In re All Maine Asbestos Litigation

• Decision Date: 22 November 1983
• Citation: In re All Maine Asbestos Litigation, 575 F.Supp. 1375 (D. Me. 1983)
• Parties: In re ALL MAINE ASBESTOS LITIGATION.
• Court: U.S. District Court — District of Maine

575 F. Supp. 1375

In re ALL MAINE ASBESTOS LITIGATION.

United States District Court, D. Maine.

November 22, 1983.

G. William Higbee, Brunswick, Maine, Thomas W. Henderson, Thomas White, Pittsburgh, Pa., Mark F. Sullivan, William A. Mulvey, Jr., James G. Noucas, Jr., Portsmouth, N.H., Ronald L. Motley, Blatt & Fales, Barnwell, S.C., Lawrence C. Winger, Herbert Bennett, Portland, Maine, Melvin I. Friedman, Stanley J. Levy, Ivan B. Rubin, Patricia Martinelli, Kriendler & Kriendler, New York City, Dan W. Thornhill, McEachern & Thornhill, Kittery, Maine, Ira A. Levy, P.C., Michael H. Smoller, Newark, N.J., Michael P. Thornton, Thornton & Early, Boston, Mass., for Asbestos plaintiffs.

Robert E. Hirshon, Portland, Maine, for Amatex Corp.

Peter L. Murray, Ellyn Ballou, Thomas Newman, Portland, Maine, for Amchem Products, Inc.

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

John R. Linnell, Robert Mullen, Auburn, Maine, for Eagle-Picher Industries.

U. Charles Remmel, Graydon G. Stevens, Portland, Maine, for Fibreboard Corp.

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

Roy Thompson, James M. Bowie, M. Roberts Hunt, Glenn Robinson, Portland, Maine, for Celotex Corp.

Caroline Glassman, C. Alan Beagle, Martin J. Ridge, Portland, Maine, for Combustion Engineering.

Roland Beaudoin, Sarah A. Thornton, Portland, Maine, for Cummings Insulation and Claremont Co., Inc.

Jotham D. Pierce, Jr., Ernest J. Babcock, Louise Thomas, Portland, Maine, for G.A.F. Corp.

Joanne F. Cole, W. John Amerling, George F. Burns, Portland, Maine, for Garlock, Inc.

Phillip D. Buckley, George Terry, Bangor, Maine, for Johns-Manville.

Douglas Myers, Kurtz & Myers, South Paris, Maine, for Congoleum.

Thomas F. Monaghan, Kevin G. Libby, Portland, Maine, for Keene Corp.

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

Nicholas S. Nadzo, Michael A. Nelson, John Montgomery, Portland, Maine, for Owens-Corning Fiberglas.

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

Thomas R. McNaboe, Mark G. Furey, Portland, Maine, for Raybestos-Manhattan.

Charles H. Abbott, Steven Wright, Lewiston, Maine, and Vernon I. Arey, Waterville, Maine, for Southern Textile Co.

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

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

Charles H. Abbott, Steven Wright, Lewiston, Maine, and Vernon I. Arey, Waterville, Maine, for H.K. Porter Co.

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

Richard S. Cohen, U.S. Atty., D. of Maine, and Peter A. Nowinski, Scott L. Gorland, U.S. Dept. of Justice, Washington, D.C., for United States of America.

MEMORANDUM OF OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

Presently pending in this Court are approximately 230 actions brought against various manufacturers and suppliers of asbestos products by present and former employees, and the representatives of deceased employees, of either Bath Iron Works (BIW) or Portsmouth Naval Shipyard (PNS) who allegedly sustained injuries through exposure to and inhalation of asbestos dust during the course of their employment. Plaintiffs have asserted theories of liability 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 (1st Cir.1983).

Various defendants have asserted in their answers an affirmative defense based on what has been termed the "government contract defense." Their argument is that liability may not be imposed upon them for injuries arising out of plaintiffs' exposure to their asbestos products because they had manufactured such products in strict compliance with specifications prescribed by the United States government. Two motions addressed to this defense are before the Court at this time: (1) a motion filed by defendant Pittsburgh Corning Corporation pursuant to Fed.R.Civ.P. 42(a) and (b) for an order consolidating all cases pending against it in this Court arising out of either BIW or PNS solely for the purposes of conducting a Phase I trial and related discovery on the issues raised by the government contract defense, and directing that a Phase I trial be conducted to determine whether Pittsburgh Corning has a complete defense to these actions based upon compliance with government specifications; (2) a cross-motion filed by plaintiffs pursuant to Fed.R.Civ.P. 12(f) for an order striking from any defendant's answer any affirmative defense based on compliance with government specifications. The issues have been comprehensively briefed and argued.^*

The motions present two distinct questions:

(1) Should the government contract defense be stricken as a matter of law?

(2) If not, should the Court conduct a Phase I trial to resolve issues relating to the government contract defense?

The Court will first consider whether the government contract defense should be stricken as a matter of law, since an affirmative response to that question will dispose of the need to discuss the second question. These being diversity cases, Maine law controls and will determine the legal sufficiency of the defense. Austin v. Unarco Industries, Inc.; 5 C. Wright & A. Miller, Federal Practice and Procedure § 1381 at 798-99 (1969).

I.

Plaintiffs' Motion to Strike

The Government Contract Defense

A Rule 12(f) motion to strike an affirmative defense as insufficient is directed toward the pleadings and should not be granted unless, as a matter of law, the defense could not succeed under any circumstances. 5 C. Wright & A. Miller, supra at 800. Where there are disputed issues of fact or substantial issues of law, a motion to strike should not be used to test the merits of the defense; close or new questions of law and disputed factual issues should await a full hearing on the merits. Id. at 800-02, and cases cited n. 37. The Maine court has never had occasion to consider the merits of the government contract defense. Plaintiffs have not shown that Maine law would unequivocably reject such a defense or would find it inapplicable to the facts of these asbestos cases. In the absence of an authoritative determination by the Maine court as to the merits or scope of the defense, this Court cannot say whether Maine law would recognize or apply the government contract defense in these cases. For these reasons, plaintiffs' motion to strike the government contract defense must be denied because there are both disputed factual issues and substantial issues of law to be resolved before the validity of the defense in the present context may be determined.

In In re "Agent Orange" Product Liability Litigation, 534 F.Supp. 1046, 1055 (E.D.N.Y.1982) Agent Orange II, Judge Pratt set forth the basic contours of the government contract defense. To obtain dismissal of the claims against it, the defendant must prove:

1) that the government established the specifications for the product supplied by the defendant;

2) that the product manufactured by the defendant met the government's specifications in all material respects; and

3) that the government knew as much as or more than the defendant about the hazards associated with the product.

Preliminarily, the defendant must show that the product causing the injury was supplied pursuant to a government contract. Id.

Even assuming that the Maine court would accept the foregoing statement of the government contract defense, courts in other jurisdictions have not resolved many questions concerning its parameters. Thus, the government contract defense has been most successfully asserted by government contractors who were required to produce products in compliance with military specifications. See, e.g., McKay v. Rockwell International Corp., 704 F.2d 444 (9th Cir.1983) (design defects in aircraft ejection system where military had set and approved design specifications); Brown v. Caterpillar Tractor Co., 696 F.2d 246 (3d Cir.1982) (defective bulldozer which had been built to Army specifications); In re "Agent Orange" Product Liability Litigation, 506 F.Supp. 762, 792-97 (E.D.N.Y. 1980), rev'd on other grounds, 635 F.2d 987 (2d Cir.1980), cert. denied, 454 U.S. 1128, 102 S.Ct. 980, 71 L.Ed.2d 116 (1981) Agent Orange I (Agent Orange manufactured under Defense Production Act in strict compliance with government specifications); Sanner v. Ford Motor Co., 144 N.J.Super. 1, 364 A.2d 43 (1976), aff'd, 154 N.J.Super. 407, 381 A.2d 805 (1977), cert. denied, 75 N.J. 616, 384 A.2d 846 (1978) (jeep manufactured for the United States Government pursuant to government specifications which did not permit the installation of a roll bar or seat belts); Casabianca v. Casabianca, 104 Misc.2d 348, 428 N.Y.S.2d 400 (1980) (kitchen equipment manufactured according to government specifications for field use during World War II). Does the teaching of these cases mean, as plaintiffs contend, that the government contract defense is only available with respect to products specifically designed by the government for a unique military use? See Agent Orange II, 534 F.Supp. at 1054-55.

These asbestos cases present other unanswered questions as well. For example, is the defense available with respect to a generally available commercial product, such as asbestos, or is it, as plaintiffs argue, limited to products required by and tailored to military requirements? Compare Chapin v. Johns-Manville Sales Corp., No. S79-072. (S.D.Miss. Jan. 27, 1982), with Tefft v. A.C. & S., Inc., No. C-80-924M (W.D.Wash. Sept. 15, 1982) Tefft I, relief on reconsideration denied, Tefft v. A.C. & S., Inc., No. C-80-924M (W.D.Wash. May 6, 1983) Tefft II. Is the defense inapplicable, as plaintiffs urge, to a strict products liability claim? Compare Chapin v. Johns-Manville Sales Corp. with Agent Orange II, 524 F.Supp. at 1054...