# Respondents Brief — Air & Liquid Systems Corp. v. DeVries, 139 S. Ct. 986 (2019) (No. 17-1104) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0814%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 2019 ## Text 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 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0814%3A09. Public record. Not legal advice.