Heather Isringhausen Gvillo Nov. 13, 2014, 10:16am

PHILADELPHIA (Legal Newsline) – A federal judge in the asbestos multidistrict litigation has granted summary judgment in favor of Huntington Ingalls, Inc., in an asbestos case in which the claimant tried to hold a shipbuilder liable for potentially replaced products.

Judge Eduardo Robreno filed the Sept. 26 opinion in the U.S. District Court for the Eastern District of Pennsylvania, but it wasn’t filed online until Nov. 3.

The case was transferred to the MDL court in December 2011 form the U.S. District Court for the Northern District of California.

Claimant Dale M. Shelly alleges he was exposed to asbestos while serving in the U.S. Navy from 1964 to 1973 while aboard the USS Enterprise and the USS Ranger.

He specified that he worked aboard the USS Ranger for about one year during major work on the ship at some point during his service and that he worked on the USS Enterprise about five to seven separate times, for a total of about three to six months.

Huntington Ingalls was named a defendant for building the ships. It moved for summary judgment, arguing that it cannot be liable on any product liability claim because a ship is not a “product.”

Likewise, Robreno wrote that this court has previously held that a Navy ship “is not a ‘product’ for purposes of application of strict product liability law. As such, a shipbuilder defendant cannot face liability on a strict product liability claim.”

Shelly disagrees, arguing that a Navy ship should be considered a product.

Huntington Ingalls also argues summary judgment is proper because the plaintiff failed to provide sufficient evidence of exposure.

In Shelly’s deposition, he testified that he was exposed to asbestos from insulation aboard each of the ships at issue and that the defendant is liable for his injuries. He claims “much” of the “white, chalky” insulation was original and was occasionally used on steam pipes.

The plaintiff also provided the testimony of expert Charles Ay in support of his allegations. Ay opined that approximately 80 percent of the insulation on the ships would have been original insulation at the time of Shelly’s alleged exposure.

In accordance with Shelly’s service period, Ay also testified that he worked aboard the USS Ranger in the early to mid-1970s and the USS Enterprise in the late 1970s. He added that he saw asbestos-containing insulation aboard these ships.

Furthermore, Huntington Ingalls argues that the plaintiff did not provide evidence of a compensable injury and that the plaintiff does not appear to be injured.

Shelly, on the other hand, argues that although he is still “somewhat active,” he is suffering from “significant injury and disability” as a result of his alleged asbestos exposure.

Huntington Ingalls also argues that it is immune from liability based on the government contractor defense.

The defendant claims the Navy exercised discretion and approved reasonably precise specifications for the products at issue. Therefore, Huntington Ingalls provided warning labels that conformed to the Navy’s approved warnings while the Navy knew of the hazards associated with asbestos.

However, Shelly argues that there are genuine issues of material fact regarding the availability of the government contractor defense.

He points to military specifications that allegedly indicate that the Navy “explicitly permitted,” and possibly required, warnings.

Finally, Huntington Ingalls claims it is entitled to summary judgment on grounds of the sophisticated user defense.

More specifically, the defendant argues that the Navy was a sophisticated user because it had superior knowledge regarding the hazards associated with asbestos-containing products and asbestos-related diseases.

While Huntington Ingalls explained that the Navy was a sophisticated user, Shelly argues that the defendant “has not adduced evidence that plaintiff was a ‘sophisticated user.’”

Additionally, Shelly argues the defendant “is really arguing for a ‘sophisticated intermediary defense,’” which is allegedly not recognized by maritime law.

Noting that the exposure evidence is vague and spans a period of several years, Robreno concluded that Shelly did not provide evidence showing he and Ay were on aboard the Navy vessels at the same time or even that Ay was on the ships after the plaintiff’s alleged exposure.

“Given this evidence, it is entirely possible that Mr. Ay was aboard the ship prior to plaintiff’s alleged exposure thereon,” Robreno wrote. “Plaintiff relies solely on Mr. Ay’s testimony to establish that the insulation he was exposed to contained asbestos.”

Robreno added that the court cannot conclude from the evidence that the asbestos-containing insulation Ay saw aboard the ship was still the same insulation Shelly was allegedly exposed to. This is especially true given the fact that Ay testified that roughly 20 percent of the insulation would have been replacement insulation.

“In short, the evidence does not establish that plaintiff was exposed to respirable asbestos insulation aboard the ship,” he wrote. “As such, no reasonably jury could conclude from the evidence that [Shelly] was exposed to asbestos aboard this ship such that it was a substantial factor in the development of his illness, because any such finding would be based on conjecture.”

Therefore, the court held that summary judgment is warranted.

As a result of the court’s determination on evidence, Robreno did not address any of the defendant’s other arguments.  

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

More News