The Rhode Island Superior Court has granted a defendant's motion to amend its pleadings to assert the government contractor defense in an asbestos case. Plaintiff had objected because the defendant had not asserted the defense in its initial answer and trial was scheduled to start in a few months.
The court first reviewed the elements of the defense. It said a party must show (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. With respect to failure-to-warn claims, the defendant must show (1) the government exercised its discretion and approved certain warnings; (2) the contractor provided the warnings required by the government; and (3) the contractor warned the government about dangers in the equipment's use that were known to the contractor but not the government.
The court then held that there were exceptions to the so-called "raise-or-waive" rule for affirmative defenses under Rule 8(c). Under Rule 15(a), the amendment would be barred only if plaintiff would be substantially prejudiced by the amendment. Potential sources of prejudice include the lateness of the motion, the proximity to trial and the amount of work necessary to prepare for the new legal issue. The burden rests on the non-moving party to show that prejudice exists. When the delay is a period of years the movant must show an adequate explanation for the delay. However, "mere delay" is an insufficient reason to deny the amendment unless the prejudice is substantial.
Here, the court said there were several reasons to allow the amendment. Trial was still several months away so plaintiff had adequate time to prepare a response. Plaintiff had notice that at least some defendants would assert a government contractor defense because the complaint was drafted to try to avoid removal to federal court on those grounds. Plaintiff's expert, Capt. Moore, had testified about the defense in a related federal case. Finally, defendant had included the defense in its expert disclosures. Sweredoski v. Alfa Laval, Inc., 2013 WL 2321092 (R.I. Super. May 22, 2013).