Gehant v. Foster Wheeler Energy Corp.

Docket NumberCivil Action 2:20cv381 (RCY)
Decision Date03 March 2022
PartiesRHONDA RAE JENNER GEHANT, Personal Representative of the Estate of JEROME J. GEHANT, deceased, Plaintiff, v. FOSTER WHEELER ENERGY CORPORATION, et al., Defendants.
CourtU.S. District Court — Eastern District of Virginia


This matter is before the Court on Defendant's Motion for Summary Judgment (ECF No. 40). The motion has been fully briefed, and the Court dispenses with oral argument because the facts and legal contentions are adequately presented in the materials before the Court, and oral argument would not aid in the decisional process. E.D. Va. Loc. Civ. R. 7(J). For the reasons stated below, the Court will deny Defendant's Motion for Summary Judgment (ECF No. 40).


Jerome J. Gehant (Gehant) served in the United States Navy (“Navy”) from March 23, 1967 through December 21, 1970. (Am. Compl. ¶ 4, ECF No. 66.) Gehant's first and only assignment, after attending boilerman training, was on the USS America. (Mem Supp. at 8, ECF No. 41; Resp. Opp'n at 5, ECF No. 42.)[1] Gehant spent the duration of his service as a boiler technician. (Mem. Supp. at 8-9.)

The Navy contracted with Foster Wheeler Energy Corp. (Foster Wheeler or Defendant[2]) to manufacture boilers for aircraft carriers, including the USS America, which was laid down in 1961 and launched in 1964. (Id. at 8.) Gehant performed maintenance on the boilers, which included cleaning, repairing, and replacing gaskets. (Id. at 9.) Plaintiff also alleges that Gehant dealt with insulation on the boilers. (Resp. at 6-7.) Plaintiff alleges that the insulation, gaskets, insulating cement, and packing on, around, and inside the boilers contained asbestos. (Id. at 7-8.) While performing maintenance on the boilers, Gehant claims to have been exposed to and to have inhaled asbestos dust. (Am. Compl. ¶ 19.)

Plaintiff alleges that the Foster Wheeler boilers did not contain warnings about the dangers of asbestos. (See Am. Compl. ¶¶ 17-18.) Plaintiff contends that Foster Wheeler knew that asbestos and asbestos-containing products posed a significant health risk. (Id. ¶ 22.)

On May 24, 2019, Gehant was diagnosed with malignant mesothelioma. (Id. ¶ 5.) Plaintiff alleges that this condition was caused by the asbestos Gehant was exposed to during his service in the Navy. (Id. ¶ 1.) Gehant died as a result of his mesothelioma on August 12, 2021. (Id. ¶ 29.) Rhonda Rae Jenner Gehant was named personal representative of Gehant's estate. (ECF No. 59.)


On July 22, 2020, Defendants removed this action from the Circuit Court for the City of Norfolk to the United States District Court for the Eastern District of Virginia. (ECF No. 1.) The case was assigned to Judge Arenda L. Wright Allen. Defendants filed copies of their Answers on July 22, 2020. (ECF Nos. 4-12.)

On January 5, 2021, the action was reassigned to the undersigned. On January 12, 2021, an Order stayed the case for four of the Defendants that had previously filed bankruptcy petitions (ECF No. 24.) From March 13, 2021 to September 28, 2021, Plaintiff stipulated to the dismissal of all the remaining Defendants, with the exception of Foster Wheeler, and the Court issued orders dismissing those Defendants from this action. (ECF Nos. 31-32, 48, 49-50, 53, 56-58, 60.)

On April 29, 2021, Foster Wheeler filed a Motion for Summary Judgment and a Memorandum in Support. (ECF Nos. 40-41.) Plaintiff filed a Response in Opposition on May 13, 2021. (ECF No. 42.) Foster Wheeler filed a Reply on May 19, 2021. (ECF No. 43.) On June 3, 2021, Plaintiff filed a Notice of Supplemental Authority. (ECF No. 46.) Foster Wheeler filed a Response on June 4, 2021. (ECF No. 47.) On October 5, 2021, Foster Wheeler filed a Notice of Supplemental Authority. (ECF No. 62.) Plaintiff filed a Response on October 8, 2021. (ECF No. 63.)

On September 24, 2021, Plaintiff filed a Motion for Leave to File First Amended Complaint and to Substitute Party Plaintiff. (ECF No. 59.) The Court issued an Order granting said motion on September 28, 2021. (ECF No. 60.) Plaintiff filed an Amended Complaint on November 1, 2021. (ECF No. 66.)


The Federal Rules of Civil Procedure provide the standard of review for this case. Rule 56(a) provides that summary judgment should be granted “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 need only consider the cited materials . . . .” Fed.R.Civ.P. 56(c)(3); see Arvon v. Liberty Mut. Fire Ins. Co., No. 20-1249, 2021 WL 3401258, at *3 (4th Cir. Aug. 4, 2021). The Court must determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 243 (1986). The evidence must be viewed “in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002).


Defendant's Motion for Summary Judgment rests on three grounds: (1) Plaintiff cannot meet its burden to establish that Defendant owed Gehant a duty to warn under the DeVries test, (2) Plaintiff's claims are barred by the government contractor defense, and (3) there is no causal connection between Defendant's alleged failure to warn and Plaintiff's claimed injuries. (Mem. Supp. at 6, ECF No. 41.)

A. Duty to Warn - DeVries Test

Until the Supreme Court's ruling in Air & Liquid Systems Corp. v. DeVries, federal and state courts were split between three different analytical approaches for maritime duty to warn claims when the manufacturer's product required incorporation of a dangerous part in order for the product to function as intended. See 139 S.Ct. 986 (2019). The most lenient approach was the foreseeability standard, which instructed that a “manufacturer may be liable when it was foreseeable that the manufacturer's product would be used with another product or part, even if the manufacturer's product did not require use or incorporation of that other product or part.” Id. at 993. On the other side of the spectrum was the bare-metal defense, which instructed that a manufacturer was not liable if it “did not itself make, sell, or distribute the part or incorporate the part . . . even if the product required incorporation of the part and the manufacturer knew that the integrated part was likely to be dangerous for its intended uses.” Id. The Supreme Court went with the third approach, a middle ground, under which “a manufacturer does have a duty to warn when its product requires incorporation of a part and the manufacturer knows or has a reason to know that the integrated product is likely to be dangerous for its intended uses.” Id. at 993-94 (emphasis in original). The Supreme Court held that “a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product's users will realize that danger.” Id. at 996.

1. The Product Requires Incorporation of a Part

The first prong of the DeVries test is whether the defendant's product required incorporation of a part that is dangerous. 139 S.Ct. at 995. The Supreme Court further explained the meaning of “required” by describing three situations when a product “requires” an integrated part: (i) a manufacturer directs that the part be incorporated, (ii) a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part, or (iii) a product would be useless without the part.” Id. at 995-96 (internal citations omitted). The Court finds that there is a triable issue of fact pertaining to whether Defendant directed that the asbestos-containing part be used. Considering that Plaintiff only needs to establish a triable issue on one of the three scenarios to satisfy this prong of the test, this opinion will discuss only the “directed use” scenario.

Defendant argues that its product did not require the integration of an asbestos-containing third-party product. (ECF No. 41 at 19.) Defendant argues that the Navy “controlled every aspect of the design, manufacture, testing and acceptance of every vessel and all the equipment and machinery within its vessels.” (Mem. Supp. at 11.) Defendant contends that the Navy's oversight and control extended to the written material that accompanied the boilers. (Id. at 13.) The Navy engaged in a process of reviewing, collaborating, and approving the manuals of equipment on its vessels. (Id. at 14.) Due to the strict Military Specifications (“MilSpecs”) published by the Navy, the Navy directed Defendant to incorporate asbestos-containing parts, not the other way around. (Id. at 19.)

Plaintiff argues for a more expansive definition of “required” than the three situations described in DeVries. Relying on a District of Massachusetts case, Sebright v. General Electric Co., 525 F.Supp.3d 217 (D. Mass. 2021), Plaintiff argues that the inquiry should not be whether the Defendant's product required asbestos insulation but whether it required heat insulation generally to function as intended. (Resp Opp'n at 11, ECF No. 42.) Plaintiff also advances an argument that would fail under the “directed use” scenario. Plaintiff argues that the Navy would have used the boiler manual provided by Defendant to determine what products to integrate into the boilers on the...

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