Filer v. Foster Wheeler LLC, MDL No. 875.

• Decision Date: 29 January 2014
• Docket Number: E.D. PA Civil Action No. 2:12–60034–ER.,Transferred from the Northern District of California Case No. 12–00514.,MDL No. 875.
• Citation: 994 F.Supp.2d 679
• Parties: David FILER, Plaintiff, v. FOSTER WHEELER LLC, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

994 F.Supp.2d 679

David FILER, Plaintiff,
v.
FOSTER WHEELER LLC, et al., Defendants.

MDL No. 875.
Transferred from the Northern District of California Case No. 12–00514.
E.D. PA Civil Action No. 2:12–60034–ER.¹

United States District Court,
E.D. Pennsylvania.

Jan. 29, 2014.

[994 F.Supp.2d 681]

Alan R. Brayton, David R. Donadio, Geoff T. Sloniker, Kimberly J.W.J. Chu, Richard Martin Grant, Brayton–Purcell LLP, Novato, CA, for Plaintiff.

Edward R. Hugo, Charles S. Park, Shelley K. Tinkoff, Gregory S. Rosse, Brydon Hugo & Parker, San Francisco, CA, Daniel James Kelly, Peggy Doyle, Tucker Ellis LLP, San Francisco, CA, Russell Schatz, Kevin Douglas Jamison, Pond North LLP, Los Angeles, CA, Derek S. Johnson, Charles T. Sheldon, Walsworth Franklin Bevins & McCall LLP, San Francisco, CA, Gabriel A. Jackson, James J. O'Brien, Jackson Jenkins Renstrom LLP, San Francisco, CA, Todd Marshall Thacker, Jackson Jenkins Revstrom, San Francisco, CA, Richard S. Chon, Perkins Coie LLP, San Francisco, CA, for Defendants.

MEMORANDUM
EDUARDO C. ROBRENO, District Judge.
TABLE OF CONTENTS

I.	BACKGROUND	682
II.	LEGAL STANDARD	683

A.	Summary Judgment Standard	683
B.	The Applicable Law (Maritime Law)	684
C.	Negligence Liability Under Maritime Law	685

III. DISCUSSION
686

A.	A Navy Ship Is Not Itself a “Product” Under Maritime Strict Product Liability Law	686
B.	Rejection of Defendants' Arguments	687
C.	Scope of Duty and Application of Negligence Law	693

IV. CONCLUSION
695

[994 F.Supp.2d 682]

Before the Court is the issue whether, under maritime law, a builder of Navy ships is liable under a negligence theory for asbestos-related injuries arising from products it installed aboard a ship. The Court has previously broached this issue under certain limited factual scenarios. See, e.g., Robertson v. Carrier Corp., No. 09–64068, 2012 WL 7760441, at *1 (E.D.Pa. Nov. 8, 2012) (Robreno, J.) (denying summary judgment on negligence claims where plaintiff presented evidence of negligent conduct by Defendant Todd Shipyards' employees in performing maintenance and repair work aboard a ship many years after the ship was provided to the Navy); Weaver v. Todd Pacific Shipyard Corp., No. 09–92273, 2012 WL 7760436, at *1 (E.D.Pa. Dec. 11, 2012) (Robreno, J.) (same); Lewis v. Todd Shipyard Corp., No. 11–67658, 2013 WL 1880792, at *1 (E.D. Pa. April 4, 2013) (Robreno, J.) (same); Young v. Georgia Pacific Corp., No. 11–67757 (ECF No. 114 at 11, later amended on other grounds by ECF No. 122) (E.D.Pa. Nov. 30, 2012) (granting summary judgment on negligence claim where Plaintiff failed to provide evidence that Defendant Huntington Ingalls knew or had reason to know that the product at issue was hazardous to plaintiff, as required for a negligence claim, and as set forth in Section 388(a) of the Restatement (Second) of Torts).

In these cases, the Court cited to Supreme Court precedent regarding negligence under maritime law, stating that, “[a]s a matter of law, [the shipbuilder] Defendant owed Plaintiff a duty of reasonable care under the circumstances.” Id. (citing Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 813–15, 121 S.Ct. 1927, 1929–31, 150 L.Ed.2d 34 (2001); East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866, 106 S.Ct. 2295, 2299, 90 L.Ed.2d 865 (1986) (citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 632, 79 S.Ct. 406, 410, 3 L.Ed.2d 550 (1959)); Hess v. U.S., 361 U.S. 314, 323, 80 S.Ct. 341, 348, 4 L.Ed.2d 305 (1960) (citing Kermarec )).

Now, some shipbuilder defendants in the MDL seek reconsideration or clarification of the Court's prior rulings on this issue. The facts of the instant cases present the Court with an opportunity to address more comprehensively under maritime law a Navy shipbuilder's liability on a negligence theory.

For the reasons that follow, the Court holds that, under maritime law, a builder of a Navy ship (like any other entity or individual) is liable in negligence if it failed to exercise reasonable care under the circumstances. In light of this long-standing and well-established rule of law, Defendants' motions for summary judgment on Plaintiffs' negligence claims on grounds that there was no duty to warn Plaintiffs about the hazards of the products installed aboard Navy ships is denied. On the other hand, Defendants' motions for summary judgment on Plaintiffs' strict liability claims are granted because, as set forth in Mack v. General Electric Co., 896 F.Supp.2d 333 (E.D.Pa.2012) (Robreno, J.), a Navy ship is not a product within the meaning of strict product liability law.

I. BACKGROUND

The cases before the Court were transferred from the United States District Court for the Northern District of California to the United States District Court for

[994 F.Supp.2d 683]

the Eastern District of Pennsylvania as part of MDL–875. Plaintiffs, who worked aboard Navy ships (or are the heirs and/or successors-in-interest to those who worked aboard Navy ships),² allege that they were exposed to asbestos from insulation installed by Defendants aboard Navy ships at various times, while employed at different locations, which were usually shipyards. Plaintiffs have brought both negligence and strict product liability claims against a number of defendants, alleging, inter alia, that Defendants are liable for failing to warn them of the hazards of asbestos associated with asbestos-containing products (here, insulation) manufactured by others but installed by Defendants.

Defendants are builders of Navy ships: Puget Sound Commerce Center, Inc. (formerly known as Todd Shipyards Corporation) (“Todd Shipyards”), Huntington Ingalls Incorporated (formerly known as Northrop Grumman Shipbuilding and Newport News Shipbuilding and Dry Dock Company and successor to Avondale Shipyard and Ingalls Shipbuilding) (“Huntington Ingalls”), and General Dynamics Corporation (“General Dynamics”) (collectively, “Defendants”). Each Defendant has moved for summary judgment, contending, inter alia, that it is free from liability in this case because it had no duty to warn regarding the various asbestos-containing products it installed aboard ships it built for the Navy. Defendants have further asserted that they are not liable on a negligence claim because this Court previously ruled that they are not liable on a strict product liability theory (due to the Court's determination that a Navy ship is not a “product” to which strict product liability theory applies). See Mack, 896 F.Supp.2d at 346. Defendants contend that any liability sounding in negligence would be inconsistent with this Court's holding in Mack.

II. LEGAL STANDARDA. Summary Judgment Standard

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A motion for summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir.2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is “material” if proof of its existence or non-existence might affect the outcome of the litigation, and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

In undertaking this analysis, the court views the facts in the light most favorable to the non-moving party. “After making all reasonable inferences in the nonmoving party's favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir.2010) (citing Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.1997)). While the moving party bears the initial burden of showing the absence of a genuine issue of material fact, meeting this obligation shifts the burden to the non-moving party who must “set forth specific facts showing that there is a genuine issue

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for trial.” Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

B. The Applicable Law (Maritime Law)

The parties assert that either maritime law or California law applies to these cases. In this Circuit, where a case sounds in admiralty, application of a state's law is inappropriate. Gibbs ex rel. Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 131–32 (3d Cir.2002). Therefore, if the Court determines that maritime law applies, the analysis ends there and the Court applies maritime law. See id.

Whether maritime law is applicable is a threshold dispute that is a question of federal law, seeU.S. Const. Art. III, § 2, cl. 1; 28 U.S.C. § 1333(1), and is therefore governed by the law of the circuit in which the MDL court sits. See Various Plaintiffs v. Various Defendants (“Oil Field Cases”), 673 F.Supp.2d 358, 362 (E.D.Pa.2009) (Robreno, J.). This Court has previously set forth guidance on this issue. See Conner v. Alfa Laval, Inc., 799 F.Supp.2d 455 (E.D.Pa.2011) (Robreno, J.).

In order for maritime law to apply, a plaintiff's exposure underlying a product liability claim must meet both a locality test and a connection test. Id. at 463–66 (discussing Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995)). 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. Id. 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. See Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990). This Court has previously clarified that this includes work aboard a ship that is in “dry dock.” See Deuber v. Asbestos Corp., No....