In re All Maine Asbestos Litigation

Citation581 F. Supp. 963
Decision Date23 February 1984
CourtU.S. District Court — District of Maine




G. William Higbee, Brunswick, Me., Thomas W. Henderson, Pittsburgh, Pa., William A. Mulvey, Jr., James G. Noucas, Jr., Mark F. Sullivan, Portsmouth, N.H., Lawrence C. Winger, Portland, Me., Melvin I. Friedman, Kriendler & Kriendler, New York City, Dan W. Thornhill, Kittery, Me., Michael P. Thornton, Boston, Mass., for plaintiffs.

Peter L. Murray, Thomas C. Newman, Portland, Me., for Amchem Products, Inc.

Harrison L. Richardson, Jeffrey Thaler, Thomas Getchell, Portland, Me., for Armstrong World.

M. Roberts Hunt, Glenn Robinson, Portland, Me., for Celotex Corp.

C. Alan Beagle, Portland, Me., for Combustion Engineering.

Theodore J. Kurtz, South Paris, Me., for Congoleum.

Frederick C. Moore, Portland, Me., for Cummings Insulation and Claremont Co., Inc.

John R. Linnell, Auburn, Me., for Eagle-Picher Industries.

Thomas Schulten, Portland, Me., for Eastern Refractories.

U. Charles Remmel, Portland, Me., for Fibreboard Corp.

Jack H. Simmons, Lewiston, Me., for Forty-Eight Insulations.

Jotham D. Pierce, Jr., Daniel Emery, Portland, Me., for G.A.F. Corp.

George F. Burns, Portland, Me., for Garlock, Inc.

Phillip D. Buckley, Bangor, Me., for Johns-Manville.

Thomas F. Monaghan, Kevin G. Libby, Deborah J. Ross, Portland, Me., for Keene Corp.

John J. Flaherty, Christopher D. Nyhan, Jonathan S. Piper, Portland, Me., for Nicolet, Inc.

Nicholas S. Nadzo, John Montgomery, Portland, Me., for Owens-Corning Fiberglas.

Peter J. Rubin, Linda Monica, Portland, Me., for Owens-Illinois.

John A. Mitchell, James G. Goggin, Portland, Me., for Pittsburgh Corning.

Charles H. Abbott, Steven Wright, Lewiston, Me., for H.K. Porter Co.

Thomas R. McNaboe, Mark G. Furey, Portland, Me., for Raymark, Inc.

Charles H. Abbott, Steven Wright, Lewiston, Me., for Southern Textile Co.

Randall E. Smith, Saco, Me., for J.P. Stevens & Co.

Robert F. Hanson, Mark G. Lavoie, Portland, Me., for Bath Iron Works Corp.

Paula D. Silsby, Asst. U.S. Atty., Portland, Me., Harold J. Engel, Asst. Dir., and S. Michael Scadron, Trial Atty., Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C., for U.S.

Peter W. Culley, Stephen C. Whiting, Portland, Me., for Scott Paper Co.


GIGNOUX, District Judge.

Presently pending in this Court are approximately 225 actions which have been brought by present and former employees, and the representatives of deceased employees, of either Bath Iron Works (BIW), a private shipyard located in Bath, Maine, or Portsmouth Naval Shipyard (PNS), a government shipyard in Kittery, Maine, against various manufacturers and suppliers of asbestos-containing products. Plaintiffs seek to recover compensatory and punitive damages for injuries the employees allegedly sustained by exposure to and inhalation of asbestos dust during the course of their employment at the shipyards while performing construction or repair work on U.S. naval vessels. The complaints assert causes of action based on negligence, strict liability, and breach of express and implied warranties. Jurisdiction is predicated upon diversity of citizenship. 28 U.S.C. § 1332(a); Austin v. Unarco Industries, Inc., 705 F.2d 1, 3 (1st Cir. 1983).

In addition to denying any liability to the plaintiffs, certain defendants have commenced third-party actions for contribution and/or indemnification against the United States of America. With the Court's approval, defendants have filed Model Third-Party Complaint A in each of the actions filed on behalf of present or former employees at BIW and Model Third-Party Complaint B in each of the actions filed on behalf of present or former employees at PNS. Pursuant to Fed.R.Civ.P. 12(b)(1) and (6) and Fed.R.Civ.P. 56, the United States has filed motions to dismiss (or, alternatively, for summary judgment on) the defendants' model third-party complaints upon the grounds that this Court lacks subject matter jurisdiction, that the third-party complaints fail to state claims upon which relief can be granted, that there is no genuine issue as to any material fact, and that the United States is entitled to a judgment as a matter of law. The record before the Court consists of the pleadings, depositions, answers to interrogatories, admissions and affidavits on file. The issues have been comprehensively briefed and argued.

In ruling upon the United States' motions to dismiss, the allegations of the third-party complaints must be accepted as true, the complaints are to be liberally construed, and they "should not be dismissed unless it appears that the third-party plaintiffs could `prove no set of facts in support of their claims which would entitle them to relief.'" Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 1848-49, 23 L.Ed.2d 404 (1969); Ballou v. General Electric Co., 393 F.2d 398, 399 (1st Cir.1968). In ruling upon the United States' motions for summary judgment, all facts are to be construed most strongly in favor of the third-party plaintiffs and all doubts must be resolved in their favor. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed.2d 458 (1962). Summary judgment can be no substitute for trial where there are disputed factual issues, Walgren v. Howes, 482 F.2d 95, 98 (1st Cir.1973), and summary judgment may not be granted if there is a "genuine issue as to any material fact." Fed.R.Civ.P. 56(c).

The Court will first consider the United States' motion to dismiss, or for summary judgment on, Model Third-Party Complaint A. The Court will then address the United States' motion to dismiss, or for summary judgment on, Model Third-Party Complaint B.

I. Model Third-Party Complaint A: BIW Cases

Model Third-Party Complaint A contains nine counts. In the first eight counts, defendants seek indemnity and/or contribution by the United States variously based on its status as a seller of raw asbestos fibers and products containing asbestos (Counts I, II, III), as the promulgator of specifications requiring the use of asbestos products at BIW (Counts IV, V), as the entity in control of the work at BIW (Counts IV, V, VII, VIII), and as the owner of naval vessels at BIW (Count VI). In addition, if it should be determined that admiralty jurisdiction is applicable to the actions, a final count seeks indemnification and/or contribution from the United States on admiralty and maritime law principles (Count IX). Jurisdiction over these claims is asserted under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b) & 2671-2680; the Tucker Act, 28 U.S.C. § 1346(a)(2); and under the general maritime and admiralty jurisdiction of the federal courts, 28 U.S.C. § 1333, the Suits in Admiralty Act, 46 U.S.C. §§ 741-752, the Public Vessels Act, 46 U.S.C. § 781-790, and the Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740.

The Court will separately discuss each of the nine counts in Third-Party Complaint A.

A. Count I

Count I of Third-Party Complaint A seeks noncontractual indemnification and contribution from the United States, as a seller of asbestos to certain of the defendants and to BIW, based upon the government's alleged negligent failure to provide warnings regarding the hazards of asbestos exposure. Count I must be dismissed for lack of subject matter jurisdiction.

The doctrine of sovereign immunity prevents this Court from exercising jurisdiction over a claim against the United States unless the United States has consented to suit on the claim. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). Defendants urge that waiver of the United States immunity from suit on this claim can be found in the FTCA.

The FTCA subjects the United States to liability

for money damages ... for ... personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b); see also 28 U.S.C. § 2674.1 The United States does not deny either that it sold asbestos or that it failed to warn regarding the hazards of asbestos exposure. It contends, however, that Count I alleges conduct for which it cannot be liable by reason of 28 U.S.C. § 2680(a), the discretionary function exception to the government's liability under the FTCA.

Section 2680(a) provides in relevant part that the provisions of the FTCA shall not apply to

(a) Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

The leading case interpreting the discretionary function exception is Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). In that case the Supreme Court stated:

The "discretion" protected by the section is not that of the judge — a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law.
* * * * * *
It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and

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