Cook v. Foster Wheeler Energy Corporation (D. Mass., Sept. 1, 2023)

Our plain-English summary of Cook v. Foster Wheeler Energy Corporation (U.S. District Court, District of Massachusetts, September 1, 2023).

Linda Cook sued Foster Wheeler Energy Corporation and others, individually and as executor of her late husband's estate. She alleged that Ronald Cook was exposed to asbestos-containing products, including boilers made or supplied by Foster Wheeler, while he served as a fireman and boiler tender on the USS Mullinnix from April 1966 to November 1968. She alleged this caused his mesothelioma and his death in May 2022. Foster Wheeler asked the court to rule that maritime law governs the case, including product identification and causation, the bare-metal and government-contractor defenses, and the unavailability of loss of consortium and punitive damages. The court held that the claims fell within admiralty jurisdiction because the alleged exposure happened aboard a ship on navigable waters during repair and maintenance, so maritime law applied, with Massachusetts law filling gaps. It said the two defenses may be raised if trial evidence supports them. It rejected Foster Wheeler's argument on damages, finding its cases involved other statutes, and ruled that Cook may seek loss of consortium, punitive and survival damages. The motion was granted in part and denied in part.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, District of Massachusetts
• Decided: September 1, 2023
• Docket: Civil Action No. 1:21-cv-11362-ADB
• Stage: Other
• State: Massachusetts

Outcome. The court granted in part and denied in part Foster Wheeler's motion, ruling that maritime law governs the claims, that the bare-metal and government-contractor defenses are available if the trial evidence supports them, and that plaintiff Linda Cook may seek loss of consortium, punitive and survival damages.

What the court held. Asbestos exposure claims arising from repair and maintenance aboard a Navy ship on navigable waters fall within admiralty jurisdiction, so substantive maritime law applies, with state law only supplementing where maritime law is silent. General maritime law does not bar loss of consortium, punitive or survival damages against a manufacturer in such a case.

Issues decided: The Bare-Metal Defense, Choice of Law, Loss of Consortium, Wrongful Death and Survival, Government Contractor Defense and Removal, Maritime Law and Navy Ships, Product Identification, Punitive Damages.

The people and their exposure

• Ronald Cook: mesothelioma; died

The defendants

• Foster Wheeler Energy Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Air and Liquid Systems Corp. v. DeVries (U.S. Supreme Court, 2019). The Supreme Court affirmed the Third Circuit's judgment vacating summary judgment for the equipment manufacturers (Air and Liquid Systems, CBS, Foster Wheeler, Ingersoll Rand, General Electric) and sent the case back so the District Court could reconsider under the Court's own duty-to-warn test, which favored the veterans' families.
• Phelps v. CBS Corporation (U.S. District Court, Southern District of New York, 2021). The court granted Foster Wheeler's motion for summary judgment on all claims because plaintiff Phelps failed to show it had a duty to warn under maritime law, and administratively denied Foster Wheeler's four Daubert motions.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

LINDA A. COOK, INDIVIDUALLY AND AS EXECUTOR FOR THE ESTATE OF RONALD COOK,

Plaintiff,

v.

FOSTER WHEELER ENERGY CORPORATION, etal., Defendants.

Civil Action No. 1:21-cv-11362-ADB.

September 1, 2023.

United States District Court, D. Massachusetts.

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS, District Judge.

Plaintiff Linda A. Cook ("Plaintiff"), individually and as executor of the Estate of her late husband, Roland Cook ("Mr. Cook"), brings this products liability action against Defendant Foster Wheeler Energy Corporation ("Foster Wheeler"), and others, asserting various claims related to Mr. Cook's claimed exposure to asbestos-containing products and materials while serving on the USS Mullinnix. [ECF No. 248]. Pending before the Court is Foster Wheeler's Motion for Clarification on Choice of Law and, Alternatively, to Apply Maritime Law ("Motion"). [ECF No. 477]. For the reasons given below, Foster Wheeler's Motion, [ECF No. 477], is GRANTED in part and DENIED in part.

I. BACKGROUND

As relevant to this Motion, Plaintiff alleges that Mr. Cook was exposed to asbestos-containing products and materials (including but not limited to boilers) made, sold, supplied, and distributed by Foster Wheeler, while he served as a fireman and boiler tender on the USS Mullinnix naval ship between April 1966 and November 1968, and that this exposure caused or contributed to Mr. Cook's diagnosis, suffering, and ultimate death from malignant mesothelioma in May 2022. [ECF No. 248].

Foster Wheeler contends that Plaintiff's claims fall within admiralty jurisdiction, and are governed by maritime law, because they are based solely on Mr. Cook's purported asbestos exposure on the USS Mullinnix, while repairing and maintaining Foster Wheeler products. [ECF No. 477]. Foster Wheeler specifically asks the Court to adopt maritime law with respect to various issues in the case, including but not limited to, product identification/causation standards, the "bare-metal" and government-contractor defenses, and the unavailability of loss of consortium and punitive damages. [ECF No. 558 at 2-5]. Plaintiff responds that the Motion should be denied because no relevant conflict of law exists between Massachusetts and maritime law, [ECF No. 492], and, accordingly, asks the Court to conclude that she is entitled to seek loss of consortium, punitive, and survival damages under either Massachusetts or maritime law. [ECF No. 599 at 3-5].

II. DISCUSSION

"Under 28 U.S.C § 1333, the federal courts have `original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.'" See Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 992 (2019) (quoting 28 U.S.C § 1333). It is well-settled that courts apply substantive federal maritime law if they have admiralty jurisdiction—regardless of whether, as here, federal jurisdiction is invoked based on diversity of citizenship, rather than admiralty jurisdiction. See Pope & Talbot v. Hawn, 346 U.S. 406, 409-10 (1953) (rejecting the argument that state law governs because jurisdiction was based on diversity of citizenship and holding that federal maritime law is controlling where plaintiff's action is a maritime tort); Carey v. Bahama Cruise Lines, 864 F.2d 201, 208 (1st Cir. 1988) (holding that the district court should have applied maritime law, not Massachusetts law, concerning comparative negligence because the case involves a maritime tort); Adamson v. Port of Bellingham, 907 F.3d 1122, 1126 (9th Cir. 2018) ("[I]f the district court could have maritime jurisdiction over a tort claim,

[s]ubstantive maritime law controls ... whatever the forum or asserted basis of jurisdiction.") (internal quotation marks and citation omitted); see also Everett v. Carnival Cruise Lines, 912 F.2d 1355, 1358 (11th Cir. 1990) (citing Kornberg v. Carnival Cruise Lines, Inc., 741 F.2d 1332, 1334 (11th Cir.1984), cert. denied, 470 U.S. 1004 (1985)); Pritt v. Air & Liquid Sys. Corp., No. 19-cv-10651, 2022 WL 902684, at [*11] (S.D.N.Y. Mar. 28, 2022).

State law may, in limited circumstances, supplement maritime law—for example, where maritime law is silent—but "may not be applied where it is materially different than maritime law, or where it would defeat the reasonably settled expectations of maritime actors." Persson v. Scotia Prince Cruises, Ltd., 330 F.3d 28, 32 (1st Cir. 2003) (citation omitted); see also Carey, 864 F.2d at 207 (collecting cases); Coastal Fuels Mktg., Inc v. Florida Express Shipping Co., 207 F.3d 1247, 1251 (11th Cir. 2000) ("[W]hen neither statutory nor judicially created maritime principles provide an answer to a specific legal question, courts may apply state law provided that the application of state law does not frustrate national interests in having uniformity in admiralty law.").

The Supreme Court has articulated a two-part test for determining whether an alleged tort falls within the scope of admiralty jurisdiction. See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. 513 U.S. 527, 534 (1995). The first prong of this analysis, the "location test," considers "whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water." Id. The second prong, the "connection test," is two-fold, requiring the court to (i) "assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce"; and (ii) "determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity." Id. (internal quotation marks and citations omitted). Here, the Court finds that Plaintiff's claims against Foster Wheeler, which arise from Mr. Cook's alleged exposure to asbestos while aboard the USS Mullinnix, readily satisfy both the location and connection tests. The "location test" is easily met because Plaintiff's claims against Foster Wheeler are based on alleged asbestos exposure while he was aboard the USS Mullinnix on navigable waters, either when it was at sea or in drydock. See Vasquez v. GMD Shipyard Corp., 582 F.3d 293, 299 (2d Cir. 2009) (observing that ship docked for repairs is "still in `navigable waters' for purposes of federal admiralty jurisdiction"); Phelps v. CBS Corp., No. 17-cv-08361, 2021 WL 4226037, at [*3] (S.D.N.Y. Sept. 16, 2021) (finding location test satisfied where ship was temporarily drydocked). Plaintiff's claims also satisfy the "connection test" because they are based on allegations that "a naval worker was injured during repair and/or maintenance to a completed vessel." Pritt, No. 19-cv-10651, 2022 WL 902684, at [*11] (quoting Phelps, 2021 WL 4226037, at [*3] (finding that alleged asbestos exposure satisfied the connection test)). Accordingly, the Court concludes that Plaintiff's claims against Foster Wheeler fall within admiralty jurisdiction. Thus, maritime law applies, but if and where it falls silent, Massachusetts law may apply. In light of this determination, the Court next addresses the implications for each of the specific principles, defenses, and damages identified by the parties in their briefs.

i. Product identification/causation

Foster Wheeler identifies federal maritime law concerning product identification/causation. [ECF No. 558 at 3]. Plaintiff does not dispute the substantive law cited, nor identify areas requiring supplementation by state law. The Court concludes that maritime law governs this issue.

ii. Defenses

Foster Wheeler contends that the "bare-metal" and government-contractor defenses as supplied by maritime law apply, without supplementation from state law. [ECF No. 558 at 3-4]. Plaintiff asserts that application of maritime law is unnecessary because no conflict exists between maritime law and Massachusetts' law regarding these defenses. [ECF No. 599 at 2]. Having concluded that maritime law applies, the Court clarifies that the "bare-metal" and government-contractor defenses are available should the evidence presented at trial establish their applicability.

iii. Damages

Foster Wheeler argues that maritime law prohibits Plaintiff's recovery of loss of consortium and punitive damages. [ECF No. 558 at 4-5]. Plaintiff contends that recovery of such damages is permitted under maritime law (and Massachusetts law), in

addition to survival damages. [ECF No. 599 at 2-5].

As Plaintiff points out, the authorities offered by Foster Wheeler in support of its argument largely involve claims based on the Jones Act, the Death on the High Seas Act, and unseaworthiness—none of which are invoked here. Thus, these cases are distinguishable.

On the other hand, the authorities cited by Plaintiff involving similar facts and claims are instructive. See, e.g., Pritt, No. 19-cv-10651, 2022 WL 902684, at [*18] (collecting cases) (finding maritime law permits recovery of consortium and punitive damages from manufacturer based on plaintiff's alleged exposure to asbestos-containing products while serving on naval ship). In Pritt v. John Crane Inc., recently decided by another session of this court, the court held that loss of consortium, punitive, and survival damages may be available under general maritime law. See No. 20-cv-12270, 2023 WL 4471825, at [*3]-8 (D. Mass. July 11, 2023) (collecting cases) (finding maritime law does not prohibit plaintiff-widow of veteran allegedly exposed to asbestos while working aboard a naval ship from seeking loss of consortium, punitive, and survival damages from manufacturer). The Court is persuaded by the reasoning in this case and so determines here that Plaintiff may seek loss of consortium, punitive, and survival damages.

III. CONCLUSION

Foster Wheeler's Motion, [ECF No. 477], is therefore GRANTED in part and DENIED in part.

SO ORDERED.

Sources

• The opinion on Google Scholar
• Massachusetts asbestos laws
• Massachusetts asbestos exposure sites