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From Products Liability Law Daily, March 17, 2017

Boiler maker’s defenses don’t apply to technician’s widow’s claims

By John W. Scanlan, J.D.

The widow of a former Navy boiler technician can maintain asbestos-related claims against a boiler manufacturer because none of the defenses raised by the manufacturer applied to her claims, a federal district court in Rhode Island ruled in accepting a magistrate judge’s recommendation to deny summary judgment in favor of the manufacturer (Stevens v. Air & Liquid Systems Corp., March 16, 2017, Smith, W.).

From 1951 to 1952, the technician served aboard the USS Allagash. The ship’s boilers were manufactured by Foster Wheeler, which used asbestos-containing materials in its construction and also provided additional asbestos-containing materials to be used in the boilers. The former technician was diagnosed with mesothelioma in 2013 and died in 2015. His widow brought suit against Foster Wheeler and other companies; and several experts offered opinions linking his illness to asbestos exposure while serving on the Allagash. Foster Wheeler moved for summary judgment on five grounds.

Defenses inapplicable. After the widow abandoned her punitive damages claim, the court ruled against Foster Wheeler on the four remaining grounds for summary judgment. There was a triable issue as to whether Foster Wheeler had a duty to warn under an exception to the "bare metal" defense that applies when a defendant manufactures a product that by necessity contains asbestos components, that the asbestos materials were essential to proper functioning of the product, and that the asbestos materials would necessarily be replaced by other asbestos materials whether supplied by the original manufacturer or another supplier.

In addition, while the parties disputed whether the Navy was an end user or a purchaser pursuant to the sophisticated user defense, there was a genuine factual dispute about what the Navy knew about the dangers of asbestos and whether Foster Wheeler provided the Navy with adequate warnings of these dangers. Furthermore, summary judgment could not be granted on the governmental contractor defense because there were genuine issues of material fact regarding each of the elements of that defense.

Loss of consortium. Finally, the court rejected Foster Wheeler’s contention that loss of consortium damages are not allowed under maritime law. The manufacturer’s argument, however, was based on cases applying the Death on the High Seas Act (DOHSA) or the Jones Act and the widow in this case did not bring her claims under either statute. The manufacturer’s argument also conflated the statutory limitations on recovery in DOHSA and Jones Act cases with actions brought under the common law.

The case is No. 14-157 S.

Attorneys: Donald P. Blydenburgh (Levy Konigsberg LLP) for Suzann Stevens. James R. Oswald (Adler Pollock & Sheehan PC) for Foster Wheeler, LLC. Charles K. Mone (Pierce Davis & Perritano, LLP) for IMO Industries, Inc.

Companies: Foster Wheeler, LLC; Air & Liquid Systems Corp.; IMO Industries, Inc.

MainStory: TopStory DefensesLiabilityNews DamagesNews AsbestosNews RhodeIslandNews

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