Company fights back in federal asbestos suit

By Kelly Holleran | Aug 11, 2009

CHARLESTON, W.Va. (Legal Newsline) -- A company named as a defendant in an asbestos lawsuit is fighting back, alleging the complaint against it should be dismissed because it had no choice other than to follow the U.S. Navy's strict specifications when it manufactured products for a ship.

Viad Corporation claims it is not responsible for the asbestos exposure that Robert W. Modley alleges caused Franklin J. Modley's asbestos-related disease that led to his death.

In a lawsuit originally filed in Kanawha Circuit Court, Robert W. Modley says Franklin J. Modley was exposed to asbestos while working as a boiler tender and technician for the U.S. Navy from 1954 until 1957.

Robert W. Modley named Viad Corporation as a defendant in the suit, believing the business was a successor in interest to Griscom-Russell Company -- a defunct company that manufactured evaporators and fuel oil heaters placed on U.S. Naval vessels in the 140s and 1950s, including the ship where Franklin J. Modley worked, according to the complaint.

However, Viad contends no complaint should be filed against it because it is not successor in interest to Griscom-Russell.

And even if Viad was a successor in interest to the company, a lawsuit should still not be filed against it because Griscom-Russell was only manufacturing products that were in compliance with the U.S. Navy's strict regulations, Viad's answer to the Modley complaint states.

"The United States Navy specified, designed and approved every specification governing how the equipment should be insulated and the type of materials to be used to insulate the equipment," the answer says. "Military specifications governed every characteristic of the equipment used on Navy vessels, including the instructions and warnings."

In an affidavit, C.R. Cushing and Company President Charles R. Cushing corroborates Viad's defense.

"Pursuant to the U.S. Navy's specifications, Griscom-Russell would not have been able to affix to its product any type of warning or cautionary statements concerning alleged health hazards from the installation, use, or maintenance of the products," Cushing wrote in his affidavit. "Whether certain equipment used aboard U.S. naval vessels should have warnings, and the content and format of any such warnings, was determined solely by the U.S. Navy."

Any asbestos-filled insulation would have not been added by Griscom-Russell, but would have been placed on the evaporators and fuel oil heaters at shipyards, Cushing says.

Designs of all products aboard ships in the 1940s and 1950s were determined by the U.S. Navy, and any alterations to those designs were overseen by the Navy, United States Navy Rear Admiral Ben J. Lehman claims in his affidavit.

"Any deviation from military specifications of equipment to be installed on ships would have resulted in significant problems and probable rejection of the equipment," Lehman's affidavit states.

Because companies were not allowed to fix warnings to their products used on naval vessels, that job was left to the U.S. Navy, Lehman claims. However, the Navy could provide no warnings of asbestos, as Robert Modley says it and manufacturers should have, because it did not have the tools, equipment or personnel capabilities to do so, according to Lehman's affidavit.

"Any additional warning about the hazards of asbestos by an equipment manufacturer would be only partial in scope as well as inherently redundant, eventually obsolete, and almost certainly inconsistent with the Navy's own training," Lehman wrote in his affidavit. "The Navy could not permit unauthorized hazard labels which might interfere with the abilities of their sailors to perform their duties in the heat of battle."

Even if Viad was a successor in interest to Griscom-Russell, it would be immune from any complaint because Griscom-Russell was making a product pursuant to contracts with the U.S. Navy, Viad claims.

Viad removed the Modley complaint to federal court because it is including federal defenses in its answer to the lawsuit.

Viad denied all of Robert Modley's allegations against it. It says Franklin Modley's injuries were caused by his mishandling of products and not by the company's negligence.

"Plaintiff and his employers were sophisticated users of asbestos-related products and/or other allegedly hazardous products," Viad's answer states. "Thus, there was no duty for Viad to warn them of any alleged danger or risk inherent with the same."

Robert Modley's complaint includes punitive damages, which is a question of law not to be decided by a jury, Viad contends. Thus, Robert Modley's request for a jury trial should not be granted, the company maintains.

Viad is asking the court to dismiss Modley's complaint against it and that it recover costs, including attorneys' fees.

Viad will be represented by R. Scott Lang, Jeffrey H. Hall and Stephen M. Schwartz of Eckert, Seamans, Cherin and Mellott in Charleston.

Robert W. Medley will be represented by Victoria Antion of Motley Rice in Mt. Pleasant, S.C., and by Cindy J. Kilblinger and James A. McKowen of James F. Humphreys and Associates in Charleston.

U.S. District Court case number: 2:09-839

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