New York City Asbestos Litigation, In re

• Decision Date: 09 May 1989
• Docket Number: EAGLE-PICHER
• Parties: In re NEW YORK CITY ASBESTOS LITIGATION. Max WEITZMAN, Donald Stridiron, Donald McCrorry, Plaintiffs, v.INDUSTRIES, Keene Corp., et al., Defendants.
• Court: New York Supreme Court

Page 118

542 N.Y.S.2d 118

144 Misc.2d 42

In re NEW YORK CITY ASBESTOS LITIGATION Max WEITZMAN, Donald Stridiron, Donald McCrorry, Plaintiffs, v. EAGLE-PICHER INDUSTRIES, Keene Corp., et al., Defendants.

Supreme Court, New York County Civil Branch, IAS Part 30.

May 9, 1989.

Melvin I. Friedman, of Kreindler & Kreindler, New York City, for plaintiffs.

George F. Hritz and Lynne E. Johnston, of Davis, Markel & Edwards, New York City, for Eagle Picher Industries.

James Walker Smith, of Anderson Russell Kill & Olick, New York City, for the Asbestos Claims Facility.

Mark Weissman, of McCarter & English, Newark, N.J., for Owens Illinois Inc. and Fibreboard Corp.

HELEN E. FREEDMAN, Justice.

In these motions for summary judgment and cross motions to strike made in connection with the New York City Asbestos Litigation, ^* two significant issues are raised. The first issue involves the application of the "military contractor defense", as outlined in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), to asbestos containing products produced for military purposes and the second concerns the sufficiency of product identification prior to trial.

In all of the above captioned cases, defendant Eagle-Picher Industries, Inc. ("Eagle-Picher") contends that its compliance with military contract specifications furnished by the United States government is a complete defense to any claims grounded in negligence or strict liability. In the Weitzman case only, all of the moving defendants (Eagle-Picher, Keene Corporation, Armstrong World Industries, Inc., GAF Corporation, Owens-Illinois, Inc. and Fibreboard Corporation) claim that their products have not been sufficiently identified.

I

Plaintiffs are widows of Brooklyn Navy Yard workers, all of whom died allegedly as a result of exposure to asbestos-containing products in the Brooklyn Navy Yard. Max Weitzman was employed as an outside machinist between 1943-1946 and died in January 1969. Donald Stridiron was employed as a boiler room laborer between 1951-1966 and died in August 1987. Donald McCorry worked as an electrician between 1952-1962 and died in January 1981.

The Navy specifications pursuant to which Eagle-Picher supplied its product specifically required asbestos but said practically nothing about health warnings except insofar as it prescribed as follows how the packages should be marked:

"G-1. Packaging. Unless otherwise specified, commercial packages are acceptable under this specification.

G-2. Packing. Unless otherwise specified, the subject commodity shall be delivered in substantial commercial containers of the size commonly used, so constructed as to insure safe delivery by common or other carriers to the point of delivery at the lowest rate, and to withstand storage, rehandling, and reshipment without the necessity for further packing.

G-3. Marking. Unless otherwise specified, shipping containers shall be marked with the name of the material, the type, and the quantity contained therein, as defined by the contract or order under which the shipment is made, the name of the contractor, the number of the contract or order, and the gross weight."

Navy Department Specification: Cement, Insulation, High Temperature, p G

The gravamen of the complaint against Eagle-Picher brought in both negligence and strict liability is that failure to warn users of the potentially dangerous nature of its asbestos containing insulation cement, Super 66, was a breach of its duty and that nothing in the above cited specifications precluded such warnings.

The identical issue involving the same products, same defendants and same site of exposure has been addressed by the Honorable Charles Sifton in Ferraiuolo v. Acands, Inc. et al., Memorandum and Order (ED. Docket No. 87-1070, December 30, 1988); permission for interlocutory appeal granted (CA Docket No. 89-7107, January 31, 1989), appeal pending. The Ferraiuolo court concluded that "Because defendant has failed to demonstrate a conflict between state tort law and the federal specifications pursuant to which Eagle-Picher claims to have acted" the immunity from suit afforded to a military supplier of a defectively designed helicopter (as in Boyle ) did not apply to suits based on the common law duty to warn.

It found that there was no specification that expressly precluded the warnings even though there is a memorandum to the Navy to the effect that certain asbestos manufacturers "would be glad to get a brief statement of precautions" about the products, and the Navy responded that "from a health standpoint [the Navy and U.S. Maritime Commission ] do not believe any specification changes are necessary." The court held that the Boyle defense applied only where a "significant conflict" exists between an identifiable federal policy or interest and the operation of state law. Since Eagle-Picher as manufacturer could have complied with both the military specifications and also placed adequate warnings on its packages, without in any way frustrating any identifiable federal interest, there was no significant conflict. In fact, there was total silence on the subject of warnings.

Similarly, the federal district court in In Re Hawaii Federal Asbestos Cases, 715 F.Supp. 298, 299-300 (D.Hawaii, 1988) rejected the Boyle defense stating that "State law cannot be preempted under the terms of Boyle unless the subject matter of the government contract touches an area of 'uniquely federal interest' and there is a 'significant conflict' between state law and the federal interest .... Clearly, the defendants could have complied with their state law-imposed duty to provide adequate warnings without breaching their government contracts."

Boyle, which involves specific design features in a military helicopter (the federal specifications called for a hatch which opened outward while safety standards would have provided for a hatch that opened inward), sets forth three elements that must be satisfied in order to successfully establish the military contractor defense. The three elements are: first, that the United States must have approved reasonably precise specifications for the product in question; second, the product must have conformed to these specifications; and finally, the supplier must have warned the United States about dangers in using the product which were known to the supplier, but not to the United States (Boyle, supra, 487 U.S. at ----, 108 S.Ct. at 2518). In order to satisfy the first element of the Boyle test, not only must there be governmental approval of design of the product, but such approval must be a discretionary function of the government. Trevino v. General Dynamics Corp., 865 F.2d 1474 (5th Cir.1989). Because the government is immune from tort liability in the exercise of its discretionary functions under an exception to the Federal Tort Claims Act, § 1346(b) and 28 U.S.C. § 2680(a), a contractor who supplies products approved, pursuant to this discretionary function exception is also immune. Boyle, 487 U.S. at ----, 108 S.Ct. at 2518. In Trevino, supra, the Court found that the level of supervision or review of specifications by the government was not sufficient to constitute approval of the design and was therefore not a discretionary function. Thus, the first element of...