Nesbiet v. General Electric Co., 04 Civ. 9321 (SAS).
| Decision Date | 28 March 2005 |
| Docket Number | No. 04 Civ. 9321 (SAS).,04 Civ. 9321 (SAS). |
| Citation | 399 F.Supp.2d 205 |
| Parties | Robert NESBIET, Plaintiff, v. GENERAL ELECTRIC CO., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Bryan Belasky, Weitz & Luxenberg, P.C., New York, NY, for Plaintiff.
Michael A. Tanenbaum, Sedgwick, Detert, Moran & Arnold, LLP, Newark, NJ, for Defendant.
On October 26, 2004, Robert Nesbiet ("Nesbiet") sued General Electric Company ("GE") and other defendants in New York state court alleging, among other things, that he was exposed to asbestos-containing products while employed at the Brooklyn Navy Yard, where he worked on the USS Missouri between 1943 and 1944. Nesbiet is suing GE solely on the theory that it failed to warn of the dangers relating to asbestos used as insulation in marine steam turbines manufactured by GE. On November 29, 2004, GE filed a timely notice of removal asserting federal jurisdiction under the federal officer removal statute.1 Nesbiet now moves to remand this action to state court.2
Nesbiet's exposure to asbestos occurred, in part, during his employment at the Brooklyn Navy Yard, where he worked as a welder and shipfitter during World War II.3 In October, 2004, Nesbiet was diagnosed with mesothelioma, a cancer of the lining of the lungs caused by exposure to asbestos.4 GE has confirmed that it manufactured marine steam turbines that were installed on the USS Missouri, a Navy ship that Nesbiet helped construct.5 Nesbiet has stated that the insulation on these turbines was a source of his asbestos exposure.6 He alleges that GE failed to provide any warnings regarding asbestos on its turbines.7 Nesbiet's only claim against GE is for failure to warn about the dangers of asbestos.
In its notice of removal, GE avers that "in the manufacture and sale of turbines and other equipment for the U.S. Navy, including all aspects of warnings associated with those turbines and equipment, GE was acting under an officer or agency of the United States within the meaning of 28 U.S.C. § 1442(a)(1)."8 In support of removal, GE has proffered the following evidence.
First, GE has submitted four affidavits of David Hobson ("Hobson"), a former GE employee.9 Hobson began his employment with GE in 1969 and over the course of the following twenty-seven years, "had frequent and extensive business dealings on behalf of GE with commissioned officers and civilian employees of the United States Navy in connection with the Navy's purchase and use of marine steam turbines from GE."10 Prior to his employment by GE, Hobson worked as an engineer at a shipyard and on steam ships, from 1965 until 1969.11
The Hobson affidavits show that GE manufactured and supplied turbines for U.S. Navy ships under contracts between GE and the Navy Department or contracts between GE and shipyards that had themselves contracted with the Navy Department.12 The Navy Department administered these contracts through Navy Sea Systems Command, whose personnel exclusively developed ship designs and plans, as well as comprehensive and detailed guidelines and specifications for all equipment on U.S. Navy ships.13 This portion of the affidavits is uncontroverted.
Nesbiet strenuously objects, however, to those portions of Hobson's affidavits regarding the Navy's control over warnings and, more specifically, whether the Navy prevented GE from providing warnings on the dangers of asbestos. Hobson declares, in relevant part:
[T]he Navy had precise specifications as to the nature of any information that was to be affixed to equipment supplied to the Navy by GE. Under the Navy's specifications and procedures, as well as under actual Navy practice as it evolved in the field, GE would not have been permitted to affix any type of warning or caution to a piece of equipment intended for installation onto a naval vessel, beyond those expressly specified by the Navy. The Navy also had precise specifications as to the nature and contents of all written materials that were to be delivered with naval turbines .... These [materials] included safety and hazard information only to the extent directed by the Navy.14
Nesbiet argues that this and other similar statements contained in Hobson's affidavits could not possibly be based on Hobson's personal knowledge and, in any case, have no basis in fact.15 When deposed concerning the first two of his affidavits, Hobson admitted that he has no personal knowledge concerning the relationship between GE and the Navy prior to 1965; mentoring from the previous generation of GE engineers was his only source of knowledge with respect to the relevant time period.16 There is no indication that this mentoring included the subject of the Navy's specifications, procedures or practice concerning asbestos-related warnings during World War II.17 It follows that Hobson lacks personal knowledge as to the Navy's control over such warnings when Nesbiet was working on the USS Missouri. Therefore, to the extent that Hobson's affidavits suggest that during the relevant time period the Navy prohibited warnings concerning the dangers of asbestos, the statements are without foundation—and therefore inadmissible—as being beyond the scope of Hobson's personal knowledge and experience.18
Second, GE has submitted the affidavit of Ben J. Lehman ("Lehman"), a retired Rear Admiral of the U.S. Navy, who served as a ship superintendent for repairs at the Brooklyn Navy Yard between 1942 and 1944.19 In that capacity, Lehman "was personally involved with the supervision or oversight of ship alterations and equipment overhauls."20 Lehman's affidavit states, in relevant part:
In the 1940s and afterward, the Navy had complete control over every aspect of each piece of equipment. Military specifications governed every characteristic of the equipment used on Navy ships, including the instructions and warnings . . . . This control included the decision of what warnings should or should not be included . . . . Furthermore, the Navy had specifications as to the nature and content of all written material that was delivered with each piece of equipment, including turbines. The Navy was intimately involved with and had final approval of all . . . safety and hazard information and any other written information that accompanied a piece of equipment. The Navy determined the nature of the hazards to be subject to any precautionary labeling and the content of any such labeling. In short, the Navy dictated every aspect of the . . . warnings associated with its ships and did not permit deviation from any of its contractors.21
The affidavit thus raises the inference that GE did not provide a warning concerning the dangers of asbestos because the Navy did not permit any such warning.
Plaintiff deposed Lehman concerning the foundation for the statements contained in his affidavit. Based on this deposition, plaintiff contends that Lehman, like Hobson, has no personal knowledge of the relevant facts.22 In that deposition, however, plaintiff did not attack Lehman's competence to make the statements in his affidavit. Rather, plaintiff attacks Lehman's conclusion by asserting that he lacks direct knowledge of warnings or instructions on GE's marine steam turbines in the 1940s. While the deposition reveals that Lehman has no direct knowledge as to whether the Navy specifically prohibited GE, or other manufacturers, from providing warnings about asbestos,23 Lehman made no such assertion in his affidavit. But, as stated earlier, his affidavit raises the inference that the Navy prohibited warnings about asbestos because, based on Lehman's knowledge and experience, the Navy exercised complete control over all warnings placed on equipment or in accompanying technical manuals by its contractors. By virtue of the position he occupied at the Brooklyn Navy Yard during the relevant time period, Lehman is competent to make the statements contained in his affidavit.
Nesbiet further contests the factual basis for Lehman's affidavit by submitting a number of military specifications, or "milspecs," covering the contents of instruction manuals for electrical and mechanical equipment,24 which Nesbiet contends "imposed an affirmative requirement to warn on contractors such as GE since at least the 1950s and possibly even earlier."25 However, Nesbiet has mischaracterized this so-called requirement. For example, the earliest of these milspecs, dated October 20, 1952, states that an instruction manual "shall contain data such as the following: (a) Safety notice (where high voltages or special hazards are involved) (see figure 9)."26 "Figure 9" itself consists of detailed instructions on how to safely handle equipment that involves high voltages.27 If anything, the milspec requires that the manufacturer provide safety instructions, such as those regarding high voltages, as dictated by the Navy. Moreover, the 1952 milspec indicates that the content of instruction manuals is subject to the approval of the Navy.28 Therefore, these milspecs appear to support, rather than undercut, Lehman's affidavit.
In sum, Lehman's affidavit establishes, for the purposes of this motion, that the Navy controlled the nature of warnings to be included on all equipment (or in the accompanying technical manuals) to be installed on its ships. This evidence in turn supports the inference that no warnings appeared on the turbines or in the written materials because the Navy prohibited them.
Third, GE has submitted the affidavit of Lawrence Stillwell Betts ("Betts"), a medical doctor and retired U.S. Navy Captain. During his Navy career, which began in 1971 and ended in 2001, Betts became a "qualified surface warfare medical department officer," in which capacity he became "generally familiar with the industrial...
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