an outside equipment supplier. In the case
of private yards the Supervisor of Shipbuilding Office
34
provided the link between the shipbuilder and
BUSHIPS in settling any disputes over Navy requirements. If Navy specifications were not followed by the
shipbuilder the Supervisor’s inspectors would reject
the shipbuilder’s involved work. All such disputes
were handled formally and any changes required
change orders to the contract or formal waivers to the
specifications.
22. Considering the above, any and all work performed in the construction and repair of Navy ships
noted in this case, as well as, the equipment built and
supplied for these vessels was performed to combat requirements developed and specified by the Navy. Further, such work was typically reviewed and inspected
by Navy personnel in the vendors’ plants and in shipbuilding and repair yards. Such rigid conformance to
requirements was absolutely necessary for the construction of a warship which was to take our sailors in
harm’s way.
23. The military specifications for turbines ensured that each and every turbine ordered by the
Navy, regardless of the identity of the specific contract
manufacturer, was uniform, complied with the Navy’s
combat requirements and would operate in the manner demanded by the Navy. This uniformity was critical because the Navy cannot take a ship into battle
unless it knows that each component of the ship will
satisfy precisely its specifications including those for
reliability, quietness, battle hardness and maintainability. These characteristics are vital in total to the
success of the ship’s mission. The Navy cannot put a
ship into harm’s way and have it “dead in the “water”
due to a limitation in its ‘turbines’ capabilities. The
consequences of such problems — which can include
35
death, loss of ship or mission failure — are unacceptable to the Navy. Certainly the ship’s propulsion plant,
including turbines, are as important as the ships’
weapons during combat.
24. Based on my experience and knowledge, the
Navy required that all turbines be delivered “bare
metal,” meaning that the turbines were not to be accompanied by any type of insulation at the time of delivery. Pursuant to Navy military specifications, the
turbines were designed by the Navy to include only
metal rails and hooks, the means through which insulation could be attached. It would not have been possible for contract manufacturers to deliver turbines to
the Navy without these rails and hooks because such
turbines would not conform to military specifications.
Moreover, the Navy did not permit individual turbine
manufacturers to insulate their equipment prior to installation because it was more economical, efficient
and allowed preoperational inspection and testing to
have the ship’s entire plant insulated at one time than
to have each piece of equipment come with its own insulation. Additionally, the Navy was concerned that
pre-installed insulation on turbines could be easily
damaged during shipment.
25 It was the Navy, not contract manufacturers,
that required the use of asbestos thermal insulation
with turbines intended for installation on Navy ships.
The Navy had its own engineers with expertise in insulation and heat transfer. These engineers developed their own plans and standards for the insulation
of Navy equipment and, with respect to turbine insulation, these Navy engineers determined that asbestos thermal insulation best met the Navy’s military
36
requirements. Asbestos thermal insulation had characteristics that were essential to the proper operation
of turbines on Navy ships including: optimum heat retention, low weight, fire resistance, resistance to water damage and insect infestation, and cost-efficiency.
Weight, in particular, was a significant factor in the
Navy’s determination to use asbestos insulation. Although specific amounts varied according to the particular class of ship and propulsion plant design at issue,
in general, Navy destroyers overall required approximately 22 tons of asbestos thermal insulation and
Navy aircraft carriers as much 300 tons of asbestos
thermal insulation. Because asbestos had all of the
characteristics critical to insulation on a Navy ship,
the Navy had difficulty identifying satisfactory substitutes. Until acceptable substitutes were identified by
the Navy beginning in the late-1970s, asbestos thermal insulation was critical to naval ship design and
operation. Without proper insulation of the ship’s propulsion plant (including turbines, boilers and auxiliary equipment), the ship’s plant would be inefficient
due to loss of heat and sailors would be burned or unable to operate in engineering spaces due to heat levels. Also, every pound of heavier insulation would displace the amount of weapons or fuel that could be
placed aboard ship. For these reasons, Navy specifications demanded the use of asbestos thermal insulation with its turbines and auxiliary equipment for
most of the 20th Century. If not for the presence of
asbestos thermal insulation, the ship’s efficiency
would not allow it to operate properly including in
combat.
26. In pursuing competitive bids from equipment
vendors such as turbine manufacturers or asbestos
37
suppliers, cost was never the only or over-riding factor
in equipment and material selection. All essential
equipment placed aboard a Navy ship, including turbines and asbestos thermal insulation, had to meet
the requirements of a ship intended to be placed in
harm’s way.
27. There is no way to battle harden a ship to the
extent that no losses to personnel or equipment are
ever sustained. For this reason, the Navy continually
evaluated the combat benefits of specified equipment
and materials against the potential risk to the health
and safety of Navy personnel and civilian workers.
Under the Navy’s command structure, the responsibility for health and safety fell under separate divisions. The CNO was responsible for, and concerned
with, issues seen as immediate threats to safety, and
the Bureau of Medicine (BUMED) was responsible for
medical treatment and issues related to long-term
health hazards. The CNO and BUMED and their
staffs communicate and coordinate on health issues.
At times Navy personnel have to operate in harms
way, and the Navy has to use the best material available to that end and control with procedures some
health risks if necessary to fulfill its mission. For
most of the 20th Century, it is clear that the Navy considered turbines to be “vital” to its combat mission (see
MIL-T-17600A (SHIPS)) and that asbestos thermal
insulation was essential to safe and efficient operation
of its ships (see Bureau of Ships Manual, Ch. 39, Thermal Insulation (Aug. 24, 1945, Sec. 39-2).
28. The Navy has been aware of the health risk of
exposure to asbestos dust since at least the 1920s.
Until 1975, when it issued a policy aimed at eliminating the use of asbestos materials where possible, the
38
Navy believed that it had instituted adequate controls
to protect personnel working with or around asbestos
materials. However, even as the Navy moved toward
elimination of asbestos materials in the late 1970s,
the Navy could not immediately eliminate all asbestos
and had to place additional measures believed to be
necessary to control the health risks understood at the
time. Capital steam driven ships had many tons of
insulation and to immediately implement a program
of total asbestos removal would immobilize the Navy
for a lengthy period. Further, replacement material
meeting the Navy’s stringent military specifications
was not available. Rather, the Navy instituted a careful and deliberate asbestos removal program that continued to protect personnel health to the greatest extent possible in light of operational demands including cost concerns. This program provided for replacing asbestos-containing insulation with non-asbestos
insulation when repairs were required; leaving in
place fixed or intact asbestos-containing insulation
but painting the insulation (magenta with a white
overlay) to identify the presence of potentially hazardous asbestos materials to workers; continuing to use
existing stocks of asbestos-containing insulation in
the Navy supply system; and continuing to accept new
ships delivered with asbestoscontaining insulation
into the late 1970s, when a transition could be made
commensurate with material availability and ship
construction schedules.
29. The Navy’s military specifications, which
were enforced through the Navy’s command structure,
were designed to provide clear, concise, directions to
all Navy personnel and civilian contractors working
39
under Navy direction. Not only did military specifications describe the physical equipment and material to
be used in Navy ships but they also addressed the instructions considered essential by the Navy to warn
individuals working with that equipment and material about potential hazards. For example, military
specifications included directions for the painting and
labeling of ship systems and equipment as well as the
content of instruction manuals to be used in the operation and maintenance of equipment.
30. Military Specifications for technical manuals
(MIL 15071) prior to 1957 did not mention warnings.
Even when later revisions of the specification did
mention warnings (Mil - M- l5071C of 10 Sep. 1957),
it was the Navy’s intent to include only warnings concerning how someone might be immediately physically injured by their actions or cause serious damage
to equipment. It was also specifically noted that such
warnings were to be used sparingly as was consistent
with real need. These instructions were universally
understood by the Navy not to include long-term
health hazards such as those presented by asbestos.
Even after the hazard of asbestos was more fully understood by the Navy beginning in the mid to late
1960s, the Navy did not require changes to the technical manuals. Instead, the Navy invoked effective internal instructions for the safe handling of asbestos.
The Navy had final say, approved the content of technical manuals and had state-of-the-art medical understanding of the dangers of asbestos. Clearly if the
Navy thought it necessary it could have required a
warning concerning asbestos.
31. Further, the Navy controlled labeling that
went on all equipment and materials. It should be
40
noted that, even with increased knowledge concerning
asbestos after the mid to late l960’s, the Navy did not
require everything containing or associated with asbestos materials to be labeled as hazardous. In addition to the asbestos thermal insulation used in a ship’s
plant (turbines, boilers and auxiliary equipment),
there were miles and miles of insulated pipe and cable;
hundreds, if not thousands, of valves; and other equipment that involved asbestos in some way. Once the
additional hazard of asbestos was understood, the
Navy developed procedures to control work involving
asbestos and to monitor exposure to asbestos dust
while, at the same time, seeking and testing new materials to be used.
32. I served in shipyards before and after the
Navy’s internal asbestos control instructions came out,
and was in ships under construction and overhaul
daily for many years. It is my opinion that the military specifications and naval instructions were effective in controlling the asbestos hazard while maintaining the benefits associated with asbestos insulation. Labeling of systems or components containing
asbestos, even with the Navy’s increased understanding of the hazards, was not considered practical for
combat and combat support operations and, therefore,
was not directed or allowed by the Navy. Instead, the
Navy chose to control and make personnel aware of
the hazards of asbestos exposures through the strict,
effective, procedures required by military specifications and personnel training.
33. In summary, the Navy exercised rigid control
over the design, manufacture and installation of essential plant equipment and materials, such as turbines and asbestos insulations, to ensure that this
41
equipment and material would perform as expected
during battle conditions. The Navy also developed
and imposed requirements for warnings and documentation necessary for the maintenance of this
equipment and material to ensure that personnel,
particularly in combat conditions, received only one
clear set of instructions that had been approved by the
chain of command. Finally the Navy had in place a
formal organization at building and repair facilities,
and also available to inspect at supplier’s plants, in
order to assure its combat requirements were met.
34. I can attest that any and all work performed
on turbines built and supplied for Navy ships by vendors such as Westinghouse and GE was performed to
the requirements specified by the Navy and that the
work was reviewed and inspected by Navy personnel
in the vendor’s plant and in the shipbuilding yards to
ensure that the turbines met the Navy’s combat needs.
As noted earlier, in many instances during my career
I personally inspected equipment to verify conformance with the requirements specified, although more
immediate supervision typically was exercised by officers and other Navy personnel under my command
or the command of NAVSEA or its predecessor,
BUSHIPS.
35. Further in summary, I have general
knowledge and extensive Navy experience with the
comprehensive plans, specifications and requirements
that governed the construction of Navy ships and the
equipment placed on them. At one time, the engineers
that prepared specifications and accomplished ship
designs worked under me at NAVSEA. The Navy had
general specifications and detailed specifications, as
42
well as, plans that were invoked by contract. The general and detailed specifications and contract plans
also invoked more detailed specifications for the ship
design, as well as, for the equipment and material to
be used in its construction. Frequently, the more detailed specifications and contract plans noted above
would invoke even further specifications so that a
shipbuilder had to comply in all aspects of the construction. Such direction also included material referenced in the plans and stocked by the Navy. The
Navy developed detailed requirements for the construction, maintenance and operation of warships and
auxiliaries in order to ensure the ship’s continued
ability to operate in combat zones and be maintained
with material specified and stocked by the Navy. Adherence to the Navy’s specifications was mandatory
because lives depended on it.
36. I have extensive experience and knowledge
concerning the control exercised by the Navy during
the construction, repair and overhaul of ships in Navy
yards and private yards. Later in my career, all the
Supervisor of Shipbuilding Offices inspecting Navy
ships and other contracts reported to me (15 offices
nationwide). I have personally inspected ships and
equipment during construction, repair or overhaul, to
verify conformance with the requirements specified
and have given instructions to Navy employed inspectors as to how inspections were to be made. At times
I and my inspectors have rejected items that failed to
meet specifications. For example, I recall rejecting
various piping integrity systems (including valves and
gaskets) for failure to meet specifications because they
proved to leak during system hydrostatic tests. In another case, testing during sea trials revealed a turbine
43
bearing leaked oil due to faulty oil seals. These type
of rejections occurred frequently during ship construction and repair.
37. Based on my experience, knowledge and research, my opinions are that:
a.
The fundamental first step to the Navy’s ability
to successfully fight wars is the design and construction of its combat and combat support vessels as an integrated weapons system. The design of the propulsion plants aboard these vessels, including turbine design and manufacture
and material selection such as insulation, represent vital military combat-related decisions
commensurate with state-of-the-art knowledge
and industrial capability at the time. Each military specification developed by the Navy related to turbines and asbestos insulation
aboard ship were necessary to meet the tactical
and strategic military characteristics ultimately required by the CNO, the highest Navy
officer. These specifications reflected the stateof-the-art and the special needs of vessels destined to either engage in or support combat activities.
b.
Because of the Navy’s superior knowledge of
the tactical demands and operational requirements of combat vessels and of the availability
of processes and materials in support of those
needs, the Navy exclusively controlled the detailed specifications for its equipment in its propulsion plants and the type of insulation materials to be used with that equipment. It also
exclusively controlled warnings related to
44
health and safety implications of its selected insulation materials. The Navy could not, and
did not, permit any equipment manufacturer or
material supplier to interfere with mission success by supplying turbines or insulation that
did not expressly comply with Navy specifications or by placing warnings on equipment (or
in instructions or manuals accompanying the
equipment) without Navy approval.
c.
The Navy made calculated decisions on the allocation of its resources in light of its knowledge
of the hazards of asbestos insulation and the
technical and operational demands of war. The
Navy instituted a comprehensive program,
both aboard ship and in shipyards, to address
the hazards of asbestos in a manner consistent
with the unique circumstances of combat and
combat-support ships that require the sensitive
military balancing of tactical, strategic, and
technical needs and budgetary constraints
against the placing of sailors and civilian workers in harm’s way in the defense of the Country.
I declare under penalty of perjury under the laws of
the State of Washington that the foregoing is true and
correct, and that if called as a witness, I could competently testify to the foregoing facts, all of which are
within my own personal knowledge.
Executed this 19th day of August, 2013.
45
s/ Roger B. Horne, Jr.
ROGER B. HORNE, JR.
State of Washington
County of ________
Subscribed and sworn to before me this 19th day of
August, 2013.
s/ April R. Ihde
Notary Public
My commission expires: 5/10/2017
46
United States District Court
Eastern District of Pennsylvania (Allentown)
CIVIL DOCKET FOR CASE#: 5:13-cv-00474-ER
DEVRIES et al v.
GENERAL ELECTRIC COMPANY et al
REPORT OF SAMUEL A. FORMAN. M.D.
I.
BACKGROUND
1.
I am a medical doctor specializing in preventive medicine and occupational medicine. I received a
B.A. degree from the University of Pennsylvania majoring in history and biology, graduating magna cum
laude in 1973. I attended Cornell Medical School,
graduating with an M.D. degree in 1977. I also received a degree in public health in 1977 as a result of
a joint program with the Harvard School of Public
Health. Thereafter, I became board certified in occupational medicine after attending a residency at the
Harvard School of Public Health.
2.
From 1973 to 1977, I participated in Ensign
1975, a Navy program that permitted me to engage in
active duty service and obtain hands-on training during the summers between medical school sessions. My
participation in this program gave me background
and experience different from that of many other prospective medical officers at that time, because very
few medical officers engage in operational and administrative rotations as part of their service and training.
In the summer of 1974, I engaged in a midshipmen
cruise aboard the USS Shreveport (LPD-12) for the
purpose of obtaining a general understanding of ship
operations outside the medical department. I attended training classes and observed activities in all
47
parts of the ship including the engineering department, command information center, commissary department, supply and repair divisions, and aviation
division. In the summer of 1975, I did a rotation at
the Navy Bureau of Medicine and Surgery
(“BUMED”), known at times as the Naval Medical
Command. While there, I participated in medical administration in the office overseeing all medical training for the Navy and worked directly with a number
of highranking officers in BUMED, including William
M. McDermott, who at that time held the rank of Captain but who later became Deputy Commander of the
Naval Medical Command. During this rotation, I had
an extended assignment to analyze Navy expenditures for medical education at civilian universities to
ensure the Navy’s needs were being met. In the summer of 1976, I did a clinical rotation on the general
and internal medicine wards at San Diego Naval Hospital, the largest military hospital in the world. By
the time I graduated medical school, I had already accumulated approximately six months of active duty
service from my summer internships. These internships gave me a fundamental understanding of the
needs of sailors at sea, a general understanding of
ship operations, including ship propulsion systems,
and insight into the leadership and administrative
side of the Navy.
3.
In 1977, I graduated from medical school and
went on full-time active duty in the Navy. I performed
my internship at the Bethesda Naval Medical Center
in Bethesda, Maryland during 1977 and 1978. I remained on active duty in the Navy until 1983. Thereafter, I continued to work for the Navy as a civilian
48
employee until 1986. My qualifications and credentials are more fully described in my curriculum vitae
(Exhibit A).
4.
Over the course of my active duty service in
the Navy, I served aboard Navy ships whose primary
purpose was to fulfill national defense missions of the
United States. Assignments aboard ship, involving
duty at sea, included, in addition to the Shreveport in
the North Atlantic, USS Duluth (LPD-6) in the Eastern Pacific, and USS St. Louis (LKA-116) in the Western Pacific. At all times, these ships were performing
missions and activities aimed at preparing for or deterring combat. In the military setting, a major goal
of training is combat readiness. This training is intended to simulate combat and combat conditions.
For example, the Navy hands out “battle efficiency”
ribbons to ships that perform well in war exercises.
Even combat support ships are required to remain
ready to assist ships and sailors on the front line and,
at times, these support ships must themselves go into
harm’s way. To achieve its mission, the Navy had to
be willing to put life and limb at risk not just on the
front line but also in support operations.
5.
One of the highest profile operations in which
I was involved occurred aboard the St. Louis, which
was an amphibious attack transport ship deployed at
the time to the Western Pacific for the purpose of carrying Marines, cargo (including heavily armored Marine Corps vehicles used in amphibious assault),
equipment and supplies to Navy shore-based facilities.
In March 1979, President Carter ordered the Navy to
rescue a wave of Vietnamese and Southeast Asian refugees who were escaping communist Vietnam and local pirates into the South China Sea. The St. Louis
49
was the first ship of the Seventh Fleet to arrive on the
scene. Fortunately the St. Louis was able to perform
this mission without exchanging hostile fire; however,
in order to perform this humanitarian rescue operation, the St. Louis had to travel just outside the twelve
mile international limit and sail directly into an area
threatened by actively hostile Communist interests.
This situation represented an intense Cold War scenario, one of but many types of hazardous scenarios
and missions for which the Navy must be prepared.
6.
In the course of my active duty service, I also
worked in Navy shore facilities, including shipyards
such as the Long Beach Naval Shipyard. These facilities contributed to the defense of the country by engaging in industrial efforts to construct, repair and
overhaul the Navy’s combat and combat support vessels. My role was to ensure that the Navy personnel
and civilians involved in these efforts performed their
duties as safely as possible.
7.
From 1980 to l 982, I ran an occupational
health clinic at the Naval Weapons Station at Seal
Beach, California, and assisted in the medical programs at the Long Beach Naval Shipyard. Among
other responsibilities, I assisted in the asbestos medical surveillance program for over 2,000 federal Civil
Service employees and uniformed sailors. At any one
time, I was following 200 cases of asbestos disease.
8.
In 1982, I was assigned to the Naval Environmental Health Center at Norfolk, Virginia. While stationed there, I designed occupational medicine programs with regard to Navy-specific occupational diseases, performed health hazard evaluations, inspected the occupational health programs of government facilities as part of the Navy Occupational
50
Safety and Health, or “NAVOSH,” program, carried
out epidemiologic studies, and trained Navy doctors
and nurses in occupational medicine.
9.
In 1983, a JAG officer for the Naval Medical
Command requested that I become part of a team to
locate, digest and organize government documents for
production in asbestos litigation. Over the next year
and a half, I investigated the Navy’s historical handling and knowledge of various industrial hygiene issues, including asbestos disease.
10. In 1985, pursuant to Navy orders, I completed
my review of Navy knowledge and practice in industrial hygiene, including its awareness of and response
to health hazards of asbestos, as a formal assignment.
My search for documents took me to the National Archives, other warehouses and storage facilities for records of the Navy’s Bureau of Medicine and Surgery. I
was given full security clearances for and unimpeded
access to these facilities. I also conducted research at
private facilities such as Harvard University’s Countway Library of Medicine’s section for rare books and
manuscripts.
11. From my review of countless Navy documents
and my studies while employed by the Navy, I acquired extensive knowledge as to the state of Navy
knowledge and awareness regarding the hazards of
asbestos.
12. Following my research, and with the approval
of the U.S. Navy’s Bureau of Medicine and Surgery, I
published an article entitled “U.S. Navy Shipyard Occupational Medicine Through World War II” in the
Journal of Occupational Medicine, Vol. 30, No. 1 (Jan.
1988) (Ref. 1).
51
13. Though I no longer hold any formal position
with the Navy, since I left I have been asked on a number of occasions to speak to Navy medical and safety
personnel on issues relating to the history of occupational medicine and industrial hygiene in the Navy.
14. I also am currently a Visiting Scientist in the
Department of Environmental Health at the Harvard
University School of Public Health.
II.
DISCUSSION AND OPINIONS
A. Navy Occupational Health and Industrial
Hygiene Organization
15. The Navy has always taken responsibility for
the health and safety of its uniformed and civilian personnel. It has consistently exercised its discretion regarding hazard recognition and appropriate controls
in Navy workplaces. As Navy Captain Ernest W.
Brown, M.D., recognized as the architect of the Navy’s
formal occupational health program prior to World
War II, wrote in 1940: “One of the most important concerns of the Medical Department of the United States
Navy today is industrial hygiene, especially in navy
yard practice.” (Ref. 2).
16. This commitment was reflected in numerous
other Navy statements and documents. In 1943, Secretary of the Navy, Frank Knox, in a statement cosigned by the Chairman of the U.S. Maritime Commission, E. S. Lamb accompanying “Minimum Requirements for Safety and Industrial Health in Contract Shipyards,” stressed the Navy’s commitment in
this regard:
The necessity for conserving manpower and promoting the physical welfare, health, and safety of
what shortly will amount to one million workers in
52
shipyards required that careful observance of
standards for the prevention of accidents and protection of health be accorded. Aside from the weight
which must be given humanitarian consideration, it
is simply good common sense that as much care and
attention be given to protecting the human factors
in the war production program as is given machines.
(Ref. 3). Similarly, in a 1955 Naval Institute publication called The Human Machine, Captain Charles W.
Shilling of the Navy Medical Corps described the “paramount importance” of Navy health: “[T]he medical
component of the Navy has a heavy responsibility”
with a mission to promote physical fitness, prevent
and control diseases and injuries and treat and care
for the sick and injured. (Ref. 4).
17. While the formal titles have varied over the
years, the most senior Medical Corps officer in the
Navy is the Navy Surgeon General, who is also the
Chief of BUMED and who reports to the Chief of Naval Operations (“CNO”). The Navy Surgeon General
has responsibility to spell out health programs, including prevention and injury care, for sailors and civilian workers (as appropriate). Medical Corps, allied
health professions and enlisted hospital corpsmen are
responsible for advising operational line commands to
carry out preventive practices and to provide specialized industrial hygiene services. It is the responsibility of the Navy line authorities (the operational chain
of command) to carry out these recommendations.
18. Given the breadth and sophistication of its
military and industrial activities, the Navy recognized
the need to establish departments and bureaus with
specific expertise in scientific and technical areas of
53
importance. The Navy Medical Department (which
encompasses BUMED, among other organizations)
is actively concerned with all phases of life in the
Navy and advises all components of the Navy on
matters which may affect the health and well-being
of naval personnel. . . . There is a Medical School, a
Dental School, and a Medical Research Institute at
the National Naval Medical Center, Bethesda, Maryland. There are also numerous other research
units established in connection with operational activities throughout the world. . . . [T]he Medical Department and all of its component parts are working with the operational forces of the Navy, in all
areas of naval importance.
(Ref. 4 at 275 and 276).
19. In addition to monitoring all health programs
including industrial hygiene in both a quantitative
and qualitative way, the Navy’s Medical Department
also originated extensive research activities:
As it is with other component parts of the Navy, research is an intimate part of the Medical Department activity, the importance of which cannot be
overemphasized. Through research we assist in the
development of new equipment, new and better
methods of care and treatment of various diseases
and injuries; help in the problem of adjustment of
naval personnel to all of the new and strange environmental situations in which they are placed; and,
in general, provide the knowledge necessary for
more efficient operation of the Navy.
Research under the cognizance of the Bureau of
Medicine and Surgery is accomplished in a large
54
medical research institute, in several research laboratories, fleet and shore-based units, and in various naval hospitals. The scope of this research is
extremely broad and parallels the total activity of
the Navy.
(Ref. 4 at 277).
20. A 1956 Navy training document entitled “Naval Orientation” described the scope of BUMED’s responsibilities:
The Bureau of Medicine and Surgery is responsible
for safeguarding the health of personnel of the Navy;
the procurement of all medical and dental materials;
research in medicine and dentistry; evaluation of
the performance characteristics, from the physiological standpoint, of equipment designed for the
use in naval service; the determination of standards
of sanitation and hygiene; the professional education and training of medical personnel; and the establishment of professional medical and dental
standards for clinical methods and procedures.
(Ref. 5 at 177).
21. Among the tasks of BUMED in connection
with its research and monitoring activities was the
distillation of the results of that experience into practical guidance for the rest of the Navy. The translation of the results of that experience into practices and
procedures for Navy personnel, and the communication of those practices and procedures, necessarily involved the exercise of judgment by BUMED in determining what topics, and what specific information on
those topics, should be disseminated to Navy personnel. Personnel recipients included officers, enlisted,
civil servants and contractors. The communication of
55
such information was designed to ensure that recipients received precisely, and only, what was deemed
appropriate in light of their duties and responsibilities,
and the overall mission and operations of the Navy.
22. As a consequence of the Navy’s approach to
such matters, the knowledge of any individual Navy
sailor ‒ even an officer with command responsibilities
‒ with respect to an issue like the hazards of asbestos
cannot be taken as representative of the broader
knowledge of the Navy on the topic. By design, that
individual would have possessed only that knowledge
necessary, in the view of BUMED, to the performance
of his or her duties. Put differently, regarding asbestos ‒ as with many other health and safety issues ‒
there was extensive information regarding potential
hazards and potential protective measures that were
consciously not shared with the vast majority of Navy
personnel who were deemed not to have a need to
know.
23. As a General Medical Officer, I was not permitted to deviate from the standardized programs developed by the Navy Surgeon General for the health
of Navy personnel, without approval from a more senior Navy officer except in extraordinary circumstances,
such as if a ship was isolated or out of contact with
more senior, knowledgeable and experienced officers.
24. All Navy personnel including medical officers
must follow their chain of command to maintain good
order and discipline. Enlisted personnel are indoctrinated during boot camp and training with the understanding that they must conduct all activities “the
Navy way,” meaning that Navy orders and instructions supersede any information or directions received
from any source outside the Navy. Sailors must follow
56
orders trusting that their chain of command will have
the mission of the Navy in mind and will address
safety as best as possible. Unlike in the civilian community, all military personnel who refuse to perform
an order could be subject to various penalties pursuant to the Uniform Code of Military Justice (“UCMJ”).
Absent extraordinary circumstances, the Navy demands and enforces rigid adherence to the chain of
command. It does so because it is the military’s
method for institutionalizing strategic considerations,
highly specialized expertise, and prior experience and
then transforming this information in an effective and
predictable way into programs and orders for all personnel to follow.
25. Collective and uniform communication and
implementation of Navy programs and orders are key
to the Navy’s operational flexibility. The Navy has
numerous sailors with specialized capabilities. The
Navy also maintains many ships and multiple shipyards with specialized capabilities. The Navy strives
to ensure that each sailor is consistently trained, and
that each ship in its fleet is predictably constructed so
that it can rely on both the sailors and the ships to
perform critical operations without endangering sailors any more than is necessary to achieve mission success.
B. Navy Knowledge of Asbestos-Related
Health Issues
26. Consistent with the Navy’s interpretation of
the importance of industrial hygiene and occupational
health, the Navy’s programs in these areas have paralleled, and at times led, the development of occupational medicine and industrial hygiene in general, and
asbestos-related issues in particular. The Navy’s
57
knowledge in the areas of asbestos and associated
health conditions has been quite complete when compared to available knowledge over time, and at least
by the early 1940s, the Navy had become a leader in
the field of occupational medicine relating to, among
other things, asbestos dust inhalation exposure.
27. As early as 1922, the Navy recognized, as exemplified by its instructions to officers published in
the Navy Medical Bulletin, the health hazards associated with airborne asbestos dust and the appropriate
protective measures to prevent asbestos exposure.
These included the use of water to dampen dust, exhaust systems to remove dust, enclosed chambers to
prevent escape of dust and respirators. (Ref. 6). The
Navy’s knowledge of potential asbestos-related health
problems, and of the means to control against them,
continued to expand throughout the following decades,
as senior Navy officers actively assessed, evaluated,
controlled, and made recommendations concerning
Navy policy regarding disease and injury prevention,
including asbestos related occupational health hazards.
28. The Navy’s health and safety apparatus on
the eve of World War II was described in the 1939
Handbook of the Navy Hospital Corps published by
the Bureau of Medicine and Surgery under the direction of the Secretary of the Navy:
The United State Navy is one of the largest of the
industries maintained by this Government. An organization has been set up in the Navy to protect its
personnel, both civilian and naval. A safety engineer is provided, who acts directly under the Assistant Secretary of the Navy. He has supervision of
the safety precautions taken to protect the civilian
58
employees in the navy yards, ammunition depots,
torpedo stations and the like. He is also a consultant in all matters pertaining to safety aboard ships,
at training stations and other Navy Department activities. A naval medical officer is assigned to his
office for the purpose of consultation in all matters
pertaining to health and safety and to cooperate in
devising means by which health may be protected
and accidents prevented. Aside from this particular
medical officer, all medical officers, dental officers,
members of the Hospital Corps and nurses form the
balance of the medical staff of this organization. It
is essential that each one of these members know
and understand the hazards to be encountered in
the Navy, the steps to be taken to protect against
injury and disease, the treatment of diseases and
injuries arising therefrom and the organization of
the medical personnel for such purposes. Naval
medical personnel are required to perform duties
ashore, at sea, in foreign countries, in the air and
under the sea. In each of these places a variety of
health hazards exist. It is therefore necessary that
this [sic] personnel have a thorough knowledge of
the industry to which they are attached, the hazards presented, the methods of prevention and the
treatment of all injuries occurring.
(Ref. 7).
29. The Handbook of the Navy Hospital Corps
also explained that all Navy yards have a commandant who “is responsible to the Navy Department for
the protection of employees, as well as Navy personnel,
under his command. He is familiar with . . . the health
and accident hazards presented.” Thus, the Commandant was “responsible for the appointment of the
59
safety engineers [who will] make inspections and recommend proper protective measures.” The Handbook
further called for the Navy medical officer to “advise
the safety engineer and instruct the employees in
safety measures and encourage them to cooperate in
protective measures.” These safety measures included
required “masks for asbestos workers.”
30. Also in 1939, the Annual Report of the Surgeon General of the Navy addressed the “Hazard of
Asbestos,” and described asbestosis as “an industrial
disease of the lungs incident to inhalation of asbestos
dust for prolonged periods.” The Report noted 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. (Ref. 8).
31. At about the same time, Navy Captain E.W.
Brown undertook an assessment of asbestos exposure,
and its prevention, in Navy yards. In an article entitled “Industrial Hygiene and the Navy in National Defense” published in 1941, Captain Brown prescribed
appropriate measures for the prevention of asbestos
exposure. These included use of respirators, local exhaust ventilation, and wetting of asbestos containing
materials. (Ref. 2).
32. The Navy has historically directed all aspects
of policy and procedure addressing the health and
safety of Navy personnel. This direction has encompassed policies, practices and procedures to protect
workers from dangers posed by exposure to asbestos.
Indeed, the Navy has on several occasions over time
60
rejected offers of assistance from other leaders in the
field.
33. For example, in 1941, the U.S. Labor Department’s Bureau of Labor Standards offered to conduct
inspections of health and safety conditions in Navy
shipyards. Navy leaders rejected this offer. In a memorandum to Navy Surgeon General McIntire, Commander Charles S. Stephenson, head of the Division
of Preventive Medicine within the Navy’s Bureau of
Medicine and Surgery, offered “[n]otes for consideration when you call on Assistant Secretary [of the Navy
Ralph A.] Bard.” Commander Stephenson advised
Admiral McIntire that Assistant Secretary Bard
asks specifically what the policy is concerning invitation of . . . the Bureau of Labor Standards, Labor
Department into the Navy Yards to make a survey
of the welding and other hazards. I told him that
we had never done that sort of work and recommended against it, as I know who [the Bureau of
Labor Standards] intends to send if it should be
done.
Navy leaders recognized that other government departments had a high level of expertise, while rejecting the offers of assistance:
I gave Mr. Bard and the two officers present a complete story of the beginning of this controversy from
the Federal Administrator’s letter: that is, that the
United States Public Health Service had four teams
of traveling scientists alleged to be able to make
surveys of all of the Navy Yards and make recommendations for the correction of such hazards as
were discovered.
He then emphasized:
61
I told Mr. Bard that this was not considered the best
policy, due to the fact that we had medical officers
in the Yards and that in practically all instances
recommendations of sound character had been
made by medical officers. We saw no need of inviting the United States Public Health Service on its
own invitation to do this job.
(Ref. 9).
34. The Navy’s reluctance to accept these offers of
assistance was based on concerns regarding possible
upset of labor relations, and also for security at Navy
facilities. Stephenson’s memorandum makes clear
that these concerns originated at the highest levels of
Government:
Likewise, I told him that I had spoken to you and
that you had indicated that President Roosevelt
thought that this might not be the best policy, due
to the fact that they might cause disturbance in the
labor element.
(President Roosevelt was familiar with the structure
and operation of the Navy’s shipyards and other facilities ‒ and in particular with the functioning of the
Navy during wartime ‒ from his tenure as Assistant
Secretary of the Navy from 1913 until 1920. Admiral
McIntire was President Roosevelt’s personal physician in addition to being the Surgeon General of the
Navy.)
35. Stephenson’s positions were taken even in
light of knowledge that not all industrial hazards were
adequately controlled at Navy facilities: “I doubt if
any of our foundries would be tolerated if the State
industrial health people were to make surveys of
them.” Asbestos, too, was discussed as an issue: “I am
62
certain that we are not protecting the men as we
should.”
36. Health and safety issues, including those relating to asbestos exposure, continued to be a major
focus of the Navy and the United States Maritime
Commission throughout World War II. In 1943, the
Navy, along with the Maritime Commission declared
its responsibility for the safety and health of their
workers and took charge of implementing and staffing
safety and health programs for those workers. Following extensive discussion with various constituencies, the Navy and the Maritime Commission jointly
issued “Minimum Requirements for Safety and Industrial Health in Contract Shipyards” (“Minimum Requirements”). (Ref. 3). The specific requirements imposed by the document enunciated for private and
contract shipyards expectations that were already in
effect and implemented at the Navy’s own facilities.
37. The Minimum Requirements identified asbestos-related disease as a potential hazard of shipyard
work, explaining that exposure could result from handling, sawing, cutting, molding and welding rod salvage around asbestos or asbestos mixtures. The document advised that such jobs “can be done safely with:
1.
Segregation of dusty work and,
2.
(a) Special ventilation: Hoods enclosing the
working process and having linear air velocities
at all openings of 100 feet per minute, or
(b) Wearing of special respirators.
3.
Periodic medical examination.”
63
The Minimum Requirements also warned that jobs involving exposure to asbestos require “respiratory protective equipment,” in particular a “dust respirator.”
A ventilation supervisor (the safety engineer) was required to be trained to handle the entire ventilation
program in the yard, which was to include classes,
demonstrations and short talks on proper procedures.
38. The Minimum Requirements further called
for employee safety training: “the time for the safety
training of an employee to start is at the inception of
his employment.” “Employees shall have in their possession, and be instructed in the proper use of, all necessary personal protective equipment before being
started on any job.” Safety bulletin boards were to be
located at each hull and shop, with “[s]afety posters
and other material on the bulletin boards” changed at
least semi-monthly. The type of safety posters used
in these worker educational campaigns included materials reinforcing the use of masks for protection
against disease-causing dusts. One such poster stated,
“His mask keeps him on the job.” (Ref. 10).
39. This commitment by the Navy to address the
asbestos-related health concerns of Navy workers, as
set forth in the 1939 Handbook of the Hospital Corps
and the Minimum Requirements document, is further
evidenced by dozens of other documents generated by
the Navy and consultants it retained during the war
years.
40. Later in the war, following extensive study of
asbestos-related health issues, Dr. Philip Drinker, a
Harvard professor and Chief Health Consultant to the
Division of Shipyard Labor Relations and consultant
to the Navy Surgeon General since 1941, wrote on
January 31, 1945 to Captain Thomas J. Carter at the
64
Navy’s Bureau of Medicine and Surgery. In his letter,
he reported on analyses of airborne dust collected at
Bath Iron Works, a leading contractor for construction
of Navy vessels. Dr. Drinker summarized the results
of the analysis: “This evidence is enough to indicate a
fairly serious dust risk at Bath and to make it very
probable that the same sort of thing will be found in
other plants and yards where the same type of [asbestos] pipe covering materials are used.” (Ref. 11).
41. In addition to asbestos health concerns revealed at Bath Iron Works, experience in some of the
contract shipyards also came to the attention of Dr.
Drinker and Navy authorities:
I suggested to Admiral Mills that it would be very
desirable for Navy to examine men handling the
preparation of [asbestos] pipe coverings and their
installation in at least two Navy Yards and two
Navy contract yards as this is much more a Navy
than a Maritime problem because the materials are
used especially on Navy vessels with high pressure
steam power plants. Admiral Mills agreed that
such studies would be wise before Navy or Maritime
accepted this asbestos risk as being significant in
our general ship construction program.
(Ref. 11).
42. Dr. Drinker and his Navy colleagues published the results of the study he had suggested in
W.E. Fleischer, et al., “A Health Survey of Pipe Covering Operations in Constructing Naval Vessels,” 28
Journal of Industrial Hygiene & Toxicology 9–16 (Jan.
1946). (Ref. 12). The study reaffirmed the Navy’s position regarding acceptable occupational dust exposure levels and dust control strategies. They offered
65
the conclusion that “[asbestos] pipe covering is not a
dangerous trade.”
43. The conclusions of this study were carried into
practice in Navy workplaces following World War II.
The January 1947 issue of the Navy’s Safety Review
publication noted that “[e]xposure to asbestos dust is
a health hazard which cannot be overlooked in maintaining an effective industrial hygiene program.” (Ref.
13).
44. Also during the second half of the 1940s, the
American Conference of Governmental Industrial Hygienists (“ACGIH”) evaluated the issue of asbestos exposures. This entity, comprised entirely of industrial
hygienists with links to the government and academia,
published threshold limit values for acceptable exposures to asbestos dust in the workplace. These standards were periodically updated over the years. Representatives of the Navy, trained as industrial hygienists, participated in the ACGIH. In recognition of the
potential hazards associated with exposure to asbestos dust, a 1955 Navy Bureau of Medicine instruction
adopted the ACGIH’s threshold limit value for exposure to asbestos dust among Navy personnel. (Ref. 14).
The 1955 threshold limit value as promulgated in the
Navy instruction was the same level to which the
Navy had sought to control exposures during World
War II.
45. During the 1950s, the Navy continued to prescribe safe work practices to address potential shipyard hazards associated with exposure to asbestos
dust. For example, a 1950 General Safety Rules Manual issued by the Puget Sound Naval Shipyard in-
66
structed workers to “[w]ear dust type or air-fed respirators for . . . handling amosite [asbestos] insulating
materials. . . .” (Ref. 15).
46. In 1957, the Navy convened at the Boston Naval Shipyard a “Pipe and Copper Shop Master Mechanics’ Conference” to address issues of concerns to
those in the pipefitters’ trade. At the conference were
personnel from all twelve Navy shipyards and the
Navy’s Bureau of Ships in Washington, D.C.
47. The prepared remarks of a Long Beach Naval
Shipyard official, included in the Minutes of the Conference reflect the Navy’s stated policy that pipe insulators and laggers who handle asbestos products
should wear respirators:
Asbestos, when handled dry, produces vast
amounts of silica dust. . . . [T]he material can be
dampened to reduce the amount of dust liberated.
However, the specified type of amosite [asbestos] for
use on cold water piping is water repellent. Also
material which must be removed from an existing
installation is dry and powdery, being an excellent
dust producer. . . .
[D]uring 1956 eleven deaths from asbestosis were
reported on the Pacific Coast alone. . . .
I know that two of my insulators are now afflicted
with this condition. How many more will become
afflicted is something which I hesitate to predict.
Again the solution is obvious. Remove the cause by
substituting other products. . . .
In the meantime, the answer is the wearing of respirators by all who handle asbestos products.
(Ref. 16).
67
48. A New York Naval Shipyard official added
that if those working with asbestos insulation have
not been “told . . . to put on masks, you are more or
less the cause of their trouble.” That same official
added:
I think everyone, who has people doing this type
work, should warn their people regarding the handling of this material. With the proper handling of
it on the job, and it has always posed a very big
problem, because the men don’t want to wear the
masks, or get this dread disease. It is difficult to
protect them. After a couple of years of mandatory
wearing masks, I think they should realize the danger. I think everyone ought to enforce the wearing
of masks. Don’t forget this is something that injures people’s health. We should do something
about it- and fast, and I am convinced that what we
are doing is not enough. We should not have people
handle this material withou[t] protection.
49. On January 7, 1958, the Department of the
Navy issued a “Safety Handbook for Pipefitters,”
which explicitly addressed the asbestos hazard and
again set forth Navy policy for controlling this hazard.
(Ref. 17). This handbook ‒ one of many safety handbooks issued by the Navy ‒ stressed that “[a]sbestos
dust is injurious if inhaled,” and warned those working with asbestos insulation materials to “[w]ear an
approved dust respirator for protection against this
hazard.”
50. During this time period, study of asbestos-related health issues was ongoing at various Navy facilities. For example, Occupational Health Hazards Releases from the Navy’s Bureau of Medicine and Surgery on February 1, 1961 (Ref. 18) and May 1, 1961
68
(Ref. 19) reported on studies of personnel engaged in
the handling of asbestos-containing materials and on
recommendations, including the use of respirators, exhaust systems and worker training at Puget Sound
Naval Shipyard. A 1961 Marine Pipe Covering and
Insulating Manual at Puget Sound set forth “General
Safety and Health Practices” that included instructions to “[h]andle amosite . . . materials carefully to
avoid [its] dust[],” “sprinkle amosite with water whenever possible to keep dust down,” and “[s]ee that your
chest is X-rayed at least once a year to detect the possibility of . . . asbestosis.” (Ref. 20).
51. Concurrently, similar activities were ongoing
at Long Beach Naval Shipyard, which had “continuous health education program for . . . asbestos workers”
at Long Beach Naval Shipyard, including a showing
of a film entitled “The Air We Breath,” followed by “a
short discussion of the hazards of breathing asbestos
fibers and the use of dust respirators.” (Ref. 21). Beginning in 1958, health personnel at the yard had begun “a study . . . of pipecoverers (asbestos) working
conditions” at Long Beach Naval Shipyard. The study
had commenced in 1958, and it included “[c]hest xrays and vital capacity test[s] . . . on [792] asbestos
workers. The report also noted that at the time the
study began, a “former [Long Beach] employee was receiving compensation for asbestosis.” (Ref. 22).
52. Similar investigation and study was ongoing
at other Navy facilities. In September 1962, a Navy
Department Occupational Health Hazards Release reported that at Boston Naval Shipyard “[a] study was
conducted to obtain current data for evaluating the
exposure of pipecoverers to asbestos containing dust.”
The study involved the collection of samples taken in
69
the pipecoverers’ shop and also aboard ship. The results showed that “[d]ust concentrations found in the
general atmosphere of the shop were within permissible exposure limits at the time of sampling,” but that
“[t]he excessive dust counts obtained aboard ship, emphasized the need for the wearing of approved dust
respirators by pipecoverers.” (Ref. 23). A few years
later, another Release described the results of “[r]andom dust counts . . . aboard ship during the removal
of amosite insulation from two fire room boilers” by
two pipecoverers. Navy personnel observed that
“[o]ther tradesmen working the same work area as
pipecoverers are also quite often exposed to the asbestos containing dust and usually remain in the area
sometime after the pipecoverers,” and “emphasized
that respiratory protection should be provided whenever long exposures to high dust concentrations” occur.
(Ref. 24).
53. The ongoing development of the Navy’s policies and practices to protect workers from asbestosrelated health concerns during the early 1960s was reflected, for example, in an article entitled “Asbestosis”
published in the October 1962 issue of the Navy’s Internal Safety Review publication by Captain H.M.
Robbins, a Navy physician, and W.T. Marr, a Navy industrial hygienist from the Long Beach Naval Shipyard. The article addressed the potential for exposure
to asbestos aboard ships:
Aboard ship, a great variety of insulation is performed. Insulation blocks are shaped with a saw,
pads are supplied to fittings, insulation cement is
applied to blocks and covered with asbestos cloth.
These and other operations take place in nearly all
compartments; however, most work is done in the
70
machinery spaces. By far the greatest potential exposure to asbestos fibers occurs during ripout of old
insulation for ship overhaul or reconversions.
The article concluded that “[t]he worker’s best protection is to avoid careless creation of dusty conditions,
use damp material when possible, and wear respiratory protection constantly.” (Ref. 25).
54. In 1968, the Navy came under scrutiny for its
handling of asbestos-related health issues. On July 30,
1968, Murray C. Brown, Medical Director of the Public Health Service, wrote to Vice-Admiral R.B. Brown,
the Chief of the Navy’s Bureau of Medicine and Surgery, stating that “[o]ne of our grantees, Dr. Irving Selikoff of New York University, has recently completed
a study of non-insulation shipyard workers’ exposure
to asbestos,” and that “Dr. Selikoff reports he has
some interesting data and has requested that we arrange an information meeting with your Department
and the U.S. Department of Labor to discuss his findings.” (Ref. 26). On December 5 of that same year, Admiral Brown reported to others in the Navy health establishment that “Doctor I.J. Selikoff of Mount Sinai
Hospital, through the news media, stated that he has
warned the Navy and other Federal departments of
his findings relating to the unusual incidence of asbestosis among shipyard asbestos workers. The newspaper articles stated that the Federal agencies including the Navy have not publicized the hazards.” (Ref.
27).
55. In a “Hazard Analysis” commissioned in response to this external criticism of the Navy’s safety
practices, Commander Rosenwinkel of the Navy’s Bureau of Medicine assured that:
71
[T]he Navy’s shipyards have for many years been
aware of the hazards of asbestos and have initiated
appropriate safety precautions. Insofar as possible,
all fabrication work [with insulation] is performed
in the shops where adequate safety precautions can
be observed. These precautions include controlled
ventilation, use of respirators, and wetting down of
the material. During “rip out” operations, respirators are worn and ventilation is controlled as far as
possible.
Similar language was prepared “for inclusion in a
statement to be issued by Rear Admiral J.J. Stilwell,
Shipyard Management Directorate”:
The United States Navy is well aware of the hazards of asbestos to its employees engaged in ship
construction and ship repair at naval shipyards.
Hazard control measures implemented by the shipyard medical departments and practices are in accordance with accepted standards of industrial hygiene practices in the United States. Stringent efforts are directed at keeping the concentration of air
borne asbestos dust below the level recommended
by the American Conference of Governmental Industrial Hygienists. An energetic periodic physical
examination program insures the health of personnel exposed to this hazard.
For more than two years, the Naval Ship Systems
Command and the Commander of Boston Naval
Shipyard have been cooperating with a prominent
investigator in a study whose ultimate goal is to define safe working conditions with respect to air
home asbestos. Upon the development of further
objective, well founded recommendations for the
control of this hazard, the Naval Ship Systems
72
Command, in cooperation with the Bureau of Medicine and Surgery, will take the necessary steps to
implement them at the naval shipyards and all naval activities.
(Ref. 28). The message was clear, and consistent: the
Navy would handle asbestos issues in its own way and
through its own channels.
56. The development of the Navy’s policy towards
asbestos-related health issues, and of its program for
addressing asbestos exposure to Navy personnel, continued into the 1970s. On February 9, 1971, the Commander of the Navy’s Ship Systems Command issued
to numerous Navy bureaus and commands its Instruction 5100.26. That document began by recognizing
that:
[t]he most critical use of asbestos in the Navy from
a safety viewpoint is in the fabrication, installation,
repair or removal of pipe and boiler insulation materials. Some workers sustain accidental contacts
either while employed in various capacities where
asbestos products are processed or when working in
plant areas in which an environmental pollution of
the air exists due to asbestos.
In light of these concerns, the purpose of the document
was “to prescribe appropriate safety precautions during the use of asbestos,” and it decreed that:
[t]he following safety precautions will be observed
by all supervisors and workers engaged in the fabrication, installation and/or removal (ripout) of asbestoscontaining insulation material. The provisions of this instruction will be effective as of this
date. The provisions in this instruction are considered as minimum health and safety requirements.
73
More stringent restrictions may be applied by local
commanders.
The document then listed nearly fifty specific work
practices to be employed to protect workers from asbestos exposure in handling or working in the vicinity
of asbestoscontaining products. (Ref. 29).
57. In the years that followed, Navy authorities
promulgated a series of expansions and refinements
of its program for addressing asbestos exposure to
Navy personnel. Among the numerous iterations
were the following:
a.
BUMED Instruction 6260.14 (June 7,
1973) (Ref. 30);
b.
OPNAV Instruction 6260.1 (April 9,
1974) (Ref. 31);
c.
NAVSEA Instruction 5100.2 (October 24,
1975) (Ref. 32); and
d.
NAVSEA Instruction 5100.2A (September 11, 1979) (Ref. 33).
58. Despite the promulgation of such control procedures, there continued to be instances of airborne
asbestos dust for certain operations, exceeding thencurrent standards, inconsistent use of respirators and
other control measures even when recommended by
Navy authorities, and incomplete understanding of
the hazard by the workers involved. The Navy was
aware that execution of its own programs in this regard was uneven despite its efforts.
59. Similarly, a January 23, 1974 Navy Department of Occupational Health Hazards Release reported that at Charleston Naval Shipyard “[a] survey
was made aboard ship while Temporary Service Shop
74
electricians were preparing and installing asbestos
cloth and rope under a boiler. . . .” Measured dust concentrations exceeded the permissible exposure limit.
Navy personnel observed an “ill-fitting” respirator on
one of the workers, and described work methods that
were
improper for control of asbestos dust. No signs were
posted to warn that asbestos dust was being generated and that dust respirators were required. Asbestos waste . . . w[as] handled with poor technique
and not conductive [sic] to minimizing asbestos dust
generation. . . . An immediate conference was held
with the cognizant General Foreman and all violations of asbestos control instructions, poor work
techniques, fit of respirators, and asbestos disposal
were discussed.
It was also noted that “[r]emoval of asbestos lagging
aboard ship creates a high asbestos fiber concentration in the work environment.” Navy personnel observed that “[c]ontrol of asbestos dust contamination
throughout the rest of the ship is not guaranteed, and
unfiltered exhaust ventilation to the outside of the
ship is undesirable,” and recommended purchase of a
“portable exhaust blower, equipped with and EPA approved cleaning system.” (Ref. 34).
60. The same Release also reported that at Long
Beach Naval Shipyard
[d]uring routine monitoring of pipecoverers and insulators performing ripout of asbestos insulation in
posted engineering spaces, it has been observed
that ship’s personnel frequently ignore the warning
signs and move through the restricted areas. Ship’s
75
personnel also have been observed removing asbestos insulation without using respiratory protection
and using air hoses to blow down spaces contaminated with insulation dust. An increased effort is
being made to indoctrinate the shipboard personnel
regarding the dangers of exposure to asbestos dust.
(Ref. 34).
61. The Navy was committed to maintaining complete control over existing military specifications, policies and procedures with respect to asbestos-containing materials and worker practices with those materials. The Navy maintained a fierce autonomy over hazard recognition and control, because the Navy considered itself the ultimate authority on naval systems
and military workplaces. Regardless of the source of
other information, the Navy viewed its unique
knowledge as a strategic advantage in addressing
hazard identification and control in its workplaces.
70. In the effort to achieve its mission, the Navy
made trade-offs between the use of asbestos and the
potential health impact on personnel. In the Navy’s
judgment, the beneficial aspects of asbestos from an
engineering standpoint (technical performance, cost,
weight, etc.) made it the best thermal insulation available and a critical war material. As knowledge of asbestos health risks evolved, the Navy made sensitive
military mission-related decisions about deriving the
benefits of asbestos while controlling its risks. Moreover, when the hazards of asbestos became more fully
known to the Navy and the scientific community in
the late 1960s, the Navy determined not to do an immediate fleet-wide elimination of asbestos. At the
time, Navy leaders were concerned that a large scale,
immediate asbestos removal program would pose at
76
least three problems: excessive cost; mission impairment; and increased health hazards to removal crews
from disturbing fixed, in-place asbestos.
71. The Navy asserted for itself the role as final
arbiter of what was best with respect to industrial hygiene in its unique workplaces to carry out its national
defense mission. The Navy’s reasons for this approach include: harmonizing industrial hygiene with
its overall operations; maintaining security of its facilities; and unifying communications to its workers.
72. The Navy rejected participation from manufacturers in its efforts to alert its personnel to potential asbestos hazards in Navy operations. The Navy
pursued the issue in its own way. Professor Drinker
recorded:
I met with the manufacturers of the materials used
at Bath and they stated they would be glad to get
out a brief statement of precautions which should
be taken in the light of their own experience and
that they would inform their competitors that I had
asked them to do so. I understand that neither
Navy nor Maritime wants any change in the specifications as the performance with the present materials is entirely satisfactory. From a health standpoint we do not believe any specification changes
are needed.
(Ref. 11.)
73. BUMED, through a litany of instructions, bulletins and other communications, developed work
practices and procedures designed to take what
BUMED deemed to be appropriate precautions
against workplace and environmental hazards to
Navy personnel.
77
74. Not surprisingly, in my research, I have not
located a single instance in which the Navy, at any
time during the 1930s through the 1960s, instructed
or permitted a supplier of engineering equipment to a
vessel or facility to affix or provide any asbestos related warning with its equipment. The Navy has not
depended on equipment warnings in its workplaces
concerning long-term occupational health issues. Rather than depending on equipment signage or labeling,
the Navy put its efforts into work practice training,
specifications for materials being used in its unique
workplaces, and the hierarchy of industrial hygiene
controls.
75. The Navy’s approach to the protection of its
personnel from health hazards — and the lack of a
role for equipment manufacturers in that process — is
exemplified by the Uniform Labeling Program, SECNAV [Secretary of the Navy] Instruction 6260.3. (Ref.
44).
76. The Uniform Labeling Program had as its
stated purpose “to standardize on [sic] labeling requirements for hazardous chemical products. . . .” It
did not require any actions of parties outside of the
Navy, including manufacturers of equipment. It is
also clear that the Navy’s Uniform Labeling Program
was strictly an internal document. In other words, the
program was designed by the Navy, for implementation by the Navy. It was not intended as a set of requirements governing the activities of outside parties.
The Uniform Labeling Program is an internal Navy
program whose addressees are Navy Commands:
“Scope: The instruction applies to the labeling of all
hazardous materials throughout the Naval Establishment wherever distribution of hazardous chemical
78
and materials is made to the actual consumer (shop,
office, or unit).” (Ref. 44).
77. The internal nature of the Uniform Labeling
Program is evident from its provisions:
(a)
The Navy Department Standardization Office was directed to assign a Navy project to
“standardize the printed labels in respect to quality of paper, size, color, shape, insignia, wording,
and design; quality of the glue; specifications for
inks including colors of inks); and other related
matters.” (Ref. 44 at 4.a.);
(b)
The Navy’s Bureau of Supplies and
Accounts was directed to “initiate procedures to
have the necessary labels stocked as General Store
items for use by all naval activities.” (Ref. 44 at
4.b.);
(c)
Classification of hazardous chemicals
was to “be accomplished through the joint efforts
of the technical bureaus in that each Bureau shall
be responsible for passing on those aspects, of any
single item, which fall within its technical purview.” (Ref. 44 at 4.c.).
(d)
The document listed the responsibilities of a Navy Safety Precautions Board, and of
Navy bureaus and offices, and of the Marine Corps,
in implementing the program. (Ref. 44 at 4.d &
4.e.).
78. The Uniform Labeling Program expressly
states that it does not impose any requirements on
manufacturers of products. Consistent with its focus
on chemical materials and substances, the document
makes reference to container labeling that may be
necessary for intrastate or interstate shipping, and to
79
labeling by “manufacturers of chemicals” in accordance with Manufacturing Chemists’ Association
guidelines. (Ref. 44 at 2.a.).
79. The Uniform Labeling Program was prompted
by “[t]he rapid development of new chemical products
and the introduction of new chemical processes,” and
by the Navy’s view that “[w]arning labels affixed to
containers of hazardous chemicals are one of the most
practical means of accomplishing th[e] objective” of
ensuring that Navy personnel take “precautionary
measures . . . during the handling of toxic and dangerous chemicals.” (Ref. 44 at 3).
80. Throughout the SECNAV Instruction describing the Uniform Labeling Program, the focus is on
chemical products, and on the appropriate labeling for
containers of chemical products. The document includes as an enclosure an alphabetical listing of materials it covers, all of which are toxic chemicals or materials. There is no mention of or suggestion that the
program has any applicability to equipment such as
pumps or valves, or to products such as gaskets or
packing, or does the Uniform Labeling Program anywhere mention asbestos.
81. The documents referenced in the Uniform Labeling Program also refer to labeling of containers of
hazardous chemicals. For instance, there is reference
to the Manufacturing Chemists’ Association’s Manual
Ll, “A Guide for the Preparation of Warning Labels for
Hazardous Chemicals.” (Ref. 45). Like the Uniform
Labeling Program itself, Manual L1 expressly states
that it is intended to provide information to “every
person using, handling or storing chemicals.” It expresses the view that “[t]he most practical means” of
80
disseminating such information is “by warnings affixed to containers of hazardous chemicals.” (Ref. 45
at 5 (emphasis supplied)). There is nothing in the document to suggest that it relates to instructional or
other documentation accompanying machinery or
equipment, or that it relates to finished products such
as gaskets or packing.
82. That the Uniform Labeling Program imposed
neither internally within the Navy nor on manufacturers of machinery or equipment any responsibility
for labeling of asbestos-containing materials is belied
by the Navy’s own implementation of the program is
exemplified by a January 15, 1960 Occupational Hazards Release summarizing significant information on
occupational health and industrial hygiene from
through the Navy and distributed by the Chief of the
Navy’s Bureau of Medicine and Surgery. The document reported on the review by a Navy shipyard of
new products “[i]n accordance with SECNAV Instruction 6260.3 and BUSHIPS Instruction 6260.3 on labelling toxic materials.” With respect to “Hy-Temp
Block Insulation,” an insulating material containing
12–15% asbestos, the Navy concluded as follows: “No
label.” (Ref. 46). The fact that the Navy determined
that no hazard label was appropriate for an asbestos
containing insulation material of the type whose hazards it had been aware of and discussing since the
1920s is inconsistent with the notion that the Navy
sought, or would have accepted, asbestos-related
warnings affixed to equipment or machinery or in
technical documentation relating to such items.
83. The Navy’s 1969 Consolidated Hazardous
Item List, NAVSUP Publication 4500 issued more
than a decade later, had the same focus and purpose
81
as the Uniform Labeling Program. (Ref. 47). The document expressly governed the labeling of “containers,”
and it stated that the purpose of labeling it requires is
“to warn users of the potential dangers involving the
use of the material in the container.” (Ref. 47 at VJJI).
There was no suggestion that the document applied to
equipment or its manufacturers. Like the Uniform
Labeling Program, the Consolidated Hazardous Item
List is an internal Navy document, describing procedures intended to be implemented by the Navy.
84. Nor were military specifications among the
means by which the Navy sought to protect its personnel against long-term health issues such as asbestos
exposure. Rather, protection against such hazards
was undertaken, through the Navy’s Bureau of Medicine & Surgery, through a comprehensive system
aimed at identifying evaluating potential threats to
the long-term well-being of Navy personnel and developing appropriate training and procedures to mitigate
those threats. While military specifications were outward looking ‒ directed to vendors outside the Navy ‒
development and implementation of protective
measures regarding asbestos was viewed as an internal Navy issue.
85. The language in military specifications governing technical manuals for equipment is consistent
with my overall experience that the Navy did not view
manufacturer labeling or warning as an important, or
in many instances an appropriate, means of protecting against exposure to ubiquitous, well-known, longterm potential health hazards such as asbestos. For
example, MIL-M-15071D, dated June 6, 1961 and governing “Manual, Service (Instruction Books) for Shipboard Electrical and Mechanical Equipment” stated
82
that use of cautionary language “should be as sparing
as is consistent with real need.” (Ref. 48 at para. 3.3.6).
86. Consistent with my experience that the Navy
saw little value, and much potential for confusion, in
extensive use of caution labels addressing common
hazards or conditions, particularly when no threat of
immediate injury or harm to individuals or equipment
was present, the Navy’s directed that warnings in
technical manuals be “sparing.” Rather than depending on equipment signage or labeling, the Navy put its
efforts into work practice training, specifications for
materials being used in its unique workplaces, and
the hierarchy of industrial hygiene controls.
87. The kinds of warnings the Navy did permit in
equipment technical manuals underscore that the
Navy’s focus in this regard was on immediate hazards
to life and equipment operation as being appropriate
for inclusion in equipment manuals. Such warnings
were related to materials that presented immediate
hazards to life and equipment, including, for example,
solvents which have long been recognized as material
that present both inhalation and flammability hazards. Both of these hazards can, of course, result in
immediate, severe injury or damage.
88. Similarly, carbon tetrachloride which, while a
solvent, is not flammable, is hazardous based in part
on its potential to break down and release toxic phosgene gas at elevated temperatures. The release of
phosgene gas, which was used as a chemical weapon
during World War I, presents a risk to users or others
in the vicinity of poisoning.
89. The potential for immediate injury due to inhalation or explosion presented by solvents presents a
83
hazard fundamentally different from the type of disease risk that the Navy has long known to be associated with exposure to asbestos.
90. An acute injury or accident hazard of the type
associated with solvents is a type of “safety” risk long
viewed by the Navy as the responsibility of safety officer and the line command. By contrast, asbestos presents a long-term, environment threat to “health” of
personnel. The Navy has traditionally handled such
health risks under the technical purview of the medical department. The fundamental distinction between safety and industrial health is evident, for example, from the “Minimum Requirements for Safety
and Industrial Health in Contract Shipyards” (Ref. 3),
which present separately “Minimum Requirements
for Industrial Health” and “Minimum Requirements
for Safety.”
91. As a consequence, the fact that the Navy permitted, or perhaps required, warnings regarding solvents in some equipment technical manuals does not
mean that the Navy likewise wanted, or would have
permitted, asbestos-related cautionary language in
those documents during the period in question.
92. Despite numerous opportunities, Navy health
authorities declined to adopt requirements for product
labeling relative to asbestos-related health hazards
within the Navy, much less as a requirement for suppliers of equipment for inclusion in technical manuals
or other documentation.
93. For instance, the Navy’s 1922 Navy Medical
Bulletin lists “four effective methods [wet methods,
exhaust systems, enclosures and respirators] that
84
may be used to prevent the inhalation of dust generated during industrial processes.” While the document
states that “[n]o one of these can apply to all conditions” and “the particular method to be used must be
adapted to the peculiarities of the process,” there is no
mention among the potential protective measures of
labels or warnings on packages or instructions for asbestos-containing materials. (Ref. 6).
94. Similarly, the “Minimum Requirements”
adopted by the Navy and the Maritime Commission in
1943 contained no reference to or recommendation for
labeling on packages or instructions among its recommended safety practices for handling asbestos-containing materials. Rather, the document stressed segregation of work areas, ventilation, respirators, and
periodic medical examinations for workers handling
asbestos-containing insulation materials. The only
references any kind of signage was to “posters and
other material” to be posted on bulletin boards on
ships and in land-based facilities. (Ref. 2).
95. Decades later, the Department of the Navy’s
Instruction 5100.26, while comprehensive, made no
recommendation and imposed no requirement that
packaging or instructions for asbestos-containing
products contain warnings regarding potential hazards. Among dozens of required work practices and
procedures, the Instruction required the posting of
“adequate warning signs” at the entrance to insulation fabrication shops and around areas where removal of asbestos-containing insulation was being
conducted:
1. RESTRICTED ACCESS
ASBESTOS FABRICATION AREA
85
2. RESTRICTED ACCESS
ASBESTOS INSTALLATION/RIP OUT
WEARING OF RESPIRATORS REQUIRED
Thus, the Navy continued its practice of controlling
asbestos exposure through restrictions on access,
training and implementation of appropriate work
practices and equipment. (Ref. 36).
96. Only in 1973, in BUMED’s Instruction
6260.14, did the Navy direct its personnel that
[c]aution labels shall be affixed to all raw materials,
mixtures, scrap waste, debris, and other products
containing asbestos fibers, or to their containers,
except that no label is required where asbestos fibers have been modified by a bonding agent, coating,
binder, or other material so that during any reasonably foreseeable use, handling, storage, disposal,
processing, or transportation, no airborne concentrations of asbestos fibers occur in excess of the permissible exposure concentration.
The Navy specified the content of the required caution
labels. I am not aware that at that time the Navy took
any steps to require manufacturers of equipment to
place asbestosrelated warnings on their products or
in literature that accompanied them. (Ref. 37).
C.
Gaskets and Packing
97. With specific reference to potential hazards
associated with the handling of asbestos-containing
gaskets and packing, I am aware from my research
and from my personal experience in the Navy that
these materials were regarded as negligible sources of
asbestos exposure. For example, a December 9, 1968
U.S. Department of the Navy Memorandum regarding
“Hazards of Asbestos” stated that
86
[a]ll of the asbestos in [gasket and packing materials] is fabricated as cloth, rope or compressed sheet
with binders, so that the items are not friable when
they are cut. Thus, these items do not cause dust
in shipboard applications. In addition, in many instances, they are received already incorporated in
the finished assembly such as a valve, and do not
require fabrication by the shipyard. For these reasons, packings and gaskets containing asbestos are
not considered to be a significant health hazard.
(Ref. 32).
98. This conclusion was reaffirmed in the published literature by P.G. Harries, who made extensive
study of asbestos exposure in shipyards in the United
Kingdom. In “Asbestos Dust Concentrations in Ship
Repairing: A Practical Approach to Improving Asbestos Hygiene in Naval Dockyards,” Ann Occup Hyg 14:
241–254 (1971), Harries concluded that asbestos-containing gaskets, which he referred to as “high temperature jointing and packing materials,” presented “[n]o
health hazard in forms used in shipyard applications.”
He also noted that “[n]o substitute heat-resistant material is available” for asbestos in these applications.
(Ref. 49).
99. A 1973 publication of the International
Agency for Research on Cancer ‒ Biological Effects of
Asbestos ‒ stated that “[t]here is no conceivable health
risk in the use of asbestos-based gasket materials.”
(Ref. 50 at p. 325). Well-known asbestos researcher
and health advocate Dr. Irving Selikoff wrote, in his
1978 book Asbestos and Disease that “[h]igh temperature jointing and packing materials” containing
“[a]sbestos fiber” and “(c]ompressed asbestos fiber”
87
present “[n]o health hazard in forms used in shipyard
applications.” (Ref. 51 at p. 267).
100. The lack of concern for asbestos exposure from
asbestos-containing gaskets and packing expressed in
Navy documents and the writings of researchers such
as Hanies and Selikoff is entirely consistent with my
experience as a uniformed and civilian Navy occupational medicine physician.
101. In addition to the documents referenced and
discussed above, the development of the Navy’s
knowledge of asbestos-related health issues and of appropriate workplace practices and controls to prevent
exposure to elevated levels of airborne asbestos also is
reflected, among others, in the documents listed Exhibit B, which comprise part of the bases for my opinions on these topics.
III.
CONCLUSIONS
102. Although my opinions are set forth throughout the entirety of this report, the paragraphs below
provide a general summary of my opinions.
103. The Navy made its decisions with respect to
the use of asbestos in accordance with Navy operating
requirements and in furtherance of Navy missions,
and in light of the Navy’s knowledge of associated
health hazards at the time and of its perception of the
requirements of federal law. The Navy’s extensive
and evolving knowledge of the hazards of exposure to
asbestos and the means to control those hazards were
weighed by the Navy against the benefits provided by
its use. These benefits included meeting national defense needs in a standardized, efficient and low-cost
manner that would not delay or hinder ship availabil-
88
ity, especially during times of war. The Navy was informed in this decision-making by close contacts and
liaison with relevant academic communities, professional organizations and other government agencies.
104. Similarly, the Navy’s handling of and programs regarding workplace safety and hazard communication, as they related to asbestos and other issues, reflected the Navy’s balance of various considerations, including combat readiness, maintenance of
the necessary command structure, the needs of discipline and the hierarchy of risks presented by life and
work aboard a combat vessel. In general, the Navy
chose to address long-term workplace health issues in
the course of training for various trades and jobs, rather than using labeling or other written materials to
accompany products into the workplace.
105. The Navy’s occupational health program in no
way depended upon, required or sought advice from
equipment manufacturers regarding long-term occupational health issues, including those posed by exposure to asbestos dust. I have not uncovered ‒ nor
based on my research and experience and the extent
of the Navy’s knowledge in these areas would I have
expected to ‒ situations in which the Navy solicited
from suppliers of shipboard equipment any information or guidance regarding the appropriate methods for the prevention of exposure to asbestos. Given
the Navy’s state-of-the-art knowledge concerning asbestos related hazards and its robust safety and
health program, it would be unreasonable to assume
that the Navy would have accepted any advice pertaining to asbestos related safety precautions from a
manufacturer of equipment.
89
106. My opinions set forth herein are held to a reasonable degree of scientific certainty.
90
DECLARATION OF LAWRENCE STILWELL
BETTS, MD, PhD
I have been asked by legal counsel to expand my
discussion of several areas which I have previously
addressed in trial and deposition testimony, and in
prior declarations, affidavits, and reports. To this end,
I, Lawrence Stilwell Betts, MD, PhD, CIH, FACOEM,
declare that:
1.
I retired from the United States Navy as a
Captain in 2001, and now have a very active professional practice in science and medicine based in
Poquoson, Virginia. As reflected in my Curriculum
Vitae (Betts, 2012), I am the President of my own
medical and scientific practice. I routinely consult on,
or work with, difficult and complex medical cases
where treatment, or exposure or possible consequences of exposure, are in question. My professional
associations include a wide variety of government, industry, and professional organizations, as well as academically − and privately − practicing professionals.
I also teach, mentor, perform research, develop prevention and treatment protocols, and write medical
articles and text chapters. I am a Clinical Professor
at the Eastern Virginia Medical School where I have
had a continuous academic relationship and have
been teaching toxicology, previously with the approval
of the US Navy while I was on active duty, since 1979.
I serve on several national committees addressing
broad, as well as specific, issues in occupational and
environmental health. I am board certified in both occupational medicine by the American Board of Preventive Medicine, and in the comprehensive practice
of industrial hygiene by the American Board of Industrial Hygiene. Together with the late W. Clark Cooper,
91
MD, and Mitchel R. Zavon, MD, I am one of the original three “medical scientists” to have ever been
elected to Fellowship in both the American College of
Occupational and Environmental Medicine and the
American Industrial Hygiene Association; a fourth,
Sidney Siu, MD, was recently added to this short list
of physicians who are also Certified Industrial Hygienists, in 2012. The anticipation, recognition, evaluation, and control of hazardous conditions are the
fundamentals of industrial hygiene and my practice of
preventive medicine and public health. The emphasis
of my entire career has been the prevention of illness
and the promotion of health through the application
of the professional tools of my scientific and medical
knowledge and experience. After my retirement from
the US Navy, I was presented the VADM Richard A.
Nelson Award for my career contributions to Navy
and Marine Corps readiness through leadership in
prevention of disease and promotion of health.
2.
During my Navy career, I was assigned to billets with professional duties and increasing responsibilities, initially as a scientist in industrial hygiene
and toxicology, and later as an occupational and environmental medicine physician and medical toxicologist. I became one of the first physicians to qualify
and be designated a Surface Warfare Medical Department Officer (SWMDO). I have spent time at sea on
a large number of United States Navy and United
States Naval ships and I have worked in and directed
occupational health programs at Naval shipyards, air
rework facilities, weapons stations, and other major
shore facilities in the San Francisco Bay area and the
Tidewater area of Virginia. I served as a physician on
the USS KITTY HAWK (CV-63) during her extensive
92
Service Life Extension Program (SLEP) in the Philadelphia Naval Shipyard from 1987 to 1989. Based
upon my scientific and medical training, and experience as a Navy officer for three decades, and now as
an active governmental consultant for over a decade,
I am generally familiar with the industrial products
that were used by the Navy and in maritime work environments, both ashore and afloat. I am also familiar
with the history and practice of the Navy occupational
health program from its early days before World War
II until the present time. During the four decades of
my professional life, I have also become familiar with,
and evaluated occupational exposures to, asbestos–
containing and other materials used in the electrical
trades, aircraft and aerospace industries, nuclear
power facilities, and several other trades and industrial/commercial activities which are not unique to the
Navy or maritime industries.
3.
Based upon my scientific and medical training,
and experience as a US Navy officer for three decades,
I am familiar with the Navy mission, the Navy command structure for Navy active duty and civil service
personnel, the maritime work environments, both
ashore and afloat, and the industrial products and
equipment that were used in shipbuilding applications. I am also familiar with the history and practice
of the Navy occupational health program from its
early days before World War II until the present time.
4.
I have been asked by counsel to address the
following issues based upon my knowledge, experience, and research, and to report my findings and conclusions:
a. What are the fundamental missions of the
United States Navy (US Navy; Navy) and
93
the Navy Medical Department, and how is
the Navy organized to fulfill those missions?
b. What role did asbestos (primarily as used
in thermal insulation products) play in
Navy and maritime shipbuilding and
maintenance during the period from before WWII through the enactment and implementation of the Occupational Safety
and Health Act (PL-91-596) in the 1970s
and thereafter?
c. What did the Navy and other Federal Government Departments and Agencies, private shipyards and employers, as well as
organized labor, know regarding the
health hazards of asbestos during this
time period? Additionally, how did this
knowledge affect the use and handling of
asbestos during the post-OSHA era?
d. Was there additional occupational health
information about asbestos, available during the relevant periods of time, which
should have been provided by an equipment manufacturer or vendor supplying a
product to the Federal Government in accordance with specifications, or to a private industrial or maritime employer, that
would have meaningfully enhanced existing knowledge, and that would have been
likely to alter established specifications,
policies, and procedures regarding the
use of asbestos containing products and
materials?
94
e. In fulfilling its mission, did the Navy engage in “risk-balancing” between issues
critical to mission success and the risks of
asbestos exposure to the health of Navy
Department personnel – both active duty
and civilian?
f. Whether, and to what extent, Navy and
shipyard personnel during the 1940s
through the 1970s typically were exposed
to meaningful amounts of inhalable asbestos dust onboard ships?
5.
I have based my professional opinions contained in this report on my Navy and professional
knowledge arising from my training, education, and
experience as a scientist, physician, and, now retired,
senior United States Navy officer, as well as my extensive research regarding the knowledge of, and response to, asbestos hazards within the Navy and shipyards specifically, and more generally within the scientific and medical communities at large.
95
MISSION AND ORGANIZATION OF THE US
NAVY AND NAVY MEDICAL DEPARTMENT
6.
Although the wording of the mission has
changed and evolved over time, the Navy currently describes its mission as the following:
“The mission of the Navy is to maintain,
train and equip combat-ready Naval
forces capable of winning wars, deterring
aggression and maintaining freedom of
the seas.” (USN, 2010)
The Navy’s mission is carried out as an integral part
of the overall strategy of the Department of Defense:
“Current U.S. defense strategy calls for
continuing to shape the strategic environment to advance national interests, maintaining the capability to respond to the
full spectrum of anticipated current
threats, and preparing for the threats of
tomorrow. Implementation depends on
the fundamentals of military power: quality people, ready forces, and superior organization, doctrine, and technology. The
challenge is to construct an effective defense establishment with limited financial
resources in accordance with Department
of Defense guidance.” (NAS, 1998)
In order to fulfill its mission, the Navy must be authorized the funds and personnel to develop and maintain resources – the technology, equipment, conditions
– to enable its forces. The Navy maintains a ready
and capable force in mind, spirit, and equipment so
that personnel are able to respond, when called upon,
to a variety of events. In addition to actual combat
96
with a hostile enemy, the Navy must also be able to
respond to natural disasters, humanitarian situations,
and political events. When not responding to actual
combat, the Navy devotes its assets (people, equipment, and funds) to maintaining a state of preparedness and readiness which allows it to be adroit in responding to any mission. Whether at war or in peace,
the Navy is always engaged in or preparing for its role
in National defense.
7.
The ultimate role of the Navy is the projection
of force upon the seas as the naval warfare service
branch of the armed forces. To this end, the Navy
must maintain a constant state of readiness. This is
achieved through the maintenance and preparation of
ships, aircraft, and equipment, and supporting the
shore activities, as well as the personnel manning and
operating these activities. The preparation is accomplished through such activities as maintaining and repairing ships, aircraft and other equipment; health
promotion and maintenance; equipping and training
personnel; developing new technologies – both defensive and offensive; logistics; and budgeting. Without
logistics and other support activities, combatant
forces (ships, aircraft and personnel) cannot sustain a
mission.
8.
Even before the United States entered WWII,
the Navy Medical Department’s express mission was:
“To keep as many men at as many guns as
many days as possible.”
(BuMED, 1941)
Currently, this mission statement is not as “combat
specific” as manning guns, but still the Navy’s Medical Department’s primary mission is stated as:
97
“OUR MISSION IS FORCE HEALTH PROTECTION. As the preeminent maritime
medical force deployed with our Navy and
Marine Corps warriors throughout the
world, we are capable of supporting the
full range of operations from combat to
humanitarian assistance. We are further
capable of providing superior state of the
art in-garrison health and preventive care
for active duty personnel, our families and
those who have worn the cloth of our nation – our retirees.” (BUMED, 2009)
In support of the Navy’s mission, the Medical Department promotes and maintains the health of personnel
through the care and treatment of sick and injured
members of the Naval service and its civil service employees; prevention and control of diseases and injuries; promotion of physical fitness; as well as performing training and research programs. If people cannot
operate the equipment or otherwise perform their duties, ships could not get underway, aircraft could not
fly, and other vital operational aspects of the Navy’s
mission could not be performed in support of national
defense.
9.
Under civilian leadership (the President, the
Secretary of Defense, and the Secretary of the Navy),
the Chief of Naval Operations (CNO) is the senior Naval officer with responsibility for every aspect of the
overall operations of the Navy. The CNO is a four–
star admiral and is responsible to the Secretary of the
Navy for the command, utilization of resources, and
operating efficiency of the operating forces of the Navy
and of the Navy shore activities assigned by the Secretary. As a member of the Joint Chiefs of Staff (JCS),
98
the CNO is the principal Naval adviser to the President and to the Secretary of the Navy on the conduct
of war and is the principal adviser and Naval executive to the Secretary on the conduct of activities of the
Department of the Navy. Assistants include the Vice
Chief of Naval Operations (VCNO), the Deputy Chiefs
of Naval Operations (DCNO), the Assistant Chiefs of
Naval Operations (ACNO), and a number of other
ranking officers. These officers and their staffs are
collectively known as the Office of the Chief of Naval
Operations (OPNAV). In addition to the “war fighting
members” of the office of CNO, the Navy Surgeon General (SG) and others, such as the Chief of Chaplains
and Chief of Information Dominance, also serve to advise the CNO in matters under their cognizance. The
SG serves a dual role in the Navy as both the principal
advisor to the CNO on medical matters and also the
head of the Navy’s medical department (Chief, Bureau
of Medicine and Surgery (Ch, BUMED)). The CNO
may consult with the SG on medical matters; however,
the final determination on overall operational strategy and mission achievement rests solely with the
CNO (subject to consent of civilian leadership) (USN,
2010).
10.
Prior to the 1970s, the Navy’s health and
safety functions were separately operating components. This initially started in 1917 with the establishment of the safety engineer at shipyards, and then
later with the establishment of medical officers at
shipyards in the 1920s. The fundamental advisory
role of the Navy Medical Department was “medicine”
or “health” – not physical safety (such as prevention
of trips and falls; “guards” for tool safety). The “Basic
Rule of Responsibility” states (CNO, 953):
99
“Safety is a command function. Responsibility for the safety of personnel is vested
in the commanding officer.”
The complete text of this rule not only appears in
Chapter 1, but is reprinted on the title page of each
chapter of the 1953 “United States Navy Safety Precautions”.
11.
The Naval chain of command is the Service’s
delineation of “authority, responsibility, and accountability” extending from top Navy civilian leadership
(Secretary of the Navy) through all levels of Naval
command or “supervision”, and to all Navy personnel.
From the day of entry into Navy service, all Navy personnel are taught and must strictly adhere to the
chain of command. Using the chain of command, all
personnel receive their orders (assignments) and supervision from their immediate senior or “supervisor”
in the chain of command. This command structure is
important to fulfilling the Navy’s mission because it
(a) defines authority and responsibility from the most
senior to the most junior person in the Service; (b) establishes administration, support, communication,
and discipline; and (c) organizes forces to carry out operations. The importance of the chain of command to
the Navy’s mission is demonstrated by the applicable
disciplinary actions for Navy personnel who fail to
carry out lawful orders from a senior within the chain
of command. A significant breach in the chain of command could endanger personnel or equipment, mission completion or success and, ultimately, the national defense.
12.
It is ultimately the Commanding Officer’s responsibility to ensure that all personnel and equip-
100
ment, which includes ships, aircraft, and other physical resources, are prepared to operate and perform
their functions in support of their assigned mission.
The maintenance of good order and discipline is essential to the Commanding Officer’s ability to meet
his/her responsibilities. If Navy personnel do not follow the military chain of command and perform duties
as directed by his/her operational superior, or if civilian “third-parties” are permitted to interfere with the
Navy command structure, Navy operations and mission could be endangered. This is simply because the
Commanding Officer would not have confidence that
his/her orders would be followed and, ultimately, that
the Navy’s mission objectives would be met.
13.
As I discuss more fully below, the Navy established a comprehensive occupational health program
that operated within the overall chain of command to
communicate medical and hazard information.
Whether onboard combatant vessels or in Navy yards
or other shore facilities, the Commanding Officer is
charged with protecting the health of all Naval personnel and civilian employees (as appropriate) under
his/her command. Navy Medical Department officers
working under a Commanding Officer have the responsibility for identifying and communicating information regarding occupational health hazards.
HISTORY OF KNOWLEDGE AND CONTROL
OF ASBESTOS HEALTH HAZARDS BY THE US
NAVY, AND IN US SHIPYARDS
14.
With respect to naval and maritime activities,
as well as general industry in the United States, the
US Navy and the US Public Health Service (USPHS;
PHS) have cooperated in evaluating asbestos expo-
101
sures and developing exposure control methods for almost three-quarters of a century. The US Public
Health Service was established by Congress in 1798
as the provider of health services for the US Merchant
Marines – initially as the Marine Hospital Service;
later the Public Health and Marine Hospital Service;
and currently the Public Health Service. At the request of the North Carolina State Board of Health and
their Industrial Commission, the US Surgeon General
assigned Dr. WC Dreessen and his co-workers from
the Public Health Service to perform the first such
evaluation of the developing asbestos textile industry
in the United States. (Dreessen, 1938). Dr. Dreessen,
together with another senior physician in the Public
Health Service, Dr. RR Sayers, disseminated these
findings at the American Public Health Association
meeting in 1938, and later published them in the
American Journal of Public Health in 1939 for the
general scientific and medical communities. Later, at
the joint request of the US Navy and the US Maritime
Commission, Dr. Dreessen worked with Prof. Philip
Drinker and Dr. WF Fleischer, a Navy physician, on
an asbestos exposure evaluation and development of
asbestos exposure control methods and medical practices for employees at a private US shipyard.
(Dreessen and Fleischer, 1944) A discussion of “what
and when” the US Navy was aware of regarding the
health hazards associated with asbestos and the need
to control exposure to airborne asbestos fibers is thus
forever intertwined with the “what and when” of the
US Public Health Service’s parallel awareness and
understanding regarding the protection of the health
of the general public – and civilian mariners.
102
15.
The Navy’s development of nuclear power for
ship propulsion systems in the late 1940s led to a close
working relationship and the sharing of information
between the US Navy and the US Atomic Energy
Commission (AEC) – as well as the Public Health Service. The AEC later “evolved” into the Nuclear Regulatory Commission (NRC), the Energy Research and
Development Administration (ERDA), the Department of Energy (DOE), and the National Nuclear Security Administration (NNSA). These organizational
entities always had a close working relationship with
the Navy’s Bureau of Ships (BuSHIPS) and the Office
of Naval Reactors. A close relationship still exists today between the US Navy and non–Navy (“civilian”)
Governmental Departments and Agencies through
the Navy–Department of Energy Naval Nuclear Propulsion Program. A working relationship also existed
between major US Governmental Departments and
Agencies and the energy utilities with respect to occupational health and safety. This relationship was enhanced by the presence of two notable individuals: Admiral HG Rickover, USN and HE Stokinger, PhD.
ADM Rickover served in joint and overlapping assignments with the US Navy and the early AEC—such as
in his roles in the Division of Reactor Development at
the AEC and as Director of the Naval Reactors. These
roles led to his direct involvement with both the development of the Navy’s first nuclear-powered vessel,
the submarine USS NAUTILUS which was commissioned in 1954, and also the Shippingport Atomic
Power Station which powered up on December 18,
1957 as the first commercial, pressurized water reactor nuclear power plant. Dr. Stokinger served initially
in the Industrial Hygiene Section on the Manhattan
103
Project with the Atomic Energy Commission, and
later, in 1951, be became the Chief Toxicologist for the
newly created Division of Occupational Health of the
US Public Health Service. Dr. Stokinger continued
with the Public Health Service until well after the enactment of the Occupational Safety and Health Act in
1970 and the establishment of the National Institute
for Occupational Safety and Health (NIOSH). He
served on the American Conference of Governmental
Industrial Hygienists (ACGIH) Threshold Limit
Value (TLV) Committee for twenty five years—fifteen of those years as the Chair. The US Navy had
representation in the ACGIH and also on the TLV
Committee. As discussed throughout this report, the
Navy’s knowledge of the applications and hazards of
asbestos represented what was available and known
by other Federal Departments and Agencies
16.
The Navy and the Maritime Commission’s use
of asbestos onboard ships generally, and on steam systems specifically, was not by chance, nor based on any
requirements of the Navy’s equipment manufacturers
and vendors. The use of asbestos was based upon necessity. Due in large part to the association of one notable individual, Professor Philip Drinker of the Harvard School of Public Health – and who also served as
the Chief Health Consultant for the US Maritime
Commission, the knowledge and experience possessed
by the Navy regarding the use of asbestos since its
early use in steam–generating systems, as well as the
hazards and means of controlling those hazards, was
shared and held by other Federal Departments and
Agencies. As discussed in their landmark paper addressing the use of asbestos in the Navy, Fleischer
104
and coworkers (1946) wrote with the permission of the
Navy:
“An important ingredient of pipe covering
material used on U.S. Navy vessels is
amosite . . . . The chief reasons for the wide
use of amosite felt and pipe covering in naval work are its low thermal conductivity,
light weight, strength and refractoriness.
When the felt and pipe covering were first
developed, we were still building vessels
under the Washington Treaty of Limitations in Tonnage, and every pound saved
meant that much more armor, guns or ammunition for a given displacement, to say
nothing of more economic operation for
the weight involved in insulation.
Amosite pipe covering weighs about 14
pounds per cubic foot, with a temperature
limit of 750 F, as compared to magnesia
with a weight of 16 pounds per cubic foot,
and a temperature limit of 500 F, High
temperature
amosite
pipe
covering
weights about 18 pounds per cubic foot as
compared to 26 pounds per cubic foot for
other high temperature insulations. Because of the lower conductivity and the
higher temperature limit of the amosite
type, less of it need be used in combination
covering than other types of insulations.
The development of amosite felt started in
1934 when a need existed to secure a thermal insulation lighter in weight and thermally more efficient than the materials
(blocks and cement or asbestos blankets)
105
which were then being used on destroyer
turbines. The Navy approved the type developed by a manufacturer in September,
1934. Originally amosite was used only for
turbine insulation, but it proved so satisfactory that its field of application enlarged to include insulation of valves, fittings, flanges, etc. From the initial destroyer, it has been used on almost all the
destroyers built since that time and on all
other combat vessels built since before the
War.
Pipe covering was a later development in
late 1935 and early 1936. Due to the manufacturing problems involved, it took a
longer time to evolve into a satisfactory
shape, and its first use on naval vessels
was in 1937. Since that time its use has
spread markedly and it was used on the
great majority of naval combat vessels
built during World War II.
Water-repellent amosite felt was developed during the early part of 1942, as a replacement for hair felt in the insulation of
cold water lines to prevent sweating. Hair
felt had the disadvantage of being combustible and as it was organic, when it became
wet it moulded or rotted and could harbor
vermin. At this time fires on board certain
naval vessels convinced the Navy of the desirability of eliminating any combustible
material from on board ship. Eventually
water-repellent amosite was made in
strips of 50 foot lengths and of suitable
106
width to enclose the circumference of the
pipe and enclosed in an extremely lightweight muslin to facilitate handling and
reduce the dust, which the water-repellent
agent accentuated.”
17.
The US Navy and the US Maritime Administration (“MARAD”; the US Maritime Commission
became MARAD under the Department of Commerce
in 1950 when its Government-owned shipping interests and operations transferred to this newly-established Administration) specified the types of thermal
insulation and lagging for piping and machinery, as
noted in the military specifications used for vessels
constructed under US Navy and the Maritime Administration contracts for boilers, machinery and piping
(MIL-B-18381(SHIPS) (Boilers, Steam, High Pressure
Naval Propulsion) and (MIL-STD-769 (Military
Standard – Thermal Insulation Requirements for Machinery and Piping)), and for steam propulsion turbines (Mil-T-17600 series (Turbines, Steam, Propulsion)) for vessels built under contract for the US Government. In accordance with these military specifications and the specific contracts that I have seen, external thermal insulation for equipment like boilers
and turbines, and the associated appurtenances and
piping is provided initially by the shipbuilder, and
later upon maintenance or overhaul, the external insulation is provided by the activity performing the
work – the Navy or shipyard/repair facility – in accordance with Navy specifications. The composition
and thickness of external thermal insulation, if required by Navy specifications for a specific thermal
application of a valve or fitting, are provided in the
“General Specifications for Machinery of Vessels of
107
the United States Navy” (Section S39-2; 1951; later
Chapter 39 Bureau of Ships Technical Manual of 15
April 1959 and Chapter 9390 of the same Manual
dated 5 Jan 1965) (BUSHIPS, 1951; 1959; 1965). The
General Specification, dated 8 December 1951, specifically addresses the type and thickness of external
thermal insulation (block, felt, and blanket) applied to
turbines and other equipment and serves as the basic
reference for ship design, building, and repairing activities. It would also be the basic reference cited in
an equipment manual. Starting in the mid–to–late
1960s, the Navy specifications for the composition of
thermal insulation materials changed – some asbestos-containing thermal insulation materials were no
longer used, while the asbestos content of others was
reduced. (Turnbull, 1969; OiC NAVSEC, Philly, 1969;
COMNAVSEC, 1971; COMNAVSHIPSYSCOM, 1971;
COMNAVSEC, 1972; COMNAVSEASYSCOM, 1975)
During this period of time, additional Federal, as well
as Navy, safety and health requirements were enacted to control the exposure to airborne asbestos fibers and meet Federal pollution control statutes.
In addition to thermal insulation, the US Navy also
specified the types and styles of materials which were
used for packing and gasket applications, as well as
the types and applications of electrical products used
on vessels of the US Navy. The packing and gasket
specifications, and their unique Navy symbols which
are used to identify and order approved products for
specific applications, are given in the “Standard Plan
Application of Packings and Gaskets” (Bureau of
Ships, Navy Dep
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.