APL-2014-00209
New York County Clerk’s Index No. 190196/10
Court of Appeals
of the
State of New York
IN THE MATTER OF NEW YORK CITY ASBESTOS LITIGATION
DORIS KAY DUMMITT, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF
RONALD DUMMITT, DECEASED,
Plaintiffs-Respondents,
– against –
A.W. CHESTERTON, ET AL.,
Defendants,
– and –
CRANE CO.,
Defendant-Appellant.
BRIEF FOR AMICUS CURIAE GENERAL ELECTRIC
COMPANY IN SUPPORT OF APPELLANT CRANE CO.
Timothy E. Kapshandy
John A. Heller
Laura A. Sexton
SIDLEY AUSTIN LLP
Of Counsel
One South Dearborn Street
Chicago, IL 60601
Tel.: (312) 853-7000
Fax: (312) 853-7036
Rebecca K. Wood
SIDLEY AUSTIN LLP
1501 K Street, NW
Washington, DC 20005
Tel.: (202) 736-8000
Fax: (202) 736-8711
Eamon P. Joyce
SIDLEY AUSTIN LLP
787 Seventh Avenue
New York, NY 10019
Tel.: (212) 839-5300
Fax: (212) 839-5599
Attorneys for Amicus Curiae General Electric Company
Date Completed: March 18, 2016
CORPORATE DISCLOSURE STATEMENT
Pursuant to 22 NYCRR 500.l(f), General Electric Company ("GE") states:
1. The fallowing publicly traded companies in which GE and affiliates
(including GE Capital and GE Capital Equity) own 10% or more of the
outstanding stock:
APR Energy plc (London Stock Exchange)
Value Vision Media, Inc.
2. GE's subsidiaries which have outstanding securities in the hands of the
public (debt, equity, or other types of securities) are:
General Electric Capital Corporation
3. There js no parent of GE and no publicly traded company or other entity
owns 10% or more of GE.
-1-
TABLE OF CONTENTS
Page
CORPORA TE DISCLOSURE STATEMENT ........................................................ .i
TABLE OF AUTHORITIES .................................................................................. .iv
INTEREST OF AMICUS CURIAE ......................................................................... 1
QUESTIONS PRESENTED ..................................................................................... 1
STATEMENT OF THE CASE ................................................................................. 2
PRELIMINARY STATEMENT .............................................................................. 2
ARGUMENT ............................................................................................................ 8
I. HISTORICAL BACKGROUND ................................................................... 9
A. Understanding The Historical Military Context For The Navy's
Use Of Asbestos Is Helpful To Resolving The Issues Here ................ 9
1. Navy Ship Construction Surged During World War II ............. 9
2. The Navy Viewed Asbestos As A Critical Commodity
To Prevent Serious Fires And Explosions On Navy
Ships ......................................................................................... 11
3. Asbestos Insulation Was The Navy's Preferred Insulating
Material On Its Ships Constructed During And After
World War II ............................................................................ 13
B. The Navy Took Primary Responsibility For Controlling
Asbestos Health Hazards .................................................................... 15
1. The Navy Had State-Of-The-Art Knowledge About
Asbestos, Provided Its Own Warnings To Sailors, And
Limited Warnings From Third Parties ..................................... 16
2. Although The Navy Provided Asbestos Warnings, It
Focused On Limiting Asbestos Exposure Given The
Limited Effectiveness Of Asbestos Warnings ......................... 23
11
TABLE OF CONTENTS
II. THE COURT SHOULD ADHERE TO THE FUNDAMENTAL
TORT PRINCIPLE THAT ONLY DEFENDANTS WHO MAKE OR
DISTRIBUTE A GOOD HA VE A DUTY TO WARN ABOUT
THAT GOOD-PARTICULARLY IN THE HISTORICAL
MILITARY CONTEXT PRESENTED HERE ............................................ 28
III. THE COURT SHOULD NOT ADOPT A NOVEL HEEDING
PRESUMPTION HERE-LET ALONE A PRESUMPTION THAT
IS EFFECTIVELY IRREBUTTABLE ........................................................ 29
A. New York Follows The Bedrock Tort Principle That A Plaintiff
Must Prove Causation And Is Not Entitled To Presume That
Conclusion .......................................................................................... 30
B. Respondent's Arguments In Favor Of A Heeding Presumption
Are Misguided .................................................................................... 36
1. This Court Should Not Extend The Reach Of Now-
Repudiated Comment j Of The Restatement (Second) Of
Torts § 402A ............................................................................ 36
2. Other Presumptions Cited By Respondent Are Inapposite
Because They Were Formed Based On Realistic
Probabilities-Unlike A Heeding Presumption ....................... 3 8
C. The Court Below Compounded The Error By Excluding Fair
Rebuttal That Would Have Put The Warnings Issue In Context. ...... 42
CONCLUSION ....................................................................................................... 46
111
TABLE OF AUTHORITIES
Cases
Albrecht v. A.O. Smith Water Prods.,
No. 11 CIV. 5990 BSJ, 2011WL5109532 (S.D.N.Y. Oct. 21,
2011) ................................................................................................................... 17
Alston v. Caraco Pharm., Inc.,
670 F. Supp. 2d 279 (S.D.N.Y. 2009) ................................................................ 34
Anderson v. Hedstrom Corp.,
76 F. Supp. 2d 422 (S.D.N.Y. 1999) ............................................................ 34, 42
Applebee v. State,
308 N.Y. 502 (1955) ........................................................................................... 40
Banks v. Makita, U.S.A., Inc.,
226 A.D.2d 659 (2d Dep't 1996) ........................................................................ 31
Bee v. Novartis Pharm. Corp.,
18 F. Supp. 3d 268, 284 (E.D.N.Y. 2014) .......................................................... 34
Belling v. Haugh's Pools, Ltd.,
126 A.D.2d 958 (4th Dep't 1987) ....................................................................... 32
Boyle v. United Techs. Corp.,
487 U.S. 500 (1988) ............................................................................................ 44
Burgos v. Aqueduct Realty Corp.,
92 N.Y.2d 544 (1998) ......................................................................................... 30
Cornell v. 360 West 5lst Street Realty, LLC,
22 N.Y.3d 762 (2014) ......................................................................................... 30
Daimler AG v. Bauman,
134 S. Ct. 746 (2014) ........................................................................................ 4, 8
Deere & Co. v. Grose,
586 So. 2d 196 (Ala. 1991) ................................................................................. 34
Delesus v. Craftsman Machine Co.,
548 A.2d 736 (Conn. App. 1988) ....................................................................... 34
IV
Estrada v. Berke! Inc.,
14 A.D.3d 529 (2d Dep't 2005) .......................................................................... 31
Ferguson v. Lorillard Tobacco Co.,
475 F. Supp. 2d 725 (N.D. Ohio 2007) ............................................................. .44
Ford Motor Co. v. Boomer,
736 S.E.2d 724 (Va. 2013) ................................................................................. 34
Glucksman v. Halsey Drug Co.,
160 A.D.2d 305 (1st Dep't 1990) ................................................................. 31, 33
Granata v. Sub-Zero Freezer Co.,
12 Misc. 3d 1155(A) (Sup. Ct. 2006),
aff'd, 43 A.D.3d 996 (2d Dep't 2007) ................................................................ 31
Guadalupe v. Drackett Prods. Co.,
253 A.D.2d 378 (1st Dep't 1998) ................................................................. 31, 32
Harris v. Int'l Truck & Engine Corp.,
912 So. 2d 1101 (Miss. App. 2005) .................................................................... 34
Harris v. Rapid Am. Corp.,
532 F. Supp. 2d 1001 (N.D. Ill. 2007) .................................................... 16, 22, 44
Huitt v. S. Ca. Gas Co.,
116 Cal. Rptr.3d 453 (Cal. App. 2010) ......................................................... 34, 38
In re Fosamax Prods. Liab. Litig.,
924 F. Supp. 2d 477 (S.D.N.Y. 2013) ................................................................ 34
In re Joint E. & S. Dist. New York Asbestos Litig.,
897 F.2d 626 (2d Cir. 1990) .............................................................................. .44
Isgitt v. State Farm Ins. Co.,
156 So. 3d 669 (La. App. Ct. 2003) .............................................................. 35, 42
Johnson v. Johnson Chem. Co.,
183 A.D.2d 64 (2d Dep't 1992) .......................................................................... 31
Knowlton v. Desert Med., Inc.,
930 F.2d 116 (1st Cir. 1991) ............................................................................... 35
v
Langer v. Well Done, Ltd.,
11 Misc. 3d 1056(A) (Sup. Ct. 2006) ................................................................. 31
Leite v. Crane Co.,
749 F.3d 1117 (9th Cir. 2014) ............................................................................ 22
Liriano v. Hobart Corp.,
92 N.Y.2d 232 (1998) ..................................................................................... 8, 42
Luttrell v. Novartis Pharm. Corp.,
894 F. Supp.2d 1324 (E.D. Wash. 2012) ............................................................ 34
Machnik v. Buffalo Pumps Inc.,
506 F. Supp. 2d 99 (D. Conn. 2007) ............................................................. 16, 44
MacQueen v. Union Carbide Corp.,
No. CV 13-831-SLR-CJB, 2013 WL 6571808 (D. Del. Dec. 13,
2013), report and recommendation adopted, No. CV 13-831-
SLR/CJB, 2014 WL 108535 (D. Del. Jan. 9, 2014) ........................................... 16
Menna ex rel. Menna v. Walmart,
40 Misc. 3d 1221(A), (Sup. Ct. 2013) ................................................................ 31
Moore v. Ford Motor Co.,
332 S.W.3d 749 (Mo. 2011) ............................................................................... 35
Motus v. Pfizer Inc.,
196 F. Supp. 2d 984, 993 (C.D. Cal. 2001),
aff'd, 358 F.3d 659 (9th Cir. 2004) ..................................................................... 34
Mulhall v. Hannafin,
45 A.D.3d 55 (1st Dep't 2007) ............................................................... 31, 32, 33
O'Brien v. Erie R. Co.,
210 N.Y. 96 (1913) ............................................................................................. 39
Odom v. G.D. Searle & Co.,
979 F.2d 1001 (4th Cir. 1992) ............................................................................ 34
Olschewske v. Asbestos Defs. (B-P),
No. C 10-1729 PJH, 2010 WL 3184317 (N.D. Cal. Aug. 11, 2010) ................ .44
VI
Parkinson v. Novartis Pharm. Corp.,
5 F. Supp. 3d 1265, 1272 (D. Or. 2014) ............................................................. 34
Raney v. Owens-Illinois, Inc.,
897 F.2d 94 (2d Cir. 1990) ........................................................................... 33, 34
Rastelli v Goodyear Tire & Rubber Co.,
79 N.Y.2d 289 (1992) ......................................................................................... 28
Reis v. Volvo Cars of N. Am., Inc.,
73 A.D.3d 420 (1st Dep't 2010) ................................................................... 31, 33
Riley v. Am. Honda Co.,
856 P.2d 196 (Mont. 1993) ........................................................................... 34, 40
Rivera v. Philip Morris,
209 P.3d 271 (Nev. 2009) ............................................................................. 34, 40
Rochester Refrigerating Corp. v. Easy Heat, Inc.,
222 A.D.2d 1013 (4th Dep't 1995) ..................................................................... 32
Roman v. Sprint Nextel Corp.,
No. 12-CV-276 VEC, 2014 WL 5870743 (S.D.N.Y. Nov. 13,
2014) ................................................................................................................... 43
Ruppel v. CBS Corp.,
701F.3d1176 (7th Cir. 2012) ............................................................................ 43
Scarangella v. Thomas Built Buses, Inc.,
93 N.Y.2d 655 (1999) ......................................................................................... 37
Schelberger v. E. Sav. Bank,
93 A.D.2d 188, aff'd, 60 N.Y.2d 506 (1983) ..................................................... 39
Semenetz v. Sherling & Walden, Inc.,
7 N.Y.3d 194 (2006) ........................................................................................... 37
Sharpe v. Bestop, Inc.,
713 A.2d 1079 (N.J. Super. App. Div. 1998),
aff'd, 730 A.2d 285 (N.J. 1999) .......................................................................... 35
Smallwood v. Clairol, Inc.,
No. 03 CV 8394SWK, 2005 WL 425491 (S.D.N.Y. Feb. 18, 2005) ................. 34
vu
Sosna v. Am. Home Prods.,
298 A.D.2d 158 (1st Dep't 2002) ................................................................. 30, 32
Surre v. Foster Wheeler,
831 F. Supp. 2d 797 (S.D.N.Y. 2011) ................................................................ 28
Tot v. United States,
319 U.S. 463 (1943) ............................................................................................ 39
Tuttle v. Lorillard Tobacco Co.,
377 F.3d 917 (8th Cir. 2004) .............................................................................. 34
Up/old v. Generac Corp.,
224 A.D.2d 1021 (4th Dep't 1996) ..................................................................... 32
Zapata v. Ingersoll Rand Co.,
36 Misc. 3d 1230(A), (Sup. Ct. 2012) ................................................................ 31
Treaties, Statutes, and Regulations
10 U.S.C. §§ 899, 901-02 .......................................................................................... 7
29 C.F.R. § 1910.lOOl(g) ........................................................................................ 27
Burke-Wadsworth Act, Pub. L. No. 76-783, 54 Stat. 885 (Sept. 16,
1940) ................................................................................................................... 15
Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84
Stat. 1590 ............................................................................................................ 25
OHSA Standard for Exposure to Asbestos Dust, 37 Fed. Reg. 11, 318
(June 7, 1972) ................................................................................................ 25, 26
Treaty Between the United States, the British Empire, France, Italy &
Japan Agreeing to A Limitation of Naval Armament art. V, 43
Stat. 1655 (Feb. 6, 1922) ..................................................................................... 14
Vlll
Other Authorities
Barna, S.L., Notes: Abandoning Ship: Government Liability for
Shipyard Asbestos Exposures, 67 N.Y.U. L. REV. 1034, 1058-59
(1992) .................................................................................................................. 24
Baxter, G., The Right Way, The Wrong Way And The Navy Way,
FLYING MAGAZINE (June 1983) ............................................................................ 7
Brown, E.W., Industrial Hygiene and the Navy in National Defense,
WAR MEDICINE (Jan. 1941) ................................................................................ 17
Cohn, V., AFL-CIO Warns on Asbestos Cancers, THEW ASHINGTON
POST (Mar. 16, 1972) .......................................................................................... 25
Conservation Order M-79, Curtailing the Use of Certain Types of
Asbestos (Jan. 1942) ........................................................................................... 15
Department of Defense Form 1966 (DD1966),
Enlistment/Reenlistment Document - Armed Forces of the United
States ................................................................................................................... 41
Fleischer, et al., A Health Survey of Pipe Covering Operations in
Construction of Navy Vessels, J. OF INDUS. HYGIENE AND
TOXICOLOGY (Jan. 1946) ........................................................................ 18, 23, 24
Hearings on Compensation for Occupational Diseases: Hearing on
H.R. 1626 and H.R. 3090 before the Subcomm. on Labor
Standards of the H. Comm. on Education and Labor, 99th
Congress 353 (1985) ......................................................................... 13, 14, 23, 24
Herman, A., FREEDOM' s FORGE: How AMERICAN BUSINESS
PRODUCED VICTORY IN WORLD WAR II (Random House 2012) ........................ 10
Hogan, B. W., Chief, Bureau of Medicine and Surgery,
OccUP A TIONAL HEALTH HAZARDS DERIVED FROM INDUSTRIAL
HEALTH REPORTS JULY 1960 THROUGH SEPTEMBER 1960, Release
No. 26 (Feb. 1, 1961) .......................................................................................... 23
Hollins, D. M., et al., A Visual Historical Review of Exposure to
Asbestos at Puget Sound Naval Shipyard (1962-1972), 12 J. OF
TOXICOLOGY & ENVTL. HEALTH, Part B 124, 125 (Feb. 1, 2009) ...................... 15
lX
Laborers' Int'l Union of N.A., Labor Urges Stronger Safety Standards
for Exposure to Asbestos, THE LABORER (July 1972) ......................................... 25
Letter from Philip Drinker, Chief Health Consultant to the U.S.
Maritime Commission, to Captain Thomas Carter of the U.S. Navy
Department's Bureau of Medicine and Surgery (Jan. 31, 1945) ........................ 19
Maines, R., ASBESTOS AND FIRE: TECHNOLOGICAL TRADEOFFS AND
THE BODY AT RISK (Rutgers University Press 2005) .......................................... 15
Marr, W. T., Asbestos Exposure During Naval Vessel Overhaul, 25
AM. IND. HYG. Assoc. J. (May-June 1964) ........................................................ 23
McArthur, Captain J.C., U.S. Navy Commander, Pearl Harbor Naval
Shipyard, Statement before the Subcomm. on Compensation,
Health and Safety of the House Comm. on Education and Labor
(Nov.13, 1978) ................................................................................................... 13
Medical Monitoring & Asbestos Litigation: A Discussion with
Richard Scruggs & Victor Schwartz, 17:3 MEALEY'S ASBESTOS
LITIG. REP. 5 (Mar. 1, 2002) ................................................................................. 3
Merewether, E.R., et al., Home Office, REPORT ON EFFECTS OF
ASBESTOS DUST ON THE LUNGS AND DUST SUPPRESSION IN THE
ASBESTOS INDUSTRY (1930) ............................................................................... 26
MIL-1-15024 (SHIPS), Military Specification-Identification Plates,
Information Plates and Marking Information for Identification of
Electrical, Electronic, and Mechanical Equipment (June 11, 1971) ................. 20
Miller, J.A., MEN AND VOLTS AT WAR: THE STORY OF GENERAL
ELECTRIC IN WORLD WARII, V (McGraw-Hill Book Co. 1947) ........................ 10
MIL-T-15071 (SHIPS) Military Specification-Technical Manuals for
Mechanical and Electrical Equipment, (Aug. 15, 1954) ........................ 20, 21, 22
MIL-T-17 600 (SHIPS) Military Specification-Turbines, Steam,
Propulsion (For Naval Shipboard Use) (June 26, 1953) ................................... 21
MIL-T-17600C (SHIPS) Military Specification-Turbines, Steam,
Propulsion Naval Shipboard (Sept. 21, 1966) ................................................... 21
x
Pipe and Copper Shop Master Mechanics Conference Minutes,
Boston Naval Shipyard (May 8-10, 1957) .......................................................... 23
RESTATEMENT(SECOND)OFTORTS § 388 (AM.LAW INST. 1965) ........................... 29
RESTATEMENT (SECOND) OF TORTS§ 402A (AM. LAW INST. 1965) .................. 33, 36
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2 (AM. LAW INST.
1998) ....................................................................................................... 36, 37, 38
Robbins, Capt. H.M., Long Beach Naval Shipyard, Asbestosis,
SAFETY REVIEW, Vol. 19, No. 10 (Oct. 1962) .............................................. 18, 23
Robreno, Hon. Eduardo C. The Federal Asbestos Product Liability
Multidistrict Litigation (MDL-875): Black Hole or New
Paradigm?, 23 WIDENERL.J. 97 (2013) ............................................................. 13
Roosevelt, President Franklin D., The Great Arsenal of Democracy
(Dec. 29, 1940) ................................................................................................... 10
Safety Office, San Francisco Naval Shipyard, Who Is Responsible For
Safety?, SAFETY REVIEW, Vol. 19, No. 10 (Oct. 1962) ....................................... 22
Schwartz, V. E., Asbestos Litigation: The "Endless Search for A
Solvent Bystander," 23 WIDENER L.J. 59, 62-94 (2013) ...................................... 3
Selikoff, et al., ASBESTOS AND DISEASE (Academic Press 1978) ............................ 26
Selikoff, et al., Asbestos Exposure and Neoplasia, THE ASBESTOS
WORKER (Nov. 1964) ......................................................................................... 25
Selikoff, et al., Cancer risk of insulation workers in the United States,
BIOLOGICAL EFFECTS OF ASBESTOS (P. Bogovski, et al., eds. 1973) ................. 25
Selikoff, et al., Partnership for Prevention-The Insulation Industry
Hygiene Research Program, Indus. Medicine, INDUS. MED., Vol.
39 (April 1970) ................................................................................................... 25
Selikoff, et al., Relation between Exposure to Asbestos and
Mesothelioma, NEW ENGLAND J. MED., Vol. 272 (Mar. 18, 1965) .................... 25
Selikoff, et al., Union Survey Shows Current Masks Have Drawbacks,
THE ASBESTOS WORKER (May 1969) ................................................................. 26
Xl
Selikoff' s Address to the Delegates of the Twenty-Second Convention
of the International Assoc. of Heat and Frost Insulators and
Asbestos Workers (Miami, Fla.) (Sept. 1972) .............................................. 25, 26
Sherrill, R., Asbestos, The Saver Of Lives, Has A Deadly Side, NEW
YORK TIMES MAGAZINE (Jan. 21, 1973) ............................................................. 25
Sickles, C.W., ed., Minutes of Conference Meetings, Western States,
THE ASBESTOS WORKER (May 1959) ................................................................. 25
Todd, William T., ed., Our Troubled Environment, VA J. (Nov. 1971) ................. 25
U.S. Dep't of Navy, BLUEJACKETS' MANuAL (1960) .............................. 7, 12, 22, 23
U.S. Dep't of Navy, Bureau of Med. & Surgery, ANNuALREPORTOF
THE SURGEON GENERAL (1939) .................................................................... 16, 17
U.S. Dep't of Navy, Bureau of Med. and Surgery, BUMED
INSTRUCTION REGARDING THRESHOLD LIMIT VALUES FOR TOXIC
MATERIALS (Nov. 7, 1955) ........................................................................... 18, 21
U.S. Dep't of Navy, Bureau of Med. and Surgery, HANDBOOK OF THE
HOSPITAL CORPS (1939) ...................................................................................... 17
U.S. Dep't of Navy, Bureau of Ordnance, SAFETY HANDBOOK FOR
PIPEFITTERS, NAVORDINST 5100.21 (Jan. 7, 1958) .................................. 18, 23
U.S. Dep't of Navy' MANUAL OF INSTRUCTIONS FOR PURCHASE AND
ADMINISTRATION OF INSURANCE ON NAVY DEPARTMENT
CONTRACTS (1943) .............................................................................................. 17
U.S. Dep't of Navy, SAFETY PRECAUTIONS MANUAL FOR FORCES
AFLOAT, OPNAVINSP 5100.19 (Feb. 23, 1973) ............................................... 18
Winer & Holtgren, Asbestos-A Case Study of the U.S. Navy's
Response to Upgraded Safety and Health Requirements, NAVAL
ENG'RS J. (Dec. 1976) ................................................................................... 24, 26
Xll
INTEREST OF AMICUS CURIAE
General Electric Company is a New York corporation that employs
approximately 8,600 individuals, and supports an additional 11,300 supplier
employees, in New York. GE manufactured thousands of steam turbines for
United States Navy warships during and after World War II. GE's steam turbines
did not contain asbestos thermal insulation when they were delivered to the Navy.
Rather, the Navy contracted with other manufacturers to add asbestos or other
insulation after delivery by GE. The asbestos manufacturers have since filed for
bankruptcy, leading plaintiffs' counsel to target increasingly remote potential
defendants, including those that did not manufacture or distribute asbestos
insulation products.
Given the lifespan of U.S. Navy warships, under the theory of the courts
below, GE could face litigation for decades by hundreds of thousands of Navy
sailors and personnel who worked on or around GE-made turbines, even though
GE never manufactured, specified, or supplied asbestos insulation for these
warships. Thus, GE has a substantial interest in the outcome of this case.
QUESTIONS PRESENTED
1. Whether-contrary to the normal rule imposing tort duties only on
those in the chain of a good' s manufacturing and distribution-this Court should
impose a duty to warn about asbestos-related dangers on defendants, including
1
suppliers of critical Navy warship parts, who themselves did not manufacture,
specify, or supply asbestos.
2. Whether-contrary to the normal rule that plaintiffs must prove a
causal link between an alleged failure to warn and their injury-this Court should
recognize a novel "heeding presumption" that a hypothetical, unidentified asbestos
warning would have been followed and prevented injury, particularly in the unique
military setting presented here, where the Navy had extensive knowledge of the
potential risks and benefits of asbestos, and exercised expansive control over the
flow of information to service personnel, and where experience shows that existing
asbestos warnings were commonly left unheeded.
3. Whether, even if a "heeding presumption" applies, a defendant, at a
minimum, should be permitted to present otherwise admissible evidence to rebut
the presumption-including by demonstrating that the proposed warning would not
have been permitted or heeded-or whether a heeding presumption should be
rendered effectively irrefutable as a matter of law, as it was by the courts below.
STATEMENT OF THE CASE
GE adopts Appellant Crane Co.' s ("Crane") Statement of the Case as
relevant to its argument.
PRELIMINARY STATEMENT
Asbestos litigation has been described in recent years by plaintiffs' attorneys
2
as the "'endless search for a solvent bystander."' Medical Monitoring & Asbestos
Litigation: A Discussion with Richard Scruggs & Victor Schwartz, 17:3 MEALEY'S
ASBESTOS LITIG. REP. 5 (Mar. 1, 2002) (quoting plaintiffs' counsel Richard
"Dickie" Scruggs). After manufacturers of asbestos insulation eventually filed for
bankruptcy, recent litigation has focused on increasingly peripheral defendants-
even those (such as Crane and GE) that have no relationship with the asbestos at
issue. Bedrock tort law does not support imposing liability on such defendants, but
plaintiffs in asbestos litigation regularly seek to stretch the law to impose liability
on distant defendants. See, e.g., Schwartz, V. E. et al., Asbestos Litigation: The
"Endless Search for A Solvent Bystander," 23 WIDENER L.J. 59, 62-94 (2013)
(summarizing novel theories).
The extraordinary decision of the courts below would (i) expand the scope
of the duty to warn far beyond the confines previously recognized by this Court; 1
(ii) fashion a new heeding presumption that has no place in New York law,
particularly in the unique military context presented here; and (iii) exclude fair
rebuttal evidence that would have shown the futility of additional warnings. These
holdings effectively "stack the deck" against distant defendants such as Crane and
GE, improperly converting them into de facto insurers for asbestos products they
1 The erroneous rules applied by the First Department in the asbestos cases before this Court
(Dummitt, Suttner, and Konstantin) constitute improper expansions of the duty. GE focuses on
Dummitt where that expansion is particularly inappropriate given the military context presented.
3
never made or distributed. See generally Daimler AG v. Bauman, 134 S. Ct. 746,
763 (2014) (reversing test that "stack[ed] the deck" against defendants by relying
on a prediction about defendants' hypothetical conduct that is always
"presumably" true).
GE will not repeat the well-stated arguments of Crane and its other amici for
why reversal is warranted here.2 Instead, GE writes separately to give essential
historical military context for understanding the legal issues before the Court. This
context is important for understanding why the duty to warn should not be
expanded under New York law. At bottom, this Court should adhere to its
longstanding approach that it is the manufacturer and distributer of a good that has
a duty to warn-not a third party such as GE or Crane that did not make or
distribute the good at issue. Imposing such an expansive duty to warn would be
particularly inappropriate here, where the third party had no unique knowledge
about the risks at issue, and where the United States military highly valued, and
exercised extraordinary control over every aspect of, the good at issue.
This context also is important to understanding why a heeding presumption
should not be created here. In adopting a heeding presumption, the decisions
below depart from well-established New York law that requires plaintiffs to prove
2 See, e.g., Brief of Appellant Crane; Brief of Business Counsel of New York State, et al., as
Amici Curiae in support of Crane Co.; Brief Amicus Curiae of Pacific Legal Foundation in
support of Crane Co.
4
causation as a fundamental element of their case. See § III.A, infra. Rather than
follow the normal rule, and put plaintiff to his proof, the courts below presumed
the conclusion that a hypothetical warning by Crane "would have been heeded and
injury avoided." COA-60 (Friedman, J., dissenting). Given that presumptions
must be grounded in "common principles of induction from usual experience," i.e.,
common sense, 8 CARMODY-WAIT 2d § 56:17, presuming that the Navy would
have permitted and Navy sailors would have heeded yet one more (unidentified)
asbestos warning in the military setting presented here is nonsensical. It is
implausible that third parties such as Crane or GE could have provided warnings
that would have been received and heeded by Mr. Dummitt.
There are at leastfive reasons a heeding presumption is nonsensical here:
First, if Crane provided safety information to the Navy about the risks of
asbestos, it is unlikely that such information would have reached Mr. Dummitt.
The Navy sat at the cutting edge of evolving medical knowledge about asbestos,
and developed extensive protocols for controlling asbestos. See §LB. Therefore,
it is doubtful that Crane could have provided any new information to the Navy-
much less the kind of game-changing information that would have caused the
Navy to alter its safety protocols or provide additional safety information to sailors.
Second, even if Crane-a valve manufacturer with no expertise in asbestos
thermal insulation-somehow provided new, material information to the Navy, it
5
is implausible to presume that the Navy would have altered its existing safety
protocols or provided different safety information to sailors. The Navy's strategy
for mitigating asbestos risk was already extensive, see §LB, and cost
considerations alone may have rendered additional safety measures impractical.
Third, it is irrational to presume that a manufacturer such as Crane was
capable of warning sailors such as Mr. Dummitt directly. The Navy provided its
own safety warnings, and strictly limited and even prohibited warnings from third
parties. See §LB. Indeed, retired Rear Admiral David Sargent would have
testified here, had the testimony not been excluded, that the Navy would have
forbidden Crane from providing different or additional warnings.
Fourth, even if a company such as Crane could somehow warn a sailor
directly and provide him with non-redundant information, it is illogical to presume
that Mr. Dummitt or other sailors would have been able to follow Crane's warning.
Individual sailors would have had a difficult time implementing safety procedures
that were not specifically sanctioned by the Navy. This is especially true if the
warning conflicted with a Navy order-for example, by advising sailors to limit
their time working with asbestos, despite orders to perform work for longer
periods; or, by advising sailors to wear a respirator, when the Navy did not procure
respirators for a particular ship. "The Navy Way" was characterized by
consistency and uniformity, rather than individual choice and individualized safety
6
procedures. 3 Sailors could not deviate from the Navy's safety orders on an
individualized basis. Nor did sailors have the option simply to walk off the job if
they did not agree with Navy safety orders or protocols.
Fifth, on top of all of this, scientific studies across different industries
consistently have demonstrated that asbestos warnings often go unheeded, given,
for example, practical challenges to compliance with respirator wear. See § l.B.2.
Accordingly, historically the Navy focused on limiting exposure, not warnings.
Thus, even in the civilian context, it would be irrational to presume-rather
than enforce the normal rule to have a plaintiff prove-that asbestos-related safety
warnings would have made a difference to a particular plaintiff. In this military
context, a heeding presumption has even less basis in common sense and
experience and should be rejected. Instead, this Court should adhere to its long-
held view-one that sister States have followed-that a tort plaintiff must prove
causation and is not entitled to a presumption that if some additional, unnamed
warning were given it would have prevented injury.
Finally, the trial court compounded its error m adopting the heeding
3 Every sailor learned that there is "the right way, the wrong way, and the Navy way"-and
sailors were expected to follow the "Navy way." See also Baxter, G., The Right Way, The
Wrong Way And The Navy Way, FLYING MAGAZINE (June 1983), at 116. Navy life was (and is)
characterized by obedience and discipline. U.S. Dep't of Navy, BLUEJACKETS' MANUAL (1960),
at 46. Disobedience could be punished severely. See, e.g., 10 U.S.C. §§ 899, 901-02. Navy
sailors had little choice but to obey their commanding officers' lawful orders (both as a matter of
contract under their Enlistment Agreements and as a practical matter).
7
presumption when it excluded Crane's primary rebuttable evidence-testimony of
Rear Admiral Sargent that the Navy would have forbidden additional warnings
from Crane or other parties-rendering the heeding presumption essentially
irrefutable. Although the First Department brushed aside these errors as
"irrelevant," COA-45, in actuality, they would have "made a difference," id. at 48.
For all of these reasons, reversal is warranted.
ARGUMENT
There is no basis for this Court to abandon its well-established principles
that (1) a duty to warn rests in the maker and distributor of a good, not in a third
party and (2) a plaintiff must prove that a failure to warn caused her injury and is
not entitled to a presumption that some additional, unidentified warning, would
have been heeded and prevented injury.
These principles have particular force in the military setting presented here,
where the United States Navy exercised plenary authority over the use of asbestos
on its warships. As Respondent acknowledges, under this Court's jurisprudence,
the duty and causation issues here implicate "'intensely fact-specific"' inquiries.
Resp. Br. at 2, 28 (quoting Liriano v. Hobart Corp., 92 N.Y.2d 232, 240, 243
(1998)). Under New York law, these questions cannot be determined in a vacuum,
and must be rooted in sound policy, common sense, and experience. Thus, GE
focuses on providing historical and military context that is missing from the lower
8
courts' analyses.
I. HISTORICAL BACKGROUND.
GE first provides background about the Navy ships that plaintiffs such as
Mr. Dummitt worked on, that were constructed during and after World War II
("WWII") and utilized asbestos insulation to prevent fires and explosions. Second,
GE explains the Navy's sophisticated knowledge about asbestos, its own safety
orders and warnings about asbestos, and other measures it took to reduce asbestos
exposure while balancing other military priorities. Against this backdrop, it is
particularly evident why the new duty (see § II, infra) and heeding presumption
(see§ III, infra) urged by Respondent should be rejected.
A. Understanding The Historical Military Context For The Navy's
Use Of Asbestos Is Helpful To Resolving The Issues Here.
Plaintiffs such as Mr. Dummitt often bring tort claims many decades after
their military service and more than half a century after defendants such as GE
supplied non-asbestos-related goods to the Navy-often in the extraordinary
context of World War II. Especially in this context, Plaintiffs' efforts to abandon
traditional duty to warn and causation standards, and instead to impose nearly
unlimited liability on defendants such as these, makes particularly bad sense.
1. Navy Ship Construction Surged During World War II.
Before the United States entered WWII, President Franklin D. Roosevelt
called upon American manufacturers to become "the great arsenal of democracy"
9
to thwart Nazi efforts to "use the resources of Europe to dominate the rest of the
world." Roosevelt, President Franklin D., The Great Arsenal of Democracy (Dec.
29, 1940). President Roosevelt recognized:
This nation is making a great effort to produce everything that is
necessary in this emergency, and with all possible speed. . . . Guns,
planes, ships and many other things have to be built in the factories
and the arsenals of America .... So I appeal to the owners of plants,
to the managers, to the workers, to our own government employees to
put every ounce of effort into producing these munitions swiftly and
without stint. [Id.]
In response, American industry mobilized and surged production to build
"the most awesome military machine in history." Herman, A., FREEDOM'S FORGE:
How AMERICAN BUSINESS PRODUCED VICTORY IN WORLD w AR II (Random House
2012), at ix. In the words of then-General Dwight D. Eisenhower: "Our enormous
material superiority gave us an unchallengeable advantage over our foes. No army
or navy was ever supported so generously or so well." Miller, J.A., MEN AND
VOLTS AT WAR: THE STORY OF GENERAL ELECTRIC IN WORLD WAR II (McGraw-
Hill Book Company, Inc. 1947), at v.
GE contributed to the war effort by manufacturing some 27 million
horsepower of steam turbine equipment to propel Navy ships. Id. at 17. GE's
efforts garnered significant praise, including from Secretaries of the Navy during
WWII. Secretary of the Navy Frank Knox, for example, stated:
No single industry in America has made a better response, a quicker
response, to our appeal for help than General Electric. I don't think
10
what you've done here can be duplicated anywhere in the world. And
it's that quality of America that makes it possible to get into this war
late and unprepared, and within a year, so affect its complexion as to
change the whole posture of the Allies from one of defense to one of
growing offense. You are making the things which are absolutely
essential to victory in this war, so lift up your heads with pride-the
same kind of pride that men who wear the uniforms of this country
have when they go forth to do battle for us-because in the truest
possible sense, you are battling for everything for which America
stands.
Id. at vi. His successor, Secretary James Forrestal, similarly wrote to GE's
president:
Among the companies which gave our fleet the power to attack, yours
has been preeminent. You and all the men and women who have
worked with you deserve, therefore, to carry into peace a special pride
in a great national achievement.
Id. at 22-23. In total, GE received 76 governmental awards in recognition of its
production efforts during the war. Id. at 252-55.
2. The Navy Viewed Asbestos As A Critical Commodity To
Prevent Serious Fires And Explosions On Navy Ships.
Historically, the Navy viewed asbestos as an essential material to help
contain the omnipresent danger of shipboard fire. Navy ships sail with tons of
munitions, fuels, and other explosives. Navy warnings give a flavor of the
numerous fire hazards on Navy ships:
• "Black powder is one of the most dangerous of explosives."
• "Intense heat will detonate cast TNT charges."
• "[T]he flame from leaky or punctured torpedo torch pots may ignite
combustible gases."
11
12
“In handling projectiles fitted with tracers, care must be taken not to
strike the tracer, as such a blow involves danger of igniting it.”
Ammunition “[m]agazines should be kept scrupulously clean and dry.
Particular attention should be exercised to see that no oily rags, waste
or other materials susceptible to spontaneous combustion are left in a
magazine.”
“Explosions have occurred apparently due to hydrogen gas formed
while charging boat batteries.”
U.S. Dep’t of Navy, BLUEJACKETS’ MANUAL (1960), at 396-402 (Chapter 23:
Safety First). Despite the Navy’s efforts to limit fire risks, as illustrated by the
following photograph, such risks are not completely avoidable:
Compounding the danger, it is extremely difficult to escape a fire on the
In 1944, an explosion aboard the U.S.S. Mount Hood caused severe damage to the
ship and resulted in death or injury to 180 crewmen. Photo #NH 96173, courtesy
of U.S. Naval Historical Center.
open sea. Sailors face exposure, dehydration, and shark attacks while trying to
escape. See id. at 501-08. Thus, fire control is a critical priority on Navy ships.
3. Asbestos Insulation Was The Navy's Preferred Insulating
Material On Its Ships Constructed During And After World
War II.
Asbestos was vitally important to the Navy's efforts to limit fire risks.
Asbestos is an extremely effective insulator, with "well known fire and heat
resistance characteristics" and "superior heat and chemical resistance." See, e.g.,
McArthur, Captain J.C., U.S. Navy Commander, Pearl Harbor Naval Shipyard,
Statement before the Subcomm. on Compensation, Health and Safety of the House
Comm. on Education and Labor (Nov. 13, 1978), at 1-2. The Navy's industrial
hygienist during WWII explained that asbestos "became the preferred insulating
material in Navy ships" because "it afforded heat protection to critical parts of the
ship." Hearings on Compensation for Occupational Diseases: Hearing on H.R.
1626 and H.R. 3090 before the Subcomm. on Labor Standards of the H. Comm. on
Education and Labor, 99th Congress 353 (1985) ("Hearings on Compensation").
Thus, as the federal judge presiding over the asbestos multi-district litigation
("MDL") has summarized, during WWII, "[t]he Navy became the country's largest
consumer of asbestos, stockpiling and using it to prevent fires on the newly
constructed combat vessels." Robreno, Hon. Eduardo C., The Federal Asbestos
Product Liability Multidistrict Litigation (MDL-875): Black Hole or New
13
14
Paradigm?, 23 WIDENER L.J. 97 (2013), at 102. For example, in 1969, a fire
ignited on the USS Enterprise after ordnance were overheated by aircraft exhaust
and exploded. Asbestos was credited with helping to prevent an even more
catastrophic fire and saving the lives of some 3,000 Navy personnel:
In addition to its effectiveness, the Navy used asbestos insulation because it
“was also lighter” than other available insulation. See Hearings on Compensation,
supra, at 353. This is significant because Navy ships were bound by weight
restrictions imposed by the Washington Naval Treaty of 1922. See Treaty
Between the United States, the British Empire, France, Italy & Japan Agreeing to
A Limitation of Naval Armament art. V, 43 Stat. 1655 (Feb. 6, 1922).
Because of these beneficial characteristics, asbestos insulation was used on
almost every type of equipment, including thousands of feet of pipes, and a typical
Photo courtesy of the Tailhook Association, Baumer Collection,
in TRIAL ORDEAL OF THE USS ENTERPRISE (Tuscarora Press
1993).
Navy ship was covered with many tons of asbestos insulation. See, e.g., Hollins,
D. M. et al., A Visual Historical Review of Exposure to Asbestos at Puget Sound
Naval Shipyard ( 1962-1972 ), 12 J. OF TOXICOLOGY & ENVTL. HEALTH, Part B 124
(Feb. 1, 2009) at 125.
Asbestos was considered so valuable that it was one of fifteen commodities
deemed "critical" to the war effort. See U.S. War Production Board, Strategic and
Critical Materials List (Jan. 30, 1940), in Maines, R., ASBESTOS AND FIRE:
TECHNOLOGICAL TRADEOFFS AND THE BODY AT RISK (Rutgers University Press
2005) at 89. To ensure asbestos was available for military use, President Roosevelt
ordered that its civilian use be curtailed "to promote the defense of the United
States." Conservation Order M-79, Curtailing the Use of Certain Types of
Asbestos (Jan. 1942).4
B. The Navy Took Primary Responsibility For Controlling Asbestos
Health Hazards.
Given the importance of asbestos to its mission, the Navy developed its own
measured approach to mitigating asbestos-related risks in the face of emerging
science about those risks. An understanding of this setting provides important
context for why traditional notions of failure to warn (see § II, infra) and causation
4 Indeed, under the War Production Board mandates, companies that supplied asbestos were
required to do so by the federal government. See Burke-Wadsworth Act, Pub. L. No. 76-783, 54
Stat. 885 (Sept. 16, 1940). Noncompliance in a wartime setting would have risked high
penalties, such as federal felony prosecution or possible nationalization of the industry. Id.
15
(see §III, infra) should not be abandoned in cases like this.
1. The Navy Had State-Of-The-Art Knowledge About Asbestos,
Provided Its Own Warnings To Sailors, And Limited Warnings
From Third Parties.
By 1940, the Navy "was a leader in the field of occupational medicine
relating to, among other things, asbestos exposure." Harris v. Rapid Am. Corp.,
532 F. Supp. 2d 1001, 1006 (N.D. Ill. 2007); see also, e.g., Machnik v. Buffalo
Pumps Inc., 506 F. Supp. 2d 99, 104 (D. Conn. 2007) (discussing Navy's study of
potential asbestos-related risks from the early 1920s); MacQueen v. Union Carbide
Corp., No. CV 13-831-SLR-CJB, 2013 WL 6571808, at *11 (D. Del. Dec. 13,
2013), report and recommendation adopted, No. CV 13-831-SLR/CJB, 2014 WL
108535 (D. Del. Jan. 9, 2014).5
The Navy utilized its knowledge to provide extensive warnings to personnel
as it determined appropriate based on the then-current science. For example, in his
1939 annual report, the Surgeon General of the Navy recognized that insulators
and those involved in "asbestos pipe-covering" are engaged in "hazardous
occupations." U.S. Dep't of Navy, Bureau of Med. & Surgery, ANNUAL REPORT
OF THE SURGEON GENERAL (1939), at 24. The Surgeon General took a measured
approach to the perceived hazard, recommending the use of local exhaust
5 This is not to say that the Navy's knowledge of the full dangers posed by asbestos was the same
in the 1920s as it is today. Rather, the knowledge of the risks evolved over time, and the Navy
was at the forefront of that developing knowledge.
16
ventilation to control asbestos dust exposure. Id. 6 Similarly, the same year, the
Navy Hospital Corps' Handbook set out to determine what "asbestos hazards
exist[ed]" at Navy shipyards, and instructed that "masks for asbestos workers ...
must be available and used." U.S. Dep't of Navy, Bureau of Med. and Surgery,
HANDBOOKOFTHEHOSPITALCORPS (1939) at 518-19.
The Navy continued to study these dangers linked to asbestos and to
advocate a measured approach to the use of asbestos throughout the 1940s. See,
e.g., Brown, E.W., Industrial Hygiene and the Navy in National Defense, WAR
MEDICINE (Jan. 1941), at 3, 11-12 (noting asbestosis among "potential
occupational health hazards in Navy Yards"); U.S. Dep't of Navy, MANUAL OF
INSTRUCTIONS FOR PURCHASE AND ADMINISTRATION OF INSURANCE ON NAVY
DEPARTMENT CONTRACTS (1943), at 39-40 (similar, and stating "[o]perations with
asbestos can be safely performed if the dusty work is segregated and if ventilation
hoods enclosing the working process . . . are furnished or special respirators are
worn") ("Navy Insurance Manual").
In 1946, the Harvard School of Public Health published a Navy-
commissioned epidemiological study, which discussed the risks of "prolonged
breathing of asbestos dust" and concluded that asbestos disease could be avoided
6 See also Albrecht v. A.O. Smith Water Prods., No. 11 CIV. 5990 BSJ, 2011 WL 5109532, at *2
(S.D.N.Y. Oct. 21, 2011) (discussing 1939 Annual Report).
17
by limiting levels of exposure to below 5 million particles per cubic foot
("mppcf'). Fleischer, et al., A Health Survey of Pipe Covering Operations in
Construction of Navy Vessels, J. OF INDUS. HYGIENE AND TOXICOLOGY (Jan. 1946),
at 9-16. Based on its study of emerging asbestos-related science, in 1955, the
Navy adopted permissible exposure levels for asbestos and other "toxic materials."
See U.S. Dep't of Navy, Bureau of Med. and Surgery, BUMED INSTRUCTION
REGARDING THRESHOLD LIMIT VALUES FOR TOXIC MATERIALS (Nov. 7, 1955). It
did so more than 16 years before the federal government adopted such a standard
more generally under the Occupational Safety and Health Administration
("OSHA"), and the government continued to revisit these limits over time.
The Navy did not, however, ban the use of asbestos aboard its ships, take
steps to remediate asbestos on its ships, or otherwise suggest that the risks
associated with the use of asbestos outweighed the many benefits it believed that
asbestos provided by minimizing the risk of fire while keeping ships light. The
Navy continued to warn about the hazards of asbestos insulation throughout the
1950s, 1960s, and 1970s. 7
7 See, e.g., U.S. Dep't of Navy, SAFETY PRECAUTIONS MANUAL FOR FORCES AFLOAT,
OPNAVINSP 5100.19 (Feb. 23, 1973) (warning about asbestosis and mandating the use of, inter
alia, partitions, respirators, coveralls, vacuums, and wet methods for asbestos removal); Robbins,
H.M., et al., Asbestosis, SAFETY REVIEW, Vol. 19, No. 10 (Oct. 1962) (warning pipe coverers
that "[t]here is, at present, no known cure for asbestosis. Once a person has contracted the
disease he has suffered a loss of health which cannot be redeemed."); U.S. Dep't of Navy,
Bureau of Ordnance, SAFETY HANDBOOK FOR PlPEFITTERS, NAVORDINST 5100.21 (Jan. 7,
18
Significantly, the Navy also limited warnings from private manufacturers.
For example, in 1945, the Navy considered-and rejected-offers by the
manufacturers of asbestos insulation to provide precautions with regard to the use
of their insulation. See Letter from Philip Drinker, Chief Health Consultant to the
U.S. Maritime Commission, to Captain Thomas Carter of the U.S. Navy
Department's Bureau of Medicine and Surgery (Jan. 31, 1945). Although the
Chief Health Consultant to the U.S. Maritime Commission recognized that
manufacturers of asbestos-containing insulation materials "stated they would be
glad to get out a brief statement of precautions which should be taken in light of
their own experience," he concluded "I understand that neither Navy nor Maritime
wants any change in the specifications as the performance with the present
materials is entirely satisfactory. From a health standpoint we do not believe any
specification changes are needed." Id.
The Navy also limited warnings by manufacturers of equipment that did not
contain asbestos insulation, such as Crane and GE. Manufacturers typically
conveyed information in three ways, by identification plates, information plates,
and technical manuals-all of which were strictly controlled by the Navy. With
respect to identification plates and information plates, Navy specifications
(continued ... )
1958).
19
20
provided specific diagrams identifying exactly how these plates should look, and
what information should be included. See MIL-I-15024 (SHIPS), Military
Specification—Identification Plates, Information Plates and Marking Information
for Identification of Electrical, Electronic, and Mechanical Equipment (June 11,
1971). A sample plate is depicted below. The plate, which is 6-x-7 inches,
complies with Navy size restrictions and illustrates the limited space available for
warnings:
With respect to technical manuals for equipment such as turbines and valves,
Navy specifications only allowed manufacturers to provide safety information
about “special hazards” unique to their equipment. See MIL-T-15071 (SHIPS)
Military Specification—Technical Manuals for Mechanical and Electrical
Equipment (Aug. 15, 1954) at § 3.5.1 (“Contents”), § 3.4.7.1 (“Method of
Photo taken at the USS Hornet Museum (2007).
Approval"). Asbestos insulation was not unique to valves and turbines because it
was used on almost every type of equipment, and therefore subject to background
Navy specifications. See, e.g., U.S. Dep't of Navy, Bureau of Med. and Surgery,
BUMED INSTRUCTION REGARDING THRESHOLD LIMIT VALUES FOR TOXIC
MATERIALS (Nov. 7, 1955). Moreover, the Navy generally prohibited
manufacturers of turbines and other goods such as those supplied by GE and Crane
from providing any insulation with their equipment. See MIL-T-17600C (SHIPS)
Military Specification-Turbines, Steam, Propulsion Naval Shipboard (Sept. 21,
1966), at § 3.6 ("The shipbuilder will be responsible for furnishing and installing
thermal insulation and lagging"); MIL-T-17600 (SHIPS), Military Specification-
Turbine, Steam, Propulsion (For Naval Shipboard Use) (June 26, 1953), at §
3.4.8.2 ("Turbine casings and steam chest will be completely and efficiently
insulated and covered by the shipbuilder ... "). Asbestos insulation that a company
neither made nor supplied, which was used throughout the ship, is the opposite of a
"special hazard" unique to that equipment.
The Navy also required detailed review and approval of all content in third-
party technical manuals for turbines and valves. See MIL-T-15071 (SHIPS)
Military Specification-Technical Manuals for Mechanical and Electrical
Equipment (Aug. 15, 1954), at § 3.4.7.1 ("Method of Approval"). Navy control
was so integrated throughout the technical manual preparation process that, upon
21
approving a manual, the Navy adopted the manual as an official Navy publication,
and designated it with a unique NAVSHIPS publication designator number. Id. at
§§ 3.4.1, 3.4.3.
Through these procedures, the Navy strictly curtailed the safety information
provided by third parties directly to sailors, and remained the leading authority on
asbestos information and warnings. See also Leite v. Crane Co., 749 F.3d 1117,
1123 (9th Cir. 2014) (discussing evidence regarding Navy's control over
warnings); Harris, 532 F. Supp. 2d at 1005 (discussing evidence that the Navy "the
Navy dictated every aspect of ... written documentation and warnings"); COA-62
(Friedman, J., dissenting) (Crane's expert, Rear Admiral Sargent, was prepared to
testify that the Navy would have beenforbidden additional warnings from Crane).
Once Navy leadership determined which warnings were warranted, the Navy
issued mandatory safety instructions, which were communicated to sailors through
the Navy's publications system and command. Sailors were advised to follow
safety orders only from their immediate supervisor. See Safety Office, San
Francisco Naval Shipyard, Who Is Responsible For Safety?, SAFETY REVIEW, Vol.
19, No. 10 (Oct. 1962), at 6 ("The individual employee should take orders only
through his immediate supervisor."). The Navy further advised that "sensible,
clear instructions exist for the protection of men and equipment on any ship or
group of ships, and must be obeyed by every man on board." U.S. Dep't of Navy,
22
BLUEJACKETS' MANUAL, at 394; id. at 395 (noting that injuries "above all [are
caused] by failure to carry out the proper safety precautions"). Therefore, "[e]ach
commanding officer, each executive officer, and each department head is required
to see to it that the men are instructed in these precautions, that they are drilled in
them, and that they follow them." Id. at 394.
2. Although The Navy Provided Asbestos Warnings, It Focused On
Limiting Asbestos Exposure Given The Limited Effectiveness Of
Asbestos Warnings.
Although, as shown above, the Navy provided certain asbestos warnings in
the manner it deemed appropriate, it did not place them on every individual piece
of insulation (which covered much of the ship). Rather, the Navy primarily
focused on reducing asbestos exposure through engineering controls-which were
considered far more effective than providing warnings.
Beginning in the 1940s, the Navy started implementing control measures to
limit exposure. See Fleischer, supra, at 10-11, 44. The Navy's control measures
included: (a) Military Construction (MILCON) Project standards to modernize
naval shipyards to ensure proper layout, ventilation, and air filtration systems;
(b) wet processes; (c) exhaust ventilation; (d) protective clothing; (e) vacuuming;
(f) development of proper procedures; and (g) respiratory protection. Id. at 44. 8
8 See also Hearings on Compensation, 99th Congress 346, 349 (discussing control measures);
U.S. Dep't of Navy, Bureau of Ordnance, SAFETY HANDBOOK FOR PIPEFITTERS, NAVORDINST
23
"As more information unfolded regarding the hazards of exposure to
asbestos dust, even more emphasis was given to controlling the exposure." Winer
& Holtgren, Asbestos-A Case Study of the U.S. Navy's Response to Upgraded
Safety and Health Requirements, NAVAL ENG'Rs J. (Dec. 1976), at 41, 44
(emphasis added). After the Navy adopted a permissible exposure level in 1955,
see supra, it adjusted its specifications to further reduce asbestos exposure by
1973. See Winer & Holtgren, at 45; see also Fleischer, supra, at 10-11 (noting that
the Dreessen study suggested 5 mppcf as a threshold limit, and concluding that
dust counts below this level "indicate good dust control").9
The Navy focused on reducing exposure because experts advised-and
continue to advise-that asbestos warnings are ineffective. Between 1963 and
1988, in both the civilian and military context, industrial workers already were
being inundated with warnings, which typically advised workers to wear
respirators. Outside of the Navy, warnings about asbestos hazards were provided
(continued ... )
5100.21 (Jan. 7, 1958); Pipe and Copper Shop Master Mechanics Conference Minutes, Boston
Naval Shipyard (May 8-10, 1957); Robbins, H.M., et al., Asbestosis, SAFETY REVIEW, Vol. 19,
No. 10 (1962); Marr, W. T., Asbestos Exposure During Naval Vessel Overhaul, 25 AM. IND.
HYG. Assoc. J. (May-June 1964), at 264-268; Hogan, B. W., Chief, Bureau of Medicine and
Surgery, OCCUPATIONAL HEALTH HAzARDs DERIVED FROM INDUSTRIAL HEALTH REPORTS JUL y
1960 THROUGH SEPTEMBER 1960, Release No. 26 (Feb. 1, 1961 ), at 59.
9 The implementation of these control measures varied within the Navy. See generally Barna, S.
L., Notes: Abandoning Ship: Government Liability for Shipyard Asbestos Exposures, 67 N.Y.U.
L. REV. 1034 (1992), at 1058-59; Hearings on Compensation, 99th Congress 347 (discussing
surveys showing that "some shipyards made [recommended asbestos-control] improvements and
others did not").
24
by medical professionals, 10 unions, 11 asbestos manufacturers, 12 and periodicals. 13
Safety measures were also enacted into law. Occupational Safety and Health Act
of 1970, Pub. L. No. 91-596, 84 Stat. 1590; OHSA Standard for Exposure to
Asbestos Dust, 37 Fed. Reg. 11, 318 (June 7, 1972).
Despite these warnings, medical studies have shown that industrial workers
often refuse to wear respirators consistently. See, e.g., Dr. Irving J. Selikoff's
Address to the Delegates of the Twenty-Second Convention of the International
10 See, e.g., Selikoff, et al., Relation between Exposure to Asbestos and Mesothelioma, NEW
ENGLAND J. MED., VOL. 272 (Mar. 18, 1965), at 565 ("It appears that mesothelioma must be
added to the neoplastic risks of asbestos inhalation ... "); Selikoff, et al., Partnership for
Prevention-The Insulation Industry Hygiene Research Program, Indus. Medicine, INDUS. MED.
Vol. 39 (April 1970), at 24-25 (explaining current shortcomings with asbestos dust masks and
plan for developing more effective dust masks); Selikoff, et al., Cancer risk of insulation
workers in the United States, BIOLOGICAL EFFECTS OF ASBESTOS (P. Bogovski, et al., eds. 1973),
at 209-216 ("A serious cancer risk has been demonstrated among asbestos insulation workers in
the United States.").
11 See, e.g., Sickles, C.W., ed., Minutes of Conference Meetings, Western States, THE ASBESTOS
WORKER (May 1959) at 22 ("Health Hazards relating to our trade were discussed and various
types of respirators were presented and the good points of each were brought out."); Selikoff, et
al., Asbestos Exposure and Neoplasia, THE ASBESTOS WORKER (Nov. 1964), at 5-9 ("[i]ndustrial
exposure to asbestos by insulation workers ... results in a marked increase in the incidence of
cancer of the lung"); Todd, William T., ed., Our Troubled Environment, UAJ. (Nov. 1971), at 14
(referring to "Asbestos as a Killer"); Laborers' Int'l Union of N.A., Labor Urges Stronger Safety
Standards for Exposure to Asbestos, THE LABORER (July 1972), at 8-9 ("Medical science has
turned up some frightening statistics indicating an extremely close relationship between the
handling of asbestos and cancer-related diseases.").
12 Beginning in 1964, manufacturers of asbestos insulation provided warnings on their products
in the civilian context. See, e.g., The Celotex Corporation Warning ("These products contain
asbestos fiber .... regulations may require special ventilation equipment, or the wearing of
approved protective masks. OHSA has found asbestos fibers to be a health hazard, if repeatedly
inhaled, which may causes diseases including cancer and asbestos of the lungs.").
13 Sherrill, R., Asbestos, The Saver Of Lives, Has A Deadly Side, NEW YORK TIMES MAGAZINE
(Jan. 21, 1973); Cohn, V., AFL-CIO Warns on Asbestos Cancers, THE WASHINGTON POST (Mar.
16, 1972).
25
Assoc. of Heat and Frost Insulators and Asbestos Workers (Miami, Fla.) (Sept.
1972), at 106 ("[W]e found most asbestos workers did not wear respirators.");
Winer & Holtgren, supra, at 4 7 ("In spite of a mandatory requirement to wear dust
respirators, many workers chose to ignore this regulation.").
Workers repeatedly reported that they did not wear respirators for the
reasons one would expect-because respirators caused "discomfort and
interference with breathing"-notwithstanding that they were warned of risks of
lung cancer and mesothelioma associated with asbestos exposure. Selikoff, et al.,
Union Survey Shows Current Masks Have Drawbacks, THE ASBESTOS WORKER
(May 1969), at 19-22; see also, e.g., Selikoff, et al,. ASBESTOS AND DISEASE
(Academic Press 1978), at 477-78 ("The use of respirators has long posed
problems to those responsible for industrial hygiene in dusty environments."). "In
practice, the discomfort of constant wear, and difficulty in speech, etc., render
workers very unwilling to use this form of protection for any length of time."
Merewether, E.R., et al., Home Office, REPORT ON EFFECTS OF ASBESTOS DUST ON
THE LUNGS AND DUST SUPPRESSION IN THE ASBESTOS INDUSTRY (1930), at 17.
Wearing a respirator was considered something that "should only be used as
a last resort," not a panacea for asbestos-related risks. Winer & Holtgren, supra, at
47; see OHSA Standard for Exposure to Asbestos Dust, 37 Fed. Reg. 11, 318 (June
7, 1972) ("Compliance with the exposure limits ... may not be achieved by the use
26
of respirators ... except" in emergencies or when other practices to limit exposure
were not feasible or available). To this day, OHSA regulations continue to advise
that respirators should be used as a last resort, such as when other measures,
including ventilation, wetting, and segregation, cannot keep asbestos dust below
permissible levels. 29 C.F.R. § 1910.lOOl(g).
* * *
In sum, the historical record shows that: (a) because asbestos insulation was
so effective at controlling fire dangers, the Navy utilized it on almost every type of
equipment; (b) the Navy, as the largest consumer of asbestos insulation in the
world, had state-of-the-art knowledge about the emerging risks of asbestos; (c) the
Navy set forth its own safety orders regarding asbestos; (d) the Navy tightly
controlled safety warnings from suppliers; and (e) the Navy did not prioritize
asbestos warnings because it was focused on reducing asbestos exposure and
because such warnings were considered ineffective.
Against this backdrop, it is difficult to imagine that Navy contractors such as
GE and Crane could have told the Navy or Navy sailors anything new about
asbestos that would have materially altered their behavior and prevented injury or
that supplying non-asbestos products to the Navy played any role in causing injury
here. Yet the theory of the courts below would effectively impose such a duty to
warn and a presumption of causation on a third party such as GE or Crane, where
27
the third party not only has no unique knowledge about the danger, but also did not
even manufacture or supply the asbestos at issue.
II. THE COURT SHOULD ADHERE TO THE FUNDAMENTAL TORT
PRINCIPLE THAT ONLY DEFENDANTS WHO MAKE OR
DISTRIBUTE A GOOD HAVE A DUTY TO WARN ABOUT THAT
GOOD-PARTICULARLY IN THE HISTORICAL MILITARY
CONTEXT PRESENTED HERE.
The law does not impose a duty on a defendant to provide a warning with
respect to a product it neither made nor distributed. Indeed, in Rastelli v Goodyear
Tire & Rubber Co., 79 N.Y.2d 289, 298 (1992), this Court concluded that a
defendant "had no duty to warn about the use of its [good] with potentially
dangerous [goods] produced by another where [defendant] did not contribute to the
alleged defect in a product, had no control over it, and did not produce it." Id.
Second Circuit Judge Chin, while sitting by designation in the Southern
District of New York, applied Rastelli in similar circumstances to those presented
here, and concluded that a manufacturer-defendant has no duty to warn against
defects in third-party products so long as the manufacturer had no control over the
production of the defective product and did not place it into the stream of
commerce. See Surre v. Foster Wheeler, 831 F. Supp. 2d 797, 802-03 (S.D.N.Y.
2011) (Chin, J.) (citing Rastelli v. Goodyear, 79 N.Y.2d 289, 297-98 (1992)). Yet
that is precisely what the decisions below would do.
The duty to warn is, above all, grounded in reasonableness. See, e.g.,
28
RESTATEMENT (SECOND) OF TORTS § 388 (AM. LAW INST. 1965) (liability attaches
if supplier "fails to exercise reasonable care" in providing warnings). Imposing a
duty is particularly unreasonable here. Such would insert a non-asbestos
manufacturer such as Crane or GE into the complex command and control
relationship on a dangerous warship with respect to a product they neither made
nor supplied. Such a duty would be premised on the faulty assumption that a non-
asbestos supplier, such as Crane or GE is in an equal or better position than the
United States Navy to understand the emerging risks of asbestos, and to train Navy
sailors how to safely handle a product Crane or GE neither made nor sold but
which the Navy had extensively studied for many years. There is no basis in New
York law to extend a duty in these circumstances.
III. THE COURT SHOULD NOT ADOPT A NOVEL HEEDING
PRESUMPTION HERE-LET ALONE A PRESUMPTION THAT IS
EFFECTIVELY IRREBUTT ABLE.
Nor is there a basis to abandon well-established causation principles here. In
adopting a heeding presumption, the decisions below depart from well-established
New York law that requires plaintiffs to prove causation as a fundamental element
of their case. See §III.A, infra. The courts below instead presumed causation by
concluding that a hypothetical asbestos-related warning by Crane would have been
heeded by Mr. Dummitt and prevented injury. Presuming that the Navy would
have permitted, and Navy sailors would have heeded, yet one more (unidentified)
29
asbestos warning in the military setting presented here is irrational. Given that
asbestos warnings were widely viewed as ineffective and the Navy already had
determined ways in which to mitigate asbestos risks, it is highly doubtful that the
Navy or its personnel would have been receptive to yet more asbestos warnings
from third parties, particularly when those parties did not even make the asbestos
insulation. At a minimum, the conclusion that an additional warning could have
been given and would have been effective should not be presumed, but should be
subject to a normal showing of proof by the plaintiff.
A. New York Follows The Bedrock Tort Principle That A Plaintiff Must
Prove Causation And Is Not Entitled To Presume That Conclusion.
This Court has long recognized in tort cases that "a plaintiff must establish
by a preponderance of the evidence that the defendant's negligence was a
proximate cause of plaintiff's injuries." Burgos v. Aqueduct Realty Corp., 92
N.Y.2d 544, 550 (1998); accord Cornell v. 360 West 5lst Street Realty, LLC, 22
N.Y.3d 762, 783-84, 786 (2014) (reinstating summary judgment to defendants
because plaintiff "did not show the necessary specific causation" to prove that
defendant caused her injury).
Following this principle-aside from the results below in the cases presently
before the Court-the First Department repeatedly has held that plaintiffs in failure
to warn cases must affirmatively prove causation by "adducing proof that the user
of a product would have read and heeded a warning had one been given." Sosna v.
30
Am. Home Prods., 298 A.D.2d 158, 158 (1st Dep't 2002). Similarly, the First
Department has held that "well settled law" establishes that "a plaintiff has the
obligation to adduce proof that had a warning been provided, she would have read
the warning and heeded it." Mulhall v. Hannafin, 45 A.D.3d 55, 61 (1st Dep't
2007). Numerous First Department cases are to this effect. 14
Likewise, the Second Department has recognized that "a plaintiff whose
claim is based on inadequate warnings must prove causation, i.e., that if adequate
warnings had been provided, the product would not have been misused." Banks v.
Makita, U.S.A., Inc., 226 A.D.2d 659, 660 (2d Dep't 1996)) (citing Johnson v.
Johnson Chem. Co., 183 A.D.2d 64, 70 (2d Dep't 1992)); see also Estrada v.
Berke/ Inc., 14 A.D.3d 529, 530 (2d Dep't 2005) ("[A]s in any products liability
case, the plaintiff in an action premised on inadequate warnings must prove
causation.") (internal quotation omitted). 15 Similarly, it has long been the rule in
14 See, e.g., Reis v. Volvo Cars of N. Am., Inc., 73 A.D.3d 420, 423 (1st Dep't 2010) (dismissing
failure to warn claims because "there is no proof in the record that [the product user] would have
read and heeded a warning"); Glucksman v. Halsey Drug Co., 160 A.D.2d 305, 307 (1st Dep't
1990) ("A plaintiff must demonstrate that the warning was inadequate and that the failure to
adequately warn of the dangers of the drug was a proximate cause of his or her injuries.");
Guadalupe v. Drackett Prods. Co., 253 A.D.2d 378, 378 (1st Dep't 1998) (affirming summary
judgment for defendant where "any purported inadequacies in the product's labeling were not a
substantial factor in bringing about [plaintiffs] injury").
15 Numerous trial courts in the Second Department have followed this principle and held that a
plaintiff must "must adduce proof that he or she 'would have read and heeded a warning had one
been given."' Menna ex rel. Menna v. Walmart, 40 Misc. 3d 1221(A), at *2 (Sup. Ct. 2013)
(unreported); 'Zapata v. Ingersoll Rand Co., 36 Misc. 3d 1230(A), at *11 (Sup. Ct. 2012)
(unreported) ("[U]nder well settled law, to prove proximate cause, a plaintiff has the obligation
31
the Fourth Department that a "[p ]laintiff must establish, of course, that the failure
to warn was a proximate cause of the injury." Belling v. Haugh's Pools, Ltd., 126
A.D.2d 958, 959 (4th Dep't 1987).
Respondent erroneously contends that certain Appellate Division cases
support a heeding presumption because, in those cases, "the product manufacturer
actually provided an adequate warning and the plaintiff completely ignored it."
Resp. Br. at 71 (emphasis added). It is far from clear that the warnings at issue in
these cases were "adequate."16 But even if they were, the key point is that the
product users in those cases failed to follow existing warnings and, the ref ore, were
unable to prove that they would have followed yet another warning they claimed
the defendant should have given. Thus, far from presuming that a hypothetical
warning would be fallowed, these courts fallowed the normal rule and required the
(continued ... )
to adduce proof that had a warning been provided, he or she would have read the warning and
heeded."); Granata v. Sub-Zero Freezer Co., 12 Misc. 3d 1155(A) (Sup. Ct. 2006) (unreported)
(similar), aff d, 43 A.D.3d 996 (2d Dep't 2007); Langer v. Well Done, Ltd., 11 Misc. 3d
1056(A), at *3 (Sup. Ct. 2006) (unreported) ("In order to satisfy the causation element of a
failure to warn claim, however, plaintiff must show that if adequate warnings had been provided,
the product would not have been misused. Accordingly, a failure to warn claim must properly be
dismissed where, as here, the plaintiff fails to make a showing of causation.").
16 Only two of these cases arguably involved "adequate" warnings. See Mulhall, 45 A.D.3d at 61
(defendant's warnings were "not deficient in any way"); Rochester Refrigerating Corp. v. Easy
Heat, Inc., 222 A.D.2d 1013, 1014 (4th Dep't 1995) ("Those notices and instructions, if read,
would have warned the employee to install the de-icer only on roofs, gutters and downspouts.").
Cf Guadalupe, 253 A.D.2d at 378 (granting summary judgment because "any purported labeling
or design defects were not the proximate cause of the plaintiffs accident"); Sosna, 298 A.D.2d at
158 (granting summary judgment to defendant on proximate cause grounds without addressing
adequacy of the warning); Up/old v. Generac Corp., 224 A.D.2d 1021 (4th Dep't 1996) (same).
32
plaintiffs to prove the causal link between a lack of warning and their injury. See,
e.g., Reis, 73 A.D.3d at 423 (dismissing plaintiff's failure to warn claims because
"there is no proof in the record that [the product user] would have read and heeded
a warning"); Mulhall, 45 A.D.3d at 58 (holding that "plaintiffs were required to
prove that the product did not contain adequate warnings and that the inadequacy
of those warnings was the proximate cause of the injuries"); Glucksman, 160
A.D.2d at 307 (granting summary judgment because plaintiff "failed to make the
necessary showing" regarding causation). Rather than endorsing a heeding
presumption, these courts concluded that product users would not follow additional
warnings given the circumstances presented, including the plaintiffs' failure to
follow other warnings in the past.17
The Second Circuit also has recognized that "New York, in company with
most jurisdictions, imposes on a plaintiff the burden to prove that a defendant's
negligence was a proximate cause of his injury"; even if "causation may
sometimes be inferred from the facts and circumstances" of a case, "a plaintiff is
not entitled to a presumption" of causation. Raney v. Owens-Illinois, Inc., 897
17 Respondent contends that these cases "implicitly adopt the proposition in [Restatement]
Section 402A that when a warning is actually given, the manufacturer can presume it will be
heeded." Resp. Br. at 70-71 (emphasis in original). Even assuming for the sake of argument that
this were correct, it remains a further logical leap to presume that a warning that is not given
would have been followed. If anything, the Appellate Division inferred from the circumstances
in these cases that warnings were not followed.
33
F.2d 94, 95-96 (2d Cir. 1990). Similarly, federal trial courts have summarized that,
under New York law, "a plaintiff bears the burden to prove that defendant's failure
to warn was a proximate cause of his injury and this burden includes adducing
proof that the user of a product would have read and heeded a warning had one
been given." Alston v. Caraco Pharm., Inc., 670 F. Supp. 2d 279, 285 (S.D.N.Y.
2009); Smallwood v. Clairol, Inc., No. 03 CV 8394SWK, 2005 WL 425491, at *2
n.5 (S.D.N.Y. Feb. 18, 2005).18
Like New York, numerous well-reasoned holdings from sister States have
rejected a heeding presumption. Although there is, as to be expected, some
variance among the laws of the 50 States, New York is in good company in
rejecting a heeding presumption. See, e.g., Ford Motor Co. v. Boomer, 736 S.E.2d
724, 733 (Va. 2013) ("Virginia does not observe a heeding presumption."); Huitt v.
S. Ca. Gas Co., 116 Cal. Rptr.3d 453, 467-68 & n.9 (Cal. App. 2010) (heeding
presumption "is not recognized in California"); DeJesus v. Craftsman Machine
Co., 548 A.2d 736, 744 (Conn. App. 1988) (no "presumption of proximate cause"
in Connecticut law). 19
18 Some federal trial courts have erroneously held that New York recognizes a heeding
presumption. See, e.g., Bee v. Novartis Phann. Corp., 18 F. Supp. 3d 268, 284 (E.D.N.Y. 2014);
In re Fosamax Prods. Liab. Litig., 924 F. Supp. 2d 477, 486 (S.D.N.Y. 2013); Anderson v.
Hedstrom Corp., 76 F. Supp. 2d 422, 441(S.D.N.Y.1999). None of those decisions cites Raney,
let alone the relevant Appellate Division cases noted above.
19 See, e.g., Rivera v. Philip Morris, 209 P.3d 271, 277 (Nev. 2009) ("Nevada law does not
34
Even in the States that have adopted a heeding presumption in some cases,
the presumption is rebuttable-for example, where the warning would be futile. 20
For instance, as a Louisiana appellate court observed, although "[i]n owners'
manual cases, where the manufacturer" (not a third party) "fails to give an
adequate warning, a presumption arises that the user would have read and heeded
such warnings"; the "presumption is rebutted, however, if the manufacturer
produces evidence to show that the warning or instruction would have been futile."
lsgitt v. State Farm Ins. Co., 156 So. 3d 669, 673 (La. App. Ct. 2003). The
(continued ... )
support recognizing a heeding presumption."); Riley v. Am. Honda Co., 856 P.2d 196, 199-200
(Mont. 1993) (rejecting heeding presumption and explaining: "A defendant certainly is in no
better position to rebut a presumption which totally excuses a plaintiff from meeting the
causation element than a plaintiff is in establishing the causation element as part of the prima
facie case."); Harris v. Int'l Truck & Engine Corp., 912 So. 2d 1101, 1109 (Miss. App. 2005)
(concluding that "the Mississippi Supreme Court has no intention or desire to adopt or create a
heeding presumption"); Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 925 (8th Cir. 2004) ("the
Minnesota state courts have not adopted the so-called 'heeding presumption"'); Odom v. G.D.
Searle & Co., 979 F.2d 1001, 1003 (4th Cir. 1992) (declining to "simply presume causation in
the event she is able to prove that [defendant]'s warning was inadequate" because "[t]here is no
such presumption under South Carolina law, and we are unwilling to create one here");
Parkinson v. Novartis Phann. Corp., 5 F. Supp. 3d 1265, 1272 (D. Or. 2014) ("there is not a
presumption under Oregon law that an adequate warning would have been read and prevented
the harm"); Luttrell v. Novartis Phann. Corp., 894 F. Supp.2d 1324, 1345 n.16 (E.D. Wash.
2012) (the heeding presumption "is not currently recognized in Washington law"); Motus v.
Pfizer Inc., 196 F. Supp. 2d 984, 993 (C.D. Cal. 2001) ("But in fact, no California court has
adopted or applied that presumption, and several California courts have decided whether
proximate cause has been or can be established in prescription drug and medical device failure-
to-warn cases without mentioning the rebuttable presumption."), aff'd, 358 F.3d 659 (9th Cir.
2004); see also Deere & Co. v. Grose, 586 So. 2d 196, 198 (Ala. 1991).
20 See, e.g., Moore v. Ford Motor Co., 332 S.W.3d 749, 763 (Mo. 2011); Sharpe v. Bestop, Inc.,
713 A.2d 1079, 1086 (N.J. Super. App. Div. 1998), aff'd, 730 A.2d 285 (NJ. 1999); Knowlton v.
Desert Med., Inc., 930 F.2d 116, 123 (1st Cir. 1991) (Massachusetts).
35
decision below improperly excluded just this type of futility evidence: fair rebuttal
from Rear Admiral Sargent that additional warnings would not have been allowed.
This Court should adhere to the bedrock tort principle that a plaintiff must
prove that a warning would have made a difference and prevented her injury-
rather than permitting a plaintiff to assume the conclusion. Presuming causation-
rather than putting plaintiffs to their proof-is all the more unwarranted in a case
like this one, where it is unclear what additional warning could have been given
and where experience and common sense cast profound doubt on whether
additional warnings would have been followed and prevented injury.
B. Respondent's Arguments In Favor Of A Heeding Presumption Are
Misguided.
1. This Court Should Not Extend The Reach Of Now-Repudiated
Comment j Of The Restatement (Second) Of Torts § 402A.
Respondent urges this Court to adopt a heeding presumption based on an
extension of an out-dated Restatement comment that has been disavowed by its
drafters. Resp. Br. 70-71. Specifically, Respondent invokes comment j of the
RESTATEMENT (SECOND) OF TORTS§ 402A (AM. LAW INST. 1965), which states:
Where warning is given, the seller may reasonably assume that it will
be read and heeded; and a product bearing such a warning, which is
safe for use if it is followed, is not in defective condition, nor is it
unreasonably dangerous. Restatement (Second) of Torts § 402A, cmt.
j. (emphasis added).
Comment j has drawn considerable criticism and the Restatement drafters
removed that presumption from the Restatement (Third) of Torts. See
36
RESTATEMENT (THIRD) OF TORTS: PROD. LIAB. § 2, cmt. l (AM. LAW INST. 1998).21
In so doing, the drafters have referred to the comment j presumption as
"unfortunate language," and recognized that "[t]he Comment j presumption has
elicited heavy criticism from a host of commentators." Id.
The "sharpest and most cogent attack" challenged the assumption that
product users "can be expected to receive, correctly interpret, and obey every
comprehensible warning accompanying every product they use or encounter."
Indeed, many courts have recognized that "it is foreseeable that warnmgs or
obvious dangers will either not be seen or will be disregarded." Id.
These same criticisms apply with equal or more force here. It is unduly
speculative, if not illogical, to presume that a hypothetical, undefined warning that
was not given would have been heeded and prevented injury. Especially here
where the Navy, as described above, already had considered and balanced the
appropriate level of asbestos warnings, the opposite appears more likely: another
warning, if given, would not have been permitted, followed, or averted injury.
21 This Court has not adopted comment j of the Restatement (Second). It has, however, already
embraced significant principles of law adopted in the Restatement (Third). For example, this
Court referenced the Appellate Division's invocation of the Restatement (Third) approvingly
when it declined to adopt a "product line" exception to successor liability, which would have
"[placed] responsibility for a defective product on a party that did not put the product into the
stream of commerce." Semenetz v. Sherling & Walden, Inc., 7 N.Y.3d 194, 201 (2006)
(referencing the Restatement (Third) of Torts: Products Liability § 12); see also Scarangella v.
Thomas Built Buses, Inc., 93 N.Y.2d 655, 659 (1999) (citing Restatement (Third) when
discussing risk-utility balancing in design defect analysis).
37
Moreover, even on its own terns, the comment j presumption is materially
different from the one that Respondent seeks. Comment j set forth a presumption
that in situations where the manufacturer or seller has provided a warning, the
warning will be read and heeded. See generally Huitt, 116 Cal. Rptr. 3d at 467 n.9
("We are aware of the comment included in Restatement of Torts, cited by
plaintiffs, that a sufficient warning permits the seller to assume the warning will be
read and followed. . . . Even if this comment creates a presumption, an issue we
need not decide, the presumption would be in favor of the seller, not the
consumer."). Here, Respondent complains that Crane did not provide a warning.
The comment j presumption therefore is not applicable on its face.
Respondent offers no cogent reason to expand the repudiated logic of
comment j here.
2. Other Presumptions Cited By Respondent Are Inapposite
Because They Were Formed Based On Realistic Probabilities-
Unlike A Heeding Presumption.
The other presumptions Respondent invokes, Resp. Br. at 68-69, are
distinguishable because-unlike the heeding presumption-they correlate with
reasonable probabilities widely understood as part of the human experience.
Common sense dictates that if a driver falls asleep behind the wheel and his car
runs something over, his negligence probably caused the accident. Id. at 68. If a
scaffold or ladder "collapses for no apparent reason," then it probably was "not
38
good enough to afford proper protection." Id. If a vehicle is being driven by
someone other than the owner, the driver probably obtained consent from the
owner, and normally did not simply steal the vehicle. Id. 22
These presumptions make sense because, as a case upon which Respondent
relies explains, a presumption reflects a "judicial recognition authorizing a jury to
take heed of the truth drawn from general human experience." Schelberger v. E.
Sav. Bank, 93 A.D.2d 188, 192 (1st Dep't) (internal quotation omitted) (emphasis
added), aff'd, 60 N.Y.2d 506 (1983);23 see Tot v. United States, 319 U.S. 463, 467-
68 (1943) (statutory presumptions are grounded in "common experience").
The heeding presumption urged here is far different because it runs against
reasonable probabilities, experience, and common sense. Contrary to
Respondent's rule, experience shows that individuals often are inundated with
warnings that they routinely do not read and follow. As other courts have
observed, a heeding presumption lacks "common sense" because "warnings are
everywhere in the modem world and often go unread or, where read, ignored."
22 Respondent's citation to O'Brien v. Erie R. Co., 210 N.Y. 96 (1913), is similarly inapposite.
That case simply observes that when a person is on a railroad track, sees an oncoming train, and
has time to react, the driver of the oncoming train normally "would have the right to assume that
[this person] would leave the track in time to escape injury." Id. at 100-01.
23 In Schelberger, this Court affirmed a presumption that a death was not caused by suicide in the
context of insurance law, observing that it "springs from strong policy considerations as well as
embodying natural probability." 60 N.Y.2d at 510. As the First Department explained in the
case, a presumption against suicide "arises in recognition of the fact that self-destruction is
contrary to the general conduct of mankind." 93 A.D.2d at 192 (internal quotation omitted).
39
Riley, 856 P.2d at 200 (rejecting heeding presumption). Therefore, "it is not
logical to presume that a plaintiff would have" followed a (hypothetical) adequate
warning. Rivera, 209 P.3d at 277; see also note [19], supra (citing cases).
Respondent's invocation of Applebee v. State, 308 N.Y. 502 (1955), also
does nothing to support extending a presumption here. In that case, the plaintiff
sought to hold the State liable for failing to provide a stop sign at an intersection.
This Court declined to presume that the addition of a stop sign-essentially, a
warning to stop at the intersection-would have prevented injury, concluding that
"[t]he absence of a stop sign contributed not one whit to the collision" because
"there is not the slightest basis in this record for inferring that [the driver] would
have stopped a single foot before she did had the sign been posted." Id. at 508.24
A heeding presumption is especially illogical in the unique circumstances of
this case. Respondent-perhaps recognizing that no additional warning would
have been heeded-is vague about what sort of warning Crane should have given
(and to whom). Suppose there were a hypothetical warning that respirators always
24 Respondent's argument that dicta in Applebee somehow supports a heeding presumption relies
on the following sentence from that opinion: "Had the stop sign been in place, we presume that
[the driver] would have observed its injunction." Applebee, 308 N.Y at 507-08 (emphasis
added). Read in context, this sentence merely acknowledges that a stop sign would have been
seen by the driver-not that it would have changed the driver's conduct or prevented the injury
at issue. To the contrary, the Court recognized that the driver already knew to stop at the
intersection even without the stop sign (i.e., the driver recognized the obvious risk about which
the sign would have warned).
40
should be worn around asbestos-any such warning was destined to be ineffectual
because the Navy never provided respirators on the ships on which Mr. Dummitt
served. 25 Even if respirators had been provided, because of the widespread use of
asbestos insulation on Navy ships it is nonsensical to presume that sailors would
wear respirators at all times, even while resting. Or suppose there were warnings
about the potential ultimate risks of asbestos-e.g., "DEADLY HAZARD-
Asbestos may kill you or lead to lung cancer or mesothelioma." Any such message
would have been demoralizing because sailors had no way to avoid asbestos, given
the Navy's widespread use of the material on ships, or to opt-out of service
onboard such vessels. See, e.g., Department of Defense Form 1966 (DD1966),
Enlistment/Reenlistment Document - Armed Forces of the United States (an
enlistment agreement is "more than an employment agreement" and requires
service even in "combat or other hazardous situations").
* * *
Thus, this Court should not permit Respondent to fill a void in his proof by
instructing the jury simply to presume that Mr. Dummitt would have heeded some
25 COA 1751 (Interrogatories asked Mr. Dummitt to "State whether you have had available for
use during any period of your employment respirators or masks or other dust inhalation inhibitor
or protective gear" and he answered "Plaintiff does not recall safety equipment made available");
id. at 1350 ("QUESTION: Did anybody from the Navy ever advise you to wear a mask or a
respirator? ANSWER [Mr. Dummitt]: No, sir.").
41
ill-defined warning had it been given by Crane. In addition to defying common
sense, the holdings below would create perverse incentives for far-flung
manufacturers to try to multiply the number of warnings that sailors receive.
Hundreds of equipment manufacturers would have to provide separate and
redundant warnings for every potentially dangerous substance on a warship
(asbestos, ammunition, solvents, heavy metals, etc.).
As this Court has observed, "[r]equiring too many warnings trivializes and
undermines the entire purpose of the rule, drowning out cautions against latent
dangers of which a user might not otherwise be aware" and "would neutralize the
effectiveness of warnings." Liriano v. Hobart Corp., 92 N.Y.2d 232, 242 (1998)
(no duty to warn against obvious dangers because such a requirement "could
greatly increase the number of warnings accompanying certain product").
C. The Court Below Compounded The Error By Excluding Fair
Rebuttal That Would Have Put The Warnings Issue In Context.
The court below further erred in excluding fair rebuttal. Even in the cases
that have erroneously applied a heeding presumption, courts have recognized that
defendants may rebut the heeding presumption and allowed similar proof as that
wrongly excluded here. See, e.g., Anderson, 76 F. Supp. 2d at 442 ("The
presumption can be rebutted by proof that an adequate warning would have been
futile ... "); /sgitt, 156 So. 3d at 673 (same); see also note [20]. Defendants may
introduce evidence "suggesting a warning was sufficient or additional warnings
42
would have been ineffective under the circumstances." Roman v. Sprint Nextel
Corp., No. 12-CV-276 VEC, 2014 WL 5870743, at *2 (S.D.N.Y. Nov. 13, 2014).
Yet, in this case, the trial court deprived Crane of the opportunity to rebut
the new heeding presumption with highly exculpatory evidence: Crane's expert,
Rear Admiral Sargent, was prepared to testify that the Navy would have forbidden
additional warnings from Crane. COA-62 (Friedman, J., dissenting). This
testimony "would have tended to show that the hypothetical warnings, even if
given, would not have reached Mr. Dummitt." Id. In other words, the testimony
would have shown that an attempt to off er additional warnings by Crane would
have been futile. 26 Evidence that the Navy would have forbidden additional
warnings is highly relevant to rebutting plaintiff's causation case here.
For example, in evaluating government contractor defenses, a number of
courts have recognized significant limitations on what information the Navy would
permit suppliers to present to its personnel. See generally Ruppel v. CBS Corp.,
701 F.3d 1176, 1185 (7th Cir. 2012) (discussing testimony that "the Navy did not
'want[ ] any change in the specifications [regarding asbestos] as the performance
with the present materials [was] entirely satisfactory"') (first and third alterations
26 The trial court underscored this error by belatedly instructing the jury that it could look for
rebuttable evidence-advising in a "clarification" jury instruction that "you can consider other
evidence in the case to see if that other evidence rebuts this presumption," COA 2048; COA-60
n.5 (Friedman, J., dissenting)-even though the court already had excluded this key rebuttal
evidence, making its absence all the more keenly felt.
43
in original); Harris, 532 F. Supp. 2d at 1005 (noting affidavits demonstrating that
"the Navy dictated every aspect of the design, manufacture, installation, overhaul,
written documentation and warnings associated with its ships and did not permit
deviation by any of its contractors").
Further, courts routinely allow evidence that the Navy's knowledge
regarding asbestos was "state of the art." Olschewske v. Asbestos Defs. (B-P), No.
C 10-1729 PJH, 2010 WL 3184317, at *3 (N.D. Cal. Aug. 11, 2010); Machnik,
506 F. Supp. 2d at 104 (recognizing the "basis for concluding that the Navy, and
not military contractors, was in the best position to know of the health hazards
related to asbestos"); Harris, 532 F. Supp. 2d at 1006; Ferguson v. Lorillard
Tobacco Co., 475 F. Supp. 2d 725, 730-31 (N.D. Ohio 2007); In re Joint E. & S.
Dist. New York Asbestos Litig. [Grispo], 897 F.2d 626 (2d Cir. 1990) (reversing
summary judgment because lower court failed to evaluate all of the evidence in the
record, including the Government's labeling requirements).
In such cases, federal law may afford the government contractor immunity
from suit. 27 The rule in this case would take essentially the opposite approach,
effectively presuming liability. At a minimum, these cases underscore that
27 The government contractor defense protects a private federal government contractor from
liability against state products liability claims "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." Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).
44
defendants should be permitted to litigate the question whether the Navy would
have permitted additional warnings and whether such additional warnings would
have prevented the plaintiff's injury. Here, defendants had no such opportunity
and plaintiffs received an essentially irrefutable presumption of causation.
The trial court abused its discretion in excluding rebuttal evidence here.
Similar testimony is routinely admitted for a variety of purposes, and is precisely
the type of evidence that would have "made a difference" in this case. COA-48.
***
The lower courts' legally flawed holdings would improperly convert critical
suppliers of Navy parts during wartime into insurers for asbestos products that they
neither made nor supplied. To put this opinion in perspective, hundreds of
thousands of Navy personnel have worked around GE's steam turbines over the
prior decades. And hundreds of materials are used alongside GE's steam turbines.
Under the flawed analysis of the decisions below, companies such as GE would
face potentially unlimited litigation-and liability-for injuries involving these
individuals and materials, based on events that often occurred over half a century
ago. GE may shoulder the majority of this burden given that nearly every one of
the actual asbestos insulation manufacturers is now bankrupt.
Instead of inviting this anomalous result, this Court should adhere to the
well-established tort law principles that (1) it is a defendant who actually makes or
45
distributes a product that bears a duty to warn about that product's risks and (2) a
tort plaintiff must prove that such an entity's failure to warn caused her injury,
rather than being entitled to assume this conclusion.
CONCLUSION
For these reasons, and those stated in the brief of Appellant and its other
amici, the Court should reverse the decision of the Appellate Division and direct
entry of judgment for Crane Co.
Dated: March 18, 2016 Respectfully submitted,
SIDLEY AUST
Eamon P. Joyce
787 Seventh A venue
New York, NY 10019
Rebecca K. Wood
1501 K Street, NW
Washington, DC 20005
Timothy E. Kapshandy
John A. Heller
Laura A. Sexton
One South Dearborn Street
Chicago, IL 60601
Counsel for Amicus Curiae
General Electric Company
46