# Petition for Writ of Certiorari — Worthington Corp. v. Ronsini > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0576%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2000 - **Citation:** 529 U.S. 1019 ## Text CU “PILED BO 141 9 DEE 7 1999 OFFICE gf No.6 EH en es ---~ 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 rte al a wal atl _— " z - ™ a ——- yee ter ” ELE LL, OE TOT | 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 iV 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] vi 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 iX 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 ne 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 Ey (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 i. 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. Se 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 Ye 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 me 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). Bs 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 ee 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 Se 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). os 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 la 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- 2a 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 3a 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. 4a 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 5a 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 6a 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 7a 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 Sa 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. e i <2 2 3 ? 9a 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 4 ee 2a a ey ee iP aad = oe ba : ' We a a oe a Bi fe % E24 ad ay rey: a Z A 4 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 aa 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 RL nN 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. nN — n— nN 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 a 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 x 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. at 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. eS 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] eT 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. Fo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0576%3A1. Public record. Not legal advice.