New York City Asbestos Litigation, In re, EAGLE-PICHER

CourtUnited States State Supreme Court (New York)
Writing for the CourtHELEN E. FREEDMAN
Citation144 Misc.2d 42,542 N.Y.S.2d 118
PartiesIn re NEW YORK CITY ASBESTOS LITIGATION. Max WEITZMAN, Donald Stridiron, Donald McCrorry, Plaintiffs, v.INDUSTRIES, Keene Corp., et al., Defendants.
Decision Date09 May 1989
Docket NumberEAGLE-PICHER

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.

Page 119

[144 Misc.2d 43] Melvin I. Friedman, of Kreindler & Kreindler, New York City, for plaintiffs.

[144 Misc.2d 42] George F. Hritz and Lynne E. Johnston, of Davis, Markel & Edwards, New York City, for Eagle Picher Industries.

[144 Misc.2d 43] 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.

[144 Misc.2d 44] 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

Page 120

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...

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11 practice notes
  • Carley v. Coach, No. 92-7208
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 16, 1993
    ...defense does not apply to government contractor responsible for manufacture of postal vehicle); In re New York City Asbestos Litig., 144 Misc. 2d 42, 46, 542 N.Y.S.2d 118, 121 (Sup. 1989) (Boyle defense does not apply to products liability claim involving asbestos used in material that was ......
  • In re Chateaugay Corp., No. 92 Civ. 130 (SWK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 15, 1992
    ...892 F.2d at 1455; Reynolds v. Penn Metal Fabricators, Inc., 146 Misc.2d 414, 550 N.Y.S.2d 811 (1990); Weitzman v. Eagle-Picher Indus., 144 Misc.2d 42, 542 N.Y.S.2d 118, 121 For the following reasons, the Court agrees with Appellants and finds that the government contractor defense is to be ......
  • Carley v. Wheeled Coach, No. 92-7208
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 16, 1993
    ...defense does not apply to government contractor responsible for manufacture of postal vehicle); In re New York City Asbestos Litig., 144 Misc.2d 42, 46, 542 Page 1131 N.Y.S.2d 118, 121 (1989) (Boyle defense does not apply to products liability claim involving asbestos used in material that ......
  • In re Asbestos Litigation, No. 87 Civ. 8085(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 5, 1997
    ...compatible with failure to warn claim; no consideration of its affect on design defect claims); In re New York City Asbestos Litigation, 144 Misc.2d 42, 542 N.Y.S.2d 118 (Sup.Ct.1989) (same); Casabianca v. Casabianca, 104 Misc.2d 348, 428 N.Y.S.2d 400 (Sup.Ct.1980) (supplier to the military......
  • Request a trial to view additional results
11 cases
  • Carley v. Coach, No. 92-7208
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 16, 1993
    ...defense does not apply to government contractor responsible for manufacture of postal vehicle); In re New York City Asbestos Litig., 144 Misc. 2d 42, 46, 542 N.Y.S.2d 118, 121 (Sup. 1989) (Boyle defense does not apply to products liability claim involving asbestos used in material that was ......
  • In re Chateaugay Corp., No. 92 Civ. 130 (SWK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 15, 1992
    ...892 F.2d at 1455; Reynolds v. Penn Metal Fabricators, Inc., 146 Misc.2d 414, 550 N.Y.S.2d 811 (1990); Weitzman v. Eagle-Picher Indus., 144 Misc.2d 42, 542 N.Y.S.2d 118, 121 For the following reasons, the Court agrees with Appellants and finds that the government contractor defense is to be ......
  • Carley v. Wheeled Coach, No. 92-7208
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 16, 1993
    ...defense does not apply to government contractor responsible for manufacture of postal vehicle); In re New York City Asbestos Litig., 144 Misc.2d 42, 46, 542 Page 1131 N.Y.S.2d 118, 121 (1989) (Boyle defense does not apply to products liability claim involving asbestos used in material that ......
  • In re Asbestos Litigation, No. 87 Civ. 8085(RWS).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 5, 1997
    ...compatible with failure to warn claim; no consideration of its affect on design defect claims); In re New York City Asbestos Litigation, 144 Misc.2d 42, 542 N.Y.S.2d 118 (Sup.Ct.1989) (same); Casabianca v. Casabianca, 104 Misc.2d 348, 428 N.Y.S.2d 400 (Sup.Ct.1980) (supplier to the military......
  • Request a trial to view additional results

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