Petition for Writ of Certiorari — Worthington Corp. v. Ronsini

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Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1999

WORTHINGTON CORPORATION,

Petitioner,

Vv.

ELAINE RONSINI, EXECUTRIX OF THE ESTATE OF FRANK

RONSINI

PETITION FOR A WRIT OF CERTIORARI TO THE NEW

YORK SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT

PETITION FOR A WRIT OF CERTIORARI

FRANK H. GRIFFIN III JERROLD J. GANZFRIED

PHILIP W. VOGLER Counsel of Record

GOLLATZ GRIFFIN KAREN L. MANOS

& EWING, P.C. ALEXANDER B. BERGER

16th Floor HOWREY & SIMON

Two Penn Center Plaza 1299 Pennsylvania Avenue, N.W.

Philadelphia, PA 19102 Washington, D.C. 20004

(215) 563-9400 (202) 783-0800

Attorneys for Petitioner

Worthington Corporation

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| QUESTION PRESENTED

Contrary to this Court’s articulation of the

government contractor defense in Boyle v. United

Technologies Corp., 487 U.S. 500 (1988) and Hercules, Inc.

v. United States, 516 U.S. 417 (1996), and in conflict with

decisions of the Fourth, Fifth, Sixth and Seventh Circuits, the

state court in this case held that a defendant in a products

liability case based on a failure-to-warn theory is not entitled

to submit the government contractor defense to the jury

absent the “proscription of a warning” by the United States

Navy. Accordingly, the question presented is:

Whether the government contractor defense preempts

a state law failure-to-warn tort claim only when military

specifications expressly prohibit a warning?

PARTIES TO THE PROCEEDING

Petitioner Worthington Corporation was one of 35

defendants in the initial Stages of the proceedings in the trial

court. The respondent in this Court, the plaintiff in the trial

court, is Elaine Ronsini, Executrix of the Estate of Frank

Ronsini.

Other defendants in the trial court were: Garlock,

Inc.; H&A Construction: Asbestospray Corp.; Robert A.

Keasbey Co.; Combustion Engineering, Inc.; U.S. Mineral

Products, Co.:; Owens-Corming Fiberglass Corp.; Rockwool

Manufacturing Co.: The Anchor Packing Co.; Foster

Wheeler Energy Corp.; Pittsburgh-Corming Corp.; Rapid-

American Corp. as successor-in-interest to Philip Carey

Manufacturing Corp.; John Crane, Inc.; A.W. Chesterton

Co., Inc.; Atlas Turner, Inc.; Allied Corp. as successor-in-

interest to The Bendix Corp.; Westinghouse Electric Corp.:

Rutland Fire Clay Co. d/b/a Rutland Products; General

Electric Co.; Uniroyal, Inc.; IMO Industries, Inc. as

successor to and formerly known as DeLaval Turbine,

Transamerican DeLaval and IMO DeLaval; York Industries

Corp.; Standard Insulation Co.; Crown Cork & Seal Co.,

Inc.; Ingersoll-Rand Co.; Gould Pumps, _Inc.; Quaker

Chemical Corp.; Selby Battersby & Co.: General Motors

Corp.; Detroit Diesel Corp. as successor to Detroit Diesel

Allison Division of General Motors; Volkswagen of

America, Inc.; VW Venture Corp., formerly known as or as

successor to World Wide Volkswagen Coprp.; Volkswagen

Werk Aktiengesellschaft: and Raymark Industries, Inc.

The case was tried using a “reverse” bifurcation

format, in which damages were litigated first. Following the

damages phase of the trial, the plaintiff settled, discontinued,

or otherwise dismissed the actions against all defendants

except Worthington Corporation and Atlas Turner, Inc. At

the subsequent liability trial, the only defendants were

Worthington and Atlas Turner.

RULE 29.6 STATEMENT

Petitioner Worthington Corporation’s corporate

parent is Dresser Industries, Inc, which is a wholly-owned

subsidiary of Halliburton Company.

ill

TABLE OF CONTENTS

RTE k BORE © RINE A iaenidarthovevnssnkesarunnssossresayereciadl

PARTIES TO THE PROCEEDING............ccccseeeeeeeees

UTE SPO EPS ERMMIEL Sihinscisscsicsscasasacersssecsecsbisasninnes

I. THE CONSTITUTION AND THE

GOVERNMENT-CONTRACTOR DEFENSE

REQUIRE UNIFORMITY OF DECISIONG............

Il. THE DECISION BELOW CONFLICTS WITH

DECISIONS OF THIS COURT AND OF

SAE RAMP eR EEE Uicoihcharens snistéssceqsbectencvaincecpebcassacsnect

Ree UG ies spchdaasbhatibvedinb socetesiiehiaidinenkadeveessaischenoten

INDEX TO APPENDICES

APPENDIX A: Decision and Order of the Supreme

Court of the State of New York, Appellate

Division, First Department, dated December 29,

EPO 5 ies ssinincsetoheidaccsantaviliknasliiiscalansbccadimiosgicslaeatalicdajiions

APPENDIX B: Decision and Order of the Supreme

Court of the State of New York, dated May 20,

SDD F . ccscsocsrincssssdetiacdissepibtevemasistacbenmaeisintaiubcenadeeliblebeavins 6a

APPENDIX C: Verdict Sheet, Supreme Court of the

SRG OE POG TE cies aisccisstasnrasincniousranaatAbndaniseaienaiie 13a

APPENDIX D: Judgment of the Supre:ne Court of

the State of New York, dated September 8, 1997......... 21a

APPENDIX E: Order of the Supreme Court of the

State of New York, Appellate Division, First

Department, denying Worthington Corporation’s

Motion for Reargument or Leave to Appeal, dated

DERRY BG. RN sinckctisndecsdipheicdicintecsouinioiansieietmaabueeletanions 28a

APPENDIX F: Decision of the State of New York

Court of Appeals, denying Worthington

Corporation’s Motion for Leave to Appeal to the

Court of Appeals, dated September 16, 1999............... 30a

APPENDIX G: Provisions of the Constitution of the

Usted Sintes OF AM ics i cciicitietitietiataeicii 32a

APPENDIX H: Excerpts From the Trial Testimony

of Frank Ronsini (November 1, 1996).....................04 33a

APPENDIX I: Excerpts From the Trial Transcript

(November-December 1996) ..................:ccccseeeseeeeeeeeeees 36a

TABLE OF AUTHORITIES

CASES

In re “Agent Orange” Product Liability Litigation,

08 ©. Ba, 1066 CEDAW. Y; 1962) cncccccciscccssencsescccoreasce 12

In re Air Disaster at Ramstein Air Base, Germany,

81 F.3d 570 (Sth Cir.), mod. on other grounds,

Perez v. Lockheed Corp., 88 F.3d 340 (Sth Cir.),

cert. denied, 519 U.S. 1028 (1996).........ccccccccceeeeeees 14, 16

Bailey v. McDonnell Douglas Corp.,

FOP BL FPO GOT, 1GG3) vinscsscarcsorssensssecsececcccceesssscacee 14

Boyle v. United Technologies Corp.,

FF hae ita icdianebinindenensatntnscacnéareres passim

Dorse v. Eagle-Picher Industries, Inc.,

SIS P26 1487 (110s Cig, 1990) ..2....0cccrepeccssccecscccciee 14,18

Emory v. McDonnell Douglas Corp.,

148 F.3d 347 (4th Cir. 1998) oo... ee eeeeeeeeee 14, 16, 21

Feldman v. Kohler Co.,

918 S.W.2d 615 (Tex. Ct. App. 1996)... eee 20

Geier v. American Honda Motor Co.,

ROMs OE ee BARR acilbckdaoshsitenctesvcnaccacndpacsociscdcducnee 22

Goldman v. Weinberger,

re ee ce cudilbantns 21

Harduvel v. General Dynamics Corp.,

878 F.2d 1311 (11th Cir. 1989), cert. denied,

Fe I ia ialiiiitioniecencorecsircabentndyorsptnosenncecssnnne 1]

In re Hawaii Federal Asbestos Cases,

BSD FD Te Fr his satis atthe ndebicctendcinncs 18

Hercules, Inc. v. United States,

SIG UG OFT TiS btcticinticictiaaians 3, 8,13

International Association of Independent Tanker Owners

(INTERTANKO) v. Locke, No. 98-1706 (U.S. 1999) .....22

Jackson v. Deft, Inc.,

223 Cal. App. 3d 1305, 273 Cal. Rptr. 214

(Ct. App. 1990), review denied, 1990 Cal.

LEXIS S536 CCL, TORE, Ba BO iecsaseiccsccosdcsscicssenssscies 20

In re Joint Eastern & Southern District New York Asbestos

Litigation, 897 F.2d 626 (2d Cir. 1990) ............. 14, 18, 19

Lichter v. United States,

SIA ALS. FAs CP iitnecidintectnsccttniteanbdiinoane 10

McCarty v. McCarty,

GOS is: REO ER istics sssikscrdsavdsyesbintsaaghitesakbiapenbaakens 10

McKay v. Rockwell International Corp.,

704 F.2d 444 (9th Cir. 1983), cert. denied,

SGA LE, TES iis iaestacecenD aac nisscdacbbctsrsderdicsesetasses 11

Miller v. United Technologies Corp.,

GEO A.2E BIG CCM: FIGS) ics ceisichccisniccssenncenacanasnscsbances 19

Natsios v. National Foreign Trade Council,

ING, DO-A7G GBs TOBE sscsseriintrnstvkansetnijassssansbasntbsivestionss 22

Nicholson v. United Technologies Corp.,

697 F. Supp. 598 (D. Conn. 1988)................csccsssscsssseees 19

Norfolk Southern Railway v. Shanklin,

PUK FE a TEs aes BOD dcstsscsknacehautacnscsiasciecsapbininnadcncdiatsh 22

Oliver v. Oshkosh Truck Corp.,

96 F.3d 992 (7th Cir. 1996), cert. denied,

PE Gis Be A CT Fes vicctecitinsiastinhacstacctnssies 14, 16, 18, 19

Russek v. Unisys Corp.,

921 F. Supp. 1277 (D.N.J. 1996)................. sa dataplaciiait 15

Shaw v. Grumman Aerospace Corp.,

778 F.2d 736 (11th Cir.1985), cert. denied,

OE RE Fe a Risiatehcsiteniosiinaiaxcossachstasscduiontnarscevenes 12

Smith v. Xerox Corp., :

BO A LFS CPE AE, LIF) iescevnsnscnsiscisevensdécsinestshsobenicn 16

Snell v. Bell Helicopter Textron, Inc.,

BOE ee Fe CEs BED vvtcstcieicisacsscesinotocesseneesisetcns 14

Tarble's Case,

UE Slscie ABS WUE DUE CEO PED ashes csivansscecosseccesseeseccoceses 10

Tate v. Boeing Helicopters,

IO FO a CO es FOGG) oii ccisinscccsccctvsccssistcssccsesecee 17

Tate v. Boeing Helicopters,

FFE Ie BE COME SNE, BOTS) ovnossscsarscssicrovvaicanesss 14, 16, 17

Timberline Air Service, Inc. v. Bell Helicopter-Textron, Inc.,

Se Ek FE CPO, CIID icsassncecocsscassevessasvconsacnscnasecese 19

Tozer v. LTV Corp.,

792 F.2d 403 (4th Cir. 1986), cert. denied,

eI sass eines sdhannuansnabteshernntnectueanesqacces 1]

United States v. Locke,

Ss TE I BO i cnccsecssonseinsaeshinsapscsiuincsanntensaia 22

ee ee ae, Meee enn ene ee

United States v. Oregon,

366 U.S. 643 (1960)... cceeeecceeteeeeeesereeeesneenesensnesnsnces 10

United States v. Winstar Corp.,

518 U.S. 839 (1996).......scsccccsseeeeeesssrsreeseeessnesenseseneennenes 12

Yeroshefsky v. Unisys Corp.,

962 F. Supp. 710 (D. Md. 1997).......:::eeeeseeesersees 3, 14, 15

CONSTITUTIONS AND STATUTES

U.S. Const. art. 1, § 8, cls. 1, 12-14... eeeeeeeeeeeeeees yr ie

USS. Const. art. I], § 2, Ch. 1... ceeeeeeeereeesereeeeeseneeneeenenenes pe

US. Const. art. VI, ch. 2.0... cceceeceseesseeneneeeeeeeeeeneneenteneeees 2,8

2B U.S.C. § 1257(a) ......scsscsssssssreecsrscceccsseeresnesnnensessnsonsenensanes 2

OTHER AUTHORITIES

Federalist Papers, No. 23, “The Necessity of a Government

as Energetic as the One Proposed to the Preservation of

the Union” (Dec. 18, 1787) ......:sssesecseseesensetsceeeersnesnsnes 9

U.S. Navy, Dictionary of American Fighting Ships (1967) ...4

In the Supreme Court of the Anited States

OCTOBER TERM, 1999

No. 99-

WORTHINGTON CORPORATION,

Petitioner,

Vv.

ELAINE RONSINI, EXECUTRIX OF THE ESTATE OF FRANK

RONSINI

PETITION FOR A WRIT OF CERTIORARI TO THE NEW

YORK SUPREME COURT, APPELLATE DIVISION, FIRST

DEPARTMENT

PETITION FOR A WRIT OF CERTIORARI

Petitioner Worthington Corporation respectfully

petitions for a writ of certiorari to review the judgment of the

Supreme Court of the State of New York, Appellate

Division, First Department in this case.

OPINIONS BELOW

The decision and order of the Appellate Division,

First Department is reported at 683 N.Y.S.2d 39 (Appendix

to Petition for Certiorari (“App.”) la). The orders and

opinions of the trial court (App. 6a & 21a) are unreported.

JURISDICTION

The judgment of the Appellate Division, First

Department was entered on December 29, 1998. App. la.

a Pe

The Appellate Division, First Department denied a timely

motion for reargument or leave to appeal on May 18, 1999.

App. 28a. The New York Court of Appeals denied a timely

motion for leave to appeal on September 16, 1999. App. 30a.

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

Article VI, clause 2 of the United States Constitution

provides, in relevant part:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof . . . shall be the supreme Law of the

Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution

or Laws of any State to the Contrary

notwithstanding.

Other constitutional provisions at issue in this case

(Art. I, § 8, cls. 1, 12-14; Art. I, § 2, cl. 1) are reprinted in

the Appendix. App. 32a.

STATEMENT OF THE CASE

More than 50 years after it sold pumps and

compressors to the United States Navy for use on warships in

World War II, petitioner Worthington Corporation was held

liable by a New York State court on a products liability

claim. The adverse judgment in this case is premised on

personal injuries allegedly caused by Worthington’s failure

to issue warnings to military personnel. That result is all the

more remarkable because: (1) Worthington strictly complied

with all applicable military specifications; (2) there was no

claim that the design of the equipment was in any way

defective; (3) Worthington did not know of any risk to

workers such as respondent; (4) respondent’s military service

began more than 25 years after the equipment was

manufactured and sold; and (5) the U.S. Navy had complete

control over the plaintiff's working conditions (including

cautionary warnings).

The decision below summarily disposed of

petitioner’s government-contractor defense, hotding that the

jury need not even be instructed on this issue of federal law.

That decision conflicts with decisions of the Fourth, Fifth,

Sixth and Seventh Circuits. It is also inconsistent with this

Court’s holdings on the government-contractor defense in

Boyle v. United Technologies, 487 U.S. 500 (1988) and

Hercules, Inc. v. United States, 516 U.S. 417 (1996).

These conflicting decisions on an important issue of

federal law should suffice to warrant this Court’s review. In

fact, there are further compelling reasons for certiorari. The

government contractor defense to state law tort claims poses

questions vital to the proper functioning of our federal

system. One need go no further than this Court’s current

docket to perceive the primacy of federalism issues,

specifically as they relate to preemption of state law. This

case presents an opportunity to address the relative roles of

the state and federal governments in a uniquely important

and practical context: military procurement of equipment to

“provide and maintain a Navy” (U.S. Const., art. I, § 8, cl.

13) and “provide for the common defense” in wartime. U.S.

Const., art. I, § 8, cl. 1.

In addition, the continuing and recurring importance

of the question presented in this case is reflected in the fact

that seven of the federal courts of appeals have addressed this

issue, as have appellate courts in numerous states. As the

lower courts have observed, those appellate holdings “vary

widely.” Yeroshefsky v. Unisys Corp., 962 F. Supp. 710, 717

(D. Md. 1997). In these circumstances, the justifications for

this Court’s review are compelling.

1. During World War II, Worthington Corporation

(“Worthington”) manufactured and sold hundreds of pumps

and compressors to the United States Navy for installation on

Fletcher class destroyers. As required by its Navy contracts,

Worthington manufactured the equipment in strict

compliance with detailed military specifications. App. 48a-

49a, 53a-59a, 63a-65a. Applicable military specifications

expressly required the internal component parts of the

equipment to include asbestos-containing gaskets. App. 50a-

54a. The military specifications also included explicit

requirements for markings on the equipment and for the

preparation of technical manuals. App. 53a, 55a-59a, 60a-

62a. The technical manuals Worthington was required to

prepare were reviewed and approved by the Navy:

subsequently, the Navy issued its own revision of some of

the manuals. App. 63a-65a, 69a-70a. Worthington could not

make changes to either the design of the equipment or the

technical manuals without Navy approval. App. 66a.

Worthington’s equipment was installed on the U.S:S.

John W. Weeks, before its commissioning in 1943, and on

the U.S.S. Gearing, before its commissioning in 1944. App.

49a. Over the ensuing 25 years -- before respondent’s brief

time on board -- both ships saw substantial combat, including

service during World War II, the Korean conflict, and the

Cuban missile crisis. U.S. Navy, Dictionary Of American

Fighting Ships, vol. 8, 194 and vol. 3, 31 (1967).

2. Frank Ronsini served on the U.S.S. Weeks and

U.S.S. Gearing at various times during the Vietnam conflict

from 1968 until 1972. In his work as a machinist, Ronsini

was exposed to a wide variety of asbestos-containing

products while maintaining and repairing equipment in the

engine rooms of both destroyers. App. 42a-47a.

3. In 1996, Ronsini brought a personal injury suit

against Worthington and 34 other defendants, claiming that

they manufactured or sold asbestos-containing products to

which he was exposed in the Navy and elsewhere from 1967

through 1973. Ronsini’s sole theory of liability against

Worthington was that Worthington failed to warn him of the

danger allegedly inherent in the use of asbestos-containing

component parts inside the Worthington equipment. App.

41a, 66a-71a.!

At trial, Worthington asserted the government-

contractor defense to preclude liability for products sold to

the Navy in accordance with military-prescribed

specifications. Worthington introduced evidence to support

this proposition by showing that there were no dangers of

which Worthington was aware that the Navy was not. App.

36a-40a. Indeed, the Navy had far greater and more

sophisticated knowledge of the potential hazards and dangers

of asbestos-containing products than did Worthington. App.

36a-39a. And, as the trial court found on the record in this

case, Worthington had no knowledge of a risk about which it

could have warned workers like respondent. App. 8a. Based

on this record, Worthington requested a jury instruction on

the government contractor defense. Drawing directly from

this Court’s language in Boyle v. United Technologies Corp.,

487 U.S. 500, 512 (1988), Worthington requested that the

jury be instructed that a contractor could not be liable for:

1 Respondent expressly disavowed all claims against

Worthington based on any alleged design defect in its

product: “I am withdrawing my design defect claim.” App.

4la.

. =

goods supplied to the military if the United

States approved __ reasonably precise

specifications of the products, the material

conformed to those specifications, and the

supplier warned the United States about the

dangers and the use of the materials that were

known to the supplier but not to the United

States.

App. 67a. In response, respondent’s counsel argued that the

government contractor defense does not apply to claims

based on an alleged failure to warn: “Compliance with

standards is irrelevant. It doesn’t matter one way or the other

if you comply with standards.” App. 70a; see App. 67a-68a.

Ultimately, the trial judge gave the jury the following charge:

Adherence to government standards while

important, and some _ evidence of

reasonableness, does not relieve a party from

the obligation to make its product safe.

Compliance with those standards by a

defendant, even if proven, doesn’t preclude a

finding of a liability. However, you should

take compliance into consideration in deciding

whether or not the product was safe.

App. 73a.2. Accordingly, the jury was permitted to impose

liability even if it found that Worthington acted in strict

2 Petitioner also argued that any warning would have been

nullified and totally ineffective in light of the exigencies of

military service in wartime and the Navy’s total control over

respondent’s working conditions. On this point, respondent

testified unequivocally that during his military service on

board the ships he had no control over his working

conditions, much less the right to decide whether to work

me.

compliance with all federal standards and _ military

specifications.

4. The jury returned a verdict in favor of Ronsini,

specifically finding that Worthington’s products were

defective because they lacked warnings. App. 16a. On post-

trial motions, the court expressly found that “[t]here is no

evidence in the record that Worthington knew of the risk of

the asbestos containing product that the jury found that Frank

Ronsini used to workers like him so that Worthington ‘could

have warned him.’” App. 8a. Nevertheless, the trial court

upheld the finding of liability. In denying Worthington’s

post-trial motion to set aside the verdict, the court offered no

discussion of the government-contractor issue (“[t]he issues

Worthington raises, including the ‘Navy’ defense, require no

further discussion....”). App. 7a.

5. The New York Supreme Court, Appellate

Division, First Department, affirmed. App. la-Sa. With

respect to the government-contractor defense, the appellate

court held that petitioner was not entitled to have the jury

even consider the issue: “In the absence of any evidence of a

conflict between State warning requirements and any Federal

prescription of label information or proscription of a

warning, there was no basis for Worthington’s requested

government contractor defense charge ....”. App. 3a. The

New York Court of Appeals denied review. App. 30a-3 la.

with gaskets in the Worthington equipment or the right to

decide what to wear wlien performing such maintenance

services: “It wasn’t like a regular job. It wasn’t a union.”

App. 34a. Notwithstanding this record, the trial judge

instructed the jury that: “Each worker had a right to decide

for himself whether to work and what he would wear as

protection before continuing to work.” App. 75a.

REASONS FOR GRANTING THE PETITION

The judgment below is incorrect and conflicts with

decisions of this Court and federal courts of appeals on a

recurring issue at the very core of our federal system. The

decision below is contrary to the Supremacy Clause and to

the Constitution’s express assignment to the federal

government of the power to “provide and maintain a Navy”

and to “make Rules for the Government and Regulation of

__. naval Forces.” U.S. Const. art. VI, cl. 2; art. I, § 8, cls.

13, 14. Moreover, the decision below does not adhere to this

Court’s articulation of the government-contractor defense in

Boyle and Hercules and it squarely conflicts with decisions

of federal circuit courts of appeals. See pp. 13-19, infra.

Under the decision below, a government contractor

that assists its country in wartime (by providing equipment

exactly as Navy specifications required) can be held liable

under state tort law theories more than a half-century later.

Recognizing the inherent incompatibility between state law

liability and the constitutional imperatives for government

procurement and military preparedness, this Court and

federal courts of appeal in at least four circuits have rejected

the imposition of such liability on government contractors in

these circumstances.

This case is one of many in which state courts have

imposed liability on government contractors that federal

cases clearly prohibit. The impact of the decision below is

pointedly deleterious to federalism principles, particularly as

they apply to the military. Contrary to prevailing federal

standards, the rationale for liability is the absence of

“warnings” to military personnel serving decades after the

equipment was sold. As this case illustrates, such a regime

of liability would have profound repercussions: _ the

contractor had no knowledge at the time of sale of any risk to

military personnel performing these maintenance tasks, yet is

liable for failing to issue warnings to a sailor who was not

born until years after the Navy purchased the equipment. By

requiring government contractors to issue state-created

warnings directly to servicemen, notwithstanding the U.S.

Navy’s total control over their working conditions, the

decision below poses an ominous threat to national

uniformity in an area that is uniquely and exclusively federal.

By any measure, this case satisfies all accepted standards for

certiorari. It fully warrants this Court’s review.

I. THE CONSTITUTION AND THE

GOVERNMENT-CONTRACTOR DEFENSE

REQUIRE UNIFORMITY OF DECISIONS

1. The decision below directly impinges upon the

federal government’s constitutional authority and duty to

provide for the common defense. As this Court has

observed, the government-contractor doctrine has strong

constitutional underpinnings.

Article I, section 8, clauses 12 through 14 of the

Constitution grant Congress the exclusive power to “raise

and support Armies,” to “provide and maintain a Navy,” and

to “make Rules for the Government and Regulation of the

land and naval Forces.” See also Article II, section 2, clause

1. This language embodies the framers’ intent that powers

essential to the common defense vest exclusively in the

federal government. See Federalist Papers, No. 23, “The

Necessity of a Government as Energetic as the One Proposed

to the Preservation of the Union” (Dec. 18, 1787). Moreover,

the framers recognized that state interference in military

matters would undermine the national defense. /d.

This Court, too, has long recognized that the federal

government’s power to provide for the common defense is

-10-

necessarily plenary and exclusive. See, e.g., T arble’s Case,

80 U.S. (13 Wall.) 397, 408 (1871) (“No interference with

the execution of this power of the National government in the

formation, organization, and government of its armies by any

State officials could be permitted without greatly impairing

the efficiency, if it did not utterly destroy, this branch of the

public service”). Accordingly, the constitutional power to

support the armed forces with equipment and supplies is as

“clear and sweeping” as the power of conscription. Lichter v.

United States, 334 U.S. 742, 756 (1948). States are

precluded from interfering with the federal government’s

exclusive war-making powers. This proscription is so

pervasive and inviolate that it applies even when issues

traditionally reserved for the states are involved. For

example, in United States v. Oregon, 366 U.S. 643 (1960), a

case involving a mentally incompetent veteran who died

intestate in a veteran’s hospital, the Court upheld a federal

law requiring that the veteran’s personal property be used for

the comfort and recreation of other veterans, notwithstanding

an Oregon statute requiring that property left intestate escheat

to the state and the traditional jurisdiction of states over the

devolution of property. Similarly, in McCarty v. McCarty,

453 U.S. 210 (1981), the Court held that application of

California’s community property law in a divorce proceeding

would frustrate the federal military retirement system.

2. Drawing on these same fundamental principles,

this Court has correctly perceived the need to assure

government contractors that their adherence to federal

specifications will not open the door to conflicting state tort

liability schemes. Any departure from this rule would impair

the government’s ability to procure effective military

equipment. As this Court observed in Boyle, “the selection

of the appropriate design for military equipment to be used

by our Armed Forces ... often involves not merely

engineering analysis but judgment as to the balancing of

many technical, military, and even social considerations,

including specifically the trade-off between greater safety

and greater combat effectiveness.” 487 U.S. at 511.

State courts are particularly ill-suited to second-guess

military decisions. See Harduvel v. General Dynamics

Corp., 878 F.2d 1311, 1322 (11th Cir. 1989) (“With respect

to consumer goods, state tort law may hold manufacturers

liable where such a balance [between safety concerns and

cost and performance] is found unreasonable. In the

sensitive area of federal military procurement, however, the

balance is not one for state tort law to strike”), cert. denied,

494 U.S. 1030 (1990); Tozer v. LTV Corp., 792 F.2d 403,

406 (4th Cir. 1986) (“There is a danger in transporting the

rubric of tort law and product liability to a military setting

and military technology. While jurors may possess

familiarity and experience with consumer products, it would

be the rare juror — or judge — who has been in the cockpit of a

Navy RF-86 off the deck of a carrier on a low level, high

speed fly-by maneuver.”), cert. denied, 487 U.S. 1233

(1988); McKay v. Rockwell Int’l Corp., 704 F.2d 444, 449

(9th Cir. 1983) (“to hold military suppliers liable for

defective designs where the United States set or approved the

design specifications would thrust the judiciary into the

making of military decision”), cert. denied, 464 U.S. 1043

(1984).

Consistent with the Constitution and this Court’s

directives, federal courts recognize that:

The purpose of [the] defense ... is to permit

the government to wage war in whatever

manner the government deems advisable, and

to do so with the support of suppliers of

military weapons. Considerations of cost,

time of production, risks to participants, risks

ey a

to third parties, and any other factors that

might weigh on the decisions of whether,

when, and how to use a particular weapon, are

uniquely questions for the military and should

be exempt from review by civilian courts.

In re “Agent Orange” Prod. Liab. Litig., 534 F. Supp. 1046,

1054 n.1 (E.D.N.Y. 1982). Accord Shaw v. Grumman

Aerospace Corp., 778 F.2d 736, 740 (11th Cir. 1985), cert.

denied, 487 U.S. 1233 (1988) (“The military contractor

defense is available in certain situations not because a

contractor is appropriately held to a reduced standard of care,

nor because it is cloaked with sovereign immunity, but

because traditional separation of powers doctrine compels the

defense.”’)

Permitting states to second-guess military

procurement decisions through the imposition of state tort

liability on government contractors “will directly affect the

terms of Government contracts: either the contractor will

decline to manufacture the design specified by the

Government, or it will raise its price. Either way, the

interests of the United States will be directly affected.”

Boyle, 487 U.S. at 507. Cf. United States v. Winstar Corp.,

518 U.S. 839, 913 (1996) (Breyer, J. concurring)

(commenting on a different protection for parties to

government contracts that “in practical terms it ensures that

the government is able to obtain needed goods and services

from parties who might otherwise, quite rightly, be unwilling

to undertake the risk of government contracting”).

«43.

il. THE DECISION BELOW CONFLICTS

WITH DECISIONS OF THIS COURT AND

OF OTHER CIRCUITS

1. New York’s limitation of the government

contractor defense conflicts with this Court’s articulation of

the defense in Boyle v. United Technologies Corp., 487 U.S.

500 (1988), and Hercules Inc. v. United States, 516 U.S. 417

(1996). Indeed, the trial court denied Worthington’s

proposed jury instruction that incorporated the language of

Boyle verbatim. The Appellate Division went a step beyond,

holding that the government-contractor defense need not

even go to the jury. App. 3a.

In Boyle, this Court held (487 U.S. at 512) that:

Liability for design defects in military

equipment cannot be imposed, pursuant to

state law, when (1) the United States approved

reasonably precise specifications; (2) the

equipment conformed to those specifications;

and (3) the supplier warned the United States

about the dangers in the use of the equipment

that were known to the supplier but not to the

United States.

Consistent with that standard, the Court explained in

Hercules Inc. v. United States, 516 U.S. 417, 421 (1996), that

the government contractor defense “shields contractors from

tort liability for products manufactured for the Government

in accordance with Government specifications, if the

contractor warned the United States about any hazards

known to the contractor but not to the Government.” Under

this standard, the trial court’s correct and undisturbed finding

that there was no evidence that Worthington knew of a risk to

«Sh.

workers such as respondent should have resulted in entry of

judgment for Worthington. App. 8a.

2. Boyle recognized that the government contractor

defense is necessary to permit the armed forces to procure

effective military equipment in an efficient manner and to

avoid judicial scrutiny of military procurement decisions.

This interest exists regardless of “the label attached to the

claim.” Bailey v. McDonnell Douglas Corp., 989 F.2d 794,

801 (Sth Cir. 1993). For that reason, the federal courts of

appeals have unanimously held that the government

contractor defense applies to state law failure-to-warn claims

as well as to the design defect claims alleged in Boyle.3 But

the courts are directly in conflict and irredeemably

fragmented on how to apply the government contractor

defense to failure-to-warn claims: “[AJll appear to recognize

the applicability of the defense to a failure to warn claim, but

the applications vary widely.” Yeroshefsky v. Unisys Corp.,

962 F. Supp. 710, 717 (D. Md. 1997) (analyzing conflict

among decisions of the Second, Fifth, Sixth, Ninth and

Eleventh Circuits).

3 See Emory v. McDonnell Douglas Corp., 148 F.3d 347

(4th Cir. 1998); Snell v. Bell Helicopter Textron, Inc., 107

F.3d 744 (9th Cir. 1997); Oliver v. Oshkosh Truck Corp., 96

F.3d 992 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997);

In re Air Disaster at Ramstein Air Base, Germany, 81 F.3d

570 (5th Cir.), mod. on other grounds, Perez v. Lockheed

Corp., 88 F.3d 340 (Sth Cir.), cert. denied, 519 U.S. 1028

(1996); Tate v. Boeing Helicopters, 55 F.3d 1150 (6th Cir.

1995); Dorse v. Eagle-Picher Indus., Inc., 898 F.2d 1487

(11th Cir. 1990); In re Joint E. & S. D. New York Asbestos

Litig., 897 F.2d 626 (2d Cir. 1990).

it.

The decision below exemplifies key issues on which

the nation’s appellate courts are divided. For example, the

New York court below engrafted additional requirements on

the three-part Boyle test. The first element in Boyle requires

only that the United States approve reasonably precise

specifications, not that it consider and reject a particular

alternative required by state law. Furthermore, the third

element in Boyle requires only that the contractor warn the

United States about dangers known to the contractor but not

the government; in contrast, the decision below requires the

contractor to warn of all dangers about which the contractor

knows or reasonably should have known. Similarly, the

decision below requires the contractor to show a “significant

conflict” between the particular military specifications and its

state law duty to warn. That standard effectively turns Boyle

on its head. The very purpose of the Boyle test was to define

those circumstances that present a ““‘significant conflict’ ...

between an identifiable ‘federal policy or interest and the

[operation] of state law.’” Boyle, 487 U.S. at 507 (citation

omitted). Adding these additional elements to Boyle narrows

the scope of the protection and allows states to second-guess

military procurement decisions.

3. On the question presented in this case, there is an

acknowledged split among the federal appellate courts. See

Yeroshefsky, 962 F. Supp. at 717-18; Russek v. Unisys Corp.,

921 F. Supp. 1277, 1289 (D.N.J. 1996). Two circuits (the

Fourth and Fifth) strictly apply Boyle to failure-to-warn

claims; two circuits (the Sixth and Seventh) apply Boyle with

slight modification that would have led to a different result

below; two circuits (the Ninth and Eleventh) apply the same

extreme modification of Boyle endorsed by the court below;

and one circuit (the Second) has modified Boyle in a

somewhat ambiguous manner that has been interpreted in

conflicting ways by other courts. Ultimately, the practical

impact of the conflict is that the result in this case would

1’?

have been different if it had been decided by four, and

possibly five, federal courts of appeals.

a. The Fourth and Fifth Circuits have held that

satisfaction of the three-part Boy/e test is itself sufficient to

preempt state law failure-to-warn claims. See Emory v.

McDonnell Douglas Corp., 148 F.3d 347, 352 (4th Cir.

1998) (“Indeed, when the Navy possesses the same

knowledge as its contractor, a requirement that the contractor

provide additional warnings to individual pilots risks

disruption of the chain of command. A contractor cannot be

forced to provide warnings to officers that would contradict

orders received from their superiors”); Smith v. Xerox Corp.,

866 F.2d 135, 137 (Sth Cir. 1989) (affirming summary

judgment in favor of defendant in case involving both design

defect and failure to warn claims, based solely on

establishment of three-part Boyle test and observing that:

“Boyle ... held that the government contractor defense

applies to both negligence and strict liability actions, as well

as to other state law tort claims”).4

4 But see In re Air Disaster at Ramstein Air Base,

Germany, 81 F.3d 570, 576 (Sth Cir.) (“A separate failure to

warn claim may survive the government contractor immunity

defense if the defendant cannot establish ‘an identifiable

federal interest or policy in the existence or methods of

warning and a significant conflict between the federal interest

or policy and the operation of state law.’... However, if the

failure to warn claim is part of the design defect or

unreasonably dangerous product theory of liability, then

government contractor immunity applies”) (emphasis added;

citations and footnote omitted), modified on other grounds,

Perez v. Lockheed Corp., 88 F.3d 340 (Sth Cir.), cert. denied,

519 U.S. 1028 (1996).

b. The Sixth and Seventh Circuits, taking a different

course, have modified the Boyle test with respect to failure-

to-warn claims. Tate v. Boeing Helicopters, 55 F.3d 1150,

1157 (6th Cir. 1995); Oliver v. Oshkosh Truck Corp., 96 F.3d

992, 1003-1004 (7th Cir. 1996), cert. denied, 520 U.S. 1116

(1997) (adopting Sixth Circuit test). The Sixth Circuit’s

modification of Boyle requires that the contractor show

additional government involvement in the decision whether

to give a warning:

When state law would otherwise impose

liability for a failure to warn of dangers in

using military equipment, that law is displaced

if the contractor can show: (1) the United

States exercised its discretion and approved

the warnings, if any; (2) the contractor

provided warnings that conformed to the

approved warnings; and (3) the contractor

warned the United States of the dangers in the

equipment’s use about which the contractor

knew, but the United States did not.

Tate, 55 F.3d at 1157.

The Sixth Circuit test, however, does not go to the

extreme reflected in the decision below. Accordingly, the

Sixth Circuit does not require that the specifications either

dictate or expressly prohibit warnings. /d. (“We reiterate

that the FTCA’s discretionary function exemption delineates

the contours of the defense. Government discretion is

required, not dictation or prohibition of warnings”); accord

Tate v. Boeing Helicopters, 140 F.3d 654, 660-61 (6th Cir.

1998) (“Contrary to plaintiffs’ argument, the government

contractor defense is not narrowly confined to those

situations where a particular military specification directly

conflicts with state law. Instead, the defense applies

wths

whenever state tort liability would otherwise restrict the

government’s ability to exercise its discretion in military

matters. This includes those situations in which the

government makes the informed decision not to include a

specification or require a warning because, in the

government’s view, one would be unnecessary oF

problematic.... Therefore, once the three conditions of the

Tate | analysis has been satisfied, and government discretion

has thus been established, significant conflict exists and the

government contractor defense applies”); Oliver, 96 F.3d at

1004 n.8 (“We cannot accept as consistent with Boyle the

suggestion that there is any strict requirement that the

government ‘prohibit’ warnings altogether or ‘dictate’ the

contents of the warnings actually incorporated”).

c. In contrast to all of these cases, the Ninth and

Eleventh Circuits, as well as the New York court below, have

added to the Boyle test a requirement that the specifications

either dictate the terms of the warning or expressly prohibit

the contractor from adding warnings. In Jn re Hawaii Federal

Asbestos Cases, 960 F.2d 806, 812 (9th Cir. 1992), the Ninth

Circuit held that the government contractor defense was

inapplicable because “the Navy in no way prohibited

[appellants] from placing warnings on their insulation

products,” and “[t]here thus existed no conflict between their

state law duty to provide adequate warnings to the users of

their insulation and the conditions imposed on them pursuant

to the agreements they had entered into with the

Government.” Accord Dorse v. Eagle-Picher Indus., Inc.,

898 F.2d 1487, 1489 (11th Cir. 1990) (per curiam) (finding

no conflict between state-imposed duty to warn and

specifications for asbestos-containing cement used at Navy

shipyard because the specifications, which required standard

commercial packaging, “d{id] not contain any prohibition

against health warnings on the product”).

20.

d. The position of the Second Circuit has been

interpreted in varying ways. In In re Joint Eastern &

Southern District New York Asbestos Litigation, 897 F.2d

626, 633 (2d Cir. 1990), the court remanded for the district

court to determine whether there was a significant conflict

between the military specifications and state law duty to

warn, observing that: “Just as nothing in the relevant

specification discusses product warnings, nothing in the

specification purports to place a limit upon any additional

information a manufacturer may have wished to convey to

those using the product.” Although some district courts have

incorrectly construed this holding to require that the

specifications expressly prohibit warnings, the Second

Circuit opinion does not support such a reading. Rather, the

Second Circuit itself observed that its holding is consistent

with Nicholson v. United Technologies Corp., 697 F. Supp.

598, 604 (D. Conn. 1988), in which the district court held

that when “the government provides ‘reasonably precise’

specifications for the contents of a maintenance manual,” a

contractor cannot “be held liable for deficiencies in the

contents” of the manual. Jd. at 604; see 897 F.2d at 633

(“Nicholson v. United Technologies Corp. is not to the

contrary”). Accordingly, in Oliver v. Oshkosh Truck Corp.,

96 F.3d at 1004 n.8, the Seventh Circuit correctly questioned

whether the Second Circuit “necessarily states a more

stringent standard than the one employed by the Sixth

Circuit.”

e. In contrast to the prevailing view in the federal

courts, some state courts of last resort have held that the

government contractor defense does not apply to failure-to-

warn claims unless the specifications expressly prohibit the

contractor from adding a warning required by state law. See

Miller v. United Technologies Corp., 660 A.2d 810, 836

(Conn. 1995) (“the government contractor defense applies

only if the government dictated with reasonable precision the

content of the initial warnings included in the operational or

maintenance manuals and limited or precluded the

contractor from advising the user of additional information

or revisions”) (emphasis added); Timberline Air Serv., Inc. v.

Bell Helicopter-Textron, Inc., 884 P.2d 920, 930-31 (Wash.

1994) (rejecting argument that “compliance with design

specifications in accord with Boyle gives rise to the common

law defense as to any failure-to-warn claim,” and holding

that “the defense applies in the case of a failure-to-warn

claim only if there are precise government specifications

pertaining to warnings”). See also Feldman v. Kohler Co.,

918 S.W.2d 615, 627 (Tex. Ct. App. 1996) (finding no

“significant conflict between Texas’ failure to warn tort law,

and the requirements imposed by the government” contract

because “there is no showing that warnings of a particular

sort were either required or prohibited”); Jackson v. Deft,

Inc., 273 Cal. Rptr. 214, 221 (Ct. App. 1990) (holding that

the “evidence did not establish as a matter of law the

necessary significant conflict between federal contracting

requirements and state law” because although “certain

warnings were required by the military specifications, ... the

specifications [did not] place[] any limitation on additional

information from the manufacturers to users of their

products”), review denied, 1990 Cal. LEXIS 5536 (Cal. Dec.

12, 1990).

f. These varying standards for application of the

government contractor defense pose important and practical

dilemmas that require resolution by this Court. — First,

imposition of state tort liability on government contractors

for failing to warn users of dangers inherent in military

equipment manufactured in accordance with government

specifications risks disrupting the Armed Forces. A

proliferation of multiple, inconsistent, state-mandated

warnings to members of the armed forces could contradict

the orders of military superiors. This is especially true

where, as here, the state courts do not require a finding as to

what would constitute a sufficient warning, or a finding that

any warning would have been heeded given the Navy’s total

control over the work schedules and working conditions of

its personnel in wartime. App. 34a (“It wasn’t like a regular

job. It wasn’t a union.”). At the very least, such a

cacophony of cautionary warnings would be inimical to good

order and discipline. See Emory, 148 F.3d at 352 (“Indeed,

when the Navy possesses the same knowledge as its

contractor, a requirement that the contractor provide

additional warnings to individual pilots risks disruption of

the chain of command. A contractor cannot be forced to

provide warnings to officers that would contradict orders

received from their superiors.”). This Court has frequently

recognized the importance of discipline and _ instinctive

obedience in the military. For example, in Goldman v.

Weinberger, 475 U.S. 503, 506-07 (1986), the Court

observed that:

[W]e have repeatedly held that “the military

is, by necessity a specialized society separate

from civilian society.” ... “[The] military

must insist upon a respect for duty and a

discipline without counterpart in civilian life,”

... In order to prepare for and perform its vital

role.... The military need not encourage

debate or tolerate protest to the extent that

such tolerance is required of the civilian state

by the First Amendment; to accomplish its

mission the military must foster instinctive

obedience, unity, commitment, and esprit de

corps.... The essence of military service “is

the subordination of the desires and interests

of the individual to the needs of the service.”

(Citations omitted).

Finally, this case provides an opportunity to address

fundamental issues of federalism in a critical national

context. A telling reflection of the centrality of such issues to

our constitutional framework is this Court’s growing docket

of Supremacy Clause preemption cases.) Granting review in

this case would add a dimension to the Court’s current

consideration of federalism issues and allow the Court to

speak in a broader context than the cases currently pending.

5 The currently pending preemption cases in which this

Court has granted review are: Natsios v. National Foreign

Trade Council, No. 99-474 (whether Massachusetts law

preventing state agencies from contracting with companies

that do business in Myanmar is preempted by foreign affairs

power of the national government); Norfolk Southern

Railway v. Shanklin, No. 99-312 (whether state law claims of

negligence based on inadequate warning devices at railway

grade crossing are preempted where warning devices at

crossing were installed with federal funds under a project

approved by the federal government), Geier v. American

Honda Motor Co., Inc., No. 98-1811 (whether state common

law claims that an automobile was defectively designed

because it lacked airbags are preempted where automobile

manufacturer complied with federal motor vehicle safety

standards that permit, but do not require, installation of

airbags in passenger vehicles); International Ass'n of

Independent Tanker Owners (INTERTANKQO) v. Locke, No.

98-1706 (whether Washington law __ prescribing

comprehensive standards for oil tankers is preempted by

federal statutes, regulations, and international treaty

commitments that prescribe different standards and

requirements governing the same subject matters), United

States v. Locke, No. 98-1701 (same).

-23-

2 CONCLUSION

| The petition for a writ of certiorari should be granted.

Respectfully submitted.

JERROLD J. GANZFRIED

Counsel of Record

KAREN L. MANOS

ALEXANDER B. BERGER

HOWREY & SIMON

1299 Pennsylvania Avenue, N.W.

Washington, D.C. 20004

(202) 783-0800

FRANK H. GRIFFIN III

PHILIP W. VOGLER

GOLLATZ GRIFFIN

& EWING, P.C.

16th Floor

Two Penn Center Plaza

Philadelphia, PA 19102

(215) 563-9400

Counsel for Petitioner

Worthington Corporation

December 1999

APPENDIX

APPENDIX A

Decision and Order of the Supreme Court of the State

of New York, Appellate Division, First Department,

dated December 29, 1998

Lerner, P.J., Wallach, Tom, Andras, JJ.

3219-

3220-

3221-

3222-

3223

In re: New York City Asbestos Litigation

Elaine Ronsini, etc.,

Plaintiff-Respondent-Appellant,

Alani Golanski

-against-

Garlock, Inc., et al.,

Defendants,

-and-

Worthington Corporation, et al.,

Defendants-Appellants-Respondents,

Jerrold J. Ganzfried

Roger P. McTiernan

Argentina Cardinal, etc.,

Plaintiff-Respondent-Appellant,

Alani Golanski

-against-

Garlock, Inc., et al.,

Defendants,

John Crane, Inc.,

Defendant-Appellant-Respondent,

William E. Fay, III

Judgments, Supreme Court, New York County (Karla

Moskowitz, J.), entered September 8, 1997, to the extent

appealed from, awarding the Ronsini plaintiff damages

against Worthington Corporation and Atlas Turner, Inc., and

awarding the Cardinal plaintiff damages against John Crane,

Inc., and bringing up for review three separate orders, same

court and Justice, entered on or about June 4, 1997, which,

inter alia, denied defendants’ motions to dismiss the

complaints or, in the alternative, to set aside the verdicts and

direct a new trial, unanimously affirmed, without costs.

Appeals from the aforesaid orders unanimously dismissed,

without costs, as subsumed in the appeals from the

judgments. Plaintiffs’ appeals, unanimously dismissed,

without costs, as abandoned.

In these consolidated actions to recover for

mesothelioma caused by exposure to asbestos, viewing the

evidence in the light most favorable to the prevailing

plaintiffs (Elkins v Ferencz, _ AD2d___, 677 NYS2d 342),

we find that the evidence was sufficient for the jury to

identify that defendant Worthington’s product contained

asbestos components that caused Mr. Ronsini’s injury. There

was evidence that the specifications for the Worthington

component required that it supply enough replacement parts

for there to be Worthington components still in use at the

time of Mr. Ronsini’s exposure, and it was reasonable to

infer that such parts had in fact been supplied and used. It is

therefore unnecessary to reach this defendant’s argument that

it is not responsible for replacement parts manufactured or

supplied by others. Nor was the jury’s determination against

the weight of the evidence (Lolik v Big V_ Supermarket, 86

NY2d 744, 746).

In the absence of any evidence of a conflict between

State warning requirements and any Federal prescription of

label information or proscription of a warning, there was no

basis for Worthington’s requested government contractor

defense charge (see, In re “Agent Orange” Producer Liability

Litigation, 996 F2d 1425, 1436, cert denied 510 US 1140:

Russek v Unisys Corp., 921 F. Supp 1277, 1292). Nor did

this defendant carry its heavy burden of showing that the

Navy’s failure to warn Mr. Ronsini was so extraordinary and

unforeseeable that it broke the chain of proximate causation

(see, Pagowski v Martinez, 197 AD2d 400).

The determination that Atlas Turner components

contributed to Mr. Ronsini’s injury was based upon sufficient

evidence and a fair interpretation of the evidence. In addition

to Mr. Ronsini’s testimony that he saw a 50-60 pound bag

with the name “Atlas”, he testified that Atlas’s cement

insulation was the only such product that he remembers

being used on board the ship where he worked and another

seaman testified to similar effect, thus distinguishing the

instant situation from those in which the person identifying

the product did not see an open bag of the subject product or

know that its contents had actually been used (cf., Cawein v

The Flintkote Co., 203 AD2d 105; Diel v The Flintkote Co.,

204 AD2d 53; see also, In re New York Asbestos Litigation,

212 AD2d 463). Assuming arguendo that the trial court

erroneously excluded evidence tending to show the existence

of similarly-named entities that may have produced asbestos

components, any such error did not influence the verdict

because this evidence would have been cumulative of

testimony that Atlas Turner did not sell its insulting cement

in this country and was prohibited by statute from doing so.

The jury determination that asbestos particles were

released by Mr. Cardinal’s work as a pipefitter also had a

rational basis and was not against the weight of the evidence,

inasmuch as the jury merely acted within its province in

resolving conflicting testimony on this issue.

Admission of the testimony of the late-noticed expert

witnesses was not an improvident exercise of discretion in

view of the failure to show that the failure to identify them

was either willful or prejudicial (Flour City Architectural

Metals v Sky-Lift Corp., 242 AD2d 471). Nor was there any

error in preclusion of the settling defendants’ interrogatories

(see, State Univ Constr, Fund v Kipphut & Neuman Co. , 159

AD2d-1003).

The claimed verdict sheet error is unpreserved

(Vavosa v Stiles, 220 AD2d 363, 364), and there was no

evidence that the jury was confused by the charge on

proximate cause (cf. Aragon v A & L Refrig. Corp. , 209

AD2d 268), which we find to have been adequate. The

comments by plaintiff's counsel now complained of were

either the subject of prompt and appropriate curative

instructions (see, Mena _v New York City Tr. Auth., 238

AD2d 159, 160) or unpreserved (see, Figueroa vy Maternity

Infant_Care Family Planning Project, 243 AD2d 424, ly

denied 91 NY2d 807).

As to the challenge of defendant John Crane, Inc. to

the apportionment of 30% liability against it, this defendant

has not carried its burden of demonstrating the amounts of

the equitable shares attributable to the settling defendants

(see, Bigelow v Acands, Inc., 196 AD2d 436; Zalinka v

, 221 AD2d 830, 831), and

deviate from what is reasonable compensation under the

circumstances.

We have considered defendants’ other contentions

and find them to be unavailing.

THIS CONSTITUTES THE DECISION AND

ORDER OF THE SUPREME COURT, APPELLATE

DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 29, 1998

/s/ Catherine O. Wolfe

CLERK

APPENDIX B

Decision and Order of the Supreme Court of New

York, dated May 20, 1997

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF NEW YORK : IAS PART 26

IN RE: NEW YORK ASBESTOS LITIGATION

FRANK RONSINI,

Index No. 108809/96

Plaintiff,

~against-

GARLOCK, ET AL. DECISION AND ORDER

Defendant.

MOSKOWITZ, KARLA, J.S.C.

”

In this group of mesothalioma “extremis” Cases,

defendant Worthington moves, after phase I and phase II

trials, pursuant to CPLR 4404, for renewal of its trial motions

for dismissal, to set aside the verdict as against the weight of

the evidence, in the interests of justice and, alternatively, for

a new trial on all grounds and to vacate the phase | damages

award of the trial as grossly excessive.

The jury reached a verdict in phase I on December 5,

1996 and in phase II on December 26, 1996.

Courts are reluctant to interfere with jury verdicts

unless damages are clearly excessive or a verdict is not

supported by the evidence.

Here, Worthington’s primary argument is_ that

plaintiff failed to prove that any asbestos supplied by

Worthington was inhaled by Mr. Ronsini. Worthington’s

attorneys argued vigorously on this issue as well as the others

now raised during trial and | find no reason to change the

rulings I made then. The primary issue was left for the trier

of fact. The jury unanimously found for the plaintiff and had

sufficient competent evidence before it that plaintiff Frank

Ronsini was occupationally exposed to defendant

Worthington’s products; that its asbestos-containing products

were defective and they were a proximate cause of Mr.

Ronsini’s injuries. The jury thus credited Frank Ronsini’s

testimony that he was the only one who could work the

Worthington air compressor and how the pumps and gaskets

needed removing, scraping and chipping and the dust created.

I believe that I did not commit any error in excluding

or including evidence, expert or other, or in charging the

jury. The issues Worthington raises, including the “Navy”

defense, require no further discussion except for the jury’s

finding of recklessness.

The New York State Court of Appeals has just

handed down a decision affirming lower courts’ decisions

setting aside juries’ findings of reckless disregard for

workers’ safety and assessments of punitive damages. In the

M ‘New York City As tie - lia Mal

Westinghouse Elec. Corp.; (and another action), __ NY2d

__, NYLJ, Feb. 13, 1997, at 27, col 4. In affirming, the

Court defined the level of conduct required to support a

finding of recklessness or of gross negligence: “*The actor

has intentionally done an act of an unreasonable character in

disregard of a known or obvious risk that was so great as to

make it highly probable that harm would follow’ and has

done so with conscious indifference to the outcome” (Inre

N.Y.C. Asbestos Litig., supra). The Court applied that

standard and found the evidence insufficient, at most

revealing “Westinghouse’s general awareness that exposure

to high concentrations of asbestos over long periods of time

could cause injury, but not that workers such as Maltase or

Stallone were at risk at any time it could have warned them.”

Id.

In this action, although plaintiff introduced evidence

of Worthington’s involvement in the heating and ventilation

industry and placement of ads in the industry’s magazine at

the relevant time period, that is too circumstantial to support

a finding of recklessness. There is no evidence in the record

that Worthington knew of the risk of the asbestos containing

product the jury found that Frank Ronsini used to workers

like him so that Worthington “could have warmed him.”

Therefore, the jury’s finding of recklessness is set aside as

speculative.

Defendant Worthington also moves to reduce the

jury’s 11% apportionment against Worthington in phase II.

While various arguments are made about Ronsini’s exposure

to Worthington’s product as opposed to similar products,

plaintiff placed sufficient evidence before the jury for it to

conclude, as it did, that 11% was the appropriate percentage

of contribution. Thus, I decline to disturb the percentage.

Defendant Worthington questions its responsibility

for the bankrupt shares. The issue of what, if any,

responsibility the non-settling defendants bear for the

bankrupts — Manville and GAF — is controlled by the

decision in In re Brooklyn Navy Yard Asbestos Litig., 971

F2d 831 (2nd Cir. 1992), Article 16 of the CPLR and GOL §

15-108.

if the jury’s finding of recklessness had stood,

defendant Atlas Turner would have been liable for those

shares. CPLR 1602(7).

Because I have set aside the jury’s finding of

recklessness, CPLR 1602(7) precludes joint and several

liability for non-economic loss.

However, CPLR 1601(1) states the following as

relevant:

“Limited liability of persons jointly liable

1. Notwithstanding any other

provision of law, when a verdict or decision

in an action or claim for personal injury 1s

determined in favor of a claimant in an action

involving two or more tortfeasors jointly

liable or in a claim against the state and the

liability of a defendant is found to be fifty

percent or less of the total liability assigned

to all persons liable, the liability of such

defendant to the claimant for non-economic

loss shall not exceed that defendant’s

equitable share determined in accordance

with the relative culpability of each person

causing or contributing to the total liability

for non-economic loss; provided, however

ion (or in a claim against

the state, in a court of this state).

2. Nothing in this section shall be

construed to affect or impair any right of a

tortfeasor under section 15-108 of the general

obligations law.” {Underlining added].

Decisional law places a bankrupt party within this

definition because, “although it [a bankrupt] is subject to

suits, the automatic stay precludes processing a claim against

[it}” (In_re Brooklyn Navy Yard Asbestos Litig., supra, at

846. Thus, the total shares of fault the jury attributed to the

bankrupts — Manville and GAF - cannot be subtracted from

the total liability in determining the equitable shares for non-

economic loss of non-settling defendants Atlas Turner and

Worthington.

Atlas Turner also moves to reduce the jury’s verdict

in phase I as excessive. The jury awarded four million

dollars ($4,000,000) for pain and suffering to date and two

million, five hundred thousand dollars ($2,500,000) for six

months of future pain and suffering. The jury also calculated

future lost earnings over 23 years at two million dollars

($2,000,000).

Atlas Turner contends that one million, two hundred

thousand dollars ($1,200,000) for past and three hundred

thousand ($300,000) for future pain and suffering are

adequate.

I have reduced awards in other mesothelioma actions

and do so here so that the verdict is consistent with other

aad

E24

rey:

a”

lla

decisions in this jurisdiction. Thus, the award for past pain

and suffering is reduced from four million dollars

($4,000,000) to three million, five hundred thousand dollars

($3,500,000) and for future pain and suffering from two

million, five hundred thousand dollars ($2,500,000) to one

million, five hundred thousand dollars ($1,500,000). Thus,

Frank Ronsini is relatively young (46 years), was in

otherwise excellent health, had strong employment prospects

and a previous vigorous lifestyle. Mr. Ronsini’s testimony

(by videotape) showed a strong, articulate man who was fully

aware of what he had already been through and would have

to endure in the future. He had symptoms of the disease

beginning in November, 1994. By the time of trial, he had

fought the disease for more than two years, a relatively long

time, and undergone several procedures. The jury had ample

basis to make its awards, as reduced. The awards deviate

from reasonable compensation only to the extent found. The

awards, as reduced, for pain and suffering do not materially

deviate from reasonable compensation for this disease for

this length of time for such a relatively young man. In

addition, there was support in the record for the award of

future lost wages based on Dr. Tinari’s evaluation.

I have considered the remainder of Atlas Turner’s

contentions and they are denied.

To summarize, defendant’s motion is granted to the

extent of striking the jury’s finding of recklessness in phase

II. The damages in phase I are reduced as directed and the

motion is otherwise denied. The parties are directed to serve

and submit any proposed judgments to Part 26 by June 20,

1997 and counter judgments by June 27, 1997. Attorneys are

to appear in IA Part 26 for a hearing on any contested issues

concerning the molding of the judgment on July 10, 1997 at

2:00 PM.

The foregoing is the order of the Court.

12a

Copies to all counsel before filing and entry.

Dated: 5/20/97

/s/ Karla Moskowitz

KARLA MOSKOWITZ, J.S.C.

Sh i eS oth a aS Sale a dl Sa

13a

APPENDIX C

Verdict Sheet, Supreme Court of the State of New York

[reprinted in CA App. 746-753]

A 746

Exhibit C, Ronsini Damages Verdict Sheet

(pages A746 through A747)

Justice Karla Moskowitz December, 1996

IAS Part 26

FRANK RONSINI CASE, INDEX WO. 108809/96

Questions for the Jury

$. State the amount, if any, awarded to FRANK RONSINI for pain

and suffering up to the date of your verdict.

$ =A G0 ,00 2

Dissenting Juror (if any)

2. State the asount, if any, awarded to FRANK RONSINI for future

pain and suffering.

+3, S00, 090

over _E_ months

Dissenting Juror (if any) L KE

3. Set forth the amount awarded for lost earnings up to the date

of your verdict.

Dissenting Juror (if any) pean cc

4. Set forth the amount awarded for future lost earnings from the

date of your verdict until he could be expected to stop

working.

OOY

over years

Dissenting Juror (if any)

sed medical and

Ss. Set forth the armount avarded for past unreiabur

ancillary expenses.

s_ AS vve

en,

Dissenting Juror (if any)

Notify Court Officer you have reached a verdict.

Jurors Signatures:

Juror 1 Juror 2

Juror 3 Juror 4

Juror 5 Juror 6

«wed! coun: ga ®

pence RRRANOHNAT NE

SA Sn ic RA Aa a ae re ak RR Sa

SAAR LR LONG BAERS ILLIA DIRE AEE EN EHR IIE

lSa

A 748

Exhibit D, Ronsini Liability Verdict Sheet

(pages A748 through A753)

Justice Karla Moskowitz (~~ Gi) @® December, 1996

IAS Part 26

FRANK ROMSINI CASE, INDEX WO. 108809/96

Questions for the Jury

la. Was FRANK RONSINI occupationally exposed to any asbestos-~

containing products manufactured, distributed or sold by Atlas

Turner Inc.?

Yes No

Dissenting Serer (if any) Mont

If your answer is "No", skip to 2a.

1b. If you answered “YZS", vere the asbestos-containing products

of Atlas Turner Inc. defective because of lack of warnings?

Yes / Ko.

Dissenting Juror (if any) __#27¢

If your answer is “No", skip to 2a.

lc. If you answered "YES", were Atlas Turner Inc.’s asbestos-

containing defective products a proximate cause of FRANK

RONSINI’s injuries?

Yes / No

Dissenting Juror (if any) Node

. Answer the next question.

2a. Was FRANK RONSINI occupationally exposed to any asbestos~

containing products manufactured, distributed or sold by

Worthington Corporation?

Yes Jv No

Dissenting Juror (if any) Now

If your answer is "Wo", and answered "WO" to either

la, ib or lc, go no further.

16a

A 749

2b. If you answered *YES" to 2a., were the asbestos-containing

products of Worthington Corporation defective because of lack

of warnings? .

Yes er

Dissenting Juror (if any) Nowe

If your answer is "No", and answered "NO" to either

la, 1b or 1c, go no further.

2c. If you answered "YES" to 2b., was the failure to warn by

Worthington -Corporation‘s asbestos-containing defective

products a proximate cause of FRANK RONSINI’s injuries?

Yes f No

Dissenting Juror (if any) Hel

If your answer is "No", and answered "NO" to either

la, ib or lc, go no further.

3. If you answered "YES", was FRANK RONSINI exposed to any

asbestos-containing products manufactured, distributed or sold

by any of the following companies? '

If your ansver is "yes", check Box 3a- next to company

name below.

Dissenting Juror (if any)

3b. 3c.

Company

Eagle Pitcher

R. K. Porter

Johns Manville Corp.

Keasbey & Mattison

Keene Corp.

Nicolet Industries Inc.

philip Carey Mfg. Co.

Unarco Industries

tien

ieee

17a

A 750

3b. For each ys as to which you checked off Box 3a. above in

ansver to Question 3, were the asbestos-containing products of

the company defective because of lack of warnings?

If your answer is "Yes", check Box 3b. next to company

name above.

Dissenting Juror (if any) Z aft

3c. For each company as to which you checked off Box 3a. and 3b.

in answer to Questions 3a. and 3b., was the company‘s

asbestos-containing defective products @ proximate cause of

injury to FRANK RONSINI?

If your answer is "Yes", check Box 3c. next to company

name above.

Dissenting Juror (if any) pot

4. If you answered "YES", was FRANK RONSINI exposed to any

asbestos-containing products manufactured, distributed or sold

by any of the following companies?

If your answer is "Yes", check Box 4a. next to company

name belov.

Dissenting Juror (if any) pers

4a. 4b. 4c.

Failure Proxcimate

Company Exposed to Warn cause

Armstrong Cork & Seal Co.Inc. Pav kom oe AE Ye

Detroit Diesel Corporation / J J

General Motors Corporation pe eae a ——

Fiberboard Corporation if aioe ne ee it

GAF Corporation / Ruberoid / / ae

Garlock, Inc. / / :, ean

General Electric Co. / ae mY aa

IMO Industries, Inc.

Delaval ' ae a ae is

A 751

Ingersoll] Rand Company J edn

Owens-Corning Fiberglass Corp. J oe

Pittsburgh Corning Corp. / J

(Onibestos)

Raybestos Manhattan Inc.

The Anchor Packing Co.

Volkswagen of Ametica Inc. /

Volkswagen AG

4b.

4c.

—

n—

Meh HS

For each company as to which you checked off Box 44. above in

ansver to Question 4, vere the asbestos-containing s of

the company defective because of leck of warnings

If your answer is “yee", check Box 4b. next to company

name above.

Dissenting Juror (if any) per

For each company as to which you checked off Box 4a. and 4b.

in answer to Questions 4a. and 4b., was the company’s

asbestos-containing defective products a proximate cause of

injury to FRANK RONSINI?

If your anever ie "Yee", check Box 4c. next to company

name above.

Dissenting Juror (if any) hale

For defendant Atlas Turner Inc., Worthington Corporation and

for each of the companies for which you checked all three

boxes in answer to Questions J4., 3b., 3c., 48., 4D. and 4c.,

atate the percentage of responsibility that that company bears

tor FRANK RONSINI‘s injury. The percentages sust total 100%.

Company Percentags

Atlas Turner Inc. aan a

Worthington Corporation i :

Arastrong Cork & Seal Co.Inc. 35 Xv

Detroit Diesel Corporation / 5

General Motors Corporation a

Gyre > >

EPO Dg Gee

Va veg

PO Py res f Tt Fe

sab AO the Solan

wag any Ai

Delt, idk ee

‘

Eagle Pitcher

Fiberboard Corporation

GAF Corporation / Ruberoid

Garlock, Inc.

Genera) Electric Co.

Gould Fumps Inc.

u@. K. Porter

IMO Industries, Inc. /

Delaval

Ingersoll Rand Company

Johns Manville Corp.

Keasbey & Mattison

Keene Corp.

Wicolet Industries Inc.

Owens-Corning Fiberglass Corp.

Philip Carey Mfg. Co.

pittsburgh Ccrning Corp.

(Unibestos)

Raybestos Manhattan Inc.

The Anchor Packing Co.

Unarco Industries

Volkswagen of America Inc. /

Volkswagen AG

TOTAL:

Dissenting Juror (if any) __sle*

’

v.5 &

3 ‘

5 t

_ «

| or

at.

> aor

e. aee

4 t

3 :

ee | %

4 :

3 a

‘vee

4 :

ul :

Be s

< a

200, *

Was the conduct of Atlas Turner Inc. reckless with respect to

the wisias oF warn?

Yes No

Dissenting Juror (if any) Pkaa c

ae Nn

20a

A %53

9 Was the conduct of Worthington Corporation reckless with

respect to the failure to warn?

Yes RE ee

Dissenting Juror (if any) jrdb

Notify Court Officer you have reached @ verdict.

Jurors Signatures:

Juror 1 Juror 2

Juror 3 4 Juror 4

Juror 5 Juror 6

SFE a, Nace Le

SSA ii EAR eR et AE

2la

APPENDIX D

Judgment of the Supreme Court of New York, dated

September 8, 1997

SUPREME COURT OF THE

STATE OF NEW YORK

COUNTY OF NEW YORK

ee PIS Fe errr et TT ee xX

IN RE: NEW YORK CITY ASBESTOS

LITIGATION

educdedddds sand sedeebudetaudq xX

THIS DOCUMENT RELATES TO

Index No.: 108809-96

ELAINE RONSINI. Executrix of the

Estate of FRANK RONSINI.

Assigned To Hon.

Plaintiff, Karla Moskowitz

-against- JUDGMENT

GARLOCK, INC., H&A

CONSTRUCTION; ASBESTOSPRAY

CORP; ROBERT A. KEASBEY CO.;

COMBUSTION ENGINEERING, INC.,

U.S. MINERAL PRODUCTS, CO.;

OWENS-CORNING FIBERGLAS, CORP;

ROCKWOOL MANUFACTURING CO.;

THE ANCHOR PACKING COMPANY;

FOSTER WHEELER ENERGY CORP.;

PITTSBURGH-CORNING CORP.;

RAPID-AMERICAN CORPORATION as

successor-in-interest to Phillip Carey

Manufacturing Corp.; JOHN CRANE, INC.;

A.W. CHESTERTON CO., INC.; ATLAS

TURNER, INC.; ALLIED CORPORATION

as Successor in-interest to The Bendix

Corporation; WESTINGHOUSE

ELECTRIC CORPORATION;

WESTINGHOUSE ELECTRIC

CORPORATION; WORTHINGTON

22a

CORPORATION; RUTLAND FIRE CLAY

COMPANY db/a_ Rutland Products;

GENERAL ELECTRIC COMPANY;

UNIROYAL, INC., IMO {NDUSTRIES,

INC. as successor to and formally known as

Delaval Turbine, Transamerica Delaval and

IMO Delaval; YORK INDUSTRIES

CORPORATION, STANDARD

INSULATION COMPANY; CROWN

CORK & SEAL CO., INC.; INGERSOLL-

RAND COMPANY; GOULD PUMPS,

INC.; QUAKER CHEMICAL

| CORPORATION; SELBY BATTERSBY &

| COMPANY: GENERAL MOTORS

CORPORATION; DETROIT DIESEL

CORP. as successor to Detroit Diesel

Allison Division of General Motors;

VOLKSWAGEN OF AMERICA, INC.,

Www VENTURE CORPORATION,

formerly known as or as successor to

WORLD WIDE VOLKSWAGEN

CORPORATION; VOLKSWAGEN WERK

AKTIENGESELLSCHAFT, RAYMARK

INDUSTRIES, INC.

PITTSBURGH CORNING INDEX NO. 591585

CORPORATION,

Third-Party Plannff,

-against-

AP GREEN INDUSTRIES, INC., ABEX

CORPORATION; ARMSTRONG WORLD

INDUSTRIES, INC., GAF CORPORATION,

GENERAL REFRACTORIES COMPANY,

INC.,; HARBISON WALKER

REFRACTORIES, NORTH AMERICAN

REFRACTORIES COMPANY; PLIBRICO

SALES & SERVICE COMPANY, UNITED

STATES GYPSUM CO., VOLKSWAGEN

OF AMERICA, INC.; THOMAS

PE rT ea

23a

O'CONNOR & COMPANY, _ INC;

AMERICAN PREMIER, INC.,

Third-Party Defendants.

RAPID AMERICAN CORPORATION, INDEX'NO. 591496

Third-Party Plaintiff,

-against-

RAYMARK INDUSTRIES, INC.,

Third-Party Defendants.

OWENS CORNING CORPORATION, «INDEX NO. 591585

Third-Party Defendants.

-against-

ARMSTRONG WORLD INDUSTRIES,

é INC., formerly Armstrong Cork Company

e and Armstrong Contracting and Supply;

: TURNER & NEWALL, INC., individually

: and as successor to Turner & Newall PLC,

and as alter ego of Keasbey & Mattison

s Company and Bel Asbestos Mines, Ltd.,

i GAF CORPORATION, individually and as

successor tot he Ruberoid Co. and Vermont

Asbestos Corporation, BENJAMIN

FOSTER, INC.; EASTERN

REFRACTORIES, INC., and RAYMARK

INDUSTRIES, INC., individually and as

successor to Raybestos Manhattan, Inc.,

Third-Party Defendants.

WHEREAS, plaintiff Frank Ronsini, having settled

and discontinued this personal injury action against A.W.

Chesterton, Foster Wheeler Corporation, Garlock, Inc., The

Anchor Packing Company, Combustion Engineering, Inc.,

24a

IMO Industries, Inc., General Electric Corporation, Ingersoll-

Rand Company, Crown Cork & Seal Co., Inc., Rapid

American Corporation, Gould Pumos, Inc., Pittsburgh

Corning Corp., Allied Signal Corporation, Uniroyal, Inc.,

General Motors Corp. (for Detroit Diesel Corp.). Owens-

Coming Fiberglas Corp., Volkswagen of America, Inc.,

W.W. Venture Corp., and Volkswagen Werk Aktien-

Gesellschaft:

AND, the action against the defendant, Rockwool

Manufacturing Co. and Standard Insulation Co. having been

stayed due to said defendants’ bankruptcy:

AND, the Court having dismissed plaintiff's action

against Selby Battersby & Company, Quaker Chemical

Corporation, Westinghouse Electric Corporation, and John

Crane, Inc., Rutland Fire & Clay Company, and York

Industries Corporation:

AND, a Stipulation of Dismissal having been filed in

plaintiff's action against H&A Construction, Asbestospray

Corp., Robert A. Keasbey Co., U.S. Mineral Products Co.,

and Empire Ace Insulation Co.;

AND, the trial of this action having proceeded against

ATLAS TURNER INC., and WORTHINGTON

CORPORATION;

AND, the issues in the above entitled action having

duly come on for trial before the Hon. Karla Moskowitz, a

Justice of this Court, and a jury, at a Special Term, Part 26 of

this Court held at the courthouse thereof, located at 60 Centre

Street on or about the 12th day of November, 1996, the

plaintiff, FRANK RONSINI, having duly appeared by his

attorneys, Levy, Phillips & Konigsberg, L.L.P., and the

defendant Atlas Turner, Inc., by its attorneys Barry,

McTiernan & Moore, and the defendant Worthington

25a

Corporation by its attorneys Costello. Shea & Gaffney and

the issues having been duly tried and the jury on the 25th day

of December, 1996 having found defendants ATLAS

TURNER, INC. and WORTHINGTON CORPORATION,

jointly and severally liable for compensatory damages and

having rendered a compensatory damage award in favor of

the plaintiff in the sum of Eight Million Eight Hundred Five

Thousand One Hundred Eighty Two ($8,805,182) Dollars

against defendants ATLAS TURNER INC. and

WORTHINGTON CORPORATION and the jury having

apportioned the equitable share of the damages pursuant to

the General Obligations Law § 15-108, as set forth in the

Special Verdict Form;

AND, upon consideration of motions by the parties,

the Court issued a Decision and Order dated May 20, 1997

reducing the past and future pain and suffering amounts to

$3,500,000 (from $4,000,000) and $1,500,000 (from

$2,500,000) respectively and further striking the jury’s

finding of recklessness, thus yielding a total reduced verdict

of $7,305,182;

IT IS NOW, ORDERED, ADJUDGED AND

DECREED that the Judgment rendered in this action dated

August 15, 1997 is hereby withdrawn and rescinded:

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that all claims against all defendants, third-party

defendants and other like parties except defendants

Worthington Corporation and Atlas Turner, Inc. are hereby

severed;

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that plaintiff, Elaine Ronsini, as Executrix for

the Estate of Frank Ronsini, residing at 9 Chestnut Street,

Cornwall, New York 12518, has judgment severally against

defendant Worthington Corporation (2001 Ross Avenue, -

26a

Dallas Texas 75201) only for non-economic damages in the

lump sum of Seven Hundred Forty-Eight Thousand

($748,000) Dollars, plus post-verdict interest as accumulated

from December 26, 1996 to entry of judgment in accordance

with C.P.L.R. §5002, 5004 in- the sum of

BE Dollars,

making in all the sum of $785,145.88 ( _) Dollars that

the plaintiff has execution severally against defendant

Worthington Corporation thereof and:

iT IS FURTHER ORDERED, ADJUDGED AND

DECREED that plaintiff Elaine Ronsini, Executrix of the

Estate of Frank Ronsini, has judgment severally against

defendant Atlas Turner, Inc. (854 Boulevard, Quellet West,

Thetford Mines Quebec G6G785) only, for non-economic

damages in the lump sum of Eight Hundred Sixteen

Thousand Five Hundred ($816,500) Dollars, plus post verdict

interest which has accumulated from December 26, 1996 to

entry of Judgment in the sum of $40,547.62 (_____)

Dollars, making in all the sum of $857,047.62 (__ )

Dollars that the plaintiff has execution severally against

defendant Atlas Turner, Inc. thereof and;

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED, that plaintiff Elaine Ronsini, Executrix of the

Estate of Frank Ronsini further has judgment against

defendants Atlas Turner, Inc. and Worthington Corporation

jointly and severally as follows:

a) Five Hundred Forty One Thousand Thirty-

Four ($541,034) Dollars in a lump sum plus post-verdict

interest accumulating from December 26, 1996 to entry of

judgment in accordance with C.P.L.R. § 5002, 5004, in the

sum of ($34,151.84) Dollars, plus costs and disbursements as

taxed in the sum of $4440.50 ( ) Dollars, plus post-

verdict interest on the present value of the annuity contract

($471,099) accumulating from December 16, 1996 to entry

27a

of judgment in accordance with C.P.L.R. § 5002, 5004, in the

sum of ($29,737.32) Dollars, making in all the sum of

$609,363.66 ( _) Dollars that the plaintiffs has

execution jointly and severally against defendants Atlas

Turner, Inc. and Worthington Corporation thereof,

b) Defendants (or their insurance carriers) are

directed to purchase an annuity contract — the present value

of which is deemed to be $471,099 (which will reflect the

provisions of C.P.L.R. § 5035 and a copy of which shall be

provided to plaintiff's attorney), issued by a qualified insurer,

approved and designated as qualified by New York’s

Superintendent of Insurance — to be approved by the Court,

which will provide for annual payments in equal monthly

installments, in advance to the plaintiff starting at $26,876

per year for 23 years, increased annually at 4% compounded

annually, and it is further.

Judgement signed this 8 day of Sept, 1997

/s/_ Karla Moskowitz

KARLA MOSKOWITZ, J.S.C.

/s/

CLERK

28a

APPENDIX E

Order of the Supreme Court of the State of New

York, Appellate Division, First Department, denying

Worthington Corporation’s Motion for Reargument

or Leave to Appeal, dated May 18, 1999

At a Term of the Appellate Division of the Supreme

Court held in and for the First Judicial Department in the

County of New York, on May 18, 1999

Present — Hon. Richard W. Wallach Justice Presiding

Alfred D. Lerner

Peter Tom

Richard T. Andrias _ Justices.

Inre: New York City Asbestos Litigation

Elaine Ronsini, etc.,

Plaintiff-Respondent-Appellant,

-against-

Garlock, Inc., et al.,

Defendants,

-and-

Worthington Corporation, et al., ;

Defendants-Appellants-Respondents,

Argentina Cardinal, etc.,

Plaintiff-Respondent-Appellant,

-against- Index #108440/96

Garlock, Inc., et al.,

29a

Defendants,

John Crane, Inc.,

Defendant-Appellant-Respondent.

Defendants-appellants, Worthington Corporation,

John Crane, and Atlas Turner, Inc., having separately moved

for reargument of, or in the alternative, for leave to appeal to

the Court of Appeals from, the decision and order of this

Court entered on December 29, 1998 [Appeal Nos. 3219-

3220-3221-3222-3223],

Now, upon reading and filing the papers with respect

to the motions, and due deliberation having been had thereon,

It is ordered that the motions be and the same hereby

are denied in their entirety.

ENTER:

/s/ Catherine O. Wolfe

Cler

30a

APPENDIX F

Decision of the State of New York Court of Appeals,

denying Worthington Corporation’s Motion for Leave

to Appeal to the Court of Appeals,

dated September 16, 1999

State of New York,

Court of Appeals

Ata session of the Court, held at Court of

Appeals Hall in the City of Albany

on the sixteenth day

of September 1999

Present, HON. JUDITH S. KAYE, Chief Judge, presiding.

1-10 Mo. No. 784

In the Matter of New York City

Asbestos Litigation

Elaine Ronsini, &c.,

Respondent,

Vv.

Garlock, Inc., et al.,

Defendants,

and Worthington Corporation,

Appellant,

and Atlas Turner, Inc.,

Respondent.

(And another action.)

A motion for leave to appeal to the Court of Appeals

in the above causes having heretofore been made upon the

3la

part of the appellant herein and papers having been submitted

thereon and due deliberation having been thereupon had, it is

ORDERED, that the said motion be and the same

hereby is denied with one hundred dollars costs and

necessary reproduction disbursements.

/s/ Stuart M. Cohen

Stuart M. Cohen

Clerk of the Court

32a

APPENDIX G

Provisions of the Constitution of

the United States of America

Article 1, Section 8, Clauses 1, 12-14:

The Congress shall have the Power...

To raise and support Armies, but no

Appropriation of Money to that Use shall be

for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and

Regulation of the land and naval Forces;

Article Il, Section 2, Clause 1:

The President shall be Commander in Chief of

the Army and navy of the United States...

Article VI, Clause 2:

This Constitution, and the Laws of the United

States which shall be made in Pursuance

thereof: and all Treaties made, or which shall

be made, under the Authority of the United

States, shall be the Supreme Law of the Land;

and the Judges in every State shall be bound

thereby; any Thing in the Constitution or

Laws of any State to the Contrary

notwithstanding.

eT eee eer

33a

APPENDIX H

Excerpts From the Trial Testimony of Frank Ronsini

(November 1, 1996) ,

[reprinted in Plaintiff's CA App. 157-159]

Q. Did there ever come a time when you were in

the engine room on either the Weeks or the Gearing where

you would actually try to get to a vent so that you could

breathe better?

A. Yes.

Q. Why was that, sir?

A. Because the temperature was so high.

Q. And did you ever try to get some fresh air and

just get out of the engine room; or you couldn’t do that?

A. I don’t think anybody ever ran out of the

engine room.

Q. Is that because you were assigned there by the

officer and you were expected to be below deck?

A. I would think so.

Q. Was there any kind of air conditioning on the

ship, because you mentioned that you did some work on air

conditioning?

A. Yes, there was.

34a

Q. Was that air conditioning in the engine room?

A. No.

Q. Where was the air conditioning that you

worked on?

A. Officers’ quarters.

Q. So the engine room was never air conditioned

on either ship?

A. No, sir.

Q. Now, the air conditioning work you did, did

that bring you into contact with any type of asbestos?

A. Not that I can remember.

Q. What about ducts or pipes, duct work, things

like that? Was that covered with any type of asbestos

material?

MR. BILLIG: Objection.

THE WITNESS: The ducting work, I don’t

remember; but I myself did not do work on the

ducting work.

BY MR. REICH:

Q. Did you ever complain to anyone in the Navy

about any of these dust conditions?

A. No.

Q. Any reason why?

A. It wasn’t like a regular job. It wasn’t a union.

ee ee a ne rome

35a

Q. Now, let me just go back for a moment. The

brake dust that, or the dust that you indicate came from the

brake jobs you did: Did you ever have that brake dust

analyzed?

Did you ever ask an expert or did your lawyer

to your knowledge ever have an expert speak to you about

what the dust was made of?

MR. KOMITOR: I’m going to object;

attorney-client privilege.

MR. REICH: | will rephrase to work product.

MR. KOMITOR: I will object to that

question.

BY MR. REICH:

Q. Did you ever personally come to have

knowledge as to what this dust was that you were exposed at

Xaviers consisted of?

A. Not personally, no.

Q. Did anyone who worked with you as a

mechanic ever tell you that they analyzed or had analyzed the

dust?

A. No.

Mora

APPENDIX I

Excerpts From the Trial Transcript (November-

December 1996)

jreprinted in Joint CA App. 743-747|

Castleman - Plaintiff - Cross/Garry

Q. And you've in fact testified as to the state of

knowledge of the United States government as to asbestos

diseases and the cause of asbestos disease, have you not?

A. Yes. | mean it’s a little vague to talk about

the United States Government. I mean obviously, the

Library of Congress had all the literature, but that doesn't

mean anybody in United States Government knew everything

in the Library of Congress.

Certainly you know, you testified as of 1919 the IS

Bureau of Labor Statistics, published a study that spoke to

the dangers of asbestos and the connection between asbestos

exposure and disease, correct?

A Yes.

Q. And the United States government

from time to time after 1918, published a variety of different

materials that demonstrated the knowledge of the United

States government through its various agencies as to the

dangers of asbestos and the connection between asbestos and

certain disease processes, correct?

A. Right.

37a

Q. And in addition to just the United States

government as an entity, through whatever agencics you've

devoted a section of your book to, the knowledge that the

United States Navy had with respect to the dangers of

asbestos and the association between asbestos and certain

disease processes, did you not?

A, Yes.

Q. And in fact, in the portion of your book

devoted to the United States Navy, you make reference to a

publication called Safety Review, occupational health

hazards derived -- I'm sorry Safety Review from 1947

volume 4, page 13, January 1947.

Do you recall that?

A. I hope I got the reference right. Yes, I recall

it.

Q. And in that particular publication in 1947, is it

not correct that the United States Navy, in it's own

publication, indicated that activities engaged in the handling

of asbestos installation and pipe covering should thoroughly

investigate the environmental conditions under which these

operations are performed, taking the necessary dust counts

and checking existing ventilation facilities to insure that the

hazard is being effectively and continuously controlled in

those instances where mechanical exhaust ventilation must

be supplemented by the wearing of personal protective

equipment.

Personnel exposed to such hazards should be

furnished the Navy half mask confirming to bureau ships, it

goes on to describe the particular personal mask or personal

respirator type equipment that the Navy recommended,

correct?

38a

A. I think so, yes. I haven’t looked at this in

awhile, but that sounds like what it would have conveyed.

THE COURT: There is a question about what

page this is from that you were reading from.

Counsel, what page are you reading from, for

the record, please, and has this document been marked for

identification?

MR. GARRY: I'll mark it, your Honor.

THE COURT: Deemed? Are you asking,

somebody? K? What are we up to.

MR. GARRY: I think we're up to J on ours.

THE COURT: Deemed J. Deemed.

What page is this.

MR. GARRY: 13 of the safety review, 1947,

published by the United States Department of the Navy.

Q. Correct?

A Yes.

Q. So I am correct, doctor, am | not, that the

United States Navy, as early as 1947, was aware of the

association between asbestos and disease and the need to

protect workers in the navy by the use of appropriate

ventilation systems, and where appropriate, respiration

devices and the appropriate checking of dust levels in the

naval work environment, correct?

A. Yes.

MR. GARRY: That's all I have.

39a

CROSS-EXAMINATION

BY MR. McTIERNAN:

Q. Doctor, in respect to your book, was your

book written before or after you got your doctorate?

A. It was the same as my doctoral thesis. It was

published a few months before the doctoral thesis was

accepted by the faculty committee.

Q. And you indicated to one lawyer that a group

of plaintiffs’ lawyers had in affect been supporting you for

the better part of four years while you were doing this work?

A. That’s your characterization.

{END OF EXCERPT]

40a

{reprinted in Joint CA App. 772-773}

Castleman - by Plaintiff - Recross/Garry

RECROSS-EXAMINATION

BY MR. GARRY:

Q. Dr. Castleman, the Fleischer article from 1943

that you mentioned --

MR. KOMITOR: Objection, your Honor,

beyond the scope of redirect.

THE COURT: Overruled.

That was a --

A what?

The Fleischer study from 1943?

Fleischer study? That was 1946.

eo + 2

I’m sorry, that was published by commission

of the United States Navy?

A. Right, but with the disclaimer that it did not

represent the opinion of the navy.

Q. But published by commission of the United

States Navy, correct?

A. _ Right.

[END OF EXCERPT]

* * *

4la

[reprinted in Joint CA App. 1118]

Proceedings

THE COURT: It is overruled.

MR. BLUTMAN: 130, 20 to 22. Your

Honor --

MR. KOMITOR: I will tell you, Judge, I’ve

told counsel that I am withdrawing my design defect

claim, they claim that I didn’t have one, so rather than

dispute about it, we only have going on failure to

warn.

I’ve withdrawn all the questions that we

talked about in terms of the kinds of substitutions,

what was available, I took out of Mr. Arsi’s

deposition.

This I want to keep in because it’s still

important to know if Mr. Arsi believes to this day

whether you even need to substitute asbestos. That’s

an important question.

That’s an important question --

THE COURT: I sustain the objection. Next.

MR. BLUTMAN: 204.

THE COURT: What line?

[END OF EXCERPT]

* * *

42a

|reprinted in Joint CA App. 1127-1133]

Reading EBT ~ Ronsini

"QO. Allright. Why don’t we go back then.

What do you recall? What type of equipment do you

recall being in the main engine room on the U.SS.

Weeks.

"A. Worthington.

"Q. Right now I am asking you for the

type of equipment, not the manufacturer. I will ask

you that next.

"A. Type of equipment?

"Q. Yes.

"A. Steam propulsion pumps, turbines, oil

separators, oil lubricators, haz mat pumps.

"Q. Can you spell that?

"A. No. Haz mat pumps. They are pumps

that produce fresh water for the ship.

"Q. Anything else.

"A. Generators, air compressors, oil

separators, steam pipes and valves. That’s about all I

can think of nght now.

"Q. Allright. Now, I am going to go back

over everything you just named and ask if you recall

the manufacturer. We will start with the steam

propulsion pumps.

43a

"A. Some of the steam propulsion pumps

were manufactured by Worthington, and I believe

some were produced by Goulds.

"Q. Do you recall the manufacturers of the

turbines.

"A. General Electric and Westinghouse.

"Q. Do you recall the manufacturer of the

oil separators.

"A. | On the steam propulsion pumps, the

name I recall was Worthington.

"Q. Is an oil separator the same as a steam

propulsion pump.

"A. Correct.

We go now to -- that ends at page 144, line

10.

We go to page 145, line 2.

"Q. Air compressors.

"A. Ingersoll Rand, Worthington.

{END OF EXCERPT]

44a

"A. Yes, sir.

much would that add up to.

on that?

company.

{reprinted in Joint CA App. 1142-1146]

Reading EBT - Ronsini

"Q. Okay. Now, was that a separate

turbine frorn the General Electric and Westinghouse

turbines that you mentioned on the ship.

"Q. Now you referred to a block material

on the Worthington air compressor. Shall we call it

air compressor/turbine, would that be fair.

"A. Sure.

"Q. Do you know who supplied the block.

“i No, sir.

"Q. If you added up all the time you were

involved in removing the asbestos containing block

from the Worthington air compressor/turbine, how

"A. | How much time | actually consumed

"Q. During your time on the Weeks.

"A. T would have to tell you without --

"Q. You can estimate.

"A. Well, that air compressor gave us the

most problems. I don’t know if you represent that

45a

"Q. ‘Take a wild guess, sir. Just take a wild

guess.

"A. Let me put it to you this way. I don’t

remember how many cylinders they had, but I

remember how many cylinders you had.

Unfortunately I was the only guy who knew how to

work on that thing. I spent quite a bit of time,

seriously, on the Worthington air compressor.

Plus, the Worthington air compressor, maybe

just to enlighten you, I don’t know if you know this,

and if I say this and I embarrass you I’m not trying to

do that, the Worthington air compressor was a much

more complicated air compressor, given the fact

that’s one of the reasons it broke down more.

And also, too, it was a very important air

compressor. It was an air compressor we used to get

our fishes off the tubes. It was a torpedo launcher, so

it was a very, very important. So we had to make

sure there wasn’t going to be any problems with it, so

I spent a lot of time on it.

"Q. Can you answer my question, though,

about the total amount of time you dealt only with the

block that you removed from that piece of

equipment?

"A. _ [really couldn’t answer that question.

"Q. Would it be a week, more than a week.

"A. _ I remember working on the

Worthington for two or three days in a row, tearing it

completely apart, for not the first or second time that

we had to do it.

46a

"Q. So two to three days would be a total

of how much time you spent with respect to the

block.

"A. Atone time, yes.

"Q. And on how many occasions would

you work on that.

"A. | tore that piece of equipment apart

probably three or four times.

Going onto -- that ends at page 166, line 16.

Going onto page 167, line 15.

"Q. Now, your duties specifically with

respect to the Worthington oil separators -- by the

way, was this a situation like the Ingersoll Rand

versus Worthington air compressors, they were in

different parts of the engine room or are the

DeLavalle and Worthington in the same place.

"A. We had three DeLavalle oi! separators.

One was in the main engine room, one was in the aft

engine room, and one was in the shaft alley of the

machine shop. That was for the diesels. | worked on

all three of them.

"“Q. And I’m sorry. Where were the

Worthington oil separators.

"A. Air compressors?

"Q. You mentioned Worthington as a

manufacturer of an oil separator earlier, is that

correct.

47a

"A. Main and aft engine room.

"Q. So there were two Worthington oil

separators is that correct? I don’t want to

mischaracterize what you said.

"A. In each engine room there was a

duplicate of each pump, in each engine room, so if

you had one lubricator pump you had two. If you had

one condensation pump you had two. The aft engine

room had all the same pumps except for different

shafts.

[END OF EXCERPT]

ee I

48a

[reprinted in Joint CA App. 1799-1800]

Arsi - Defendant/Worthington - Direct/Garry

Q. Now, you mentioned the marine and Navy

department. Is there a separate department for sales to those

particular entities?

A. Yes. Both Worthington and Ingersoll-Rand

and currently Ingersol-Dresser Pump have always had special

departments to handle government and Navy sales because of

the advanced and complex technical nature of those

particular products to meet government's needs in the

contracts that they ask you to bid to.

Q. Is there something different about selling

pump equipment for use on naval vessels as opposed to sale

for other commercial purposes?

A. Yes. Naval vessels are governed by many

military specifications, many government standards. They

tend to be more complex than a standard commercial piece of

equipment, because the Navy and the government have

additional needs you don’t find in the commercial world,

such as a pump being especially reliable or shockproof for

war ships that may have to go to war, in harms way, so these

requirements usually require specialists to review those

documents and be sure you’re in compliance. If you’re not in

compliance your equipment wouldn’t be accepted and you

would not be able to supply it.

[END OF EXCERPT]

49a

[reprinted in Joint CA App. 1814-1815]

Arsi - Defendant/Worthington - Direct/Garry

Q. What portion of your search revealed records,

if any?

A. Both the two ships in question, which are the

Weeks and the gearing are part of a larger class, the DD692

class and we uncovered that Worthington did, if fact, supply

hundreds of pumps to the DD692 class during the war and

those pumps were intended to use on the Weeks and the

Gearing.

[END OF EXCERPT]

50a

|reprinted in Joint CA App. 1830-1835]

Arsi - By Defendant Worthington - Direct

MR. GARRY: DI.

THE COURT: DL The next one you are

showing the jury will be D2.

Q. Could you describe for the jury what this

drawing represents, Mr. Arsi?

A. This is a portion of a very, very long drawing

called a plan, which shows me the same cross-sectional

picture of the turbine driven main feed pump.

As you can see, it is much more complex than

the auxiliary condensate pump. This portion here is the

turbine, there is a single long shaft, this portion here is the

pump, and by the same analysis of identifying the piece parts

and getting the numbers, I can find the packing on the parts

lists, which is a further down portion of this same drawing.

This packing is number 249, this packing is number 250. |

can do the same --

MR. GARRY: I’m showing the jury D3.

A. I can do the same analysis on the list of

materials that was applicable to those pumps, and [ can come

down to 249, packing, 250 packing, six rings, plastic

metallic, and get the navy’s nomenclature, this is ND, Naval

Department specification, it gives a code.

Sla

I can go to those Naval Department

specifications, look up that code and determine exactly what

that has to be.

Q. So which particular piece of equipment was

this referable to, Mr. Arsi?

A. This long plan is representative of the turbine

driven main feed pump, and on it includes all the piece parts

for both the turbine and the pump, and it shows the gasket,

which is sheet asbestos, and the navy’s identifier, and it

shows the packing, which is plastic metallic, and the navy’s

identifier.

This is a portion of a very long drawing that’s

about 12 feet long.

Q. Is there anything we have not yet covered?

A. The main condensate pump.

Q. Okay. Could you explain to the jury what this

drawing represents and which components you are able to

determine were asbestos containing?

A. This is the assembly drawing for the main

condensate pump, which is the third and final service. It has

the pictorial representation of the pump.

I can find that the packing, in this case number

74, | come over to 74 and find packing ring, quantity, six

cotton case plastic metallic, Naval Department specification

33P25, symbol 1433, and a size.

I can also do it for any other piece parts, and

you'll see there is a gasket, 1/64th inch thick, one per pump,

it’s asbestos, and there is the Naval Department

specifications, 33P13, symbol 2150.

52a

Does that cover the three categories of

equipment that we’ve discussed?

A. Yes.

THE COURT: Arye you finished with the

board?

MR. GARRY: Yes.

Q. So if you could, Mr. Arsi, just once again for

the jury’s benefit recap for these three types of equipment,

explain again which they were and which asbestos containing

components were on each.

MR. KOMITOR: Objection, your Honor.

THE COURT: Sustained, repetitive.

Q. Other than the gaskets, the split case gaskets

on the pumps and the turbines, and the valve packing for the

turbines, were there any other asbestos containing

components on any of the equipment that Worthington

supplied for the Gearing and Weeks?

MR. KOMITOR: Objection.

THE COURT: Overruled.

A. No.

Q. ‘Did Worthington have a choice with respect

to whether it was to supply asbestos containing components

for use on naval vessels?

MR. KOMITOR: Objection, your

Honor.

EEE

53a

THE COURT: Sustained.

Members of the jury, disregard that question.

You are leading.

Q. Why did Worthington provide asbestos

containing components that you identified on the drawings

and in the records that you reviewed?

A. These particular pieces of equipment were

built to DeLavalle plans and standards. The materials of

construction and the design were government issued to us to

supply, and the identifying information on the drawings and

plans identified asbestos and many other components for the

rest of the parts, and that’s the way the pumps were built, to

be in compliance with the government’s contracts.

Q. How did Worthington make a determination

as to whether the particular components complied with the

government standard?

A. In instances such as these, where the

government standard is identified, we would go to the --

something called the QPL, qualified products list, which is a

government issued document that will identify the qualified

products and manufacturers for the various items that are

identified by their standards.

Q. If the government calls for asbestos, can you

use something else?

MR. KOMITOR: Objection.

THE COURT: Sustained. Reframe the

question.

MR. GARRY: I'll ask another question.

54a

Q. From your review of the records, was the

equipment that you have testified about here today designed

and built to naval specifications?

A. Yes.

Q. Based on your familiarity with the record

keeping procedures of Worthington and its successors, if

there had been any additional pump equipment sold for use

on these vessels, would there be a record of it at your

company?

A. Yes, there would.

Q. And did you make a search for additional

records?

A. I did.

Q. Did you find anything?

A. For any specific time frame or forever or --

Q. For sale on this particular class of vessels,

which is inclusive of the Weeks and the Gearing.

MR. KOMITOR: Objection.

[END OF EXCERPT]

55a

[reprinted in Joint CA App. 1901-1905]

Norton - by Defendant Worthington - Direct

Q. What was the purpose of this particular

compressor that was sold to the USS Weeks and the USS

Gearing class?

A. This was a turbocharger compressor. It was

used -- or torpedo compressor, excuse me, to charge bottles

to fire torpedoes.

Q. Do you know in or around what time period

these compressors were provided to these ships?

A. Yes, this would be in the 1941 to ‘43 time

period.

Q. During World War II?

A. Yes.

Q. The tech manual that you found, the two tech

manuals there, is that correct?

A. Yes.

Q. What do they generally tell you in the

technical manual?

A. The technical manual is a general description

of the compressor. It then details materials, parts and

materials in a compressor. It goes through the operation of

the compressor, maintenance of the compressor, and then has

a bunch of drawings in it actually showing the compressor.

56a

Q. The tech manual, does that have any

relationship with the Navy?

A. Yes.

Q. Could you tell the jury how the tech manual

and Worthington and the Navy meet with respect to the tech

manual?

MR. KOMITOR: Objection.

THE COURT: Could you reframe the

question? Sustained.

Q. Can you tell the jury how the tech manual --

strike that.

is there any policy that the tech manual has to

be approved by the Navy?

A. Yes, the tech manuals are approved by the

Navy at Bureau of Ships, in particular, I believe in this time

frame, and they were supplied with the compressors.

MR. KOMITOR: Could you just read that

back?

THE COURT: Read that answer?

MR. KOMITOR: Yes.

THE COURT: Read back the answer.

(Whereupon, the requested portion was read

back by the Reporter.)

Q. And the specification of materials, that’s

contained within the tech manuals?

57a

A. Yes, that’s -- there are sections that list

material specifications, that’s correct.

Q. Would they have to be in compliance with

military specifications?

A. Yes, they would.

Q. Now, you indicated to us that the tech manual

as part of your search got you to the list of materials?

A. Yes.

Q. Like the one we have up here?

A. That’s correct.

Q. Why don’t you come down now.

(Whereupon, the witness left the

witness stand.)

Q. Now, you indicated to us from this particular

exhibit, Exhibit I, the type of destroyer and the class, and

that’s how you came to the conclusion this included the USS

Weeks and the USS Gearing?

A. That’s right.

Q. And it indicates where it was built, is that

correct?

A. That’s correct.

Q. And is there an indication of different types of

materials that made up the compressor?

A. Yes.

58a

Q. Those were the parts manufactured by

Worthington and parts that were not manufactured by

Worthington?

A. That’s correct.

Q. Let’s get night to the meat of it.

Could you find -- were there asbestos

containing gaskets as part of the compressor?

A. Yes, there were.

Q. Was that listed on this list of material?

A. Yes, they would be.

Q. And would this list of material have to have

been approved by the government?

A. Yes.

Q. Could you have provided material to the

government without having it been approved?

A. No.

Q. Could you get to the area that deals with

gaskets? Is that on here?

A. Yes. It’s interspersed in here.

Q. Would you take a look and just read the name

of the piece of equipment, and we’re specifically referring to

gaskets, and the type of material and the amount specified, all

right, sir?

A. Okay. We have here a piece number 259, it is

a gasket for first stage valve cover, there were four required

59a

per compressor. The material was listed as copper asbestos,

and the spec was 33GS5.

Q. Did we make that?

A. No.

[END OF EXCERPT]

60a

[reprinted in Joint CA App. 1943-1945]

Merrick - Defendant/Worthington - Direct/Garry

Q. Well, based on your knowledge that you say

you’ve accumulated over the years, was it your

understanding that the replacement parts that were put in the

compressors, namely the gaskets and packing, would be the

same kinds of parts that you originally supplied?

MR. BLUTMAN: Objection.

THE COURT: Overruled.

You may answer.

A. What was supplied as spare parts, would have

to match what the original equipment was. There was no

spec for it, no mill spec for the material. Méilitary

specification.

Q. And it’s your understanding that the people at

Worthington knew that, correct?

MR. BLUTMAN: Objection.

THE COURT: Sustained.

Members of the jury, disregard that

question.

Q. Now, this instruction manual that was marked

as Defendant’s Exhibit --

THE COURT: Was it marked?

6la

MR. BLUTMAN: Yes.

MR. KOMITOR: May I approach,

your Honor?

THE COURT: Yes.

Q. This instruction for the operation and

maintenance of turbine driven high pressure air compressors

marked as -- you’re right, it’s been wiped off. Defendant’s

Exhibit F, I think.

THE COURT: Is it, Counsel?

MR. BLUTMAN: Yes.

THE COURT: And it’s in evidence?

MR. BLUTMAN: Yes.

Q. Now, that was a manual, as you said on your

direct examination, a service manual that came with the

compressor, correct?

A. I said we furnish manuals with compressors,

nght.

Q. And this was the one that was furnished with

your compressor?

A. This one was made by NAVSECPHILA.

Q. This is your service manual, correct?

When I say “you,” I mean Worthington’s.

MR. BLUTMAN: Objection.

THE COURT: Overruled.

62a

A. We made the original. It was updated by

NAVSECPHILA.

Q. I see.

And do you know when this was

updated by NAVSECPHILA?

A. I believe it was 1972 time frame.

Q. And did Worthington have any input or role in

the updating of the manual, as far as you know?

A. Not that I can say for sure.

[END OF EXCERPT]

63a

[reprinted in Joint CA App. 2003-2005]

Merrick - By Defendant Worthington - Direct

Q. Mr. Merrick, you can answer the question

about the paper trail. That’s fine.

I don’t mean to interrupt, but we were in the

middle of finding out how you get from specification number

to the purchase or replacement part.

A. The manufacturer tells the Navy what is

required in the way of spare parts to keep this equipment

operating.

Q. When you say the manufacturer tells the Navy

what is required in terms of spare parts, are you saying the

manufacturer tells the Navy what the specifications for those

parts are?

MR. KOMITOR: Objection, leading.

THE COURT: Sustained. Reframe

the question.

Q. Who determines what the specifications for

the particular part are going to be?

A. The manufacturer tells the Navy what parts

are required. The Navy then determines what the

specifications are, what the requirements are for each of

those parts.

The Navy has issued over the years many

thousands of specifications in great detail, telling the

64a

performance requirement for parts and supplies that they

want to purchase.

Q. Is there a name for those kinds of documents?

A. They go under the general name of

specifications, in this case, material specifications, detailed

requirements for individual materials.

When these are published, then manufacturers

are invited to submit samples of their products for testing.

The testing requirements are called out in each of these

material specifications. Every manufacturer whose products

are tested and satisfactorily complete the testing are then

listed in a qualified products listing associated with that

specification.

Again, the numbers cross-reference so that

there is a numerical QPL for each specification, and you can

call out a material such as a gasket by the military

specification, or back in World War II it was a Navy

specification, and then go look at the related product listing

under the same number and tell who has manufactured

products that meet the Navy’s requirements for that product.

Q. Have you reviewed any qualified products

lists with respect to, for example, asbestos compressed sheet

gaskets?

A Yes.

Q. And from what period of time? Have you

reviewed any that fall into the time frame between 1944 and

1968?

A. Yes. Most of the existing qualified products

lists that are -- that we have been able to find copies of date

65a

from the 1950s and later. There are very few of them that

anybody has been able to find prior to 1950.

Q. Has Worthington, to your knowledge, ever

appeared on qualified products list --

MR. KOMITOR: Objection.

THE COURT: Sustained.

[END OF EXCERPT]

66a

[Colloquy on Proposed Jury Instructions]

{reprinted in Joint CA App. 2222-2228]

THE COURT: Right, that warnings

need not be given.

Well, you want to say the knowledge

of the product at that time?

MR. KOMITOR: No.

THE COURT: Or that knowledge of

the product was such that warning need not be

given.

MS. HALBARDIER: Yes.

THE COURT: That no warnings were

adequate? That warnings need not be given.

MR. GARRY: Need not have been

given.

THE COURT: Thank you. That

warnings need not have been given, because

there were no warnings, right?

MS. HALBARDIER: Right.

MR. GARRY: Yes.

MR. KOMITOR: That warnings need

not have been given.

67a

THE COURT: Yes. Did we talk

about government standards?

MR. GARRY: Your Honor, I was

going to request -- I don’t think adherence to

the government standards charge is sufficient.

I object to it.

What I would ask be charged is --

THE COURT: Could you tell me

where you are reading from?

MR. GARRY: From Boyle versus

United Technologies with respect to

government contracts. If the United States

approved reason -- strike that. “That a

supplier could not be liable for a design defect

in goods supplied to the military if the United

States approved reasonably _sprecise

specifications of the products, the material

conformed to those specifications, and the

supplier warned the United States about the

dangers and the use of the materials that were

known to the supplier but not to the United

States.”

MR. KOMITOR: That’s only for

design defect, not for failure to warn. There is

no government contract defense in this case.

That only goes to having a defective design,

and we took that out of the case. There is no

government contract.

THE COURT: It has to do with

design, right? Is there some case where it’s

come in on failure to warn?

68a

MR. GARRY: Failure to warn, your

Honor, is nothing more than a branch of

design defect.

THE COURT: No, they are separate.

MR. GARRY: They are claiming that

the product is defective by reason of failure to

warn.

MR. KOMITOR: You are claiming --

you put asbestos in the product. The

government didn’t insist that you don’t put a

warning on the product. That’s the whole

reason why the Second Circuit --

MR. GARRY: I’m just requesting

that, your Honor.

MS. HALBARDIER: I join in the

request.

THE COURT: Unless you read

something to me in a failure to warn case, I

don’t think it applies to a failure to warn case.

MS. HALBARDIER: My problem

with the paragraph is it says, “Compliance

with standards.” I would ask for another

sentence there. “However, you may find that

defendant acted reasonably in light of

compliance with government standards.

MR. KOMITOR: No. That’s the

whole point.

THE COURT: But there has to be

another way. I’m willing to do balance, but

69a

I’m not sure that’s the way. However, you

might find -- you may find -- what was it?

MS. HALBARDIER: That defendant

acted reasonably.

THE COURT: But that’s not the

standard. The standard is that it would be the

opposite, that compliance for these standards

precludes liability. That’s the opposite.

That’s really -- it is not “reasonable,” it is a

question that the compliance -- if you want a

different word I’ll use a different word, but

not “reasonable.” That’s injecting something

that’s not there.

MR. KOMITOR: Does not preclude a

finding of liability or --

THE COURT: However, you --

MR. KOMITOR: You can say --

THE COURT: Requires.

MR. KOMITOR: Does not require or

preclude.

THE COURT: You want to say does

not require a finding and you may find

compliance precludes liability?

MR. KOMITOR: I don’t see how you

balance that.

THE COURT: Since you can’t agree I

want to move on. However, you may find

70a

compliance precludes a finding of liability.

The opposite.

MR. KOMITOR: You can’t say that.

It does not preclude a finding. The whole

point is that just because they comply with

government standards, it does not preclude a

finding, so you can’t say complies with

government --

THE COURT: The way it’s phrased,

if you look at the other one, --

MR. KOMITOR: There are certain

things you can’t balance.

THE COURT: Compliance is

equivalent to a safe product -- I don’t know, if

you go back to the paragraph before.

MR. KOMITOR: The reason the

language is there means that compliance to a

standard doesn’t necessarily say that you are

okay. Compliance with standards is irrelevant

is what the point is.

It is not balanced. Compliance with

standards is irrelevant. It doesn’t matter one

way or the other if you comply with standards.

THE COURT: We say it is

important and some_ evidence of

reasonableness, right? So really the issue is

whether the product is safe, right?

MS. HALBARDIER: Right.

Tla

THE COURT: Need not have been

given. It’s that — you may take compliance

into consideration in deciding whether the

product was safe.

MS. HALBARDIER: Okay.

MR. KOMITOR: You mean after the

sentence?

THE COURT: Yes.

MR. KOMITOR: Okay.

THE COURT: Is that okay?

MR. KOMITOR: All night, Ill live

with it. Actually, I’m going to object. I don’t

think you can balance it, so let me put my

objection on the record.

THE COURT: All night, fine.

Objection overruled.

[END OF EXCERPT]

72a

[reprinted in Joint CA App. 2896-2900]

Court’s Charge

The question for you in this case

however is whether even considering the

Navy’s response or lack of response after

defendants’ failure to warn -- I’m sorry.

_ The question for you in this case

however is, even after considering whether or

not the Navy’s response or lack of response --

it doesn’t --

Whether or not -- the question here for

you is whether the defendants’ failure to warn

was also a substantial cause of the injury as a

reasonable person would view the matter.

If under the circumstances a warning

by the defendants would have had no

appreciable effect in protecting the persons

claimed to have been injured, it could not

have been a substantial cause. If, under the

circumstances, a warning by the defendants

would have had an appreciable effect in

protecting the workers it could be found by

you to be a substantial cause.

You’re here to pass upon the

responsibility of the defendants here, not of

the Navy. Although you will have to consider

the Navy’s role in this whole matter in making

your determination about the responsibility of

the particular defendants before you, as well

73a

as if you get to it the issue of the

responsibility of the other defendants -- not --

of the other companies that distributed and

manufactured asbestos-containing products

that the defendants -- that you find, if you find

that the plaintiffs were exposed to them.

As to warnings: You may find

warnings should be given not only for those

hazards which were definitely established but

also for those hazards that were reasonably

expected to have existed or you may find that

the knowledge of the product was such that

warnings need not have been given.

Adherence to government standards

while important, and some evidence of

reasonableness, does not relieve a party from

the obligation to make its product safe.

Compliance with those standards by a

defendant, even if proven, doesn’t preclude a

finding of a liability. However, you should

take compliance into consideration in deciding

whether or not the product was safe.

In view of all that I’ve just stated, if

you find that the products of a defendant were

reasonably safe for their intended or

unintended, but reasonably foreseeable

purpose without warnings, you will find that

such products were not defective and the

defendants are not liable. And if you find that

you will not go any further.

However, on the other hand, if you

find that there were, the products were

defective, then for failing to warn, you will

74a

then consider whether or not the defective

product was a proximate or substantial

contributing cause to the plaintiff's injuries.

Remember, I told you before, that

something is a proximate cause of an injury if

it was a substantia! factor in bringing about

that injury. Its [sic] a substantial factor if it

had such an effect in producing the injury, that

a reasonable person would consider it to be a

cause of an injury; either an act or failure to

act can be a proximate cause of an injury --

forget what I just said about a fact.

The failure to warn -- just a second.

Forget what I said about that.

The exposure to the product that -- the

defective product must be a substantial factor

in bringing about the injury, that is, the

warning and the product -- forget that. Sorry.

I have been editing and I edited -- this

should be edited out. Sorry.

It is not necessary that a defendant’s

product be the sole or even the dominant

cause of injury in order to be considered a

proximate cause. There may be more than

one proximate cause. Here, in fact, a number

of manufacturers were supplying asbestos-

containing products to the places that the

plaintiffs worked. More than one of them

could be liable at the same time. Several

factors may operate at the same time, either

independently or together, to cause illness,

75a

and in such a case each factor may be a

proximate cause.

Each worker had a right to decide for

himself whether to work and what he would

wear as protection before continuing to work.

(END OF EXCERPT]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.