Navy asbestos case remanded for insufficient evidence on warning specifications

By Heather Isringhausen Gvillo | Jun 24, 2014

CHICAGO (Legal Newsline) - A Chicago federal judge has remanded an asbestos case brought by a former Navy serviceman on the grounds that a valve manufacturer failed to provided sufficient evidence showing the Navy made specific requirements regarding warnings.

Judge Harry D. Leinenweber delivered the May 19 opinion in the United States District Court for the Northern District of Illinois, Eastern Division.

Crane Co., a valve manufacturer that used asbestos-containing component parts when WWII Navy ships were constructed, sought to remove the case to federal court.

However, because the company failed to provide sufficient evidence, Leinenweber ruled in favor of plaintiffs Tracy Earl Horrie, Jr. and Judy Horrie, remanding the case to Cook County Circuit Court.

Tracy Horrie alleges he developed mesothelioma from asbestos exposure while serving as a machinist mate in the U.S. Navy from 1964 to 1968, as well as several decades of land-based civilian work in Illinois and secondary exposure from his father, who worked as an insulator during Horrie's childhood.

Leinenweber's discussion focuses specifically on Horrie's service in the Navy.

While in the Navy, Horrie was stationed in San Diego, Great Lakes, Ill., and aboard the U.S.S. Taussig and the U.S.S. Frank Knox.

In addition to several other defendants, the plaintiffs blame Crane for allegedly failing to warn Horrie of asbestos hazards.

In response, Crane filed a notice of removal to the district court, arguing removal is proper based on the government contractor defense.

However, the plaintiffs sought to remand the case based on lack of diversity jurisdiction arguments.

Citing the Boyle decision, the court noted that "in the procurement of equipment, the federal government's interest, even though the case was between private parties, could dictate that case be tried under federal rather than state tort law."

The court in Boyle further held that "such displacement would only occur where there is a significant conflict between the federal interests and state law."

In other words, the government contractor defense is only applicable when performing federal contractual obligations conflict with state law.

When applying the Boyle standard to failure to warn claims, a defendant cannot defeat state law by only establishing the elements of the government contractor defense with respect to a design defect claim.

In fact, a defendant must meet three requirements in order to be entitled to the defense:

-It must establish that the government exercised its discretion and approved certain warnings;

-It must establish that the contractor provided the warnings required by the government; and

-It must establish that the contractor warned the government about dangers in the equipment's use that it knew about but the government did not.

Turning to the case at hand, Leinenweber examined whether Crane provided the court with sufficient evidence to avoid remand, which he concluded is not the case.

Crane's evidence included just two affidavits, consisting of statements from Anthony D. Pantaleoni, the company's Vice President of Environment, Health and Safety, and James M. Gates, former manager of Design Verification of the Marine Division of Westinghouse Electric Corporation.

Pantaleoni stated that Crane "made and supplied equipment - including valves - for Navy ships under contracts between Crane Co. and the shipyards and/or United States of America, specifically the Navy Department" and the "manufacture of equipment ... was governed by an extensive set of federal standards and specifications, chiefly military specifications known as 'Mil-Specs.''"

Pantaleoni added that the products supplied by Crane Co. were manufactured according to Navy specifications, but he failed to provide details, the court stated.

In Gates' affidavit, he primarily addressed the level of supervision and control exercised by the Navy over the design and manufacture of its products, focusing on the specifications required by the Navy.

Gates explained that the Navy "had ultimate control over the nature of the warnings communicated to the Navy ... personnel in relation to shipboard equipment and materials."

Based on the affidavits, Leinenweber stated that Crane's supporting documents fall short of providing specifics applicable to the case.

"All we know for sure is that Crane at some time supplied the Navy (or a Navy contractor) with valves which were incorporated in the construction of Navy vessels," he wrote.

Leinenweber added that Crane failed to produce any contracts under which it supplied valves or anything else to the Navy; failed to establish that the Navy made specific requirements as to warnings or prohibited specific warnings for valves supplied by Crane; and failed to establish that, if there were warning requirements, they conflicted with Illinois tort law.

He added that Pantaleoni did not even work for Crane when the products were manufactured and failed to describe the efforts he may or may not have taken to find actual documentation.

"In this case, the record is silent as to whether Crane was permitted to warn and, if so, whether any such warning would conflict with state law," Leinenweber wrote.

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

More News

The Record Network