795 F.2d 301 (3rd Cir. 1986), 85-5538, Smith v. Johns-Manville Corp.

Docket Nº85-5538.
Citation795 F.2d 301
Party NameMarshall A. SMITH, et al. v. JOHNS-MANVILLE CORPORATION, et al. HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. and HOOKER CHEMICALS & PLASTICS CORPORATION, Defendant and Third-Party Plaintiff, v. RAYBESTOS MANHATTAN, INC. and BELL ASBESTOS MINES, LTD., Defendant
Case DateJuly 03, 1986
CourtUnited States Courts of Appeals, Court of Appeals for the Third Circuit

Page 301

795 F.2d 301 (3rd Cir. 1986)

Marshall A. SMITH, et al.

v.

JOHNS-MANVILLE CORPORATION, et al.

HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

and

HOOKER CHEMICALS & PLASTICS CORPORATION, Defendant and

Third-Party Plaintiff,

v.

RAYBESTOS MANHATTAN, INC.

and

BELL ASBESTOS MINES, LTD., Defendant and Third Party Plaintiff,

v.

RAYBESTOS-MANHATTAN, INC., et al., Third-Party Defendants.

Michael CEISWICH, et al.

v.

JOHNS-MANVILLE CORPORATION, et al.

HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al.

and

BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff,

v.

ADVOCATE MINES, LTD., et al., Third-Party Defendants.

Joseph ARDIN and Rose Ardin, his wife, et al.

v.

JOHNS-MANVILLE CORPORATION, et al.

HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

and

BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third Party Defendants.

RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff,

v.

ADVOCATE MINES, LTD., et al., Third-Party Defendants.

Betty P. ESPOSITO, Individually and as Executrix of the

Estate of Robert I. Esposito, deceased

v.

JOHNS-MANVILLE CORPORATION, et al.

HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

and

BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff,

v.

ADVOCATE MINES, LTD., et al., Third-Party Defendants.

Watts CHERNESKY and Mary Chernesky, his wife, et al.

v.

JOHNS-MANVILLE CORPORATION, et al.

HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

and

BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff,

v.

ADVOCATE MINES, LTD., et al., Third-Party Defendants.

KARPINECZ, Thomas, Sr. and Filomena Karpinecz, his wife

v.

JOHNS-MANVILLE CORPORATION, et al.

HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

and

BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff,

v.

ADVOCATE MINES, LTD., et al., Third-Party Defendants.

Calvin RANDOLPH and Joyce Randolph, his wife, et al.

v.

JOHNS-MANVILLE CORPORATION, et al.

HOOKER CHEMICALS & PLASTICS CORP., Raybestos-Manhattan,

Inc.; and Bell Asbestos Mines, Ltd.,

Defendants-Third Party Plaintiffs,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff,

v.

ADVOCATE MINES, LTD., et al., Third-Party Defendants.

Edward Sherman LOWER; William J. Kenvin and Dorothy D.

Kenvin, his wife

v.

JOHNS-MANVILLE CORPORATION, et al.

HOOKER CHEMICALS & PLASTICS CORP., Raybestos-Manhattan,

Inc.; and Bell Asbestos Mines, Ltd.,

Defendants-Third Party Plaintiff,

v.

LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants.

RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff,

v.

ADVOCATE MINES, LTD., et al., Third-Party Defendants.

Appeal of UNITED STATES of America.

No. 85-5538.

United States Court of Appeals, Third Circuit

July 3, 1986

Page 302

[Copyrighted Material Omitted]

Argued April 14, 1986.

Reargued June 3, 1986.

Page 303

Scott D. Austin, Trial Atty. (argued), Richard K. Willard, Acting Asst. Atty. Gen., Thomas W. Greelish, U.S. Atty., Harold J. Engel, Acting Director, Torts Branch, Mary Catherine Cuff, Chief Civil Div., Joseph B. Cox, Jr., Asst. Director,

Page 304

Torts Branch, U.S. Dept. of Justice, Washington, D.C., for appellant.

Michael S. Giannotto (argued), David Booth Beers, Shea & Gardner, Washington, D.C., Joseph P. LaSala, Joseph F. Lagrotteria, Robinson, Wayne, Levin, Riccio, & La Sala, Newark, N.J., for appellee Brinco Mining Ltd. now Cassiar Mining Corp.

Alexander P. Waugh, Jr. (Argued), William J. Brennan, III, Robert D. Gilbert, Smith, Stratton, Wise, Heher & Brennan, Princeton, N.J., for appellee Bell Asbestos Mines, Ltd.

Peter W. Sachs, Sachs & Sachs, Holmdel, N.J., for appellee Hollingsworth & Vose Co.

Kathleen F. Moran, Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, Livingston, N.J., for appellee, Raymark Industries.

Before SEITZ, HIGGINBOTHAM and BECKER, Circuit Judges.

Before HUNTER, HIGGINBOTHAM, and BECKER, Circuit Judges [*].

OPINION

JAMES HUNTER, III Circuit Judge:

This case requires us to decide whether the General Service Administration's decision to sell surplus asbestos "as is," without warnings or warranties, falls within the discretionary function exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Sec. 2680(a) (1982). Jurisdiction before the district court was based on the FTCA, 28 U.S.C. Secs. 1346(b), 2671-80 (1982). Appellate jurisdiction is proper under 28 U.S.C. Sec. 1292(b) (1982). The district court determined that the government could be held liable for the asbestos sales under the FTCA. Because we conclude that the discretionary function exception protects the government's conduct, we will reverse.

I.

These consolidated cases were originally filed by approximately eighty present or former employees of the Manville, New Jersey, plant of the Johns-Manville Corporation. Plaintiffs alleged that they or their decedents had suffered injuries as a result of exposure to asbestos products supplied by defendants, including defendants Bell Asbestos Mines, Ltd. and Cassiar Mining Corporation. 1 Certain defendants filed cross-claims and third-party claims against the United States for indemnity and contribution on the grounds that the government also had supplied asbestos to the Johns-Manville plant.

In December 1982, the government moved for dismissal of the third-party claims. The government argued that the General Service Administration's failure to place warnings on the asbestos was conduct protected from tort liability under the FTCA's discretionary function exception. The magistrate who heard the motion concluded that the exception did not apply, and recommended that the district court deny the government's motion entirely. In July 1984, the district court determined that the facts of the case would not support the asbestos companies' claims for indemnification, and accordingly granted the government's motion with regard to that theory. The court agreed with the magistrate's report that the exception was inapplicable, however, and denied the government's motion to dismiss the third-party claims for contribution.

In reaching its decision, the court noted that the record failed to reveal specific congressional directions to sell the asbestos without warnings. The court also found that the government did not affirmatively make a policy decision concerning warning labels. From these findings, the court reasoned that the decision not to warn was not the type of conduct Congress intended to protect from tort claims by the discretionary function exception, because "to the extent

Page 305

an exercise of discretion entered the decision to warn, it was not that of a governmental policy maker, but merely that of a commercial supplier."

In January 1985, the government moved for reconsideration of its motion in the wake of our decision in General Public Utilities Corp. v. United States, 745 F.2d 239 (3d Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1227, 84 L.Ed.2d 365 (1985), the first Third Circuit case interpreting the Supreme Court's construction of the discretionary function exception in United States v. S.A. Empresa de Viacao Aerea Rio Grandense, 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) ("Varig Airlines"). The court denied the motion for reconsideration, but granted the government's alternative motion for certification as an interlocutory order under 28 U.S.C. Sec....

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39 practice notes
  • 127 F.Supp.2d 814 (S.D.Tex. 2001), Civ. A. G-00-190, Winters v. United States
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • January 12, 2001
    ...purchasers of used postal vehicles of the vehicles' greater than normal roll-over risk was discretionary); Smith v. Johns-Manville Corp., 795 F.2d 301, 308 (3d Cir. 1986) (finding that the government's decision to sell surplus asbestos "as is" was In this matter, NASA's decision t......
  • 55 F.Supp.2d 575 (S.D.Miss. 1999), Civ. A. 496CV138, Bragg v. United States
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Mississippi
    • April 2, 1999
    ...issue, but on whether the action taken or not taken is "susceptible to policy analysis"); Smith v. Johns-Manville Corp., 795 F.2d 301, 308-09 (3d Cir. 1986) ("The test is not whether the government actually considered each possible alternative in the universe of options, but ......
  • 817 F.2d 560 (9th Cir. 1987), 86-5578, Baker v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 18, 1987
    ...Id. at 246 n. 8. The validity of Griffin remains an open question in the Third Circuit. See Smith v. Johns-Manville Corp., 795 F.2d 301, 309 n. 13 (3d Cir.1986). The Eleventh Circuit has concluded that Griffin is consistent with Varig. See Alabama Elec. Coop., Inc. v. United States, 769 F.2......
  • 851 F.2d 1471 (D.C. Cir. 1988), 87-5124, Wells v. U.S.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • July 19, 1988
    ...in isolation." Brief for Appellants at 32-33. Neither case supports the government's argument. In Smith v. Johns-Manville Corp., 795 F.2d 301 (3d Cir.1986), asbestos suppliers sued the United States for indemnity and contribution for employees' injuries. The court held that the General......
  • Request a trial to view additional results
39 cases
  • 127 F.Supp.2d 814 (S.D.Tex. 2001), Civ. A. G-00-190, Winters v. United States
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • January 12, 2001
    ...purchasers of used postal vehicles of the vehicles' greater than normal roll-over risk was discretionary); Smith v. Johns-Manville Corp., 795 F.2d 301, 308 (3d Cir. 1986) (finding that the government's decision to sell surplus asbestos "as is" was In this matter, NASA's decision t......
  • 55 F.Supp.2d 575 (S.D.Miss. 1999), Civ. A. 496CV138, Bragg v. United States
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Mississippi
    • April 2, 1999
    ...issue, but on whether the action taken or not taken is "susceptible to policy analysis"); Smith v. Johns-Manville Corp., 795 F.2d 301, 308-09 (3d Cir. 1986) ("The test is not whether the government actually considered each possible alternative in the universe of options, but ......
  • 817 F.2d 560 (9th Cir. 1987), 86-5578, Baker v. United States
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • May 18, 1987
    ...Id. at 246 n. 8. The validity of Griffin remains an open question in the Third Circuit. See Smith v. Johns-Manville Corp., 795 F.2d 301, 309 n. 13 (3d Cir.1986). The Eleventh Circuit has concluded that Griffin is consistent with Varig. See Alabama Elec. Coop., Inc. v. United States, 769 F.2......
  • 851 F.2d 1471 (D.C. Cir. 1988), 87-5124, Wells v. U.S.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the District of Columbia Circuit
    • July 19, 1988
    ...in isolation." Brief for Appellants at 32-33. Neither case supports the government's argument. In Smith v. Johns-Manville Corp., 795 F.2d 301 (3d Cir.1986), asbestos suppliers sued the United States for indemnity and contribution for employees' injuries. The court held that the General......
  • Request a trial to view additional results