# Joint Appendix — Air & Liquid Systems Corp. v. DeVries, 139 S. Ct. 986 (2019) (No. 17-1104) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0814%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2019 ## Text No. 17-1104 IN THE Supreme Court of the Anited States AIR AND LIQUID SYSTEMS CORP., CBS CORPORATION, AND FOSTER WHEELER LLC, Petitioners, v. ROBERTA G. DEVRIES, Administratrix of the Estate of John B. DeVries, Deceased, and Widow in her own right, Respondent. INGERSOLL RAND COMPANY, Petitioner, v. SHIRLEY MCAFEE, Executrix of the Estate of Kenneth McAfee, and Widow in her own right, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Third Circuit JOINT APPENDIX (VOLUME I OF II) SHAY DVORETZKY RICHARD PHILLIPS MYERS Counsel of Record Counsel of Record JONES DAY PAUL, REICH & MYERS 51 Louisiana Ave NW 1608 Walnut Street, Suite 500 Washington, DC 20001 Philadelphia, PA 19103 Tel.: (202) 879-3939 Tel.: (215) 735-9200 sdvoretzky@jonesday.com rmyers@prmpclaw.com Counsel for Petitioner Counsel for Respondents CBS Corporation Roberta G. DeVries and Shirley McAffee (Additional counsel listed on inside cover) I TEE PETITION FOR CERTIORARI FILED JANUARY 31, 2018 CERTIORARI GRANTED MAY 14, 2018 CARTER G. PHILLIPS Counsel of Record SIDLEY AUSTIN LLP 1501 K Street, N.W. Washington, DC 20005 Tel.: (202) 736-8270 cphillipe@sidley.com Counsel for Respondent General Electric Co. (continued from front cover) TABLE OF CONTENTS VOLUME I Docket Entries, In re: Asbestos Products Liability Litigation (No. V1), No. 16-2669 (3d Cir.) .............ccccccceeees Docket Entries, In re: Asbestos Products Liability Litigation (No. VI), No. 16-2602 (3d Cir.) .....................0.-. Docket Entries, In re: Asbestos Products Liability Litigation (No. VI), No. 15-2667 (3d Cir.) ....................00-- Docket Entries, In re: Asbestos Products Liability Litigation (No. VI), No. 15-1278 (3d Cir.) .................0000000 Docket Entries, McAfee, et al. v. 20th Century Glove Corp. of Texas, No. 5:13-cv-06856-GJP (E.D. Pa.) ........ Docket Entries, DeVries, et al. v. General Electric Co,, et al., No. 5:13-cv-00474-ER (E.D. Pa.)...................... Materials from District Court Proceedings DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 269-1, pages 2—18) (excerpts of Exhibit A to Motion for Summary Judgment filed by Page — l —— 3 — 5 — 7 — 13 u TABLE OF CONTENTS (continued) Page DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 269-2, pages 2—38) (excerpts of Exhibit B to Motion for Summary Judgment filed by CBS Corporation) ........0cccccccccscssssssssercccesessosscceseses 46 DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 270-1, pages 2—53) (excerpts of Exhibit A to Motion for Summary Judgment filed by General Electric Company).....................00000000000 90 DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 270-2, pages 2—19) (excerpts of Exhibit B to Motion for Summary Judgment filed by General Electric Company)........................000000+ 224 DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 270-3, pages 7, 25, 33-34, 50-51, 56, 62) (excerpts of Exhibit C to Motion for Summary Judgment filed by General Elec- DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 273, pages 14—49) (Exhibits A-C to Motion for Summary Judgment filed by Imo BN TIIIS, Hi icicessheecindoaniunsinanitrabeevateieminatnanessteiine 266 TABLE OF CONTENTS (continued) DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 274, page 16) (excerpt of Exhibit A to Motion for Summary Judgment filed by Air & Liquid Systems Corporation)...................... DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 277-4, pages 1—4) (excerpts of exhibits to Motion for Summary Judgment filed by Foster Wheeler LLLC)....................ceccccceeeeeeeeeees DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 291, pages 13, 17, 19-22) (excerpts of Exhibit A to Answer to Motion for Summary Judgment of Foster Wheeler LLC)................. DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 291, pages 27-29) (excerpts of Exhibit B to Answer to Motion for Summary Judg- ment of Foster Wheeler LLC) ......................... DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 291, pages 33, 35) (excerpts of Exhibit C to Answer to Motion for Summary Judg- ment of Foster Wheeler LLC) ......................... Page --- 62 iv TABLE OF CONTENTS (continued) DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 291-1, pages 1—8) (excerpts of Exhibit C to Answer to Motion for Summary Judg- ment of Foster Wheeler LLC, continued)........ DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 294, pages 15-19) (excerpts to Exhibit A of Answer to Motion for Summary Judg- ment of General Electric Company) ................ DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 294-3, pages 3-10) (excerpts to Exhibit G of Answer to Motion for Summary Judg- ment of General Electric Company) ................ VOLUME II DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 296, pages 20-22) (excerpts to Exhibit A of Answer to Motion for Summary Judg- ment of CBS Corporation).......................0000000« DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 296-1, pages 9-13) (Exhibit C of An- swer to Motion for Summary Judgment of SI iccticicicnenstnsitctdamenmstievationsioniwen Page v TABLE OF CONTENTS (continued) DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 296-2, pages 18-21) (excerpts of Ex- hibit F of Answer to Motion for Summary Judgment of CBS Corporation)....................... DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 296-2, pages 30-31, 34—36) (excerpts of Exhibit G of Answer to Motion for Sum- mary Judgment of CBS Corporation, I naianicicictinnieninihinmesshineatiabtiniteneraneenme DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 296-2, page 45 — Doc. 296-3, pages 1—2) (excerpts of Exhibit H of Answer to Mo- tion for Summary Judgment of CBS DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (excerpts of Exhibit H of Answer to Motion for Summary Judgment of CBS Corpora- RR i irtetieanecicnscetanstestentsincsentenetenesens DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 296-3, pages 8-9) (Exhibit I to Answer to Motion for Summary Judgment of CBS Page vi TABLE OF CONTENTS (continued) DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 297, pages 16—22, 28-29) (excerpts of Exhibits B & C of Answer to Motion for Sum- mary Judgment of IMO Industries, Inc.) ........ DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 298, page 19) (excerpts of Exhibit A of Answer to Motion for Summary Judgment by Buffalo Pumps, Inc)................ccc0ceceeseeeeeeeees DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 298-2, pages 7—8) (excerpts of Exhibit D of Answer to Motion for Summary Judg- ment by Buffalo Pumps, Inc.) ........................6 DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa.) (Doc. 298-4, pages 6-10) (Exhibit J of An- swer to Motion for Summary Judgment by ee McAffee v. 20th Century Glove Corp., No. 13-06856-ER (E.D. Pa.) (Doc. 171, pages 18-31; 33-43) (excerpts of Exhibits A & B of Ingersoll Rand Company's Motion for Summary Judgment) ..................... Page ..463 473 .-480 vil TABLE OF CONTENTS (continued) McAffee v. 20th Century Glove Corp., No. 13-06856-ER (E.D. Pa.) (Doc. 203, pages 16-19, 22—24, 30-31, 37-— 49) (excerpts of Exhibits A, B, & C of An- swer to Motion for Summary Judgment of Ingersoll-Rand Company) ..........................--.- McAffee v. 20th Century Glove Corp., No. 13-06856-ER (E.D. Pa.) (Doc. 203-1, pages 1—2, 31—50) (excerpts of Exhibit D of Answer to Motion for Summary Judgment of Ingersoll-Rand Company) ........ McAffee v. 20th Century Glove Corp., No. 13-06856-ER (E.D. Pa.) (Doc. 203-2) (excerpts of Exhibit D of An- swer to Motion for Summary Judgment of Ingersoll-Rand Company, continued)............ DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa., October 3, 2014) (order awarding summary judgment DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa., October 3, 2014) (order awarding summary judgment to IMO Industries, Inc.) ...................ccceeeeeeeee DeVries, et al. v. General Electric Company, et al., No. 13-cv-474 (E.D. Pa., October 10, 2014) (order awarding summary judgment to General Electric Company)........................ Page wee TOT Vill TABLE OF CONTENTS (continued) Materials from Third Circuit Proceedings DeVries, et al. v General Electric Company, et al., No. 15-1278 (3rd Cir.) (Joint Appendix 729)......................sseseeeeeeeeeeeees DeVries, et al. v General Electric Company, et al., No. 15-1278 (3rd Cir.) (Joint Appendix 1508-12) .00.0......0.....ccccccccceeeeees DeVries, et al. v General Electric Company, et al., No. 15-1278 (3rd Cir.) (Joint Appendix 1540-42) 20000..0....cccccccceceeeeeeeeees Addendum A to Brief of Defendant-Appellee General Electric Company, Ee Page ..803 1 GENERAL DOCKET UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Court of Appeals Docket #: 16-2669 z*** Appeal From: United States District Court for the Eastern District of Pennsylvania zest In re: Asbestos Products Liability Litigation (No. V1) Date Filed Docket Text 06/06/2016 CIVIL CASE DOCKETED. Notice filed by Appellant Shirley McAfee in District Court No. 5-13-cv-06856 and 2-01-md-00875. (DW) [Entered: 06/06/2016 02:43 PM] zs* 06/23/2016 CLERK ORDER The joint motion to consolidate the appeals at Nos. 16- 2602 & 16-2669 is granted. The ac- tions are consolidated for all pur- poses, filed. [16-2602, 16-2669] (CJG) [Entered: 06/23/2016 11:34 AM} zat 10/03/2017 PRECEDENTIAL OPINION Coram: VANASKIE, SHWARTZ and RE- STREPO, Circuit Judges. Total Pages: 19. Judge: VANASKIE Au- thoring. [16-2602, 16-2669] (CJG) [Entered: 10/03/2017 09:24 AM] 10/03/2017 JUDGMENT, Affirmed In Part as to Appellants’ strict liability claims. 2 With respect to Appellants’ negli- gence claims, the cases are Re- manded to the District Court. Costs shall not be taxed. [16-2602, 16-2669] (CJG) (Entered: 10/03/2017 09:25 AM] *** 3 GENERAL DOCKET UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Court of Appeals Docket #: 16-2602 *** Appeal From: United States District Court for the Eastern District of Pennsylvania *** In re: Asbestos Products Liability Litigation (No. VI) Date Filed Docket Text 5/31/2016 CIVIL CASE DOCKETED. Notice filed by Appellant Roberta G. Devries in District Court No. 5-13-cv-00474,2- 01-md-00875. (CJG) [Entered: 05/31/2016 10:04 AM} *** 06/23/2016 CLERK ORDER The joint motion to consolidate the appeals at Nos. 16- 2602 & 16-2669 is granted. The ac- tions are consolidated for all pur- poses, filed. [16-2602, 16-2669] (CJG) [Entered: 06/23/2016 11:34 AM] *** 10/08/2017 PRECEDENTIAL OPINION Coram: VANASKIE, SHWARTZ and RE- STREPO, Circuit Judges. Total Pages: 19. Judge: VANASKIE Au- thoring. [16-2602, 16-2669] (CJG) [Entered: 10/03/2017 09:24 AM] A 10/03/2017 JUDGMENT, Affirmed In Part as to Appellants’ strict liability claims. With respect to Appellants’ negli- gence claims, the cases are Re- manded to the District Court. Costs shall not be taxed. [16-2602, 16-2669] (CJG) [Entered: 10/03/2017 09:25 AM] *** 5 GENERAL DOCKET UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Court of Appeals Docket #: 15-2667 Appeal From: United States District Court for the Eastern District of Pennsylvania *** In re: Asbestos Products Liability Litigation (No. V1) Date Filed 07/16/2015 11/16/2015 11/20/2015 Docket Text CIVIL CASE DOCKETED. Notice filed by Appellants Kenneth McAfee and Shirley McAfee in District Court No. 5-13-cv-06856 & 2-01-md-00875. (OM) [Entered: 07/16/2015 05:12 PM] **f ECF FILER: ELECTRONIC BRIEF with Appendix Volume I on behalf of Appellants Kenneth McAfee and Shirley McAfee, filed. Certificate of Service dated 11/16/2015 by ECF. -- [Edited 11/20/2015 by EAF - Text ed- ited to indicate Appendix attached; Appendix Volume II removed and re- fied as of 11/20/15] (REP) (Entered: 11/16/2015 11:23 AM] **?f ECF FILER: ELECTRONIC APPEN- DIX VOLUME II on behalf of Appel- lants Kenneth McAfee and Shirley McAfee, filed. Certificate of service 05/12/2016 6 dated 11/20/2015 by ECP. --[Edited 11/20/2015 by EAF - Text edited to specify volume] (REP) [Entered: 11/20/2015 09:09 AM] **f ORDER (VANASKIE, SHWARTZ and RESTREPO, Circuit Judges) Upon Consideration of the Argu- ments by Counsel Presented in their Briefs, It is Hereby Ordered that the Case is Summarily Remanded to the District Court to consider these items. In the event that a subsequent appeal is taken after the proceedings on remand have concluded, any fu- ture appeal will be considered by this panel after completion of briefing, filed. Judge: SHWARTZ Authoring, (See Order for Full Text). (PDB) [En- tered: 05/12/2016 04:28 PM] **f 7 GENERAL DOCKET UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Court of Appeals Docket #: 15-1278 Appeal From: United States District Court for the Eastern District of Pennsylvania z*** In re: Asbestos Products Liability Litigation (No. VI) Date Filed Docket Text 2/12/2015 CIVIL CASE DOCKETED. Notice filed by Appellant Roberta G. Devries in District Court No. 5-13-cv-00474 and 2-01-md-00875. (ARR) [Entered: 02/12/2015 04:25 PM] *** 06/09/2015 ECF FILER: ELECTRONIC BRIEF with Volume I of Appendix attached on behalf of Appellant Roberta G. Devries, filed. Certificate of Service dated 06/09/2015 by ECF. [Appendix Volumes II-VII were removed from this entry by the Clerk as they were re-filed separately]--[Edited 06/10/2015 by MS] (REP) [Entered: 06/09/2015 02:27 PM] *e« 2 06/09/2015 ECF FILER: ELECTRONIC APPEN- DIX on behalf of Appellant Roberta G. Devries, filed. Certificate of ser- vice dated 06/09/2015 by ECF. (REP) [Entered: 06/09/2015 04:02 PM] 08/10/2015 08/10/2015 02/05/2016 *z*** ECF FILER: JOINT SUPPLE- MENTAL ELECTRONIC APPEN- DIX on behalf of Appellees Buffalo Pumps Inc, CBS Corp, Foster Wheeler LLC, GE Co, IMO Indus- tries Inc and Warren Pumps, filed. Certificate of service dated 08/10/2015 by ECF.--[Edited 08/11/2015 by MCW] (PJS) (Entered: 08/10/2015 03:33 PM] ECF FILER: ELECTRONIC BRIEF on behalf of Appellee Foster Wheeler LLC, filed. Certificate of Service dated 08/10/2015 by ECF. (L.JJ) [En- tered: 08/10/2015 04:22 PM] **t ORDER (VANASKIE, SHWARTZ and RESTREPO, Circuit Judges), summarily remanding this case to the District Court to determine whether the District Court: (1) con- sidered the negligence theory; (2) concluded that the bare metal de- fense applies to it and why, or (3) considered whether the circum- stances listed in the case cited herein should apply to a negligence claim brought under maritime law (and if not, why not, and if so, why and whether the record here would sup- port such a claim). In the event that a subsequent appeal is taken after 9 the proceedings on remand have con- cluaed, any future appeal will be con- sidered by this panel after completion of briefing, filed. Judge: SHWARTZ Authoring (ARR) [Entered: 02/05/2016 05:41 PM] *** 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA (ALLENTOWN) CIVIL DOCKET FOR CASE # 5:13-cv-06856-GJP MCAFEE, et al. v. 20TH CENTURY GLOVE CORP. OF TEXAS *“** Date Filed # Docket Text 11/25/2013 1 NOTICE OF REMOVAL by CBS CORPORATION, GEN- ERAL ELECTRIC COMPANY from Philadelphia Common Pleas, case number 131000205. Certificate of Service.(Filing fee $ 400 receipt number 092116)(jwl, ) (Entered: 11/26/2013) *** 08/25/2014 171 First MOTION for Summary Judgment filed by INGER- SOLL-RAND & CO..memoran- dum, certificate of ser- vice.(RYAN, DANIEL) (En- tered: 08/25/2014) *** 09/24/2014 203 RESPONSE to Motion re 171 First MOTION for Sum- mary Judgment of Ingersoll- Rand filed by KENNETH E. MCAFEE. (Attachments: # 1 Exhibit, # 2 Exhibit)(PAUL, 10/23/2014 07/08/2015 05/26/2016 218 275 280 1] ROBERT) (Entered: 09/24/2014) *z*** ORDER THAT THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT INGER- SOLL-RAND & CO. (DOC. NO. 171) IS GRANTED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/22/2014.10/27/2014 EN- TERED AND COPIES E- MAILED.(jmg, ) (Entered: 10/27/2014) zs** NOTICE OF APPEAL by KEN- NETH E. MCAFEE. Copies to Judge, Clerk USCA, Appeals Clerk and (PAUL, ROBERT) Modified on 7/10/2015 (fb). (En- tered: 07/08/2015) **z* ORDER THAT THIS COURT REAFFIRMS IT 10/22/14 EN- TRY OF JUDGMENT AND DI- RECTS ANY INTERESTED PARTIES TO ITS REASON- ING SET FORTH IN ITS 5/19/16 EXPLANATORY OR- DER. SIGNED BY HONORA- BLE EDUARDO C. ROBRENO ON 5/25/16. 5/26/16 ENTERED AND COPIES E- 05/31/2016 281 12 MAILED.(mbh, ) (Entered: 05/27/2016) NOTICE OF APPEAL by KEN- NETH E. MCAFEE. Fee Not Paid. Copies to Judge, Clerk USCA, Appeals Clerk.(PAUL, ROBERT) Modified on 5/31/2016 (fb). (Entered: 05/31/2016) *** 13 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA (ALLENTOWN) CIVIL DOCKET FOR CASE #: 5:13-cv-00474-ER DEVRIES, et al. v. GENERAL ELECTRIC COMPANY et al. *** Date Filed # Docket Text 01/25/2013 1 NOTICE OF REMOVAL by CBS CORPORATION, GEN- ERAL ELECTRIC COMPANY from Philadelphia CCP, case number December 2012 No. 3661. (Filing fee $ 350 receipt number 075971), Certificate of Service.(tj, ) (Additional attach- ment(s) added on 1/28/2013: # 1 Exhibits C-E) (tj,). (En- tered: 01/28/2013) z*** 07/02/2013. 168 AMENDED COMPLAINT with Certificate of Service against ALLEN-BRADLEY COM- PANY, ALLEN-SHERMAN- HOFF, AMTICO, AURORA PUMP, AZROCK INDUS- TRIES, INC., BELL & GOSSETT/DOMESTIC PUMP, BRYANT HEATING AND COOLING, BUFFALO PUMPS, INC., BURNHAM LLC, BW/IP, INC., CHICAGO 14 DRYER, CLEAVER BROOKS, INC., COPES VULCAN, CRANE CO., CROUSE- HINDS, DAL-TILE, DENISON INTERNATIONAL, DOVER CORPORATION, EDWARDS VALVE, ELLIOT GROUP U.S. HEADQUARTERS, FOSTER- WHEELER LLC, GARDNER- DENVER-JOY COMPRES- SORS, GENERAL ELECTRIC COMPANY, GLASGOW, INC., GOODYEAR CANADA, GOODYEAR TIRE & RUBBER CO., GUARD LINE, INC., HAMPSHIRE INDUSTRIES, HARNISCHFEGER CORP., HENKLES AND MCCOY, INC., INSUL CORPORATION, J.A. SEXAUER, METROPOLI- TAN LIFE INS. CO., MINNE- SOTA MINING & MANUFAC- TURING, OWENS-ILLINOIS, INC., RILEY STOKER COR- PORATION, SEPCO CORPO- RATION, UNITED CON- VEYOR CORPORATION, UNI- VERSAL REFRACTORIES, WARREN PUMPS, WEL MCLAIN, AMCHEM PROD- UCTS, IMO INDUSTRIES, INC., filed by JOHN B. DEVRIES, ROBERTA G. DEVRIES.(ti, ) Modified on 10/15/2013 10/15/2013 10/15/2013 10/15/2013 263 269 270 273 15 7/3/2013 (ti, ). (Entered: 07/03/2013) z** MOTION for Summary Judg- ment filed by WARREN PUMPS.Memorandun,, Certifi- cate of Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5Exhibit E, # 6 Exhibit F, #7 Exhibit G)()SCHEETS, JOSHUA) (Entered: 10/15/2013) **f MOTION for Summary Judg- ment filed by CBS CORPORA- TION.Memorandun, Certifi- cate of Service. (Attachments: #1 Exhibit A, # 2 Errata B, #3 Exhibit C, # 4 Exhibit D, # 5Exhibit E)(MCSHEA, JOHN) (Entered: 10/15/2013) MOTION for Summary Judg- ment filed by GENERAL ELECTRIC COMPANY.Memo- randum, Certificate of Service. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4Exhibit D)(MCSHEA, JOHN) (Entered: 10/15/2013) *** MOTION for Summary Judg- ment filed by IMO INDUS- 10/15/2013 10/15/2013 11/15/2013 274 277 291 16 TRIES, INC..Memoradum, Cer- tificate of Service.(FONTAK, JOSEPH) (Entered: 10/15/2013) MOTION for Summary Judg- ment filed by BUFFALO PUMPS, INC..Memorandum, Certificate of Ser- vice.(HOWARTH, JOHN) (En- tered: 10/15/2013) *** MOTION for Summary Judg- ment filed by FOSTER- WHEELER LLC.Memorandum of Law in Support of Motion for Summary Judgment and Cer- tificate of Service. (Attach- ments: # 1 Exhibit A, # 2 Ex- hibit B, # 3 Exhibit C, # 4 Ex- hibit D, # 5 Exhibit E, # 6 Ex- hibit F, # 7 Exhibit G, # 8 Ex- hibit H, # 9 Exhibit I, # 10 Ex- hibit J, # 11 Exhibit K, # 12 Ex- hibit L, # 13Exhibit M, # 14 Ex- hibit N)\(JANICZEK, LEROY) (Entered: 10/15/2013) **s RESPONSE to Motion re 277 MOTION for Summary Judgment of Foster Wheeler filed by JOHN B. DEVRIES. (Attachments: #1 part 2, #2 part 3, #3 part 4, #4 part 5, #5 part 6, 11/15/2013 11/15/2013 11/15/2013 11/15/2013 294 295 296 297 17 # 6 part 7, #7 part 8)(PAUL, ROBERT) (Entered: 11/15/2013) *z** 2s RESPONSE to Motion re 270 MOTION for Summary Judgment of General Elec- tric filed by JOHN B. DEVRIES. (Attachments: # 1 part 2, # 2 part 3, # 3 part 4, #4 part 5, #5 part 6)(PAUL, ROBERT) (Entered: 11/15/2013) RESPONSE in Opposition re 270 MOTION for Summary Judgment of Plaintiffs filed by GENERAL ELECTRIC COM- PANY. (Attachments: # 1 Ex- hibit A, # 2 Exhibit B, # 3 Ex- hibit C, # 4 Exhibit D)(MCSHEA, JOHN) (Entered: 11/15/2013) RESPONSE to Motion re 269 MOTION for Summary Judgment of CBS Corpora- tion filed by JOHN B. DEVRIES. (Attachments: #1 part 2, # 2 part 3, #3 part 4, # 4 part 5, # 5 part 6, # 6 part 7(PAUL, ROBERT) (Entered: 11/15/2013) RESPONSE to Motion re 273 MOTION for Summary 11/15/2013 11/15/2013 10/06/2014 10/06/2014 298 301 345 346 18 Judgment to IMO filed by JOHN B. DEVRIES. (Attach- ments: # 1 part 2)(PAUL, ROB- ERT) (Entered: 11/15/2013) RESPONSE to Motion re 274 MOTION for Summary Judgment of Buffalo Pumps filed by JOHN B. DEVRIES. (Attachments: #1 part 2, #2 part 3, #3 part 4, #4 part 5(PAUL, ROBERT) (Entered: 11/15/2013) s**t RESPONSE to Motion re 263 MOTION for Summary Judgment to Warren Pumps filed by JOHN B. DEVRIES. (Attachments: #1 part 2, # 2 part 3, # 3 part 4)(PAUL, ROBERT) (Entered: 11/15/2013) *z*** ORDER THAT THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT WARREN PUMPS (DOC. NO. 263 ) IS GRANTED. ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/1/14. 10/6/14 ENTERED AND COPIES E- MAILED.(va, ) (Entered: 10/06/2014) ORDER THAT THE MOTION FOR SUMMARY JUDGMENT 10/06/20 14 10/15/2014 10/15/2014 347 350 351 19 OF DEFENDANT IMO IN- DUSTRIES, INC. (DOC. NO. 273 ) IS GRANTED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/1/14. 10/6/14 ENTERED AND COPIES E- MAILED.(va, ) (Entered: 10/06/2014) ORDER THAT THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT BUFFALO PUMPS, INC. (DOC. NO. 274 ) IS GRANTED. ETC. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/01/2014. 10/06/2014 ENTERED AND COPIES E-MAILED. (va, ) (En- tered: 10/06/2014) z*** ORDER THAT THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT CBS COR- PORATION IS GRANTED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 10/10/2014. 10/15/2014 EN- TERED AND COPIES E- MAILED.(uh, ) (Entered: 10/15/2014) ORDER THAT THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT GENERAL ELECTRIC COMPANY IS 10/15/2014 353 01/26/2015 364 01/26/2015 365 02/12/2015 20 GRANTED. SIGNED BY HON- ORABLE EDUARDO C. ROBRENO ON 10/10/2014.10/15/2014 EN- TERED AND COPIES E- MAILED.(uh, ) (Entered: 10/15/2014) s**t ORDER THAT THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT FOSTER WHEELER LLC IS GRANTED. SIGNED BY HON- ORABLE EDUARDO C. ROBRENO ON 10/10/2014.10/15/2014 EN- TERED AND COPIES E- MAILED.(uh, ) (Entered: 10/15/2014) z**e NOTICE OF APPEAL by JOHN B. DEVRIES. Copies to Judge, Clerk USCA, Appeals Clerk (Entered: 01/26/2015) Clerk's Notice to USCA re 364 Notice of Appeal : (ti, ) (Entered: 01/28/2015) zz USCA Case Number 15-1278 for 364 Notice of Appeal filed by JOHN B. DEVRIES. (ahf) (Entered: 02/13/2015) **f 03/03/2016 05/19/2016 05/23/2016 368 369 371 21 ORDER of USCA as to 364 No- tice of Appeal filed by JOHN B. DEVRIES THAT THE CASE IS SUMMARILY REMANDED TO THE DISTRICT COURT TO CONSIDER THESE ITEMS; ETC. (ems) (Entered: 03/03/2016) MEMORANDUM AND/OR OPINION SIGNED BY HON- ORABLE EDUARDO C. ROBRENO ON 5/18/16. 5/19/16 ENTERED AND COPIES MAILED, E-MAILED.(ti, ) (En- tered: 05/19/2016) *z** NOTICE OF APPEAL by JOHN B. DEVRIES; no filing fee paid. Copies to Judge, Clerk USCA, and Appeals Clerk. (ti, ) Modified on 5/24/2016 (ti, ). (Entered: 05/24/2016) z*** 22 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA In Re: Asbestos Product ) Civil Action No. Liability Litigation ) MDL 875 ) All Actions ) AFFIDAVIT OF ROGER B, HORNE JR. RADM USN (RET) 1. Iam a retired Rear Admiral of the United States Navy, in which I served between 1956 and 1991. I began my Navy Career in 1956, immediately after receiving a Bachelor of Science degree in Naval Engi- neering from the Unites States Naval Academy at An- napolis, Maryland. I have also received extensive post-graduate education in naval engineering, includ- ing a Master of Science Degree in Mechanical Engi- neering from the U.S. Naval Postgraduate School, and have taught Naval Engineering as a Visiting Profes- sor at the University of Michigan. Throughout my Navy career, | concentrated in areas of ship design, engineering, construction, overhaul and inspection. Ultimately, I achieved the rank of Chief Engineer and Deputy Commander, Naval Sea Systems Command (“NAVSEA”) for Ship Design and Ship Systems Engi- neering. Prior to that, I served as Deputy Commander, NAVSEA for Facilities and Industrial Management; Commander, Puget Sound Naval Shipyard; Com- mander, Engineering Duty Officer School; Production and Repair Officer, Mare Island Naval Shipyard; Nu- clear Engineering Manager, Puget Sound Naval Ship- 23 yard; Nuclear Submarine Inspection Officer, Supervi- sor of Shipbuilding Office, Ingalls Shipyard and Chief Engineer in the USS Ozbourn (DD 846). I have been involved in the construction or overhaul of over 80 ships and su\»marines and served at sea. | am proud that these vessels have performed many ac- tivities vital to the national defense. Examples of these activities during my tenure include at sea task force operations following the Korean war while doing joint operations with ships of the Southeast Asia Treaty Organization (“SEATO”); shipyard positions including command with significant responsibilities concerning vessels with vital missions during the Cold War and Viet Nam war, as well as, senior positions later in my career with significant responsibility con- cerning the overall management of industrial facili- ties in both private and public shipyards as well as the design of new ships. 2. While in the Navy, I was recognized for achievements in the field of marine machinery and en- gineering, and I have received three National Legion of Merit Awards and three Meritorious Service Awards for Engineering and Industrial Achievement and an award from the Marine Machinery Association. 3. In addition to my training and experience in Navy ship construction as outlined above, upon retire- ment, I taught part-time at the University of Michi- gan as a visiting professor in ship construction. Fur- ther, in civilian life, I had responsibility for the Ma- rine and Aviation Section at Failure Analysis Associ- ates located in Menlo Park California. On retirement from Failure Analysis Associates I have been involved with many asbestos related legal cases. Exhibit 1 is a true, complete and correct copy of my curriculum vitae. 24 4. Based on my naval experience and training, general knowledge and review of the materials sup- plied me, I submit this Affidavit to attest to (a) the Navy’s mission and the relevance of equipment design, engineering, construction, repair, overhaul and in- spection to that mission; (b) the centrality of equip- ment and materials such as propulsion turbines, tur- bine-generator sets and related equipment (“turbines”) and asbestos thermal insulation to the Navy’s ability to successfully wage wars in the 20 Century; and (c) the importance of Navy designed and Navy controlled asbestos warning procedures. 5. Stated simply, the mission of the Navy is to win wars, deter aggression and maintain freedom of the seas. In the interests of the national defense, the Navy has four primary areas of responsibility con- cerning ships and submarines: (1) the design and con- struction of naval forces necessary for effective prose- cution of national defense; (2) the maintenance of na- val ships and equipment essential to readiness for na- val operations; (3) the development of new equipment and weapon systems; and (4) support for its sailors. 6. The country requires a Navy with offensive capability that can project power to discourage ag- gressive action by other nations. There is never a time when the Navy is not either engaged in combat or pre- paring for combat by readying its primary war weap- ons — ships and sailors — for battle. Even in times of “peace” (when the Country is not officially at war or when ships are not engaged in combat), the Navy pro- vides important combat-related services. For example, Navy submarines patrolling international waters have been credited with assisting in the collapse of So- viet Russia during the nuclear arms race between the 25 United States and Russia commonly referred to as the Cold War. 7. Retaining a trained base of personnel, contin- ually introducing state-of-the-art equipment and ma- terials, and keeping in good repair its ships, aircraft and auxiliary equipment are essential, inextricable aspects of the Navy’s national responsibilities. For this reason, the Navy’s effort to design, engineer, con- struct, repair, and inspect its ships, aircraft and aux- iliary vessels, whether during operations or in ship- yards, was and is critical to the Navy’s mission. With- out continual training of personnel and construction and repair of its ships and auxiliary equipment, the Navy would not be capable of deterring aggression and fighting wars. 8. The Navy has a chain of command which es- tablishes reporting authority from junior to senior of- ficers and provides for the communication of instruc- tion and orders among Navy personnel. To ensure that all Navy personnel know and understand the chain of command, enlisted personnel are taught it in boot camp and officers learn about it in the Naval Academy and other schools and college programs. This chain of command is crucial to mission success because it provides a single, uniform and effective method of communication. The Navy’s chain of com- mand enables the Navy to effectively organize its sail- ors and prepare them to respond to combat situations and perform a variety of strategic operations at a mo- ment’s notice. Obviously discipline is a key element supporting the Navy’s mission. Personne! at all levels must be relied upon to carry out the lawful orders of their senior officers. Failure to have this ingrained in 26 the Navy culture would lead to chaos and mission fail- ure in battle. 9. The Navy chain of command concerning ship construction involves several layers of authority re- lated to technical and contractual control over Navy shipbuilding. The Secretary of the Navy has ultimate authority over the Navy and Navy shipbuilding; im- mediately below the Secretary, as has been the case since the creation of NAVSEA is the Chief of Naval Operations (“CNO”) to whom NAVSEA reports. Prior to the establishment of NAVSEA, the Bureau of Ships (“BUSHIPS”) controlled all combat ship design and construction and reported to the CNO as well as a ci- vilian Assistant Secretary of the Navy. Since the cre- ation of NAVSEA, NAVSEA reports to the CNO for all military ship design and construction. 10. The CNO is the top military official in the Navy. The CNO has lead responsibility for all matters of strategy, tactics and operations. Typically, the CNO will identify a threat or a special need, and NAVSEA will design ships and equipment to address the CNO’s requirement. Designing a new ship is com- plex and involves the coordination of many engineer- ing disciplines knowledgeable in the technical state- of-the-art in their individual professional areas. It is easy to understand Navy ships must satisfy a variety of missions and, although some ships can carry out multiple missions, there will be a need for a variety of ships with different designs. Generally the need for ships with specific mission capability will be conveyed to the NAVSEA by the CNO. NAVSEA will respond with concept designs. From this phase NAVSEA will go through a series of design iterations (“design spi- ral”) in coordination with the CNO’s staff until finally 27 a detailed and a contract design is reached for the ship. The design will set the needs for turbines along with other equipment and weapon systems. The Navy has its own engineers who specialize in turbines (machin- ery experts) and who are familiar with the state of the art for commercial turbines. The Navy’s machinery experts do not actually design turbines themselves, but they use their expertise to develop a turbine de- sign concept that contemplates emerging technology and new materials, as well as military tactical needs. Once a turbine design concept has been established, the Navy’s machinery experts will consult with com- mercial turbine manufacturers concerning their tur- bine concept. Through a complex, iterative process the Navy works closely with turbine manufacturers to attain an ultimate turbine design that meets its new military requirements. The Navy will use previously developed military specifications (“MilSpecs”), create any additional specifications that may be required, and then issue a request for bids from qualified con- tractors in an effort to identify a contractor with the capability and capacity to create a design and to man- ufacture a turbine that satisfies its new military re- quirements. 11. The design of turbines and development of turbine military specifications are essential aspects of the Navy’s shipbuilding program. These designs and specifications are built on the totality of the Navy's experience in fighting and planning for wars — what works, what is reliable, operation cycles, maintenance problems, and a multitude of other factors uniquely related to combat conditions. The ultimate design and military specifications for turbines developed by the 28 Navy reflect the existing state-of-the-art and demon- strate the Navy’s operational experience in a variety of circumstances. They reflect the turbine design characteristics that directly impact the combat effec- tiveness of Navy ships and include among many other attributes the following: a. Reliability: Turbines must be designed so that they are efficient and provide reliable power to enable the ships to travel long distances over ex- tended periods without undue maintenance. b. Quietness: Turbines aboard surface ships and, particularly, submarines must operate quietly to help protect the ships from enemy detection. c. “Battle” Hardness: Turbines must be able to withstand the substantial shock sometimes ex- perienced in battle. Material selection under shock requirements often dictates the use of spe- cial materials not found in commercial turbines. d. Maintainability: Turbines must be designed so that they can be easily maintained at sea and require infrequent repair and overhaul. Tur- bines also must be designed so that they are compatible with standardized, replacement parts (consumable items) carried in the Navy’s stock system. 12. Further, regarding the Navy’s organization for controlling material as well as ship construction and maintenance, under the command of NAVSEA (as was the case with BUSHIPS) the Navy’s shipbuilding structure is comprised of several divisions and levels of authority concerning equipment design, construc- tion, repair and inspection. The Commander of Naval 29 Sea Systems and the Commander of Naval Supply di- rect technical and contractual control over shipboard construction, as ‘well as, equipment and material. Both organizations have oversight responsibility con- cerning, among other things, equipment built for Navy vessels, as well as, the Navy vessel itself. Com- pliance with the standards and specifications required for ships and equipment built for Navy use was and is directly monitored by Naval Machinery Inspectors (some specializing in turbines) under both of these di- visions. The Naval Machinery Inspectors are respon- sible to the Head of the Inspection Department for as- suring that contractors follow the required military specifications as they relate to naval machinery. Fur- ther, the Naval Machinery Inspectors report to their superiors any violations or failures to comply with specifications. 13. At times the machinery inspectors under Na- val Supply have worked on-site at the vendors’ manu- facturing facility for equipment, and the Supervisor of Shipbuilding (reporting to BUSHIPS) had Navy in- spectors that carried out their inspection and contrac- tual responsibilities at the shipbuilding yards. At one time in my career, the offices of the Supervisor of Shipbuilding reported to me for administration of the contracts for which they were responsible. Inspectors within the Supervisor of Shipbuilding offices would report to their superiors any violations or failures to comply with specifications. 14. Whether aboard ship or in a shipyard, the Navy Commander is the ultimate authority in all things related to the ship’s operation or ship’s con- struction, repair and overhaul, including instructions 30 that might impact the health and safety of Navy sail- ors or civilian workers engaged in these activities. The role of civilians both in Navy yards and in private yards was to carry out work in accordance with mili- tary specifications. At a Navy Yard, the Navy itself was directly involved in assuring the specifications are followed because everyone in a Navy yard is either an officer or a government contract worker. In a pri- vate yard, the Navy would have a local office of the Supervisor of Shipbuilding staffed, with Navy officers who are responsible for supervising all civilian activi- ties and for inspecting and verifying purchasing docu- ments and receiving equipment and material to en- sure the ship construction and repair in the private yard conforms to Navy specifications. The Supervisor has to follow the requirements specified or get formal waivers to the specifications of interest from BUSHIPS. Through these means, the Navy has as- surance that its ships meet the rigorous requirements of wartime vessels. 15. The attached exhibits illustrate the organiza- tional lines of command for technical and contractual control over Navy shipbuilding. (See Exhibits 2 and 3). For a description of the responsibilities of each of the parties reflected on the attached organizational charts, refer to Exhibit 4, a document I prepared which describes in detail each individual’s authority and responsibilities and explains how each level of command interrelates in the collective Navy effort to design, build and maintain our Navy fleet. In addition, this description identifies the several federal officers who exercised control over equipment manufacturers, including Westinghouse Electric Corporation (“West- inghouse”) and General Electric Company (“GE”), 31 whenever they built and supplied turbines to the Navy during the past 50 or 60 years. 16. As noted, turbines built for Navy vessels, in- cluding Westinghouse and GE turbines, were manu- factured according to plans and specifications pre- pared, written and issued exclusively by the Navy, specifically NAVSEA or BUSHIPS. This is my expe- rience having served as Chief Engineer and Deputy Commander for NAVSEA’s Ship Design and Engi- neering Division. I was responsible to the Com- mander of NAVSEA for developing ship designs and for overall technical support to the operating fleet, maintenance of ships, and ships under construction. Additionally, I was responsible for the maintenance of Navy ship military specifications and for monitoring compliance with the specifications by all vendors and contractors of Navy equipment. 17. The MilSpecs for Navy equipment were drafted, approved and maintained by the Navy, spe- cifically NAVSEA, to address shipboard equipment and materials requirements, and any changes to those specifications were made by the Navy. NAVSEA maintained and controlled the MilSpecs largely be- cause it had superior knowledge of the demands and requirements of combat-ready vessels. NAVSEA or BUSHIPS also prepared contract specifications which incorporated the MilSpecs. These specifications re- flected the state-of-the-art and the special needs of combat and combat support vessels destined to deter or engage in war. 18. The specifications were communicated to Westinghouse, GE and other similar vendors when the Navy issued its Request for Proposal for certain equipment. Attached hereto as Exhibit 5 is a brief 32 summary of Navy Ship Design and Naval Machinery Military Specifications, as well as a brief summary of the Navy Ship Design/Construction Procedures, which explains how the Navy’s machinery vendors were governed by the Navy’s specifications. 19. An illustration of the control the Navy exer- cised over production of its turbines is the process by which turbines were made for the U.S.S Kitty Hawk, a Navy aircraft carrier. Examples of the specifications which applied to shipboard equipment for the U.S_S. Kitty Hawk are attached hereto as Exhibits 6 and 7. Exhibit 6 is an excerpt of a Military Specification con- cerning Turbine, Steam and General Auxiliary equip- ment (Naval Shipboard Use) identified as MIL-T- 17523A (SHIPS) dated 1 August 1955. Exhibit 7 is Bureau of Ships Contract Specification for Generator Set, Steam Turbine, also identified as “SHIPS-G- 1956” dated 25 April 1955. Exhibit 8, attached hereto, is a copy of Westinghouse’s purchase order for the tur- bines for the Kitty Hawk. This is evident based on the following information: the reference on page | of Ex- hibit 8 to “CVA 63” is to the ship number assigned by the Navy to the Kitty Hawk (CVA indicates it is an aircraft carrier, and 63 is this carrier's number). The Customer Order No. “NOBS-67530” is a reference to the Navy’s contract number, i.e. the contract issued by BUSHIPS to Westinghouse to build the equipment de- scribed on page | of Exhibit 8. On page 4 of Exhibit 8, there is a reference to “Bureau of Ships Contract Spec- ification SHIPS-G-1956, dated 25 April 1955,” which is Exhibit 7. On page 2 of Exhibit 8 is a reference to “MIL-T-17523,” which is Exhibit 6, the military spec- ification described above. These documents mean that the Navy ordered from Westinghouse the turbine 33 equipment described in Exhibit 8, which incorporates the specifications in Exhibits 6 and 7, for use aboard the U.S.S. Kitty Hawk. As referenced throughout Ex- hibit 8, Westinghouse was to perform its work under control of the Navy: e.g. “Inspection: At Contractor’s Plant, Essington, Pennsylvania, By the Inspector of Machinery, USN, Essington, Pennsylvania, except Item 2 shall be inspected . . . by the Assistant Inspec- tor of Naval Material, East Pittsburgh, Pennsylvania” (Nme #4, p. 3); “Engineering service shall be per- formed . . . as directed by the Chief, Bureau of Ships or his duly authorized representative” (p. 4); “Contrac- tor agrees to enter into a standard government con- tract .. . from the Bureau of Ships or Department of the Navy” (p. 5); “Contractor shall furnish the services of competent engineer(s) . . . as directed by the Chief, Bureau of Ships, or his duly authorized representa- tives.” (Item 7, p. 5.) 20. As illustrated by the Kitty Hawk documents, all Navy vessel equipment, including Westinghouse and GE turbines, was built according to Navy specifi- cations and approved for installation aboard these vessels exclusively by the Navy and its designated of- ficers. 21. It should be easy to understand, and it is my experience, that the Navy retained the “final say” over the design attributes of naval ships and their equip- ment. As the purchaser, and having the engineering expertise and experience as to what was needed for naval combat vessels, the Navy retained final respon- sibility for the ultimate decision regarding how to re- solve any disagreement between the Navy and a ship- builder or an outside equipment supplier. In the case of private yards the Supervisor of Shipbuilding Office 34 provided the link between the shipbuilder and BUSHIPS in settling any disputes over Navy require- ments. If Navy specifications were not followed by the shipbuilder the Supervisor's inspectors would reject the shipbuilder’s involved work. All such disputes were handled formally and any changes required change orders to the contract or formal waivers to the specifications. 22. Considering the above, any and all work per- formed in the construction and repair of Navy ships noted in this case, as well as, the equipment built and supplied for these vessels was performed to combat re- quirements developed and specified by the Navy. Fur- ther, such work was typically reviewed and inspected by Navy personnel in the vendors’ plants and in ship- building and repair yards. Such rigid conformance to requirements was absolutely necessary for the con- struction of a warship which was to take our sailors in harm’s way. 23. The military specifications for turbines en- sured that each and every turbine ordered by the Navy, regardless of the identity of the specific contract manufacturer, was uniform, complied with the Navy’s combat requirements and would operate in the man- ner demanded by the Navy. This uniformity was crit- ical because the Navy cannot take a ship into battle unless it knows that each component of the ship will satisfy precisely its specifications including those for reliability, quietness, battle hardness and maintaina- bility. These characteristics are vital in total to the success of the ship’s mission. The Navy cannot put a ship into harm’s way and have it “dead in the “water” due to a limitation in its ‘turbines’ capabilities. The consequences of such problems — which can include 35 death, loss of ship or mission failure — are unaccepta- ble to the Navy. Certainly the ship’s propulsion plant, including turbines, are as important as the ships’ weapons during combat. 24. Based on my experience and knowledge, the Navy required that all turbines be delivered “bare metal,” meaning that the turbines were not to be ac- companied by any type of insulation at the time of de- livery. Pursuant to Navy military specifications, the turbines were designed by the Navy to include only metal rails and hooks, the means through which insu- lation could be attached. It would not have been pos- sible for contract manufacturers to deliver turbines to the Navy without these rails and hooks because such turbines would not conform to military specifications. Moreover, the Navy did not permit individual turbine manufacturers to insulate their equipment prior to in- stallation because it was more economical, efficient and allowed preoperational inspection and testing to have the ship’s entire plant insulated at one time than to have each piece of equipment come with its own in- sulation. Additionally, the Navy was concerned that pre-installed insulation on turbines could be easily damaged during shipment. 25 ~=It was the Navy, not contract manufacturers, that required the use of asbestos thermal insulation with turbines intended for installation on Navy ships. The Navy had its own engineers with expertise in in- sulation and heat transfer. These engineers devel- oped their own plans and standards for the insulation of Navy equipment and, with respect to turbine insu- lation, these Navy engineers determined that asbes- tos thermal insulation best met the Navy’s military 36 requirements. Asbestos thermal insulation had char- acteristics that were essential to the proper operation of turbines on Navy ships including: optimum heat re- tention, low weight, fire resistance, resistance to wa- ter damage and insect infestation, and cost-efficiency. Weight, in particular, was a significant factor in the Navy’s determination to use asbestos insulation. Alt- hough specific amounts varied according to the partic- ular class of ship and propulsion plant design at issue, in general, Navy destroyers overall required approxi- mately 22 tons of asbestos thermal insulation and Navy aircraft carriers as much 300 tons of asbestos thermal insulation. Because asbestos had all of the characteristics critical to insulation on a Navy ship, the Navy had difficulty identifying satisfactory substi- tutes. Until acceptable substitutes were identified by the Navy beginning in the late-1970s, asbestos ther- mal insulation was critical to naval ship design and operation. Without proper insulation of the ship’s pro- pulsion plant (including turbines, boilers and auxil- iary equipment), the ship’s plant would be inefficient due to loss of heat and sailors would be burned or un- able to operate in engineering spaces due to heat lev- els. Also, every pound of heavier insulation would dis- place the amount of weapons or fuel that could be placed aboard ship. For these reasons, Navy specifi- cations demanded the use of asbestos thermal insula- tion with its turbines and auxiliary equipment for most of the 20% Century. If not for the presence of asbestos thermal insulation, the ship’s efficiency would not allow it to operate properly including in combat. 26. In pursuing competitive bids from equipment vendors such as turbine manufacturers or asbestos 37 suppliers, cost was never the only or over-riding factor in equipment and material selection. All essential equipment placed aboard a Navy ship, including tur- bines and asbestos thermal insulation, had to meet the requirements of a ship intended to be placed in harm’s way. 27. There is no way to battle harden a ship to the extent that no losses to personnel or equipment are ever sustained. For this reason, the Navy continually evaluated the combat benefits of specified equipment and materials against the potential risk to the health and safety of Navy personnel and civilian workers. Under the Navy’s command structure, the responsi- bility for health and safety fell under separate divi- sions. The CNO was responsible for, and concerned with, issues seen as immediate threats to safety, and the Bureau of Medicine (BUMED) was responsible for medical treatment and issues related to long-term health hazards. The CNO and BUMED and their staffs communicate and coordinate on health issues. At times Navy personnel have to operate in harms way, and the Navy has to use the best material avail- able to that end and control with procedures some health risks if necessary to fulfill its mission. For most of the 20*6 Century, it is clear that the Navy con- sidered turbines to be “vital” to its combat mission (see MIL-T-17600A (SHIPS)) and that asbestos thermal insulation was essential to safe and efficient oper: tion of its ships (see Bureau of Ships Manual, Ch. 39, Ther- mal Insulation (Aug. 24, 1945, Sec. 39-2). 28. The Navy has been aware of the health risk of exposure to asbestos dust since at least the 1920s. Until 1975, when it issued a policy aimed at eliminat- ing the use of asbestos materials where possible, the 38 Navy believed that it had instituted adequate controls to protect personnel working with or around asbestos materials. However, even as the Navy moved toward elimination of asbestos materials in the late 1970s, the Navy could not immediately eliminate all asbestos and had to place additional measures believed to be necessary to control the health risks understood at the time. Capital steam driven ships had many tons of insulation and to immediately implement a program of total asbestos removal would immobilize the Navy for a lengthy period. Further, replacement material meeting the Navy’s stringent military specifications was not available. Rather, the Navy instituted a care- ful and deliberate asbestos removal program that con- tinued to protect personnel health to the greatest ex- tent possible in light of operational demands includ- ing cost concerns. This program provided for replac- ing asbestos-containing insulation with non-asbestos insulation when repairs were required; leaving in place fixed or intact asbestos-containing insulation but painting the insulation (magenta with a white overlay) to identify the presence of potentially hazard- ous asbestos materials to workers; continuing to use existing stocks of asbestos-containing insulation in the Navy supply system; and continuing to accept new ships delivered with asbestos-containing insulation into the late 1970s, when a transition could be made commensurate with material availability and ship construction schedules. 29. The Navy's military specifications, which were enforced through the Navy’s command structure, were designed to provide clear, concise, directions to all Navy personnel and civilian contractors working 39 under Navy direction. Not only did military specifica- tions describe the physical equipment and material to be used in Navy ships but they also addressed the in- structions considered essential by the Navy to warn individuals working with that equipment and mate- rial about potential hazards. For example, military specifications included directions for the painting and labeling of ship systems and equipment as well as the content of instruction manuals to be used in the oper- ation and maintenance of equipment. 30. Military Specifications for technical manuals (MIL 15071) prior to 1957 did not mention warnings. Fven when later revisions of the specification did mention warnings (Mil - M- 15071C of 10 Sep. 1957), it was the Navy’s intent to include only warnings con- cerning how someone might be immediately physi- cally injured by their actions or cause serious damage to equipment. It was also specifically noted that such warnings were to be used sparingly as was consistent with real need. These instructions were universally understood by the Navy not to include long-term health hazards such as those presented by asbestos. Even after the hazard of asbestos was more fully un- derstood by the Navy beginning in the mid to late 1960s, the Navy did not require changes to the tech- nical manuals. Inst. .d, the Navy invoked effective in- ternal instructions for the safe handling of asbestos. The Navy had final say, approved the content of tech- nical manuals and had state-of-the-art medical under- standing of the dangers of asbestos. Clearly if the Navy thought it necessary it could have required a warning concerning asbestos. 31. Further, the Navy controlled labeling that went on all equipment and materials. It should be 40 noted that, even with increased knowledge concerning asbestos after the mid to late 1960's, the Navy did not require everything containing or associated with as- bestos materials to be labeled as hazardous. In addi- tion to the asbestos thermal insulation used in a ship’s plant (turbines, boilers and auxiliary equipment), there were miles and miles of insulated pipe and cable; hundreds, if not thousands, of valves; and other equip- ment that involved asbestos in some way. Once the additional hazard of asbestos was understood, the Navy developed procedures to control work involving asbestos and to monitor exposure to asbestos dust while, at the same time, seeking and testing new ma- terials to be used. 32. I served in shipyards before and after the Navy’s internal asbestos control instructions came out, and was in ships under construction and overhaul daily for many years. It is my opinion that the mili- tary specifications and naval instructions were effec- tive in controlling the asbestos hazard while main- taining the benefits associated with asbestos insula- tion. Labeling of systems or components containing asbestos, even with the Navy's increased understand- ing of the hazards, was not considered practical for combat and combat support operations and, therefore, was not directed or allowed by the Navy. Instead, the Navy chose to control and make personnel aware of the hazards of asbestos exposures through the strict, effective, procedures required by military specifica- tions and personnel training. 33. In summary, the Navy exercised rigid control over the design, manufacture and installation of es- sential plant equipment and materials, such as tur- bines and asbestos insulations, to ensure that this 41 equipment and material would perform as expected during battle conditions. The Navy also developed and imposed requirements for warnings and docu- mentation necessary for the maintenance of this equipment and material to ensure that personnel, particularly in combat conditions, received only one clear set of instructions that had been approved by the chain of command. Finally the Navy had in place a formal organization at building and repair facilities, and also available to inspect at supplier's plants, in order to assure its combat requirements were met. 34. I can attest that any and all work performed on turbines built and supplied for Navy ships by ven- dors such as Westinghouse and GE was performed to the requirements specified by the Navy and that the work was reviewed and inspected by Navy personnel in the vendor’s plant and in the shipbuilding yards to ensure that the turbines met the Navy’s combat needs. As noted earlier, in many instances during my career I personally inspected equipment to verify conform- ance with the requirements specified, although more immediate supervision typically was exercised by of- ficers and other Navy personnel under my command or the command of NAVSEA or its predecessor, BUSHIPS. 35. Further in summary, | have’ general knowledge and extensive Navy experience with the comprehensive plans, specifications and requirements that governed the construction of Navy ships and the equipment placed on them. At one time, the engineers that prepared specifications and accomplished ship designs worked under me at NAVSEA. The Navy had general specifications and detailed specifications, as 42 well as, plans that were invoked by contract. The gen- eral and detailed specifications and contract plans also invoked more detailed specifications for the ship design, as well as, for the equipment and material to be used in its construction. Frequently, the more de- tailed specifications and contract plans noted above would invoke even further specifications so that a shipbuilder had to comply in all aspects of the con- struction. Such direction also included material ref- erenced in the plans and stocked by the Navy. The Navy developed detailed requirements for the con- struction, maintenance and operation of warships and auxiliaries in order to ensure the ship’s continued ability to operate in combat zones and be maintained with material specified and stocked by the Navy. Ad- herence to the Navy’s specifications was mandatory because lives depended on it. 36. I have extensive experience and knowledge concerning the control exercised by the Navy during the construction, repair and overhaul of ships in Navy yards and private yards. Later in my career, all the Supervisor of Shipbuilding Offices inspecting Navy ships and other contracts reported to me (15 offices nationwide). I have personally inspected ships and equipment during construction, repair or overhaul, to verify conformance with the requirements specified and have given instructions to Navy employed inspec- tors as to how inspections were to be made. At times | and my inspectors have rejected items that failed to meet specifications. For example, | recall rejecting various piping integrity systems (including valves and gaskets) for failure to meet specifications because they proved to leak during system hydrostatic tests. In an- other case, testing during sea trials revealed a turbine 43 bearing leaked oil due to faulty oil seals. These type of rejections occurred frequently during ship construc- tion and repair. 37. Based on my experience, knowledge and re- search, my opinions are that: a. b. The fundamental first step to the Navy’s ability to successfully fight wars is the design and con- struction of its combat and combat support ves- sels as an integrated weapons system. The de- sign of the propulsion plants aboard these ves- sels, including turbine design and manufacture and material selection such as insulation, rep- resent vital military combat-related decisions commensurate with state-of-the-art knowledge and industrial capability at the time. Each mil- itary specification developed by the Navy re- lated to turbines and asbestos insulation aboard ship were necessary to meet the tactical and strategic military characteristics ulti- mately required by the CNO, the highest Navy officer. These specifications reflected the state- of-the-art and the special needs of vessels des- tined to either engage in or support combat ac- tivities. Because of the Navy’s superior knowledge of the tactical demands and operational require- ments of combat vessels and of the availability of processes and materials in support of those needs, the Navy exclusively controlled the de- tailed specifications for its equipment in its pro- pulsion plants and the type of insulation mate- rials to be used with that equipment. It also exclusively controlled warnings related to 44 health and safety implications of its selected in- sulation materials. The Navy could not, and did not, permit any equipment manufacturer or material supplier to interfere with mission suc- cess by supplying turbines or insulation that did not expressly comply with Navy specifica- tions or by placing warnings on equipment (or in instructions or manuals accompanying the equipment) without Navy approval. c. The Navy made calculated decisions on the al- location of its resources in light of its knowledge of the hazards of asbestos insulation and the technical and operational demands of war. The Navy instituted a comprehensive program, both aboard ship and in shipyards, to address the hazards of asbestos in a manner consistent with the unique circumstances of combat and combat-support ships that require the sensitive military balancing of tactical, strategic, and technical needs and budgetary constraints against the placing of sailors and civilian work- ers in harm’s way in the defense of the Country. | declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct, and that if called as a witness, I could compe- tently testify to the foregoing facts, all of which are within my own personal knowledge. Executed this 19*» day of August, 2013. 45 s/ Roger B. Horne, Jr. ROGER B. HORNE, JR. State of Washington County of Subscribed and sworn to before me this 19% day of August, 2013. s/ April R. Ihde Notary Public My commission expires: 5/10/2017 46 United States District Court Eastern District of Pennsylvania (Allentown) CIVIL DOCKET FOR CASE#: 5:13-cv-00474-ER DEVRIES et al v. GENERAL ELECTRIC COMPANY et a! REPORT OF SAMUEL A. FORMAN. M.D. L. BACKGROUND 1. [am a medical doctor specializing in preven- tive medicine and occupational medicine. | received a B.A. degree from the University of Pennsylvania ma- joring in history and biology, graduating magna cum laude in 1973. I attended Cornell Medical School, graduating with an M.D. degree in 1977. | also re- ceived a degree in public health in 1977 as a result of a joint program with the Harvard School of Public Health. Thereafter, I became board certified in occu- pational medicine after attending a residency at the Harvard School of Public Health. 2. From 1973 to 1977, I participated in Ensign 1975, a Navy program that permitted me to engage in active duty service and obtain hands-on training dur- ing the summers between medical school sessions. My participation in this program gave me background and experience different from that of many other pro- spective medical officers at that time, because very few medical officers engage in operational and admin- istrative rotations as part of their service and training. In the summer of 1974, I engaged in a midshipmen cruise aboard the USS Shreveport (LPD-12) for the purpose of obtaining a general understanding of ship operations outside the medical department. I at- tended training classes and observed activities in all 47 parts of the ship including the engineering depart- ment, command information center, commissary de- partment, supply and repair divisions, and aviation division. In the summer of 1975, I did a rotation at the Navy Bureau of Medicine and Surgery (“BUMED”), known at times as the Naval Medical Command. While there, I participated in medical ad- ministration in the office overseeing all medical train- ing for the Navy and worked directly with a number of high-ranking officers in BUMED, including William M. McDermott, who at that time held the rank of Cap- tain but who later became Deputy Commander of the Naval Medical Command. During this rotation, I had an extended assignment to analyze Navy expendi- tures for medical education at civilian universities to ensure the Navy’s needs were being met. In the sum- mer of 1976, I did a clinical rotation on the general and internal medicine wards at San Diego Naval Hos- pital, the largest military hospital in the world. By the time I graduated medical school, I had already ac- cumulated approximately six months of active duty service from my summer internships. These intern- ships gave me a fundamental understanding of the needs of sailors at sea, a general understanding of ship operations, including ship propulsion systems, and insight into the leadership and administrative side of the Navy. 3. In 1977, | graduated from medical school and went on full-time active duty in the Navy. | performed my internship at the Bethesda Naval Medical Center in Bethesda, Maryland during 1977 and 1978. I re- mained on active duty in the Navy until 1983. There- after, | continued to work for the Navy as a civilian 48 employee until 1986. My qualifications and creden- tials are more fully described in my curriculum vitae (Exhibit A). 4. Over the course of my active duty service in the Navy, I served aboard Navy ships whose primary purpose was to fulfill national defense missions of the United States. Assignments aboard ship, involving duty at sea, included, in addition to the Shreveport in the North Atlantic, USS Duluth (LPD-6) in the East- ern Pacific, and USS St. Louis (LKA-116) in the West- ern Pacific. At all times, these ships were performing missions and activities aimed at preparing for or de- terring combat. In the military setting, a major goal of training is combat readiness. This training is in- tended to simulate combat and combat conditions. For example, the Navy hands out “battle efficiency” ribbons to ships that perform well in war exercises. Even combat support ships are required to remain ready to assist ships and sailors on the front line and, at times, these support ships must themselves go into harm’s way. To achieve its mission, the Navy had to be willing to put life and limb at risk not just on the front line but also in support operations. 5. One of the highest profile operations in which | was involved occurred aboard the St. Louis, which was an amphibious attack transport ship deployed at the time to the Western Pacific for the purpose of car- rying Marines, cargo (including heavily armored Ma- nne Corps vehicles used in amphibious assault), equipment and supplies to Navy shore-based facilities. In March 1979, President Carter ordered the Navy to rescue a wave of Vietnamese and Southeast Asian ref- ugees who were escaping communist Vietnam and lo- cal pirates into the South China Sea. The St. Louis 49 was the first ship of the Seventh Fleet to arrive on the scene. Fortunately the St. Louis was able to perform this mission without exchanging hostile fire; however, in order to perform this humanitarian rescue opera- tion, the St. Louis had to travel just outside the twelve mile international limit and sail directly into an area threatened by actively hostile Communist interests. This situation represented an intense Cold War sce- nario, one of but many types of hazardous scenarios and missions for which the Navy must be prepared. 6. In the course of my active duty service, I also worked in Navy shore facilities, including shipyards such as the Long Beach Naval Shipyard. These facil- ities contributed to the defense of the country by en- gaging in industrial efforts to construct, repair and overhaul the Navy’s combat and combat support ves- sels. My role was to ensure that the Navy personnel and civilians involved in these efforts performed their duties as safely as possible. 7. From 1980 to | 982, I ran an occupational health clinic at the Naval Weapons Station at Seal Beach, California, and assisted in the medical pro- grams at the Long Beach Naval Shipyard. Among other responsibilities, I assisted in the asbestos medi- cal surveillance program for over 2,000 federal Civil Service employees and uniformed sailors. At any one time, I was following 200 cases of asbestos disease. 8. In 1982, | was assigned to the Naval Environ- mental Health Center at Norfolk, Virginia. While sta- tioned there, I designed occupational medicine pro- grams with regard to Navy-specific occupational dis- eases, performed health hazard evaluations, in- spected the occupational health programs of govern- ment facilities as part of the Navy Occupational 50 Safety and Health, or “NAVOSH,” program, carried out epidemiologic studies, and trained Navy doctors and nurses in occupational medicine. 9. In 1983, a JAG officer for the Naval Medical Command requested that | become part of a team to locate, digest and organize government documents for production in asbestos litigation. Over the next year and a half, I investigated the Navy’s historical han- dling and knowledge of various industrial hygiene is- sues, including asbestos disease. 10. In 1985, pursuant to Navy orders, I completed my review of Navy knowledge and practice in indus- trial hygiene, including its awareness of and response to health hazards of asbestos, as a formal assignment. My search for documents took me to the National Ar- chives, other warehouses and storage facilities for rec- ords of the Navy’s Bureau of Medicine and Surgery. | was given full security clearances for and unimpeded access to these facilities. | also conducted research at private facilities such as Harvard University’s Count- way Library of Medicine's section for rare books and manuscripts. 11. From my review of countless Navy documents and my studies while employed by the Navy, I ac- quired extensive knowledge as to the state of Navy knowledge and awareness regarding the hazards of asbestos. 12. Following my research, and with the approval of the U.S. Navy’s Bureau of Medicine and Surgery, | published an article entitled “U.S. Navy Shipyard Oc- cupational Medicine Through World War II” in the Journal of Occupational Medicine, Vol. 30, No. 1 (Jan. 1988) (Ref. 1). 51 13. Though I no longer hold any formal position with the Navy, since I left I have been asked on a num- ber of occasions to speak to Navy medical and safety personnel on issues relating to the history of occupa- tional medicine and industrial hygiene in the Navy. 14. lLalso am currently a Visiting Scientist in the Department of Environmental Health at the Harvard University School of Public Health. II. DISCUSSION AND OPINIONS A. Navy Occupational Health and Industrial Hygiene Organization 15. The Navy has always taken responsibility for the health and safety of its uniformed and civilian per- sonnel. It has consistently exercised its discretion re- garding hazard recognition and appropriate controls in Navy workplaces. As Navy Captain Ernest W. Brown, M.D., recognized as the architect of the Navy's formal occupational health program prior to World War II, wrote in 1940: “One of the most important con- cerns of the Medical Department of the United States Navy today is industrial hygiene, especially in navy yard practice.” (Ref. 2). 16. This commitment was reflected in numerous other Navy statements and documents. In 1943, Sec- retary of the Navy, Frank Knox, in a statement co- signed by the Chairman of the U.S. Maritime Com- mission, KE. 8S. Lamb accompanying “Minimum Re- quirements for Safety and Industrial Health in Con- tract Shipyards,” stressed the Navy’s commitment in this regard: The necessity for conserving manpower and pro- moting the physical welfare, health, and safety of what shortly will amount to one million workers in 52 shipyards required that careful observance of standards for the prevention of accidents and pro- tection of health be accorded. Aside from the weight which must be given humanitarian consideration, it is simply good common sense that as much care and attention be given to protecting the human factors in the war production program as is given machines. (Ref. 3). Similarly, in a 1955 Naval Institute publica- tion called The Human Machine, Captain Charles W. Shilling of the Navy Medical Corps described the “par- amount importance” of Navy health: “(T]he medical component of the Navy has a heavy responsibility” with a mission to promote physical fitness, prevent and control diseases and injuries and treat and care for the sick and injured. (Ref. 4). 17. While the formal titles have varied over the years, the most senior Medical Corps officer in the Navy is the Navy Surgeon General, who is also the Chief of BUMED and who reports to the Chief of Na- val Operations (““CNO”). The Navy Surgeon Genera! has responsibility to spell out health programs, in- cluding prevention and injury care, for sailors and ci- vilian workers (as appropriate). Medical Corps, allied health professions and enlisted hospital corpsmen are responsible for advising operational line commands to carry out preventive practices and to provide special- ized industrial hygiene services. It is the responsibil- ity of the Navy line authorities (the operational chain of command) to carry out these recommendations. 18. Given the breadth and sophistication of its military and industrial activities, the Navy recognized the need to establish departments and bureaus with specific expertise in scientific and technical areas of 53 importance. The Navy Medical Department (which encompasses BUMED, among other organizations) is actively concerned with all phases of life in the Navy and advises all components of the Navy on matters which may affect the health and well-being of naval personnel. . .. There is a Medical School, a Dental School, and a Medical Research Institute at the National Naval Medical Center, Bethesda, Mar- yland. There are also numerous other research units established in connection with operational ac- tivities throughout the world. . . . [T]he Medical De- partment and all of its component parts are work- ing with the operational forces of the Navy, in all areas of naval importance. (Ref. 4 at 275 and 276). 19. In addition to monitoring all health programs including industrial hygiene in both a quantitative and qualitative way, the Navy’s Medical Department also originated extensive research activities: As it is with other component parts of the Navy, re- search is an intimate part of the Medical Depart- ment activity, the importance of which cannot be overemphasized. Through research we assist in the development of new equipment, new and better methods of care and treatment of various diseases and injuries; help in the problem of adjustment of naval personnel to all of the new and strange envi- ronmental situations in which they are placed; and, in general, provide the knowledge necessary for more efficient operation of the Navy. Research under the cognizance of the Bureau of Medicine and Surgery is accomplished in a large 54 medical research institute, in several research la- boratories, fleet and shore-based units, and in vari- ous naval hospitals. The scope of this research is extremely broad and parallels the total activity of the Navy. (Ref. 4 at 277). 20. A 1956 Navy training document entitled “Na- val Orientation” described the scope of BUMED’s re- sponsibilities: The Bureau of Medicine and Surgery is responsible for safeguarding the health of personnel of the Navy; the procurement of all medical and dental materials; research in medicine and dentistry; evaluation of the performance characteristics, from the physio- logical standpoint, of equipment designed for the use in naval service; the determination of standards of sanitation and hygiene; the professional educa- tion and training of medical personnel; and the es- tablishment of professional medical and dental standards for clinical methods and procedures. (Ref. 5 at 177). 21. Among the tasks of BUMED in connection with its research and monitoring activities was the distillation of the results of that experience into prac- tical guidance for the rest of the Navy. The transla- tion of the results of that experience into practices and procedures for Navy personnel, and the communica- tion of those practices and procedures, necessarily in- volved the exercise of judgment by BUMED in deter- mining what topics, and what specific information on those topics, should be disseminated to Navy person- nel. Personnel recipients included officers, enlisted, civil servants and contractors. The communication of 55 such information was designed to ensure that recipi- ents received precisely, and only, what was deemed appropriate in light of their duties and responsibilities, and the overall mission and operations of the Navy. 22. As a consequence of the Navy’s approach to such matters, the knowledge of any individual Navy sailor — even an officer with command responsibilities ~ with respect to an issue like the hazards of asbestos cannot be taken as representative of the broader knowledge of the Navy on the topic. By design, that individual would have possessed only that knowledge necessary, in the view of BUMED, to the performance of his or her duties. Put differently, regarding asbes- tos — as with many other health and safety issues — there was extensive information regarding .tential hazards and potential protective measures that were consciously not shared with the vast majority of Navy personnel who were deemed not to have a need to know. 23. As a General Medical Officer, | was not per- mitted to deviate from the standardized programs de- veloped by the Navy Surgeon General for the health of Navy personnel, without approval from a more sen- ior Navy officer except in extraordinary circumstances, such as if a ship was isolated or out of contact with more senior, knowledgeable and experienced officers. 24. All Navy personnel including medical officers must follow their chain of command to maintain good order and discipline. Enlisted personnel are indoctri- nated during boot camp and training with the under- standing that they must conduct all activities “the Navy way,” meaning that Navy orders and instruc- tions supersede any information or directions received from any source outside the Navy. Sailors must follow 56 orders trusting that their chain of command will have the mission of the Navy in mind and will address safety as best as possible. Unlike in the civilian com- munity, all military personnel who refuse to perform an order could be subject to various penalties pursu- ant to the Uniform Code of Military Justice (“UCMJ”). Absent extraordinary circumstances, the Navy de- mands and enforces rigid adherence to the chain of command. It does so because it is the military's method for institutionalizing strategic considerations, highly specialized expertise, and prior experience and then transforming this information in an effective and predictable way into programs and orders for all per- sonnel to follow. 25. Collective and uniform communication and implementation of Navy programs and orders are key to the Navy’s operational flexibility. The Navy has numerous sailors with specialized capabilities. The Navy also maintains many ships and multiple ship- yards with specialized capabilities. The Navy strives to ensure that each sailor is consistently trained, and that each ship in its fleet is predictably constructed so that it can rely on both the sailors and the ships to perform critical operations without endangering sail- ors any more than is necessary to achieve mission suc- cess. B. Navy Knowledge of Asbestos-Related Health Issues 26. Consistent with the Navy’s interpretation of the importance of industrial hygiene and occupational! health, the Navy’s programs in these areas have par- alleled, and at times led, the development of occupa- tional medicine and industrial hygiene in general, and asbestos-related issues in particular. The Navy’s 57 knowledge in the areas of asbestos and associated health conditions has been quite complete when com- pared to available knowledge over time, and at least by the early 1940s, the Navy had become a leader in the field of occupational medicine relating to, among other things, asbestos dust inhalation exposure. 27. As early as 1922, the Navy recognized, as ex- emplified by its instructions to officers published in the Navy Medical Bulletin, the health hazards associ- ated with airborne asbestos dust and the appropriate protective measures to prevent asbestos exposure. These included the use of water to dampen dust, ex- haust systems to remove dust, enclosed chambers to prevent escape of dust and respirators. (Ref. 6). The Navy’s knowledge of potential asbestos-related health problems, and of the means to control against them, continued to expand throughout the following decades, as senior Navy officers actively assessed, evaluated, controlled, and made recommendations concerning Navy policy regarding disease and injury prevention, including asbestos related occupational health haz- ards. 28. The Navy’s health and safety apparatus on the eve of World War II was described in the 1939 Handbook of the Navy Hospital Corps published by the Bureau of Medicine and Surgery under the direc- tion of the Secretary of the Navy: The United State Navy is one of the largest of the industries maintained by this Government. An or- ganization has been set up in the Navy to protect its personnel, both civilian and naval. A safety engi- neer is provided, who acts directly under the Assis- tant Secretary of the Navy. He has supervision of the safety precautions taken to protect the civilian 58 employees in the navy yards, ammunition depots, torpedo stations and the like. He is also a consult- ant in all matters pertaining to safety aboard ships, at training stations and other Navy Department ac- tivities. A naval medical officer is assigned to his office for the purpose of consultation in all matters pertaining to health and safety and to cooperate in devising means by which health may be protected and accidents prevented. Aside from this particular medical officer, all medical officers, dental officers, members of the Hospital Corps and nurses form the balance of the medical staff of this organization. It is essential that each one of these members know and understand the hazards to be encountered in the Navy, the steps to be taken to protect against injury and disease, the treatment of diseases and injuries arising therefrom and the organization of the medical personnel for such purposes. Naval medical personnel are required to perform duties ashore, at sea, in foreign countries, in the air and under the sea. In each of these places a variety of health hazards exist. It is therefore necessary that this [sic] personnel have a thorough knowledge of the industry to which they are attached, the haz- ards presented, the methods of prevention and the treatment of all injuries occurring. (Ref. 7). 29. The Handbook of the Navy Hospital Corps also explained that all Navy yards have a comman- dant who “is responsible to the Navy Department for the protection of employees, as well as Navy personnel, under his command. He is familiar with . . . the health and accident hazards presented.” Thus, the Comman- dant was “responsible for the appointment of the 59 safety engineers [who will] make inspections and rec- ommend proper protective measures.” The Handbook further called for the Navy medical officer to “advise the safety engineer and instruct the employees in safety measures and encourage them to cooperate in protective measures.” These safety measures included required “masks for asbestos workers.” 30. Also in 1939, the Annual Report of the Sur- geon General of the Navy addressed the “Hazard of Asbestos,” and described asbestosis as “an industrial disease of the lungs incident to inhalation of asbestos dust for prolonged periods.” The Report noted the risk from “continued exposure to present occupational con- ditions” at Navy facilities, and directed appropriate methods for preventing such exposures, recommend- ing the use of local exhaust ventilation to control as- bestos dust exposure for insulators in the fabrication shop. (Ref. 8). 31. At about the same time, Navy Captain E.W. Brown undertook an assessment of asbestos exposure, and its prevention, in Navy yards. In an article enti- tled “Industrial Hygiene and the Navy in National De- fense” published in 1941, Captain Brown prescribed appropriate measures for the prevention of asbestos exposure. These included use of respirators, local ex- haust ventilation, and wetting of asbestos containing materials. (Ref. 2). 32. The Navy has historically directed all aspects of policy and procedure addressing the health and safety of Navy personnel. This direction has encom- passed policies, practices and procedures to protect workers from dangers posed by exposure to asbestos. Indeed, the Navy has on several occasions over time 60 rejected offers of assistance from other leaders in the field. 33. For example, in 1941, the U.S. Labor Depart- ment’s Bureau of Labor Standards offered to conduct inspections of health and safety conditions in Navy shipyards. Navy leaders rejected this offer. In a mem- orandum to Navy Surgeon General McIntire, Com- mander Charles S. Stephenson, head of the Division of Preventive Medicine within the Navy's Bureau of Medicine and Surgery, offered “[njotes for considera- tion when you call on Assistant Secretary |of the Navy Ralph A.| Bard.” Commander Stephenson advised Admiral McIntire that Assistant Secretary Bard asks specifically what the policy is concerning invi- tation of . . . the Bureau of Labor Standards, Labor Department into the Navy Yards to make a survey of the welding and other hazards. | told him that we had never done that sort of work and recom- mended against it, as | know who [the Bureau of Labor Standards] intends to send if it should be done. Navy leaders recognized that other government de- partments had a high level of expertise, while reject- ing the offers of assistance: I gave Mr. Bard and the two officers present a com- plete story of the beginning of this controversy from the Federal Administrator's letter: that is, that the United States Public Health Service had four teams of traveling scientists alleged to be able to make surveys of all of the Navy Yards and make recom- mendations for the correction of such hazards as were discovered. He then emphasized: 61 I told Mr. Bard that this was not considered the best policy, due to the fact that we had medical officers in the Yards and that in practically all instances recommendations of sound character had been made by medical officers. We saw no need of invit- ing the United States Public Health Service on its own invitation to do this job. (Ref. 9). 34. The Navy’s reluctance to accept these offers of assistance was based on concerns regarding possible upset of labor relations, and also for security at Navy facilities. Stephenson’s memorandum makes clear that these concerns originated at the highest levels of Government: Likewise, I told him that I had spoken to you and that you had indicated that President Roosevelt thought that this might not be the best policy, due to the fact that they might cause disturbance in the labor element. (President Roosevelt was familiar with the structure and operation of the Navy’s shipyards and other facil- ities — and in particular with the functioning of the Navy during wartime - from his tenure as Assistant Secretary of the Navy from 1913 until 1920. Admiral McIntire was President Roosevelt's personal physi- cian in addition to being the Surgeon General of the Navy.) 35. Stephenson’s positions were taken even in light of knowledge that not all industrial hazards were adequately controlled at Navy facilities: “I doubt if any of our foundries would be tolerated if the State industrial health people were to make surveys of them.” Asbestos, too, was discussed as an issue: “I am 62 certain that we are not protecting the men as we should.” 36. Health and safety issues, including those re- lating to asbestos exposure, continued to be a major focus of the Navy and the United States Maritime Commission throughout World War Il. In 1943, the Navy, along with the Maritime Commission declared its responsibility for the safety and health of their workers and took charge of implementing and staffing safety and health programs for those workers. Fol- lowing extensive discussion with various constituen- cies, the Navy and the Maritime Commission jointly issued “Minimum Requirements for Safety and Indus- trial Health in Contract Shipyards” (“Minimum Re- quirements”). (Ref. 3). The specific requirements im- posed by the document enunciated for private and contract shipyards expectations that were already in effect and implemented at the Navy’s own facilities. 37. The Minimum Requirements identified asbes- tos-related disease as a potential hazard of shipyard work, explaining that exposure could result from han- dling, sawing, cutting, molding and welding rod sal- vage around asbestos or asbestos mixtures. The doc- ument advised that such jobs “can be done safely with: 1. Segregation of dusty work and, 2. (a) Special ventilation: Hoods enclosing the working process and having linear air velocities at all openings of 100 feet per minute, or (b) Wearing of special respirators. 3. Periodic medical examination.” 63 The Minimum Requirements also warned that jobs in- volving exposure to asbestos require “respiratory pro- tective equipment,” in particular a “dust respirator.” A ventilation supervisor (the safety engineer) was re- quired to be trained to handle the entire ventilation program in the yard, which was to include classes, demonstrations and short talks on proper procedures. 38. The Minimum Requirements further called for employee safety training: “the time for the safety training of an employee to start is at the inception of his employment.” “Employees shall have in their pos- session, and be instructed in the proper use of, all nec- essary personal protective equipment before being started on any job.” Safety bulletin boards were to be located at each hull and shop, with “|sjafety posters and other material on the bulletin boards” changed at least semi-monthly. The type of safety posters used in these worker educational campaigns included ma- terials reinforcing the use of masks for protection against disease-causing dusts. One such poster stated, “His mask keeps him on the job.” (Ref. 10). 39. This commitment by the Navy to address the asbestos-related health concerns of Navy workers, as set forth in the 1939 Handbook of the Hospital Corps and the Minimum Requirements document, is further evidenced by dozens of other documents generated by the Navy and consultants it retained during the war years. 40. Later in the war, following extensive study of asbestos-related health issues, Dr. Philip Drinker, a Harvard professor and Chief Health Consultant to the Division of Shipyard Labor Relations and consultant to the Navy Surgeon General since 1941, wrote on January 31, 1945 to Captain Thomas J. Carter at the 64 Navy’s Bureau of Medicine and Surgery. In his letter, he reported on analyses of airborne dust collected at Bath Lron Works, a leading contractor for construction of Navy vessels. Dr. Drinker summarized the results of the analysis: “This evidence is enough to indicate a fairly serious dust risk at Bath and to make it very probable that the same sort of thing will be found in other plants and yards where the same type of [asbes- tos] pipe covering materials are used.” (Ref. 11). 41. In addition to asbestos health concerns re- vealed at Bath Iron Works, experience in some of the contract shipyards also came to the attention of Dr. Drinker and Navy authorities: | suggested to Admiral Mills that it would be very desirable for Navy to examine men handling the preparation of [asbestos] pipe coverings and their installation in at least two Navy Yards and two Navy contract yards as this is much more a Navy than a Maritime problem because the materials are used especially on Navy vessels with high pressure steam power plants. Admiral Mills agreed that such studies would be wise before Navy or Maritime accepted this asbestos risk as being significant in our general ship construction program. (Ref. 11). 42. Dr. Drinker and his Navy colleagues pub- lished the results of the study he had suggested in W.E. Fleischer, et al., “A Health Survey of Pipe Cov- ering Operations in Constructing Naval Vessels,” 28 Journal of Industrial Hygiene & Toxicology 9-16 (Jan. 1946). (Ref. 12). The study reaffirmed the Navy’s po- sition regarding acceptable occupational dust expo- sure levels and dust control strategies. They offered 65 the conclusion that “|asbestos] pipe covering is not a dangerous trade.” 43. The conclusions of this study were carried into practice in Navy workplaces follewing World War II. The January 1947 issue of the Nawy’s Safety Review publication noted that “[e]xposure to asbestos dust is a health hazard which cannot be overlooked in main- taining an effective industrial hygiene program.” (Ref. 13). 44. Also during the second half of the 1940s, the American Conference of Governmental Industrial Hy- gienists (“ACGIH”) evaluated the issue of asbestos ex- posures. This entity, comprised entirely of industrial hygienists with links to the government and academia, published threshold limit values for acceptable expo- sures to asbestos dust in the workplace. These stand- ards were periodically updated over the years. Repre- sentatives of the Navy, trained as industrial hygien- ists, participated in the ACGIH. In recognition of the potential hazards associated with exposure to asbes- tos dust, a 1955 Navy Bureau of Medicine instruction adopted the ACGIH’s threshold limit value for expo- sure to asbestos dust among Navy personnel. (Ref. 14). The 1955 threshold limit value as promulgated in the Navy instruction was the same level to which the Navy had sought to control exposures during World War Il. 45. During the 1950s, the Navy continued to pre- scribe safe work practices to address potential ship- yard hazards associated with exposure to asbestos dust. For example, a 1950 General Safety Rules Man- ual issued by the Puget Sound Naval Shipyard in- 66 structed workers to “[w]jear dust type or air-fed respi- rators for .. . handling amosite [asbestos] insulating materials. .. .” (Ref. 15). 46. In 1957, the Navy convened at the Boston Na- val Shipyard a “Pipe and Copper Shop Master Me- chanics’ Conference” to address issues of concerns to those in the pipefitters’ trade. At the conference were personnel from all twelve Navy shipyards and the Navy’s Bureau of Ships in Washington, D.C. 47. The prepared remarks of a Long Beach Naval Shipyard official, included in the Minutes of the Con- ference reflect the Navy’s stated policy that pipe insu- lators and laggers who handle asbestos products should wear respirators: Asbestos, when handled dry, produces vast amounts of silica dust. . . . [T]he material can be dampened to reduce the amount of dust liberated. However, the specified type of amosite [asbestos] for use on cold water piping is water repellent. Also material which must be removed from an existing installation is dry and powdery, being an excellent dust producer. .. . [Djuring 1956 eleven deaths from asbestosis were reported on the Pacific Coast alone. . . . I know that two of my insulators are now afflicted with this condition. How many more will become afflicted is something which I hesitate to predict. Again the solution is obvious. Remove the cause by substituting other products. .. . In the meantime, the answer is the wearing of res- pirators by all who handle asbestos products. (Ref. 16). 67 48. A New York Naval Shipyard official added that if those working with asbestos insulation have not been “told . . . to put on masks, you are more or less the cause of their trouble.” That same official added: I think everyone, who has people doing this type work, should warn their people regarding the han- dling of this material. With the proper handling of it on the job, and it has always posed a very big problem, because the men don’t want to wear the masks, or get this dread disease. It is difficult to protect them. After a couple of years of mandatory wearing masks, I think they should realize the dan- ger. I think everyone ought to enforce the wearing of masks. Don’t forget this is something that in- jures people’s health. We should do something about it- and fast, and I am convinced that what we are doing is not enough. We should not have people handle this material withou|t] protection. 49. On January 7, 1958, the Department of the Navy issued a “Safety Handbook for Pipefitters,” which explicitly addressed the asbestos hazard and again set forth Navy policy for controlling this hazard. (Ref. 17). This handbook — one of many safety hand- books issued by the Navy — stressed that “[a]sbestos dust is injurious if inhaled,” and warned those work- ing with asbestos insulation materials to “[wjear an approved dust respirator for protection against this hazard.” 50. During this time period, study of asbestos-re- lated health issues was ongoing at various Navy facil- ities. For example, Occupational Health Hazards Re- leases from the Navy’s Bureau of Medicine and Sur- gery on February 1, 1961 (Ref. 18) and May 1, 1961 68 (Ref. 19) reported on studies of personnel engaged in the handling of asbestos-containing materials and on recom mendations, including the use of respirators, ex- haust systems and worker training at Puget Sound Naval Shipyard. A 1961 Marine Pipe Covering and Insulating Manual at Puget Sound set forth “General Safety and Health Practices” that included instruc- tions to “[hjandle amosite . . . materials carefully to avoid [its] dust[],” “sprinkle amosite with water when- ever possible to keep dust down,” and “[s]ee that your chest is X-rayed at least once a year to detect the pos- sibility of . . . asbestosis.” (Ref. 20). 51. Concurrently, similar activities were ongoing at Long Beach Naval Shipyard, which had “continu- ous health education program for . . . asbestos workers at Long Beach Naval Shipyard, including a showing of a film entitled “The Air We Breath,” followed by “a short discussion of the hazards of breathing asbestos fibers and the use of dust respirators.” (Ref. 21). Be- ginning in 1958, health personnel at the yard had be- gun “a study . . . of pipecoverers (asbestos) working conditions” at Long Beach Naval Shipyard. The study had commenced in 1958, and it included “[cjhest x- rays and vital capacity test[s] . . . on [792] asbestos workers. The report also noted that at the time the study began, a “former [Long Beach] employee was re- ceiving compensation for asbestosis.” (Ref. 22). 52. Similar investigation and study was ongoing at other Navy facilities. In September 1962, a Navy Department Occupational Health Hazards Release re- ported that at Boston Naval Shipyard “[a] study was conducted to obtain current data for evaluating the exposure of pipecoverers to asbestos containing dust.” The study involved the collection of samples taken in 69 the pipecoverers’ shop and also aboard ship. The re- sults showed that “[d]ust concentrations found in the general atmosphere of the shop were within permissi- ble exposure limits at the time of sampling,” but that “(t]he excessive dust counts obtained aboard ship, em- phasized the need for the wearing of approved dust respirators by pipecoverers.” (Ref. 23). A few years later, another Release described the results of “[rjan- dom dust counts . . . aboard ship during the removal of amosite insulation from two fire room boilers” by two pipecoverers. Navy personnel observed that “lo|jther tradesmen working the same work area as pipecoverers are also quite often exposed to the asbes- tos containing dust and usually remain in the area sometime after the pipecoverers,” and “emphasized that respiratory protection should be provided when- ever long exposures to high dust concentrations” occur. (Ref. 24). 53. The ongoing development of the Navy’s poli- cies and practices to protect workers from asbestos- related health concerns during the early 1960s was re- flected, for example, in an article entitled “Asbestosis” published in the October 1962 issue of the Navy’s In- ternal Safety Review publication by Captain H.M. Robbins, a Navy physician, and W.T. Marr, a Navy in- dustrial hygienist from the Long Beach Naval Ship- yard. The article addressed the potential for exposure to asbestos aboard ships: Aboard ship, a great variety of insulation is per- formed. Insulation blocks are shaped with a saw, pads are supplied to fittings, insulation cement is applied to blocks and covered with asbestos cloth. These and other operations take place in nearly all compartments; however, most work is done in the 70 machinery spaces. By far the greatest potential ex- posure to asbestos fibers occurs during ripout of old insulation for ship overhaul or reconversions. The article concluded that “[t]he worker’s best protec- tion is to avoid careless creation of dusty conditions, use damp material when possible, and wear respira- tory protection constantly.” (Ref. 25). 54. In 1968, the Navy came under scrutiny for its handling of asbestos-related health issues. On July 30, 1968, Murray C. Brown, Medical Director of the Pub- lic Health Service, wrote to Vice-Admiral R.B. Brown, the Chief of the Navy’s Bureau of Medicine and Sur- gery, stating that “[o|ne of our grantees, Dr. Irving Se- likoff of New York University, has recently completed a study of non-insulation shipyard workers’ exposure to asbestos,” and that “Dr. Selikoff reports he has some interesting data and has requested that we ar- range an information meeting with your Department and the U.S. Department of Labor to discuss his find- ings.” (Ref. 26). On December 5 of that same year, Ad- miral Brown reported to others in the Navy health es- tablishment that “Doctor LJ. Selikoff of Mount Sinai Hospital, through the news media, stated that he has warned the Navy and other Federal departments of his findings relating to the unusual incidence of as- bestosis among shipyard asbestos workers. The news- paper articles stated that the Federal agencies includ- ing the Navy have not publicized the hazards.” (Ref. 27). 55. In a “Hazard Analysis” commissioned in re- sponse to this external criticism of the Navy’s safety practices, Commander Rosenwinkel of the Navy’s Bu- reau of Medicine assured that: 71 [T]he Navy’s shipyards have for many years been aware of the hazards of asbestos and have initiated appropriate safety precautions. Insofar as possible, all fabrication work [with insulation] is performed in the shops where adequate safety precautions can be observed. These precautions include controlled ventilation, use of respirators, and wetting down of the material. During “rip out” operations, respira- tors are worn and ventilation is controlled as far as possible. Similar language was prepared “for inclusion in a statement to be issued by Rear Admiral J.J. Stilwell, Shipyard Management Directorate”: The United States Navy is well aware of the haz- ards of asbestos to its employees engaged in ship construction and ship repair at naval shipyards. Hazard control measures implemented by the ship- yard medical departments and practices are in ac- cordance with accepted standards of industrial hy- giene practices in the United States. Stringent ef- forts are directed at keeping the concentration of air borne asbestos dust below the level recommended by the American Conference of Governmental In- dustrial Hygienists. An energetic periodic physical examination program insures the health of person- nel exposed to this hazard. For more than two years, the Naval Ship Systems Command and the Commander of Boston Naval Shipyard have been cooperating with a prominent investigator in a study whose ultimate goal is to de- fine safe working conditions with respect to air home asbestos. Upon the development of further objective, well founded recommendations for the control of this hazard, the Naval Ship Systems 72 Command, in cooperation with the Bureau of Med- icine and Surgery, will take the necessary steps to implement them at the naval shipyards and all na- val activities. (Ref. 28). The message was clear, and consistent: the Navy would handle asbestos issues in its own way and through its own channels. 56. The development of the Navy’s policy towards asbestos-related health issues, and of its program for addressing asbestos exposure to Navy personnel, con- tinued into the 1970s. On February 9, 1971, the Com- mander of the Navy’s Ship Systems Command issued to numerous Navy bureaus and commands its Instruc- tion 5100.26. That document began by recognizing that: [t]he most critical use of asbestos in the Navy from a safety viewpoint is in the fabrication, installation, repair or removal of pipe and boiler insulation ma- terials. Some workers sustain accidental contacts either while employed in various capacities where asbestos products are processed or when working in plant areas in which an environmental pollution of the air exists due to asbestos. In light of these concerns, the purpose of the document was “to prescribe appropriate safety precautions dur- ing the use of asbestos,” and it decreed that: [t]he following safety precautions will be observed by all supervisors and workers engaged in the fab- rication, installation and/or removal (ripout) of as- bestos-containing insulation material. The provi- sions of this instruction will be effective as of this date. The provisions in this instruction are consid- ered as minimum health and safety requirements. 73 More stringent restrictions may be applied by local commanders. The document then listed nearly fifty specific work practices to be employed to protect workers from as- bestos exposure in handling or working in the vicinity of asbestos-containing products. (Ref. 29). 57. In the years that followed, Navy authorities promulgated a series of expansions and refinements of its program for addressing asbestos exposure to Navy personnel. Among the numerous iterations were the following: a. BUMED Instruction 6260.14 (June 7, 1973) (Ref. 30); b. OPNAV Instruction 6260.1 (April 9, 1974) (Ref. 31); c. NAVSEA Instruction 5100.2 (October 24, 1975) (Ref. 32); and d. NAVSEA Instruction 5100.2A (Septem- ber 11, 1979) (Ref. 33). 58. Despite the promulgation of such control pro- cedures, there continued to be instances of airborne asbestos dust for certain operations, exceeding then- current standards, inconsistent use of respirators and other control measures even when recommended by Navy authorities, and incomplete understanding of the hazard by the workers involved. The Navy was aware that execution of its own programs in this re- gard was uneven despite its efforts. 59. Similarly, a January 23, 1974 Navy Depart- ment of Occupational Health Hazards Release re- ported that at Charleston Naval Shipyard “[{a] survey was made aboard ship while Temporary Service Shop 74 electricians were preparing and installing asbestos cloth and rope under a boiler. . . .” Measured dust con- centrations exceeded the permissible exposure limit. Navy personnel observed an “ill-fitting” respirator on one of the workers, and described work methods that improper for control of asbestos dust. No signs were posted to warn that asbestos dust was being gener- ated and that dust respirators were required. As- bestos waste .. . w[as} handled with poor technique and not conductive [sic] to minimizing asbestos dust generation. . . . An immediate conference was held with the cognizant General Foreman and all viola- tions of asbestos control instructions, poor work techniques, fit of respirators, and asbestos disposal! were discussed. It was also noted that “[rjemoval of asbestos lagging aboard ship creates a high asbestos fiber concentra- tion in the work environment.” Navy personnel ob- served that “[{cjontrol of asbestos dust contamination throughout the rest of the ship is not guaranteed, and unfiltered exhaust ventilation to the outside of the ship is undesirable,” and recommended purchase of a “portable exhaust blower, equipped with and EPA ap- proved cleaning system.” (Ref. 34). 60. The same Release also reported that at Long Beach Naval Shipyard |djuring routine monitoring of pipecoverers and in- sulators performing ripout of asbestos insulation in posted engineering spaces, it has been observed that ship’s personnel frequently ignore the warning signs and move through the restricted areas. Ship’s 75 personnel also have been observed removing asbes- tos insulation without using respiratory protection and using air hoses to blow down spaces contami- nated with insulation dust. An increased effort is being made to indoctrinate the shipboard personnel regarding the dangers of exposure to asbestos dust. (Ref. 34). 61. The Navy was committed to maintaining com- plete control over existing military specifications, pol- icies and procedures with respect to asbestos-contain- ing materials and worker practices with those materi- als. The Navy maintained a fierce autonomy over haz- ard recognition and control, because the Navy consid- ered itself the ultimate authority on naval systems and military workplaces. Regardless of the source of other information, the Navy viewed its unique knowledge as a strategic advantage in addressing hazard identification and control in its workplaces. 70. In the effort to achieve its mission, the Navy made trade-offs between the use of asbestos and the potential health impact on personnel. In the Navy's judgment, the beneficial aspects of asbestos from an engineering standpoint (technical performance, cost, weight, etc.) made it the best thermal insulation avail- able and a critical war material. As knowledge of as- bestos health risks evolved, the Navy made sensitive military mission-related decisions about deriving the benefits of asbestos while controlling its risks. More- over, when the hazards of asbestos became more fully known to the Navy and the scientific community in the late 1960s, the Navy determined not to do an im- mediate fleet-wide elimination of asbestos. At the time, Navy leaders were concerned that a large scale, immediate asbestos removal program would pose at 76 least three problems: excessive cost; mission impair- ment; and increased health hazards to removal crews from disturbing fixed, in-place asbestos. 71. The Navy asserted for itself the role as final arbiter of what was best with respect to industrial hy- giene in its unique workplaces to carry out its national defense mission. The Navy's reasons for this ap- proach include: harmonizing industrial hygiene with its overall operations; maintaining security of its fa- cilities; and unifying communications to its workers. 72. The Navy rejected participation from manu- facturers in its efforts to alert its personnel to poten- tial asbestos hazards in Navy operations. The Navy pursued the issue in its own way. Professor Drinker recorded: I met with the manufacturers of the materials used at Bath and they stated they would be glad to get out a brief statement of precautions which should be taken in the light of their own experience and that they would inform their competitors that I had asked them to do so. I understand that neither Navy nor Maritime wants any change in the speci- fications as the performance with the present mate- rials is entirely satisfactory. From a health stand- point we do not believe any specification changes are needed. (Ref. 11.) 73. BUMED, through a litany of instructions, bul- letins and other communications, developed work practices and procedures designed to take what BUMED deemed to be appropriate precautions against workplace and environmental hazards to Navy personnel. 77 74. Not surprisingly, in my research, I have not located a single instance in which the Navy, at any time during the 1930s through the 1960s, instructed or permitted a supplier of engineering equipment to a vessel or facility to affix or provide any asbestos- re- lated warning with its equipment. The Navy has not depended on equipment warnings in its workplaces concerning long-term occupational health issues. Ra- ther than depending on equipment signage or labeling, the Navy put its efforts into work practice training, specifications for materials being used in its unique workplaces, and the hierarchy of industrial hygiene controls. 75. The Navy’s approach to the protection of its personnel from health hazards — and the lack of a role for equipment manufacturers in that process — is exemplified by the Uniform Labeling Program, SEC- NAV [Secretary of the Navy] Instruction 6260.3. (Ref. 44). 76. The Uniform Labeling Program had as its stated purpose “to standardize on [sic] labeling re- quirements for hazardous chemical products. .. .” It did not require any actions of parties outside of the Navy, including manufacturers of equipment. It is also clear that the Navy’s Uniform Labeling Program was strictly an internal document. In other words, the program was designed by the Navy, for implementa- tion by the Navy. It was not intended as a set of re- quirements governing the activities of outside parties. The Uniform Labeling Program is an internal Navy program whose addressees are Navy Commands: “Scope: The instruction applies to the labeling of all hazardous materials throughout the Naval Establish- ment wherever distribution of hazardous chemical 78 and materials is made to the actual consumer (shop, office, or unit).” (Ref. 44). 77. The internal nature of the Uniform Labeling Program is evident from its provisions: (a) The Navy Department Standardiza- tion Office was directed to assign a Navy project to “standardize the printed labels in respect to qual- ity of paper, size, color, shape, insignia, wording, and design; quality of the glue; specifications for inks including colors of inks); and other related matters.” (Ref. 44 at 4.a.); (b) The Navy's Bureau of Supplies and Accounts was directed to “initiate procedures to have the necessary labels stocked as General Store items for use by all naval activities.” (Ref. 44 at 4.b.); (c) Classification of hazardous chemicals was to “be accomplished through the joint efforts of the technical bureaus in that each Bureau shall be responsible for passing on those aspects, of any single item, which fall within its technical pur- view.” (Ref. 44 at 4.c.). (d) The document listed the responsibili- ties of a Navy Safety Precautions Board, and of Navy bureaus and offices, and of the Marine Corps, in implementing the program. (Ref. 44 at 4.d & 4.e.). 78. The Uniform Labeling Program expressly states that it does not impose any requirements on manufacturers of products. Consistent with its focus on chemical materials and substances, the document makes reference to container labeling that may be necessary for intrastate or interstate shipping, and to 79 labeling by “manufacturers of chemicals” in accord- ance with Manufacturing Chemists’ Association guidelines. (Ref. 44 at 2.a.). 79. The Uniform Labeling Program was prompted by “|t]he rapid development of new chemical products and the introduction of new chemical processes,” and by the Navy’s view that “[w]arning labels affixed to containers of hazardous chemicals are one of the most practical means of accomplishing thle] objective” of ensuring that Navy personnel take “precautionary measures... during the handling of toxic and danger- ous chemicals.” (Ref. 44 at 3). 80. Throughout the SECNAV Instruction describ- ing the Uniform Labeling Program, the focus is on chemical products, and on the appropriate labeling for containers of chemical products. The document in- cludes as an enclosure an alphabetical listing of mate- rials it covers, all of which are toxic chemicals or ma- terials. There is no mention of or suggestion that the program has any applicability to equipment such as pumps or valves, or to products such as gaskets or packing, or does the Uniform Labeling Program any- where mention asbestos. 81. The documents referenced in the Uniform La- beling Program also refer to labeling of containers of hazardous chemicals. For instance, there is reference to the Manufacturing Chemists’ Association’s Manual Ll, “A Guide for the Preparation of Warning Labels for Hazardous Chemicals.” (Ref. 45). Like the Uniform Labeling Program itself, Manual L1 expressly states that it is intended to provide information to “every person using, handling or storing chemicals.” It ex- presses the view that “[t]he most practical means” of 80 disseminating such information is “by warnings af- fixed to containers of hazardous chemicals.” (Ref. 45 at 5 (emphasis supplied)). There is nothing in the doc- ument to suggest that it relates to instructional or other documentation accompanying machinery or equipment, or that it relates to finished products such as gaskets or packing. 82. That the Uniform Labeling Program imposed neither internally within the Navy nor on manufac- turers of machinery or equipment any responsibility for labeling of asbestos-containing materials is belied by the Navy’s own implementation of the program is exemplified by a January 15, 1960 Occupational Haz- ards Release summarizing significant information on occupational health and industrial hygiene from through the Navy and distributed by the Chief of the Navy’s Bureau of Medicine and Surgery. The docu- ment reported on the review by a Navy shipyard of new products “[i]n accordance with SECNAV Instruc- tion 6260.3 and BUSHIPS Instruction 6260.3 on la- belling toxic materials.” With respect to “Hy-Temp Block Insulation,” an insulating material containing 12—15% asbestos, the Navy concluded as follows: “No label.” (Ref. 46). The fact that the Navy determined that no hazard label was appropriate for an asbestos- containing insulation material of the type whose haz- ards it had been aware of and discussing since the 1920s is inconsistent with the notion that the Navy sought, or would have accepted, as [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0814%3A06. Public record. Not legal advice.