Asbestos attorneys discuss opposing arguments in government contractor defense

ST. LOUIS (Legal Newsline) – As more and more asbestos cases are filed by former Navy sailors and their families, asbestos attorneys from both sides of the litigation have expressed the importance of documents establishing Navy specifications in relation to the government contractor defense.

As part of the HarrisMartin Midwest Asbestos Litigation Conference in St. Louis on Sept. 18, attorneys Alexa Newton of the Foley & Mansfield law firm and Randy Cohn of the Simmons Hanly Conroy law firm discussed the federal officer removal program and the government contractor defense in relation to removing an asbestos case to federal court based on Navy records.

In her presentation, Newton explained that defendants prefer federal court because “federal rules place express limits on the amount and type of discovery available” and “federal courts are more prone to grant motions to dismiss,” among other reasons.

However, Newton clarified that getting a case removed is not the same as defending the case in federal court.

In other words, when a defendant is defending its right to remove a case, it isn’t actually defending the case. The court is just determining if removal was proper.

“Standards for removing the case and then defending the case are very different standards,” she said. “Don’t get them confused.”

She went on to establish that the government is protected from liability according to the Federal Tort Claims Act. Therefore, she questioned whether it is proper for the manufacturer of equipment aboard the Navy vessel to be held liable when the government cannot be held liable for its design and specifications of the ship.

Newton said a government contractor is acting under the United States when it produces a product for the government according to the specifications.

She explained that saying a product fails to conform to specifications is another way of saying it was defectively manufactured.

Additionally, she said a product conforms to the specifications “if it satisfies ‘an intended configuration’ even if it ‘may produce unintended and unwanted results.’”

“If you can show that you are basically following the federal government’s rules and specifications, you have a right to remove that to federal court,” Newton said.

Newton added that defendants must show the government held specific compliance with their directions, because there is typically some “give and take” in the design process.

“Courts require a little more than just, ‘You guys made a rule and I followed it,’” she said.

Cohn, on the other hand, said when it comes to failure to warn cases, the common argument is, “the Navy wouldn’t let us warn,” which he considered a bogus excuse.

“I would urge you again to go get the records,” he said. “Go get the military specifications on warnings where the Navy tells the contractors to warn.”

Cohn added that plaintiffs attorneys tend to challenge removal on a factual basis, which is where Navy documents come in hand.

Cohn outlined the importance of specific Navy documents, such as the Bluejackets Manual, and discussed the benefits the documents provide for all parties involved.

“I think these documents, these records, help define the universe that we are working with in any Navy case,” Cohn said.

“It’s always my position going into a Navy case that if we can have those ship records and military records, it helps all parties,” he added. “I think it moves depositions along quite effectively when we have the records.”

Parties obtain the military documents used in asbestos cases for former sailors from the National Archives, which can take several weeks.

In the meantime, parties can begin setting up the case and researching a claimant’s exposure with the sailor’s discharge documents. Cohn said these are easily accessible because most clients have these documents at their home.

They also rely on material inspection reports, which tell the court what equipment was on a specific ship and what work was done during an overhaul.

“So we know what work was done and we actually have it in writing,” Cohn said.

Ultimately, Cohn and Newton said there is no clear line on how the courts have ruled on the government contractor defense.

“There is such a split in jurisdiction on whether asbestos components used on Navy ships create the right of a federal officer defense,” Newton said.

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