Respondents Brief — Air & Liquid Systems Corp. v. DeVries, 139 S. Ct. 986 (2019) (No. 17-1104)
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No. 17-1104
IN THE
Supreme Court of the United States
AIR AND LIQUID SYSTEMS CORP., et ai.
Petiti
v.
ROBERTA G. DeVRIES, INDIVIDUALLY AND
AS ADMINISTRATRIX OF THE ESTATE OF
JOHN B. DeVRIES, DECEASED, et ai.,
Respondents.
INGERSOLL RAND COMPANY ,
Petitioner,
V
SHIRLEY MCAFEE, EXECUTRIX OF THE
ESTATE OF KENNETH MCMEE, AND WIDOW
IN HER OWN RIGHT,
Respondent.
On Wait or CERTIORARI TO THE UNITED STATES
Court oF APPEALS FOR THE THIRD Circuit
KAZAN, McCLAIN, SATTERLEY Counsel of Record
& GREENWOOD Ropert E. Pau.
55 Harrison Street, Suite 400 ALan I. Reicu
Oakland, CA 94607 Patrick J. MYERS
(877) 995-6372 Pau, Reicu & Myers, PC.
delancy@kazanlaw.com 1608 Walnut Street, Suite 500
Philadelphia, PA 19103
(215) 735-9200
rmyers@prmpclaw.com
Counsel for Respondents
(Additional Counsel Listed on Inside Cover)
ee ee
281732
JONATHAN RUCKDESCHEL
THe RucKDESCHEL Law
Firm, LLC
8357 Main Street
Ellicott City, MD 21043
(410) 750-7825
ruck@rucklawfirm.com
WILLIAM W.C. Harty
Patren, Wornom, HatreNn
& DIAMONSTEIN
12350 Jefferson Avenue,
Suite 300
Newport News, VA 23602
(757) 223-4500
wharty@pwhd.com
Counsel for Respondents
i
QUESTION PRESENTED
Under general maritime negligence law, does a
manufacturer have a duty to warn users of the known
hazards arising from the expected and intended use of
its own product?
uu
TABLE OF CONTENTS
Page
QUESTION PRESENTED ..............-.22ee02: i
ee vcncccaucccccdcvcssceces ii
TABLE OF APPENDICES ...............-e00+: viii
TABLE OF CITED AUTHORITIES ............... x
a IE EI ae ar eRe ee ere 1
COUNTER STATEMENT OF THE CASE ......... 6
A. Respondents were exposed to asbestos
during the expected and intended
use of petitioners’ machines.................. 6
1. Petitioners supplied machines that
required asbestos parts to function ...... . 6
2. Petitioners’ manuals required routine
maintenance of the machines, which
exposed users to asbestos dust ........... 8
3. Petitioners’ maintenance manuals and
machine labels did not warn of the hazards
of breathing asbestos dust............... i)
B. Petitioners, and not the Navy, designed
their machines to require use of asbestos
BEE ec bedescccescvececcccecovedossceveese 10
itt
Table of Contents
Page
1. The Navy viewed the petitioners’
machines, their necessary asbestos
parts, and manuals as integrated
BE Se eee oheccedddérncobsindssdceness
2. Petitioners sold machines requiring
asbestos parts to both the military
and civilian markets .............0000::
D. Petitioners insured against the dangers
included coverage for asbestos exposure .... . .
E. The Navy required petitioners to warn
users of their machines of the dangers they
would face, including asbestos dust ..........
1. The Navy warning requirements
were not limited to hazards that
cause “immediate harm.”...............
2. The DOD required warnings for
toxic and carcinogenic dust .............
w
Table of Contents
Page
3. By the 1980s, petitioners warned
about asbestos with no resultant
“overwarning” phenomenon ............ 18
De IE 5 ccctecccsccesecenséense 18
SUMMARY OF ARGUMENT ................... 22
Eb diddcrensncussceneuetsdnecectedai 26
I. The Third Circuit’s holding is compelled by
this Court’s maritime precedent............. 26
A. Maritime law has long recognized
— including its foreseeability -
B. Petitioners’ proposed blanket immunity is
antithetical to maritime law............ .28
1. Maritime negligence law applies
a duty of reasonable care under
the circumstances of each
GA cb cosebccnesceeccivoscescves .28
Vv
Table of Contents
3. Blanket immunity for petitioners
the circumstances of each case accords
vi
Table of Contents
Page
A. A clear majority of the states
adopt the same rule as the Third
Gs a to. cosbonccdedcau un tassel 41
B. The two state court decisions cited by
petitioners do not preclude the application
of the Third Circuit’s test............... 43
C. Petitioners’ rule would leave
maritime workers worse off than
land-based workers..............seee.. 45
IV. The Third Cirecuit’s test accords
with traditional common-law tort
SUED sw se ccccnvecscediisesaseteneeseu 46
A. Traditional principles of tort law
impose a duty to warn of foreseeable
dangers of a product................... 46
B. The manufacturer’s duty of care
extends to warning about
foreseeable dangers arising from its
C. Whether a harm is a foreseeable
consequence of one’s actions is the
foundation of this Court’s negligence
vit
Table of Contents
Page
D. Petitioners are not innocent
manufacturers of innocuous components
PhedeGS6566666 600666060 0ccce0 04 52
V. Petitioners are the parties best positioned to
et teubeendeesécetocescecess 53
VI. The government contractor defense is not
EE ES Se a ee 57
VIL.The Third Circuit applied the correct
rule, and properly remanded for further
factual determinations ....................- 58
iT Cloak adwenseeetetncetsséeseessed 60
viit
TABLE OF APPENDICES
DeVries, et ux. v. General Electric Co., et al.,
No. 13-ev-474 (E.D. Pa.)
(Doe. 269-3, Pages 28, 38-39, 43, 58-59, 60-62)
(Motion for Summary Judgment of CBS Corp.)
(Plaintiff's Discovery Deposition, Pages
324, 350-351, 358, 397-398, 403-405)
DeVries, et ux. v. General Electric Co., et al.,
No. 13-cv-474 (E.D. Pa.)
(Doe. 270-3, Pages 6, 56-58)
(Motion for Summary Judgment of
General Electric Company)
(Plaintiff's Discovery Deposition, Pages 79; 386-388)
DeVries, et ux. v. General Electric Co., et al.,
No. 13-ev-474 (E.D. Pa.)
(Doe. 274, Pages 18-19, 21, 26, 28, 38)
(Motion for Summary Judgment of Buffalo Pumps, Inc.)
(Plaintiff's Discovery Deposition, Pages 70-71; 90;
101; 112; 235)
DeVries, et ux. v. General Electric Co., et al.,
No. 13-ev-474 (E.D. Pa.)
(Doe. 277-1, Pages 11, 13, 20)
DeVries, et ux. v. General Electric Co., et al.,
No. 13-ev-474 (E.D. Pa.)
(Doe. 291-2, Pages 34-35, Doc. 291-3, Pages 1-35)
(Response to Motion for Summary Judgment
of Foster Wheeler, LLC)
(Affidavit of Captain Bruce Woodruff, Pages 1-38)
DeVries, et ux. v. General Electric Co., et al.,
No. 13-ev-474 (E.D. Pa.)
(Doe. 296, Pages 17, 18, 19, 22-24)
(Response to Motion for Summary Judgment
of CBS Corp.)
DeVries, et ux. v. General Electric Co., et al.,
No. 13-ev-474 (E.D. Pa.)
(Doc. 298, Pages 21-22, 23)
(Response to Motion for Summary
Judgment of Buffalo Pumps, Inc.)
(Plaintiff's Discovery Deposition, Pages 198-205,
238-241)
zx
TABLE OF CITED AUTHORITIES
CASES:
Acoba v. General Tire, Inc.,
986 P.2d 288 (Haw. 1999).................00005- 53
Air & Liquid Systems Corp v.
Allianz Underwriters Ins. Co.,
2013 U.S. Dist. 2013 Westlaw 5436934
Se EEE Soncecccascoocedoncs 15-16
Am. Exp. Lines, Inc. v. Alvez,
ee cnccebccsceccosenceseqeunst 33
Anderson v. Liberty Lobby, Inc.,
ee cadeessecccocccceosenced 6, 59
Andrews v. 3M Co.,
No. 2:13-cv-2055, 2015 WL 12831315
(D.S.C. May 22, 2015), on reconsideration,
sub nom. Andrews v. CBS Corp.,
2015 WL 12831342 (D.S.C. June 18, 2015) ........ 39
Ins. Co. v. GE,
863 N.E.2d 994 (N.Y. 2007). ..... 2.2.2.0 ..00055- 15
v. General Motors Corp.,
780 F.2d 1131 (4th Cir. 1986).................... 49
Bell v. Foster Wheeler Energy Corp.,
2016 WL 5780104 (E.D. La. Oct. 4, 2016) . . .38, 41, 55
Cited Authorities
Page
Boyle v. United Techs. Corp.,
SE passim
Braaten v. Saberhagen Holdings,
198 P.3d 493 (Wash. 2008).................. 43, 44
Bridge v. Phoenix Bond & Indem. Co.,
a. go ic ocvaneneed 51
Brown v. Drake-Willock Intern, Ltd.,
200 Mich. App. 136 (1906)... 2... ccc cccccccces 50
Certain Underwriters at Lloyd’s, London v.
Foster Wheeler
N.Y.S.2d 30 (N-Y. App. Div. 2006). ........... 16
Chesher v. 3M Co.,
234 F. Supp. 3d 693 (D.S.C. 2017). .......... passim
Childress v. Gresen Manu. Co.,
888 F.2d 45 (6th Cir. 1989) ....................- 53
Codling v. Paglia,
298 N.E.2d G22 (N.Y. 1973)...............0e000- 56
CSX Transp., Inc. v. McBride,
a a 51, 52
E. Riwer S.S. Corp. v.
Transamerica DeLaval, Inc.,
Ge EEE e6ctectcesccsevcecesses passim
rit
Cited Authorities
Page
Edmonds v. Compagnie Generale
Transatlantique,
a nn cc nacencesedteesssess 18
Escola v. Coca Cola Bottling Co.,
ck ncchecbtcesdessosbsoess 37
Exxon Co. v. Sofec,
Se Es 6 cosvecccccdccccecesee passim
Filer v. Foster Wheeler LLC,
994 F. Supp. 2d 679 (E.D. Pa. 2014).............. 30
Garvin v. AGCO Corp.,
2014 WL 8628438 (S.C. Ct. C.P.
December 10, 2014) ........... 5.2 c ccc ccceccues 42
Gourdine v. Crews,
965 A.2d 769 (Md. 2008) ............ ccc eeceeeee 54
Grimshaw v. Ford Motor Co.,
174 Cal. Rptr. 348 (Cal. Ct. App. 1981)............ 36
Hedden v. CBS Corp.,
2015 WL 5775570 (S.D. Ind. Sept. 30, 2015). . . 38, 39
Hughes v. A.W. Chesterton Co.,
89 A.3d 179 (N.J. Super. Ct. App. Div. 2014),
cert. denied, 101 A.3d 1082 (N.J. 2014) ........... 45
riti
Cited Authorities
Page
Husted v. A. Philip Randolph Inst.,
No. 16-980, 2018 WL 2767661
Se cncncaccccovcceoceseveces 51
Huynh v. Ingersoll-Rand,
20 Cal. Rptr. 2d 293 (Cal. Ct. App. 1993).......... 48
Igneri v. Cie. de Transports Oceaniques,
323 F.2d 257 (2d Cir. 1963) ...............22005- 40
IMO Indus. Inc. v. Transamerica Corp.,
101 A.3d 1085 (N.J. Super. Ct. App. Div. 2014)... .. 16
In re Joint E. and S. Dist. N.Y. Asbestos Litig.,
897 F.2d i ivcsc4bdhadebeoses ove 57
In re N.Y.C. Asbestos Litig.,
59 N.E.3d 458 (N.Y. 2016) ................. passim
Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co.,
Se nccecebccececsetsncessnaned 26
Kermarec v.
ie Generale Transatlantique,
S68 U.S. GEG (1GGB). 0... cece ccc cccccnces passim
Kochera v. Foster Wheeler, LLC,
2015 WL 5584749 (S.D. Ill. Sept. 23, 2015)... .. 38-39
rw
Cited Authorities
Page
Lexmark Int'l, Inc. v.
Static Control Components, Inc.,
SE EE nrdadedascencetcccedencscects 51
Lindsay v. McDonnell Douglas Aircraft Corp.,
ree 3
Lindstrom v. A-C Prod. Liabl. Tr,
424 F.3d 488 (6th Cir. 2005) ............. .20, 39, 40
Macias v. Saberhagen Holdings, Inc.,
282 P.3d 1069 (Wash. 2012).............. 42, 44, 45
MacPherson v. Buick Motor Co.,
Bee Se EE oc ccncccccccccccscuce 46,
May v. Air & Liquid Sys. Corp.,
129 A.3d 984 (Md. 2015) .................. passim
McDermott v. AmClyde,
cide dnc cndeucénscénca seeded 18
McKenzie v. A.W. Chesterton Co.,
373 P.3d 150 (Or. 2016), review denied,
neck cbnecseececc<sesed 41, 45
McKown v. Simon Property Group, Inc.,
344 P.3d 661 (Wash. 2015). ................0005. 47
Miles v. Apex Marine Corp.,
SE iecceGicdsscncseuccewess 24, 34
ru
Cited Authorities
Page
Miller v. Am. President Lines, Ltd.,
989 F.2d 1450 (6th Cir. 1993)... ..............4.-. 30
Moragne v. States Marine Lines, Inc.,
Ec eescecctecéescsvceses passim
Norfolk Shipbuilding & Drydock Corp. v.
Garris,
ie dc ecectenhedéaennell 27, 34
O’Neil v. Crane Co.,
266 P.3d 987 (Cal. 2012). ................ 43, 44, 46
Osterhout v. Crane Co.,
2016 WL 6310765 (N.D.N.Y. Oct. 27, 2016) ........ 38
Paroline v. U.S.,
aise cndtedubbacesnesiaw ead 51
Pope & Talbot v. Hawn,
ES eee 33
Quirin v. Lorillard Tobacco Co.,
17 F. Supp. 3d. 760 (N.D. Ill. 2014).......... passim
v. Bridgestone/Firestone,
989 F.2d 465 (11th Cir. 1993)................ .24, 49
Savoie v. Huntington Ingalls, Inc.,
817 F.3d 457 (5th Cir. 2016), cert. denied,
Be I PE a ob ecccccsctesecsccccceccd 30
Cited Authorities
Schwartz v. Abex Corp.,
106 F. Supp. 3d 626 (E.D. Pa. 2015).......
Sea-Land Servs., Inc. v. Gaudet,
San 0s oddccecccsccéccce
Sieracki v. Seas Shipping Co.,
149 F.2d 98 (3d Cir. 1945), affad,
Smith v. Bolles,
Be EDs ov civcccevecccosececes
Spychalla v. Boeing Aerospace Opns. Inc.,
No. 11-CV-497, 2015 WL 3504927
(E.D. Wis. June 3, 2015) ................
Stark v. Armstrong World Indus.,
21 F. App’x 371 (6th Cir. 2001) ...........
Staub v. Proctor Hosp.,
Ge Cec cccccccccsccccccves
Sweredoski v. Alfa Laval, Inc.,
No. PC-2011-1544, 2013 WL 5778533
The Maz Morris v. Curry,
xvii
Cited Authorities
Page
The Sea Gull,
21 F. Cas. 909 (C.C.Md. 1865)............... 32, 34
Vaughn v. Farrell Lines, Inc.,
Ge Ws Ge Gla Cie BBE)... . ccc cccccccccccs 30
Warner v. Goltra,
i weed 32
Waters-Pierce Oil Co. v. Deselms,
EE 46
Westinghouse Elec. Corp. v.
Am. Home Assur. Co.,
2004 N.J. Super. Unpub., 2004 Westlaw 1878764
PE attiacass dnadnadedeuseeeceuceces 15
Whelan v. Armstrong International, Inc.,
2018 WL 3716036 (Sup. Ct. of N.J., Aug. 6, 2018) . .42
Yamaha Motor Corp., U.S.A. v. Calhoun,
EE ee 32, 33, 34, 40
STATUTES & OTHER AUTHORITIES:
a eee died 19
Centers for Disease Control and Prevention,
Morbidity and Mortality Weekly Reporter, 59(27)
GIES 555 cog ve cgecdioncveidsssce- 32
Cited Authorities
Page
Restatement (Second) of Torts, §§ 314-315 .......... 47
Restatement (Second) of Torts, § 388.......... passim
Restatement Second (Torts) § 395 comment (b) . . . 46-47
Restatement (Third) of Torts: Liability
for Physical and Emotional Harm
Pee naesseveescoseuvesssccccnndeatcesed 20, 51
A ccc ccccdvedevocscnenices .20
l
INTRODUCTION
We learn in our first year of law school that a
manufacturer must warn end-users if its product is
hazardous when used as intended. See, e.g., Restatement
(Second) of Torts § 388 (1965). This principle has been
incorporated in general maritime negligence law and the
prevailing law on land for over one hundred years.
Petitioners designed, manufactured, and sold
machines that required asbestos parts to function.
Petitioners’ machines were not “bare metal;” they
incorporated asbestos parts and could not work without
them.
As part of the bargained-for sale, petitioners supplied
maintenance manuals for their machines. Petitioners’
manuals instructed users to replace the original asbestos
parts with identical replacements, but did not warn users to
parts created dust, exposure to asbestos was inevitable if
the user followed the instructions in petitioners’ manuals.
Indeed, petitioners purchased insurance against future
liability for asbestos diseases.
Applying hornbook negligence law and maritime law’s
“duty of reasonable care under the circumstances of each
case,” Kermarec v. Compagnie Generale Transatlantique,
358 U.S. 625, 632 (1959), petitioners had a duty to warn
users of the known hazards arising from the expected
and intended use of their products. This is all the more so
when, as here, petitioners’ maintenance manuals directed
the user on when and how to perform the work that created
the dust.
2
To avoid liability, petitioners propose a unique exception
that abolishes their duty to warn about the foreseeable
hazards arising from use of their machines. Petitioners’
rule would apply to all maritime workers: civilian or Navy,
fishing vessel or self-employed crabber, recreational
boater or floating offshore drilling platform. Petitioners
base their exception on four primary arguments. First,
petitioners attempt to change the products at issue from
their integrated machines to the replaceable asbestos
parts necessary for their machines to work. Second,
petitioners claim that foreseeability has no place in
maritime negligence law. Third, petitioners proclaim that
maritime work is now “safe.” Fourth, petitioners ask the
Court to adjudicate petitioners’ government contractor
defense, which neither the district court nor the Third
Circuit reached. None of these arguments withstands
scrutiny.
Petitioners’ Argument One: Petitioners’ machines
are not the “real” products: Petitioners concede they
had a duty to warn the first users of their machines of the
danger posed by the original asbestos parts they supplied
with their machines. However, petitioners claim that they
have no duty to warn after the original asbestos parts
were replaced, per petitioners’ instructions, with identical
asbestos parts.
Why? Because, according to petitioners, the “real”
products are not their machines, but only the required,
replaceable asbestos parts. Thus, petitioners contend,
once the original asbestos parts are replaced with
identical asbestos parts, petitioners’ duty to warn
disappears. Petitioners’ narrow definition of “the product”
has no place in this negligence claim, which applies to
3
petitioners’ conduct. Cf. Lindsay v. McDonnell Douglas
Aircraft Corp., 460 F.2d 631, 639 (8th Cir. 1972) (noting
that maritime strict liability focuses on the nature of the
product while negligence focuses on the conduct of the
manufacturer).
Under this Court’s maritime precedent, the “real”
product is petitioners’ entire integrated product sold to its
customer: the working machinery with its asbestos parts,
spare asbestos parts, and the accompanying maintenance
manual. See E. River S.S. Corp. v. Transamerica DeLaval,
Inc., 476 U.S. 858, 867 (1986) (“Since each turbine was
supplied by DeLaval as an integrated package . . . . each
is properly regarded as a single unit.”). Petitioners had
a duty under general maritime negligence law to warn
of the hazards inevitably arising from the expected and
intended use of their machines, including during their
maintenance and repair.
Petitioners’ Argument Two: Abolish foreseeability:
Petitioners ask this Court to overturn a century of general
maritime and traditional tort law and establish a new rule
limiting factor in tort litigation. Manufacturers must
warn product users of the dangers they know users will
face when using the products as expected and intended,
but they need not warn of unforeseeable dangers. This is
a simple and uniform rule.
Petitioners’ proposed rule disrupts uniformity.
Established maritime precedent has consistently
conducted a fact-based analysis when applying basic
4
concepts such as foreseeability or, as in this case,
inevitability. If foreseeability is eliminated in this case,
maritime law will no longer be uniform. For example,
maritime law applies a foreseeability test to determine
if an event was a superseding cause. See Exxon Co. v.
Sofec, 517 U.S. 830, 837 (1996). Petitioners’ proposed rule
would mean that foreseeability applies in some instances,
but not others.
Petitioners’ Argument Three; The seas are now
allegedly “safe”; General maritime law has not, as
petitioners claim, foregone the concept that sailors deserve
“special solicitude.” Pet.Br. 37-39. Petitioners’ assertion
that this is an “outdated” concept is unsupported by reality
and the law. The recent collisions of the USS Fitzgerald
and USS John S. McCain with commercial ships; the
sinking of the SS El Faro; the explosion on Deepwater
Horizon; and fourteen seasons of “Deadliest Catch”
demonstrate that the life of a maritime worker remains
precarious. Indeed, commercial fishing remains one of the
most dangerous occupations in the United States.
Moreover, the Third Circuit’s holding accords with
the prevailing law on land. Petitioners’ rule of blanket
immunity would perversely provide sailors less recourse
than land-based workers.
Petitioners’ Argument Four; Blame the Navy:
Petitioners spend nearly half of their brief arguing that
they were innocent “bare meta!” suppliers, and it was the
Navy that later determined asbestos would be required
for their machines to work. If this were true, petitioners
would not need to seek a new rule from this Court.
5
Specifically, the Third Circuit held that there is no
duty unless petitioners knew (1) of the hazards of their
asbestos, and (2) that their products “will be used with an
asbestos-containing part” because of active conduct on the
part of the manufacturer. This includes (a) “equip|[ping|”
the product with an asbestos part, (b) “direct{ing|”
that the product be used with an asbestos part, or
(c) “requirling]” that their product use an asbestos part
to function properly. Pet.App. 15a-l6a. If petitioners’
one-sided presentation of the record is to be believed,
> naman amie tite natin tata ai
Regardless, petitioners’ arguments that they were
helpless before the Navy’s alleged omnipotence have no
place here. First, the question presented does not involve
the Boyle government contractor defense. See Boyle v.
United Techs. Corp., 487 U.S. 500 (1988). Neither the
trial court nor the Third Circuit ruled on this defense
and petitioners are free to pursue it on remand. Second,
it is presumed for purposes of this review that petitioners
knew of the hazards of asbestos and that their machines
will be used with an asbestos-containing part, because
petitioners protest the application of the Third Circuit’s
rule under any circumstances.
Third, respondents proffered contrary evidence that
the manufacturers specified asbestos parts for their
asbestos parts with identical asbestos parts. The Third
Circuit remanded resolution of these factual disputes to
the trial court. Fourth and finally, because petitioners’
proposed rule would apply in all maritime cases, including
non-Navy cases, their arguments as to the Navy’s conduct
6
should have no bearing on this Court’s determination of
the proper rule.
In sum, petitioners ask this Court to abandon a
century of settled law, jettison as “unworkable” the basic
tort concept of “foreseeability,” and adopt a new rule of
blanket immunity for manufacturers of machines that are
inherently dangerous in their normal and intended use. In
contrast, respondents ask this Court to reject petitioners’
blanket immunity rule in favor of established general
maritime and common law rules that promote maritime
law’s principles of uniformity, simplicity, and solicitude
to the sailor. The Third Circuit soundly reasoned that
for maritime claims arising in negligence, manufacturers
have a duty to warn users of the known hazards arising
from the expected and intended use of their products.
This Court should affirm.
COUNTER STATEMENT OF THE CASE
This case arises from an order granting summary
judgment. Viewing the evidence and inferences therefrom
in the light most favorable to respondents (Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)), the facts
are as follows:
A. Respondents were exposed to asbestos during the
expected and intended use of petitioners’ machines.
1. Petitioners supplied machines that required
asbestos parts to function.
John DeVries (“Mr. DeVries”) served in the United
States Navy as an engineering officer aboard U_S_S.
Turner from 1957-60. Resp.App.F 42a-43a. He supervised
7
the crew in the fire and engine rooms. JA 314, 327-328.
The fire rooms contained boilers (with economizers),
pumps, and blowers that generated high pressure steam.
The engine rooms contained the ship’s steam condensers
and propulsion turbines that converted the superheated
steam into mechanical energy. Resp.App.F 41a; Resp.
App.B 1la-13a.
Petitioner Air & Liquid Systems (successor to Buffalo
Pumps) and co-defendants IMO (DeLaval) and Warren
Pumps manufactured pumps. JA 283-286. Petitioner CBS’
predecessors-in-interest (Westinghouse and Sturtevant)
manufactured generators, eight forced draft blowers for
the boilers, circulating pump turbines and air compressor
turbines. JA 420-426. Respondent General Electric (GE)
manufactured the main propulsion turbines. CA3-JA
1281-1283.' Petitioner Foster Wheeler manufactured
economizers for the boilers and condensers.
In high-temperature, high-pressure environments,
“industry” standards specified that asbestos must be used
with the machinery to prevent leaking, heat contact, and
heat dissipation. JA 303; Resp.App.B 11a. Petitioners’
engineers, “not just Navy people, at that time said you
would use asbestos for high-temperature applications.” JA
322. The type of insulation used “depended on the pump
suppliers’ specs.” Resp.App.G 158a. Thus, Buffalo directed
that its pumps be used with asbestos-containing packing.
CA3-JA 357-408. Warren supplied its pumps with asbestos
packing and further required external asbestos insulation.
CA3-JA 1515-1518. GE and Westinghouse required their
1. Citations to “CA3-JA” refer to the Joint Appendix filed in
the Third Circuit.
8
turbines to be insulated with asbestos. CA3-JA 1287-1289,
1291, 1293, 1297-1298 (Westinghouse analogized asbestos
blankets to “topcoats,” proclaiming its “Tailors Make
Topcoats for Turbines.”). Petitioners frequently supplied
spare asbestos parts (in some cases hundreds of them) for
use with their machinery. CA3-JA 1151-1153.
From 1969-1989, Mr. McAfee served as a boatswain’s
mate in the U.S. Navy aboard numerous ships. Especially
from 1977-1980, Mr. McA fee was exposed to asbestos from
the process of removal and replacement of gaskets and
packing from Ingersoll Rand compressors on the U.S_S.
Wannamassa. He was similarly so exposed aboard the
U.S.S. Commodore. JA 486-572.
2. Petitioners’ manuals required routine
maintenance of the machines, which exposed
users to asbestos dust.
Petitioners’ machines required constant maintenance.
Resp.App.C 18a-19a. Each manufacturer supplied a
maintenance manual with its machinery. JA 272, 364,
377, 407.
Mr. DeVries trained his sailors to follow the
instructions in petitioners’ maintenance manuals, which
detailed the type and frequency of maintenance required.
Resp.App.G 154a-155a. When the machines leaked,
petitioners’ maintenance manuals directed sailors to
replace the gaskets and/or packing. JA 304-308. The heat
and pressure from the machinery caused the gaskets to
fragment and stick to the sealing surfaces of the machines.
JA 321-322; Resp.App.G 157a. Mr. DeVries and his sailors
had to use wire brushes to “perfectly clean” the sealing
9
surfaces of petitioners’ machines of asbestos residue so the
new gasket would form a tight seal. This created clouds of
asbestos dust. JA 279, 307, 319, 380, 792; Resp.App.G 157a.
Asbestos “stuffing” or “packing” was required to
prevent liquid or steam from leaking. Mr. DeVries and his
men constantly put new asbestos stuffing in the “stuffing
boxes” of petitioners’ machines. JA 279, 307; Resp.App.C
18a-19a. The asbestos packing became brittle with use,
and created dust upon its removal and replacement. JA
275-276. The men “repacked and repacked and repacked”
the Buffalo, Warren, and DeLaval pumps. Resp.App.G
150a. This created clouds of asbestos dust. JA 275-276,
303.
Finally, to access the machinery, the sailors had to
remove asbestos blanket and cement insulation required
to insulate the machines. This created clouds of asbestos
dust. JA 290-291, 794; Resp.App.A 6a; Resp.App.C 18a.
3. Petitioners’ maintenance manuals and
machine labels did not warn of the hazards of
breathing asbestos dust.
Mr. DeVries had “no knowledge of the dangers of
asbestos.” JA 326. As a result, he did not tell his men to
take precautions. JA 309-310; Resp.App.A 2a. There were
no asbestos warnings on any of petitioners’ machines nor
in any of petitioners’ maintenance manuals. JA 326, Resp.
App.A 7a; Resp.App.G 157a. And there was no “training
and other means” by which the Navy warned of the “long-
term hazards” of asbestos. Cf Pet.Br. 33. Thus, both he
and his men breathed the dust unprotected.
10
B. Petitioners, and not the Navy, designed their
machines to require use of asbestos parts.
Petitioners claim the Navy “added” the asbestos-
containing materials “to the defendants’ machines after
the defendants delivered it [sic] to the Navy” Pet.Br. 3;
that their “product” was merely a piece of “bare metal;”
and they had no role in the use of asbestos parts in and on
their machines. This is contrary to the evidence proffered
by both respondents and petitioners’ own experts.
1. The Navy viewed the petitioners’ machines,
their necessary asbestos parts, and manuals
as integrated units.
First, the Navy considered petitioners’ machines,
their necessary asbestos parts, and their maintenance
manuals to be a single unit. For example, the Navy
defined a boiler and its asbestos parts as a “completely
integrated unit” consisting of “such appurtenances as
covered herein required for safe continuable [sic] and
controllable generation of steam,” including “brickwork
and insulation.” CA3-JA 951. “[S]uppliers of such
equipment usually supplied asbestos products with/on/in
their equipment.” JA 484. Petitioners were also “engaged
by the Navy to participate in renovation and overhaul!
of their own equipment, or that of others, including
asbestos-containing parts in shipyard repairs.” JA 484.
Additionally, petitioners “frequently supplied replacement
asbestos or disturbed previously-supplied asbestos as part
of their activities on ships.” JA 484. And “[gjenerally, if
a company supplied asbestos with its equipment, some of
that asbestos was always present unless the record shows
that the asbestos installed by the defendants was entirely
removed.” JA 484.
1]
Moreover, petitioners were required to revise their
maintenance manuals when different equipment or parts
were substituted in place of those originally specified.
CA3-JA 730, MIL-M-15071, 9 2.5 (1950); accord CA3-JA
794, MIL-M-15071C 99 3.1.6.2-3.1.6.3 (1957). So, if industry
developed suitable non-asbestos replacement parts that
made petitioners’ equipment safer, petitioners were
required to update their maintenance manuals to reflect
these safer alternatives. There is no evidence petitioners
ever supplemented or revised their maintenance manuals
to direct the use of any non-asbestos parts.
2. Petitioners sold machines requiring asbestos
parts to both the military and civilian markets.
Second, petitioners’ suggestion that their machines
were only used with asbestos parts at the Navy’s behest
is contradicted by the fact that petitioners designed and
manufactured their machines with asbestos parts for both
the government and civilian markets. This is because
in high-temperature, high-pressure environments,
“industry” standards specified that asbestos must be used
with the machinery. JA 303; Resp.App.B 11a. Moreover,
contrary to petitioners’ claim that petitioners’ products
were “dictated by the Navy’s precise specifications,” Pet.
Br. 3, the Navy does not actually design the machinery.
The Navy issues “a request for bids from qualified
contractors in an effort to identify a contractor with the
capability and capacity to create a design and manufacture
a [product] that satisfies its new military requirements.”
JA 27, Horne Affidavit 910.
Mr. DeVries testified that petitioners specified the
type of insulation. CA3-JA 355. Petitioners’ machines
12
contained asbestos-containing parts as necessary
components — by petitioners’ design — at the time
petitioners sold their machines to the Navy. JA 394-396,
Testimony of Foster Wheeler MKP, Richard Johnson, at
226-228; JA 484, Faherty Aff. at 17 39-45. In most cases,
these asbestos components were already sealed inside
the machine when it was delivered to the customer. /d.
In other cases, where the machine was too large to be
shipped intact, the machine was assembled at the shipyard
under the supervision of “competent engineer(s)” provided
to the shipyard by petitioners, and the internal asbestos
component parts were assembled into the machine at
that time. JA 33 Horne’s affidavit 197 19, 24; JA 394-396;
Testimony of Foster Wheeler MKP at JA 226-228.
Although it is true certain products were shipped
without external asbestos insulation preinstalled, this
occurred because (1) “it was more economical, efficient
and allowed pre-operation inspection and testing” if the
equipment was not shipped with pre-installed insulation,
and (2) “the Navy was concerned that pre-installed
insulation . . . could be easily damaged during shipment.”
JA 35, 1 24. Preinstalled or not, respondents presented
evidence that petitioners directed that their machines be
insulated with asbestos.
3. Petitioners’ machines would not work without
asbestos parts.
Third, the only materials that would work for high
temperature applications like petitioners’ steam-driven
equipment were asbestos-containing parts. CA3-JA 329;
Resp.App.E 46a, Woodruff Affidavit re: steam driven
equipment. Petitioners concede that, prior to the late
13
1970s, there were no “acceptable substitutes” for the
asbestos components that were required for petitioners’
machines to function as designed. Pet.Br. 5.
Thus, Petitioners’ claim that they had “no control
over the third party products that are added to their
equipment post-sale,” Pet.Br. 14, is belied by the fact that
their machines — both military and civilian — required
asbestos parts to work.
Petitioner Foster Wheeler’s corporate representative
agreed that “asbestos gaskets and tape would have been
incorporated within the Foster Wheeler product when it
left the factory.” JA 395-396. Similarly, Foster Wheeler’s
internal insulation standards dictated the type of asbestos
insulation for use with its products, and were incorporated
by reference into Foster Wheeler’s subcontracts for the
provision of these asbestos parts. JA 391-392. When asked
whether Foster Wheeler knew in the 1940s that asbestos
parts were used on its equipment, Foster Wheeler’s
corporate representative responded that it was “obvious”
because Foster Wheeler specified them “for use in specific
required applications.” JA 393.
Buffalo Pumps’ maintenance manual for its Navy
pumps shows that its pumps were supplied with internal
asbestos parts at the time of their initial sale to the Navy.
CA3-JA 375-404. Buffalo Pumps also supplied drawings
dictating where to put asbestos insulation on their pump.
CA3-JA 374.
Westinghouse supplied its machinery with “gaskets
in equipment” and “steam & gas turbines and ancillary
insulation.” JA 439-442; CA3-JA 643-665, 672-676.
14
Westinghouse proclaimed in 1950 that “[elvery turbine
needs asbestos insulating blankets to conserve the power-
giving heat.” CA3-JA 671.
With respect to gaskets and packing, Mr. DeVries
testified that he was trained that “all engineers, not just
Navy people, at that time said you would use asbestos for
high temperature applications.” JA 322. Non-asbestos
substitutes for these applications did not become available
until the 1980s. CA3-JA 406, Kraft for Buffalo.
Buffalo’s pumps were shipped with asbestos-
containing gaskets and packing until the early 1980s, when
it began attempting to use non-asbestos substitutes. CA3-
JA 406-408. Buffalo admitted that “[i]n the 1980s, gaskets
and packing materials containing asbestos became
generally unavailable while, at the same time, suitable
replacement products . .. were becoming available.” May
v. Air & Liquid Sys. Corp., 129 A.3d 984, 992 (Md. 2015).
C. Replacement asbestos parts were identical to the
original asbestos parts.
The asbestos parts that petitioners’ machinery
required to function were “wear items” that had
to be replaced with identical asbestos parts. Thus,
Westinghouse’s instructions for its marine turbines
required asbestos gaskets to be used as replacement
parts. JA 447.
Petitioners’ maintenance manuals instructed users to
repeatedly remove and replace these asbestos-containing
parts with identical asbestos-containing parts, and
petitioners profited by selling asbestos replacement parts.
15
Westinghouse sold asbestos replacement parts to the Navy
for Westinghouse forced draft blowers. JA 453-454. When
Foster Wheeler sold boilers to the Navy, it provided 200%
of the gaskets needed for the manholes and handholes,
the internal joints in drums, and the burners. CA3-JA
971. Additionally, Foster Wheeler sold tools for cleaning
asbestos-gasket residue off the metal surfaces of their
machines. CA3-JA 972. Foster Wheeler sold 992 spare
gaskets just for the economizers, alone, on U.S.S. Turner.
JA 383-384.
D. Petitioners insured against the dangers posed by
the use of their machines, which included coverage
for asbestos exposure.
Petitioners purchased insurance that covered the
risk of asbestos exposure from the use of their machines.
General Electric had both primary insurance coverage
and excess coverage that applied to personal injury
claims for exposure to asbestos from external insulation
used on its machines from the 1950s through the 1990s.
Appalachian Ins. Co. v. GE, 863 N.E.2d 994, 995 (N.Y.
2007).
In 1997, Westinghouse received $121,513,661.70 in
settlement of litigation with some, but not all, of its excess
insurance carriers for claims arising from asbestos
exposure from its machines. Westinghouse Elec. Corp.
v. Am. Home Assur. Co., 2004 N.J. Super. Unpub., 2004
Westlaw 1878764 (July 8, 2004).
Buffalo carried both primary and excess insurance
coverage for asbestos injuries arising from its pumps.
Air & Liquid Systems Corp v. Allianz Underwriters
16
Ins. Co., 2013 U.S. Dist. 2013 Westlaw 5436934 (Sept. 27,
2013 W.D. PA). Like the other petitioners, Foster Wheeler
purchased insurance to cover asbestos claims arising from
the use and maintenance of its machines. See Certain
Underwriters at Lloyd’s, London v. Foster Wheeler Corp.,
822 N.Y.S.2d 30 (N.Y. App. Div. 2006).
Defendant IMO Industries, Inc.’s predecessor,
DeLaval, purchased over $1.85 billion dollars of insurance
coverage — “sufficient to pay for its anticipated liabilities
and defense costs for asbestos-related personal injury
claims.” IMO Indus. Inc. v. Transamerica Corp., 101 A.3d
1085, 1091 (N.J. Super. Ct. App. Div. 2014).
E. The Navy required petitioners to warn users of their
machines of the dangers they would face, including
asbestos dust.
1. The Navy warning requirements were not
limited to hazards that cause “immediate
harm.”
Petitioners argue that the Navy would allow warnings
only as to “immediate” harm. Pet.Br. 33. On the contrary,
the “Navy required manufacturers not only to warn on
the products but to supply manuals containing warnings
to eac, ship and precautions for the use of the product.”
These required warnings included asbestos warnings. JA
585-6, 588-89, 590. Moreover, “[blased on the SECNAV
instruction, the MIL-T-15071 series, and the MIL
Standard 129 series, suppliers were required to label
asbestos as hazardous.” Resp.App.E 91a-100a.
17
The World War II-era General Specifications for
Machinery S1-1 required contractors to include “Safety
precautions” in their maintenance manuals. CA3-JA 743.
By the 1950s, the Navy became more emphatic in the
MIL-M-15071 series, telling petitioners to use the word
“WARNING?” for “Operating procedures, practices, etc.
which will result in personal injury or loss of life if not
correctly followed” in the operation, repair, overhaul and
maintenance of the equipment. JA 783, 19 3.3.6; JA 782-
3. Nowhere does the Navy state that “personal injury”
warnings must apply only to “imminent threats.” Cf Pet.
Br. 33.
2. The DOD required warnings for toxic and
carcinogenic dust.
The Department of Defense (“DOD”) required
petitioners to mark their products and packaging in
accordance with MIL-STD-129, which incorporated the
industry warning standard, Manufacturing Chemists
Manual, L-i. Taat standard required warnings for toxic
and carcinogenic “dust.” JA 482, Faherty Aff. at 1922-28;
JA 648-651, Frank Affidavit.
Contrary to petitioners’ assertion that there was a
“Navy-specific” warnings regime, DOD policies regarding
warnings were expressly designed to mirror existing
civilian industry standards. This ensured consistent
warnings. The Navy expressly preferred petitioners
to provide their standard civilian maintenance manual
with their machines. JA 586. And the maintenance
manuals provided by machinery manufacturers to the
Navy contained a myriad of warnings tracking the
nomenclature of the MCA Warning Label Guide — but
18
not the MCA Warning Label Guide as to asbestos. Resp.
App.E 90a-100a.
3. By the 1980s, petitioners warned about asbestos
with no resultant “overwarning” phenomenon.
manufacturers to Navy users would have resulted in
“overwarning,” disrupted military discipline, and confused
sailors. Pet.Br. 33. There is not a shred of evidence that
any of petitioners’ decision-makers decided against
warning users based upon a concern about “overwarning.”
And petitioners have produced no evidence that, when
petitioners finally started warning in the 1980s, this
impaired military discipline or confused sailors.
F. Proceedings Below.
Mr. DeVries and Mr. McAfee developed cancer as a
result of their exposures to asbestos, and filed suit against
petitioners in state court.
Petitioners argue that respondents sued them because
they could not sue the Navy. Pet.Br. 9. That is false.
Parties whose actions are proximate causes of harm
are subject to joint and several liability. McDermott
v. AmClyde, 511 U.S. 202, 220-21 (1994); Edmonds v.
Compagnie Generale Transatlantique, 443 U.S. 256, 273
n.30 (1979). Petitioners’ negligence contributed to cause
respondents’ diseases. That is why they were sued. That
the respondents have no tort cause of action against the
Navy is no different than any other workplace injury in
a state with a workers’ compensation bar. To the extent
19
petitioners wish to argue that the Navy was the sole
cause of respondents’ injuries, the Boyle defense and
superseding cause defense will be available to them on
remand.
Petitioners removed the cases to federal court under
42 U.S.C. § 1442. The district court granted summary
judgment to petitioners, holding they had blanket
immunity under the so-called “bare metal” defense. The
district court did not reach any other basis for summary
judgment, including the government contractor defense
under Boyle. Pet.App. at 70a; see also Pet.App. at 61a,
78a, 86a-87a.
In the first appeal, the Third Circuit remanded to
the district court to clarify whether its holding applied
to both plaintiffs’ strict liability and negligence claims.
Pet.App. 47a, 51a. The district court confirmed that its
ruling applied to both theories of liability. Pet. App. 42a.
In the second appeal, the Third Circuit held
respondents failed to preserve their strict liability claim,
and expressly limited the question presented to the
application of the “bare metal” defense under general
maritime negligence law. As to the negligence claim, the
Third Circuit framed the issue as whether a manufacturer
who delivers a product “bare-metal” — “without the
insulation or other material that must be added for the
product’s proper operation” — could be liable in negligence
for the foreseeable injuries caused by use of the product.
Pet. App. 2a (emphasis added). Under “bedrock principles
of maritime law,” the Third Circuit held that, in a
“negligence claim,” “a manufacturer of even a bare-metal
product” may be liable for an asbestos-related disease
20
“when circumstances indicate the injury was a reasonably
foreseeable result of the manufacturer’s actions.” Pet.App.
3a. The Third Circuit rejected the district court’s “bright
line approach” that manufacturers can never have liability
for respondents’ negligence claims. /d.
The Third Circuit recognized a potential split in
authority — one line of cases holding that a manufacturer
of “bare-metal products” is never liable for asbestos
components, see e.g. Lindstrom v. A-C Prod. Liabl. Tr. 424
F.3d 488, 492 (6th Cir. 2005) — and the other line applying
a traditional “fact specific” inquiry regarding whether the
plaintiff's injury was a “reasonably foreseeable result of
the manufacturer’s conduct.” Pet.App. 6a (citing Quirin
v. Lorillard Tobacco Co., 17 F. Supp. 3d. 760, 768-70 (N.D.
Ill. 2014)).
The Third Circuit held that the “doctrinal root”
of the “bare metal” defense could be found in both
causation and duty, because the “keystone is the concept
of foreseeability.” Pet.App. 7a. “In the duty element in
a negligence action, foreseeability limits a defendant’s
liability to only the risks and plaintiffs that are reasonably
foreseeable.” Pet.App. 8a (citing Restatement (Third) of
Torts: Phys. & Emot. Harm § 7 Comment j (2010 Am. Law
Inst.) (acknowledging “widespread use” of foreseeability
as an aspect of reasonable care)). “[I]n proximate cause,
foreseeability limits a defendant’s liability to only the
injuries that are a reasonably foreseeable result of the
defendant’s actions.” Pet.App. 8a (citing Jd. § 29, Comment.
J).
21
The Third Circuit applied fundamental principles
of general maritime law to resolve this potential split
between bright-line rules and fact-specific standards.
The “humane and liberal character” of general maritime
law obliged courts to “give than to withhold the remedy”
wherever “established and inflexible rules” do not require
otherwise. Pet.App. 12a, (citing Moragne v. States
Marine Lines, Inc., 398 U.S. 375, 387 (1970)). Moreover,
the Third Circuit held that the “traditions of simplicity
and practicality” favored by maritime law warranted
application of the principle of foreseeability, which is a
“familiar and key part of tort law.” Pet. App. 13a-14a (citing
Kermarec, 358 U.S. at 631-632).
Circuit held that a manufacturer may be subject to
liability in negligence if it could have reasonably known
that: (1) asbestos is hazardous; and (2) the product will
be used with an asbestos-containing part, because
(a) the product was originally equipped with an asbestos-
containing part that could reasonably be expected to be
replaced over the product’s lifetime; (b) the manufacturer
specifically directed that the product be used with an
asbestos-containing part; or (c) the product required an
asbestos containing part to function properly. Pet.App.
15a-16a. The Third Circuit remanded the case to the
District Court to determine whether summary judgment
was warranted on respondents’ negligence claims in light
of its holding. Pet.App. 17a. Further, the Third Circuit
declined to address petitioners’ Boyle defense, leaving
that issue to the district court. Pet. App. 17a.
Petitioners urge reversal because courts “cannot
recognize a duty based entirely on the foreseeability of
22
the harm at issue.” Pet.Br. 42. The Third Circuit did not
arrive at its decision until it considered each of maritime
law’s prevailing policy interests — uniformity, si
protection of maritime commerce and solicitude for
sailors. Moreover, its test is not limited to foreseeability.
Element (1) of the test involves the manufacturer’s actual
or constructive knowledge of the hazards of asbestos.
Element (2) deals with foreseeability, but based only
on active conduct by the manufacturer — what the
manufacturer supplied, directed or required. Put simply,
the Third Circuit held that a machinery manufacturer
may be liable in negligence if it (1) knew of the dangers
of asbestos; (2) took action that would cause the user of
the machine to be exposed to asbestos; and (3) failed to
warn of these known dangers.
SUMMARY OF ARGUMENT
A manufacturer’s duty to warn of the foreseeable
hazards arising from use of its products is one of the
most basic tenets of maritime law and traditional tort
law. This tenet applies to situations where a manufacturer
knowingly incorporates and requires the use of a dangerous
materials” “added” to their machinery “years after the
equipment’s manufacture and sale” by “the Navy or some
other third party.” Pet.Br. 12. But petitioners ignore that
(a) their machines contained those parts at the time of
sale; (b) they knew at the time of sale that their machinery
would require those asbestos parts to function; (c) they
knew those asbestos parts would inevitably require
asbestos-containing replacements; and (d) they knew
the asbestos parts would create hazardous asbestos dust
23
every time their machines were maintained as petitioners
directed. When a case presents these circumstances, the
Third Circuit correctly held that there would be a duty to
warn of the danger arising from the expected and intended
use of petitioners’ machines. Pet.App. 16a.
I. Petitioners’ request that this Court eliminate
foreseeability and “reasonable care” from maritime law
is irreconcilable with this Court’s established maritime
precedent. In Kermarec, this Court held that maritime
negligence defendants are held to a “duty of reasonable
care under the circumstances of each case.” Kermarec,
358 U.S. at 632. In East River, this Court incorporated
Kermarec’s standard, stating that product liability
negligence claims are “grounded in principles already
incorporated into maritime law.” East River, 476 U.S. at
866. Following these established principles, the Third
Circuit crafted a carefully delineated test for a duty of
care, applied “on a case-by-case basis,” but circumscribed
by the strict parameters of foreseeability as mandated by
this Court in Exxon Co. v. Sofec, 517 U.S. 830 (1996), and
other cases. Pet.App. 16a. The Third Circuit’s test aligns
with, and is compelled by, the holdings in Kermarec and
East River.
Il. The Third Circuit’s test accords with traditional
of unlimited liability. Rather, it applied a balanced rule
finding a duty only when an asbestos component was
“essential to the proper functioning of the defendant’s
product, or was for some other reason so inevitable that,
by supplying the product, the defendant was responsible
for introducing asbestos into the environment at issue.”
Pet.App. 6a, 16a; see also Quirin, 17 F. Supp. 3d at 769-70.
24
This balanced rule properly applies traditional principles
of tort law (limiting liability based on foreseeability), and
maritime law’s principles that manufacturers are held to
a “duty of reasonable care under the circumstances of
each case.” Kermarec, 358 U.S. at 631; Hast River, 476
U.S. at 866. Applying petitioners’ exception to maritime
negligence law by eliminating foreseeability and isolating
one component of their otherwise integrated machines
would defeat maritime law’s goals of uniformity and
simplicity.
III. The overwhelming majority of state court cases
that have addressed this “bare metal” defense have
rejected the blanket immunity advocated by petitioners,
and applied a rule consistent with the Third Circuit’s rule.
Petitioners’ argument would require this Court to adopt a
rule that is “disfavored by a clear majority of the States.”
Miles v. Apex Marine Corp., 498 U.S. 19, 36 (1990).
IV. In addition to comporting with maritime law and
a clear majority of the states, the Third Circuit’s rule
mirrors traditional tort doctrine. A manufacturer has
a duty to warn of the hazards arising from the intended
and expected use of its product. Restatement (Second) of
Torts, § 388, Comment (a). This duty applies even when
the harm involves a part manufactured by a third party,
and the part is required for the proper functioning of the
manufacturer’s machinery. Indeed, the cases petitioners
cite confirm the continued vitality of this principle. Pet.Br.
14 (citing Reynolds v. Bridgestone/Firestone, 989 F.2d 465,
471 (11th Cir. 1993) (holding that tire rim manufacturer
liable for injuries caused by exploding tire made by a
third party, because if “the manufacturer knows or should
know that the goods can create danger when used in
25
their customary manner, the manufacturer must exercise
reasonable diligence to make such danger known to the
persons likely to be injured by the product.”)).
V. The assumptions underlying petitioners’ assertion
that a manufacturer cannot control the risks associated
with every product that might foreseeably be used in
conjunction with its own product, Pet.Br. 44-45, are fully
addressed by the Third Circuit’s rule. The rule imposes
a duty only when a manufacturer knew or reasonably
could have known (1) that asbestos is hazardous; and
(2) “its product will be used with an asbestos-containing
part” because (a) the manufacturer originally sold its
machine with an asbestos part it reasonably expected to be
replaced over the product’s lifetime, (b) “the manufacturer
specifically directed that the product be used with an
asbestos-containing part, or (c) the product required an
asbestos-containing part to function properly.” Pet.App.
15a-16a. Petitioners were in the best position to warn of
the hazards arising from use of their products, both from
a practical perspective (they sold their products with
maintenance manuals), and from an economic perspective.
Petitioners designed their machinery to require asbestos
parts, profited from the sale of this integrated machinery,
and passed on to their customers the cost of insurance for
future harms arising from use of their machines.
VI. Petitioners’ contention that the Navy would not
allow them to warn has no relevance to the question
presented. The government contractor defense is not
before this Court. See Boyle v. United Technologies Corp.,
487 U.S. 500 (1988). Moreover, the narrow issue of what
the Navy did or did not do in this case has no relevance
to the global question of whether under general maritime
26
law a manufacturer has a duty to warn of dangers arising
from use of its product. And in any event, respondents’
evidence to the contrary must be credited over petitioners’
competing evidence at summary judgment.
VII. In essence, the Third Circuit’s test is an
“inevitability” test that provides clear guidelines to
courts and litigants, while simultaneously adhering to
this Court’s maritime precedent imposing a simple rule
of reasonable care under the circumstances. It balances
maritime law’s goals of providing “special solicitude” to the
sailor based on uniform rules. Petitioners’ contention that
this Court should abandon the concept of foreseeability
in negligence law would upend a century of this Court’s
jurisprudence and create chaos across every area of
maritime law in which principles of negligence, proximate
cause (including superseding cause), and foreseeability are
routinely applied by the courts. Because petitioners were
in the best position to warn, test, and insure against the
foreseeable harm arising from the use and maintenance
of their own machinery, this Court should affirm.
ARGUMENT
I. The Third Circuit’s holding is compelled by this
Court’s maritime precedent.
A. Maritime law has long recognized negligence,
including its foreseeability test.
This case arises under federal maritime law. See
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
Co., 513 U.S. 527, 536 (1995). “With admiralty jurisdiction
comes the application of substantive admiralty law.”
27
East River, 476 U.S. at 864. “Absent a relevant statute,
the general maritime law, as developed by the judiciary,
applies.” Jd. “Drawn from state and federal sources,
general maritime law is an amalgam of traditional
common-law rules, modifications of those rules, and newly
created rules.” /d. at 864-865. Petitioners concede that no
maritime statute governs this case. Pet.Br. 18. Thus, the
issue presented turns purely on general maritime law.
This Court has developed a body of maritime tort
principles. Kast River recognized “products liability,
including strict liability, as part of the general maritime
law.” East River, 476 U.S. at 865. East River held that “[tjo
the extent that products actions are based on negligence,
they are grounded in principles already incorporated into
the general maritime law,” including a duty of reasonable
care under the circumstances. /d. (citing Kermarec, 358
U.S. at 632).
“The general maritime law has recognized the tort
of negligence for more than a century... .” Norfolk
Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811,
820 (2001). This Court has repeatedly held that general
maritime negligence, though derived from common law
negligence, is uniquely maritime in nature. See, e.g., id.
at 815 (maritime negligence “is no less a distinctively
maritime duty than seaworthiness: The common-law
duties of care have not been adopted and retained
unmodified by admiralty, but have been adjusted to fit
their maritime context”); Moragne, 398 U.S. at 386-87
(“Maritime law had always . . . been a thing apart from
the common law.”); Kermarec, 358 U.S. at 630 (“The
issue must be decided in the performance of the Court’s
function in declaring the general maritime law, free from
inappropriate common-law concepts.”).
28
B. Petitioners’ proposed blanket immunity is
antithetical to maritime law.
Petitioners’ request that this Court abandon
Kermarec’s reasonable care standard, principles of
foreseeability, and solicitude for the welfare of sailors
would upend general maritime negligence law.
1. Maritime negligence law applies a duty of
reasonable care under the circumstances
of each case.
First, as set forth above, since this Court decided
Kermarec nearly sixty years ago, all general maritime
negligence cases have been held to a simple, uniform duty
of “reasonable care under the circumstances of each case.”
Kermarec, 358 U.S. at 632.
This Court expressed a clear intent that products
liability claims sounding in negligence would be held to
the same Kermarec standard as any other negligence case.
When this Court recognized maritime strict products
liability claims in Kast River, it stated, “to the extent
that products actions are based on negligence, they are
grounded in principles already incorporated into the
general maritime law.” East River, 476 U.S. at 866 (citing
Kermarec, 358 U.S. at 632). Petitioners ignore principles of
stare decisis and ask this Court to reject this longstanding
precedent to carve out a special exception just for them.
Deviating from the simple Kermarec negligence standard
would impair maritime uniformity.
29
2. Maritime law holds that a product is the
entire “integrated package,” including its
asbestos parts and maintenance manual.
Second, petitioners’ claim that the “product” is not
their integrated product — but instead only the necessary
and identical replacement asbestos parts — subverts this
Court’s holding in Kast River that machines are to be
judged as an “integrated package,” and not deconstructed
to their “component parts.” Kast River, 476 U.S. at 867.
To the extent this case has anything to do with the
identity of the product, as opposed to petitioners’ conduct,
the products sold by petitioners were the operating
machines, with all their requisite parts and their required
maintenance manuals. The replacement asbestos parts
were not “added” later unbeknownst to petitioners. Pet.
Br. 3. Petitioners specified asbestos parts so that their
machines would work and sold the asbestos parts with
the original integrated product.
Petitioners seek to overturn Kast River's “integrated
product” rule in favor of a special carve-out by which
courts must disassemble petitioners’ machines into a
pile of individual component parts. A rule that carves
out specific necessary parts from integrated machines
and defines them as the only “real” products constitutes
“conceptual distinctions [that] would be foreign to its
traditions of simplicity and practicality.” Kermarec, 358
U.S. at 634. This, likewise, would impair maritime law’s
uniform integrated package rule.
30
3. Blanket immunity for petitioners would
unfairly require shipyards and ship
owners to pay for petitioners’ negligence.
Third, as a policy matter, petitioners’ rule of blanket
immunity would unduly burden maritime commerce and
result in a heavier burden on core maritime actors—
shipyards and ship owners. Currently, both shipyards and
ship owners may be held liable in negligence for injuries
caused by asbestos products installed on board their ships,
even if those products were manufactured by others,
including petitioners. See e.g., Savoie v. Huntington
Ingalls, Inc., 817 F.3d 457, 459 (5th Cir. 2016), cert. denied,
137 S. Ct. 339 (2016) (shipyard); Miller v. Am. President
Lines, Ltd., 989 F.2d 1450, 1453 (6th Cir. 1993) (ship
owner). The same district court judge who presided over
this case found that shipyards are subject to Kermarec’s
duty of reasonable care under the circumstances in
negligent failure to warn claims arising from exposure
to products manufactured by others and installed at the
shipyard. Filer v. Foster Wheeler LLC, 994 F. Supp. 2d
679, 693 (E.D. Pa. 2014).
To avoid absorbing the full amount of damages in
such cases, shipyards and ship owners routinely file
cross-claims and third-party claims against defendants,
including petitioners, who manufactured and supplied the
machines giving rise to the asbestos exposure. See, e.g.,
Miller, 989 F.2d at 1453; Vaughn v. Farrell Lines, Inc.,
937 F.2d 953, 958 (4th Cir. 1991) (approving noncontractual
indemnity claim by ship owner against Foster Wheeler). If
this Court grants petitioners’ blanket immunity, shipyards
and ship owners will not be able obtain noncontractual
indemnity or contribution from petitioners. Rather than
31
spreading the cost amongst all responsible parties,
petitioners’ rule would unfairly concentrate liability on
those who did not actually supply the machines that
required use of asbestos parts.
This impact would extend far beyond the facts of
this case. Consider, for instance, an industrial table saw
manufacturer who provides a saw to a shipyard. Such
saws normally contain warnings and safety devices to
protect people from the blade. A saw blade, however,
is a wear item that must routinely be replaced. If the
shipyard purchases an identical replacement blade —as
specified by the saw manufacturer — from an aftermarket
supplier, does that mean that the saw manufacturer no
longer has a duty to warn of the expected hazards of its
saw? Is a nail gun manufacturer absolved of any duty to
warn of the foreseeable hazards of its own nail gun when
used as intended and expected with nails that the gun
manufacturer specified but did not supply?
Also consider Foster Wheeler’s economizers, which
Foster Wheeler sold with the original asbestos gaskets
sealed inside and an additional 992 spare gaskets. JA 383-
384. When gasket number 993 is installed, does Foster
Wheeler’s duty to warn vanish? And if Foster Wheeler
had included warnings in its maintenance manual and
on its machine for its original gaskets and the 992 spare
gaskets, should it now remove those warnings because
the 993rd gasket — identical in all respects and giving
rise to the exact same hazard — happened to come from
an aftermarket supplier?
32
4. Solicitude for sailors is not an “outdated”
policy.
Finally, maritime law holds that “it better becomes
the humane and liberal character of proceedings in
admiralty to give than to withhold the remedy, when
not required to withhold it by established and inflexible
rules.” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199, 213 (1996) (citing Moragne, 398 U.S. at 387 (quoting
The Sea Gull, 21 F.Cas.909, 910 (C.C.Md. 1865))). While
the result urged by respondents is not dependent upon
this long established doctrine, it would be perverse if the
doctrine were jettisoned in this case in favor of a rule
far more restrictive than the prevailing law on land. See
Section III infra.
Moreover, petitioners’ claim that maritime law no
longer requires a special solicitude for sailors because
the seas have become safe is unsupported by the facts.
For example, commercial fishing remains “one of the
most dangerous occupations in the United States.”
Centers for Disease Control and Prevention, Morbidity
and Mortality Weekly Reporter, 59(27);842-845 (July 16,
2010), available at https://www.cdc.gov/mmwr/preview/
mmwrhtml/mm5927a2.htm (last visited Aug. 19, 2018).
The relative risk for increased deaths among commercial
fishermen as compared with all United States workers
is staggering: “During 1992-2008, an annual average
of 58 reported deaths occurred (128 deaths per 100,000
workers)| |, compared with an average of 5,894 deaths
(four per 100,000 workers) among all U.S. workers.” /d.
Yet based on nearly 85-year-old dicta in Warner v.
Goltra, 293 U.S. 155, 162 (1934), petitioners contend that
33
solicitude for maritime workers is an “outdated” policy
from a bygone era. Pet.Br. 34-35. Petitioners fail to explain
why, if this policy is allegedly no longer valid, this Court
has continued to apply it for the last 125 years. As noted
above, in both Moragne and Yamaha this Court based its
unanimous decisions heavily upon this policy. See Yamaha,
516 U.S. at 213; Moragne, 398 U.S. at 387; see also Am.
Exp. Lines, Inc. v. Alvez, 446 U.S. 274, 281-82 (1980);
Sea-Land Servs., Inc. v. Gaudet, 414 U.S. 573, 583 (1974).
In The Maz Morris v. Curry, 137 U.S. 1, 14-15 (1890),
this Court unanimously rejected a strict contributory
negligence rule on the principle that “the more equal
distribution of justice, the dictates of humanity, the
safety of life and limb, and the public good, will be best
promoted|.}” /d.; see also Pope & Talbot v. Hawn, 346 U.S.
406, 411 (1953). In 1959, this Court unanimously rejected
complex and differing standards of care based on the
identity or status of the parties at issue in the case and
adopted a simple, uniform “duty of reasonable care under
the circumstances of each case” for all negligence actions.
Kermarec, 358 U.S. at 631.
In 1970, this Court unanimously rejected the
traditional common law proscription against wrongful!
death claims, basing its decision in part on maritime law’s
“humane and liberal nature” and “special solicitude for
the welfare of those men who undertook to venture upon
hazardous and unpredictable sea voyages.” Moragne, 398
U.S. at 387. In 1996, this Court unanimously rejected an
attempt to limit damages available for a maritime casualty
because “it better becomes the humane and liberal
character of proceedings in admiralty to give than to
withhold the remedy, when not required to withhold it by
34
established and inflexible rules.” Yamaha Motor Corp., 516
U.S. at 213 (internal citations omitted). In 2001, this Court
unanimously rejected a distinction between death claims
for unseaworthiness and negligence, based largely on
commonsense “notions of justice” and simplicity. Garris,
532 U.S. at 816. In these cases, this Court gave effect to
maritime law’s humane solicitude for maritime workers
and preference for justice and simplicity.
Even cases that ultimately ruled against extension of
a maritime remedy recognized the continuing validity of
this policy. For instance, in Miles v. Apex Marine Corp.,
498 U.S. 19 (1990), this Court noted that “admiralty courts
have always shown a special solicitude for the welfare of
seamen and their families.” /d. at 36 (citing Moragne,
398 U.S. at 387 (quoting Chief Justice Chase in The Sea
Gull, 21 F. Cas. 909, 910 (No. 12,578) (CC Md. 1865)), and
Gaudet, 414 U.S. at 583). However, because Congress had
placed limits on recovery in survival actions, the Court
was bound to follow the governing statute: “We sail in
occupied waters.” Miles, 498 U.S. at 36. In contrast,
petitioners admit that no statutes or inflexible rules are
implicated in this case. Because this Court is not sailing
in “occupied waters,” there is no obstacle to giving rather
than withholding the remedy in this case. Yamaha, 516
U.S. at 213.
C. Under maritime law, there was no superseding
cause.
Petitioners do not dispute that (i) they had a duty to
warn the initial users of their machines of the danger of
with their products when sold; (ii) they had a duty to
35
warn all subsequent users of their machines — so long
as the necessary asbestos parts being removed were
supplied by petitioners; and (iii) their machines required
replacement of asbestos components with substantially
identical asbestos components. Yet, petitioners argue
that an intervening condition arose that relieves them of
liability for the hazards inherent in the normal, intended
maintenance of their machines.
This is a thinly veiled argument that the replacement
of the original asbestos gasket, packing or insulation
constituted a superseding cause that excused petitioners’
failure to warn at the time they sold their machines, spare
parts and maintenance manuals to the Navy. See e.g.,
Exxon Co. v. Sofec, 517 U.S. 830 (1996). In Sofec, Justice
Thomas, writing for a unanimous Court, held that the
doctrine of superseding cause applied to products liability
claims under maritime law: “The doctrine of superseding
cause is applied where the defendant’s negligence in fact
substantially contributed to the plaintiff's injury but the
injury was actually brought about by a later cause of
independent origin that was not foreseeable.” Sofec, 517
U.S. at 837 (emphasis added).
Petitioners cannot claim that the use of replacement
asbestos parts in their machines was “not foreseeable”
when their machines required asbestos parts to operate
and their maintenance manuals specified asbestos parts
does not constitute an unforeseeable superseding cause
that breaks the chain of causation any more than refilling
the gas tank of the exploding Ford Pinto constitutes a
superseding cause of the Pinto’s negligent design. See
36
Grimshaw v. Ford Motor Co., 174 Cal. Rptr. 348, 359
(Cal. Ct. App. 1981). Gas was required for the Pinto to
run, just like asbestos components were required for
petitioners’ machines to operate. But the Pinto had been
refilled many times before the gas tank exploded, just as
the asbestos components had been replaced many times
before Mr. DeVries and Mr. McAfee were exposed. Neither
changed the defective condition of the product itself —
the Pinto in the first example, the machine in this case
— to create a hazard “of independent origin that was not
foreseeable.” Rather, both left the product in exactly the
same dangerous condition that it was in when it was first
delivered to the purchaser.
Finally, this Court’s decision in Sofec and many other
cases demonstrates that this Court has not considered
foreseeability to be an “unworkable” rule in maritime
cases. Pet.Br. 14. Indeed, in both Sofec and more recently
in Staub v. Proctor Hosp., 562 U.S. 411 (2011), this Court
had no difficulty applying the doctrine of superseding
cause based on foreseeability.
D. In maritime cases, this Court has clearly
distinguished between property damage and
personal injury claims.
Finally, petitioners contend that maritime law
should not distinguish between contract and personal
injury cases. Pet.Br. 35. But East River held that there
is stronger justification for the imposition of a tort duty
when the injury is to the person (as opposed to when a
product injures only itself), because when a person is
injured, the “cost of an injury and the loss of time or
health may be an overwhelming misfortune,” and one the
37
person is not prepared to meet. Kast River, 476 U.S. at
871 (quoting Escola v. Coca Cola Bottling Co., 24 Cal. 2d
453, 462 (1944)). In contrast, in contract law, the parties
may set the terms of their own agreements. Kast River,
476 U.S. at 872-73. “Since a commercial situation generally
does not involve large disparities in bargaining power, we
see no risk to intrude into the parties’ allocation of the
risk.” /d. at 873 (internal citations omitted). This is not a
contract case.
Il. The Third Circuit’s test accords with maritime law.
A. A test based on reasonable care under the
circumstances of each case accords with
maritime principles.
The test adopted by the Third Circuit in this case
accords with traditional maritime doctrine. The Third
Circuit rejected the concept of unlimited liability whereby
a defendant might be held liable whenever the use of
asbestos in connection with its product was “merely”
foreseeable. The Third Circuit also rejected the rule that
“a defendant is never liable when the material containing
asbestos was supplied by a third party.” Quirin, 17. F. Supp.
3d at 769. As in Quirin, the Third Circuit followed the
“middle road,” finding a duty “where the use of asbestos-
containing materials was specified by a defendant, was
essential to the proper functioning of the defendant’s
product, or was for some other reason so inevitable that,
by supplying the product, the defendant was responsible
for introducing asbestos into the environment at issue.”
Quirin, 17 F. Supp. 3d at 769-70; Pet.App. 15a-16a.
38
This balanced rule properly applies traditional
principles of tort law (limiting liability based on
foreseeability), and maritime law’s longstanding “duty
of reasonable care under the circumstances of each
case.” Kermarec, 358 U.S. at 631. Notably, this Court in
Kermarec did not find analyzing the circumstances of
each case in a negligence claim antithetical to maritime
law’s principles; on the contrary, the Court held that this
accorded with maritime law’s “traditions of simplicity and
practicality.” /d. at 631.
Moreover, contrary to petitioners’ parade of horribles
that this “free-wheeling” approach would provide a “mess”
for the lower courts (Pet.Br. 43), the Third Circuit’s test
is simple:
First, did the manufacturer have actual or constructive
knowledge that asbestos is hazardous? If yes, then continue
to the second part of the test. If not, there is no duty.
Second, did the manufacturer know or should the
manufacturer have known that its product would be
used with asbestos-containing parts based on its own
affirmative conduct? If yes, then there is a duty to warn.
If not, there is no duty.
Other recent maritime cases have adopted this “middle
road” test, which requires that the manufacturer take an
active role in incorporating the asbestos component into
the product before a duty arises. See Osterhout v. Crane
Co., 2016 WL 6310765, at *3 (N.D.N.Y. Oct. 27, 2016); Bell
v. Foster Wheeler Energy Corp., 2016 WL 5780104, at *6
(E.D. La. Oct. 4, 2016); Hedden v. CBS Corp., 2015 WL
5775570, at *14 (S.D. Ind. Sept. 30, 2015); Kochera v. Foster
Wheeler, LLC, 2015 WL 5584749, at *4 (S.D. Ill. Sept.
39
23, 2015); Andrews v. 3M Co., No. 2:13-ev-2055, 2015 WL
12831315, at *6 (D.S.C. May 22, 2015), on reconsideration,
sub nom. Andrews v. CBS Corp., 2015 WL 12831342
(D.S.C. June 18, 2015), Chesher v. 3m Co., 234 F. Supp.
3d 693 (D.S.C. 2017)
B. Lindstrom is limited to strict products liability,
and has no bearing on negligent failure to
warn claims.
The Lindstrom line of cases upon which petitioners
rely derive their “bright line rule” based on the principle
that, if the exposure to the asbestos arose from a third
party’s component within the manufacturer’s product,
then this negates causation. While Lindstrom’s rule may
give rise to a conflict in maritime law under principles of
strict liability, in a negligence cause of action, which is the
sole issue before this Court, Lindstrom is particularly
problematic to apply. See Hedden, 2015 WL 5775570,
at *11 (citing Lindstrom for the general principles of
causation but nevertheless holding that a defendant may
be liable under the circumstances outlined in Quirin);
Kochera, 2015 WL 55?4749, at *3 (same); Andrews,
2015 WL 12831315, at * (distinguishing Lindstrom as
“a manufacturing defect case [that] did not consider or
discuss a failure-to-warn claim”).
First, while the district court found that Lindstrom’s
rule applied to both product liability and negligence
claims, Pet.App. 34a n. 11, the Lindstrom decision itself
contains no discussion of failure-to-warn claims. Andrews,
2015 WL 12831315, at *6 (distinguishing Lindstrom as
“a manufacturing defect case [that] did not consider or
discuss a failure-to-warn claim”); Quirin, 17 F. Supp. 3d
at 768 (same). Indeed, the word “duty” does not appear
in the opinion.
40
Second, Lindstrom’s analysis does not hold in a
negligence cause of action, which is focused on the
defendant’s conduct. Chesher v. 3M Co.,, 234 F. Supp.
3d 693, 702 (D.S.C. 2017). “In that situation, the breach
does not arise out of the creation of the product itself
but instead out of the manufacturer’s failure to warn of
the danger the product creates.” /d. (citing Restatement
(Second) of Torts § 388 (1965)). In such cases, the plaintiff's
burden is to prove a “causal link between his injury and the
manufacturer’s omission, not the product itself.” Chesher,
234 F. Supp. 3d at 693. Thus even if this Court were to
treat this issue as a causation issue, the predicate for
the causal link shifts depending on whether it is a strict
liability claim (a defective product) or a negligence claim
(an actor’s failure to exercise reasonable care under the
circumstances).
Finally, Lindstrom either failed to consider, or
ignored, maritime law’s integrated product doctrine. It
is only because Lindstrom assumed that the “product”
in question was the deconstructed asbestos-containing
subcomponent, and not the integrated machine itself, that
Lindstrom found that there was no causation between the
“product” and the injury.
ILL. The Third Circuit’s test accords with the prevailing
law on land.
In addition to aligning with general maritime law, the
Third Circuit’s test accords with “the law prevailing on the
land.” Igneri v. Cie. de Transports Oceaniques, 323 F.2d
257, 259 (2d Cir. 1963); see also Yamaha, 516 U.S. at 202.
41
A. Aclear majority of the states adopt the same
rule as the Third Circuit.
“| T Jhe recent trend in state court asbestos litigation
has been to recognize limited circumstances in which a
manufacturer can have duties to warn regarding a product
that the manufacturer did not make, sell, or otherwise
control.” Bell, 2016 WL 5780104, at *2 (E.D. La. Oct. 4,
2016).
Indeed, the overwhelming majority of state court
decisions apply essentially the same test as the Third
Circuit. See, e.g., In re N.Y.C. Asbestos Litig., 59 N.E.3d
458, 471 (N.Y. 2016) (“| T Jhe manufacturer of a product has
a duty to warn of the danger arising from the known and
reasonably foreseeable use of its product in combination
with a third-party product which, as a matter of design,
mechanics or economic necessity, is necessary to enable
the manufacturer’s product to function as intended.”);
McKenzie v. A.W. Chesterton Co., 373 P.3d 150, 160-62 (Or.
2016), review denied, 381 P.3d 841 (2016) (rejecting “bare
metal” defense where it was foreseeable that plaintiff
would be exposed to asbestos-containing replacement
components); May v. Air & Liquid Sys. Corp., 129 A.3d
984, 1000 (Md. 2015) (“[A] manufacturer will have a duty
to warn under negligence and strict liability when (1)
its product contains asbestos components, and no safer
material is available; (2) asbestos is a critical part of the
pump sold by the manufacturer; (3) periodic maintenance
involving handling asbestos gaskets and packing is
required; and (4) the manufacturer knows or should know
the risks from exposure to asbestos.”); Schwartz v. Abex
Corp., 106 F. Supp. 3d 626, 655 (E.D. Pa. 2015) (“[U Jnder
Pennsylvania law, a product manufacturer has a duty to
42
warn about the asbestos hazards of a component part later
used with its product, which it neither manufactured nor
supplied . . . ., if the manufacturer knew its product would
be used with that type of asbestos-containing component
..”); Garvin v. AGCO Corp., 2014 WL 8628438, at *7-8
(S.C. Ct. C.P. December 10, 2014) (approving Quirin
and holding that a manufacturer may be liable for harm
caused by asbestos-containing replacement parts when
“(the] manufacturer recommends, specifies, or requires
that asbestos gaskets and packing be replaced with like
materials”); Macias v. Saberhagen Holdings, Inc., 282
P.3d 1069 (Wash. 2012) (imposing liability where a product
“inherently and invariably pose[s] [a] danger of exposure
to asbestos.”); Whelan v. Armstrong International,
Inc., 2018 WL 3716036 at *1 (Sup. Ct. of N.J., Aug. 6,
2018) (“We conclude that a duty to warn exists when the
manufacturer’s product contains asbestos components,
which are integral to the function of the product, and the
manufacturer is aware that routine periodic maintenance
of its product will require the replacement of those
components with other asbestos-containing parts.”).
If this Court chooses to borrow a landside rule, the
Third Circuit’s rule comports with the prevailing rule on
land. This rule is the rule least likely to cause a disparity
of treatment between landside and maritime workers,
and the rule most likely to vindicate maritime law’s
core policies of simplicity, uniformity, and the humane
solicitude for maritime workers.
43
B. The two state court decisions cited by
petitioners do not preclude the application of
the Third Circuit’s test.
The state court decisions that petitioners cite in
support of the “bare metal” defense are not inconsistent
with the Third Circuit’s test. Pet.Br. 29 (citing Braaten
v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008), and
O’Neil v. Crane Co., 266 P.3d 987 (Cal. 2012)). First, both
decisions “stopped short of foreclosing the availability of a
failure-to-warn claim ... where (1) the defendant actually
incorporated asbestos-containing components into its
original product . . . and (2) the defendant ‘specified’ the
use of asbestos-containing replacement components, or
such components were ‘essential to the proper functioning’
of the product.” Chesher, 234 F. Supp. 3d at 704.
Braaten expressly declined to analyze the facts at
issue in this case. “|W Je need not and do not reach the
issue of whether a duty to warn might arise with respect
to the danger of exposure to asbestos-containing products
specified by the manufacturer to be applied to, in, or
connected to their products, or required because of a
peculiar, unusual, or unique design.” Braaten, 198 P.2d
at 496. Rather, Braaten recognized that while the law
“generally does not require a manufacturer to study and
analyze the products of others and warn users of the risks
of those products,” the “general rule does not apply to a
manufacturer who incorporates a defective component
into its finished product.” Braaten, 198 P.3d at 498 n.7.
The manufacturer of a finished, integrated product
“derives an economic benefit from the sale of the product
incorporating the defective component and has the ability
to test and inspect the component when it is within the
4A
assembler’s possession, and by including the component
in its finished product. represents to the consumer and
ultimate user that the component is safe.” /d.
Subsequently, Macias v. Saberhagen Holdings,
Inc., 282 P.3d 1069 (Wash. 2012), held that respirator
manufacturers were liable for exposure to asbestos
dust from products they did not sell because they
“manufactured products that inherently involved the
danger of exposure to asbestos when the products were
used exactly as intended and for the purpose for which
they were intended.” /d. at 1077, 1079. Macias rejected
an “absolute rule” that if the “source of the hazardous
substance was not the manufacturer’s own product, no
duty can arise.” Macias, 282 P.3d at 1080. Thus, as the
district court below recognized, in Macias the Supreme
Court of Washington “retreated” from its previous
adoption of the “bare metal” defense in Braaten, Pet.App.
23a n.4, and Braaten’s continued viability is questionable,
at best.
Similarly, O’Neil expressly did not impose an absolute
prohibition on equipment manufacturers’ liability for
injuries arising from use of their equipment involving
asbestos-containing replacement parts. In O’Neil, the
Court rejected the principle that “mere compatibility”
with asbestos parts would impose a duty to warn, but then
explained that a “stronger argument for liability might
be made in the case of a product that required the use of
a defective part in order to operate. In such a case, the
finished product would inevitably incorporate a defect.
One could argue that replacement of the original defective
part with an identically defective one supplied by another
manufacturer would not break the chain of causation.”
45
O'Neil, 266 P.3d at 996 n.6. The Third Circuit's holding is
explicitly restricted to the circumstances contemplated by
footnote 6 of the O’Neil decision. Pet.App. 15a-16a.
C. Petitioners’ rule would leave maritime workers
worse off than land-based workers.
Petitioners claim that their rule would “leave | sailors
no worse off than any tort litigant.” Pet.Br. 37. That is not
true. Take two shipyard workers who contract asbestos
disease from exposures at Sparrows Point Shipyard in
Maryland. One worker repairs boiler components that are
brought ashore to the boiler shop. His case is governed by
May, 129 A.3d at 1000, which rejected petitioners’ rule.
The other worker repairs boiler components that are left
in place on ships on navigable waters. That worker's case
is governed by the maritime rule this Court adopts. Under
petitioners’ rule there would be a tremendous disparity in
the treatment of these two otherwise identically situated
workers.
Such disparity would not be limited to Maryland;
the same would be true of maritime workers and Navy
service members in New York, Rhode Island, Washington,
New Jersey, Oregon and Wisconsin, at the least. See /n
re N_Y.C. Asbestos Litig., 59 N.E.3d at 483; Sweredoski v.
Alfa Laval, Inc., No. PC-2011-1544, 2013 WL 5778533, at
*7 (R.L. Super. 2013); Macias, P.3d at 1080; Hughes
v. A.W. Chesterton Co., 89 A.3d 179, 189 (N.J. Super. Ct.
App. Div. 2014), cert. denied, 101 A.3d 1082 (N.J. 2014);
McKenzie, 373 P.3d at 155, review denied sub nom.
McKenzie v. A. W. Chesterton Co., 381 P.3d 841 (Or. 2016);
see Spychalla v. Boeing Aerospace Opns. Inc., No. 11-
CV-497, 2015 WL 3504927, at *4 (E.D. Wis. June 3, 2015).
46
Even the Supreme Court in California did not go as far as
petitioners ask this Court to go but, instead, ruled that a
manufacturer may be liable if its “own product contributed
substantially to the harm, or the defendant participated
substantially in creating a harmful combined use of the
products.” O’Neil, 266 P.3d at 991.
IV. The Third Circuit's test accords with traditional
common-law tort principles.
A. Traditional principles of tort law impose a duty
to warn of foreseeable dangers of a product.
The Third Circuit’s test aligns with not only general
maritime law and the predominant law on the land, but
also traditional common-law tort principles. For over a
hundred years, this Court has recognized that “[i}t is well
settled that a man who delivers an article which he knows
to be dangerous or noxious, to another person, without
notice of its nature and qualities, is liable for any injury
which may reasonably be contemplated as likely to result,
and which does in fact result, therefrom, to that person or
any other who is not himself in fault.” Waters-Pierce Oil
Co. v. Deselms, 212 U.S. 159 (1909); see also Restatement
(Second) of Torts § 388 (1965).
And since MacPherson v. Buick Motor Co., 111
N.E. 1050 (N.Y. 1916), the law has recognized that the
justification for this rule arises from the “foreseeability
of harm if proper care is not used;” the “representation
of safety implied in the act of putting the product on
the market;” and “the economic benefit derived by the
manufacturer from the sale and subsequent use of
the chattel.” Restatement Second (Torts) Section 395
47
comment (b). Paraphrasing Justice Cardozo, “It was a
manufacturer of [machines]. It was responsible for the
finished product. It was not at liberty to put the finished
product on the market without subjecting the component
parts to ordinary and simple tests.” MacPherson, 111
N.E. at 1051.
By 1945, general maritime law adopted MacPherson’s
holding that a manufacturer is responsible for the
foreseeable harms arising from use of its product. Sieracki
v. Seas Shipping Co., 149 F.2d 98, 100 (3d Cir. 1945), aff'd,
328 U.S. 85 (1946).
The principle that duty arises from, and is limited
by, foreseeability is hornbook law. The McKown case
cited by petitioners, Pet.Br. 41, reinforces this concept.
The McKown court stated, “Thus, we have held that
foreseeability can be a question of whether duty exists and
also a question of whether the harm is within the scope of
the duty owed.” McKown v. Simon Property Group, Inc.
344 P.3d 661, 764 (Wash. 2015).
Petitioners attempt to rely on the Restatement
(Second) of Torts §§ 314-315 for the rule that liability is
limited to “those within a product’s chain of distribution”
is misplaced. Pet.Br. 13. Those sections of the Restatement
have nothing to do with a manufacturer’s liability for the
hazards arising from the use of its product. Those sections
are limited to the duty to render aid to a person at risk.
See, e.g., Restatement (Second) of Torts § 314 at emt. c,
Illus. 1 (“A sees B, a blind man, about to step into the street
in front of an approaching automobile.”); Restatement
(Second) of Torts § 315 at emt. b (“Thus if the actor is
riding in a third person’s car merely as a guest, he is not
48
subject to liability to another run over by the car even
though he knows of the other’s danger and knows that the
driver is not aware of it, and knows that by a mere word,
recalling the driver’s attention to the road, he would give
the driver an opportunity to stop the car before the other
is run over.”).
B. The manufacturer’s duty of care extends to
warning about foreseeable dangers arising
from its integrated product.
A manufacturer of a product must exercise reasonable
care to warn of the hazards arising from the use of
its product, including when those hazards arise from
parts the manufacturer did not make but necessarily
incorporated into its product. This principle is explicitly
illustrated in the second Restatement. See Restatement
(Second) of Torts § 388, emt. f (“The particulars in which
reasonable care is usually necessary for protection of those
whose safety depends upon the character of chattels are
... the selection of material and parts to be incorporated
in the finished article . . .”).
Contrary to petitioners’ sweeping statement that
“|tjort law has never permitted such suits,” Pet.Br. 24,
petitioner Ingersoll Rand was the defendant in precisely
this type of case. In Huynh v. Ingersoll-Rand, 20 Cal.
Rptr. 2d 293 (Cal. Ct. App. 1993), the court held Ingersoll
Rand liable for failing to adequately warn when the wrong
dise was affixed to an Ingersoll Rand pneumatic grinder,
causing it to explode, stating: “|a] clearer warning may
have alerted the employee who assembled these two
elements that they formed a dangerous combination . . .”
Id. at 300-01.
49
Petitioners’ own authorities do not support petitioners’
a manufacturer’s duty to warn as to defective components
foreseeably used with its product. In Reynolds v.
Bridgestone/Firestone, 989 F.2d 465 (11th Cir. 1993), Pet.
Br. 13, the court held that tire rim manufacturer Firestone
was liable for the injuries caused by an exploding tire
manufactured by Goodyear, because it was foreseeable
to Firestone that there would be a mismatch as between
the tires used on its multi-piece rim system. The court
affirmed the same principle of law adopted by the Third
Cireuit below: “If a manufacturer placed goods on the
market that are imminently dangerous when put to
their intended purpose and the manufacturer knows or
reasonably should know that the goods can create danger
when used in their customary manner, the manufacturer
must exercise reasonable diligence to make such danger
known to the persons likely to be injured by the product.”
/d. at 471; see also Baughman v. General Motors Corp., 730
F.2d 1131, 1132-33 (4th Cir. 1986) (noting “a manufacturer
can be fairly charged with testing and warning of dangers
associated with components it decides to incorporate
into its own product” but finding no liability because the
replacement rim deviated from the car manufacturer’s
specifications). These cases support application of the
Third Circuit’s rule under the facts of this case.
Likewise, Stark v. Armstrong World Indus., 21 F.
App’x 371, 381 (6th Cir. 2001), Pet.Br. 14, held that a design
defect claim against a boiler manufacturer, like Foster
Wheeler, was cognizable “if the defective attachments
manufactured by others were part of the boiler design and
were rendered unsafe due to the design.” /d. The reason
that Stark held that the plaintiff could not recover was
50
that, unlike in this case, the plaintiff made no showing that
the insulation at issue was part of the boiler’s design. /d.
Finally, petitioners cite cases in which the manufacturer
did not intend to integrate a dangerous component into its
product. These cases have no relevance to this case. Pet.
Br. 19 (citing Brown v. Drake-Willock Intern, Ltd., 209
Mich. App. 136 (1995) (Plaintiff injured by formaldehyde
in dialysis machines did not allege that “the dialysis
machines themselves were defective or dangerous,”
and use of formaldehyde was not necessary for the safe
operation of the dialysis machines)).
Petitioners negligently failed to warn that the
foreseeable, indeed the expected and intended, use of their
product would subject the user to danger. Petitioners’
“argument depends quite heavily on the assumption
that a component part . . . should be separated from the
product sold.” May, 446 Md. at 10. But the products at issue
are petitioners’ own machines that contained and were
intended to be used with asbestos components in order to
function. This is not just foreseeability; it is inevitability.
C. Whether a harm is a foreseeable consequence
of one’s actions is the foundation of this Court's
negligence jurisprudence.
Foreseeability has been integral to this Court’s
negligence jurisprudence for over 100 years. See e.g.
Smith v. Bolles, 132 U.S. 125, 130 (1889) (“The ‘test is’
... ‘that those results are proximate which the wrong-
doer, from his position, must have contemplated as the
probable consequence of his fraud of breach of contract.”
(emphasis added)).
51
Contrary to petitioners’ claim that “a foreseeability-
based test for liability would prove unworkable,” Pet.Br.
14, this Court has repeatedly used a foreseeability analysis
across a wide spectrum of cases, largely operating to
limit, rather than expand, liability. See Husted v. A.
Philip Randolph Inst., No. 16-980, 2018 WL 2767661, at
*8 (U.S. June 11, 2018) (Alito, J., writing for the majority)
(citing Paroline v. U.S., 572 U.S. 434, 444-45 (2014)) (“If
a registrant, having failed to send back a return card,
also fails to vote during the period covering the next
two general federal elections, removal is the direct,
foreseeable, and closely connected consequence.”).
Consistent with the Third Circuit’s opinion, this
Court has long established that foreseeability applies not
only to duty, but also to the concept of proximate cause.
See Sofec, Inc., 517 U.S. at 838-39 (citing Restatement
(Third) of Torts: Liability for Physical and Emotional
Harm § 29 (“The concept of proximate causation is
applicable in both criminal and tort law, and the analysis
is parallel in many instances. .. Proximate cause is often
explicated in terms of foreseeability or the scope of the
risk created by the predicate conduct.”)); Lexmark Int'l,
Inc. v. Statice Control Components, Inc., 572 U.S. 118,
133 (2014) (“The proximate-cause inquiry is not easy to
define, and over the years it has taken various forms;
but courts have a great deal of experience applying it,
and there is a wealth of precedent for them to draw
upon in doing so.”); Bridge v. Phoenix Bond & Indem.
Co., 553 U.S. 639, 656 (2008) (“If one’s fault happens to
concur with something extraordinary, and therefore
not likely to be foreseen, he will not be answerable for
such unexpected result.”). Indeed, in CSX Transp., Inc.
v. McBride, 564 U.S. 685, 718 (2011), the dissent took
52
the majority to task for not requiring a foreseeability
component in Jones Act causation analysis. /d. (Roberts,
CJ, dissenting) (noting that for the majority “it does not
matter that the ‘manner in which (the injury] occurred was
not ... foreseeable,’ ante, at 703 (internal quotation marks
omitted), so long as some negligence —any negligence at
all — can be established.”).
Finally, both the Second and Third Restatements
incorporate foreseeability into their negligence analysis.
See Restatement (Third) of Torts: Prod. Liab. § 2(c) (1998)
(noting that a product is defective if “the foreseeable risks
of harm posed by the product could have been reduced
or avoided by the provision of reasonable instructions
or warnings by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and
the omission of the instructions or warnings renders
the product not reasonably safe”); see also Restatement
(Second) of Torts § 388 (1965) (a manufacturer of a product
has a duty to warn if the manufacturer “knows or has
reason to know” the product is “likely to be dangerous
for the use for which it is supplied . . .”). To claim that
foreseeability is not part of tort law or is an “unworkable”
concept is demonstrably wrong.
D. Petitioners are not innocent manufacturers of
innocuous components parts.
Petitioners attempt to co-opt the law on innocent
components to support their argument that no
manufacturer is liable for another’s parts. Pet.Br. 13.
Petitioners’ authorities support the principle that a
manufacturer of a non-defective component part later
integrated into a defective product by another is not liable
53
for dangers of the completed product. Pet.Br. 19 (citing
Acoba v. General Tire, Inc. 986 P.2d 288, 305 (Haw. 1999)
(“Acoba submitted no evidence to show that the tire or the
inner tube failed during the accident or created the alleged
defect in the rim assembly that caused it to explode.”));
see also Childress v. Gresen Manu. Co., 888 F.2d 45, 49
(6th Cir. 1989) (“| U Jnder Michigan law a component part
supplier has no duty, independent of the completed product
manufacturer, to analyze the design of the completed
product which incorporates the nondefective component
part”).
But petitioners are not “innocent” manufacturers of
harmless component parts incorporated into dangerous
finished products. Petitioners manufactured the integrated
finished product, which included everything necessary
for the operation of the machine, including the requisite
asbestos components, and the maintenance manual.
The component part doctrine, which applies to the
manufacturer of a non-dangerous component that is later
integrated into a finished product, is not applicable to this
case.
V. Petitioners are the parties best positioned to avoid
the loss.
Courts have recognized that the scope of a legal
duty is essentially a matter of policy. See In re N_Y.C.
Asbestos Litig., 59 N.E.3d at 469 (listing various policy-
based factors used to determine whether a duty exists
in a particular situation, including “the most reasonable
allocation of risks, [the] burdens and costs among the
parties and within society, ... economic impact, ... the
person [ | best positioned to avoid the harm|,] ... the
54
public policy served by the presence or absence of a duty
and the logical basis of a duty.”); May, 129 A.3d at 994
(noting that “[aJt its core, the determination of whether
a duty exists represents a policy question of whether the
specific plaintiff is entitled to protection from the acts of
the defendant.” (quoting Gourdine v. Crews, 955 A.2d 769,
783 (Md. 2008))).
The assumptions underlying the proposition that
a manufacturer cannot control the risks associated
with every product that might foreseeably be used in
conjunction with their own products, Pet.Br. 14, are fully
addressed by applying the Third Circuit’s test. That
test requires that (i) the defendant knew or should have
known that asbestos is hazardous; and (ii) the defendant
“specified” the use of asbestos-containing replacement
components, or that such components were “essential
to the proper functioning” of the defendant’s product.
Pet.App. 15a-16a. A manufacturer cannot claim a lack
of control over the risks associated with the components
required to make its machine function, because under
these circumstances, those parts form the machine and
it is the machine, as the sum of its parts, that inevitably
causes the hazard. Petitioners “specified” the use of
asbestos-containing parts, and those parts were “essential
to the proper functioning” of petitioners’ own products.
Quirin, 17 F. Supp. 3d at 769, 771.
The Third Circuit’s “requirements serve to limit a
manufacturer’s liability to cases where the harm arises
from risks that are effectively incorporated into the
manufacturer’s product, though they may be borne by
a replacement component.” Chesher, 234 F. Supp. 3d at
709-10; see also May, 129 A.3d at 999 (“The necessary
55
replacement of asbestos components with identical
components cannot be said to constitute a substantial
modification.”).
This middle-road approach is economically sound
because “the manufacturer of the finished product
containing asbestos may well be better placed to warn
when compared to the manufacturer of an aftermarket
wear item.” Bell, 2016 WL 5780104, at *8. When the
manufacturer incorporates the parts into its integrated
product, the manufacturer is in a better position to control
for the risk of harm from its integrated product tha» the
part manufacturer. See Bell, 2016 WL 5780104, at *7 n.16.
This is because “the end user is more likely to interact
with the durable product over an extended period of time,
and hence he or she is more likely to inspect warnings on
that item or in associated documentation than to review
warnings supplied by the maker of the ‘wear item.””
In re N.Y.C. Asbestos Litig., 59 N.E.3d at 472. This is
particularly true in the context of machinery sold to the
Navy because the manufacturer is required to provide a
maintenance manual.
Additionally, the manufacturer also derives a benefit
from the sale of such parts, “as the manufacturer is able
to sell its own product to users precisely because the third
party has sold to those users another item that is essential
to the product’s function.” /n re N_Y.C. Asbestos Litig., 59
N.E.3d at 472. “Allowing equipment manufacturers to
reap profits conditioned on the proliferation of asbestos-
containing replacement components, while immunizing
them from liability relating to such components, creates
an incentive structure that fails to account for the costs
such manufacturers impose on society.” Chesher, 234 F.
56
Supp. 3d at 710; Jn re N_Y.C. Asbestos Litig., 59 N.E.3d at
473 (“(T joday as never before the product in the hands
of the consumer is often a most sophisticated and even
mysterious article, and given the practical inability
of the users of modern products to detect the dangers
inherent in their operation, ‘from the standpoint of justice
., responsibility should be laid on the manufacturer.”
(quoting Codling v. Paglia, 298 N.E.2d 622, 627 (N.Y.
1973))).
Petitioners sold their machines to the Navy and to
civilian consumers containing and requiring the same
asbestos components, and petitioners purchased insurance
to defray the cost of liability for harms arising from
their products. The cost of that insurance coverage was
recouped by the manufacturers in the purchase prices
for their products. The cost to insurers for the current
liabilities was paid — in advance — in the form of premiums
that the insurers retained for decades before having to
pay on the risks they agreed to underwrite.
This is precisely the allocation of risk that tort law
is structured to achieve. Absolving petitioners will give
a windfall to them and their insurers at the expense
of the public as a result of (i) premium costs that were
passed on to the Navy, (ii) unrecouped Medicare and VA
medical costs, and (iii) potential contractual indemnity
costs owed by the Navy to shipbuilders who are saddled
with a higher share of the liability with no opportunity
to obtain contribution or indemnity from petitioners and
those similarly situated.
57
VL. The government contractor defense is not at issue.
Petitioners’ contention that the Navy would not allow
them to warn has no relevance to the question presented.
Specifically, the government contractor defense is not
before this Court. See Boyle v. United Technologies
Corp., 487 U.S. 500 (1988). Both the district court and
the Third Circuit declined to rule upon the government
contractor defense, and petitioners did not present the
defense for certiorari. Only petitioners CBS, Foster
Wheeler and Respondent GE raised this defense. The
district court specifically did not address it with regard
to any defendant. Pet. App. 70a CBS; Pet.App. 78a Foster
Wheeler; JA 780 GE. And the Third Circuit specifically
declined to address it as well, leaving it to the district
court to decide on remand. Pet.App. 16a-17a. This defense,
therefore, will be available to petitioners, even if this
Court rejects their instant request for blanket immunity
based on the “bare metal” defense.
Moreover, petitioners’ requested rule expressly
applies to all maritime cases including private shipyard
workers, merchant mariners, commercial fishers, and
any other person in a maritime trade to whom a maritime
negligence claim may apply. Petitioners do not request,
nor would maritime law’s desire for uniformity allow a
“Navy-only” rule. In those non-Navy cases, the Navy’s
knowledge, conduct and alleged position on warnings
does not apply.
Finally, the “facts” presented by petitioners for
their “Government made me do it” defense are, at best,
a battle of the experts. /n re Joint E. and S. Dist. N_Y.
Asbestos Litig., 897 F.2d 626, 632 (2d Cir. 1990). In their
58
statement of the case, petitioners cite to the affidavits
of their expert witnesses—Adm. Horne, JA 22-89, Dr.
Betts, JA 90-223, and Mr. Senter JA 224-258—as though
each was unrebutted. However, respondents’ experts—
Messrs. Faherty, JA 480-485; 585-592, and Castleman,
JA 459-462, Dr. Frank, JA 596-744, and Capt. Woodruff
Resp.App.E 26a-138a—dispute both the factual bases
and the conclusions that petitioners’ experts advocate.
Neither side filed a motion challenging the qualifications
or methodology of these experts. Where there is a materia!
dispute among qualified experts concerning this issue,
it is inappropriate for the trial court to grant summary
judgment.
VIL.The Third Circuit applied the correct rule,
and properly remanded for further factual
determinations.
As demonstrated above, the Third Circuit’s standard
accords with this Court’s maritime precedent, settled
maritime principles of uniformity, simplicity and solicitude,
and the prevailing law of the land. This “expected and
intended” or “inevitability” test is simple to apply and is
consistent with those principles this Court has used across
a wide range of causes of action in order to ascribe, or in
most cases to limit, liability.
If this Court adopts petitioners’ unprecedented rule of
blanket immunity and rejects the uniform maritime duty of
reasonable care under the circumstances of each case, this
outlier holding would contradict countless of this Court’s
opinions upon which lower courts rely daily. Further, if
this Court rejects the use of foreseeability in negligence,
it will overturn decades of tort and maritime negligence
59
law applying foreseeability to analyze proximate cause,
superseding cause, and the scope of a duty.
Applying the Third Circuit's test and this Court's
summary judgment standard, see Anderson, 477 U.S. at
255, there is substantial record evidence that petitioners
violated their duty to war» because they (i) knew asbestos
is hazardous; (ii) knew their products would be used with
asbestos-containing parts; (iii) directed users to perform
tasks that would create asbestos dust, and (iv) failed to
warn of this known danger. The Third Circuit properly
left to the factfinder the resolution of the disputes of fact
between the parties and the ultimate question of whether
petitioners’ actions were negligent and a contributing
cause to respondents’ cancers. Respondents request that
this Court affirm.
CONCLUSION
For the reasons stated above, this Court should affirm.
Respectfully submitted,
JONATHAN RuCKDESCHEL Ricuarp P. Myers
Tue Ruckpescue. Law Counsel of Record
Firu, LLC Rosert E. Pau
8357 Main Street ALAN L. Reicu
Ellicott City, MD 21043 _— Parrick J. Myers
(410) 750-7825 Pau., Reicu & Myers, PC.
ruck@rucklawfirm.com 1608 Walnut Street, Suite 500
Philadelphia, PA 19103
Wiuuiam W.C. Harry (215) 735-9200
Patten, Wornom, HatrEN rmyers@prmpclaw.com
& DIAMONSTEIN
12350 Jefferson Avenue, Denyse F. CLANcy
Suite 300 Kazan, McC ain, SATrerRLey
Newport News, VA 23602 & GreENwoop
(757) 223-4500 55 Harrison Street, Suite 400
wharty@pwhd.com Oakland, CA 94607
(877) 995-6372
delancy@kazanlaw.com
la
APPENDIX A — DeVries, et ux. v. General Electric
Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 269-3, Pages
28, 38-39, 43, 58-59, 60-62) (Motion for Summary
Judgment of CBS Corp.) (Plaintiff's Discovery
Deposition, Pages 324, 350-351, 358, 397-398, 403-405)
COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
NO. 3661
ASBESTOS CASE
JOHN B. DEVRIES AND ROBERTA G. DEVRIES,
Plaintiffs,
vs.
ALLEN-BRADLEY COMPANY, et al.,
Defendants.
WEDNESDAY, JANUARY 16, 2013
VIDEOTAPED DISCOVERY
Deposition of JOHN B. DeVRIES, taken pursuant to
notice, held at the offices of Veritext National Court
Reporting Company, 1801 Market Street, Suite 1800,
Philadelphia, Pennsylvania on the above date, beginning
at or about 10:15 a.m., before Kathleen Woods Logue,
Professional Reporter and Notary Public there being
present.
2a
Appendix A
VERITEXT NATIONAL COURT
REPORTING COMPANY
MID-ATLANTIC REGION
1801 Market Street - Suite 1800
Philadelphia, Pennsylvania 19103
|324]Q. And who, that’s between ship crew or yard birds
or others, ripped out the insulation?
A. We're talking about a time period --
Q. In the first three months.
A. Before the ship went to the yard?
Q. Correct.
A. It had to be ship’s personnel.
Q. Okay. Do you know -- do you recall which ship’s
personnel they were at this point?
A. No.
Q. And were they under your command at this point yet?
A. They were.
Q. They were. As the main propulsion assistant they were
under your command; is that correct?
A. That is correct.
[350)Q. And as to the content of those blankets, do you
know what it was?
A. No.
Q. And as to who manufactured those blankets, do you
know who manufactured them? Did they have any label
or name on the blankets themselves?
A. No.
Q. Now, with respect to various signs and warnings or
indicators around the ship, | understand there were -- the
Navy used certain indicators as to types of pipes or types
of equipment; correct? There were painted markings on
some things?
A. Some were marked.
Q. Okay. Do you know who as between the Navy and the
manufacturers determined what markings would be on
such pieces of machinery or equipment?
A. Some equipment manuals from manufacturers as
General Electric specified the marking.
Q. Well, were these operational markings?
da
Appendiz A
A. 1 do not recollect the words used or [351|symbols used.
Q. Did you ever run into a contradiction as the engineering
officer on the ship or otherwise between something stated
in the manufacturer’s manual and something stated in a
Navy document?
A. The manufacturer’s manuals came to me most often
as a Navy document.
Q. Oh, I see. And with respect to how they were reviewed
by the Navy before they got to you, | take it you do not
personally have knowledge?
A. I do not know.
Q. Now, when you were on the ship, you said earlier
it was at sea and it went to various places such as the
Mediterranean; correct?
A. Yes.
Q. And during the time it was in dry dock | understand
is that one of those dry docks which is not far from the
water on a Navy base? Is that correct?
A. When I mentioned dry dock at Davisville, Rhode Island
it was a floating dry dock, really what was a Seabee --
{358]did, | take ii you directed them to follow the
procedures in accord, as you have said many times,
5a
Appendiz A
with the combination of what was in the manufacturers’
manuals or what the Navy had trained you to do; correct?
A. Yes.
Q. And is it your understanding that the workers doing
that job were required to do what you as the Naval officer
told them to do?
A. Yes.
Q. And with respect to masks, respirators or dust
protection, did you give any special orders during that
Monte Carlo repair?
A. No.
Q. Did you see any contradiction at any -- you have already
told me that. I’m not going to go back there.
Now, were there any further repairs to disturb the
insulation on the turbine after that Monte Carlo incident
and before you left the USS TURNER that you recall?
A. Yes.
[397]So whether it be the pump end or the turbine end or
turbine motor end, whatever, I view the unit -- view this
as a unit.
6a
Appendix A
BY MR. REICH:
Q. Okay. And was that unit insulated?
MR. KATTNER: Object to form.
THE WITNESS: Turbines were insulated, the pump
when it was handling a hot media, insulated, yes.
BY MR. REICH:
Q. Okay. And was it necessary to disturb or remove any
of the insulation on the Westinghouse turbines that were
attached to those pumps?
A. In most cases it would have to have been.
Q. Did that make dust?
A. Any time you remove insulation, or at least in my
experience on the TURNER, any time insulation was
disturbed you got dust.
Q. And did you breathe that dust?
A. And if you were close to it and [398)unfortunately
I knew no better I was close to it all the time either
instructing somebody or looking, inspecting for myself.
Q. So specifically when removing or handling the insulation
on the Westinghouse turbines attached to these pumps did
that give off dust that you breathed?
Ta
Appendiz A
A. Removal of insulation on the pump turbine would have
given off -- did give off dust and I would have breathed it.
Q. Okay. Were there any warning labels on any of the
General Electric equipment as to the dangers of asbestos?
MR. KATTNER: Objection to form.
THE WITNESS: None.
BY MR. REICH:
Q. Were there any warning labels on the Westinghouse
equipment on the TURNER with regard to the dangers
of asbestos?
A. None.
[403]Q. Okay. Was there any dust from that particular
phenolic part when these motors were opened up that
you recall?
A. | remember dust.
Q. But whether it came from the phenolic or some other
source do you know?
A. I cannot be certain.
Q. Okay. And the operations that you observed with
respect to the opening up of the motors did they generate
dust from that phenolic specifically?
Sa
Appendix A
A. The physical opening did not generate dust. It may have
allowed dust that was inside the motor to escape.
Q. But as to the source of that dust from the phenolic or
some other place you don’t know?
A. No.
Q. Now, as to the insulation on the outside of the ship
service turbine generator or these various drive turbines
for the different pumps that you were just describing was
that insulation this same type of external insulation that
was elsewhere on the TURNER [404]with machinery
that you had described earlier, the so-called mud or was
it different?
A. Sane Re Sonne may lane Nae Seat (pe
insulation, some was mud, so
Q. Got you.
A. -- some was mud combined.
Q. And as to the manufacturer of those various blankets on
some of the equipment, whether it was the drive turbines
or the pump turbines or the SSTG turbine, or whatever it
was, do you know who had manufactured those blankets?
MR. REICH: He’s already testified at least a half dozen
times --
9a
Appendix A
BY MR. KATTNER:
Q. You don’t know. He doesn’t know who manufactured the
blankets originally or whether they were replaced, do you?
MR. REICH: He has testified to that already.
MR. KATTNER: Got you.
BY MR. KATTNER:
Q. And the same thing as to who manufactured any of the
mud or the external [405]insulation on any of these drive
turbines, you don’t know, do you?
MR. REICH: And I object.
He’s already answered that a number of times.
BY MR. KATTNER:
Q. And you have no information that General Electric
supplied any of the external insulation on any of these
turbines, do you, you yourself?
A. I have no personal information.
Q. And the same thing, you have no knowledge that
Westinghouse supplied any of that insulation?
A. I have no personal information to say Westinghouse
supplied it.
10a
APPENDIX B — DeVries, et ux. v. General Electric
Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 270-3, Pages
6, 56-58) (Motion for Summary Judgment of General
Electric Company) (Plaintiff's Discovery Deposition,
Pages 79; 386-388)
[79)Q. And what do you mean when you say the leads?
A. I said all of these.
Q. All of these. I’m sorry. Do you recall any work being
performed in your vicinity on any of the turbines?
A. Yes.
Q. And what work was performed on the turbines in your
‘einity?
A. I can’t answer what was done when, but the turbines
were opened up to check thrust bearings. They were
opened up to check the -- actually not the turbines, but
the reduction gears were opened up to check the gears.
And in at least one case I very -- I can remember very
well we had to replace a part.
Q. Do you recall what part was replaced on the turbine?
A. I don’t recall the part, but we were in Monte Carlo at
holiday time and I couldn’t leave the ship when the turbine
was opened. The part was replaced by having a cruiser, |
believe, up the coast machine a new part for us.
[386]Q. -- on them?
A. They were insulated.
Q. What’s the purpose of insulation on the main propulsion
turbines?
A. Well, a turbine converts heat energy into movement
and you -- superheated steam, 600 pound pressure steam
is at the entry point. You don’t want to lose any heat. And
of course you don’t want -- you don’t want anybody to get
burned.
Q. So there were really two purposes, one for safety, people
not touching it and getting burned; is that correct?
A. One is safety and one is efficiency of the operation.
Q. Now, with regard to the ship’s service generator, do
you recall what company manufactured that?
A. I believe it was General -- it was General Electric.
Q. Okay. And do you remember whether there was any
asbestos on the ship’s service generator, if you recall?
A. Normal insulating material, electrical [387 jinsulating
materials.
Q. Okay. Was it --
12a
Appendiz B
A. Also, I believe there were thermal! insulation on the
turbine end.
Q. How many of the ship’s service generators would
there have been on the TURNER or were there on the
TURNER?
A. I believe one in each engine room.
Q. And do you recall having to either work or supervise the
work on either of those while you were on the TURNER?
A. We made repairs on both of them.
Q. And in making those repairs, was it required to remove
or disturb any of the insulation that was on the outside
of it?
A. Yes.
Q. Did that create dust?
A. Yes.
Q. Did you breathe the dust?
A. I was right on top of it.
Q. Okay. How frequently would those items need repair in
the three years that you were on the ship, if you can recall?
A. I can’t recall.
13a
Appendiz B
[388]Q. Was it often? Frequent? How would you describe
it?
A. Moderately frequent.
Q. Okay. Now, was there also an emergency diesel -- let
me just see here.
MR. KATTNER: You can show him the exhibit. I mean --
MR. REICH: No. That’s okay.
BY MR. REICH:
Q. An emergency diesel generator on the ship?
A. The ship had an emergency diesel generator.
Q. What was the purpose of that piece of equipment?
A. Backup power.
Q. Power for the ship or for propulsion?
A. Backup electric power.
Q. Okay. And do you know whether that -- strike that. How
many would there have been on the ship? Do you recall?
A. I recall one.
Q. And that was manufactured by?
A. By General Electric.
l4a
APPENDIX C — DeVries, et ux. v. General Electric
Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 274, Pages
18-19, 21, 26, 28, 38) (Motion for Summary Judgment
of Buffalo Pumps, Inc.) (Plaintiff's Discovery
Deposition, Pages 70-71; 90; 101; 112; 235)
7+
[70)Q. And what type of work is being performed in the
engineering compartments?
A. First of all, the engine rooms get steam from the boiler
rooms to turn turbines that turn the ships through. There
are a myriad of pumps and auxiliaries that have to be
repaired, maintained, work -- that meant that I spent a
lot of time with the people who were trying to maintain
this equipment.
Q. Now, you mentioned boilers. Were the boilers located
in a separate room in the engine rooms?
A. There were two boiler rooms, two boilers in each room.
Q. Did your duties ever take you to the boiler room?
A. Yes.
Q. You also mentioned turbines. Where were the turbines
located?
A. They were in the engine room.
Q. Where would the pumps be located?
l5a
Appendiz C
A. All through the spaces.
Q. Do you recall any other equipment on which repair or
maintenance work was performed |71}other than boilers,
turbines and pumps?
A. Electrical equipment.
Q. What type of electrical equipment?
A. Generators and switchboards.
Q. Aside from boilers, turbines, pumps, generators and
switchboards, do you recall any other equipment on which
maintenance or repair work was performed?
A. In that ship and all ships at that time the Engineering
Department maintained everything that operated except
the electronics and the armaments. That would include
things like standby diesel generators.
Q. Now, when you say except electronics and armaments,
you mentioned diesel generators, is it your testimony that
it was not your job to oversee the maintenance and repair
work on the diesel generators?
A. No. Correct that. We were responsible for everything
including the diesel generator which I mentioned only
because they were not in the engine rooms.
l6a
Appendiz C
[90}Q. You’d have pumps for waste lines as well; is that
correct?
A. Yes.
Q. Do you recall any work that was performed in your
vicinity on any of the pumps aboard the USS TURNER?
A. Yes.
Q. What type of work was performed in your vicinity on
the pumps?
A. We were constantly putting new stuffing in the stuffing
boxes.
Q. Do you recall any other work aside from putting the
stuffing in the stuffing boxes on the pumps?
A. Yes. Yes.
Q. Okay. And what type of work?
A. Well, if a pump had to be removed, then the flanges
had to be cleaned and sealed.
Q. Now, you just mentioned flanges in relation to pumps.
Do you recall if any of those pumps did not have flanges?
A. I do not recall.
17a
Appendiz C
{101)Q. And where would these seals be located?
A. Well, between the -- when I say pump, I mean the pump,
centrifugal pump or otherwise as what I’ll call wet end
and then it has a driver, normally an electric motor and
the shaft would have a seal.
Q. Did you ever --
A. I should call it packing more, but anyway --
Q. Okay. So is this the same packing that we have talked
about when we said stuffing?
A. Stuffing, packing.
Q. Okay. What term would you rather use, stuffing or
packing?
A. Packing would be the more correct term.
Q. Okay. So when we were talking about stuffing before
we were talking about packing material; correct?
A. Yeah.
Q. Did this packing material, the innards of the pump did
that differ at all from the packing you had talked about
earlier?
A. I can’t recollect at this time. Wait a minute. The packing
was different
18a
Appendiz C
[112)Q. I’ve heard people say that when rip-outs are
performed it’s similar to -- it creates a situation where it
looks like it’s snowing. Would you describe it that way?
A. Well, | would suggest that when you removed, say,
a pump for maintenance, removing of the insulation,
assuming this was an insulated pump, would create a
cloud and so you would have clouds of dust.
Q. Now, you didn’t mention insulation in relation to the
pumps earlier. Was there insulation on any of the pumps?
A. Oh, sure.
Q. Would it be safe to say that not all the pumps were
insulated?
A. A cold water service pump doesn’t need to be insulated.
[235|BY MR. WEINBERG:
Q. All right. Sitting here today, do you have a specific
recollection of ever being in the vicinity when a Buffalo
pump was being worked upon?
A. I don’t have a specific pump or specific date. But we
worked on so many pumps, everybody’s pumps. And the
answers given previously would apply to any of the major
19a
Appendiz C
pump suppliers that we had. We had the constant packing
problem. And, yes, you hit on some of it. I think things
got out of alignment as you heard me say earlier. Some of
the mounting framing was corroded and gone, so we had
a constant repacking and repair.
20a
APPENDIX D — DeVries, et ux. v. General Electric
Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 277-1, Pages
11, 13, 20) (Motion for Summary Judgment of Foster
Wheeler LLC) (Plaintiff's Discovery Deposition,
Pages 268-269, 274-275, 425-427)
[268|BY MR. MASTROIANNI:
Q. So you guys didn’t do the repair so to speak?
A. We're not equipped to.
Q. You just more or less did damage control and waited
until you docked for overhaul work to fully address the
extent of the problems; correct?
A. Yes.
Q. And was this the overhaul -- was this the second overhaul
that you talked about or was this another overhau!?
A. Well, this would -- this would have been [269]the second
overhaul.
Q. Okay.
A. Which you may have record of as FRAM, fleet
rehabilitation and maintenance.
Q. I’m sorry. What year was that second overhaul again?
A. Well, that would be 1960. That was done in Brooklyn.
2la
Appendiz D
Q. Okay. And by that time you were out of the Navy?
A. Well, as in Boston I was around for the rip-out, but more
I was involved very much in planning what would be done.
Q. Are you talking about what would be done to the
condenser?
A. Work orders for the whole project, not just --
Q. The whole overhaul project?
A. Yeah.
Q. Okay. So you essentially, and correct me if I’m wrong,
while the ship was out at sea made a list of things that
needed to be addressed once the ship was dry docked for
overhaul and maybe even ranked them in order.
[274]Q. Okay. Other than this contaminated water issue
with respect to the one condenser, do you recall any other
type of work that you or your crew would have done on a
Foster Wheeler condenser on board the TURNER?
A. Restate that, please.
Q. Other than the contaminated salt water issue that you
had --
A. Yes.
22a
Appendiz D
Q. -- that we’ve been talking about, do you recall any other
work, maintenance, repair or otherwise that you would
have done on a Foster Wheeler condenser?
A. I don’t recollect.
Q. You talked about going in the header yourself. Was that
the extent of any kind of hands-on work that you did with
respect to the contaminated salt water problem or did you
do other types of hands-on work for that?
A. Hands-on that was it.
Q. That was it. And that I think you said was just merely
looking for leaks within the [275|hundreds of tubes?
A. Looking for leaks and then plugging the ones that
leaked.
MR. REICH: While he was inside of it it’s hard to say
merely.
MR. MASTROIANNI: Oh, okay. I think of a Beluga
whale.
THE WITNESS: These are big.
BY MR. MASTROIANNI:
Q. What did you plug the leaks with?
A. I recollect wooden plugs a supply of which we kept for
such an event.
23a
Appendiz D
Q. Were these like wooden blocks or --
MR. REICH: It’s a plug.
THE WITNESS: Tapered machined wood.
[425|In response to questions by your attorney you
mentioned there were connections or pipes that led up to
the condensers; is that correct?
A. To and from.
Q. To and from. Okay. And any flange work that we talked
about yesterday was with respect to the flanges on those
connections; correct?
A. Yes.
Q. Okay. How many of those connections were there
leading to and from the condensers?
A. I don’t recollect the configurations.
Q. So you can’t tell me how many connections there were?
A. No.
Q. Okay. Were these connections -- is it correct that they
were going either back to the boiler or from the turbine?
Is that what these connections were for to essentially
connect the condensers to the boiler and turbine?
24a
Appendiz D
A. Yes. Essentially the condenser was [426]|taking the last
bit of heat out of the steam --
Q. Right.
A. -- converting to water as you understand.
Q. So there’s at least two of these pipes or connections?
A. There’s at least two.
Q. Okay. Do you remember there being any more than, I
don’t know, five?
A. I don’t remember more.
Q. Now, you did discuss yesterday being on top of someone
who was doing the removal of the seal or gasket on the
flanges to these connectors; correct?
A. Yes.
Q. Okay. Were you -- well, let me back up. That work, was
that performed in connection with that damage control
work we discussed yesterday in relation to --
A. No.
Q. -- the salt water contamination?
A. No. No.
Q. It wasn’t. Okay.
25a
Appendiz D
[427]A. No.
Q. Are you able to tell me either by estimating or
approximating the number of times you would have
been in the vicinity of someone removing a flange from a
connection to a Foster Wheeler connection -- condenser?
A. These connections were not broken except when the
vessel was in port or in the yard.
Q. Okay.
A. Not frequently.
Q. Okay. Are you able to tell me either by estimating or
how long it took for someone to remove a
seal or gasket from one of these flanges?
A. I don’t recollect that or how many studs there were or
any way to approximate it.
Q. Okay. Would it be more than 15 minutes?
A. It could have been more than 15 minutes --
Q. Okay.
A. -- depending on the --
Q. The nature of --
A. -- the nature of the fit.
*s+*+*
26a
APPENDIX E — DeVries, et ux. v. General Electric
Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 291-2, Pages
34-35, Doc. 291-3, Pages 1-35) (Response to Motion
for Summary Judgment of Foster Wheeler, LLC)
(Affidavit of Captain Bruce Woodruff, Pages 1-38)
COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
NO. 3661
ASBESTOS CASE
DECEMBER TERM 2012
JOHN B. DEVRIES AND
ROBERTA G. DEVRIES, H/W,
Plaintiffs,
Vv.
ALLEN-BRADLEY COMPANY, et ai.,
Defendants.
AFFIDAVIT OF CAPT. R. BRUCE WOODRUFF
U.S. NAVY (RET)
JUNE 2013
1, Robert Bruce Woodruff, declare and state the following:
1. Qualifications. My name is R. Bruce Woodruff.
As a Naval Architect and Marine Engineer through
27a
Appendiz E
education, experience, and training, | am an expert in
the design, construction, operation, inspection, repair,
and maintenance of Naval vessels and commercial ships.
A specific subspecialty is marine engineering propulsion
systems for U.S. Navy ships, including ships powered by
steam propulsion, diesel, and gas turbines. Additionally,
I am an expert in shipyard processes, which includes the
manufacturing, construction, repair, testing, and trials of
ships in both commercial and Naval shipyards.
Currently President of the Richmond Consulting Group
(RCG), Richmond, VA, I retired from the U.S. Navy as an
Engineering Duty Officer and held three major command
positions with rank as Captain. My Curriculum vitae is
attached as Exhibit (1) and is incorporated by reference
herein. I hold the Bachelor of Science degree from the
U.S. Naval Academy, Annapolis, MD, where I graduated
“With Distinction’ and hold two graduate degrees from the
Massachusetts Institute of Technology, Cambridge, MA.
The degrees are Ocean Engineer’ (Naval Architecture
and Marine Engineering) and a Master of Science in
Mechanical Engineering. My thesis was the design of a
combined steam and gas turbine power plant for a Navy
class of combatant ships. I attended the Darden Business
School Executive Program at the University of Virginia
in Charlottesville, VA.
While on active duty, I completed the one-year senior
1. The Engineer Degree at MIT requires broader competence
in engineering and science than the Master’s Degree; the thesis
requires less emphasis on original research than a Doctoral!
Program. The Engineer Degree is not commonly awarded at U.S.
universities with engineering programs.
28a
Appendiz Kk
staff Industrial College of the Armed Forces at the
Washington DC National Defense University, the U.S.
Naval Destroyer Engineering School in Newport, RI, the
Nuclear Ship Superintendent's Course at the Puget Sound
Naval Shipyard, and the U.S. Navy Boiler School at the
Philadelphia Naval Shipyard.’ My afloat experience was
on three Navy steam ships with qualifications as Engineer
Officer (Chief Engineer), Main Propulsion Assistant, Fleet
Officer of the Deck, Engineering Officer of the Watch, and
Destroyer Tender Repair Officer.
I have been formally certified as a U.S. Navy Fleet Boiler
Inspector by the Naval Boiler & Turbine Laboratory in
Philadelphia. I have performed numerous calculations,
inspections, tests and engineering studies on various
classes of ships related to U.S. Navy Combatant
ship design, shipyard production processes, marine
engineering and power generation, as well as auxiliary
systems, including pumps, piping and valves.
In 29 years of Navy active duty, my tours included more
than 24 years responsible for the design, construction
and maintenance of a wide range of naval combatants
2. Destroyer School was a detailed course on the design and
operation of the DD 692/710 Gearing/Sumner Class destroyers. It
required on board ship system tracing/drawing for all engineering
space equipment. Included were 2 weeks at sea with students
operating the USS Fred T. Berry(DD 858). Nuclear Ship
Superintendent School included the design and operation of nuclear
submarine plants Westinghouse S5W. Included actual onboard
nuclear refueling of an SSN 637 Class submarine in process at
the yard and as well reactor physics and Navy radiological! contro!
(RADCON) processes.
29a
Appendiz E
e.g., aircraft carriers, cruisers and destroyers, support
ships, and other watercraft. As a U.S. Navy Captain
and Supervisor of Shipbuilding (Supship), Pascagoula,
Mississippi (co-located with Ingalls Shipbuilding Division
of Litton Industries), I oversaw shipyard contracts for
both the construction and overhaul/repair of Navy/Army/
NOAA ships in Mississippi, Alabama and Florida. The
primary products of the Ingalls Shipyard were the CG 47
Class Aegis Cruisers, DDG 51 Class Aegis Destroyers,
and the aircraft capable Amphibious Assault Ships, LH D-
1 class.
Prior to that, my tour was as the Navy’s Program Manager
at the Naval Sea Systems Command (Navsea) for both the
CG-47 Class of Aegis Guided Missile Cruisers and the
F FG-7 Class of Guided Missile Frigates. My two shipyard
tours included Norfolk Naval Shipyard, Portsmouth, VA,
as Production Engineer and Ship Superintendent for the
aircraft carrier USS J. F. Kennedy (CV-67). In 1972, I
was assigned at the Boston Naval Shipyard as a Ship
Superintendent on the waterfront for repair availabilities
of the steam driven destroyer USS Coontz (DLG 9) and
cruiser USS Richmond K. Turner (CG 20).
Following my service as a senior Naval Officer, | was Vice
President and Division General Manager for Asea Brown
Boveri (ABB), a company manufacturing and servicing
large (100+megawatt) steam turbines, gas turbines and
generators for the utility industry. Since 1996, I have
served as the President of RCG, which provides consulting
services related to ship design and operations, shipyard
construction and repair processes and government
contracting. This has included a wide range of clients,
30a
Appendiz KE
including the U.S. Department of Justice, U.S. Navy, U.S.
Coast Guard, Siemens Corp., Eaton Corp, Metro Machine
and Drydock, Aepco Marine, L3 Corp., Friede Goldman
Halter Co. (Halter Marine), KPMG Peat Marwick, Anteon
Corp., General Dynamics Information Technology, and
numerous national law firms. I have served as an expert
witness in support of asbestos and mesothelioma litigation.
I am a member of the Society of Naval Architects and
Marine Engineers, the American Society of Naval
Engineers, the Society of Professional Engineers, the
Virginia Ship Repair Association, and the American
Society of Mechanical Engineers.
2. Discussion
This affidavit is structured to include the following:
(a) The source of information considered in forming the
opinions;
(b) A statement of all opinions expressed and the basis
and reasons therefore;
(ec) Exhibits and source references used as primary
support for the opinions;
(d) Expert qualifications and publications authored;
(e) A listing of other cases in which the expert has testified
or been deposed.
(a) Source of information relied on for my opinions.
I have been retained by Paul Reich & Meyers, P.C.,
Philadelphia, Pennsylvania, to provide expert opinion
3la
Appendia E
and testimony in the matter of asbestos exposure that
Lieutenant junior grade John B. DeVries received
during his Navy career. He served in the Engineering
Department on the destroyer USS Turner (DDR 834)
from 1957-1960. Mr. DeVries was designated as the Boiler
Officer and Main Propulsion Assistant (MPA). I analyzed
the duration and magnitude of exposure that Mr. De Vries
would have seen due to daily contact and close proximity
to asbestos insulation, gaskets, and packing on the Turner.
I also address the requirement for Navy equipment
suppliers to place asbestos hazardous warnings in the
technical manuals and drawings that they submitted to
the government for approval. Had these cautions been
included in their draft technical manuals and drawings
would the U.S. Navy have prohibited them or included
them in the published documents?
Primary sources of information for my opinions are
DeVries’ testimony, my direct telephone call with Mr.
DeVries, my own personal experience, and the documents
listed in paragraph (c).’ It may be necessary for me to
change this opinion should facts not known be disclosed to
me prior to any testimony that I might give in this matter.
(b) A statement of opinions expressed and the basis
therefore.
1. Summary. Without doubt or question, Mr. DeVries
received significant exposure to asbestos during his more
than 1000+ days assigned to the Turner, primarily from
3. Depositions of John B. DeVries, January 15, 16, & 17, 2013.
32a
Appendia EK
amosite asbestos lagging and asbestos gaskets and packing
in and on engineering spaces equipment and piping. That
is, while serving as the Main Propulsion Assistant in the
Engineering Department on board Turner, one of the
primary source of exposure for DeVries was his close
proximity to amosite asbestos insulation and lagging
located on the piping and equipment in the ship’s engine
in the U.S. Navy. My Navy career included assignment
at two naval shipyards that routinely overhauled ships
similar to the Turner. My own Navy career included
an initial tour as Main Propulsion Assistant and I fully
understand the scope and demands of this position aboard
a steam driven destroyer.‘
A major contributor to the substantial asbestos exposure
came from the Turner’s time in Naval shipyards one of
which included a FRAM overhaul of extended duration
with extensive work being accomplished in the engineering
spaces.®
* Sept 1957-Jan 1958-Regular Overhaul, Boston
Naval Shipyard--3+ months
* 14-23 January 1959-Tender Availability Alongside
USS Everglades (AD 24), Genoa, Italy
4. My experience was identical to Mr. DeVries -- I reported
aboard the destroyer USS Davis (937) as Boilers Officer/M PA for
my first shipboard tour.
5. FRAM stands for Fleet Rehabilitation and Modernization
overhaul.
33a
Appendiz E
* 13 Jan-12 Aug 1960-FRAM Overhaul, New York
Naval Shipyard--7 months
Additionally, the Turner made multiple deployments to
the Mediterranean Sea while DeVries was on board. |
personally sailed for multiple ‘Med cruises’ aboard two
destroyer type ships. The need for the ship to meet their
operational commitments places significant demands on
ship’s force engineers for all steam system repairs and
maintenance. Time in the Med alongside a tender or in a
foreign yard for repairs was infrequent. When destroyers
in the Med were in port, the engineers routinely had to
stay aboard to repair pumps, valves, gaskets, packing,
and damaged asbestos lagging. Responsibility for this
oversight would have fallen to Mr. De Vries.
2. Asbestos on Board Navy Ships and in Shipyard Shops.
The Navy's technical requirements for the elevated
steam system temperatures were clearly mandated
in the specifications for the steam system equipment.
Asbestos lagging, gaskets, and packing were required
for the turbines, boilers, evaporators, pumps, piping, and
valves. Operational ships and shipyards of this era
installing, removing, and maintaining steam systems
were a constant and pervasive source of asbestos
contamination. The U.S. Navy Bureau of Ships (Buships)®
made it quite clear that asbestos remained the insulator
of choice:
6. Bureau of Ships, U.S. Navy-the Washington, DC
organization responsible for the acquisition, construction, and
maintenance of all ships. It was renamed NAVSHIPS and finally
became the Naval Sea Systems Command (NAVSEA).
34a
Appendiz E
“Covers for use at temperatures of 850°
Fahrenheit and blow shall be filled with
asbestos felt. Wire inserted asbestos cloth Fed.
Spec. SS-C-466, Grade C shall be used on the
inside of covers”
Detailed specifications for these systems included the
main and auxiliary turbines, boilers, evaporators,
pumps, piping, and valves. Tailored to the machinery
specifications were numerous specifications for insulation,
gaskets, and packing that required asbestos. The Navy’s
design and construction practices and standards for
and piping confirm that the ships constructed from 1940
to 1980 contained mammoth quantities of asbestos.
I have reviewed multiple industry and Navy letters,
memos, and other documents from this era that validate
that the ships of this era contained significant quantities
of asbestos, primarily in the form of amosite. This
research included suppliers of the machinery itself and
the asbestos manufacturers. For the Navy it included
Buships, operational ships, shipyards, and Supervisors
of Shipbuilding (Supship).*
7. General Specifications for Ships of the United States
Navy, Bureau of Ships, Section S39-2, Thermal Insulation and
Acoustic Absorptive Treatment for Machinery, Piping and Ducts,
1 July 1954.
8. Supervisors of Shipbuilding were Navy commands
stationed at or near shipyards and Navy ports to execute and
manage repair and overhaul contracts.
35a
Appendiz E
Figure 1 below identifies a typical sample of the Navy
specifications used in marine steam systems and lists the
systems in which these asbestos products were routinely
installed. Both the U.S. Navy and the U.S. Maritime
Commission (merchant ships) used the same insulation
detailed specifications for steam and diesel driven ships
date back in some cases to the 1920s and 1930s. DeVries
would have seen exposure to all of these products during
his career on the Turner. Most of the key DD 692/710 Class
destroyer insulation specifications are listed in Figure 1.
Appendia E
3861/T8/S ‘6Z610-A-1h ‘ONG
40 NVAUNE ‘ANIGUAL
dH/d'I ‘WV¥DVIa
‘L144 SOLSAGSV 8.4z8
OdS AAVN ‘H.LO'IO
SOLSAESV 11928 DNIDDVI
NOLLVOIMIOddS AAVN GNV NOLLV’IOSNI| S@NIDNG NIVA
I861/92/TT
‘LE610-A-IP P SS6I/TZ/z ‘LESTO
“d-Th ‘ONG JO ‘UN YATION
‘WVUDVIC DNIDDV'I SLTa4 SUACVaH F SWNYa
SOLSAGSV €428 OUdS | YALVM ‘WNYC WVALS
‘N ‘HLOTO SOLSASSV | UA'TION HOU DNIDOVT
‘T10%8 OGdS AAVN GQNV NOLLVINSNI| SUA TION NIVW
SOLSAASV
ONISN SdIHS TTV HOU
2ohSh2-Z068S-0ILAA SLWOGY DNIDDVT a 1NGaHoOs
SONIMVUC SdIHSNG | CNV ‘SNI ANANIHOVN ‘QV'l B SNI
Sa 1dWVXa
SONIMVUG SOLSAESV W&LSAS 014100dS WALI
37a
Appendiz EF
Te9PS-269d
bPP-00LPS-26900 SdWNd
ST-108¢s-269dd dada NIVW SdWNd
9T-T08eS-2690a ALVSNAUGNOO NIVW
9-Z09PS 2690
SONIMVUC NOLLV'TINSNI SdWNd
NOISAG SSV'TD | YALSOOd CATA NIVW SdWid
O60PLET H LNOHSNOYHL
B06ES 0F6AC &-2068S-269dd | CADDV'I YHOLVHOdVAT
‘SONIMVUC NOLLV'TINSNI 40 TTAHS YALNO LNV'ld
NOISAC SSV'TD ~- SHOLVYOd VA ‘SIC HSV'T4
B861/TU/L ‘62610-A-Th
‘OM “ONG 40 NVAUNE
‘UOLVUANADOMUAL
MX 006 ‘WVUDVIC ‘E428
OddS AAVN ‘11928 ONIDOV'T ‘SNS O€UNL
NOLLVOIMIOUdS AAVN QNV NOLLV’TOSNI GOLAUTS dIHs
Appendix E
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39a
Appendiz E
In my personal experience, I can attest to the fact that
the primary insulation used for ships (both Navy and
commercial) was asbestos throughout engineering plants.
Pump and valve gaskets, and packing were also asbestos.
I served on board two destroyer class steam ships in the
engineering departments and had personal exposure to
asbestos on both ships. Experience with asbestos products
occurred as well while serving as Repair Officer on a
nuclear certified Destroyer Tender and serving at two
Naval Shipyards, both of which overhauled destroyers
like the Turner.
3. DeVries’ Navy Career on the Radar Pickett Destroyer
USS Turner (DDR 834)
Mr. DeVries was assigned to the USS Turner (DDR 834)
specifically from 12 June 1957 until 8 June 1960 when he
completed his active duty obligation. He served in the
Engineering Department for the entire time. The Turner
was a ‘twin screw’ Gearing class destroyer with steam
driven General Electric geared turbines and Babcock &
Wilcox boilers providing 60,000 shaft horsepower. Figure
2 is a thumbnail sketch of the ship.
40a
Appendiz Ek
USS Turner (DDR 834)--Gearing Class Destroyer
(Radar Pickett)
* Builder: Bath [ron Works, Bath, Maine
* Laid Down:13 November 1944--
Commissioned: 12 June 1945
* Length/Beam: 390 ft/41 ft
Displacement:
3,460 long tons Crew Size 345
* Propulsion: Twin Screw, 60,000 SHP, 4 Boilers,
2 Steam Turbines. Speed: 35 Kts
Figure 2. The Principle Characteristics
of USS Turner (DDR 834)
Figure 3 is an outline of DeVries’ career in the Navy on
board the USS Turner:
4la
Appendiz KE
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45a
Appendia E
Exposure to asbestos while a ship is underway is possible,
but generally reduced for engineering personnel when the
ship is at sea unless there is a major casualty or repair
required. Assigned to manage the four engineering spaces
for a period of three years, what tasks would Ensign then
Lieutenant junior grade De Vries have had that clearly
exposed him to heavy concentrations of amosite asbestos
as well as asbestos valve packing and gaskets? Underway,
DeVries would have been in and out of the four main
engineering spaces essentially non-stop.
For major ship at-sea evolutions, the Chief Engineer,
DeVries’ boss, would be stationed in the Forward
Engine Room known as Main Control. DeVries, as Main
Propulsion Assistant, would always be present in one of
the four main engineering spaces.'* There were three key
evolutions mandating that these officers be present in the
engineering spaces: General Quarters (battle stations),
refueling every 3-5 days alongside a Navy oiler, and when
entering and leaving port or an anchorage. DeVries was
responsible for a large portion of the ship as shown by this
ship profile in Figure 4, that is, both Boiler Rooms (BR)
and Engine Rooms (ER).
13. Main Control is the engine room that received direct
orders from the bridge to control the ship’s speed via propeller
revolutions.
Figure 4. Starboard Inboard Profile for
Gearing Class Destroyers"
4. Steam Equipment in the Turner’s Engineering
Plant. The design of turbines and pumps in marine plants
of this era favored almost exclusively the use of steam
driven equipment. The motor driven pumps for major
systems were considered backup and utilized relatively
infrequently. Steam equipment in the main engineering
spaces was heavily lagged with amosite asbestos pads. By
virtue of some hard lessons learned during World War I!
in the Pacific, steam propulsion and power generation had
proven to be an extremely reliable design feature. The
duplicate systems (forward and aft, port and starboard)
added to the number of pieces of steam equipment. More
importantly, the quantities of piping, pumps, and valves
that contained asbestos increased dramatically. A Gearing
Class destroyer contained approximately twenty (20) tons
of asbestos."*
14. BR-Boiler (Fire) Room, ER-Engine Room, DG-Diese!
Gen Room, FO-Fuel Oi] Tank, M-Magazine, Q-Crew Quarters.
15. U.S. Destroyers, An Illustrated History, Norman
Friedman, Naval Institute Press, Annapolis MD, 2004.
16. Rushworth, Denis H., “The Navy and Asbestos Therma!
Insulation”, American Society of Naval Engineers Journal, Spring
2005.
47a
Appendia E
Gearing Class Destroyers had a significant amount of
equipment in each engine and boiler room. This amounted
to approximately seventy main pieces of equipment for
which Mr. DeVries was directly responsible. The steam
equipment listed in the figure 5 table was insulated with
asbestos and contained asbestos packing and gaskets.
EACH FIRE ROOM EACH FIRE ROOM
UPPER LEVEL LOWER LEVEL
2 MAIN BOILERS
4 FORCED DRAFT 1 EMERGENCY FEED
BLOWERS PUMP
1 FUEL OIL HEATER | 2 FUEL OIL SERVICE
PUMPS
1 FUEL OIL 1 FIRE & BILGE PUMP
STRAINER
1 FUEL OIL BOOSTER/TRANSFER
PUMP (#1 FR ONLY)
EACH ENGINE ROOM | EACH ENGINE ROOM
UPPER LEVEL LOWER LEVEL
STEAM TURBINES 5 MAIN FEED AND
FEED BOOSTER
PUMPS
DEAERATING FEED MAIN CONDENSER
TANK
FRESH WATER 3 LUBE OIL PUMPS
EVAPORATOR & COOLER
LUBE OIL PURIFIER MAIN REDUCTION
& HEATERE GEARS
48a
Appendia E
SHIP SERVICE TURBO | 2 FIRE & FLUSHING
GENERATOR PUMPS
CONDENSATE 5 DISTILLING PLANT
COOLER PUMPS
Figure 5. Equipment Containing Asbestos and
Locations in Each of Turner’s Engineering Spaces
watch (4 on, 8 off), they would have been taking hourly
engine room equipment temperature and pressure
readings with a clipboard on the upper and lower levels.
Another typical task for his crew would be repacking a
valve that had been leaking steam or tightening/replacing
a steam piping joint that contained an asbestos flexitallic
gasket. By his own testimony and conversation with me
by phone, DeVries was frequently in close proximity to
this work.
Figure 6 lists the specific equipment in the Turner’s
engineering spaces.
EQUIPMENT MANUFACTURER
TD-TURBINE DRIVEN
MD-MOTOR DRIVEN
4-MAIN BOILERS BABCOCK & WILCOX
2-MAIN STEAM GENERAL ELECTRIC
TURBINES
2-MAIN REDUCTION | DELAVAL
I ee eee Le ol mi!
49a
Appendiaz E
8-FORCED DRAFT WESTINGHOUSE
BLOWERS (TD)
2-MAIN CONDENSERS | FOSTER WHEELER
4-MAIN CONDENSATE | DELAVAL
PUMPS (TD)
2-AUXILIARY DELAVAL
CONDENSATE PUMPS
(MD)
2-MAIN WARREN PUMPS-
CIRCULATING PUMPS | WESTING.TURB.
(TD)
2- SHIP SERV. GENERAL ELECTRIC-
TURBINE GEN. WESTING. TURB.
(450 KW)
2-AUXILIARY WORTHINGTON
CONDENSERS
2-AUX CONDENSER BUFFALO PUMP
CIRC PUMPS (MD)
2-AUX FEED DELAVAL
BOOSTER PUMPS (MD) !
2-EMERGENCY GENERAL MOTORS &
DIESEL GENERATORS | GE GEN.
1-DIESEL FUEL OIL NORTHERN PUMP
SERVICE PUMP (MD)
1 -CIRC PUMPS FOR WARREN STEAM
EMERG DIESEL GEN. | PUMP CO.
2-DEAERATING FEED | ELLIOTT CORP.
TANKS
50a
Appendia E
2-MAIN AIR WORTHINGTON
EJECTORS
2-AUX AIR EJECTORS | WORTHINGTON
4-MAIN FEED PUMPS | DELAVAL
(TD)
2-EMERGENCY FEED | WARREN STEAM
PUMPS (TD) PUMP CO.
4-MAIN FEED DELAVAL
BOOSTER PUMPS (TD)
4-MAIN LUBE OIL DELAVAL
PUMPS (TD) & (MD)
2-LUBE OIL COOLER | ALCO
2-LUBE OIL DELAVAL
PURIFIERS (MD)
8-FUEL OIL HEATERS | GRISCOM RUSSELL
4-MAIN FUEL OIL DELAVAL
SERVICE PUMPS (TD)
& (MD)
2-FUEL OIL BOOSTER | DELAVAL
PUMPS (TD)
1-EVAPORATOR GRISCOM RUSSELL
PLANT (12,000 GPO)
1-EVAPORATOR GRISCOM RUSSELL
PLANT (4,000 GPO)
2 DISTILLING PLANT | CH WHEELER
AIR EJECTORS
5la
Appendiaz E
2-18" EFFECT TUBE BUFFALO PUMP
NEST DRAIN PUMPS
(MD)
2-EVAP. BRINE BUFFALO PUMP
OVERBOARD PUMPS
(MD)
2-DISTIL.LER BUFFALO PUMP
CONDENSER CIRC
PUMPS (MD)
2-DIST. COND. BUFFALO PUMP
CONDENSATE
PUMPS(MD)
2-DIST. FW. WATER BUFFALO PUMP
DIST. PUMPS (MD)
2-FRESH WATER WARREN STEAM
PUMPS (MD) (MD) PUMP CO.
2-FIRE AND BUFFALO PUMP
FLUSHING PUMPS
(MD)
4-FIRE & BILGE PUMP | WARREN STEAM
(TD) & (MD) PUMP CO.
2-FIRE PUMPS (MD) GARDNER DENVER-
(SMALL & LARGE) GE MOTORS
(MD)
1-HP AIR WORTHINGTON &
COMPRESSOR (TD) STURTEVANT TURB.
3000 PSI
52a
Appendia EK
1-LP AIR WORTHINGTON PUMP
COMPRESSORS 100
PSI (MD)
2-REFRIGERATION CARRIER CORP
PLANTS
MULTIPLE MAIN 2” CRANE
AND AUX. STEAM
VALVES
MULTIPLE STEAM YARWAY CORP
TRAPS
MULTIPLE STEAM GROVE REGULATOR
REG. & REDUCING Co.
VALVES =a
MULTIPLE PUMP LESLIE
PRESSURE REG.
VALVES
AUX. STEAM A. & MORRILL &
EXHAUST SWARTOUT CO.
UNLOADING VALVES
Figure 6. USS Turner (DD 834) Engineering
Space Equipment List”
Example of Thermal Insulation on a Marine Turbine.
A notional example schematic of a naval steam turbine
showing asbestos is shown below in Figure 7. The
figure is relevant to DeVries’s career working aboard
17. US. Navy Board Of Inspection & Survey San Diego,
Materia/Inspection, Machinery Synopsis, USS Turner (DD 834)
9 June 1945.
53a
Appendiz E
a Navy destroyer with innumerable steam turbines for
the main engines, generators, and pumps. The drawing
demonstrates the extent of asbestos on one of the largest
pieces of equipment in a Navy surface ship engine room.
Schematics of the main boilers on a Navy ship presents a
similar picture of significant insulation required.
Figure 7. Cross section of generic and typical Naval
steam turbine showing layers of asbestos cloth, felt, and
blankets. Naval Ships Systems Command Technical
Manual, NSTM 1959, Chapter 9390
ida
Appendiz E
In port is the most likely period that ship’s force personne!
would be exposed to asbestos products. This is particularly
true for time spent in a shipyard or alongside a Destroyer
Tender. The normal cycle for all U.S. Navy ships was a
Material Inspection every three years by the U.S. Navy
Board of Inspection and Survey (INSURV) before any
shipyard overhaul period. Navy INSURV reports served
as an initial first cut at the shipyard work list. The March
1959 report found the Turner material condition to be
unsatisfactory with particular emphasis on the steam
machinery spaces. This validates my perception that
the plant required a sizeable maintenance and repair
effort to keep it running. Turner’s shipyard overhauls
and work performed are addressed further in this affidavit
in paragraph seven.
5. Personal Interview with John DeVries
On June 21, 2013, the plaintiff attorney, Alan Reich, and
I spoke to Mr. Devries in a telephone conference call to
discuss his career on the USS Turner and any specific
and maintenance of the Turner’s steam systems. Primary
points discussed:
* As stated in his depositions, he emphasized that he
became a hands-on engineer when he went aboard the
Turner.
* He had little formal training in shipboard steam
systems, thus his approach was to maximize his time
5ba
Appendiz E
in the four main engineering spaces, that is, both
Boiler (Fire) Rooms and Engine Rooms.”
* He learned by staying very close to the Boiler
Technician(BT) and Machinist Mate (MM) ratings
during the operation and maintenance of the turbines,
boilers, pumps and valves.
* Recalls the removal of asbestos packing from valves—
did not have the proper removal tools and use a
screwdriver—described it as ‘very messy.’
* Recalls work being accomplished on the forced draft
blowers with the removal of insulation.
* He confirmed two shipyard periods at Boston (BSN Y)
and New York Naval Shipyards (NYNSY).
* Stated that he attended the DESLANT Engineering
School in Newport during the Boston Naval Shipyard
Overhaul.
* He met the ship at Naval Station Guantanamo Bay,
Cuba, for Refresher Training following the Boston
Naval Shipyard Overhaul. (This indicates that he was
present aboard Turner for most of the overhaul and
particularly at the front end when equipment removals
took place, i.e., the period when most of the insulation,
gaskets, and packing would have been removed).
18. The U.S. Navy traditionally called the boiler space the
Fire Room vs Boiler Room. The latter was common in merchant
56a
Appendiz E
* During the FRAM shipyard overhaul period at
NYNSY, he was in the main engineering spaces every
day.
* He described close proximity to work being performed
on the main boilers--boiler brickwork and insulating
block
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