Horrie v. A.W. Chesterton Company et al
Filing
122
MEMORANDUM Opinion and Order Entered by the Honorable Harry D. Leinenweber on 5/19/2014:(gcy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TRACY EARL HORRIE, JR. and JUDY
HORRIE,
Plaintiffs,
Case No. 13 C 8161
v.
Hon. Harry D. Leinenweber
A.W. CHESTERTON COMPANY, et
al.,
Defendants.
MEMORANDUM OPINION AND ORDER
I.
BACKGROUND
In their first amended Complaint, filed in the Cook County
Circuit
tortious
Court,
the
conduct
Plaintiffs
proximately
allege
caused
that
Mr.
numerous
Horrie’s
mesothelioma, a cancer caused by exposure to asbestos.
Defendants’
malignant
He alleges
that his exposure occurred during several years (1964 to 1968) in the
United States Navy, where he served in various capacities including
Machinist Mate, which was followed by several decades of land based
civilian work in Illinois, as well as secondary exposure via his
father who was engaged in insulator work during his childhood.
In an
exhibit to the Complaint, he alleges that, while in the Navy, he was
stationed at San Diego, California, Great Lakes, Illinois, and aboard
the U.S.S. Taussig and the U.S.S. Frank Knox.
Plaintiffs filed this
suit for damages claiming that a host of entities for whom he worked
or who provided products exposed him to asbestos which in turn caused
him to incur his illness. The Defendant, Crane Company (“Crane”), is
alleged to have supplied valves containing asbestos to the United
States Navy which were used in constructing the ships upon which he
served.
The Plaintiffs rely solely on the alleged failure to warn
him of the dangers of asbestos.
II.
DISCUSSION
Crane filed a notice of removal to this court.
The Plaintiffs
have moved to remand based on a lack of diversity jurisdiction.
Crane however contends that it is entitled to remove based on
the
government contractor defense. This defense had its genesis in Boyle
v. United Technologies Corp., 487 U.S. 500, 504 (1988).
The issue in
Boyle was whether, in the government procurement area, state tort law
could be pre-empted.
The Supreme Court held that in the procurement
of equipment the federal government’s interest, even though the case
was between private parties, could dictate that case be tried under
federal rather than state tort law.
The court went on to hold that
such displacement would only occur where there is a significant
conflict between the federal interests and state law.
conflict must
be
such
that
by
performance of
That is, the
federal
contract
obligations, a contractor may be exposed to state tort liability.
If, however, the performance of federal contractual obligations would
not
conflict
with
state
law,
then
the
defense
would
not
be
applicable.
The application of the government contractor defense in failure
to warn claims such as present here was discussed in Oliver v.
Oshkosh Truck Corp., 96 F.3d 992, 1003 (7th Cir. 1996).
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The court
began its discussion by noting that this defense may operate to
defeat a state failure to warn claim, citing Butler v. Ingalls
Shipbuilding, Inc., 89 F.3d 582, 586 (9th Cir. 1996) and In re Joint
Eastern and Southern Dist. New York Asbestos Litigation, 897 F.2d
626, 629 (2d Cir. 1990).
However, it was “well established” that a
defendant may not defeat a state failure to warn claim simply by
establishing the elements of the government contractor defense with
respect to a design defect claim.
To be entitled to this defense the
contractor must establish that (1) the government exercised its
discretion and approved certain warnings; (2) the contractor provided
the warnings required by the government; and (3) the contractor
warned the government about dangers in the equipment’s use that it
knew about but the government did not.
In order to comply with the first factor, the contractor must
show that it complied with a “reasonably precise specification”
imposed on it by the government procuring agency and that this
specification was in conflict with state tort law.
In attempting to establish the government contractor defense
Crane
has
supplied
the
court
with
affidavits
from
Anthony
D.
Pantaleoni (“Pantaleoni”), Crane’s Vice President of Environment,
Health and Safety since 1989, and James M. Gates (“Gates”), former
manager of Design Verification of the Marine Division of Westinghouse
Electric Corporation, who began working for Westinghouse in 1953.
Pantaleoni stated that Crane “made and supplied equipment, including
valves, for Navy ships under contracts between Crane Co. and the
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shipyards and/or United States of America, specifically the Navy
Department” and the “manufacture of equipment . . . was governed by
an extensive set of federal standards and specifications, chiefly
military specifications known as “MilSpecs.”
He further attested
that “the equipment supplied by Crane Co. to the Navy was built in
accordance with the Navy specifications.”
specifics.
Gates
attested
generally
He, however, provided no
concerning
the
level
of
supervision and control exercised by the Navy over the design and
manufacture
by
propulsion
Westinghouse
equipment
and
of
turbines,
auxiliary
turbine-generators,
equipment
installation on Navy vessels generally.
intended
for
Much of his affidavit
concerns specifications for the manufacture of equipment although he
did state with respect to warnings or caution plates that “some naval
equipment, such as main reduction turning gears, have warnings or
caution plates, which are in standardized format and set by the Navy.
Under both the specifications and regulations, and in practice, the
Navy
had
ultimate
control
over
the
nature
of
the
warnings
communicated to the Navy . . . personnel in relation to shipboard
equipment and materials.”
The problem with Crane’s supporting documentation is that it is
completely short of specifics applicable to this case.
All we know
for sure is that Crane at some time supplied the Navy (or a Navy
contractor) with valves which were incorporated in the construction
of Navy vessels.
controls the
flow
A valve is a device that regulates, directs or
of fluids
by
opening,
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closing,
or
partially
obstructing various passageways.
and application.
Valves vary widely in form, size,
See, http://en.wikipedia.org/miki/ valve.
Crane
has not produced any contracts under which it supplied valves or
anything else to the Navy.
It has not established that the navy made
any specific requirements as to warnings or prohibited any specific
warnings for any valves it may have obtained from Crane.
And it has
not established that, if there were in warning requirements of the
Navy, that they conflicted with Illinois tort law.
Its witness,
Pantaleoni, did not work for Crane at the time the products were
manufactured and did not state what efforts he undertook to find
actual documentation.
Nevertheless, Plaintiffs contend that Ruppel v. CBS Corp., 701
F.3d 1176 (7th Cir. 2012) requires that the Court accept jurisdiction
in this case.
In Ruppel, the plaintiff brought a state court action
against CBS, a government contractor, alleging that he developed
mesothelioma due to his exposure to asbestos in turbines Westinghouse
(CBS’s predecessor in interest) supplied to the Navy prior to his
Naval service.
CBS removed the case to federal court.
Ruppel moved
to remand and the district court granted the motion without giving
CBS a chance to respond.
The district court concluded mistakenly
that the suit only involved failure to warn and since the Navy did
not preclude adequate warnings the defense was inapplicable.
The
Seventh Circuit reversed finding that CBS had a “colorable argument
for the government contractor defense. . . .” CBS provided materials
that supported its assertion that the Navy required CBS to use
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asbestos, that the Navy controlled the content of the warnings, and
the Navy knew of asbestos health risks. These materials included the
affidavit that plaintiffs filed in this case from Gates which was
created specifically for the Ruppel case, as well as the actual
purchase order and the MilSpec that applies to permissible content of
manuals, including warnings, all of which is lacking in this case.
In this case, the record is silent as to whether Crane was permitted
to warn and, if so, whether any such warning would conflict with
state law. Accordingly, the Court finds that Ruppel is inapplicable.
III.
CONCLUSION
For the reasons stated herein, the Court grants the Plaintiffs’
Motion to Remand to the Circuit Court of Cook County.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Date:5/19/2014
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