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finding a genuine issue of material fact as to "whether GE could reasonably foresee that its turbines would be combined with asbestos-containing insulation, which together constituted a defective product, absent appropriate warnings of the dangers of asbestos"
Summary of this case from Sparkman v. A.W. Chesterton Co.Opinion
Civil Action No. 03-5126.
October 5, 2004
MEMORANDUM
Plaintiff, Raymond Chicano, filed a complaint on June 9, 2003 against defendant General Electric Company alleging that he sustained personal injuries as a result of exposure to asbestoscontaining materials, which insulated marine steam turbines manufactured and supplied by GE, and that GE failed to warn of the dangers posed by such exposure. The case was removed to this Court on September 10, 2003 pursuant to 28 U.S.C. § 1442(a)(1). Before me now is defendant's motion for summary judgment, plaintiff's response, and defendant's reply thereto. Also before me is plaintiff's motion for substitution of parties and amendment of complaint.
Linda Chicano asserts a cause of action in her own right and, as of the date of this opinion, will be substituted as personal representative of Raymond Chicano's estate. However, for the sake of simplicity, I will consider the plaintiff to be Raymond Chicano.
BACKGROUND
Raymond Chicano worked as a sheet metal mechanic at the New York Shipyard in Camden, NJ from 1959 to 1962. At the Shipyard, Chicano worked aboard the United States Navy aircraft carrier, USS Kitty Hawk, installing ventilation duct work in various quarters of the ship, including its boiler rooms, where Chicano spent about 40% of his work time. In addition to the duct work, the ship's boiler rooms housed giant turbines, generators, and pumps, all of which were installed prior to Chicano's employment at the Shipyard. The turbines aboard the Kitty Hawk were manufactured by GE. At the time of Chicano's employment, the turbines were already insulated or were in the process of being insulated with an asbestos-containing material bearing the name Johns-Manville. Although Chicano did not work on the turbines, generators, or pumps, he worked in and around them in a dusty and dirty environment. There was visible dust and white flakes from the insulation material on the floor, equipment, and in the air where he was working. The dust gathered on his face and clothes; he breathed in the dust. Chicano was diagnosed on October 9, 2002 with mesothelioma and died on June 17, 2004 at the age of 64.GE manufactured and supplied marine steam turbines for the USS Kitty Hawk under contract with the Department of the Navy. The contract was administered by the Navy Sea Systems Command ("NAVSEA") under the authority of the Secretary of the Navy. NAVSEA personnel exclusively developed the ship designs and plans for the USS Kitty Hawk, as well as the comprehensive and detailed guidelines and specifications for all of the ship's equipment, including the marine steam turbines. NAVSEA personnel also supervised and approved the plans of the various suppliers of the ship's component parts, including GE, and enforced their compliance with Navy specifications.
The marine steam turbines at issue were specifically designed for a particular vessel or class of vessels. The turbines for each vessel or class were not interchangeable; they were custom built under the direction and control of the Navy. Prior to the construction of the ship, there was an extensive set of specifications, known as Mil-Specs, which comprised thousands of pages and governed all aspects of the ship's design and construction. These Mil-Specs specified that certain materials were to be used, including asbestos-containing thermal insulation. The specifications for GE's marine steam turbines included further specifications for certain components and materials to be used for and with the turbines, e.g. specific metals, bearings, and gaskets. These specifications also called for: (1) notes, cautions, and warnings to be used to emphasize important and critical instructions as were necessary; (2) safety notices where the high voltages or special hazards were involved; and (3) routine and emergency procedures, and safety precautions.
The turbines required thermal insulation to operate properly and safely. However, GE did not include any insulation materials, asbestos or otherwise, with its turbines when they were shipped to the Navy. Nor did GE supply the Navy with any separate thermal insulation. GE did not specify any insulation material to be used to insulate its turbines. The Navy's specifications called for asbestos insulation to be used on the turbines. Nevertheless, GE knew that its turbines would be insulated with asbestos-containing materials and knew that they were, in fact, insulated with asbestos-containing materials. Before the Kitty Hawk was built and before Chicano worked on the ship, both the Navy and GE knew that asbestos posed certain health risks. GE was required to give warnings regarding its turbines and to provide detailed manuals regarding proper safety, installation, and operation. GE supplied warnings regarding its turbines, but did not supply warnings of the dangers of asbestos. Chicano was never warned about the dangers of asbestos and had no knowledge regarding the safety, installation, or operation of the turbines. After they were installed, GE had a continuing obligation to service and/or inspect the turbines.
STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides, in relevant part, that summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).I must determine whether any genuine issue of material fact exists. An issue is genuine if the fact finder could reasonably return a verdict in favor of the non-moving party with respect to that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue is material only if the dispute over the facts "might affect the outcome of the suit under the governing law."Id. In making this determination, I must view the facts in the light most favorable to the non-moving party, and the non-moving party is entitled to all reasonable inferences drawn from those facts. Id. However, the nonmoving party may not rest upon the mere allegations or denials of the party's pleading. See Celotex, 477 U.S. at 324. The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and cannot survive by relying on unsupported assertions, conclusory allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989). If the evidence for the nonmoving party is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50 (citations omitted).
DISCUSSION
After consideration of all of the issues, viewing the facts in the light most favorable to plaintiff, and applying governing law, I conclude that a fact finder could reasonably return a verdict in favor of plaintiff. Accordingly, defendant's motion for summary judgment will be denied.
Asbestos litigation claims are governed by substantive state tort law. Robertson v. Allied Signal, Inc., 914 F.2d 360, 366 (3d Cir. 1990). Plaintiff has asserted a Pennsylvania strict products liability claim alleging that GE's turbines aboard the Kitty Hawk constituted defective products under a failure to warn theory. I apply substantive Pennsylvania tort law to plaintiff's claims.
Plaintiff argues that the turbines were defective because, although GE only supplied the turbines and not the asbestos-containing products that insulated them, GE failed to warn Chicano, in the turbine safety manual or otherwise, of the dangers of the asbestos-containing products that would be used to insulate its turbines aboard the Kitty Hawk. Plaintiff asserts that GE had a duty to warn of the dangers of asbestos because: (1) the turbines required thermal insulation to operate safely; (2) GE knew that the Navy would insulate them with an asbestoscontaining product; and (3) GE knew that asbestos-containing products posed significant health risks, including the possibility of mesothelioma. In response, GE asserts that it does not have a duty to warn regarding products it did not produce and that its products were neither the cause-infact nor the proximate cause of plaintiff's injuries. I. Chicano's Exposure to Asbestos
As a preliminary matter, plaintiff must establish that his injuries were caused by a product of the particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 898 (Pa. 1975). In the asbestos context, plaintiff must "present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer's product." Eckenrod v. GAF Corp., 544 A.2d 50, 52 (Pa.Super.Ct. 1988); see also Robertson v. Allied Signal, Inc., 914 F.2d 360, 376 (3d Cir. 1990) (rejecting the "fiber drift theory"). GE argues that it did not manufacture its marine steam turbines with any asbestos materials and, therefore, Chicano could not have inhaled asbestos fibers from its turbines. However, GE's argument overlooks the fact that its products are component parts of finished products, because the turbines cannot function properly or safely without thermal insulation. The products from which Chicano inhaled asbestos fibers are properly understood to be the turbines covered with asbestos-containing insulation, as fully functional units. Chicano inhaled dust and white flakes shed by the insulation material covering GE's marine steam turbines. Thus, there is at least a genuine issue of material fact as to whether Chicano inhaled asbestos fibers from the integrated products.
GE further argues that plaintiff has failed to present evidence that he was sufficiently exposed to the asbestos-containing material to meet the "frequency, regularity, and proximity test" of Eckenrod v. GAF Corp., 544 A.2d 50 (Pa.Super.Ct. 1988). Although the Pennsylvania Supreme Court has yet to establish a standard for exposure to asbestos, the Court of Appeals has predicted that the Pennsylvania Supreme Court would adoptEckenrod's frequency, regularity, and proximity test.Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 (3d Cir. 1990); see also Lilley v. Johns-Manville Corp., 596 A.2d 203, 209-10 (Pa.Super.Ct. 1991); Godlewski v. Pars Mfg. Co., 597 A.2d 106, 110 (Pa.Super.Ct. 1991); Samarin v. GAF Corp., 571 A.2d 398, 404 (Pa.Super.Ct. 1989).
In Eckenrod, the Pennsylvania Superior Court held that "a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product's use." Eckenrod, 544 A.2d at 52. Moreover, to withstand summary judgment under the Eckenrod standard, plaintiff must present evidence to show: (1) that defendant's product was frequently used; (2) that plaintiff regularly worked in proximity to the product; and (3) that plaintiff's contact with the product was of such a nature as to raise a reasonable inference that he inhaled asbestos fibers emanating from it.See, e.g., Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 622 (Pa.Super.Ct. 1999) ("The evidence must demonstrate that plaintiff worked, on a regular basis, in physical proximity with the product, and that his contact was of such a nature as to raise a reasonable inference that he inhaled asbestos fibers that emanated from it.").
GE's turbines, with the asbestos-containing insulation, were an integral part of the ship's source of propulsion power and were frequently used by the Navy on board the USS Kitty Hawk. GE argues that Chicano did not work sufficiently frequently or regularly in the vicinity of the insulated boilers to meet theEckenrod test. This argument is unavailing. Chicano worked every day for three years in and around the insulated turbines in a dirty environment where dust and white flakes from the insulation material covered his clothes and his face. Chicano could not help but breathe the dust as he worked on the ventilation ducts. Although not conclusive, this exposure is sufficient to raise a reasonable inference that he inhaled asbestos fibers emanating from the insulation surrounding the turbines.
This case is analogous to Lilley v. Johns-Manville Corp., 596 A.2d 203 (Pa.Super.Ct. 1991). In Lilley, the Pennsylvania Superior Court upheld the trial court's denial of defendant asbestos manufacturer's motion for judgment non obstante verdicto because plaintiff, who contracted asbestosis, presented sufficient evidence of exposure to asbestos to meet the Eckenrod test. Id. The Court held that the evidence adduced at trial was sufficient to meet theEckenrod test because plaintiff presented evidence: (1) that he had worked in close quarters with asbestos products; (2) that asbestos dust was omnipresent in the area; and (3) that a number of his asbestos products were used at plaintiff's company during the pertinent time frame. Id. As in Lilley, Chicano presented evidence that he worked in and around the insulated turbines in a dirty and dusty environment where white flakes from the insulation material filled the air and coated the floor, equipment, and his clothes.
The present case is distinguishable from Eckenrod. InEckenrod, the Court affirmed a grant of summary judgment in favor of defendant asbestos manufacturers because plaintiff failed to provide sufficient evidence of decedent's exposure to defendants' products. 544 A.2d 50. Although plaintiff presented evidence that defendant's asbestos-containing products were sent to the furnace area of plaintiff's employer and that plaintiff worked somewhere in the vicinity of those products, the Court concluded that the evidence "did not elaborate on the nature or length of the exposure or the brand of products available." Id. at 52. In contrast to Eckenrod, Chicano did elaborate on the nature and length of his exposure as he presented evidence that he spent 40% of his time working in and around the insulated turbines in cramped boiler rooms. Thus, there is at least a genuine issue of material fact as to whether plaintiff has met the Eckenrod standard, and therefore whether the insulation around the turbines was the cause of Chicano's mesothelioma. II. Strict Liability
Under principles of strict liability, a seller is strictly liable for injury caused by a defective condition in his product, even if he exercised all reasonable care in its design, manufacture, and distribution. Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 898 (Pa. 1975); Webb v. Zern, 220 A.2d 853, 854 (Pa. 1966), adopting § 402A Restatement (Second) of Torts (1965). The Pennsylvania Supreme Court has held that in a strict product liability action, plaintiff bears the burden of demonstrating: (A) that defendant had a duty to warn of the dangers inherent in his product; (B) that the product was defective or in a defective condition; (C) that the defect causing the injury existed at the time the product left the seller's hands; and (D) that the defective product was the cause of plaintiff's injuries. See, e.g., Pavlik v. Lane Limited/Tobacco Exporters Int'l, 135 F.2d 876, 881 (3d Cir. 1998); Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100, 102 (Pa. 1990); Schriner v. Pa. Power Light Co., 501 A.2d 1128, 1132 (Pa. 1985); Azzarello v. Black Bros. Co., 391 A.2d 1020 (Pa. 1978); Berkebile, 337 A.2d at 898; § 402A Restatement (Second) of Torts. These elements will be addressed in turn. A. Duty to Warn
Section 402A provides:
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
A manufacturer of a product has a duty to provide those warnings or instructions that are necessary to make its product safe for its intended use. See, e.g., Mackowick, 575 A.2d at 102; Azzarello, 391 A.2d 1020; Berkebile, 337 A.2d at 903 ("Where warnings or instructions are required to make a product nondefective, it is the duty of the manufacturer to provide such warnings in a form that will reach the ultimate consumer and inform of the risks and inherent limits of the product."); see also Restatement (Second) of Torts § 402A, comment h ("Where . . . [the seller of a product] has reason to anticipate that danger may result from a particular use . . . he may be required to give adequate warning of the danger, and a product sold without such warning is in a defective condition."). The duty to provide a nondefective product is not delegable. Berkebile, 337 A.2d at 903.
GE argues that it has a duty to warn only of the dangers inherent in the product it supplied, i.e. marine steam turbines. Plaintiff argues that "GE, as the manufacturer of the turbines, had a duty to distribute the product with sufficient warnings to notify the ultimate user of the dangers inherent in the product[,]" including inevitable insulation with an asbestoscontaining product.
In support of this argument, plaintiff asks me to follow the New York Supreme Court's holding in Berkowitz v. A.C. S., Inc., 288 A.D.2d 148 (N.Y.App.Div. 2001). In Berkowitz, the Court affirmed the denial of defendant pump manufacturer's motion for summary judgment and held that there were genuine issues of material fact because defendant may have had a duty to warn concerning the dangers of asbestos, which it had neither manufactured nor installed on its pumps. Id. at 148. Although the pumps could function without insulation, the governmental purchaser of the pumps had provided certain specifications involving insulation of the pumps, and the Court found it questionable whether the pumps — transporting steam and hot liquids on board Navy ships — could be operated safely without insulation, which defendant knew would be made out of asbestos.Id.
Citing Berkowitz, plaintiff argues that GE as a manufacturer of component parts — the turbines — had a duty to warn of the dangers associated with the use of the finished products — the insulated turbines — which it knew to have a defective condition — asbestos insulation. I need not decide whether to followBerkowitz because there is ample Pennsylvania law on this subject.
Generally, under Pennsylvania law, a manufacturer's duty to warn may be limited where it supplies a component of a product that is assembled by another party and the dangers are associated with the use of the finished product. See, e.g., Jacobini v. V. O. Press Co., 588 A.2d 476, 478 (Pa. 1991). A review of Pennsylvania law and its federal interpretations suggests that a component part manufacturer does not have a duty to warn of dangers inherent in the ultimate product where: (1) the component itself is not dangerous; (2) the manufacturer does not have control over the use of its component after sale; (3) the component is a generic component part, not designed for a particular type of finished product; and (4) the manufacturer could not reasonably foresee that its component would be put to a dangerous use. See, e.g., Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298, 1309 (3d Cir. 1995); Fleck v. KDI Sylvan Pools, 981 F.2d 107, 112 (3d Cir. 1992); J. Meade Williamson and F.D.I.B., Inc. v. Piper Aircraft Corp., 968 F.2d 380, 385 (3d Cir. 1992); Jacobini, 588 A.2d at 479; Wenrick v. Schloemann-Siemag, A.G., 564 A.2d 1244, 1247 (Pa. 1989). Particular emphasis has been placed on the foreseeability inquiry. See Colegrove v. Cameron Mach. Co., 172 F. Supp. 2d 611, 629 (W.D. Pa. 2001) ("Only if the component's use was foreseeable does the manufacturer of that component have a duty to warn of dangers associated with the component.").
In the case at bar, there is at least a genuine issue of material fact as to whether GE had a duty to warn of the dangers of the asbestos-containing material that was used to insulate its turbines. GE's marine steam turbines by themselves were not dangerous products. Although the turbines could not be operated properly or safely without thermal insulation and they were shipped to the Navy without thermal insulation, the turbines were not dangerous because GE supplied ample warnings of the hazards involved with installing and operating the turbines. GE did not have control over the use of its turbines after they were sold to the Navy. Although GE had a continuing obligation to service and/or inspect the turbines, GE did not control what form of insulation would cover its turbines. However, there is at least a genuine issue of material fact as to whether the turbines were generic components or designed for a particular type of finished product and whether GE could reasonably foresee that its turbines would be combined with asbestos-containing insulation, which together constituted a defective product, absent appropriate warnings of the dangers of asbestos.
A review of the case law in this area is instructive. The paramount Pennsylvania case is Wenrick v. Schloemann-Siemag, A.G., 564 A.2d 1244 (Pa. 1989). In Wenrick, the Supreme Court of Pennsylvania upheld the lower court's decision to grant judgment non obstante verdicto in favor of defendant switch manufacturer because it did not have a duty to warn regarding the placement of its switch, which activated a hydraulic loader that crushed plaintiff's husband. Id. Plaintiff settled with the manufacturer of the hydraulic loader and asserted negligence and strict liability claims against the manufacturer of the switch alleging: (1) that the switch activating the loader was defective because the switch was unguarded and placed near the steps; and (2) that the switch manufacturer should have warned the hydraulic loader manufacturer of the danger of locating the switch near the steps. Id. at 1246. The Supreme Court concluded that the switch manufacturer did not have a duty to warn because it had not placed the switch there, it had no control over the placement of the switch, and it had no knowledge as to the placement of the switch. Id. at 1247. This case has come to be cited for the basic proposition that a component part manufacturer has no duty to warn of dangers associated with the finished products into which its component was incorporated; however, as discussed below, this proposition has been qualified by later cases. See, e.g., Colegrove v. Cameron Mach. Co., 172 F. Supp. 2d 611, 629 (W.D. Pa. 2001) (discussing the development of the Wenrick principle). The present case is distinguishable from Wenrick because although GE did not produce the insulation that covered its turbines or control what form of thermal insulation covered them GE knew that its turbines would be covered with an asbestos-containing material.
Most analogous to the case at bar is Fleck v. KDI Sylvan Pools, 981 F.2d 107 (3d Cir. 1992). In Fleck, the Court of Appeals affirmed a jury verdict against defendant manufacturer of a swimming pool replacement liner that lacked warnings of the pool's depth. Id. Plaintiff dove head first into a three foot deep pool, broke his neck, and was rendered a quadriplegic. Id. He sued the replacement liner manufacturer claiming that the replacement liner was defective because it lacked depth warnings.Id. The replacement liner manufacturer argued that it had no duty to warn because its replacement liner was a component part incorporated into a final product. Id. Rejecting this argument, the Court held that the replacement liner manufacturer had a duty to warn because the danger from the replacement liner lacking depth warnings was foreseeable to the manufacturer of that component. Id. at 118. The dangers associated with a replacement liner that lacked depth warnings were reasonably foreseeable because the replacement liner had but one use — to be incorporated into a completed swimming pool. Id. The Fleck court also distinguished "generic component parts," where theWenrick principle does apply, from "separate products with a specific purpose and use," where the Wenrick principle is inapplicable. Id. Thus, with generic component parts, "it would be unreasonable and unwarranted to recognize liability in such a tenuous chain of responsibility[,]" but with single purpose parts, a duty to warn may arise. Id. Like the replacement liner that lacked depth warnings, the marine steam turbines that required thermal insulation were specifically designed for a particular purpose — to be insulated with an asbestos-containing material and propel a particular aircraft carrier, the USS Kitty Hawk. Thus, there appears to be a genuine issue of material fact as to whether GE had a duty warn of the asbestos insulation used to insulate its turbines, which were designed for a particular purpose.
The distinction between this case and Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298 (3d Cir. 1995), is particularly instructive. In Petrucelli, the Court of Appeals applied theWenrick principle to hold that a rotor crusher manufacturer was not liable for a failure to warn of the danger of a discharge conveyer belt, which were both connected in a recycling machine, because it could not reasonably have foreseen that the conveyer belt would pull in people's body parts. Id. Plaintiff sued the manufacturer of the rotor crusher in strict liability after his arm was amputated when it was pulled into a discharge conveyer belt on a recycling machine, which was designed and built by another company but incorporated defendant's rotor. Id. at 1309. Plaintiff was not injured by the rotor, but argued that the rotor was defective because it lacked warning systems that could alert someone standing near the discharge conveyer belt if the machine was activated. Id. The Court identified the issue as "whether it is reasonably foreseeable to a component manufacturer that failure to affix warning devices to its product would lead to an injury caused by another component part, manufactured by another company, and assembled into a completed product by someone other than the initial component manufacturer." Id. Answering in the negative, the Court concluded that defendant's duty to warn was limited because it could not be expected to foresee the danger from the discharge conveyer belt, which it neither manufactured nor assembled with its rotor, and therefore could not be liable for failing to warn of this danger.Id. Like the defendant rotor crusher manufacturer, GE merely created component parts — the turbines — and its component parts were not the cause of Chicano's mesothelioma. However, the rotor crusher manufacturer did not know that its component part would be connected to a defective discharge conveyer belt, whereas GE knew that the Navy would use asbestoscontaining products to insulate their turbines. Although Chicano's mesothelioma allegedly was caused by the asbestos-containing insulation, which was manufactured by an entirely different company and assembled into completed products by the Navy, there is at least a genuine issue of material fact as to whether it was reasonably foreseeable to GE that a failure to include a warning regarding the use of asbestos-containing products to insulate its turbines would lead to asbestosrelated illness.
This case is also distinguishable from Jacobini v. V. O. Press Co., 588 A.2d 476 (Pa. 1991). In Jacobini, the Supreme Court of Pennsylvania reversed the lower court and held that defendant manufacturer of a die set was not strictly liable to plaintiff, who was injured when the power press he operated expelled a die and various materials being shaped by the die.Id. Evidence demonstrated that plaintiff's injuries could have been prevented by a barrier guard that had been removed. Id. Plaintiff sued the manufacturer of the press and the manufacturer of the die set in strict liability alleging that each manufacturer should have included a warning to use its product only with the barrier guard attached, and its failure to warn rendered the product defective. Id. The Supreme Court concluded that plaintiff's evidence was insufficient to support a verdict because plaintiff's expert testified that plaintiff should have been warned of the need for a separate safety device, one, which had it been installed, would not have prevented his injuries. Id. Nevertheless, the Court continued in dicta to opine that, even if plaintiff had produced sufficient evidence, the die set manufacturer's duty to warn was limited where "the manufacturer supplies a mere component of a final product that is assembled by another party and dangers are associated with the use of the finished product." Id. at 479 (citing Wenrick). "This is especially true where the component itself is not dangerous, and where the danger arises from the manner in which the component is utilized by the assembler of the final product, this being a manner over which the component manufacturer has no control." Id. at 479. The Court concluded by adding:
[Defendant] cannot be expected to foresee every possible risk that might be associated with use of the completed product, the die, which is manufactured by another party, and to warn of dangers in using that completed product in yet another party's finished product, the power press. To recognize a potential for liability through such a chain of responsibility would carry the component part manufacturer's liability to an unwarranted and unreasonable extreme.Id. at 480. Unlike the die set manufacturer, who created a generic set of dies for use on a variety of printing presses, GE specifically designed its turbines to function on a particular aircraft carrier with a view to having the turbines covered in asbestos-containing insulation. Thus, there is at least a genuine issue of material fact as to whether GE could be expected to foresee that the asbestos-containing material would be used to insulate its turbines. Therefore, GE's duty to warn may not be limited because it knew of the danger from asbestos-containing insulation, which it neither manufactured nor assembled with its turbine.
B. Defective Condition
A product may be found defective if it "left the supplier's control lacking any element necessary to make it safe for its intended use or possessing any feature that makes it unsafe for the intended use." Azzarello v. Black Bros. Co., 391 A.2d 1020, 1027 (Pa. 1978). "There are three different types of defective conditions that can give rise to a strict liability claim: design defect, manufacturing defect, and failure to warn defect." Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1170 (Pa. 1995). Asbestos-containing products are unavoidably unsafe products and can only be made safe through the provision of adequate warnings. See Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357, 372 (E.D. Pa. 1982). A product is defective due to a failure to warn where the product was "distributed without sufficient warnings to notify the ultimate user of the dangers inherent in the product." Mackowick v. Westinghouse Elec., 575 A.2d 100, 102 (Pa. 1990). In this case, plaintiff contends that GE's marine steam turbines were defective in that they were sold without adequate warnings regarding the health hazards of the asbestos-containing products used to insulate the turbines. In response, GE argues that its turbines were not defective because they included more than adequate warnings regarding proper safety, installation, and operation of the turbines themselves.
The initial determination of "whether a warning is adequate and whether a product is `defective' due to inadequate warnings are questions of law to be answered by the trial judge." Mackowick v. Westinghouse Elec. Corp., 575 A.2d 100, 102 (Pa. 1990); see also Azzarello v. Black Bros. Co., 391 A.2d 1020, 1026 (Pa. 1978) ("It is a judicial function to decide whether, under the plaintiff's averment of the facts, recovery would be justified; and only after this judicial determination is made is the cause submitted to the jury to determine whether the facts of the case support the averments of complaint."). In determining the adequacy of a warning, courts have noted that:
A manufacturer may be liable for failure to adequately warn where its warning is not prominent, and not calculated to attract the user's attention to the true nature of the danger due to its position, size, or coloring of its lettering. A warning may be found to be inadequate if its size or print is too small or inappropriately located on the product. The warning must be sufficient to catch the attention of persons who could be expected to use the product, to apprise them of its dangers, and to advise them of the measures to take to avoid these dangers.Pavlik v. Lane Ltd./Tobacco Exporters Int'l, 135 F.3d 876, 887 (3d Cir. 1998) (quoting Nowak v. Faberge USA, Inc., 32 F.3d 755, 759 (3d Cir. 1994)).
I decline to make this determination as a matter of law because this factor hinges on GE's duty to warn regarding the asbestos-containing products used to insulate its turbines. As discussed, above, I conclude that there is at least a genuine issue of material fact regarding GE's duty to warn. To the extent that GE had a such a duty, there is at least a genuine issue of material fact as to whether GE breached this duty by failing to warn Chicano of the inherent dangers of the asbestos-containing products that insulated its turbines.
C. Defective When the Products Left the Seller's Hands
The defective condition must have existed at the time the product left the manufacturer's hands. See, e.g., Berkebile v. Brantly Helicopter Corp., 337 A.2d 893, 901 (Pa. 1975). No substantial changes were made to the turbines between the time that they were shipped by GE and when they were received by the Navy. No additional instructions or warnings were added or removed from the turbine manuals or the turbines themselves. Once they were received by the Navy, the turbines were only changed to the extent that they were installed on the aircraft carrier and insulated with an asbestos-containing product. This factor is connected to the analysis of a component part manufacturer's duty to warn. To the extent that GE had a duty to warn regarding the asbestos-containing product used to insulate its turbines as a component manufacturer, there is at least a genuine issue of material fact as to whether the turbines were defective, due to inadequate warnings, when they were shipped to the Navy. D. Causation
Plaintiff must establish that the lack or inadequacy of a warning was both the cause-infact and proximate cause of his injuries. Pavlik v. Lane Ltd./Tobacco Exporters Int'l, 135 F.2d 876, 881 (3d Cir. 1998). Cause-in-fact, or but for cause, requires proof that the harmful result would not have occurred but for the conduct of defendant and proximate cause requires proof that defendant's conduct was a substantial contributing factor in bringing about the harm alleged. Robertson v. Allied Signal, Inc., 914 F.2d 360, 366-67 (3d Cir. 1990). The act or omission need not be the only cause of the injury, but it must be a discernible cause. Whitner v. Von Hintz, 263 A.2d 889, 893 (Pa. 1970).
In the failure to warn context, causation analysis focuses on the additional precautions that might have been taken by the end user had an adequate warning been given. Pavlik, 135 F.2d at 882. Thus, a plaintiff asserting a failure to warn theory "must demonstrate that the user of the product would have avoided the risk had he or she been warned of it by the seller." Phillips v. A-Best Prods. Co., 665 A.2d 1167, 1171 (Pa. 1995). Although the Pennsylvania Supreme Court has yet to address this issue, the Court of Appeals has predicted that the Pennsylvania Supreme Court will adopt the "heeding presumption" to establish legal causation. See Pavlik, 135 F.2d at 883; Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 619-21 (Pa.Super.Ct. 1999) (applying the heeding presumption). "[I]n cases where warnings or instructions are required to make a product non-defective and a warning has not been given, plaintiff should be afforded the use of the presumption that he or she would have followed an adequate warning." Coward, 729 A.2d at 621. Thus, plaintiff is entitled to the presumption that he would have heeded GE's warning of the dangers associated with the asbestos-containing products used to insulate its turbines.
The heeding presumption is rebuttable, however. If defendant produces evidence that the injured plaintiff was either fully aware of the risk of bodily injury, the extent to which his conduct could contribute to that risk, or other similar evidence to demonstrate that an adequate warning would not have been heeded, "the presumption is rebutted and the burden of production shifts back to plaintiff to produce evidence that he would have acted to avoid the underlying hazard had defendant provided an adequate warning." Coward, 729 A.2d at 621 (citing Pavlik, 135 F.2d at 883). GE asserts that the presumption is rebutted because Chicano could not have heeded a warning he never would have seen. GE argues that even if GE had provided a warning in its turbine manual that asbestos-containing insulation might be used to insulate its turbines Chicano never would have had the purpose or opportunity to read the manual. GE further argues: "To make plaintiff's argument work, she would need to provide evidence that a sheetmetal worker assigned to ventilation duct work would try to locate a turbine manual somewhere in a ship the size of a skyscraper, convince the chief engineer officer to let him take the manual, actually begin reading a manual that has nothing to do with his job, and then locate in a manual of hundreds of pages the part on thermal insulation." GE's argument reveals its misunderstanding of the presumption. The key to rebutting the heeding presumption is production of evidence to show that plaintiff would not have heeded an adequate warning.See Pavlik, 135 F.2d at 887 (discussing factors in determining adequacy of warnings). GE has produced no such evidence. A warning hidden in an enormous expanse, guarded by a naval officer, and buried in a voluminous text is not sufficiently adequate to warn of the dangers inherent in the insulated turbine. See id. Thus, there is at least a genuine issue of material fact as to whether Chicano would have heeded an adequate warning of the dangers inherent in the insulated turbines. III. Government Contractor Defense
GE argues that as a government contractor it is immune under the government contractor defense recognized by the Supreme Court in Boyle v. United Techs. Corp., 487 U.S. 500, 507-08 (1988). In Boyle, the Supreme Court announced a two step approach for applying the government contractor defense. Id. Initially, I must determine whether the state's tort law is in significant conflict with the federal interests associated with federal procurement contracts. Id. The imposition of liability on GE creates a significant conflict with the federal interests associated with federal procurement contracts because the liability cost of products liability suits arising out of the contract will be passed on to the government, which is the consumer. See id. at 507 (reasoning that the imposition of liability on a government contractor "will directly affect the terms of Government contracts: either the contractor will decline to manufacture the design specified by the Government, of it will raise its price."). Where there is such a conflict, I must apply a three-prong test to determine when state tort law will be displaced by federal common law in a suit against a military contractor. Id.
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.Id. at 507-08. If the contractor meets all three prongs, the government contractor defense is established and defendant manufacturer is immune from liability under state tort law.Carley v. Wheeled Coach, 991 F.2d 1117, 1119 (3d Cir. 1993) (extending the government contractor defense to nonmilitary contractors). Defendant bears the burden of proving each element of the defense. Beaver Valley, 883 F.2d at 1217 n. 7. Where defendant has moved for summary judgment, defendant must establish that there is no genuine issue of material fact as to each element of the defense. Id.
The first prong of the defense requires defendant to show that United States has established or approved reasonably precise specifications. Boyle, 487 U.S. at 507-08. The government contractor defense is available to a contractor that participates in the design of the product, so long as the government examined the design specifications and exercised ultimate responsibility for making the final decisions. Koutsoubos v. Boeing Vertol, 755 F.2d 352, 355 (3d Cir. 1985). In the case at bar, GE has demonstrated that the government established an extensive set of specifications, which governed all aspects of the aircraft carrier's design and instruction, including specifications for the components and materials to be used in the turbines. The government specifications also called for notes, cautions, and warnings, and safety notices where special hazards are involved.
The second prong of the defense requires defendant to show that the products manufactured by defendant conformed to those specifications. Boyle, 487 U.S. at 507-08. GE has shown that its turbines conformed to all the Navy's stringent specifications regarding the turbines themselves. However, GE did not include any notes, cautions, warnings, or safety notices regarding the hazards of asbestos-containing materials. GE argues that the specifications regarding warnings and safety notices did not require it to provide warnings regarding products over which it had no control and did not supply. However, as discussed above, there is at least a genuine issue of material fact as to whether GE had a duty to supply such warnings regarding the dangers associated with the asbestos-containing products that it knew would cover its turbines. Accordingly, there is at least a genuine issue of material fact that GE did not conform to the Navy's specifications for the turbines.
The third prong of the defense requires defendant to show that it warned the United States about the dangers in the use of the products that were known to the supplier but not to the United States. Id. Defendant can also satisfy this prong by showing that the government knew as much or more than defendant contractor about the hazards of the equipment. See Beaver Valley, 883 F.2d at 1216. GE has produced evidence that the Navy was fully aware of the dangers of asbestos and that the Navy's knowledge exceeded any knowledge that GE had at the time.
Although GE has satisfied the first and third prongs of the government contractor defense, there is at least a genuine issue of material fact as to whether GE has satisfied the second prong. Accordingly, there is at least a genuine issue of material fact as to whether GE has met the government contractor defense.
IV. Plaintiff's Motion for Substitution of Parties and Amendment of Complaint
Since Mr. Chicano's death, his wife, Linda, has been duly appointed by the Register of Wills of Delaware County, Pennsylvania as executrix of his estate. Plaintiff requests that her name, Linda R. Chicano, be substituted as Personal Representative of the Estate of Raymond A. Chicano, and thus, change the caption to Linda R. Chicano, Executrix of the Estate of Raymond A. Chicano, deceased, and Linda R. Chicano, in her own right. In addition, plaintiff requests that the complaint be amended to allege damages under the Pennsylvania Wrongful Death Act, Pa. R. Civ. P. 2202(b). Plaintiff's motion for substitution of parties and amendment of complaint will be granted.
An appropriate order follows.
ORDER
AND NOW, this 5th day of October, 2004 upon consideration of defendant's motion for summary judgment, and plaintiff's response thereto, and plaintiff's motion for substitution of parties and amendment of complaint, and for the reasons set forth in the accompanying memorandum, IT IS HEREBY ORDERED as follows:1. Defendant's motion for summary judgment is DENIED.
2. Plaintiff's motion for substitution of parties and amendment of complaint is GRANTED. Linda R. Chicano is substituted as Personal Representative of the Estate of Raymond A. Chicano and the caption shall hereafter read "LINDA R. CHICANO, Executrix of the Estate of Raymond A. Chicano, and LINDA R. CHICANO, in her own right v. GENERAL ELECTRIC COMPANY, et al."