Dumas v. ABB Grp., Inc.
| Decision Date | 04 June 2014 |
| Docket Number | Civil Action No. 13–229–SLR–SRF |
| Citation | 46 F.Supp.3d 477 |
| Parties | Arthur Dumas, Plaintiff, v. ABB Group, Inc., et al., Defendants. |
| Court | U.S. District Court — District of Delaware |
Elizabeth Barnes Lewis, Raeann Warner, Thomas C. Crumplar, Jacobs & Crumplar, P.A., Wilmington, DE, for Plaintiff.
Oleh V. Bilynsky, O'Brien Firm, Wilmington, DE, Barbara Anne Fruehauf, Peter John Faben, Wilbraham Lawler & Buba, Nicholas E. Skiles, Beth E. Valocchi, Swartz Campbell LLC, Ana Marina McCann, Armand J. Della Porta, Jr., Marshall, Dennehey, Warner, Coleman & Goggin, Eileen M. Ford, Megan Trocki Mantzavinos, Jessica Lee Tyler, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Paul A. Bradley, Donald Robert Kinsley, Stephanie Ann Fox, Maron Marvel Bradley & Anderson LLC, Kelly A. Costello, Morgan Lewis & Bockius LLP, Ronald L. Daugherty, Sally J. Daugherty, Salmon Ricchezza Singer & Turchi LLP, Wilmington, DE, John C. Phillips, Jr., Phillips, Goldman & Spence, P.A, for Defendants.
Presently before the court in this asbestos-based personal injury action are cross-motions to establish applicable substantive law.1 (D.I. 322 & 323) The Plaintiff, Arthur Dumas (“Plaintiff”), argues that Virginia law should apply to this case. (D.I. 322 at 1) The Defendants counter that maritime law should govern. (D.I. 324 at 1) For the reasons that follow, Plaintiff's motion is DENIED, and Defendants' motion is GRANTED.
Plaintiff initiated this action by filing a complaint in the Superior Court of Delaware on December 14, 2012. (D.I.1, Ex. A) The complaint asserts various causes of action arising out of Plaintiff's alleged exposure to asbestos throughout his employment. (Id. )
On February 13, 2013, the case was removed to this court by Defendant Yarway Corporation, pursuant to 28 U.S.C. § 1442(a)(1), the federal officer removal statute.2 (D.I.1) Plaintiff filed his Second Amended Complaint on July 12, 2013. (D.I.132)
On January 28, 2014, the parties notified the court of their dispute concerning the applicable substantive law and requested leave to file legal memoranda on their respective positions. (D.I. 315; D.I. 317) The court granted the parties' request on February 5, 2014.
On March 31, 2014, the court held oral argument on the motions to establish applicable substantive law.
Plaintiff served in the U.S. Navy for approximately 20 years, from June 1954 to August 1974. (D.I.322, Exs.A, B) Plaintiff alleges that he was exposed to asbestos throughout his service, at various naval stations and on naval ships. (D.I. 132 at 7–8) The ships included the USS Guide, Franklin D. Roosevelt, Forrestal, Enterprise, Ogden, Tidewater, and Vulcan. (D.I.322, Exs.A, B)
According to Plaintiff, “[t]he overwhelming majority of [his] exposure [ ] relates to the times he served out of Virginia on the USS Forrestal—from about 1958–60 and about 1971–74, and the USS Enterprise pre-commissioning from 1960–61.”3 (D.I. 330 at 2; D.I. 322 at 3) Plaintiff further states that “[a]lthough [his] work was confined to the ships, the record is unclear whether the majority of the exposure occurred at shipyards or on the high seas.” (D.I. 322 at 7)
“Normally, this court would apply the choice of law rules of the forum state—in this case, those of [Delaware]—” to determine what substantive law governs an action. Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 131 (3d Cir.2002) (citing Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) ). “However, if the case sounds in admiralty, it would be inappropriate to apply [Delaware] law or any other state's law, instead of federal admiralty law.” Id. See also 28 U.S.C. § 1333(1).4 Therefore, “[t]he initial step in the choice of law analysis is to determine whether this case ‘sounds in admiralty.’ ” Gibbs, 314 F.3d at 131.
This threshold dispute is a question of federal law, which is governed by the law of the circuit in which the district court sits. Conner v. Alfa Laval, Inc., 799 F.Supp.2d 455, 460 (E.D.Pa.2011) (citing U.S.C.A. Const. Art. III, § 2; 28 U.S.C. § 1333(1) ; In re Asbestos Prods. Liab. Litig. (Oil Field Cases ), 673 F.Supp.2d 358, 362 (E.D.Pa.2009) ). “And it is an important one requiring cognizance of the balance between state and federal authority, because the applicability of maritime jurisdiction results in federal maritime law displacing state law.” Conner, 799 F.Supp.2d at 460 (citations omitted).
“The initial step in the choice of law analysis is to determine whether this case ‘sounds in admiralty.’ ”5 Gibbs, 314 F.3d at 131.
In order for maritime law to apply, a plaintiff's exposure underlying a products liability claim must meet both a locality test and a connection test. In Jerome B. Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), the Supreme Court defined these tests as follows:
A court applying the location test must determine whether the tort occurred on navigable water or whether injury suffered on land was caused by a vessel on navigable water. The connection test raises two issues. A court, first, must “assess the general features of the type of incident involved,” to determine whether the incident has “a potentially disruptive impact on maritime commerce [.]” Second, a court must determine whether “the general character” of the “activity giving rise to the incident” shows a “substantial relationship to traditional maritime activity.”
Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (internal citations omitted). See also Gibbs, 314 F.3d at 131–32.
In the present case, the location and connection tests are satisfied and, therefore, maritime law applies. At the outset of the court's analysis, it should be noted that although the parties dispute the characterization of Plaintiff's work for the Navy (i.e., “sea-based serviceman” versus “land-based shipyard worker” (see D.I. 322 at 7; D.I. 332 at 2)), it is undisputed that the majority of Plaintiff s alleged asbestos exposure, including the Virginia-based6 exposure, occurred aboard naval vessels, whether at sea or docked at various shipyards.
The locality test requires that the tort occur on navigable waters or, for injuries suffered on land, that the injury be caused by a vessel on navigable waters. Grubart, 513 U.S. at 534, 115 S.Ct. 1043. In Conner v. Alfa Laval, Inc., District Judge Robreno (presiding in MDL No. 875—the multidistrict asbestos products liability litigation) explained that “the locality test is satisfied as long as some portion of the asbestos exposure occurred on a vessel on navigable waters.”7 Conner, 799 F.Supp.2d at 466. “In assessing whether work was on ‘navigable waters' (i.e., was sea-based) it is important to note that work performed aboard a ship that is docked at the shipyard is sea-based work, performed on navigable waters.”8 Leonard v. CBS Corp., 2014 WL 345216, at *1 n. 1 (E.D.Pa. Jan. 28, 2014) (citing Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990) ). See also Deuber v. Asbestos Corp., 2011 WL 6415339, at *1 n. 1 (E.D.Pa. Dec. 2, 2011) ().9
Here, the locality test is met because the vast majority of Plaintiff's alleged asbestos exposure occurred on vessels on navigable waters—regardless of whether the exposure was aboard ships at sea or docked at various shipyards.10
The connection test requires that the “type of incident involved” have “ ‘a potentially disruptive impact on maritime commerce,’ ” and that “ ‘the general character’ of the ‘activity giving rise to the incident’ shows a ‘substantial relationship to traditional maritime activity.’ ” Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (quoting Sisson, 497 U.S. at 364, 365 & n. 2, 110 S.Ct. 2892 ).
However, where a worker whose claims meet the locality test was primarily sea-based during the asbestos exposure, those claims will almost always meet the connection test necessary for application of maritime law. Conner, 799 F.Supp.2d at 467–69 (citing Grubart, 513 U.S. at 534, 115 S.Ct. 1043 ). “This is particularly true in cases in which the exposure has arisen as a result of work aboard Navy vessels, either by Navy personnel or shipyard workers.”Leonard, 2014 WL 345216, at *1 n. 1 (citing Conner, 799 F.Supp.2d at 467–69 ).
This inquiry “turns[ ] ... on a description of the incident at an intermediate level of possible generality,” requiring the court to consider “whether the incident could be seen within a class of incidents that posed more than a fanciful risk to commercial shipping.” Grubart, 513 U.S. at 538–39, 115 S.Ct. 1043. The inquiry goes to “potential effects, not to the particular facts of the incident.” Id. at 538, 115 S.Ct. 1043.
The “type of the incident involved” in this case could be described as one of “injury to workers on Navy ships on navigable waters allegedly caused by defective parts” or “exposure to allegedly defective products on or around Navy ships on navigable waters.” See Cabasug v. Crane Co., 956 F.Supp.2d 1178, 1188–89 (D.Haw.2013) ; Conner, 799 F.Supp.2d at 467. In any case, it is clear that the incident involves an alleged injury on Navy ships. Moreover, given these descriptions, “there is little question that this is the kind of incident that has a ‘potentially disruptive impact on maritime commerce.’ ” Grubart, 513 U.S. at 539, 115 S.Ct. 1043. Indeed, in Connor, the MDL Court observed that such an incident could disrupt maritime commerce in a number of ways:
[E]xposure to defective products creates unsafe working conditions that could cause labor shortages on the ships...
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