Mullinex et al v. Air & Liquid Systems Corporation et al

Filing 539

MEMORANDUM OPINION AND ORDER: Plaintiff's Objection is SUSTAINED IN PART, and Judge Miller's Order at ECF No. 389 is VACATED IN PART. Signed by District Judge Raymond A. Jackson on 5/23/22. (mrees, )

Case 4:18-cv-00033-RAJ-DEM Document 539 Filed 05/23/22 Page 1 of 6 PageID# 44995

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IN THE UNITED STATES DISTRICT COUR|
FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

PATRICIA E. MULLINEX,

j

FILED
p

j

Individually and as Executor of the
Estate of Herbert H. Mullincx, Jr.,
Plaintiff,
V.

Case No.4:18-cv-00033-RAJ-DEM

JOHN CRANE INC.,
Defendant.
M£MO/l4NI)[/AfOP/N/OJVAJVD ORDER

Before the Court is Patricia E. Mullinex's ("Plaintiff) motion/objection to United States
Magistrate Judge Douglas E. Miller's order at ECF No. 389("Objection"). PL's Mot./Obj. Order
389, ECF No. 419. For the reasons below, Plaintiffs Objection is SUSTAINED IN PART, and
Judge Miller's order at ECF No. 389 is VACATED IN PART.
FACTUAL AND PROCEDURAL HISTORY

In an omnibus order, issued on October 25,2021, Judge Miller held the following:
"Plaintiffs' Motion to Exclude Irrelevant Evidence and Testimony
Regarding the Alleged Knowledge or Negligence of the Navy,
(ECF No. 207), is GRANTED IN PART and DENIED IN PART.
JCI cannot offer evidence of Navy negligence, as negligence is not
relevant to any claim or defense. However, the government
contractor defense requires JCI to demonstrate the Navy's
knowledge of "asbestos-related hazai-ds." Sawver v. Foster
Wheeler LLC. 860 F.3d 249, 256 (4th Cir. 2017); see also Order
(ECF No. 45, at 42)(defining the issue as whether "the Navy had
at least as much knowledge of the dangers of asbestos as did JCI"
(emphasis added)). Thus evidence of the Navy's awareness of
asbestos hazards is relevant to that factor, and JCI may offer such
evidence through appropriate fact and expert witnesses. Because
the law does not limit this to knowledge of any specific product,
but defines the hazard as asbestos, the court does not cabin JCI's

evidence of Navy knowledge only to the hazards presented by

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asbestos gaskets and packing material."
Oct. 25, 2021 Omnibus Order, ECF No. 389 at 2-4. On November 8, 2021, Plaintiff filed an

objection to Judge Miller's ruling, arguing that by allowing Defendant, John Crane Inc. ("JCI"),
to present evidence of the Navy's knowledge about the hazards of asbestos generally instead of

the Navy's knowledge about the asbestos hazards presented by JCI's products. Judge Miller
"essentially rewrote the third element" of the government contractor defense "to permit a much
broader array of evidence than is relevant to proof of this defense." Pl.'s Mot./Obj. Order 389 at
2. JCI responded to Plaintiffs objection on November 8, 2021, contending that Judge Miller

correctly "rejected such a narrow reading" of the third prong of the government contractor

defense. Defs Resp. 0pp., ECF No. 438 at 2. Plaintiff replied on November 29, 2021. Pl.'s
Reply, ECF No. 445.
STANDARD OF REVIEW

Upon a party's objection within 14 days of a magistrate judge's order, a judge must
reconsider any non-dispositive pretrial matter where it has been shown that the magistrate
judge's order is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.
72(a). The Court finds that Plaintiffs motion is timely.
DISCUSSION

The Court affirms Judge Miller's ruling that JCI is barred from introducing evidence of
Navy negligence. The Court finds, however, that Judge Miller's ruling and related interpretation

of the third element of the government contractor defense established in Boyle v. United

Technologies Corp., 487 U.S. 500(1988)and Sawyer v. Foster Wheeler LLC,860 F.3d 249(4th
Cir. 2017) is contrary to law. Accordingly, this Memorandum Opinion and Order discusses the
Court's interpretation ofthe third prong ofthe government contractor defense only.

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In Boyle, the Supreme Court first recognized the government contractor defense in
product liability cases. The Court established the following standard for evaluating the defense:
"Liability for design defects in military equipment cannot be
imposed, pursuant to state law, when (1) the United States
approved reasonably precise specifications; (2) the equipment
conformed to those specifications; and (3) the supplier warned the
United States about the dangers in the use of the equipment that
were known to the supplier but not to the United States .... The
third condition is necessary because, in its absence, the
displacement of state tort law would create some incentive for the
manufacturer to withhold knowledge of risks, since conveying that
knowledge might disrupt the contract but withholding it would
produce no liability. We adopt this provision lest our effort to
protect discretionary functions perversely impede them by cutting
off information highly relevant to the discretionary decision."

Boyle, 487 U.S. at 512-13 (emphasis added). In 2017, the United States Court of Appeals for the
Fourth Circuit ("Fourth Circuit") held that the defense was applicable to failure to warn claims
and adopted the same standard for evaluating the defense in the failure to warn context:
"The courts applying Boyle to failure-to-wam cases have
articulated three criteria necessary to establish the immunity
defense, holding that it is established when '(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 were known to the contractor but not to
the government.' Under this formulation, which we also now

adopt, the government need not prohibit the contractor from
providing additional warnings...."

Sawyer,860 F.3d at 256 (internal citations omitted)(emphasis added).

In Boyle, the plaintiff was a Marine helicopter pilot who drowned when his helicopter

crashed off the Virginia coast. 487 U.S. at 502. The personal representative of the plaintiffs

heirs and estate sued defendant, alleging that defendant defectively designed the helicopter's
copilot emergency escape-hatch system. Id. On remand, the Fourth Circuit held that the

defendant satisfied the government contractor defense, stating the following:

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"Sikorsky and the Navy worked together to prepare detailed
specifications for the CH-53 helicopter. One of Sikorsky's
program engineering managers for the CH-53 described in some
detail the back-and-forth discussions between Sikorsky and the
Navy.
Sikorsky then built the helicopter, and in 1970 the Navy accepted it
as fully complying with specifications. The Navy thus had thirteen
years of experience with this particular helicopter at the time of
Boyle's crash. Plaintiffs point to nothing in the record that
indicates there were any hazards of which Sikorsky was aware and
the Navy was not. Sikorsky's duty to warn the Navy of any
hazards known to it but not to the Navy was thus not brought into
question."
Boyle V. United Techs. Corp., No. 85-2264, 1988 U.S. App. LEXIS 20266, at *3 (4th Cir. Aug.
3, 1988)(citing Boyle v. United Techs. Corp., 792 F.2d 413, 415 (4th Cir. 1986)) (emphasis
added).

In Sawyer, the plaintiff was a shipbuilder who died of mesothelioma. Sawyer, 860 F.3d at

252. The plaintiffs family and the personal representative of his estate sued defendants, alleging
that the plaintiffs death was caused by exposure to asbestos while assembling boilers and that

defendants failed to warn him of the dangers of asbestos, which was a component of the boilers.
Id. In holding that defendants satisfied the third element of the government contractor defense,
the Fourth Circuit relied on the affidavit of a retired Navy captain and medical consultant that
stated that, "'There was no information concerning any asbestos-containing hazard or danger

posed by any asbestos-containing product applied to any marine boiler on a United States Navy
ship known to a boiler manufacturer ... that was not known to the United States and the United

States Navy.'" Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 784 (E.D. Pa. 2010); id. at
253 (citing Hagen, 739 F. Supp. 2d at 784, which used the same affidavit in conjunction with
other evidence to reach an analogous conclusion).

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Suggesting that JCI could satisfy the third prong of the government contractor defense by
only presenting evidence of the Navy's general knowledge about the hazards of asbestos without

connecting that knowledge to the JCI products at issue is contrary to the plain text and
application of the test in Boyle and Sawyer. In Boyle, the Fourth Circuit relied on the Navy's
"thirteen years of experience with [the] particular helicopter'' at issue in holding that the
defendant more than satisfied the third element of the defense. Boyle, 1988 U.S. App. LEXIS
20266, at *3 (citing Boyle, 792 F.2d at 415)(emphasis added). Similarly, a reading of Sawyer

indicates that the affidavit the Fourth Circuit relied on addressed the Navy's knowledge about
asbestos relative to boilers, which was the product at issue in that case. Id. at 253 (citing Hagen,

739 F. Supp. 2d at 784). Thus, the defendant in Sawyer did not merely demonstrate that the Navy

knew about the hazards of asbestos generally, it demonstrated that the Navy knew about the
asbestos hazard presented by the product at issue. Absent evidence that the affidavit the Sawyer
court relied on denoted the Navy's knowledge about the asbestos risks presented by gaskets and
packaging, the Sawyer court's holdings based on that affidavit and similar testimony cannot be

applied to the products in this case. For example, if JCI manufactured asbestos-containing
ballpoint pens instead of asbestos-containing gaskets and packaging, the Navy would not be

served at all by its knowledge about the health risks of asbestos without the Navy also being
privy to the asbestos risk presented by JCI's ballpoint pens or ballpoint pens generally.

Therefore, it is JCI's burden to prove under the third prong of the defense that the Navy

knew that JCI's gaskets and packaging presented an asbestos risk and the Navy proceeded to use

the products without warning labels anyway. JCI could potentially meet this burden by
demonstrating that the Navy was aware of the asbestos risk presented by gaskets and packaging
generally, as the defendants did in Sawyer with respect to boilers. The inquiry, however, is still

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tailored to the government's knowledge about how specific products or "equipment" relate to a
particular hazard. Nothing in Sawyer supports broadening that standard beyond its plain text to
include the government's knowledge about a hazard generally, unrelated to the product at issue.
CONCLUSION

For these reasons, Plaintiffs Objection is SUSTAINED IN PART,and Judge Miller's
order at EOF No. 389 is VACATED IN FART,pursuant to 28 U.S.C. § 636(b)(1)(A) and
Federal Rule of Civil Procedure 72(a).

The Clerk is DIRECTED to send a copy ofthis Memorandum Opinion and Order to the
parties and all counsel of record.

IT IS SO ORDERED.

Newport News, Virginia

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Mayj?^ ,2022

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United States District Juds