Stevens v. Air & Liquid Systems Corporation (D.R.I. 2017)

Our plain-English summary of Stevens v. Air & Liquid Systems Corporation (U.S. District Court, District of Rhode Island, March 16, 2017).

Suzann Stevens sued Foster Wheeler and other companies after her husband, James Stevens, died of mesothelioma. He was diagnosed in August 2013 and died in January 2015. He had served as a boiler technician aboard the USS Allagash from July 1951 to October 1952. The opinion says Foster Wheeler made the ship's boilers, used asbestos-containing materials in building them and supplied additional asbestos materials, and that he was exposed to asbestos through contact with those boilers. Foster Wheeler moved for summary judgment on several grounds: the bare metal defense, the sophisticated user defense, the government contractor defense, and a claim that maritime law bars loss of consortium damages. The plaintiff dropped her punitive damages claim. The district judge reviewed the magistrate judge's recommendation and accepted it. The judge found factual disputes about whether Foster Wheeler had a duty to warn, what the Navy knew about asbestos dangers and whether adequate warnings were given, and about each element of the government contractor defense. The judge also held that the limits on consortium damages under DOHSA and the Jones Act do not apply to general maritime law claims. The motion was denied.

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 Rhode Island
Decided: March 16, 2017
Stage: Summary judgment
State: Rhode Island

Outcome. The court accepted the magistrate judge's recommendation and denied Foster Wheeler's motion for summary judgment on the bare metal, sophisticated user, government contractor and loss of consortium issues, so the plaintiff's claims against Foster Wheeler continue.

What the court held. Under an exception to the bare metal defense, a manufacturer may be liable where its product necessarily contained asbestos components essential to its function that would necessarily be replaced with other asbestos materials. Genuine factual disputes also barred summary judgment on the sophisticated user and government contractor defenses, and general maritime law does not bar loss of consortium damages.

Issues decided: The Bare-Metal Defense, Loss of Consortium, Failure to Warn, Government Contractor Defense and Removal, Maritime Law and Navy Ships, Punitive Damages, Sophisticated User and Intermediary Defenses.

The people and their exposure

James Stevens: mesothelioma; died

Who	Work	Where	When	Products
James Stevens	boiler technician (the Navy); military service	USS Allagash	1951-1952	Foster Wheeler boilers

The defendants

Foster Wheeler, LLC (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

Bray v. Ingersoll-Rand Co. (U.S. District Court, District of Connecticut, 2015). The court granted summary judgment to defendants Aurora, BW/IP, Carrier, Crane, Nash, Warren and Weir because the plaintiffs lacked evidence tying the defendants' products to St. Jean's asbestos exposure, and it dismissed Marilyn St. Jean's derivative loss of consortium claim.

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.

SUZANN STEVENS, Personally and as Representative and Trustee of the Estate of JAMES

STEVENS, Plaintiffs,

AIR & LIQUID SYSTEMS CORPORATION, AS SUCCESSOR BY MERGER TO BUFFALO PUMPS,

INC. etal., Defendants.

C.A. No. 14-157S.

March 16, 2017.

United States District Court, D. Rhode Island.

Suzann Stevens, Plaintiff, represented by Donald P. Blydenburgh, Levy Konigsberg LLP, pro hac vice. Suzann Stevens, Plaintiff, represented by John E. Deaton, The Deaton Law Firm, Keith W. Binder, Levy Konigsberg LLP, pro hac vice & Lisa M. Cronin, The Deaton Law Firm.

Foster Wheeler, LLC, Defendant, represented by James R. Oswald, Adler Pollock & Sheehan P.C., Kristen W. Sherman, Adler Pollock & Sheehan P.C., Kathryn T.R. O'Brien, Adler Pollock & Sheehan P.C. & R. Bart Totten, Adler Pollock & Sheehan P.C..

IMO Industries, Inc., Defendant, represented by Charles K. Mone, Pierce Davis & Perritano, LLP, Maureen L. Pomeroy, Pierce, Davis & Perritano, LLP, pro hac vice, Shannon M. O'Neil, Pierce, Davis & Perritano, LLP & Zachary M. Weisberg, Pierce Davis & Perritano, LLP.

Warren Pumps, LLC, Defendant, represented by Charles K. Mone, Pierce Davis & Perritano, LLP, Judith A. Perritano, Pierce, Davis & Perritano, LLP, pro hac vice, Maureen L. Pomeroy, Pierce, Davis & Perritano, LLP, pro hac vice, Shannon M. O'Neil, Pierce, Davis & Perritano, LLP & Zachary M. Weisberg, Pierce Davis & Perritano, LLP.

Taco, Inc., Defendant, represented by Craig R. Waksler, Eckert Seamans Cherin and Mellott, LLC & Jennifer A. Whelan, Eckert Seamans Cherin & Mellott, LLC.

John Crane, Inc., Defendant, represented by Jonathan F. Tabasky, Manion Gaynor & Manning LLP & Kevin W. Hadfield, Manion Gaynor & Manning LLP, pro hac vice.

Bayer Cropscience, Inc., Cross Defendant, represented by Monica R. Nelson, Lewis Brisbois Bisgaard & Smith LLP. Foster Wheeler, LLC, Cross Defendant, represented by James R. Oswald, Adler Pollock & Sheehan P.C., Kristen W. Sherman, Adler Pollock & Sheehan P.C. & R. Bart Totten, Adler Pollock & Sheehan P.C..

IMO Industries, Inc., Cross Defendant, represented by Charles K. Mone, Pierce Davis & Perritano, LLP, Maureen L. Pomeroy, Pierce, Davis & Perritano, LLP, pro hac vice & Zachary M. Weisberg, Pierce Davis & Perritano, LLP. John Crane, Inc., Cross Defendant, represented by Jonathan F. Tabasky, Manion Gaynor & Manning LLP & Kevin W. Hadfield, Manion Gaynor & Manning LLP, pro hac vice.

Suzann Stevens, Cross Defendant, represented by John E. Deaton, The Deaton Law Firm, Lisa M. Cronin, The Deaton Law Firm & Donald P. Blydenburgh, Levy Konigsberg LLP, pro hac vice.

Taco, Inc., Cross Defendant, represented by Craig R. Waksler, Eckert Seamans Cherin and Mellott, LLC & Jennifer A. Whelan, Eckert Seamans Cherin & Mellott, LLC.

Foster Wheeler, LLC, Cross Defendant, represented by James R. Oswald, Adler Pollock & Sheehan P.C., Kristen W. Sherman, Adler Pollock & Sheehan P.C. & R. Bart Totten, Adler Pollock & Sheehan P.C..

Taco, Inc., Cross Defendant, represented by Craig R. Waksler, Eckert Seamans Cherin and Mellott, LLC & Jennifer A. Whelan, Eckert Seamans Cherin & Mellott, LLC.

Warren Pumps, LLC, Cross Defendant, represented by Charles K. Mone, Pierce Davis & Perritano, LLP, Maureen L. Pomeroy, Pierce, Davis & Perritano, LLP, pro hac vice & Zachary M. Weisberg, Pierce Davis & Perritano, LLP. Bayer Cropscience, Inc., Cross Defendant, represented by Monica R. Nelson, Lewis Brisbois Bisgaard & Smith LLP. Foster Wheeler, LLC, Cross Defendant, represented by James R. Oswald, Adler Pollock & Sheehan P.C., Kristen W. Sherman, Adler Pollock & Sheehan P.C. & R. Bart Totten, Adler Pollock & Sheehan P.C..

Taco, Inc., Cross Defendant, represented by Craig R. Waksler, Eckert Seamans Cherin and Mellott, LLC & Jennifer A. Whelan, Eckert Seamans Cherin & Mellott, LLC.

Warren Pumps, LLC, Cross Defendant, represented by Charles K. Mone, Pierce Davis & Perritano, LLP, Maureen L. Pomeroy, Pierce, Davis & Perritano, LLP, pro hac vice & Zachary M. Weisberg, Pierce Davis & Perritano, LLP. Foster Wheeler, LLC, Cross Claimant, represented by James R. Oswald, Adler Pollock & Sheehan P.C., Kristen W. Sherman, Adler Pollock & Sheehan P.C. & R. Bart Totten, Adler Pollock & Sheehan P.C..

Bayer Cropscience, Inc., Cross Defendant, represented by Monica R. Nelson, Lewis Brisbois Bisgaard & Smith LLP. CBS Corporation, Cross Defendant, represented by Thomas W. Lyons, III, Strauss, Factor, Laing & Lyons. Foster Wheeler, LLC, Cross Defendant, represented by James R. Oswald, Adler Pollock & Sheehan P.C., Kristen W. Sherman, Adler Pollock & Sheehan P.C. & R. Bart Totten, Adler Pollock & Sheehan P.C..

IMO Industries, Inc., Cross Defendant, represented by Charles K. Mone, Pierce Davis & Perritano, LLP & Maureen L. Pomeroy, Pierce, Davis & Perritano, LLP,

IMO Industries, Inc., Cross Defendant, represented by Zachary M. Weisberg, Pierce Davis & Perritano, LLP. John Crane, Inc., Cross Defendant, represented by Jonathan F. Tabasky, Manion Gaynor & Manning LLP & Kevin W. Hadfield, Manion Gaynor & Manning LLP, pro hac vice.

Lennox Industries, Inc., Cross Defendant, represented by Danielle J. Mahoney, Asquith & Mahoney P.C.. Taco, Inc., Cross Defendant, represented by Craig R. Waksler, Eckert Seamans Cherin and Mellott, LLC & Jennifer A. Whelan, Eckert Seamans Cherin & Mellott, LLC.

The Dow Chemical Company, Cross Defendant, represented by Monica R. Nelson, Lewis Brisbois Bisgaard & Smith LLP. Union Carbide Corporation, Cross Defendant, represented by Monica R. Nelson, Lewis Brisbois Bisgaard & Smith LLP. Warren Pumps, LLC, Cross Defendant, represented by Charles K. Mone, Pierce Davis & Perritano, LLP, Maureen L. Pomeroy, Pierce, Davis & Perritano, LLP & Zachary M. Weisberg, Pierce Davis & Perritano, LLP.

IMO Industries, Inc., Cross Defendant, represented by Charles K. Mone, Pierce Davis & Perritano, LLP, Maureen L. Pomeroy, Pierce, Davis & Perritano, LLP & Zachary M. Weisberg, Pierce Davis & Perritano, LLP.

John Crane, Inc., Cross Defendant, represented by Jonathan F. Tabasky, Manion Gaynor & Manning LLP & Kevin W. Hadfield, Manion Gaynor & Manning LLP, pro hac vice.

The Dow Chemical Company, Cross Defendant, represented by Monica R. Nelson, Lewis Brisbois Bisgaard & Smith LLP. The Falk Corporation, Cross Defendant, represented by Kathryn T.R. O'Brien, Adler Pollock & Sheehan P.C. & Theodorus D. Urbanski, Melick & Porter, LLP.

Union Carbide Corporation, Cross Defendant, represented by Monica R. Nelson, Lewis Brisbois Bisgaard & Smith LLP. Warren Pumps, LLC, Cross Defendant, represented by Charles K. Mone, Pierce Davis & Perritano, LLP, Maureen L. Pomeroy, Pierce, Davis & Perritano, LLP & Zachary M. Weisberg, Pierce Davis & Perritano, LLP.

MEMORANDUM AND ORDER

WILLIAM E. SMITH, Chief District Judge.

Before the Court is Defendant Foster Wheeler's Motion for Summary Judgment. (ECF No. 251.) Magistrate Judge Lincoln D. Almond recommended that Defendant's Motion be denied (Report and Recommendation, ECF No. 267), and Defendant filed an Objection (Def.'s Obj., ECF No. 269). For the reasons set forth below, the Report and Recommendation is ACCEPTED.

I. Standard of Review

The facts presented by the parties must be viewed "giving the benefit of reasonable doubt to those against whom the motion is directed." Stella v. Town of Tewksbury, Mass., 4 F.3d 53, 55 (1st Cir. 1993). The Court will then grant summary judgment only "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The Court reviews Magistrate Judge Almond's Report and Recommendation de novo. See 28 U.S.C. § 636(b)(1).

II. Background

James Stevens served as a boiler technician aboard the USS Allagash from July 7, 1951 until October 11, 1952. (Pl.'s Statement of Additional Undisputed Facts ¶¶ 88-89, ECF No. 259-2.[1]) The boilers on the Allagash were manufactured by Defendant Foster Wheeler. (Id. ¶ 87.) During construction of those boilers, Foster Wheeler used "asbestos containing materials" and also "provided additional asbestos-containing materials to be used in the boilers." (Id.) Mr. Stevens came in contact with Foster Wheeler's boilers and was exposed to asbestos. (Id. ¶ 94.) Several decades later, on August 30, 2013, Mr. Stevens was diagnosed with mesothelioma. Mr. Stevens passed away less than two years after that diagnosis, on January 19, 2015. (Id. ¶ 84.) Several experts have provided opinions linking Mr. Stevens' mesothelioma with his exposure to asbestos while aboard the Allagash. (See id. ¶¶ 99-100.)

Plaintiff brought suit against Foster Wheeler, along with several other parties, for damages relating to Mr. Stevens' exposure to asbestos. (See Compl., ECF No. 1-1.) After discovery was complete, Foster Wheeler moved for summary judgment on five grounds:

(1) Plaintiff's claims against Foster Wheeler are barred by the government contractor defense;

(2) Foster Wheeler is not liable for products it did not manufacture, design, supply, or install; (3) Plaintiff's claims against Foster Wheeler are barred by the "sophisticated user" defense;

(4) Plaintiff's claim for punitive damages is barred under maritime law; and

(5) Plaintiff's claim for loss of consortium is barred under maritime law.

(Def.'s Mot. for Summ. J. 2, ECF No. 251-1.) In response,

Plaintiff abandoned the punitive damages claim but opposed the remainder of Foster Wheeler's Motion. (See Pl.'s Opp'n to Def.'s Mot. for Summ. J. 60, ECF No. 259.) The Court therefore reviews Defendant's remaining four arguments. III. Analysis

A. The Bare Metal Defense

As a general rule, "there can be no liability. . . for asbestos exposure arising from a product (or component part) that a manufacturer defendant did not manufacture or supply." Devries v. Gen. Elec. Co., 188 F. Supp. 3d 454, 459 (E.D. Pa. 2016). This is the so-called "bare metal defense." Id. at 455-56. However, several courts have found an exception to this defense

where the defendant manufactured a product that, by necessity, contained asbestos components, where the asbestos-containing material was essential to the proper functioning of the defendant's product, and where the asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else.

Osterhout v. Crane Co., 5:14-CV-208 (MAD/DEP), 2016 U.S. Dist. LEXIS 39890, [*34] (N.D.N.Y. Mar. 21, 2016); see also Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760, 769 (N.D. Ill. 2014). Some form of this exception has been previously recognized by the District of Rhode Island, see Shepherd v. Air & Liquid Sys. Corp., C.A. No. 12-143L, 2015 WL 5703799, at [*6] (D.R.I. May 13, 2015), report and recommendation adopted, 2015 WL 5714705 (D.R.I. Sept. 29, 2015), and Defendant points to no conflicting guidance from the First Circuit.

Magistrate Judge Almond, after considering this exception to the "bare metal defense," determined that "there is a triable issue concerning whether Foster Wheeler had a duty to warn in this case." (See Report and Recommendation 7, ECF No. 267.) The Court agrees with that assessment. Therefore, the Court ACCEPTS Magistrate Judge Almond's finding that the "bare metal defense" does not warrant summary judgment in favor of Defendant.

B. Sophisticated User Defense

Under the "sophisticated user" defense, a product supplier has "no duty to warn an end user of [the] product's latent characteristics or dangers when the user knows or reasonably should know of those dangers." Taylor v. Am. Chemistry Council, 576 F.3d 16, 24-25 (1st Cir. 2009) (internal citations and footnote omitted). Where three parties are involved (i.e., a supplier of a product, an employer using the supplier's product, and an employee coming into contact with the product), the "end user" may include either the employer or "an employee who foreseeably comes into contact with the product and is injured." Id. at 25 n.6. Generally, if the "end user" is the employer, "the analysis will focus on what the intermediary already knows, and sometimes it will depend on what the manufacturer tells the intermediary." Genereux v. Am. Beryllia Corp., 577 F.3d 350, 366 (1st Cir. 2009). Alternatively, if the end user is the employee, the sophisticated user defense is only available if a defendant "establish[es] that the plaintiff (or decedent) injured by the product. . . was `sophisticated' as to the hazards of that product." Mack v. Gen. Elec. Co., 896 F. Supp. 2d 333, 343 (E.D. Pa. 2012).

Defendant argues that, in this case, the Court should consider the Navy, Mr. Stevens' employer, as the "end user." (Def.'s Mot. for Summ. J. 23-24, ECF No. 251-1.) Plaintiff argues that the Navy is the "purchaser," not the "user," and that the "sophisticated purchaser" defense is not available under maritime law. (Pl.'s Opp'n to Def.'s Mot. for Summ. J. 43, ECF No. 259 (citing Mack, 896 F. Supp. at 343).) The Court need not resolve which party is the "end user" or whether the "sophisticated purchaser" defense is available under maritime law at this time. Even assuming Defendant is correct, there remains a genuine factual dispute as to (1) what the Navy knew about the dangers of asbestos, and (2) whether Defendant provided the Navy with adequate warnings of those dangers. Magistrate Judge Almond's finding that the "sophisticated user" defense does not warrant summary judgment in favor of Defendant is therefore ACCEPTED.

C. Government Contractor Defense

"The government contractor defense. . . generally immunizes government contractors from civil liability arising out of the performance of federal procurement contracts." Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 797 (5th Cir. 1993). For Defendant to obtain summary judgment based on this defense, Defendant must demonstrate that:

(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.

Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988). As Magistrate Judge Almond explained, the record demonstrates that there are genuine issues of material fact as to all three elements of the Boyle test. Magistrate Judge Almond's recommendation that the government contractor defense does not warrant summary judgment is ACCEPTED. D. Loss of Consortium

Foster Wheeler argues that maritime law does not allow for loss of consortium damages. As the basis for this argument, Foster Wheeler points to several cases where loss of consortium damages have been prohibited for claims brought pursuant to the Death on the High Seas Act ("DOHSA") and the Jones Act. (See Def.'s Obj. 15-16, ECF No. 269-1 (citing Miles v. Apex Marine Corp., 498 U.S. 19 (1990) and Horsley v. Mobil Oil Corp., 14 F.3d 200 (1st Cir. 1994).) But Plaintiff's claims are not brought under either DOHSA or the Jones Act. And, as Judge Underhill of the District of Connecticut has noted, defendants who argue "that general maritime law does not allow recovery for loss of consortium claims. . . conflate the statutory limitations placed on recovery for cases brought under [DOHSA and the Jones Act] with actions brought under common law." Bray v. Ingersoll-Rand Co., No. 3:13-CV-1561 SRU, 2015 WL 728515, at [*7] n.16 (D. Conn. Feb. 19, 2015). This District has previously agreed with that analysis. See Shepherd, 2015 WL 5703799, at [*7], report and recommendation adopted, 2015 WL 5714705. Absent alternative guidance from the First Circuit, the Court will continue to apply the holding in Shepherd. Magistrate Judge Almond's Report and Recommendation as to Plaintiff's loss of consortium claim is ACCEPTED. IV. Conclusion

For the foregoing reasons, the Report and Recommendation (ECF No. 267) is ACCEPTED and Defendant's Motion for Summary Judgment (ECF No. 251) is DENIED.

IT IS SO ORDERED.

[1] The Court notes that Defendant has not contested any of the facts set forth in Plaintiff's Statement of Additional Undisputed Facts. See LR Cv 56(a)(5) ("If an objecting party files a separate statement of additional undisputed facts and the movant contests any of those facts, the movant shall file a separate statement setting forth what additional facts are disputed. . . .").

Sources

This page is provided for general informational purposes and does not constitute legal advice. Every asbestos case turns on its own facts, exposure history, diagnosis, deadlines, available evidence, and applicable law. Reviewing this page does not create an attorney-client relationship. For advice about your specific situation, call 833-4-ASBESTOS for a free case review.

Asbestos

Exposure

Look it up

By location

Cell types

Treatment & help

Cancers

Lung disease

Not sure

Trust claims

Lawsuits

Benefits

Guides & deadlines

Look up

History

Read & watch

The firm

Reach us

Stevens v. Air & Liquid Systems Corporation (2017)

The decision

The people and their exposure

The defendants

Decisions this opinion cites

The court's opinion

Sources

How to cite it

Talk with an asbestos lawyer