Respondents Brief — 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 briefAug 20, 2018

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Text

No. 17-1104

In the

Supreme Court of the United States

AIR AND LIQUID SYSTEMS CORP., et al.,

Petitioners,

ROBERTA G. DeVRIES, INDIVIDUALLY AND

AS ADMINISTRATRIX OF THE ESTATE OF

JOHN B. DeVRIES, DECEASED, et al.,

Respondents.

––––––––––––––––––––––––––––––

INGERSOLL RAND COMPANY ,

Petitioner,

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 A ppeals for the Third Circuit

BRIEF FOR RESPONDENTS

Denyse F. Clancy

K azan, McClain, Satterley

& Greenwood

55 Harrison Street, Suite 400

Oakland, CA 94607

(877) 995-6372

dclancy@kazanlaw.com

Richard P. Myers

Counsel of Record

Robert E. Paul

A lan I. Reich

Patrick J. Myers

Paul, Reich & Myers, P.C.

1608 Walnut Street, Suite 500

Philadelphia, PA 19103

(215) 735-9200

rmyers@prmpclaw.com

Counsel for Respondents

(Additional Counsel Listed on Inside Cover)

281732

Jonathan Ruckdeschel

The Ruckdeschel Law

Firm, LLC

8357 Main Street

Ellicott City, MD 21043

(410) 750-7825

ruck@rucklawfirm.com

William W.C. Harty

Patten, Wornom, Hatten

& Diamonstein

12350 Jefferson Avenue,

Suite 300

Newport News, VA 23602

(757) 223-4500

wharty@pwhd.com

Counsel for Respondents

QUESTION PRESENTED

Under general maritime negligence law, does a

manufacturer have a duty to warn users of the known

hazards arising from the expected and intended use of

its own product?

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . x

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

COUNTER STATEMENT OF THE CASE . . . . . . . . 6

A. Respondents were exposed to asbestos

du r i ng t he e x p ec t ed a nd i nt ended

use of petitioners’ machines . . . . . . . . . . . . . . . . . 6

Petitioners supplied machines that

required asbestos parts to function . . . . . . . 6

Petitioners’ manuals required routine

maintenance of the machines, which

exposed users to asbestos dust . . . . . . . . . . 8

Petitioners’ maintenance manuals and

machine labels did not warn of the hazards

of breathing asbestos dust . . . . . . . . . . . . . . 9

B. Petitioners, and not the Navy, designed

their machines to require use of asbestos

parts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

iii

Table of Contents

Page

The Navy viewed the petitioners’

machines, their necessary asbestos

parts, and manuals as integrated

units . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Petitioners sold machines requiring

asbestos parts to both the military

and civilian markets . . . . . . . . . . . . . . . . . . . 11

Petitioners’ machines would not work

without asbestos parts . . . . . . . . . . . . . . . . . 12

C. Replacement asbestos parts were identical

to the original asbestos parts . . . . . . . . . . . . . . . 14

D. Petitioners insured against the dangers

posed by the use of their machines, which

included coverage for asbestos exposure . . . . . 15

E. The Navy required petitioners to warn

users of their machines of the dangers they

would face, including asbestos dust . . . . . . . . . . 16

The Navy warning requirements

were not limited to hazards that

cause “immediate harm.” . . . . . . . . . . . . . . 16

The DOD required warnings for

toxic and carcinogenic dust . . . . . . . . . . . . . 17

Table of Contents

Page

By the 1980s, petitioners warned

about asbestos w ith no resultant

“overwarning” phenomenon . . . . . . . . . . . . 18

Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . 18

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . 22

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

The Third Circuit’s holding is compelled by

this Court’s maritime precedent . . . . . . . . . . . . 26

A. Maritime law has long recognized

negligence, including its foreseeability

test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

B. Petitioners’ proposed blanket immunity is

antithetical to maritime law . . . . . . . . . . . . 28

Maritime negligence law applies

a duty of reasonable care under

the ci rcumstances of each

case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

2. Maritime law holds that a product

is the entire “integrated package,”

including its asbestos parts and

maintenance manual . . . . . . . . . . . . . . . 29

Table of Contents

Page

Blanket immunity for petitioners

would unfairly require shipyards and

ship owners to pay for petitioners’

negligence . . . . . . . . . . . . . . . . . . . . . . . . 30

4. Sol icitude for sa i lors is not

an “outdated” policy . . . . . . . . . . . . . . . 32

C. Under maritime law, there was no

superseding cause . . . . . . . . . . . . . . . . . . . . 34

D. In maritime cases, this Court has clearly

distinguished between property damage

and personal injury claims . . . . . . . . . . . . . 36

II. The Third Circuit’s test accords with

maritime law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

A. A test based on reasonable care under

the circumstances of each case accords

with maritime principles . . . . . . . . . . . . . . . 37

B. Lindstrom is limited to strict products

liability, and has no bearing on negligent

failure to warn claims . . . . . . . . . . . . . . . . . 39

III. The Third Circuit’s test accords with the

prevailing law on land . . . . . . . . . . . . . . . . . . . . . 40

Table of Contents

Page

A. A cle a r m ajor it y of t he st at e s

adopt the same rule as the Third

Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

B. The two state court decisions cited by

petitioners do not preclude the application

of the Third Circuit’s test . . . . . . . . . . . . . . 43

C. Pe t i t i o n e r s ’ r u l e w o u l d l e a v e

maritime workers worse off than

land-based workers . . . . . . . . . . . . . . . . . . . 45

IV. T h e T h i r d C i r c u i t ’s t e s t a c c o r d s

w it h t r a d it ion a l c om mon - l a w t or t

principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

A. Traditional principles of tort law

impose a duty to warn of foreseeable

dangers of a product . . . . . . . . . . . . . . . . . . 46

B. The manufacturer’s duty of care

extends to warning about

foreseeable dangers arising from its

integrated product . . . . . . . . . . . . . . . . . . . . 48

C. Whether a harm is a foreseeable

consequence of one’s actions is the

foundation of this Court’s negligence

jurisprudence . . . . . . . . . . . . . . . . . . . . . . . . 50

vii

Table of Contents

Page

D. P e t i t i o n e r s a r e n o t i n n o c e n t

manufacturers of innocuous components

parts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

Petitioners are the parties best positioned to

avoid the loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

VI. The government contractor defense is not

at issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

VII. The Third Circuit applied the correct

rule, and properly remanded for further

factual determinations . . . . . . . . . . . . . . . . . . . . . 58

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60

viii

TABLE OF APPENDICES

Page

APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

DeVries, et ux. v. General Electric Co., et al.,

No. 13-cv-474 (E.D. Pa.)

(Doc. 269-3, Pages 28, 38-39, 43, 58-59, 60-62)

(Motion for Summary Judgment of CBS Corp.)

(Plaintiff’s Discovery Deposition, Pages

324, 350-351, 358, 397-398, 403-405)

APPENDIX B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10a

DeVries, et ux. v. General Electric Co., et al.,

No. 13-cv-474 (E.D. Pa.)

(Doc. 270-3, Pages 6, 56-58)

(Motion for Summary Judgment of

General Electric Company)

(Plaintiff’s Discovery Deposition, Pages 79; 386-388)

APPENDIX C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14a

DeVries, et ux. v. General Electric Co., et al.,

No. 13-cv-474 (E.D. Pa.)

(Doc. 274, Pages 18-19, 21, 26, 28, 38)

(Motion for Summary Judgment of Buffalo Pumps, Inc.)

(Plaintiff’s Discovery Deposition, Pages 70-71; 90;

101; 112; 235)

APPENDIX D . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20a

DeVries, et ux. v. General Electric Co., et al.,

No. 13-cv-474 (E.D. Pa.)

(Doc. 277-1, Pages 11, 13, 20)

(Motion for Summary Judgment of

Foster Wheeler LLC)

(Plaintiff’s Discovery Deposition, Pages 268-269,

274-275, 425-427)

Table of Appendices

Page

APPENDIX E . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26a

DeVries, et ux. v. General Electric Co., et al.,

No. 13-cv-474 (E.D. Pa.)

(Doc. 291-2, Pages 34-35, Doc. 291-3, Pages 1-35)

(Response to Motion for Summary Judgment

of Foster Wheeler, LLC)

(Affidavit of Captain Bruce Woodruff, Pages 1-38)

APPENDIX F . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139a

DeVries, et ux. v. General Electric Co., et al.,

No. 13-cv-474 (E.D. Pa.)

(Doc. 296, Pages 17, 18, 19, 22-24)

(Response to Motion for Summary Judgment

of CBS Corp.)

(Plaintiff’s Discovery Deposition, Pages 72-73, 82,

385, 399-402, 406-408)

APPENDIX G . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149a

DeVries, et ux. v. General Electric Co., et al.,

No. 13-cv-474 (E.D. Pa.)

(Doc. 298, Pages 21-22, 23)

(Response to Motion for Summary

Judgment of Buffalo Pumps, Inc.)

(Plaintiff’s Discovery Deposition, Pages 198-205,

238-241)

TABLE OF CITED AUTHORITIES

Page

CASES:

Acoba v. General Tire, Inc.,

986 P.2d 288 (Haw. 1999) . . . . . . . . . . . . . . . . . . . . . . 53

Air & Liquid Systems Corp v.

Allianz Underwriters Ins. Co.,

2 013 U. S. Dist . 2 013 Westlaw 5 4 369 3 4

(Sept. 27, 2013 W.D. PA) . . . . . . . . . . . . . . . . . . . . . 15-16

Am. Exp. Lines, Inc. v. Alvez,

446 U.S. 274 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 6, 59

Andrews v. 3M Co.,

No. 2:13-cv-2055, 2015 WL 12831315

(D.S.C. May 22, 2015), on reconsideration,

sub nom. Andrews v. CBS Corp.,

2015 WL 12831342 (D.S.C. June 18, 2015) . . . . . . . . 39

Appalachian Ins. Co. v. GE,

863 N.E.2d 994 (N.Y. 2007) . . . . . . . . . . . . . . . . . . . . 15

Baughman v. General Motors Corp.,

780 F.2d 1131 (4th Cir. 1986) . . . . . . . . . . . . . . . . . . . 49

Bell v. Foster Wheeler Energy Corp.,

2016 WL 5780104 (E.D. La. Oct. 4, 2016) . . . 38, 41, 55

Cited Authorities

Page

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) . . . . . . . . . . . . . . . . . . . . . . . passim

Braaten v. Saberhagen Holdings,

198 P.3d 493 (Wash. 2008) . . . . . . . . . . . . . . . . . . 43, 44

Bridge v. Phoenix Bond & Indem. Co.,

553 U.S. 639 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Brown v. Drake-Willock Intern, Ltd.,

209 Mich. App. 136 (1995) . . . . . . . . . . . . . . . . . . . . . 50

Certain Underwriters at Lloyd’s, London v.

Foster Wheeler Corp.,

822 N.Y.S.2d 30 (N.Y. App. Div. 2006) . . . . . . . . . . . 16

Chesher v. 3M Co.,

234 F. Supp. 3d 693 (D.S.C. 2017) . . . . . . . . . . . passim

Childress v. Gresen Manu. Co.,

888 F.2d 45 (6th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . 53

Codling v. Paglia,

298 N.E.2d 622 (N.Y. 1973) . . . . . . . . . . . . . . . . . . . . 56

CSX Transp., Inc. v. McBride,

564 U.S. 685 (2011) . . . . . . . . . . . . . . . . . . . . . . . . 51, 52

E. River S.S. Corp. v.

Transamerica DeLaval, Inc.,

476 U.S. 858 (1986) . . . . . . . . . . . . . . . . . . . . . . . passim

xii

Cited Authorities

Page

Edmonds v. Compagnie Generale

Transatlantique,

443 U.S. 256 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Escola v. Coca Cola Bottling Co.,

24 Cal. 2d 453 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Exxon Co. v. Sofec,

517 U.S. 830 (1996) . . . . . . . . . . . . . . . . . . . . . . . passim

Filer v. Foster Wheeler LLC,

994 F. Supp. 2d 679 (E.D. Pa. 2014) . . . . . . . . . . . . . .30

Garvin v. AGCO Corp.,

2014 WL 8628438 (S.C. Ct. C.P.

December 10, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Gourdine v. Crews,

955 A.2d 769 (Md. 2008) . . . . . . . . . . . . . . . . . . . . . . . 54

Grimshaw v. Ford Motor Co.,

174 Cal. Rptr. 348 (Cal. Ct. App. 1981) . . . . . . . . . . . 36

Hedden v. CBS Corp.,

2015 WL 5775570 (S.D. Ind. Sept. 30, 2015) . . . 38, 39

Hughes v. A.W. Chesterton Co.,

89 A.3d 179 (N.J. Super. Ct. App. Div. 2014),

cert. denied, 101 A.3d 1082 (N.J. 2014) . . . . . . . . . . . 45

xiii

Cited Authorities

Page

Husted v. A. Philip Randolph Inst.,

No. 16-980, 2018 WL 2767661

(U.S. June 11, 2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Huynh v. Ingersoll-Rand,

20 Cal. Rptr. 2d 293 (Cal. Ct. App. 1993) . . . . . . . . . 48

Igneri v. Cie. de Transports Oceaniques,

323 F.2d 257 (2d Cir. 1963) . . . . . . . . . . . . . . . . . . . . . 40

IMO Indus. Inc. v. Transamerica Corp.,

101 A.3d 1085 (N.J. Super. Ct. App. Div. 2014) . . . . 16

In re Joint E. and S. Dist. N.Y. Asbestos Litig.,

897 F.2d 626 (2d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 57

In re N.Y.C. Asbestos Litig.,

59 N.E.3d 458 (N.Y. 2016) . . . . . . . . . . . . . . . . . . passim

Jerome B. Grubart, Inc. v.

Great Lakes Dredge & Dock Co.,

513 U.S. 527 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Kermarec v.

Compagnie Generale Transatlantique,

358 U.S. 625 (1959) . . . . . . . . . . . . . . . . . . . . . . . passim

Kochera v. Foster Wheeler, LLC,

2015 WL 5584749 (S.D. Ill. Sept. 23, 2015) . . . . 38-39

xiv

Cited Authorities

Page

Lexmark Int’l, Inc. v.

Static Control Components, Inc.,

572 U.S. 118 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Lindsay v. McDonnell Douglas Aircraft Corp.,

460 F.2d 631 (8th Cir. 1972) . . . . . . . . . . . . . . . . . . . . . 3

Lindstrom v. A-C Prod. Liabl. Tr.,

424 F.3d 488 (6th Cir. 2005) . . . . . . . . . . . . . . 20, 39, 40

Macias v. Saberhagen Holdings, Inc.,

282 P.3d 1069 (Wash. 2012) . . . . . . . . . . . . . . 42, 44, 45

MacPherson v. Buick Motor Co.,

111 N.E. 1050 (N.Y. 1916) . . . . . . . . . . . . . . . . . . . . . . 46,

May v. Air & Liquid Sys. Corp.,

129 A.3d 984 (Md. 2015) . . . . . . . . . . . . . . . . . . . passim

McDermott v. AmClyde,

511 U.S. 202 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

McKenzie v. A.W. Chesterton Co.,

373 P.3d 150 (Or. 2016), review denied,

381 P.3d 841 (2016) . . . . . . . . . . . . . . . . . . . . . . . . 41, 45

McKown v. Simon Property Group, Inc.,

344 P.3d 661 (Wash. 2015) . . . . . . . . . . . . . . . . . . . . . 47

Miles v. Apex Marine Corp.,

498 U.S. 19 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . 24, 34

Cited Authorities

Page

Miller v. Am. President Lines, Ltd.,

989 F.2d 1450 (6th Cir. 1993) . . . . . . . . . . . . . . . . . . . 30

Moragne v. States Marine Lines, Inc.,

398 U.S. 375 (1970) . . . . . . . . . . . . . . . . . . . . . . . passim

Norfolk Shipbuilding & Drydock Corp. v.

Garris,

532 U.S. 811 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 27, 34

O’Neil v. Crane Co.,

266 P.3d 987 (Cal. 2012) . . . . . . . . . . . . . . . . . 43, 44, 46

Osterhout v. Crane Co.,

2016 WL 6310765 (N.D.N.Y. Oct. 27, 2016) . . . . . . . . 38

Paroline v. U.S.,

572 U.S. 434 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

Pope & Talbot v. Hawn,

346 U.S. 406 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Quirin v. Lorillard Tobacco Co.,

17 F. Supp. 3d. 760 (N.D. Ill. 2014) . . . . . . . . . . passim

Reynolds v. Bridgestone/Firestone,

989 F.2d 465 (11th Cir. 1993) . . . . . . . . . . . . . . . . 24, 49

Savoie v. Huntington Ingalls, Inc.,

817 F.3d 457 (5th Cir. 2016), cert. denied,

137 S. Ct. 339 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 30

xvi

Cited Authorities

Page

Schwartz v. Abex Corp.,

106 F. Supp. 3d 626 (E.D. Pa. 2015) . . . . . . . . . . . . . 41

Sea-Land Servs., Inc. v. Gaudet,

414 U.S. 573 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . 33, 34

Sieracki v. Seas Shipping Co.,

149 F.2d 98 (3d Cir. 1945), aff’d,

328 U.S. 85 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Smith v. Bolles,

132 U.S. 125 (1889) . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Spychalla v. Boeing Aerospace Opns. Inc.,

No. 11-CV-497, 2015 WL 3504927

(E.D. Wis. June 3, 2015) . . . . . . . . . . . . . . . . . . . . . . . 45

Stark v. Armstrong World Indus.,

21 F. App’x 371 (6th Cir. 2001) . . . . . . . . . . . . . . . 49-50

Staub v. Proctor Hosp.,

562 U.S. 411 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Sweredoski v. Alfa Laval, Inc.,

No. PC-2011-1544, 2013 WL 5778533

(R.I. Super. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

The Max Morris v. Curry,

137 U.S. 1 (1890) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

xvii

Cited Authorities

Page

The Sea Gull,

21 F. Cas. 909 (C.C.Md. 1865) . . . . . . . . . . . . . . . 32, 34

Vaughn v. Farrell Lines, Inc.,

937 F.2d 953 (4th Cir. 1991) . . . . . . . . . . . . . . . . . . . . 30

Warner v. Goltra,

293 U.S. 155 (1934) . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Waters-Pierce Oil Co. v. Deselms,

212 U.S. 159 (1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Westinghouse Elec. Corp. v.

Am. Home Assur. Co.,

2004 N.J. Super. Unpub., 2004 Westlaw 1878764

(July 8, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Whelan v. Armstrong International, Inc.,

2018 WL 3716036 (Sup. Ct. of N.J., Aug. 6, 2018) . . 42

Yamaha Motor Corp., U.S.A. v. Calhoun,

516 U.S. 199 (1996) . . . . . . . . . . . . . . . . . . 32, 33, 34, 40

STATUTES & OTHER AUTHORITIES:

42 U.S.C. § 1442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Centers for Disease Control and Prevention,

Morbidity and Mortality Weekly Reporter, 59(27)

(July 16, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

xviii

Cited Authorities

Page

Restatement (Second) of Torts, §§ 314-315 . . . . . . . . . . 47

Restatement (Second) of Torts, § 388 . . . . . . . . . . passim

Restatement Second (Torts) § 395 comment (b) . . . 46-47

R e st at ement ( T h i rd) of Tor t s: Li abi l it y

for Physica l a nd Emot iona l Ha r m

§ 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 51

Restatement (Third) of Torts: Phys. & Emot.

Harm § 7 Comment j . . . . . . . . . . . . . . . . . . . . . . . . . 20

Restatement (Third) of Torts: Prod. Liab. § 2(c) . . . . . 52

INTRODUCTION

We learn in our first year of law school that a

manufacturer must warn end-users if its product is

hazardous when used as intended. See, e.g., Restatement

(Second) of Torts § 388 (1965). This principle has been

incorporated in general maritime negligence law and the

prevailing law on land for over one hundred years.

Petitioners designed, manufactured, and sold

machines that required asbestos parts to function.

Petitioners’ machines were not “bare metal;” they

incorporated asbestos parts and could not work without

them.

As part of the bargained-for sale, petitioners supplied

maintenance manuals for their machines. Petitioners’

manuals instructed users to replace the original asbestos

parts with identical replacements, but did not warn users to

avoid breathing asbestos dust. Because replacing asbestos

parts created dust, exposure to asbestos was inevitable if

the user followed the instructions in petitioners’ manuals.

Indeed, petitioners purchased insurance against future

liability for asbestos diseases.

Applying hornbook negligence law and maritime law’s

“duty of reasonable care under the circumstances of each

case,” Kermarec v. Compagnie Generale Transatlantique,

358 U.S. 625, 632 (1959), petitioners had a duty to warn

users of the known hazards arising from the expected

and intended use of their products. This is all the more so

when, as here, petitioners’ maintenance manuals directed

the user on when and how to perform the work that created

the dust.

To avoid liability, petitioners propose a unique exception

that abolishes their duty to warn about the foreseeable

hazards arising from use of their machines. Petitioners’

rule would apply to all maritime workers: civilian or Navy,

fishing vessel or self-employed crabber, recreational

boater or floating offshore drilling platform. Petitioners

base their exception on four primary arguments. First,

petitioners attempt to change the products at issue from

their integrated machines to the replaceable asbestos

parts necessary for their machines to work. Second,

petitioners claim that foreseeability has no place in

maritime negligence law. Third, petitioners proclaim that

maritime work is now “safe.” Fourth, petitioners ask the

Court to adjudicate petitioners’ government contractor

defense, which neither the district court nor the Third

Circuit reached. None of these arguments withstands

scrutiny.

Petitioners’ Argument One: Petitioners’ machines

are not the “real” products: Petitioners concede they

had a duty to warn the first users of their machines of the

danger posed by the original asbestos parts they supplied

with their machines. However, petitioners claim that they

have no duty to warn after the original asbestos parts

were replaced, per petitioners’ instructions, with identical

asbestos parts.

Why? Because, according to petitioners, the “real”

products are not their machines, but only the required,

replaceable asbestos parts. Thus, petitioners contend,

once the original asbestos parts are replaced with

identical asbestos parts, petitioners’ duty to warn

disappears. Petitioners’ narrow definition of “the product”

has no place in this negligence claim, which applies to

petitioners’ conduct. Cf. Lindsay v. McDonnell Douglas

Aircraft Corp., 460 F.2d 631, 639 (8th Cir. 1972) (noting

that maritime strict liability focuses on the nature of the

product while negligence focuses on the conduct of the

manufacturer).

Under this Court’s maritime precedent, the “real”

product is petitioners’ entire integrated product sold to its

customer: the working machinery with its asbestos parts,

spare asbestos parts, and the accompanying maintenance

manual. See E. River S.S. Corp. v. Transamerica DeLaval,

Inc., 476 U.S. 858, 867 (1986) (“Since each turbine was

supplied by DeLaval as an integrated package . . . . each

is properly regarded as a single unit.”). Petitioners had

a duty under general maritime negligence law to warn

of the hazards inevitably arising from the expected and

intended use of their machines, including during their

maintenance and repair.

Petitioners’ Argument Two: Abolish foreseeability:

Petitioners ask this Court to overturn a century of general

maritime and traditional tort law and establish a new rule

that abolishes as “unworkably vague” the application of

foreseeability in negligence cases. Pet.Br. 19. Contrary

to petitioners’ contention, foreseeability is an important

limiting factor in tort litigation. Manufacturers must

warn product users of the dangers they know users will

face when using the products as expected and intended,

but they need not warn of unforeseeable dangers. This is

a simple and uniform rule.

Petitioners’ proposed rule disrupts uniformity.

Established maritime precedent has consistently

conducted a fact-based analysis when applying basic

concepts such as foreseeability or, as in this case,

inevitability. If foreseeability is eliminated in this case,

maritime law will no longer be uniform. For example,

maritime law applies a foreseeability test to determine

if an event was a superseding cause. See Exxon Co. v.

Sofec, 517 U.S. 830, 837 (1996). Petitioners’ proposed rule

would mean that foreseeability applies in some instances,

but not others.

Petitioners’ Argument Three: The seas are now

allegedly “safe”: General maritime law has not, as

petitioners claim, foregone the concept that sailors deserve

“special solicitude.” Pet.Br. 37-39. Petitioners’ assertion

that this is an “outdated” concept is unsupported by reality

and the law. The recent collisions of the USS Fitzgerald

and USS John S. McCain with commercial ships; the

sinking of the SS El Faro; the explosion on Deepwater

Horizon; and fourteen seasons of “Deadliest Catch”

demonstrate that the life of a maritime worker remains

precarious. Indeed, commercial fishing remains one of the

most dangerous occupations in the United States.

Moreover, the Third Circuit’s holding accords with

the prevailing law on land. Petitioners’ rule of blanket

immunity would perversely provide sailors less recourse

than land-based workers.

Petitioners’ Argument Four: Blame the Navy:

Petitioners spend nearly half of their brief arguing that

they were innocent “bare metal” suppliers, and it was the

Navy that later determined asbestos would be required

for their machines to work. If this were true, petitioners

would not need to seek a new rule from this Court.

Specifically, the Third Circuit held that there is no

duty unless petitioners knew (1) of the hazards of their

asbestos, and (2) that their products “will be used with an

asbestos-containing part” because of active conduct on the

part of the manufacturer. This includes (a) “equip[ping]”

the product with an asbestos part, (b) “direct[ing]”

that the product be used with an asbestos part, or

to function properly. Pet.App. 15a-16a. If petitioners’

one-sided presentation of the record is to be believed,

petitioners would not be liable under the Third Circuit’s

rule.

Regardless, petitioners’ arguments that they were

helpless before the Navy’s alleged omnipotence have no

place here. First, the question presented does not involve

the Boyle government contractor defense. See Boyle v.

United Techs. Corp., 487 U.S. 500 (1988). Neither the

trial court nor the Third Circuit ruled on this defense

and petitioners are free to pursue it on remand. Second,

it is presumed for purposes of this review that petitioners

knew of the hazards of asbestos and that their machines

will be used with an asbestos-containing part, because

petitioners protest the application of the Third Circuit’s

rule under any circumstances.

Third, respondents proffered contrary evidence that

the manufacturers specified asbestos parts for their

machinery; supplied their machinery with asbestos; and

provided maintenance manuals requiring replacement of

asbestos parts with identical asbestos parts. The Third

Circuit remanded resolution of these factual disputes to

the trial court. Fourth and finally, because petitioners’

proposed rule would apply in all maritime cases, including

non-Navy cases, their arguments as to the Navy’s conduct

should have no bearing on this Court’s determination of

the proper rule.

In sum, petitioners ask this Court to abandon a

century of settled law, jettison as “unworkable” the basic

tort concept of “foreseeability,” and adopt a new rule of

blanket immunity for manufacturers of machines that are

inherently dangerous in their normal and intended use. In

contrast, respondents ask this Court to reject petitioners’

blanket immunity rule in favor of established general

maritime and common law rules that promote maritime

law’s principles of uniformity, simplicity, and solicitude

to the sailor. The Third Circuit soundly reasoned that

for maritime claims arising in negligence, manufacturers

have a duty to warn users of the known hazards arising

from the expected and intended use of their products.

This Court should affirm.

COUNTER STATEMENT OF THE CASE

This case arises from an order granting summary

judgment. Viewing the evidence and inferences therefrom

in the light most favorable to respondents (Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)), the facts

are as follows:

A. Respondents were exposed to asbestos during the

expected and intended use of petitioners’ machines.

Petitioners supplied machines that required

asbestos parts to function.

John DeVries (“Mr. DeVries”) served in the United

States Navy as an engineering officer aboard U.S.S.

Turner from 1957-60. Resp.App.F 42a-43a. He supervised

the crew in the fire and engine rooms. JA 314, 327-328.

The fire rooms contained boilers (with economizers),

pumps, and blowers that generated high pressure steam.

The engine rooms contained the ship’s steam condensers

and propulsion turbines that converted the superheated

steam into mechanical energy. Resp.App.F 41a; Resp.

App.B 11a-13a.

Petitioner Air & Liquid Systems (successor to Buffalo

Pumps) and co-defendants IMO (DeLaval) and Warren

Pumps manufactured pumps. JA 283-286. Petitioner CBS’

predecessors-in-interest (Westinghouse and Sturtevant)

manufactured generators, eight forced draft blowers for

the boilers, circulating pump turbines and air compressor

turbines. JA 420-426. Respondent General Electric (GE)

manufactured the main propulsion turbines. CA3-JA

1281-1283.1 Petitioner Foster Wheeler manufactured

economizers for the boilers and condensers.

In high-temperature, high-pressure environments,

“industry” standards specified that asbestos must be used

with the machinery to prevent leaking, heat contact, and

heat dissipation. JA 303; Resp.App.B 11a. Petitioners’

engineers, “not just Navy people, at that time said you

would use asbestos for high-temperature applications.” JA

322. The type of insulation used “depended on the pump

suppliers’ specs.” Resp.App.G 158a. Thus, Buffalo directed

that its pumps be used with asbestos-containing packing.

CA3-JA 357-408. Warren supplied its pumps with asbestos

packing and further required external asbestos insulation.

CA3-JA 1515-1518. GE and Westinghouse required their

1. Citations to “CA3-JA” refer to the Joint Appendix filed in

the Third Circuit.

turbines to be insulated with asbestos. CA3-JA 1287-1289,

1291, 1293, 1297-1298 (Westinghouse analogized asbestos

blankets to “topcoats,” proclaiming its “Tailors Make

Topcoats for Turbines.”). Petitioners frequently supplied

spare asbestos parts (in some cases hundreds of them) for

use with their machinery. CA3-JA 1151-1153.

From 1969-1989, Mr. McAfee served as a boatswain’s

mate in the U.S. Navy aboard numerous ships. Especially

from 1977-1980, Mr. McAfee was exposed to asbestos from

the process of removal and replacement of gaskets and

packing from Ingersoll Rand compressors on the U.S.S.

Wannamassa. He was similarly so exposed aboard the

U.S.S. Commodore. JA 486-572.

Petitioners’ manuals required routine

maintenance of the machines, which exposed

users to asbestos dust.

Petitioners’ machines required constant maintenance.

Resp.App.C 18a-19a. Each manufacturer supplied a

maintenance manual with its machinery. JA 272, 364,

377, 407.

Mr. DeVries trained his sailors to follow the

instructions in petitioners’ maintenance manuals, which

detailed the type and frequency of maintenance required.

Resp.App.G 154a-155a. When the machines leaked,

petitioners’ maintenance manuals directed sailors to

replace the gaskets and/or packing. JA 304-308. The heat

and pressure from the machinery caused the gaskets to

fragment and stick to the sealing surfaces of the machines.

JA 321-322; Resp.App.G 157a. Mr. DeVries and his sailors

had to use wire brushes to “perfectly clean” the sealing

surfaces of petitioners’ machines of asbestos residue so the

new gasket would form a tight seal. This created clouds of

asbestos dust. JA 279, 307, 319, 380, 792; Resp.App.G 157a.

Asbestos “stuffing” or “packing” was required to

prevent liquid or steam from leaking. Mr. DeVries and his

men constantly put new asbestos stuffing in the “stuffing

boxes” of petitioners’ machines. JA 279, 307; Resp.App.C

18a-19a. The asbestos packing became brittle with use,

and created dust upon its removal and replacement. JA

275-276. The men “repacked and repacked and repacked”

the Buffalo, Warren, and DeLaval pumps. Resp.App.G

150a. This created clouds of asbestos dust. JA 275-276,

303.

Finally, to access the machinery, the sailors had to

remove asbestos blanket and cement insulation required

to insulate the machines. This created clouds of asbestos

dust. JA 290-291, 794; Resp.App.A 6a; Resp.App.C 18a.

Petitioners’ maintenance manuals and

machine labels did not warn of the hazards of

breathing asbestos dust.

Mr. DeVries had “no knowledge of the dangers of

asbestos.” JA 326. As a result, he did not tell his men to

take precautions. JA 309-310; Resp.App.A 2a. There were

no asbestos warnings on any of petitioners’ machines nor

in any of petitioners’ maintenance manuals. JA 326, Resp.

App.A 7a; Resp.App.G 157a. And there was no “training

and other means” by which the Navy warned of the “longterm hazards” of asbestos. Cf. Pet.Br. 33. Thus, both he

and his men breathed the dust unprotected.

B. Petitioners, and not the Navy, designed their

machines to require use of asbestos parts.

Petitioners claim the Navy “added” the asbestoscontaining materials “to the defendants’ machines after

the defendants delivered it [sic] to the Navy” Pet.Br. 3;

that their “product” was merely a piece of “bare metal;”

and they had no role in the use of asbestos parts in and on

their machines. This is contrary to the evidence proffered

by both respondents and petitioners’ own experts.

The Navy viewed the petitioners’ machines,

their necessary asbestos parts, and manuals

as integrated units.

First, the Navy considered petitioners’ machines,

their necessary asbestos parts, and their maintenance

manuals to be a single unit. For example, the Navy

defined a boiler and its asbestos parts as a “completely

integrated unit” consisting of “such appurtenances as

covered herein required for safe continuable [sic] and

controllable generation of steam,” including “brickwork

and insulation.” CA3-JA 951. “[S]uppliers of such

equipment usually supplied asbestos products with/on/in

their equipment.” JA 484. Petitioners were also “engaged

by the Navy to participate in renovation and overhaul

of their own equipment, or that of others, including

asbestos-containing parts in shipyard repairs.” JA 484.

Additionally, petitioners “frequently supplied replacement

asbestos or disturbed previously-supplied asbestos as part

of their activities on ships.” JA 484. And “[g]enerally, if

a company supplied asbestos with its equipment, some of

that asbestos was always present unless the record shows

that the asbestos installed by the defendants was entirely

removed.” JA 484.

Moreover, petitioners were required to revise their

maintenance manuals when different equipment or parts

were substituted in place of those originally specified.

CA3-JA 730, MIL-M-15071, ¶ 2.5 (1950); accord CA3-JA

794, MIL-M-15071C ¶¶ 3.1.6.2-3.1.6.3 (1957). So, if industry

developed suitable non-asbestos replacement parts that

made petitioners’ equipment safer, petitioners were

required to update their maintenance manuals to reflect

these safer alternatives. There is no evidence petitioners

ever supplemented or revised their maintenance manuals

to direct the use of any non-asbestos parts.

Petitioners sold machines requiring asbestos

parts to both the military and civilian markets.

Second, petitioners’ suggestion that their machines

were only used with asbestos parts at the Navy’s behest

is contradicted by the fact that petitioners designed and

manufactured their machines with asbestos parts for both

the government and civilian markets. This is because

in high-temperature, high-pressure environments,

“industry” standards specified that asbestos must be used

with the machinery. JA 303; Resp.App.B 11a. Moreover,

contrary to petitioners’ claim that petitioners’ products

were “dictated by the Navy’s precise specifications,” Pet.

Br. 3, the Navy does not actually design the machinery.

The Navy issues “a request for bids from qualified

contractors in an effort to identify a contractor with the

capability and capacity to create a design and manufacture

a [product] that satisfies its new military requirements.”

JA 27, Horne Affidavit ¶10.

Mr. DeVries testified that petitioners specified the

type of insulation. CA3-JA 355. Petitioners’ machines

contained asbestos-containing parts as necessary

components — by petitioners’ design — at the time

petitioners sold their machines to the Navy. JA 394-396,

Testimony of Foster Wheeler MKP, Richard Johnson, at

226-228; JA 484, Faherty Aff. at ¶¶ 39-45. In most cases,

these asbestos components were already sealed inside

the machine when it was delivered to the customer. Id.

In other cases, where the machine was too large to be

shipped intact, the machine was assembled at the shipyard

under the supervision of “competent engineer(s)” provided

to the shipyard by petitioners, and the internal asbestos

component parts were assembled into the machine at

that time. JA 33 Horne’s affidavit ¶¶ 19, 24; JA 394-396;

Testimony of Foster Wheeler MKP at JA 226-228.

Although it is true certain products were shipped

without external asbestos insulation preinstalled, this

occurred because (1) “it was more economical, efficient

and allowed pre-operation inspection and testing” if the

equipment was not shipped with pre-installed insulation,

and (2) “the Navy was concerned that pre-installed

insulation . . . could be easily damaged during shipment.”

JA 35, ¶ 24. Preinstalled or not, respondents presented

evidence that petitioners directed that their machines be

insulated with asbestos.

Petitioners’ machines would not work without

asbestos parts.

Third, the only materials that would work for high

temperature applications like petitioners’ steam-driven

equipment were asbestos-containing parts. CA3-JA 329;

Resp.App.E 46a, Woodruff Affidavit re: steam driven

equipment. Petitioners concede that, prior to the late

1970s, there were no “acceptable substitutes” for the

asbestos components that were required for petitioners’

machines to function as designed. Pet.Br. 5.

Thus, Petitioners’ claim that they had “no control

over the third party products that are added to their

equipment post-sale,” Pet.Br. 14, is belied by the fact that

their machines — both military and civilian — required

asbestos parts to work.

Petitioner Foster Wheeler’s corporate representative

agreed that “asbestos gaskets and tape would have been

incorporated within the Foster Wheeler product when it

left the factory.” JA 395-396. Similarly, Foster Wheeler’s

internal insulation standards dictated the type of asbestos

insulation for use with its products, and were incorporated

by reference into Foster Wheeler’s subcontracts for the

provision of these asbestos parts. JA 391-392. When asked

whether Foster Wheeler knew in the 1940s that asbestos

parts were used on its equipment, Foster Wheeler’s

corporate representative responded that it was “obvious”

because Foster Wheeler specified them “for use in specific

required applications.” JA 393.

Buffalo Pumps’ maintenance manual for its Navy

pumps shows that its pumps were supplied with internal

asbestos parts at the time of their initial sale to the Navy.

CA3-JA 375-404. Buffalo Pumps also supplied drawings

dictating where to put asbestos insulation on their pump.

CA3-JA 374.

Westinghouse supplied its machinery with “gaskets

in equipment” and “steam & gas turbines and ancillary

insulation.” JA 439-442; CA3-JA 643-665, 672-676.

Westinghouse proclaimed in 1950 that “[e]very turbine

needs asbestos insulating blankets to conserve the powergiving heat.” CA3-JA 671.

With respect to gaskets and packing, Mr. DeVries

testified that he was trained that “all engineers, not just

Navy people, at that time said you would use asbestos for

high temperature applications.” JA 322. Non-asbestos

substitutes for these applications did not become available

until the 1980s. CA3-JA 406, Kraft for Buffalo.

Buffalo’s pumps were shipped w ith asbestoscontaining gaskets and packing until the early 1980s, when

it began attempting to use non-asbestos substitutes. CA3JA 406-408. Buffalo admitted that “[i]n the 1980s, gaskets

and packing materials containing asbestos became

generally unavailable while, at the same time, suitable

replacement products . . . were becoming available.” May

v. Air & Liquid Sys. Corp., 129 A.3d 984, 992 (Md. 2015).

C. Replacement asbestos parts were identical to the

original asbestos parts.

The asbestos parts that petitioners’ machinery

required to function were “ wear items” that had

to be replaced with identical asbestos parts. Thus,

Westinghouse’s instructions for its marine turbines

required asbestos gaskets to be used as replacement

parts. JA 447.

Petitioners’ maintenance manuals instructed users to

repeatedly remove and replace these asbestos-containing

parts with identical asbestos-containing parts, and

petitioners profited by selling asbestos replacement parts.

Westinghouse sold asbestos replacement parts to the Navy

for Westinghouse forced draft blowers. JA 453-454. When

Foster Wheeler sold boilers to the Navy, it provided 200%

of the gaskets needed for the manholes and handholes,

the internal joints in drums, and the burners. CA3-JA

971. Additionally, Foster Wheeler sold tools for cleaning

asbestos-gasket residue off the metal surfaces of their

machines. CA3-JA 972. Foster Wheeler sold 992 spare

gaskets just for the economizers, alone, on U.S.S. Turner.

JA 383-384.

D. Petitioners insured against the dangers posed by

the use of their machines, which included coverage

for asbestos exposure.

Petitioners purchased insurance that covered the

risk of asbestos exposure from the use of their machines.

General Electric had both primary insurance coverage

and excess coverage that applied to personal injury

claims for exposure to asbestos from external insulation

used on its machines from the 1950s through the 1990s.

Appalachian Ins. Co. v. GE, 863 N.E.2d 994, 995 (N.Y.

2007).

In 1997, Westinghouse received $121,513,661.70 in

settlement of litigation with some, but not all, of its excess

insurance carriers for claims arising from asbestos

exposure from its machines. Westinghouse Elec. Corp.

v. Am. Home Assur. Co., 2004 N.J. Super. Unpub., 2004

Westlaw 1878764 (July 8, 2004).

Buffalo carried both primary and excess insurance

coverage for asbestos injuries arising from its pumps.

Air & Liquid Systems Corp v. Allianz Underwriters

Ins. Co., 2013 U.S. Dist. 2013 Westlaw 5436934 (Sept. 27,

2013 W.D. PA). Like the other petitioners, Foster Wheeler

purchased insurance to cover asbestos claims arising from

the use and maintenance of its machines. See Certain

Underwriters at Lloyd’s, London v. Foster Wheeler Corp.,

822 N.Y.S.2d 30 (N.Y. App. Div. 2006).

Defendant IMO Industries, Inc.’s predecessor,

DeLaval, purchased over $1.85 billion dollars of insurance

coverage – “sufficient to pay for its anticipated liabilities

and defense costs for asbestos-related personal injury

claims.” IMO Indus. Inc. v. Transamerica Corp., 101 A.3d

1085, 1091 (N.J. Super. Ct. App. Div. 2014).

E. The Navy required petitioners to warn users of their

machines of the dangers they would face, including

asbestos dust.

The Navy warning requirements were not

limited to hazards that cause “immediate

harm.”

Petitioners argue that the Navy would allow warnings

only as to “immediate” harm. Pet.Br. 33. On the contrary,

the “Navy required manufacturers not only to warn on

the products but to supply manuals containing warnings

to each ship and precautions for the use of the product.”

These required warnings included asbestos warnings. JA

585-6, 588-89, 590. Moreover, “[b]ased on the SECNAV

instruction, the MIL-T-15071 series, and the MIL

Standard 129 series, suppliers were required to label

asbestos as hazardous.” Resp.App.E 91a-100a.

The World War II-era General Specifications for

Machinery S1-1 required contractors to include “Safety

precautions” in their maintenance manuals. CA3-JA 743.

By the 1950s, the Navy became more emphatic in the

MIL-M-15071 series, telling petitioners to use the word

“WARNING” for “Operating procedures, practices, etc.

which will result in personal injury or loss of life if not

correctly followed” in the operation, repair, overhaul and

maintenance of the equipment. JA 783, ¶¶ 3.3.6; JA 7823. Nowhere does the Navy state that “personal injury”

warnings must apply only to “imminent threats.” Cf. Pet.

Br. 33.

The DOD required warnings for toxic and

carcinogenic dust.

The Department of Defense (“DOD”) required

petitioners to mark their products and packaging in

accordance with MIL-STD-129, which incorporated the

industry warning standard, Manufacturing Chemists

Manual, L-1. That standard required warnings for toxic

and carcinogenic “dust.” JA 482, Faherty Aff. at ¶¶22-28;

JA 648-651, Frank Affidavit.

Contrary to petitioners’ assertion that there was a

“Navy-specific” warnings regime, DOD policies regarding

warnings were expressly designed to mirror existing

civilian industry standards. This ensured consistent

warnings. The Navy expressly preferred petitioners

to provide their standard civilian maintenance manual

with their machines. JA 586. And the maintenance

manuals provided by machinery manufacturers to the

Navy contained a myriad of warnings tracking the

nomenclature of the MCA Warning Label Guide – but

not the MCA Warning Label Guide as to asbestos. Resp.

App.E 90a-100a.

By the 1980s, petitioners warned about asbestos

with no resultant “overwarning” phenomenon.

Petitioners contend that warnings from machinery

manufacturers to Navy users would have resulted in

“overwarning,” disrupted military discipline, and confused

sailors. Pet.Br. 33. There is not a shred of evidence that

any of petitioners’ decision-makers decided against

warning users based upon a concern about “overwarning.”

And petitioners have produced no evidence that, when

petitioners finally started warning in the 1980s, this

impaired military discipline or confused sailors.

F. Proceedings Below.

Mr. DeVries and Mr. McAfee developed cancer as a

result of their exposures to asbestos, and filed suit against

petitioners in state court.

Petitioners argue that respondents sued them because

they could not sue the Navy. Pet.Br. 9. That is false.

General maritime law recognizes concurrent causation.

Parties whose actions are proximate causes of harm

are subject to joint and several liability. McDermott

v. AmClyde, 511 U.S. 202, 220-21 (1994); Edmonds v.

Compagnie Generale Transatlantique, 443 U.S. 256, 273

n.30 (1979). Petitioners’ negligence contributed to cause

respondents’ diseases. That is why they were sued. That

the respondents have no tort cause of action against the

Navy is no different than any other workplace injury in

a state with a workers’ compensation bar. To the extent

petitioners wish to argue that the Navy was the sole

cause of respondents’ injuries, the Boyle defense and

superseding cause defense will be available to them on

remand.

Petitioners removed the cases to federal court under

42 U.S.C. § 1442. The district court granted summary

judgment to petitioners, holding they had blanket

immunity under the so-called “bare metal” defense. The

district court did not reach any other basis for summary

judgment, including the government contractor defense

under Boyle. Pet.App. at 70a; see also Pet.App. at 61a,

78a, 86a-87a.

In the first appeal, the Third Circuit remanded to

the district court to clarify whether its holding applied

to both plaintiffs’ strict liability and negligence claims.

Pet.App. 47a, 51a. The district court confirmed that its

ruling applied to both theories of liability. Pet.App. 42a.

In the second appeal, the Third Circuit held

respondents failed to preserve their strict liability claim,

and expressly limited the question presented to the

application of the “bare metal” defense under general

maritime negligence law. As to the negligence claim, the

Third Circuit framed the issue as whether a manufacturer

who delivers a product “bare-metal” — “without the

insulation or other material that must be added for the

product’s proper operation” — could be liable in negligence

for the foreseeable injuries caused by use of the product.

Pet.App. 2a (emphasis added). Under “bedrock principles

of maritime law,” the Third Circuit held that, in a

“negligence claim,” “a manufacturer of even a bare-metal

product” may be liable for an asbestos-related disease

“when circumstances indicate the injury was a reasonably

foreseeable result of the manufacturer’s actions.” Pet.App.

3a. The Third Circuit rejected the district court’s “bright

line approach” that manufacturers can never have liability

for respondents’ negligence claims. Id.

The Third Circuit recognized a potential split in

authority — one line of cases holding that a manufacturer

of “bare-metal products” is never liable for asbestos

components, see e.g. Lindstrom v. A-C Prod. Liabl. Tr. 424

F.3d 488, 492 (6th Cir. 2005) — and the other line applying

a traditional “fact specific” inquiry regarding whether the

plaintiff’s injury was a “reasonably foreseeable result of

the manufacturer’s conduct.” Pet.App. 6a (citing Quirin

v. Lorillard Tobacco Co., 17 F. Supp. 3d. 760, 768-70 (N.D.

Ill. 2014)).

The Third Circuit held that the “doctrinal root”

of the “bare metal” defense could be found in both

causation and duty, because the “keystone is the concept

of foreseeability.” Pet.App. 7a. “In the duty element in

a negligence action, foreseeability limits a defendant’s

liability to only the risks and plaintiffs that are reasonably

foreseeable.” Pet.App. 8a (citing Restatement (Third) of

Torts: Phys. & Emot. Harm § 7 Comment j (2010 Am. Law

Inst.) (acknowledging “widespread use” of foreseeability

as an aspect of reasonable care)). “[I]n proximate cause,

foreseeability limits a defendant’s liability to only the

injuries that are a reasonably foreseeable result of the

defendant’s actions.” Pet.App. 8a (citing Id. § 29, Comment.

J).

The Third Circuit applied fundamental principles

of general maritime law to resolve this potential split

between bright-line rules and fact-specific standards.

The “humane and liberal character” of general maritime

law obliged courts to “give than to withhold the remedy”

wherever “established and inflexible rules” do not require

otherwise. Pet.App. 12a, (citing Moragne v. States

Marine Lines, Inc., 398 U.S. 375, 387 (1970)). Moreover,

the Third Circuit held that the “traditions of simplicity

and practicality” favored by maritime law warranted

application of the principle of foreseeability, which is a

“familiar and key part of tort law.” Pet.App. 13a-14a (citing

Kermarec, 358 U.S. at 631-632).

Applying these core maritime doctrines, the Third

Circuit held that a manufacturer may be subject to

liability in negligence if it could have reasonably known

that: (1) asbestos is hazardous; and (2) the product will

be used with an asbestos-containing part, because

(a) the product was originally equipped with an asbestoscontaining part that could reasonably be expected to be

replaced over the product’s lifetime; (b) the manufacturer

specifically directed that the product be used with an

asbestos-containing part; or (c) the product required an

asbestos containing part to function properly. Pet.App.

15a-16a. The Third Circuit remanded the case to the

District Court to determine whether summary judgment

was warranted on respondents’ negligence claims in light

of its holding. Pet.App. 17a. Further, the Third Circuit

declined to address petitioners’ Boyle defense, leaving

that issue to the district court. Pet.App. 17a.

Petitioners urge reversal because courts “cannot

recognize a duty based entirely on the foreseeability of

the harm at issue.” Pet.Br. 42. The Third Circuit did not

arrive at its decision until it considered each of maritime

law’s prevailing policy interests — uniformity, simplicity,

protection of maritime commerce and solicitude for

sailors. Moreover, its test is not limited to foreseeability.

Element (1) of the test involves the manufacturer’s actual

or constructive knowledge of the hazards of asbestos.

Element (2) deals with foreseeability, but based only

on active conduct by the manufacturer – what the

manufacturer supplied, directed or required. Put simply,

the Third Circuit held that a machinery manufacturer

may be liable in negligence if it (1) knew of the dangers

of asbestos; (2) took action that would cause the user of

the machine to be exposed to asbestos; and (3) failed to

warn of these known dangers.

SUMMARY OF ARGUMENT

A manufacturer’s duty to warn of the foreseeable

hazards arising from use of its products is one of the

most basic tenets of maritime law and traditional tort

law. This tenet applies to situations where a manufacturer

knowingly incorporates and requires the use of a dangerous

component-part in its product. Petitioners criticize any rule

that may hold them responsible for “asbestos-containing

materials” “added” to their machinery “years after the

equipment’s manufacture and sale” by “the Navy or some

other third party.” Pet.Br. 12. But petitioners ignore that

(a) their machines contained those parts at the time of

sale; (b) they knew at the time of sale that their machinery

would require those asbestos parts to function; (c) they

knew those asbestos parts would inevitably require

asbestos-containing replacements; and (d) they knew

the asbestos parts would create hazardous asbestos dust

every time their machines were maintained as petitioners

directed. When a case presents these circumstances, the

Third Circuit correctly held that there would be a duty to

warn of the danger arising from the expected and intended

use of petitioners’ machines. Pet.App. 16a.

I. Petitioners’ request that this Court eliminate

foreseeability and “reasonable care” from maritime law

is irreconcilable with this Court’s established maritime

precedent. In Kermarec, this Court held that maritime

negligence defendants are held to a “duty of reasonable

care under the circumstances of each case.” Kermarec,

358 U.S. at 632. In East River, this Court incorporated

Kermarec’s standard, stating that product liability

negligence claims are “grounded in principles already

incorporated into maritime law.” East River, 476 U.S. at

866. Following these established principles, the Third

Circuit crafted a carefully delineated test for a duty of

care, applied “on a case-by-case basis,” but circumscribed

by the strict parameters of foreseeability as mandated by

this Court in Exxon Co. v. Sofec, 517 U.S. 830 (1996), and

other cases. Pet.App. 16a. The Third Circuit’s test aligns

with, and is compelled by, the holdings in Kermarec and

East River.

II. The Third Circuit’s test accords with traditional

maritime doctrine. The Third Circuit rejected the concept

of unlimited liability. Rather, it applied a balanced rule

finding a duty only when an asbestos component was

“essential to the proper functioning of the defendant’s

product, or was for some other reason so inevitable that,

by supplying the product, the defendant was responsible

for introducing asbestos into the environment at issue.”

Pet.App. 6a, 16a; see also Quirin, 17 F. Supp. 3d at 769-70.

This balanced rule properly applies traditional principles

of tort law (limiting liability based on foreseeability), and

maritime law’s principles that manufacturers are held to

a “duty of reasonable care under the circumstances of

each case.” Kermarec, 358 U.S. at 631; East River, 476

U.S. at 866. Applying petitioners’ exception to maritime

negligence law by eliminating foreseeability and isolating

one component of their otherwise integrated machines

would defeat maritime law’s goals of uniformity and

simplicity.

III. The overwhelming majority of state court cases

that have addressed this “bare metal” defense have

rejected the blanket immunity advocated by petitioners,

and applied a rule consistent with the Third Circuit’s rule.

Petitioners’ argument would require this Court to adopt a

rule that is “disfavored by a clear majority of the States.”

Miles v. Apex Marine Corp., 498 U.S. 19, 36 (1990).

IV. In addition to comporting with maritime law and

a clear majority of the states, the Third Circuit’s rule

mirrors traditional tort doctrine. A manufacturer has

a duty to warn of the hazards arising from the intended

and expected use of its product. Restatement (Second) of

Torts, § 388, Comment (a). This duty applies even when

the harm involves a part manufactured by a third party,

and the part is required for the proper functioning of the

manufacturer’s machinery. Indeed, the cases petitioners

cite confirm the continued vitality of this principle. Pet.Br.

14 (citing Reynolds v. Bridgestone/Firestone, 989 F.2d 465,

471 (11th Cir. 1993) (holding that tire rim manufacturer

liable for injuries caused by exploding tire made by a

third party, because if “the manufacturer knows or should

know that the goods can create danger when used in

their customary manner, the manufacturer must exercise

reasonable diligence to make such danger known to the

persons likely to be injured by the product.”)).

V. The assumptions underlying petitioners’ assertion

that a manufacturer cannot control the risks associated

with every product that might foreseeably be used in

conjunction with its own product, Pet.Br. 44-45, are fully

addressed by the Third Circuit’s rule. The rule imposes

a duty only when a manufacturer knew or reasonably

could have known (1) that asbestos is hazardous; and

(2) “its product will be used with an asbestos-containing

part” because (a) the manufacturer originally sold its

machine with an asbestos part it reasonably expected to be

replaced over the product’s lifetime, (b) “the manufacturer

specifically directed that the product be used with an

asbestos-containing part, or (c) the product required an

asbestos-containing part to function properly.” Pet.App.

15a-16a. Petitioners were in the best position to warn of

the hazards arising from use of their products, both from

a practical perspective (they sold their products with

maintenance manuals), and from an economic perspective.

Petitioners designed their machinery to require asbestos

parts, profited from the sale of this integrated machinery,

and passed on to their customers the cost of insurance for

future harms arising from use of their machines.

VI. Petitioners’ contention that the Navy would not

allow them to warn has no relevance to the question

presented. The government contractor defense is not

before this Court. See Boyle v. United Technologies Corp.,

487 U.S. 500 (1988). Moreover, the narrow issue of what

the Navy did or did not do in this case has no relevance

to the global question of whether under general maritime

law a manufacturer has a duty to warn of dangers arising

from use of its product. And in any event, respondents’

evidence to the contrary must be credited over petitioners’

competing evidence at summary judgment.

VII. In essence, the Third Circuit’s test is an

“inevitability” test that provides clear guidelines to

courts and litigants, while simultaneously adhering to

this Court’s maritime precedent imposing a simple rule

of reasonable care under the circumstances. It balances

maritime law’s goals of providing “special solicitude” to the

sailor based on uniform rules. Petitioners’ contention that

this Court should abandon the concept of foreseeability

in negligence law would upend a century of this Court’s

jurisprudence and create chaos across every area of

maritime law in which principles of negligence, proximate

cause (including superseding cause), and foreseeability are

routinely applied by the courts. Because petitioners were

in the best position to warn, test, and insure against the

foreseeable harm arising from the use and maintenance

of their own machinery, this Court should affirm.

ARGUMENT

The Third Circuit’s holding is compelled by this

Court’s maritime precedent.

A. Maritime law has long recognized negligence,

including its foreseeability test.

This case arises under federal maritime law. See

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

Co., 513 U.S. 527, 536 (1995). “With admiralty jurisdiction

comes the application of substantive admiralty law.”

East River, 476 U.S. at 864. “Absent a relevant statute,

the general maritime law, as developed by the judiciary,

applies.” Id. “Drawn from state and federal sources,

general maritime law is an amalgam of traditional

common-law rules, modifications of those rules, and newly

created rules.” Id. at 864-865. Petitioners concede that no

maritime statute governs this case. Pet.Br. 18. Thus, the

issue presented turns purely on general maritime law.

This Court has developed a body of maritime tort

principles. East River recognized “products liability,

including strict liability, as part of the general maritime

law.” East River, 476 U.S. at 865. East River held that “[t]o

the extent that products actions are based on negligence,

they are grounded in principles already incorporated into

the general maritime law,” including a duty of reasonable

care under the circumstances. Id. (citing Kermarec, 358

U.S. at 632).

“The general maritime law has recognized the tort

of negligence for more than a century . . . .” Norfolk

Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811,

820 (2001). This Court has repeatedly held that general

maritime negligence, though derived from common law

negligence, is uniquely maritime in nature. See, e.g., id.

at 815 (maritime negligence “is no less a distinctively

maritime duty than seaworthiness: The common-law

duties of care have not been adopted and retained

unmodified by admiralty, but have been adjusted to fit

their maritime context”); Moragne, 398 U.S. at 386-87

(“Maritime law had always . . . been a thing apart from

the common law.”); Kermarec, 358 U.S. at 630 (“The

issue must be decided in the performance of the Court’s

function in declaring the general maritime law, free from

inappropriate common-law concepts.”).

B. Petitioners’ proposed blanket immunity is

antithetical to maritime law.

Petitioners’ request that this Cour t abandon

Kermarec’s reasonable care standard, principles of

foreseeability, and solicitude for the welfare of sailors

would upend general maritime negligence law.

Maritime negligence law applies a duty of

reasonable care under the circumstances

of each case.

First, as set forth above, since this Court decided

Kermarec nearly sixty years ago, all general maritime

negligence cases have been held to a simple, uniform duty

of “reasonable care under the circumstances of each case.”

Kermarec, 358 U.S. at 632.

This Court expressed a clear intent that products

liability claims sounding in negligence would be held to

the same Kermarec standard as any other negligence case.

When this Court recognized maritime strict products

liability claims in East River, it stated, “to the extent

that products actions are based on negligence, they are

grounded in principles already incorporated into the

general maritime law.” East River, 476 U.S. at 866 (citing

Kermarec, 358 U.S. at 632). Petitioners ignore principles of

stare decisis and ask this Court to reject this longstanding

precedent to carve out a special exception just for them.

Deviating from the simple Kermarec negligence standard

would impair maritime uniformity.

Maritime law holds that a product is the

entire “integrated package,” including its

asbestos parts and maintenance manual.

Second, petitioners’ claim that the “product” is not

their integrated product — but instead only the necessary

and identical replacement asbestos parts — subverts this

Court’s holding in East River that machines are to be

judged as an “integrated package,” and not deconstructed

to their “component parts.” East River, 476 U.S. at 867.

To the extent this case has anything to do with the

identity of the product, as opposed to petitioners’ conduct,

the products sold by petitioners were the operating

machines, with all their requisite parts and their required

maintenance manuals. The replacement asbestos parts

were not “added” later unbeknownst to petitioners. Pet.

Br. 3. Petitioners specified asbestos parts so that their

machines would work and sold the asbestos parts with

the original integrated product.

Petitioners seek to overturn East River’s “integrated

product” rule in favor of a special carve-out by which

courts must disassemble petitioners’ machines into a

pile of individual component parts. A rule that carves

out specific necessary parts from integrated machines

and defines them as the only “real” products constitutes

“conceptual distinctions [that] would be foreign to its

traditions of simplicity and practicality.” Kermarec, 358

U.S. at 634. This, likewise, would impair maritime law’s

uniform integrated package rule.

Blanket immunity for petitioners would

unfairly require shipyards and ship

owners to pay for petitioners’ negligence.

Third, as a policy matter, petitioners’ rule of blanket

immunity would unduly burden maritime commerce and

result in a heavier burden on core maritime actors—

shipyards and ship owners. Currently, both shipyards and

ship owners may be held liable in negligence for injuries

caused by asbestos products installed on board their ships,

even if those products were manufactured by others,

including petitioners. See e.g., Savoie v. Huntington

Ingalls, Inc., 817 F.3d 457, 459 (5th Cir. 2016), cert. denied,

137 S. Ct. 339 (2016) (shipyard); Miller v. Am. President

Lines, Ltd., 989 F.2d 1450, 1453 (6th Cir. 1993) (ship

owner). The same district court judge who presided over

this case found that shipyards are subject to Kermarec’s

duty of reasonable care under the circumstances in

negligent failure to warn claims arising from exposure

to products manufactured by others and installed at the

shipyard. Filer v. Foster Wheeler LLC, 994 F. Supp. 2d

679, 693 (E.D. Pa. 2014).

To avoid absorbing the full amount of damages in

such cases, shipyards and ship owners routinely file

cross-claims and third-party claims against defendants,

including petitioners, who manufactured and supplied the

machines giving rise to the asbestos exposure. See, e.g.,

Miller, 989 F.2d at 1453; Vaughn v. Farrell Lines, Inc.,

937 F.2d 953, 958 (4th Cir. 1991) (approving noncontractual

indemnity claim by ship owner against Foster Wheeler). If

this Court grants petitioners’ blanket immunity, shipyards

and ship owners will not be able obtain noncontractual

indemnity or contribution from petitioners. Rather than

spreading the cost amongst all responsible parties,

petitioners’ rule would unfairly concentrate liability on

those who did not actually supply the machines that

required use of asbestos parts.

This impact would extend far beyond the facts of

this case. Consider, for instance, an industrial table saw

manufacturer who provides a saw to a shipyard. Such

saws normally contain warnings and safety devices to

protect people from the blade. A saw blade, however,

is a wear item that must routinely be replaced. If the

shipyard purchases an identical replacement blade —as

specified by the saw manufacturer — from an aftermarket

supplier, does that mean that the saw manufacturer no

longer has a duty to warn of the expected hazards of its

saw? Is a nail gun manufacturer absolved of any duty to

warn of the foreseeable hazards of its own nail gun when

used as intended and expected with nails that the gun

manufacturer specified but did not supply?

Also consider Foster Wheeler’s economizers, which

Foster Wheeler sold with the original asbestos gaskets

sealed inside and an additional 992 spare gaskets. JA 383384. When gasket number 993 is installed, does Foster

Wheeler’s duty to warn vanish? And if Foster Wheeler

had included warnings in its maintenance manual and

on its machine for its original gaskets and the 992 spare

gaskets, should it now remove those warnings because

the 993rd gasket — identical in all respects and giving

rise to the exact same hazard — happened to come from

an aftermarket supplier?

Solicitude for sailors is not an “outdated”

policy.

Finally, maritime law holds that “‘it better becomes

the humane and liberal character of proceedings in

admiralty to give than to withhold the remedy, when

not required to withhold it by established and inflexible

rules.’” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.

199, 213 (1996) (citing Moragne, 398 U.S. at 387 (quoting

The Sea Gull, 21 F.Cas.909, 910 (C.C.Md. 1865))). While

the result urged by respondents is not dependent upon

this long established doctrine, it would be perverse if the

doctrine were jettisoned in this case in favor of a rule

far more restrictive than the prevailing law on land. See

Section III infra.

Moreover, petitioners’ claim that maritime law no

longer requires a special solicitude for sailors because

the seas have become safe is unsupported by the facts.

For example, commercial fishing remains “one of the

most dangerous occupations in the United States.”

Centers for Disease Control and Prevention, Morbidity

and Mortality Weekly Reporter, 59(27);842-845 (July 16,

2010), available at https://www.cdc.gov/mmwr/preview/

mmwrhtml/mm5927a2.htm (last visited Aug. 19, 2018).

The relative risk for increased deaths among commercial

fishermen as compared with all United States workers

is staggering: “During 1992-2008, an annual average

of 58 reported deaths occurred (128 deaths per 100,000

workers)[ ], compared with an average of 5,894 deaths

(four per 100,000 workers) among all U.S. workers.” Id.

Yet based on nearly 85-year-old dicta in Warner v.

Goltra, 293 U.S. 155, 162 (1934), petitioners contend that

solicitude for maritime workers is an “outdated” policy

from a bygone era. Pet.Br. 34-35. Petitioners fail to explain

why, if this policy is allegedly no longer valid, this Court

has continued to apply it for the last 125 years. As noted

above, in both Moragne and Yamaha this Court based its

unanimous decisions heavily upon this policy. See Yamaha,

516 U.S. at 213; Moragne, 398 U.S. at 387; see also Am.

Exp. Lines, Inc. v. Alvez, 446 U.S. 274, 281-82 (1980);

Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 583 (1974).

In The Max Morris v. Curry, 137 U.S. 1, 14-15 (1890),

this Court unanimously rejected a strict contributory

negligence rule on the principle that “the more equal

distribution of justice, the dictates of humanity, the

safety of life and limb, and the public good, will be best

promoted[.]” Id.; see also Pope & Talbot v. Hawn, 346 U.S.

406, 411 (1953). In 1959, this Court unanimously rejected

complex and differing standards of care based on the

identity or status of the parties at issue in the case and

adopted a simple, uniform “duty of reasonable care under

the circumstances of each case” for all negligence actions.

Kermarec, 358 U.S. at 631.

In 1970, this Court unanimously rejected the

traditional common law proscription against wrongful

death claims, basing its decision in part on maritime law’s

“humane and liberal nature” and “special solicitude for

the welfare of those men who undertook to venture upon

hazardous and unpredictable sea voyages.” Moragne, 398

U.S. at 387. In 1996, this Court unanimously rejected an

attempt to limit damages available for a maritime casualty

because “it better becomes the humane and liberal

character of proceedings in admiralty to give than to

withhold the remedy, when not required to withhold it by

established and inflexible rules.” Yamaha Motor Corp., 516

U.S. at 213 (internal citations omitted). In 2001, this Court

unanimously rejected a distinction between death claims

for unseaworthiness and negligence, based largely on

commonsense “notions of justice” and simplicity. Garris,

532 U.S. at 816. In these cases, this Court gave effect to

maritime law’s humane solicitude for maritime workers

and preference for justice and simplicity.

Even cases that ultimately ruled against extension of

a maritime remedy recognized the continuing validity of

this policy. For instance, in Miles v. Apex Marine Corp.,

498 U.S. 19 (1990), this Court noted that “admiralty courts

have always shown a special solicitude for the welfare of

seamen and their families.” Id. at 36 (citing Moragne,

398 U.S. at 387 (quoting Chief Justice Chase in The Sea

Gull, 21 F. Cas. 909, 910 (No. 12,578) (CC Md. 1865)), and

Gaudet, 414 U.S. at 583). However, because Congress had

placed limits on recovery in survival actions, the Court

was bound to follow the governing statute: “We sail in

occupied waters.” Miles, 498 U.S. at 36. In contrast,

petitioners admit that no statutes or inflexible rules are

implicated in this case. Because this Court is not sailing

in “occupied waters,” there is no obstacle to giving rather

than withholding the remedy in this case. Yamaha, 516

U.S. at 213.

Under maritime law, there was no superseding

cause.

Petitioners do not dispute that (i) they had a duty to

warn the initial users of their machines of the danger of

the asbestos-containing components that were included

with their products when sold; (ii) they had a duty to

warn all subsequent users of their machines – so long

as the necessary asbestos parts being removed were

supplied by petitioners; and (iii) their machines required

replacement of asbestos components with substantially

identical asbestos components. Yet, petitioners argue

that an intervening condition arose that relieves them of

liability for the hazards inherent in the normal, intended

maintenance of their machines.

This is a thinly veiled argument that the replacement

of the original asbestos gasket, packing or insulation

constituted a superseding cause that excused petitioners’

failure to warn at the time they sold their machines, spare

parts and maintenance manuals to the Navy. See e.g.,

Exxon Co. v. Sofec, 517 U.S. 830 (1996). In Sofec, Justice

Thomas, writing for a unanimous Court, held that the

doctrine of superseding cause applied to products liability

claims under maritime law: “The doctrine of superseding

cause is applied where the defendant’s negligence in fact

substantially contributed to the plaintiff’s injury but the

injury was actually brought about by a later cause of

independent origin that was not foreseeable.” Sofec, 517

U.S. at 837 (emphasis added).

Petitioners cannot claim that the use of replacement

asbestos parts in their machines was “not foreseeable”

when their machines required asbestos parts to operate

and their maintenance manuals specified asbestos parts

and directed their repeated replacement. The predictable

replacement of asbestos-containing component parts here

does not constitute an unforeseeable superseding cause

that breaks the chain of causation any more than refilling

the gas tank of the exploding Ford Pinto constitutes a

superseding cause of the Pinto’s negligent design. See

Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348, 359

(Cal. Ct. App. 1981). Gas was required for the Pinto to

run, just like asbestos components were required for

petitioners’ machines to operate. But the Pinto had been

refilled many times before the gas tank exploded, just as

the asbestos components had been replaced many times

before Mr. DeVries and Mr. McAfee were exposed. Neither

changed the defective condition of the product itself —

the Pinto in the first example, the machine in this case

— to create a hazard “of independent origin that was not

foreseeable.” Rather, both left the product in exactly the

same dangerous condition that it was in when it was first

delivered to the purchaser.

Finally, this Court’s decision in Sofec and many other

cases demonstrates that this Court has not considered

foreseeability to be an “unworkable” rule in maritime

cases. Pet.Br. 14. Indeed, in both Sofec and more recently

in Staub v. Proctor Hosp., 562 U.S. 411 (2011), this Court

had no difficulty applying the doctrine of superseding

cause based on foreseeability.

In maritime cases, this Court has clearly

distinguished between property damage and

personal injury claims.

Finally, petitioners contend that maritime law

should not distinguish between contract and personal

injury cases. Pet.Br. 35. But East River held that there

is stronger justification for the imposition of a tort duty

when the injury is to the person (as opposed to when a

product injures only itself), because when a person is

injured, the “cost of an injury and the loss of time or

health may be an overwhelming misfortune,” and one the

person is not prepared to meet. East River, 476 U.S. at

871 (quoting Escola v. Coca Cola Bottling Co., 24 Cal. 2d

453, 462 (1944)). In contrast, in contract law, the parties

may set the terms of their own agreements. East River,

476 U.S. at 872-73. “Since a commercial situation generally

does not involve large disparities in bargaining power, we

see no risk to intrude into the parties’ allocation of the

risk.” Id. at 873 (internal citations omitted). This is not a

contract case.

II. The Third Circuit’s test accords with maritime law.

A test based on reasonable care under the

circumstances of each case accords with

maritime principles.

The test adopted by the Third Circuit in this case

accords with traditional maritime doctrine. The Third

Circuit rejected the concept of unlimited liability whereby

a defendant might be held liable whenever the use of

asbestos in connection with its product was “merely”

foreseeable. The Third Circuit also rejected the rule that

“a defendant is never liable when the material containing

asbestos was supplied by a third party.” Quirin, 17. F. Supp.

3d at 769. As in Quirin, the Third Circuit followed the

“middle road,” finding a duty “where the use of asbestoscontaining materials was specified by a defendant, was

essential to the proper functioning of the defendant’s

product, or was for some other reason so inevitable that,

by supplying the product, the defendant was responsible

for introducing asbestos into the environment at issue.”

Quirin, 17 F. Supp. 3d at 769-70; Pet.App. 15a-16a.

This balanced rule properly applies traditional

principles of tort law (limiting liability based on

foreseeability), and maritime law’s longstanding “duty

of reasonable care under the circumstances of each

case.” Kermarec, 358 U.S. at 631. Notably, this Court in

Kermarec did not find analyzing the circumstances of

each case in a negligence claim antithetical to maritime

law’s principles; on the contrary, the Court held that this

accorded with maritime law’s “traditions of simplicity and

practicality.” Id. at 631.

Moreover, contrary to petitioners’ parade of horribles

that this “free-wheeling” approach would provide a “mess”

for the lower courts (Pet.Br. 43), the Third Circuit’s test

is simple:

First, did the manufacturer have actual or constructive

knowledge that asbestos is hazardous? If yes, then continue

to the second part of the test. If not, there is no duty.

Second, did the manufacturer know or should the

manufacturer have known that its product would be

used with asbestos-containing parts based on its own

affirmative conduct? If yes, then there is a duty to warn.

If not, there is no duty.

Other recent maritime cases have adopted this “middle

road” test, which requires that the manufacturer take an

active role in incorporating the asbestos component into

the product before a duty arises. See Osterhout v. Crane

Co., 2016 WL 6310765, at *3 (N.D.N.Y. Oct. 27, 2016); Bell

v. Foster Wheeler Energy Corp., 2016 WL 5780104, at *6

(E.D. La. Oct. 4, 2016); Hedden v. CBS Corp., 2015 WL

5775570, at *14 (S.D. Ind. Sept. 30, 2015); Kochera v. Foster

Wheeler, LLC, 2015 WL 5584749, at *4 (S.D. Ill. Sept.

23, 2015); Andrews v. 3M Co., No. 2:13-cv-2055, 2015 WL

12831315, at *6 (D.S.C. May 22, 2015), on reconsideration,

sub nom. Andrews v. CBS Corp., 2015 WL 12831342

(D.S.C. June 18, 2015), Chesher v. 3m Co., 234 F. Supp.

3d 693 (D.S.C. 2017)

B. Lindstrom is limited to strict products liability,

and has no bearing on negligent failure to

warn claims.

The Lindstrom line of cases upon which petitioners

rely derive their “bright line rule” based on the principle

that, if the exposure to the asbestos arose from a third

party’s component within the manufacturer’s product,

then this negates causation. While Lindstrom’s rule may

give rise to a conflict in maritime law under principles of

strict liability, in a negligence cause of action, which is the

sole issue before this Court, Lindstrom is particularly

problematic to apply. See Hedden, 2015 WL 5775570,

at *11 (citing Lindstrom for the general principles of

causation but nevertheless holding that a defendant may

be liable under the circumstances outlined in Quirin);

Kochera, 2015 WL 5584749, at *3 (same); Andrews,

2015 WL 12831315, at *6 (distinguishing Lindstrom as

“a manufacturing defect case [that] did not consider or

discuss a failure-to-warn claim”).

First, while the district court found that Lindstrom’s

rule applied to both product liability and negligence

claims, Pet.App. 34a n. 11, the Lindstrom decision itself

contains no discussion of failure-to-warn claims. Andrews,

2015 WL 12831315, at *6 (distinguishing Lindstrom as

“a manufacturing defect case [that] did not consider or

discuss a failure-to-warn claim”); Quirin, 17 F. Supp. 3d

at 768 (same). Indeed, the word “duty” does not appear

in the opinion.

Second, Lindstrom’s analysis does not hold in a

negligence cause of action, which is focused on the

defendant’s conduct. Chesher v. 3M Co.,, 234 F. Supp.

3d 693, 702 (D.S.C. 2017). “In that situation, the breach

does not arise out of the creation of the product itself

but instead out of the manufacturer’s failure to warn of

the danger the product creates.” Id. (citing Restatement

(Second) of Torts § 388 (1965)). In such cases, the plaintiff’s

burden is to prove a “causal link between his injury and the

manufacturer’s omission, not the product itself.” Chesher,

234 F. Supp. 3d at 693. Thus even if this Court were to

treat this issue as a causation issue, the predicate for

the causal link shifts depending on whether it is a strict

liability claim (a defective product) or a negligence claim

(an actor’s failure to exercise reasonable care under the

circumstances).

Finally, Lindstrom either failed to consider, or

ignored, maritime law’s integrated product doctrine. It

is only because Lindstrom assumed that the “product”

in question was the deconstructed asbestos-containing

subcomponent, and not the integrated machine itself, that

Lindstrom found that there was no causation between the

“product” and the injury.

III. The Third Circuit’s test accords with the prevailing

law on land.

In addition to aligning with general maritime law, the

Third Circuit’s test accords with “the law prevailing on the

land.” Igneri v. Cie. de Transports Oceaniques, 323 F.2d

257, 259 (2d Cir. 1963); see also Yamaha, 516 U.S. at 202.

A clear majority of the states adopt the same

rule as the Third Circuit.

“[T]he recent trend in state court asbestos litigation

has been to recognize limited circumstances in which a

manufacturer can have duties to warn regarding a product

that the manufacturer did not make, sell, or otherwise

control.” Bell, 2016 WL 5780104, at *2 (E.D. La. Oct. 4,

2016).

Indeed, the overwhelming majority of state court

decisions apply essentially the same test as the Third

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

458, 471 (N.Y. 2016) (“[T]he manufacturer of a product has

a duty to warn of the danger arising from the known and

reasonably foreseeable use of its product in combination

with a third-party product which, as a matter of design,

mechanics or economic necessity, is necessary to enable

the manufacturer’s product to function as intended.”);

McKenzie v. A.W. Chesterton Co., 373 P.3d 150, 160-62 (Or.

2016), review denied, 381 P.3d 841 (2016) (rejecting “bare

metal” defense where it was foreseeable that plaintiff

would be exposed to asbestos-containing replacement

components); May v. Air & Liquid Sys. Corp., 129 A.3d

984, 1000 (Md. 2015) (“[A] manufacturer will have a duty

to warn under negligence and strict liability when (1)

its product contains asbestos components, and no safer

material is available; (2) asbestos is a critical part of the

pump sold by the manufacturer; (3) periodic maintenance

involving handling asbestos gaskets and packing is

required; and (4) the manufacturer knows or should know

the risks from exposure to asbestos.”); Schwartz v. Abex

Corp., 106 F. Supp. 3d 626, 655 (E.D. Pa. 2015) (“[U]nder

Pennsylvania law, a product manufacturer has a duty to

warn about the asbestos hazards of a component part later

used with its product, which it neither manufactured nor

supplied . . . ., if the manufacturer knew its product would

be used with that type of asbestos-containing component

. . . .”); Garvin v. AGCO Corp., 2014 WL 8628438, at *7-8

(S.C. Ct. C.P. December 10, 2014) (approving Quirin

and holding that a manufacturer may be liable for harm

caused by asbestos-containing replacement parts when

“[the] manufacturer recommends, specifies, or requires

that asbestos gaskets and packing be replaced with like

materials”); Macias v. Saberhagen Holdings, Inc., 282

P.3d 1069 (Wash. 2012) (imposing liability where a product

“inherently and invariably pose[s] [a] danger of exposure

to asbestos.”); Whelan v. Armstrong International,

Inc., 2018 WL 3716036 at *1 (Sup. Ct. of N.J., Aug. 6,

2018) (“We conclude that a duty to warn exists when the

manufacturer’s product contains asbestos components,

which are integral to the function of the product, and the

manufacturer is aware that routine periodic maintenance

of its product will require the replacement of those

components with other asbestos-containing parts.”).

If this Court chooses to borrow a landside rule, the

Third Circuit’s rule comports with the prevailing rule on

land. This rule is the rule least likely to cause a disparity

of treatment between landside and maritime workers,

and the rule most likely to vindicate maritime law’s

core policies of simplicity, uniformity, and the humane

solicitude for maritime workers.

B. The two state cour t decisions cited by

petitioners do not preclude the application of

the Third Circuit’s test.

The state court decisions that petitioners cite in

support of the “bare metal” defense are not inconsistent

with the Third Circuit’s test. Pet.Br. 29 (citing Braaten

v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008), and

O’Neil v. Crane Co., 266 P.3d 987 (Cal. 2012)). First, both

decisions “stopped short of foreclosing the availability of a

failure-to-warn claim . . . where (1) the defendant actually

incorporated asbestos-containing components into its

original product . . . and (2) the defendant ‘specified’ the

use of asbestos-containing replacement components, or

such components were ‘essential to the proper functioning’

of the product.” Chesher, 234 F. Supp. 3d at 704.

Braaten expressly declined to analyze the facts at

issue in this case. “[W]e need not and do not reach the

issue of whether a duty to warn might arise with respect

to the danger of exposure to asbestos-containing products

specified by the manufacturer to be applied to, in, or

connected to their products, or required because of a

peculiar, unusual, or unique design.” Braaten, 198 P.2d

at 496. Rather, Braaten recognized that while the law

“generally does not require a manufacturer to study and

analyze the products of others and warn users of the risks

of those products,” the “general rule does not apply to a

manufacturer who incorporates a defective component

into its finished product.” Braaten, 198 P.3d at 498 n.7.

The manufacturer of a finished, integrated product

“derives an economic benefit from the sale of the product

incorporating the defective component and has the ability

to test and inspect the component when it is within the

assembler’s possession, and by including the component

in its finished product represents to the consumer and

ultimate user that the component is safe.” Id.

Subsequently, Macias v. Saberhagen Holdings,

Inc., 282 P.3d 1069 (Wash. 2012), held that respirator

manufacturers were liable for exposure to asbestos

dust from products they did not sell because they

“manufactured products that inherently involved the

danger of exposure to asbestos when the products were

used exactly as intended and for the purpose for which

they were intended.” Id. at 1077, 1079. Macias rejected

an “absolute rule” that if the “source of the hazardous

substance was not the manufacturer’s own product, no

duty can arise.” Macias, 282 P.3d at 1080. Thus, as the

district court below recognized, in Macias the Supreme

Court of Washington “retreated” from its previous

adoption of the “bare metal” defense in Braaten, Pet.App.

23a n.4, and Braaten’s continued viability is questionable,

at best.

Similarly, O’Neil expressly did not impose an absolute

prohibition on equipment manufacturers’ liability for

injuries arising from use of their equipment involving

asbestos-containing replacement parts. In O’Neil, the

Court rejected the principle that “mere compatibility”

with asbestos parts would impose a duty to warn, but then

explained that a “stronger argument for liability might

be made in the case of a product that required the use of

a defective part in order to operate. In such a case, the

finished product would inevitably incorporate a defect.

One could argue that replacement of the original defective

part with an identically defective one supplied by another

manufacturer would not break the chain of causation.”

O’Neil, 266 P.3d at 996 n.6. The Third Circuit’s holding is

explicitly restricted to the circumstances contemplated by

footnote 6 of the O’Neil decision. Pet.App. 15a-16a.

Petitioners’ rule would leave maritime workers

worse off than land-based workers.

Petitioners claim that their rule would “leave[] sailors

no worse off than any tort litigant.” Pet.Br. 37. That is not

true. Take two shipyard workers who contract asbestos

disease from exposures at Sparrows Point Shipyard in

Maryland. One worker repairs boiler components that are

brought ashore to the boiler shop. His case is governed by

May, 129 A.3d at 1000, which rejected petitioners’ rule.

The other worker repairs boiler components that are left

in place on ships on navigable waters. That worker’s case

is governed by the maritime rule this Court adopts. Under

petitioners’ rule there would be a tremendous disparity in

the treatment of these two otherwise identically situated

workers.

Such disparity would not be limited to Maryland;

the same would be true of maritime workers and Navy

service members in New York, Rhode Island, Washington,

New Jersey, Oregon and Wisconsin, at the least. See In

re N.Y.C. Asbestos Litig., 59 N.E.3d at 483; Sweredoski v.

Alfa Laval, Inc., No. PC-2011-1544, 2013 WL 5778533, at

*7 (R.I. Super. 2013); Macias, 282 P.3d at 1080; Hughes

v. A.W. Chesterton Co., 89 A.3d 179, 189 (N.J. Super. Ct.

App. Div. 2014), cert. denied, 101 A.3d 1082 (N.J. 2014);

McKenzie, 373 P.3d at 155, review denied sub nom.

McKenzie v. A. W. Chesterton Co., 381 P.3d 841 (Or. 2016);

see Spychalla v. Boeing Aerospace Opns. Inc., No. 11CV-497, 2015 WL 3504927, at *4 (E.D. Wis. June 3, 2015).

Even the Supreme Court in California did not go as far as

petitioners ask this Court to go but, instead, ruled that a

manufacturer may be liable if its “own product contributed

substantially to the harm, or the defendant participated

substantially in creating a harmful combined use of the

products.” O’Neil, 266 P.3d at 991.

IV. The Third Circuit’s test accords with traditional

common-law tort principles.

Traditional principles of tort law impose a duty

to warn of foreseeable dangers of a product.

The Third Circuit’s test aligns with not only general

maritime law and the predominant law on the land, but

also traditional common-law tort principles. For over a

hundred years, this Court has recognized that “[i]t is well

settled that a man who delivers an article which he knows

to be dangerous or noxious, to another person, without

notice of its nature and qualities, is liable for any injury

which may reasonably be contemplated as likely to result,

and which does in fact result, therefrom, to that person or

any other who is not himself in fault.” Waters-Pierce Oil

Co. v. Deselms, 212 U.S. 159 (1909); see also Restatement

(Second) of Torts § 388 (1965).

And since MacPherson v. Buick Motor Co., 111

N.E. 1050 (N.Y. 1916), the law has recognized that the

justification for this rule arises from the “foreseeability

of harm if proper care is not used;” the “representation

of safety implied in the act of putting the product on

the market;” and “the economic benefit derived by the

manufacturer from the sale and subsequent use of

the chattel.” Restatement Second (Torts) Section 395

comment (b). Paraphrasing Justice Cardozo, “It was a

manufacturer of [machines]. It was responsible for the

finished product. It was not at liberty to put the finished

product on the market without subjecting the component

parts to ordinary and simple tests.” MacPherson, 111

N.E. at 1051.

By 1945, general maritime law adopted MacPherson’s

holding that a manufacturer is responsible for the

foreseeable harms arising from use of its product. Sieracki

v. Seas Shipping Co., 149 F.2d 98, 100 (3d Cir. 1945), aff’d,

328 U.S. 85 (1946).

The principle that duty arises from, and is limited

by, foreseeability is hornbook law. The McKown case

cited by petitioners, Pet.Br. 41, reinforces this concept.

The McKown court stated, “Thus, we have held that

foreseeability can be a question of whether duty exists and

also a question of whether the harm is within the scope of

the duty owed.” McKown v. Simon Property Group, Inc.

344 P.3d 661, 764 (Wash. 2015).

Petitioners attempt to rely on the Restatement

(Second) of Torts §§ 314-315 for the rule that liability is

limited to “those within a product’s chain of distribution”

is misplaced. Pet.Br. 13. Those sections of the Restatement

have nothing to do with a manufacturer’s liability for the

hazards arising from the use of its product. Those sections

are limited to the duty to render aid to a person at risk.

See, e.g., Restatement (Second) of Torts § 314 at cmt. c,

Illus. 1 (“A sees B, a blind man, about to step into the street

in front of an approaching automobile.”); Restatement

(Second) of Torts § 315 at cmt. b (“Thus if the actor is

riding in a third person’s car merely as a guest, he is not

subject to liability to another run over by the car even

though he knows of the other’s danger and knows that the

driver is not aware of it, and knows that by a mere word,

recalling the driver’s attention to the road, he would give

the driver an opportunity to stop the car before the other

is run over.”).

B. The manufacturer’s duty of care extends to

warning about foreseeable dangers arising

from its integrated product.

A manufacturer of a product must exercise reasonable

care to warn of the hazards arising from the use of

its product, including when those hazards arise from

parts the manufacturer did not make but necessarily

incorporated into its product. This principle is explicitly

illustrated in the second Restatement. See Restatement

(Second) of Torts § 388, cmt. f (“The particulars in which

reasonable care is usually necessary for protection of those

whose safety depends upon the character of chattels are

. . . the selection of material and parts to be incorporated

in the finished article . . .”).

Contrary to petitioners’ sweeping statement that

“[t]ort law has never permitted such suits,” Pet.Br. 24,

petitioner Ingersoll Rand was the defendant in precisely

this type of case. In Huynh v. Ingersoll-Rand, 20 Cal.

Rptr. 2d 293 (Cal. Ct. App. 1993), the court held Ingersoll

Rand liable for failing to adequately warn when the wrong

disc was affixed to an Ingersoll Rand pneumatic grinder,

causing it to explode, stating: “[a] clearer warning may

have alerted the employee who assembled these two

elements that they formed a dangerous combination . . .”

Id. at 300-01.

Petitioners’ own authorities do not support petitioners’

position, but instead demonstrate that tort law recognizes

a manufacturer’s duty to warn as to defective components

foreseeably used with its product. In Reynolds v.

Bridgestone/Firestone, 989 F.2d 465 (11th Cir. 1993), Pet.

Br. 13, the court held that tire rim manufacturer Firestone

was liable for the injuries caused by an exploding tire

manufactured by Goodyear, because it was foreseeable

to Firestone that there would be a mismatch as between

the tires used on its multi-piece rim system. The court

affirmed the same principle of law adopted by the Third

Circuit below: “If a manufacturer placed goods on the

market that are imminently dangerous when put to

their intended purpose and the manufacturer knows or

reasonably should know that the goods can create danger

when used in their customary manner, the manufacturer

must exercise reasonable diligence to make such danger

known to the persons likely to be injured by the product.”

Id. at 471; see also Baughman v. General Motors Corp., 780

F.2d 1131, 1132-33 (4th Cir. 1986) (noting “a manufacturer

can be fairly charged with testing and warning of dangers

associated with components it decides to incorporate

into its own product” but finding no liability because the

replacement rim deviated from the car manufacturer’s

specifications). These cases support application of the

Third Circuit’s rule under the facts of this case.

Likewise, Stark v. Armstrong World Indus., 21 F.

App’x 371, 381 (6th Cir. 2001), Pet.Br. 14, held that a design

defect claim against a boiler manufacturer, like Foster

Wheeler, was cognizable “if the defective attachments

manufactured by others were part of the boiler design and

were rendered unsafe due to the design.” Id. The reason

that Stark held that the plaintiff could not recover was

that, unlike in this case, the plaintiff made no showing that

the insulation at issue was part of the boiler’s design. Id.

Finally, petitioners cite cases in which the manufacturer

did not intend to integrate a dangerous component into its

product. These cases have no relevance to this case. Pet.

Br. 19 (citing Brown v. Drake-Willock Intern, Ltd., 209

Mich. App. 136 (1995) (Plaintiff injured by formaldehyde

in dialysis machines did not allege that “the dialysis

machines themselves were defective or dangerous,”

and use of formaldehyde was not necessary for the safe

operation of the dialysis machines)).

Petitioners negligently failed to warn that the

foreseeable, indeed the expected and intended, use of their

product would subject the user to danger. Petitioners’

“argument depends quite heavily on the assumption

that a component part . . . should be separated from the

product sold.” May, 446 Md. at 10. But the products at issue

are petitioners’ own machines that contained and were

intended to be used with asbestos components in order to

function. This is not just foreseeability; it is inevitability.

Whether a harm is a foreseeable consequence

of one’s actions is the foundation of this Court’s

negligence jurisprudence.

Foreseeability has been integral to this Court’s

negligence jurisprudence for over 100 years. See e.g.

Smith v. Bolles, 132 U.S. 125, 130 (1889) (“The ‘test is’

. . . ‘that those results are proximate which the wrongdoer, from his position, must have contemplated as the

probable consequence of his fraud of breach of contract.”

(emphasis added)).

Contrary to petitioners’ claim that “a foreseeabilitybased test for liability would prove unworkable,” Pet.Br.

14, this Court has repeatedly used a foreseeability analysis

across a wide spectrum of cases, largely operating to

limit, rather than expand, liability. See Husted v. A.

Philip Randolph Inst., No. 16-980, 2018 WL 2767661, at

*8 (U.S. June 11, 2018) (Alito, J., writing for the majority)

(citing Paroline v. U.S., 572 U.S. 434, 444-45 (2014)) (“If

a registrant, having failed to send back a return card,

also fails to vote during the period covering the next

two general federal elections, removal is the direct,

foreseeable, and closely connected consequence.”).

Consistent with the Third Circuit’s opinion, this

Court has long established that foreseeability applies not

only to duty, but also to the concept of proximate cause.

See Sofec, Inc., 517 U.S. at 838-39 (citing Restatement

(Third) of Torts: Liability for Physical and Emotional

Harm § 29 (“The concept of proximate causation is

applicable in both criminal and tort law, and the analysis

is parallel in many instances . . . Proximate cause is often

explicated in terms of foreseeability or the scope of the

risk created by the predicate conduct.”)); Lexmark Int’l,

Inc. v. Static Control Components, Inc., 572 U.S. 118,

133 (2014) (“The proximate-cause inquiry is not easy to

define, and over the years it has taken various forms;

but courts have a great deal of experience applying it,

and there is a wealth of precedent for them to draw

upon in doing so.”); Bridge v. Phoenix Bond & Indem.

Co., 553 U.S. 639, 656 (2008) (“If one’s fault happens to

concur with something extraordinary, and therefore

not likely to be foreseen, he will not be answerable for

such unexpected result.”). Indeed, in CSX Transp., Inc.

v. McBride, 564 U.S. 685, 718 (2011), the dissent took

the majority to task for not requiring a foreseeability

component in Jones Act causation analysis. Id. (Roberts,

CJ, dissenting) (noting that for the majority “it does not

matter that the ‘manner in which [the injury] occurred was

not ... foreseeable,’ ante, at 703 (internal quotation marks

omitted), so long as some negligence —any negligence at

all — can be established.”).

Finally, both the Second and Third Restatements

incorporate foreseeability into their negligence analysis.

See Restatement (Third) of Torts: Prod. Liab. § 2(c) (1998)

(noting that a product is defective if “the foreseeable risks

of harm posed by the product could have been reduced

or avoided by the provision of reasonable instructions

or warnings by the seller or other distributor, or a

predecessor in the commercial chain of distribution, and

the omission of the instructions or warnings renders

the product not reasonably safe”); see also Restatement

(Second) of Torts § 388 (1965) (a manufacturer of a product

has a duty to warn if the manufacturer “knows or has

reason to know” the product is “likely to be dangerous

for the use for which it is supplied . . .”). To claim that

foreseeability is not part of tort law or is an “unworkable”

concept is demonstrably wrong.

Petitioners are not innocent manufacturers of

innocuous components parts.

Petitioners attempt to co-opt the law on innocent

component s t o suppor t thei r a rg u ment that no

manufacturer is liable for another’s parts. Pet.Br. 13.

Petitioners’ authorities support the principle that a

manufacturer of a non-defective component part later

integrated into a defective product by another is not liable

for dangers of the completed product. Pet.Br. 19 (citing

Acoba v. General Tire, Inc. 986 P.2d 288, 305 (Haw. 1999)

(“Acoba submitted no evidence to show that the tire or the

inner tube failed during the accident or created the alleged

defect in the rim assembly that caused it to explode.”));

see also Childress v. Gresen Manu. Co., 888 F.2d 45, 49

(6th Cir. 1989) (“[U]nder Michigan law a component part

supplier has no duty, independent of the completed product

manufacturer, to analyze the design of the completed

product which incorporates the nondefective component

part”).

But petitioners are not “innocent” manufacturers of

harmless component parts incorporated into dangerous

finished products. Petitioners manufactured the integrated

finished product, which included everything necessary

for the operation of the machine, including the requisite

asbestos components, and the maintenance manual.

The component part doctrine, which applies to the

manufacturer of a non-dangerous component that is later

integrated into a finished product, is not applicable to this

case.

V. Petitioners are the parties best positioned to avoid

the loss.

Courts have recognized that the scope of a legal

duty is essentially a matter of policy. See In re N.Y.C.

Asbestos Litig., 59 N.E.3d at 469 (listing various policybased factors used to determine whether a duty exists

in a particular situation, including “the most reasonable

allocation of risks, [the] burdens and costs among the

parties and within society, ... economic impact, ... the

person [ ] best positioned to avoid the harm[,] ... the

public policy served by the presence or absence of a duty

and the logical basis of a duty.”); May, 129 A.3d at 994

(noting that “[a]t its core, the determination of whether

a duty exists represents a policy question of whether the

specific plaintiff is entitled to protection from the acts of

the defendant.” (quoting Gourdine v. Crews, 955 A.2d 769,

783 (Md. 2008))).

The assumptions underlying the proposition that

a manufacturer cannot control the risks associated

with every product that might foreseeably be used in

conjunction with their own products, Pet.Br. 14, are fully

addressed by applying the Third Circuit’s test. That

test requires that (i) the defendant knew or should have

known that asbestos is hazardous; and (ii) the defendant

“specified” the use of asbestos-containing replacement

components, or that such components were “essential

to the proper functioning” of the defendant’s product.

Pet.App. 15a-16a. A manufacturer cannot claim a lack

of control over the risks associated with the components

required to make its machine function, because under

these circumstances, those parts form the machine and

it is the machine, as the sum of its parts, that inevitably

causes the hazard. Petitioners “specified” the use of

asbestos-containing parts, and those parts were “essential

to the proper functioning” of petitioners’ own products.

Quirin, 17 F. Supp. 3d at 769, 771.

The Third Circuit’s “requirements serve to limit a

manufacturer’s liability to cases where the harm arises

from risks that are effectively incorporated into the

manufacturer’s product, though they may be borne by

a replacement component.” Chesher, 234 F. Supp. 3d at

709-10; see also May, 129 A.3d at 999 (“The necessary

replacement of asbestos components with identical

components cannot be said to constitute a substantial

modification.”).

This middle-road approach is economically sound

because “the manufacturer of the finished product

containing asbestos may well be better placed to warn

when compared to the manufacturer of an aftermarket

wear item.” Bell, 2016 WL 5780104, at *8. When the

manufacturer incorporates the parts into its integrated

product, the manufacturer is in a better position to control

for the risk of harm from its integrated product than the

part manufacturer. See Bell, 2016 WL 5780104, at *7 n.16.

This is because “the end user is more likely to interact

with the durable product over an extended period of time,

and hence he or she is more likely to inspect warnings on

that item or in associated documentation than to review

warnings supplied by the maker of the ‘wear item.’”

In re N.Y.C. Asbestos Litig., 59 N.E.3d at 472. This is

particularly true in the context of machinery sold to the

Navy because the manufacturer is required to provide a

maintenance manual.

Additionally, the manufacturer also derives a benefit

from the sale of such parts, “as the manufacturer is able

to sell its own product to users precisely because the third

party has sold to those users another item that is essential

to the product’s function.” In re N.Y.C. Asbestos Litig., 59

N.E.3d at 472. “Allowing equipment manufacturers to

reap profits conditioned on the proliferation of asbestoscontaining replacement components, while immunizing

them from liability relating to such components, creates

an incentive structure that fails to account for the costs

such manufacturers impose on society.” Chesher, 234 F.

Supp. 3d at 710; In re N.Y.C. Asbestos Litig., 59 N.E.3d at

473 (“‘[T]oday as never before the product in the hands

of the consumer is often a most sophisticated and even

mysterious article,’ and given the practical inability

of the users of modern products to detect the dangers

inherent in their operation, ‘from the standpoint of justice

..., responsibility should be laid on the manufacturer.’”

(quoting Codling v. Paglia, 298 N.E.2d 622, 627 (N.Y.

1973))).

Petitioners sold their machines to the Navy and to

civilian consumers containing and requiring the same

asbestos components, and petitioners purchased insurance

to defray the cost of liability for harms arising from

their products. The cost of that insurance coverage was

recouped by the manufacturers in the purchase prices

for their products. The cost to insurers for the current

liabilities was paid – in advance – in the form of premiums

that the insurers retained for decades before having to

pay on the risks they agreed to underwrite.

This is precisely the allocation of risk that tort law

is structured to achieve. Absolving petitioners will give

a windfall to them and their insurers at the expense

of the public as a result of (i) premium costs that were

passed on to the Navy, (ii) unrecouped Medicare and VA

medical costs, and (iii) potential contractual indemnity

costs owed by the Navy to shipbuilders who are saddled

with a higher share of the liability with no opportunity

to obtain contribution or indemnity from petitioners and

those similarly situated.

VI. The government contractor defense is not at issue.

Petitioners’ contention that the Navy would not allow

them to warn has no relevance to the question presented.

Specifically, the government contractor defense is not

before this Court. See Boyle v. United Technologies

Corp., 487 U.S. 500 (1988). Both the district court and

the Third Circuit declined to rule upon the government

contractor defense, and petitioners did not present the

defense for certiorari. Only petitioners CBS, Foster

Wheeler and Respondent GE raised this defense. The

district court specifically did not address it with regard

to any defendant. Pet.App. 70a CBS; Pet.App. 78a Foster

Wheeler; JA 780 GE. And the Third Circuit specifically

declined to address it as well, leaving it to the district

court to decide on remand. Pet.App. 16a-17a. This defense,

therefore, will be available to petitioners, even if this

Court rejects their instant request for blanket immunity

based on the “bare metal” defense.

Moreover, petitioners’ requested rule expressly

applies to all maritime cases including private shipyard

workers, merchant mariners, commercial fishers, and

any other person in a maritime trade to whom a maritime

negligence claim may apply. Petitioners do not request,

nor would maritime law’s desire for uniformity allow a

“Navy-only” rule. In those non-Navy cases, the Navy’s

knowledge, conduct and alleged position on warnings

does not apply.

Finally, the “facts” presented by petitioners for

their “Government made me do it” defense are, at best,

a battle of the experts. In re Joint E. and S. Dist. N.Y.

Asbestos Litig., 897 F.2d 626, 632 (2d Cir. 1990). In their

statement of the case, petitioners cite to the affidavits

of their expert witnesses—Adm. Horne, JA 22-89, Dr.

Betts, JA 90-223, and Mr. Senter JA 224-258—as though

each was unrebutted. However, respondents’ experts—

Messrs. Faherty, JA 480-485; 585-592, and Castleman,

JA 459-462, Dr. Frank, JA 596-744, and Capt. Woodruff

Resp.App.E 26a-138a—dispute both the factual bases

and the conclusions that petitioners’ experts advocate.

Neither side filed a motion challenging the qualifications

or methodology of these experts. Where there is a material

dispute among qualified experts concerning this issue,

it is inappropriate for the trial court to grant summary

judgment.

VII.The Third Circuit applied the correct rule,

and properly remanded for fur ther factual

determinations.

As demonstrated above, the Third Circuit’s standard

accords with this Court’s maritime precedent, settled

maritime principles of uniformity, simplicity and solicitude,

and the prevailing law of the land. This “expected and

intended” or “inevitability” test is simple to apply and is

consistent with those principles this Court has used across

a wide range of causes of action in order to ascribe, or in

most cases to limit, liability.

If this Court adopts petitioners’ unprecedented rule of

blanket immunity and rejects the uniform maritime duty of

reasonable care under the circumstances of each case, this

outlier holding would contradict countless of this Court’s

opinions upon which lower courts rely daily. Further, if

this Court rejects the use of foreseeability in negligence,

it will overturn decades of tort and maritime negligence

law applying foreseeability to analyze proximate cause,

superseding cause, and the scope of a duty.

Applying the Third Circuit’s test and this Court’s

summary judgment standard, see Anderson, 477 U.S. at

255, there is substantial record evidence that petitioners

violated their duty to warn because they (i) knew asbestos

is hazardous; (ii) knew their products would be used with

asbestos-containing parts; (iii) directed users to perform

tasks that would create asbestos dust, and (iv) failed to

warn of this known danger. The Third Circuit properly

left to the factfinder the resolution of the disputes of fact

between the parties and the ultimate question of whether

petitioners’ actions were negligent and a contributing

cause to respondents’ cancers. Respondents request that

this Court affirm.

CONCLUSION

For the reasons stated above, this Court should affirm.

Respectfully submitted,

Jonathan Ruckdeschel

The Ruckdeschel Law

Firm, LLC

8357 Main Street

Ellicott City, MD 21043

(410) 750-7825

ruck@rucklawfirm.com

William W.C. Harty

Patten, Wornom, Hatten

& Diamonstein

12350 Jefferson Avenue,

Suite 300

Newport News, VA 23602

(757) 223-4500

wharty@pwhd.com

Richard P. Myers

Counsel of Record

Robert E. Paul

A lan I. Reich

Patrick J. Myers

Paul, Reich & Myers, P.C.

1608 Walnut Street, Suite 500

Philadelphia, PA 19103

(215) 735-9200

rmyers@prmpclaw.com

Denyse F. Clancy

K azan, McClain, Satterley

& Greenwood

55 Harrison Street, Suite 400

Oakland, CA 94607

(877) 995-6372

dclancy@kazanlaw.com

Counsel for Respondents

APPENDIX

Appendix

A v. General Electric

APPENDIx A — DeVries,

et ux.

Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 269-3, Pages

28, 38-39, 43, 58-59, 60-62) (Motion for Summary

Judgment of CBS Corp.) (Plaintiff’s Discovery

Deposition, Pages 324, 350-351, 358, 397-398, 403-405)

COURT OF COMMON PLEAS

PHILADELPHIA COUNTY

NO. 3661

ASBESTOS CASE

JOHN B. DEVRIES AND ROBERTA G. DEVRIES,

Plaintiffs,

vs.

ALLEN-BRADLEY COMPANY, et al.,

Defendants.

WEDNESDAY, JANUARY 16, 2013

VIDEOTAPED DISCOVERY

Deposition of JOHN B. DeVRIES, taken pursuant to

notice, held at the offices of Veritext National Court

Reporting Company, 1801 Market Street, Suite 1800,

Philadelphia, Pennsylvania on the above date, beginning

at or about 10:15 a.m., before Kathleen Woods Logue,

Professional Reporter and Notary Public there being

present.

Appendix A

VERITEXT NATIONAL COURT

REPORTING COMPANY

MID-ATLANTIC REGION

1801 Market Street - Suite 1800

Philadelphia, Pennsylvania 19103

***

[324]Q. And who, that’s between ship crew or yard birds

or others, ripped out the insulation?

A. We’re talking about a time period -Q. In the first three months.

A. Before the ship went to the yard?

Q. Correct.

A. It had to be ship’s personnel.

Q. Okay. Do you know -- do you recall which ship’s

personnel they were at this point?

A. No.

Q. And were they under your command at this point yet?

A. They were.

Q. They were. As the main propulsion assistant they were

under your command; is that correct?

Appendix A

A. That is correct.

***

[350]Q. And as to the content of those blankets, do you

know what it was?

A. No.

Q. And as to who manufactured those blankets, do you

know who manufactured them? Did they have any label

or name on the blankets themselves?

A. No.

Q. Now, with respect to various signs and warnings or

indicators around the ship, I understand there were -- the

Navy used certain indicators as to types of pipes or types

of equipment; correct? There were painted markings on

some things?

A. Some were marked.

Q. Okay. Do you know who as between the Navy and the

manufacturers determined what markings would be on

such pieces of machinery or equipment?

A. Some equipment manuals from manufacturers as

General Electric specified the marking.

Q. Well, were these operational markings?

Appendix A

A. I do not recollect the words used or [351]symbols used.

Q. Did you ever run into a contradiction as the engineering

officer on the ship or otherwise between something stated

in the manufacturer’s manual and something stated in a

Navy document?

A. The manufacturer’s manuals came to me most often

as a Navy document.

Q. Oh, I see. And with respect to how they were reviewed

by the Navy before they got to you, I take it you do not

personally have knowledge?

A. I do not know.

Q. Now, when you were on the ship, you said earlier

it was at sea and it went to various places such as the

Mediterranean; correct?

A. Yes.

Q. And during the time it was in dry dock I understand

is that one of those dry docks which is not far from the

water on a Navy base? Is that correct?

A. When I mentioned dry dock at Davisville, Rhode Island

it was a floating dry dock, really what was a Seabee -***

[358]did, I take it you directed them to follow the

procedures in accord, as you have said many times,

Appendix A

with the combination of what was in the manufacturers’

manuals or what the Navy had trained you to do; correct?

A. Yes.

Q. And is it your understanding that the workers doing

that job were required to do what you as the Naval officer

told them to do?

A. Yes.

Q. And with respect to masks, respirators or dust

protection, did you give any special orders during that

Monte Carlo repair?

A. No.

Q. Did you see any contradiction at any -- you have already

told me that. I’m not going to go back there.

Now, were there any further repairs to disturb the

insulation on the turbine after that Monte Carlo incident

and before you left the USS TURNER that you recall?

A. Yes.

***

[397]So whether it be the pump end or the turbine end or

turbine motor end, whatever, I view the unit -- view this

as a unit.

Appendix A

BY MR. REICH:

Q. Okay. And was that unit insulated?

MR. KATTNER: Object to form.

THE WITNESS: Turbines were insulated, the pump

when it was handling a hot media, insulated, yes.

BY MR. REICH:

Q. Okay. And was it necessary to disturb or remove any

of the insulation on the Westinghouse turbines that were

attached to those pumps?

A. In most cases it would have to have been.

Q. Did that make dust?

A. Any time you remove insulation, or at least in my

experience on the TURNER, any time insulation was

disturbed you got dust.

Q. And did you breathe that dust?

A. And if you were close to it and [398]unfortunately

I knew no better I was close to it all the time either

instructing somebody or looking, inspecting for myself.

Q. So specifically when removing or handling the insulation

on the Westinghouse turbines attached to these pumps did

that give off dust that you breathed?

Appendix A

A. Removal of insulation on the pump turbine would have

given off -- did give off dust and I would have breathed it.

Q. Okay. Were there any warning labels on any of the

General Electric equipment as to the dangers of asbestos?

MR. KATTNER: Objection to form.

THE WITNESS: None.

BY MR. REICH:

Q. Were there any warning labels on the Westinghouse

equipment on the TURNER with regard to the dangers

of asbestos?

A. None.

***

[403]Q. Okay. Was there any dust from that particular

phenolic part when these motors were opened up that

you recall?

A. I remember dust.

Q. But whether it came from the phenolic or some other

source do you know?

A. I cannot be certain.

Q. Okay. And the operations that you observed with

respect to the opening up of the motors did they generate

dust from that phenolic specifically?

Appendix A

A. The physical opening did not generate dust. It may have

allowed dust that was inside the motor to escape.

Q. But as to the source of that dust from the phenolic or

some other place you don’t know?

A. No.

Q. Now, as to the insulation on the outside of the ship

service turbine generator or these various drive turbines

for the different pumps that you were just describing was

that insulation this same type of external insulation that

was elsewhere on the TURNER [404]with machinery

that you had described earlier, the so-called mud or was

it different?

A. Some of the equipment may have had blanket type

insulation, some was mud, some -Q. Got you.

A. -- some was mud combined.

Q. And as to the manufacturer of those various blankets on

some of the equipment, whether it was the drive turbines

or the pump turbines or the SSTG turbine, or whatever it

was, do you know who had manufactured those blankets?

MR. REICH: He’s already testified at least a half dozen

times --

Appendix A

BY MR. KATTNER:

Q. You don’t know. He doesn’t know who manufactured the

blankets originally or whether they were replaced, do you?

MR. REICH: He has testified to that already.

MR. KATTNER: Got you.

BY MR. KATTNER:

Q. And the same thing as to who manufactured any of the

mud or the external [405]insulation on any of these drive

turbines, you don’t know, do you?

MR. REICH: And I object.

He’s already answered that a number of times.

BY MR. KATTNER:

Q. And you have no information that General Electric

supplied any of the external insulation on any of these

turbines, do you, you yourself?

A. I have no personal information.

Q. And the same thing, you have no knowledge that

Westinghouse supplied any of that insulation?

A. I have no personal information to say Westinghouse

supplied it.

****

10a

Appendix

B v. General Electric

APPENDIx B — DeVries,

et ux.

Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 270-3, Pages

6, 56-58) (Motion for Summary Judgment of General

Electric Company) (Plaintiff’s Discovery Deposition,

Pages 79; 386-388)

***

[79]Q. And what do you mean when you say the leads?

A. I said all of these.

Q. All of these. I’m sorry. Do you recall any work being

performed in your vicinity on any of the turbines?

A. Yes.

Q. And what work was performed on the turbines in your

vicinity?

A. I can’t answer what was done when, but the turbines

were opened up to check thrust bearings. They were

opened up to check the -- actually not the turbines, but

the reduction gears were opened up to check the gears.

And in at least one case I very -- I can remember very

well we had to replace a part.

Q. Do you recall what part was replaced on the turbine?

A. I don’t recall the part, but we were in Monte Carlo at

holiday time and I couldn’t leave the ship when the turbine

was opened. The part was replaced by having a cruiser, I

believe, up the coast machine a new part for us.

11a

Appendix B

***

[386]Q. -- on them?

A. They were insulated.

Q. What’s the purpose of insulation on the main propulsion

turbines?

A. Well, a turbine converts heat energy into movement

and you -- superheated steam, 600 pound pressure steam

is at the entry point. You don’t want to lose any heat. And

of course you don’t want -- you don’t want anybody to get

burned.

Q. So there were really two purposes, one for safety, people

not touching it and getting burned; is that correct?

A. One is safety and one is efficiency of the operation.

Q. Now, with regard to the ship’s service generator, do

you recall what company manufactured that?

A. I believe it was General -- it was General Electric.

Q. Okay. And do you remember whether there was any

asbestos on the ship’s service generator, if you recall?

A. Normal insulating material, electrical [387]insulating

materials.

Q. Okay. Was it --

12a

Appendix B

A. Also, I believe there were thermal insulation on the

turbine end.

Q. How many of the ship’s service generators would

there have been on the TURNER or were there on the

TURNER?

A. I believe one in each engine room.

Q. And do you recall having to either work or supervise the

work on either of those while you were on the TURNER?

A. We made repairs on both of them.

Q. And in making those repairs, was it required to remove

or disturb any of the insulation that was on the outside

of it?

A. Yes.

Q. Did that create dust?

A. Yes.

Q. Did you breathe the dust?

A. I was right on top of it.

Q. Okay. How frequently would those items need repair in

the three years that you were on the ship, if you can recall?

A. I can’t recall.

13a

Appendix B

[388]Q. Was it often? Frequent? How would you describe

it?

A. Moderately frequent.

Q. Okay. Now, was there also an emergency diesel -- let

me just see here.

MR. KATTNER: You can show him the exhibit. I mean -MR. REICH: No. That’s okay.

BY MR. REICH:

Q. An emergency diesel generator on the ship?

A. The ship had an emergency diesel generator.

Q. What was the purpose of that piece of equipment?

A. Backup power.

Q. Power for the ship or for propulsion?

A. Backup electric power.

Q. Okay. And do you know whether that -- strike that. How

many would there have been on the ship? Do you recall?

A. I recall one.

Q. And that was manufactured by?

A. By General Electric.

****

14a

Appendix

C v. General Electric

APPENDIx C — DeVries,

et ux.

Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 274, Pages

18-19, 21, 26, 28, 38) (Motion for Summary Judgment

of Buffalo Pumps, Inc.) (Plaintiff’s Discovery

Deposition, Pages 70-71; 90; 101; 112; 235)

***

[70]Q. And what type of work is being performed in the

engineering compartments?

A. First of all, the engine rooms get steam from the boiler

rooms to turn turbines that turn the ships through. There

are a myriad of pumps and auxiliaries that have to be

repaired, maintained, work -- that meant that I spent a

lot of time with the people who were trying to maintain

this equipment.

Q. Now, you mentioned boilers. Were the boilers located

in a separate room in the engine rooms?

A. There were two boiler rooms, two boilers in each room.

Q. Did your duties ever take you to the boiler room?

A. Yes.

Q. You also mentioned turbines. Where were the turbines

located?

A. They were in the engine room.

Q. Where would the pumps be located?

15a

Appendix C

A. All through the spaces.

Q. Do you recall any other equipment on which repair or

maintenance work was performed [71]other than boilers,

turbines and pumps?

A. Electrical equipment.

Q. What type of electrical equipment?

A. Generators and switchboards.

Q. Aside from boilers, turbines, pumps, generators and

switchboards, do you recall any other equipment on which

maintenance or repair work was performed?

A. In that ship and all ships at that time the Engineering

Department maintained everything that operated except

the electronics and the armaments. That would include

things like standby diesel generators.

Q. Now, when you say except electronics and armaments,

you mentioned diesel generators, is it your testimony that

it was not your job to oversee the maintenance and repair

work on the diesel generators?

A. No. Correct that. We were responsible for everything

including the diesel generator which I mentioned only

because they were not in the engine rooms.

***

16a

Appendix C

[90]Q. You’d have pumps for waste lines as well; is that

correct?

A. Yes.

Q. Do you recall any work that was performed in your

vicinity on any of the pumps aboard the USS TURNER?

A. Yes.

Q. What type of work was performed in your vicinity on

the pumps?

A. We were constantly putting new stuffing in the stuffing

boxes.

Q. Do you recall any other work aside from putting the

stuffing in the stuffing boxes on the pumps?

A. Yes. Yes.

Q. Okay. And what type of work?

A. Well, if a pump had to be removed, then the flanges

had to be cleaned and sealed.

Q. Now, you just mentioned flanges in relation to pumps.

Do you recall if any of those pumps did not have flanges?

A. I do not recall.

***

17a

Appendix C

[101]Q. And where would these seals be located?

A. Well, between the -- when I say pump, I mean the pump,

centrifugal pump or otherwise as what I’ll call wet end

and then it has a driver, normally an electric motor and

the shaft would have a seal.

Q. Did you ever -A. I should call it packing more, but anyway -Q. Okay. So is this the same packing that we have talked

about when we said stuffing?

A. Stuffing, packing.

Q. Okay. What term would you rather use, stuffing or

packing?

A. Packing would be the more correct term.

Q. Okay. So when we were talking about stuffing before

we were talking about packing material; correct?

A. Yeah.

Q. Did this packing material, the innards of the pump did

that differ at all from the packing you had talked about

earlier?

A. I can’t recollect at this time. Wait a minute. The packing

was different

18a

Appendix C

***

[112]Q. I’ve heard people say that when rip-outs are

performed it’s similar to -- it creates a situation where it

looks like it’s snowing. Would you describe it that way?

A. Well, I would suggest that when you removed, say,

a pump for maintenance, removing of the insulation,

assuming this was an insulated pump, would create a

cloud and so you would have clouds of dust.

Q. Now, you didn’t mention insulation in relation to the

pumps earlier. Was there insulation on any of the pumps?

A. Oh, sure.

Q. Would it be safe to say that not all the pumps were

insulated?

A. A cold water service pump doesn’t need to be insulated.

***

[235]BY MR. WEINBERG:

Q. All right. Sitting here today, do you have a specific

recollection of ever being in the vicinity when a Buffalo

pump was being worked upon?

A. I don’t have a specific pump or specific date. But we

worked on so many pumps, everybody’s pumps. And the

answers given previously would apply to any of the major

19a

Appendix C

pump suppliers that we had. We had the constant packing

problem. And, yes, you hit on some of it. I think things

got out of alignment as you heard me say earlier. Some of

the mounting framing was corroded and gone, so we had

a constant repacking and repair.

20a

Appendix

D v. General Electric

APPENDIx D — DeVries,

et ux.

Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 277-1, Pages

11, 13, 20) (Motion for Summary Judgment of Foster

Wheeler LLC) (Plaintiff’s Discovery Deposition,

Pages 268-269, 274-275, 425-427)

***

[268]BY MR. MASTROIANNI:

Q. So you guys didn’t do the repair so to speak?

A. We’re not equipped to.

Q. You just more or less did damage control and waited

until you docked for overhaul work to fully address the

extent of the problems; correct?

A. Yes.

Q. And was this the overhaul -- was this the second overhaul

that you talked about or was this another overhaul?

A. Well, this would -- this would have been [269]the second

overhaul.

Q. Okay.

A. Which you may have record of as FRAM, f leet

rehabilitation and maintenance.

Q. I’m sorry. What year was that second overhaul again?

A. Well, that would be 1960. That was done in Brooklyn.

21a

Appendix D

Q. Okay. And by that time you were out of the Navy?

A. Well, as in Boston I was around for the rip-out, but more

I was involved very much in planning what would be done.

Q. Are you talking about what would be done to the

condenser?

A. Work orders for the whole project, not just -Q. The whole overhaul project?

A. Yeah.

Q. Okay. So you essentially, and correct me if I’m wrong,

while the ship was out at sea made a list of things that

needed to be addressed once the ship was dry docked for

overhaul and maybe even ranked them in order.

***

[274]Q. Okay. Other than this contaminated water issue

with respect to the one condenser, do you recall any other

type of work that you or your crew would have done on a

Foster Wheeler condenser on board the TURNER?

A. Restate that, please.

Q. Other than the contaminated salt water issue that you

had -A. Yes.

22a

Appendix D

Q. -- that we’ve been talking about, do you recall any other

work, maintenance, repair or otherwise that you would

have done on a Foster Wheeler condenser?

A. I don’t recollect.

Q. You talked about going in the header yourself. Was that

the extent of any kind of hands-on work that you did with

respect to the contaminated salt water problem or did you

do other types of hands-on work for that?

A. Hands-on that was it.

Q. That was it. And that I think you said was just merely

looking for leaks within the [275]hundreds of tubes?

A. Looking for leaks and then plugging the ones that

leaked.

MR. REICH: While he was inside of it it’s hard to say

merely.

MR. MASTROIANNI: Oh, okay. I think of a Beluga

whale.

THE WITNESS: These are big.

BY MR. MASTROIANNI:

Q. What did you plug the leaks with?

A. I recollect wooden plugs a supply of which we kept for

such an event.

23a

Appendix D

Q. Were these like wooden blocks or -MR. REICH: It’s a plug.

THE WITNESS: Tapered machined wood.

[425]In response to questions by your attorney you

mentioned there were connections or pipes that led up to

the condensers; is that correct?

A. To and from.

Q. To and from. Okay. And any flange work that we talked

about yesterday was with respect to the flanges on those

connections; correct?

A. Yes.

Q. Okay. How many of those connections were there

leading to and from the condensers?

A. I don’t recollect the configurations.

Q. So you can’t tell me how many connections there were?

A. No.

Q. Okay. Were these connections -- is it correct that they

were going either back to the boiler or from the turbine?

Is that what these connections were for to essentially

connect the condensers to the boiler and turbine?

24a

Appendix D

A. Yes. Essentially the condenser was [426]taking the last

bit of heat out of the steam -Q. Right.

A. -- converting to water as you understand.

Q. So there’s at least two of these pipes or connections?

A. There’s at least two.

Q. Okay. Do you remember there being any more than, I

don’t know, five?

A. I don’t remember more.

Q. Now, you did discuss yesterday being on top of someone

who was doing the removal of the seal or gasket on the

flanges to these connectors; correct?

A. Yes.

Q. Okay. Were you -- well, let me back up. That work, was

that performed in connection with that damage control

work we discussed yesterday in relation to -A. No.

Q. -- the salt water contamination?

A. No. No.

Q. It wasn’t. Okay.

25a

Appendix D

[427]A. No.

Q. Are you able to tell me either by estimating or

approximating the number of times you would have

been in the vicinity of someone removing a flange from a

connection to a Foster Wheeler connection -- condenser?

A. These connections were not broken except when the

vessel was in port or in the yard.

Q. Okay.

A. Not frequently.

Q. Okay. Are you able to tell me either by estimating or

approximating how long it took for someone to remove a

seal or gasket from one of these flanges?

A. I don’t recollect that or how many studs there were or

any way to approximate it.

Q. Okay. Would it be more than 15 minutes?

A. It could have been more than 15 minutes -Q. Okay.

A. -- depending on the -Q. The nature of -A. -- the nature of the fit.

****

26a

Appendix

E v. General Electric

APPENDIx E — DeVries,

et ux.

Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 291-2, Pages

34-35, Doc. 291-3, Pages 1-35) (Response to Motion

for Summary Judgment of Foster Wheeler, LLC)

(Affidavit of Captain Bruce Woodruff, Pages 1-38)

COURT OF COMMON PLEAS

PHILADELPHIA COUNTY

NO. 3661

ASBESTOS CASE

DECEMBER TERM 2012

JOHN B. DEVRIES AND

ROBERTA G. DEVRIES, H/W,

Plaintiffs,

ALLEN-BRADLEY COMPANY, et al.,

Defendants.

AFFIDAVIT OF CAPT. R. BRUCE WOODRUFF

U.S. NAVY (RET)

JUNE 2013

I, Robert Bruce Woodruff, declare and state the following:

1. Qualifications. My name is R. Bruce Woodruff.

As a Naval Architect and Marine Engineer through

27a

Appendix E

education, experience, and training, I am an expert in

the design, construction, operation, inspection, repair,

and maintenance of Naval vessels and commercial ships.

A specific subspecialty is marine engineering propulsion

systems for U.S. Navy ships, including ships powered by

steam propulsion, diesel, and gas turbines. Additionally,

I am an expert in shipyard processes, which includes the

manufacturing, construction, repair, testing, and trials of

ships in both commercial and Naval shipyards.

Currently President of the Richmond Consulting Group

(RCG), Richmond, VA, I retired from the U.S. Navy as an

Engineering Duty Officer and held three major command

positions with rank as Captain. My Curriculum vitae is

attached as Exhibit (1) and is incorporated by reference

herein. I hold the Bachelor of Science degree from the

U.S. Naval Academy, Annapolis, MD, where I graduated

‘With Distinction’ and hold two graduate degrees from the

Massachusetts Institute of Technology, Cambridge, MA.

The degrees are Ocean Engineer1 (Naval Architecture

and Marine Engineering) and a Master of Science in

Mechanical Engineering. My thesis was the design of a

combined steam and gas turbine power plant for a Navy

class of combatant ships. I attended the Darden Business

School Executive Program at the University of Virginia

in Charlottesville, VA.

While on active duty, I completed the one-year senior

1. The Engineer Degree at MIT requires broader competence

in engineering and science than the Master’s Degree; the thesis

requires less emphasis on original research than a Doctoral

Program. The Engineer Degree is not commonly awarded at U.S.

universities with engineering programs.

28a

Appendix E

staff Industrial College of the Armed Forces at the

Washington DC National Defense University, the U.S.

Naval Destroyer Engineering School in Newport, RI, the

Nuclear Ship Superintendent's Course at the Puget Sound

Naval Shipyard, and the U.S. Navy Boiler School at the

Philadelphia Naval Shipyard. 2 My afloat experience was

on three Navy steam ships with qualifications as Engineer

Officer (Chief Engineer), Main Propulsion Assistant, Fleet

Officer of the Deck, Engineering Officer of the Watch, and

Destroyer Tender Repair Officer.

I have been formally certified as a U.S. Navy Fleet Boiler

Inspector by the Naval Boiler & Turbine Laboratory in

Philadelphia. I have performed numerous calculations,

inspections, tests and engineering studies on various

classes of ships related to U.S. Navy Combatant

ship design, shipyard production processes, marine

engineering and power generation, as well as auxiliary

systems, including pumps, piping and valves.

In 29 years of Navy active duty, my tours included more

than 24 years responsible for the design, construction

and maintenance of a wide range of naval combatants

2. Destroyer School was a detailed course on the design and

operation of the DD 692/710 Gearing/Sumner Class destroyers. It

required on board ship system tracing/drawing for all engineering

space equipment. Included were 2 weeks at sea with students

operating the USS Fred T. Ber r y(DD 858). Nuclear Ship

Superintendent School included the design and operation of nuclear

submarine plants Westinghouse S5W. Included actual onboard

nuclear refueling of an SSN 637 Class submarine in process at

the yard and as well reactor physics and Navy radiological control

(RADCON) processes.

29a

Appendix E

e.g., aircraft carriers, cruisers and destroyers, support

ships, and other watercraft. As a U.S. Navy Captain

and Supervisor of Shipbuilding (Supship), Pascagoula,

Mississippi (co-located with Ingalls Shipbuilding Division

of Litton Industries), I oversaw shipyard contracts for

both the construction and overhaul/repair of Navy/Army/

NOAA ships in Mississippi, Alabama and Florida. The

primary products of the Ingalls Shipyard were the CG 47

Class Aegis Cruisers, DDG 51 Class Aegis Destroyers,

and the aircraft capable Amphibious Assault Ships, LHD1 class.

Prior to that, my tour was as the Navy’s Program Manager

at the Naval Sea Systems Command (Navsea) for both the

CG-47 Class of Aegis Guided Missile Cruisers and the

FFG-7 Class of Guided Missile Frigates. My two shipyard

tours included Norfolk Naval Shipyard, Portsmouth, VA,

as Production Engineer and Ship Superintendent for the

aircraft carrier USS J. F. Kennedy (CV-67). In 1972, I

was assigned at the Boston Naval Shipyard as a Ship

Superintendent on the waterfront for repair availabilities

of the steam driven destroyer USS Coontz (DLG 9) and

cruiser USS Richmond K. Turner (CG 20).

Following my service as a senior Naval Officer, I was Vice

President and Division General Manager for Asea Brown

Boveri (ABB), a company manufacturing and servicing

large (100+megawatt) steam turbines, gas turbines and

generators for the utility industry. Since 1996, I have

served as the President ofRCG, which provides consulting

services related to ship design and operations, shipyard

construction and repair processes and government

contracting. This has included a wide range of clients,

30a

Appendix E

including the U.S. Department of Justice, U.S. Navy, U.S.

Coast Guard, Siemens Corp., Eaton Corp, Metro Machine

and Drydock, Aepco Marine, L3 Corp., Friede Goldman

Halter Co. (Halter Marine), KPMG Peat Marwick, Anteon

Corp., General Dynamics Information Technology, and

numerous national law firms. I have served as an expert

witness in support of asbestos and mesothelioma litigation.

I am a member of the Society of Naval Architects and

Marine Engineers, the American Society of Naval

Engineers, the Society of Professional Engineers, the

Virginia Ship Repair Association, and the American

Society of Mechanical Engineers.

2. Discussion

This affidavit is structured to include the following:

(a) The source of information considered in forming the

opinions;

(b) A statement of all opinions expressed and the basis

and reasons therefore;

support for the opinions;

(d) Expert qualifications and publications authored;

(e) A listing of other cases in which the expert has testified

or been deposed.

(a) Source of information relied on for my opinions.

I have been retained by Paul Reich & Meyers, P.C.,

Philadelphia, Pennsylvania, to provide expert opinion

31a

Appendix E

and testimony in the matter of asbestos exposure that

Lieutenant junior grade John B. DeVries received

during his Navy career. He served in the Engineering

Department on the destroyer USS Turner (DDR 834)

from 1957-1960. Mr. DeVries was designated as the Boiler

Officer and Main Propulsion Assistant (MPA). I analyzed

the duration and magnitude of exposure that Mr. De Vries

would have seen due to daily contact and close proximity

to asbestos insulation, gaskets, and packing on the Turner.

I also address the requirement for Navy equipment

suppliers to place asbestos hazardous warnings in the

technical manuals and drawings that they submitted to

the government for approval. Had these cautions been

included in their draft technical manuals and drawings

would the U.S. Navy have prohibited them or included

them in the published documents?

Primary sources of information for my opinions are

DeVries’ testimony, my direct telephone call with Mr.

DeVries, my own personal experience, and the documents

listed in paragraph (c). 3 It may be necessary for me to

change this opinion should facts not known be disclosed to

me prior to any testimony that I might give in this matter.

(b) A statement of opinions expressed and the basis

therefore.

1. Summary. Without doubt or question, Mr. DeVries

received significant exposure to asbestos during his more

than 1000+ days assigned to the Turner, primarily from

3. Depositions of John B. DeVries, January 15, 16, & 17, 2013.

32a

Appendix E

amosite asbestos lagging and asbestos gaskets and packing

in and on engineering spaces equipment and piping. That

is, while serving as the Main Propulsion Assistant in the

Engineering Department on board Turner, one of the

primary source of exposure for DeVries was his close

proximity to amosite asbestos insulation and lagging

located on the piping and equipment in the ship’s engine

rooms. This is based on my own experience operating and

maintaining steam driven ships during twenty-nine years

in the U.S. Navy. My Navy career included assignment

at two naval shipyards that routinely overhauled ships

similar to the Turner. My own Navy career included

an initial tour as Main Propulsion Assistant and I fully

understand the scope and demands of this position aboard

a steam driven destroyer.4

A major contributor to the substantial asbestos exposure

came from the Turner’s time in Naval shipyards one of

which included a FRAM overhaul of extended duration

with extensive work being accomplished in the engineering

spaces. 5

• Sept 1957-Jan 1958-Regular Overhaul, Boston

Naval Shipyard--3+ months

• 14-23 January 1959-Tender Availability Alongside

USS Everglades (AD 24), Genoa, Italy

4. My experience was identical to Mr. DeVries -- I reported

aboard the destroyer USS Davis (937) as Boilers Officer/MPA for

my first shipboard tour.

5. FRAM stands for Fleet Rehabilitation and Modernization

overhaul.

33a

Appendix E

• 13 Jan-12 Aug 1960-FRAM Overhaul, New York

Naval Shipyard--7 months

Additionally, the Turner made multiple deployments to

the Mediterranean Sea while DeVries was on board. I

personally sailed for multiple ‘Med cruises’ aboard two

destroyer type ships. The need for the ship to meet their

operational commitments places significant demands on

ship’s force engineers for all steam system repairs and

maintenance. Time in the Med alongside a tender or in a

foreign yard for repairs was infrequent. When destroyers

in the Med were in port, the engineers routinely had to

stay aboard to repair pumps, valves, gaskets, packing,

and damaged asbestos lagging. Responsibility for this

oversight would have fallen to Mr. De Vries.

2. Asbestos on Board Navy Ships and in Shipyard Shops.

The Navy's technical requirements for the elevated

steam system temperatures were clearly mandated

in the specifications for the steam system equipment.

Asbestos lagging, gaskets, and packing were required

for the turbines, boilers, evaporators, pumps, piping, and

valves. Operational ships and shipyards of this era

installing, removing, and maintaining steam systems

were a constant and pervasive source of asbestos

contamination. The U.S. Navy Bureau of Ships (Buships)6

made it quite clear that asbestos remained the insulator

of choice:

6. Bureau of Ships, U.S. Navy-the Washington, DC

organization responsible for the acquisition, construction, and

maintenance of all ships. It was renamed NAVSHIPS and finally

became the Naval Sea Systems Command (NAVSEA).

34a

Appendix E

“Covers for use at temperatures of 850°

Fahrenheit and blow shall be filled with

asbestos felt. Wire inserted asbestos cloth Fed.

Spec. SS-C-466, Grade C shall be used on the

inside of covers”7

Detailed specifications for these systems included the

main and auxiliary turbines, boilers, evaporators,

pumps, piping, and valves. Tailored to the machinery

specifications were numerous specifications for insulation,

gaskets, and packing that required asbestos. The Navy’s

design and construction practices and standards for

thermal insulation, gaskets, and packing for machinery

and piping confirm that the ships constructed from 1940

to 1980 contained mammoth quantities of asbestos.

I have reviewed multiple industry and Navy letters,

memos, and other documents from this era that validate

that the ships of this era contained significant quantities

of asbestos, primarily in the form of amosite. This

research included suppliers of the machinery itself and

the asbestos manufacturers. For the Navy it included

Buships, operational ships, shipyards, and Supervisors

of Shipbuilding (Supship). 8

7. General Specifications for Ships of the United States

Navy, Bureau of Ships, Section S39-2, Thermal Insulation and

Acoustic Absorptive Treatment for Machinery, Piping and Ducts,

1 July 1954.

8. Supervisors of Shipbuilding were Navy commands

stationed at or near shipyards and Navy ports to execute and

manage repair and overhaul contracts.

35a

Appendix E

Figure 1 below identifies a typical sample of the Navy

specifications used in marine steam systems and lists the

systems in which these asbestos products were routinely

installed. Both the U.S. Navy and the U.S. Maritime

Commission (merchant ships) used the same insulation

requirements with very few exceptions. These numerous

detailed specifications for steam and diesel driven ships

date back in some cases to the 1920s and 1930s. DeVries

would have seen exposure to all of these products during

his career on the Turner. Most of the key DD 692/710 Class

destroyer insulation specifications are listed in Figure 1.

MACHINERY INS. AND

LAGGING REQMTS

FOR ALL SHIPS USING

ASBESTOS

INSULATION AND

LAGGING FOR BOILER

STEAM DRUM, WATER

DRUMS & HEADERS

INSULATION AND

LAGGING

MAIN BOILERS

MAIN ENGINES

SPECIFIC SYSTEM

EXAMPLES

INS. & LAG.

SCHEDULE

ITEM

NAVY SPECIFICATION

32C11 ASBESTOS

CLOTH; NAVY SPEC

32F3 ASBESTOS FELT;

DIAGRAM, LP/HP

TURBINE, BUREAU OF

ENG. 41-B-01929, 5/31/1932

NAVY SPEC 32C11,

ASBESTOS CLOTH; N.

SPEC 32F3 ASBESTOS

FELT; LAGGING DIAGRAM,

BOILER BUR. OF ENG. 41-B01357, 2/21/1933 & 41-B-01937,

11/25/1931

BUSHIPS DRAWINGS

DD710-S3902-245452

ASBESTOS DRAWINGS

36a

Appendix E

EVAPORATORS -OUTER SHELL OF

EVAPORATOR LAGGED

THROUGHOUT

MAIN FEED BOOSTER

PUMPS

FLASH DIST.

PLANT

PUMPS

MAIN CONDENSATE

PUMPS MAIN FEED

PUMPS

INSULATION AND

LAGGING

SHIP SERVICE

TURBO GENS.

CLASS DESIGN

INSULATION DRAWINGS

DD692 S4602-6

DD692-S5801-16

DD692-S5801-15

DD692-S4700-444

DD692-S4631

CLASS DESIGN

INSULATION DRAWINGS:

DD692-S3902-3 DD940 S3902

H 1374090

NAVY SPECIFICATION

32C11; NAVY SPEC

32F3; DIAGRAM, 400 KW

TURBOGENERATOR,

BUREAU OF ENG. DWG.

41-B-01929, 7/21/1932

37a

Appendix E

BLOCK INSULATION,

EXAMPLE FIRE AND

BILGE PUMP

METALLIC GASKETS

FIRE AND BILGE

PUMP

ASBESTOS

INSUL. MATL.

METALLIC ASB.

GASKETS.

CLASS DESIGN

INSULATION DRAWINGS

DD692-S4700-10

NAVY SPEC 33P2

CLASS DESIGN

INSULATION DRAWINGS

DD692-S4700-10

NAVY SPEC 32M2

NAVY SPEC 33P13

CLASS DESIGN

INSULATION DRAWINGS

DD692-S4601-14

DD692-S4602-6

DD692-S5801-20

DD692-S5801-16

DD692-S5801-15

DD692-S4700-444

Figure 1. Examples of Turner Machinery

Equipment Containing Asbestos

MAIN COND. PUMP

ASSY, AUX COND. CIRC

PUMP, FRESH WATER

DISTRIBUTION

PUMP DISTILLING

CONDENSER CIRC

PUMP

EVAP BRINE

OVERBOARD PUMP

ASBESTOS

GASKETS NAVY

SPEC

38a

Appendix E

39a

Appendix E

In my personal experience, I can attest to the fact that

the primary insulation used for ships (both Navy and

commercial) was asbestos throughout engineering plants.

Pump and valve gaskets, and packing were also asbestos.

I served on board two destroyer class steam ships in the

engineering departments and had personal exposure to

asbestos on both ships. Experience with asbestos products

occurred as well while serving as Repair Officer on a

nuclear certified Destroyer Tender and serving at two

Naval Shipyards, both of which overhauled destroyers

like the Turner.

3. DeVries’ Navy Career on the Radar Pickett Destroyer

USS Turner (DDR 834)

Mr. DeVries was assigned to the USS Turner (DDR 834)

specifically from 12 June 1957 until 8 June 1960 when he

completed his active duty obligation. He served in the

Engineering Department for the entire time. The Turner

was a ‘twin screw’ Gearing class destroyer with steam

driven General Electric geared turbines and Babcock &

Wilcox boilers providing 60,000 shaft horsepower. Figure

2 is a thumbnail sketch of the ship.

40a

Appendix E

USS Turner (DDR 834)--Gearing Class Destroyer

(Radar Pickett)

• Builder: Bath Iron Works, Bath, Maine

• Laid Down:13 November 1944-Commissioned: 12 June 1945

• Length/Beam: 390 ft/41 ft

Displacement:

3,460 long tons Crew Size 345

• Propulsion: Twin Screw, 60,000 SHP, 4 Boilers,

2 Steam Turbines. Speed: 35 Kts

Figure 2. The Principle Characteristics

of USS Turner (DDR 834)

Figure 3 is an outline of DeVries’ career in the Navy on

board the USS Turner:

DATES

GRADE &

TITLE

SHIP SCHEDULE &

SHIPYARD PERIODS

12 JUNE

1957 – 8

JUNE 1960

MACHINERY

‘M’ DIVISION

OFFICER

LT JUNIOR

GRADE

(18 MOS)

ENSIGN

(18 MOS.)

> 9 SEPT-29 DEC 1957REGULAR OVERHAUL,

BOSTON NAVAL SHIPYARD

(BNSY)

> 12 JUNE 1957-DEVRIES

REPORTS ABOARD

TURNER

> 16 MAY 1957- NAVY

BOARD OF INSPECTION &

SURVEY, TARANTO, ITALY9

9. U.S. Navy Board of Inspection and Survey Material Inspection Report, 16 May 1957

RADAR

PICKETT

SHIP

DESTROYER

GEARING

CLASS

(DDR 834)

USS TURNER

NAVY, ACTIVE DUTY 1 JUNE 1957

CORNELL UNIVERSITY BS CHEMICAL ENGINEERING & NAVY ROTC

SHIP

41a

Appendix E

HOMEPORTS

NEWPORT, RI

& MAYPORT,

> 1959-SHIFTED HOMEPORT

TO MAYPORT FL

MAIN

PROPUL.

ASSIST.

> 24-25 MARCH 1959-NAVY

BOARD OF INSPECTION

& SURVEY. SHIP FOUND

TO BE UNSATISFACTORY

IN ENGINEERING/

MACHINERY. FOUR

> 14-23 JANUARY

1959-TENDER

AVAILABILITY ALONGSIDE

USS EVERGLADES (AD 24),

GENOA ITALY

> 11-31 OCT 1957-DATE OF

DRY DOCKING BNSY

BOILER

OFFICER

42a

Appendix E

12. U.S. Navy Board of Inspection and Survey Material Inspection Report, 9-11 August 1960

(Post FRAM Overhaul).

11. Naval message 26 March 1959: Commander, Destroyers Atlantic declares the ship “Unsafe

and restricted from operating until major items corrected.”

10. U.S. Navy Board of Inspection and Survey Material Inspection Report, 24-25 March 1959

> 13 JAN-12 AUG 1960FRAM OVERHAUL, NEW

YORK NAVAL SHIPYARD

(NYNSY)12

> 9-10 SEPTEMBER

1959-OPERATION

MERCURY SPACE

CAPSULE RECOVERY

EFFORT.

OTHER CATEGORIES

WERE ALSO UNSAT.10 11

43a

Appendix E

Figure 3. DeVries’ Career on USS Turner (DDR 834)

> 9-11 AUGUST 1960-NAVY

BOARD OF INSPECTION

& SURVEY & UNDERWAY

TRIALS

> 8 JUNE 1960-DEVRIES

DEPARTS TURNER

> 20 JAN 1960-10 JULY 1960DRY DOCKING (NYNSY)

44a

Appendix E

45a

Appendix E

Exposure to asbestos while a ship is underway is possible,

but generally reduced for engineering personnel when the

ship is at sea unless there is a major casualty or repair

required. Assigned to manage the four engineering spaces

for a period of three years, what tasks would Ensign then

Lieutenant junior grade De Vries have had that clearly

exposed him to heavy concentrations of amosite asbestos

as well as asbestos valve packing and gaskets? Underway,

DeVries would have been in and out of the four main

engineering spaces essentially non-stop.9101112

For major ship at-sea evolutions, the Chief Engineer,

DeVries’ boss, would be stationed in the Forward

Engine Room known as Main Control. DeVries, as Main

Propulsion Assistant, would always be present in one of

the four main engineering spaces.13 There were three key

evolutions mandating that these officers be present in the

engineering spaces: General Quarters (battle stations),

refueling every 3-5 days alongside a Navy oiler, and when

entering and leaving port or an anchorage. DeVries was

responsible for a large portion of the ship as shown by this

ship profile in Figure 4, that is, both Boiler Rooms (BR)

and Engine Rooms (ER).

10.

11.

12.

13. Main Control is the engine room that received direct

orders from the bridge to control the ship’s speed via propeller

revolutions.

46a

Appendix E

Figure 4. Starboard Inboard Profi le for

Gearing Class Destroyers14 15

4. Steam Equipment in the Turner’s Engineering

Plant. The design of turbines and pumps in marine plants

of this era favored almost exclusively the use of steam

driven equipment. The motor driven pumps for major

systems were considered backup and utilized relatively

infrequently. Steam equipment in the main engineering

spaces was heavily lagged with amosite asbestos pads. By

virtue of some hard lessons learned during World War II

in the Pacific, steam propulsion and power generation had

proven to be an extremely reliable design feature. The

duplicate systems (forward and aft, port and starboard)

added to the number of pieces of steam equipment. More

importantly, the quantities of piping, pumps, and valves

that contained asbestos increased dramatically. A Gearing

Class destroyer contained approximately twenty (20) tons

of asbestos.16

14. BR-Boiler (Fire) Room, ER-Engine Room, DG-Diesel

Gen Room, FO-Fuel Oil Tank, M-Magazine, Q-Crew Quarters.

15. U.S. Destroyers, An Illustrated History, Norman

Friedman, Naval Institute Press, Annapolis MD, 2004.

16. Rushworth, Denis H., “The Navy and Asbestos Thermal

Insulation”, American Society of Naval Engineers Journal, Spring

2005.

47a

Appendix E

Gearing Class Destroyers had a significant amount of

equipment in each engine and boiler room. This amounted

to approximately seventy main pieces of equipment for

which Mr. DeVries was directly responsible. The steam

equipment listed in the figure 5 table was insulated with

asbestos and contained asbestos packing and gaskets.

EACH FIRE ROOM

UPPER LEVEL

EACH FIRE ROOM

LOWER LEVEL

2 MAIN BOILERS

4 FORCED DRAFT

BLOWERS

1 EMERGENCY FEED

PUMP

1 FUEL OIL HEATER

2 FUEL OIL SERVICE

PUMPS

1 FUEL OIL

STRAINER

1 FIRE & BILGE PUMP

1 FUEL OIL BOOSTER/TRANSFER

PUMP (#1 FR ONLY)

EACH ENGINE ROOM

UPPER LEVEL

EACH ENGINE ROOM

LOWER LEVEL

STEAM TURBINES

5 MAIN FEED AND

FEED BOOSTER

PUMPS

DEAERATING FEED

TANK

MAIN CONDENSER

FRESH WATER

EVAPORATOR

3 LUBE OIL PUMPS

& COOLER

LUBE OIL PURIFIER

& HEATERE

MAIN REDUCTION

GEARS

48a

Appendix E

SHIP SERVICE TURBO

GENERATOR

2 FIRE & FLUSHING

PUMPS

CONDENSATE

COOLER

5 DISTILLING PLANT

PUMPS

Figure 5. Equipment Containing Asbestos and

Locations in Each of Turner’s Engineering Spaces

While his M division enlisted crewmembers were standing

watch (4 on, 8 off), they would have been taking hourly

engine room equipment temperature and pressure

readings with a clipboard on the upper and lower levels.

Another typical task for his crew would be repacking a

valve that had been leaking steam or tightening/replacing

a steam piping joint that contained an asbestos flexitallic

gasket. By his own testimony and conversation with me

by phone, DeVries was frequently in close proximity to

this work.

Figure 6 lists the specific equipment in the Turner’s

engineering spaces.

EQUIPMENT

TD-TURBINE DRIVEN

MD-MOTOR DRIVEN

MANUFACTURER

4-MAIN BOILERS

BABCOCK & WILCOX

2-MAIN STEAM

TURBINES

GENERAL ELECTRIC

2-MAIN REDUCTION

GEARS

DELAVAL

49a

Appendix E

8-FORCED DRAFT

BLOWERS (TD)

WESTINGHOUSE

2-MAIN CONDENSERS

FOSTER WHEELER

4-MAIN CONDENSATE DELAVAL

PUMPS (TD)

2-AUXILIARY

CONDENSATE PUMPS

(MD)

DELAVAL

2-MAIN

WARREN PUMPSCIRCULATING PUMPS WESTING.TURB.

(TD)

2- SHIP SERV.

TURBINE GEN.

(450 KW)

GENERAL ELECTRICWESTING. TURB.

2-AUXILIARY

CONDENSERS

WORTHINGTON

2-AUX CONDENSER

CIRC PUMPS (MD)

BUFFALO PUMP

2-AUX FEED

DELAVAL

BOOSTER PUMPS (MD)

2-EMERGENCY

GENERAL MOTORS &

DIESEL GENERATORS GE GEN.

1-DIESEL FUEL OIL

SERVICE PUMP (MD)

NORTHERN PUMP

1 -CIRC PUMPS FOR

EMERG DIESEL GEN.

WARREN STEAM

PUMP CO.

2-DEAERATING FEED

TANKS

ELLIOTT CORP.

50a

Appendix E

2-MAIN AIR

EJECTORS

WORTHINGTON

2-AUX AIR EJECTORS

WORTHINGTON

4-MAIN FEED PUMPS

(TD)

DELAVAL

2-EMERGENCY FEED

PUMPS (TD)

WARREN STEAM

PUMP CO.

4-MAIN FEED

BOOSTER PUMPS (TD)

DELAVAL

4-MAIN LUBE OIL

PUMPS (TD) & (MD)

DELAVAL

2-LUBE OIL COOLER

ALCO

2-LUBE OIL

PURIFIERS (MD)

DELAVAL

8-FUEL OIL HEATERS

GRISCOM RUSSELL

4-MAIN FUEL OIL

SERVICE PUMPS (TD)

& (MD)

DELAVAL

2-FUEL OIL BOOSTER

PUMPS (TD)

DELAVAL

1-EVAPORATOR

PLANT (12,000 GPO)

GRISCOM RUSSELL

1-EVAPORATOR

PLANT (4,000 GPO)

GRISCOM RUSSELL

2 DISTILLING PLANT

AIR EJECTORS

CH WHEELER

51a

Appendix E

2-1ST EFFECT TUBE

NEST DRAIN PUMPS

(MD)

BUFFALO PUMP

2·EVAP. BRINE

OVERBOARD PUMPS

(MD)

BUFFALO PUMP

2-DISTIL.LER

CONDENSER CIRC

PUMPS (MD)

BUFFALO PUMP

2-DIST. COND.

CONDENSATE

PUMPS(MD)

BUFFALO PUMP

2-DIST. FW. WATER

DIST. PUMPS (MD)

BUFFALO PUMP

2-FRESH WATER

PUMPS (MD) (MD)

WARREN STEAM

PUMP CO.

2-FIRE AND

FLUSHING PUMPS

(MD)

BUFFALO PUMP

4-FIRE & BILGE PUMP WARREN STEAM

(TD) & (MD)

PUMP CO.

2-FIRE PUMPS (MD)

(SMALL & LARGE)

(MD)

GARDNER DENVERGE MOTORS

1-HP A

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