Superior Courts Hold Asbestos Defendant’s Government Contractor Defense Presents Issues of Fact

| Aug 22, 2013 | Firm News

The Superior Court has denied an asbestos plaintiff’s motion for summary judgment respecting a defendant’s government contractor defense.  The Court held the defendant had established sufficient evidence to raise issues of fact for trial.

Plaintiff alleges her husband served in the Navy from 1964 to 1968 and for two years was aboard the U.S.S. Independence.  He worked for one year as a fireman and boiler operator in the ship’s boiler rooms.  Part of his duties included replacing asbestos-containing gaskets and packing in steam valves designed and manufactured by the defendant.  Defendant asserted the so-called “government contractor” defense to plaintiff’s defective design and failure-to-warn claims.

Plaintiff moved for summary judgment on the defense arguing that defendant had failed to produce reliable, admissible evidence that: (1) the Navy had created or approved reasonably precise specifications for the steam valves; (2) the steam valves conformed to those specifications; or (3) defendant had warned the Navy about the dangers of asbestos known to the defendant but not to the Navy.

The Court reviewed the law governing the application of the government contractor defense to design defect claims.  The defendant 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.

The defendant establishes the first element of the defense when it show that the government actually chose the design feature in question or it approved the defendant’s design after a “continuous exchange” involving a “back and forth dialogue” between the government and the defendant.  The element is not established if the government merely approves a design created by the defendant.  Here, the defendant produced affidavits from three expert witnesses stating the the government developed a comprehensive set of design specifications for the components of its vessels called MILSPECs.  These required manufacturers of valves to uses asbestos containing gaskets and packings.

To meet the second element of the defense with respect to defective design claims, i.e., conformity to the government’s design, the defendant must show it delivered to the government a product precisely meeting the government’s design specifications.  Here, the defendant’s experts testified that the Navy continuously monitored the manufacturer’s compliance with MILSPECs throughout the design and manufacture process through inspections and testing.

To meet the third element of the defense defendant must show it warned the United States about dangers known to the defendant but not to the government.  It is only responsible for warning about dangers about which it has actual knowledge.  Alternatively, the defendant can demonstrate that the government had the same or superior knowledge of the dangers posed by the product’s design.  Here, defendant has produced affidavits from its experts stating that the Navy was aware of the dangers of asbestos as early as 1922, that by 1943 the Navy had produced standards for industrial safety and industrial health respecting asbestos in contract shipyards, and that the Navy thought there was a “strategic advantage” in it maintaining control of workplace safety in those shipyards.

With respect to establishing the government contractor defense in failure-to-warn claims, the defendant must show: (1) the federal government exercised discretion and approved warnings for the product; (2) the warnings the government provided about the product conformed to the federal government specifications; and (3) the defendant warned the federal government about the dangers known to the defendant but not the government.

The defendant can meet the first element by showing the United States approved reasonably precise specifications for the equipment including the appropriate wording of any warnings respecting a potential hazard.  The approval must go beyond a “rubber stamping” but must include evidence of a dialogue between the govenrment and the contractor respecting the warning.  To meet the second prong, defendant must show that the government’s specifications limited the defendant’s ability to comply with its duty to warn.

Here, the defendant’s expert testified that the Navy prohibited valve manufacturers from providing asbestos-related warnings in the valves service manuals or on label plates attached to the valves.  The expert said the Navy developed two kinds of operation manuals for its service men.  When the contractor provided the manuals it was required to comply with the appropriate MILSPEC.  The expert said the specifications did not permit manufacturers to include any type of warning respecting generic health related issues like asbestos.  One MILSPEC contains specific language that valve manufacturers were required to provde in instruction and maintenance manuals. It specifically says manuals “shall contain, or refer to, only the limited disassembly and reassembly required to accomplish each operaton.”  The MILSPEC did not mention any product warnings of any kind.

Similarly, there were specific MISPECs for label plates.  The Navy reviewed an approved label plates.  The specifications said nothing about any warnings.  Defendant’s expert testified the Navy would not have allowed asbestos-related warnings.  The expert also testified the Navy would have rejected any products that did not conform precisely to the MILSPECs.

Finally, the Court said the evidence of the Navy’s knowledge of the hazards of asbestos with respect to design defect claims also applied to failure-to-warn claims.  Accordingly, the defendant had presented sufficient evidence to create issues of fact with respect all elements of its government contractor defense to the design defect and failure-to-warn claims.

Sweredoski v. Alfa Laval, P.C. No. 2011-1544, slip op., (R.I. Super. Aug. 22, 2013).

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