In re All Maine Asbestos Litigation

• Decision Date: 12 March 1987
• Citation: 655 F. Supp. 1169
• Parties: In re ALL MAINE ASBESTOS LITIGATION. (BIW Cases)
• Court: U.S. District Court — District of Maine

655 F. Supp. 1169

In re ALL MAINE ASBESTOS LITIGATION. (BIW Cases)

United States District Court, D. Maine.

March 12, 1987.

Peter J. Rubin, Linda A. Monica, Bernstein, Shur, Sawyer & Nelson, Thomas R. McNaboe, Mark G. Furey, Thompson, McNaboe & Ashley, Portland, Me., for defendants.

Joseph Cox, Jr., JoAnn Bordeaux, Torts Branch, Civil Div., Washington, D.C., for U.S.

SUPPLEMENTAL OPINION AND ORDER ON THE UNITED STATES' AND DEFENDANTS' MOTIONS TO RECONSIDER

GIGNOUX, Senior District Judge.

In its Opinion and Order dated December 29, 1986, this Court denied the motion of the United States to dismiss, or for summary judgment on, that portion of Count VI of Model Third-Party Complaint A that asserts a contribution and indemnification claim against the United States based upon the provisions of Maine tort law. See In re All Maine Asbestos Litigation (BIW Cases), 651 F.Supp. 913 (D.Me.1986). Defendant asbestos manufacturers have filed this complaint in all asbestos-related cases brought in this Court by present and former employees, and the representatives of deceased employees, of Bath Iron Works (BIW), a private shipyard located in Bath, Maine. In All Maine Asbestos, the Court concluded, in pertinent part, that during the period of time plaintiffs in these cases were employed at BIW (from approximately 1940 to approximately 1980), for the most part the United States "made discretionary decisions to place responsibility for maintaining a safe workplace on its contractor BIW" and that these decisions were protected by the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680(a) (1982). 651 F.Supp. at 921. Nevertheless, the Court held that summary judgment was inappropriate because issues of material fact existed "as to the discretion enjoyed by Navy personnel in implementing certain directives regarding asbestos precautions," id., and "as to whether, when, and in what manner Navy inspectors sought to require BIW to implement asbestos safety precautions," id. at 925. Specifically, the Court found three items of evidence suggesting that the United States undertook to enforce compliance with asbestos safety standards at BIW: NAVSHIPSINST 5100.26, an Instruction issued by the Naval Ship Systems Command (now known as NAVSEA) to Supervisor of Shipbuilding (SUPSHIP) personnel at BIW on February 9, 1971; a statement by BIW Vice President and Contract Administrator William F. Mussenden; and a statement by Captain Ronald B. Berklite, Director of SUPSHIP's Management Division. Id. at 22-24, 924-25.

The United States and defendants have both moved for reconsideration of the Court's December 29, 1986 decision. In support of its motion, the United States has submitted declarations of Mr. Mussenden; Captain E.S. Bailey, USN (Ret.), former SUPSHIP at BIW; and Richard D. Patterson, the Navy official in charge of the Navy's Occupational Safety and Health Program. The United States asserts that this newly-submitted evidence establishes the absence of any remaining issues of material fact as to the applicability of the discretionary function exception.

In opposition to the government's motion for reconsideration, defendants have submitted excerpts from the deposition testimony of Captain Charles L. Mull, USN (Ret.), who succeeded Captain Bailey as SUPSHIP at BIW, Captain Bailey, Mr. Patterson, and Mr. Mussenden, all taken in February 1987, and two SUPSHIP deficiency notices to BIW respectively dated May 28 and August 14, 1969. Defendants assert that this newly-submitted evidence demonstrates the existence of issues of material fact as to the applicability of the discretionary function exception. In their motion for reconsideration, defendants ask the Court "to reconsider or clarify certain aspects" of the Court's December 29, 1986 decision.¹

The parties have briefed the issues, but have waived oral argument. The record before the Court consists of the supplementary materials addressing the applicability of the discretionary function exception to the FTCA that were submitted, pursuant to the Court's request, prior to the Court's December 29, 1986 decision (four volumes marked respectively Government Exhibits A-D and Raymark Exhibit A), which the parties previously agreed constitute the relevant record; see All Maine Asbestos, 651 F.Supp. at 916; the three declarations submitted by the United States in support of its present motion, and the six documents filed by defendant Raymark in support of its objection to the government's present motion.

For the reasons to be stated, the United States' motion for reconsideration will be granted, the defendants' motion for reconsideration will be denied, and summary judgment will be entered dismissing that portion of Count VI of Model Third-Party Complaint A that asserts a contribution and indemnification claim against the United States based upon the provisions of Maine tort law. Because the Court has previously entered summary judgment dismissing all other claims for relief in Model Third-Party Complaint A, the motion of the United States for entry of final judgment dismissing the third-party complaints against the United States in these actions will be granted.

The Court will address in turn the motions of the United States and the defendants.

I.

The United States' motion to reconsider asserts that no issues of material fact remain as to whether Navy personnel were charged with a nondiscretionary duty to implement certain safety directives or as to whether, when, and in what manner Navy inspectors sought to require BIW to implement asbestos safety precautions. The United States contends that the three declarations submitted in support of its motion establish that at no time and in no manner did Navy personnel have a nondiscretionary duty, nor did they actually seek, to require BIW to implement asbestos precautions. After reviewing these declarations along with the three items of evidence that the Court previously found to create issues of material fact, the Court agrees that these factual questions have been resolved.

The first item previously relied upon was NAVSHIPSINST 5100.26. The Instruction's purpose was "to prescribe appropriate safety precautions during the use of asbestos"; SUPSHIP personnel at BIW forwarded a copy of the Instruction to BIW with the comment "for information." The Court found that an issue of material fact existed as to whether SUPSHIP personnel were under an operational, nondiscretionary duty immediately to implement the Instruction at BIW. 651 F.Supp. 924-25. But the declaration of Mr. Patterson, the NAVSEA official responsible for the development of Instructions such as NAVSHIPSINST 5100.26, states that such Instructions were never used or intended to be used

by the Navy to compel action on the part of a private shipyard, or to pressure a Navy SUPSHIP into compelling any action on the part of a private shipyard. Such instructions are issued from one naval command to another naval command. Where circulated to a private shipyard, the copies of the instructions are issued for informational purposes in order to inform the shipyard of NAVSEA policy.

Patterson Declaration at 1-2. The declaration of Mr. Mussenden, Vice President and Contract Administrator at BIW from 1964 to 1982, confirms that correspondence forwarded from SUPSHIP to BIW with the notation "for information" "usually did not require adherence and implementation." Mussenden Declaration at 3. Defendants have submitted nothing to rebut these declarations or otherwise to establish that SUPSHIP personnel were under an operational, nondiscretionary duty to implement NAVSHIPSINST 5100.26 at BIW. Therefore, no issue of material fact remains on this question.

The second item previously relied upon was a 1981 statement by Mr. Mussenden that "Navy inspectors make sure that we ... follow precautionary measures in the area of asbestos. I know that." 651 F.Supp. at 925. But Mussenden now declares that:

I do not recall today the basis for this statement. I am positive, however, that I did not mean by this statement that the contractual duties of the Navy and BIW changed regarding compliance with health and safety provisions of the contracts. During my tenure at BIW, government contracts placed the responsibility for compliance with such provisions on the contractor (BIW). Compliance with regulations incorporated into contracts governing the use and handling of asbestos were handled no differently from other safety and health regulations.

Mussenden Declaration at 2 (emphasis added). Capt. Bailey agrees in his declaration that "Navy inspectors audited BIW's compliance with contractual provisions governing the use or handling of asbestos no differently than they audited compliance with other health and safety provisions in the contracts." Bailey Declaration at 2. Thus, while Mussenden's previous statement raised an issue of material fact as to whether Navy personnel may actually have conducted inspections specifically aimed at requiring BIW to observe asbestos precautions, his new declaration and that of Capt. Bailey establish that no such specific inspections took place.

Defendants do not point to any evidence tending to rebut these assertions that asbestos was treated no differently from other health and safety problems. Instead, they renew their contention that issues of material fact exist as to whether Navy personnel enjoyed discretion in ensuring compliance with contractual health and safety requirements in general. They now rely on a 1972 Quality Assurance Supplement (QAS) to the Ship Acquisition Contract Administration Manual. See Defendants' Exhibit 3 to Bailey Deposition. The QAS established a detailed five-step procedure that, in defendants' view, Navy personnel had a nondiscretionary duty to follow in ensuring BIW's compliance with all contractual requirements, including health and safety requirements.

A careful reading of the 1972 QAS, however,...