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,
Respondent,
– against –
A.W. CHESTERTON, et al.,
Defendants,
– and –
CRANE CO.,
Appellant.
BRIEF FOR AMICUS CURIAE CBS CORPORATION
CHRISTOPHER G. CONLEY
EVERT WEATHERSBY HOUFF
200 Cleveland Road, Suite 6
Bogart, Georgia 30622
Tel.: (706) 389-7300
Fax: (706) 389-7301
SHAY DVORETZKY
EMILY J. KENNEDY
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
Tel.: (202) 879-3939
Fax: (202) 626-1700
Attorneys for Amicus Curiae CBS Corporation
Date Completed: March 18, 2016
CORPORATE DISCLOSURE STATEMENT
PURSUANT TO COURT OF APPEALS RULE 500.1(F)
CBS Corporation is a publicly traded company. National Amusements, Inc.,
a privately held company, beneficially owns the majority of the Class A voting
stock of CBS Corporation. Viacom Inc. is also an affiliate of CBS Corporation.
The following entities are subsidiaries of CBS Corporation:
13 Investments LLC; 13 Productions LLC; 13 Radio Corp.; 90210 Productions,
Inc.; A.S. Payroll Co., Inc.; Aaron Spelling Productions, Inc.; Acorn Pipe Line Co.;
Acorn Properties, Inc.; Acorn Trading Co.; Addax Music Co., Inc.; Aetrax
International Corp.; Ages Electronics, Inc.; Ages Entertainment Software LLC; All
is Forgiven Productions (General Partnership); All Media Inc.; ALTSIM Inc.;
Amadea Film Productions, Inc.; Amazing Race Productions Inc.; Antilles Oil Co.,
Inc.; A-R Acquisition Corp.; Armacost Music LLC; Around the Block Productions,
Inc.; Aspenfair Music, Inc.; Atlanta Television Station WUPA Inc.; The Audio
House, Inc.; Avery Productions LLC; BAPP Acquisition Corp.; Barrington Songs
LLC; Bay County Energy Systems, Inc.; Bay Resource Management, Inc.;
Beverlyfax Music, Inc.; Big Ticket Music Inc.; Big Ticket Pictures Inc.; Big Ticket
Productions Inc.; Big Ticket Television Inc.; Blackrock Insurance Corp.; Blue Cow
Inc.; Bombay Hook LLC; Bonneville Wind Corp.; Branded Productions, Inc.;
Brentwood Pictures Inc.; Brotherhood Productions, Inc.; Bruin Music Co.; Buster
Productions Inc.; C&W Land Corp.; C-28 FCC Licensee Subsidiary, LLC;
ii
Caroline Films Productions, Inc.; CBS/CTS Inc.; CBS/Westinghouse of PA Inc.;
CBS (PDI) Distribution Inc.; CBS 247 Inc.; CBS Advertiser Services Inc.; CBS
AJV Inc.; CBS Asia Inc.; CBS Broadcast International Asia Inc.; CBS
Broadcasting Inc.; CBS Broadcasting West Inc.; CBS Channel 10/55 Inc.; CBS
Communications Services Inc.; CBS Communications Technology Group Inc.;
CBS Consumer Products Inc.; CBS Corporate Services Inc.; CBS CW Network
Partner LLC; CBS DBS Inc.; CBS DEC Inc.; CBS Domains Inc.; CBS EcoMedia
Inc.; CBS Employee Services Inc.; CBS Executive Services Corp.; CBS Film
Funding Co. Inc.; CBS Films Inc.; CBS Films Distribution Inc.; CBS Films
Productions Inc.; CBS First Run Development Co. Inc.; CBS First Run Ltd.; CBS
Foundation Inc.; CBS General Entertainment Australia Inc.; CBS Home
Entertainment Inc.; CBS Holdings (Mexico) Inc.; CBS IDA Inc.; CBS Interactive
Inc.; CBS Interactive Media Inc.; CBS International Inc.; CBS IRB Acquisition
Inc.; CBS Japan Inc.; CBS K-Band Inc.; CBS Last FM Holding Inc.; CBS LITV
LLC; CBS-Lux Holding LLC; CBS Lyrics Inc.; CBS Mass Media Corp.; CBS
MaxPreps Inc.; CBS Media Realty Corp.; CBS Music LLC; CBS News
Communications Inc.; CBS News Inc.; CBS Operations Inc.; CBS Operations
Investments Inc.; CBS Operations Services Inc.; CBS Outdoor Investments Inc.;
CBS Overseas Inc.; CBS Overseas Productions Two Inc.; CBS Phoenix Inc.; CBS
Pictures Overseas Inc.; CBS PNW Sports Inc.; CBS Radio Annapolis Holdings
iii
Inc.; CBS Radio Annapolis LLC; CBS Radio East Holdings Corp.; CBS Radio
East Inc.; CBS Radio Holdings Corp. of Massachusetts; CBS Radio Holdings Corp.
of Orlando; CBS Radio Inc.; CBS Radio Inc. of Atlanta; CBS Radio Inc. of
Baltimore; CBS Radio Inc. of Boston; CBS Radio Inc. of Detroit; CBS Radio Inc.
of Glendale; CBS Radio Inc. of Illinois; CBS Radio Inc. of Los Angeles; CBS
Radio Inc. of Maryland; CBS Radio Inc. of Michigan; CBS Radio Inc. of Northern
California; CBS Radio Inc. of Washington; CBS Radio Inc. of Washington, D.C.;
CBS Radio KFRC-AM Inc.; CBS Radio KMVQ-FM Inc.; CBS Radio Media Corp.;
CBS Radio Network Inc.; CBS Radio of Chicago; CBS Radio Promotions Group
Inc.; CBS Radio Sales Co.; CBS Radio Services Inc.; CBS Radio Stations Inc.;
CBS Radio Technical Services Inc.; CBS Radio Texas Inc.; CBS Radio Tower Inc.;
CBS Radio Ventures, Inc.; CBS Radio WLIF, Inc.; CBS Radio WLIF-AM, Inc.;
CBS Radio WPGC(AM) Inc.; CBS Receivables Funding II Corp.; CBS
Receivables Funding III Corp.; CBS Records Inc.; CBS Retail Stores Inc.; CBS–
Sac Music Inc.; CBS Satellite News Inc.; CBS Services Inc.; CBS Shopping Inc.;
CBS Sports Inc.; CBS Sports Radio Network Inc.; CBS Stations Group of Texas
LLC; CBS Stock Holdings I Inc.; CBS Stock Holdings II Inc.; CBS Studios Inc.;
CBS Studios Networks Inc.; CBS Studios Overseas Productions Inc.; CBS Studios
Productions LLC; CBS Subsidiary Management Corp.; CBS Survivor Productions,
Inc.; CBS Technology Corp.; CBS Television Licenses LLC; CBS Television
iv
Service Inc.; CBS Television Stations Inc.; CBS Temp Services Inc.; CBS TVG
Inc.; CBS UAC Corp.; CBS Worldwide Distribution Inc.; CBS World Wide Ltd.;
CCG Ventures, Inc.; Central Fidelity Insurance Co.; Centurion Satellite Broadcast
Inc.; Championship Productions Inc.; Channel 28 Television Station, Inc.; Channel
34 Television Station LLC; Charter Crude Oil Co.; Charter Futures Trading Co.;
Charter Media Co.; Charter Oil Co.; Charter Oil Services, Inc.; Chazo Productions
Inc.; CIOC Remediation Trust; CIOC LLC; Classless Inc.; Clicker Media Inc.;
CNET Investments, Inc.; Columbia Television, Inc.; Comanche Moon Productions
Inc.; Commissioner.com, Inc.; Compelling Music LLC; Concord Entertainment
Inc.; Consolidated Caguas Corp.; Cross Step Productions Inc.; CSTV Networks,
Inc.; CSTV Online, Inc.; CSTV Regional, LLC; CSTV-A, LLC; CSTV-B, LLC;
Danni Productions LLC; Davis Circle Productions Inc.; Delaware Resource
Beneficiary, Inc.; Delaware Resource Lessee Trust; Delaware Resource
Management, Inc.; Desilu Productions Inc.; Detroit Television Station WKBD Inc.;
Digital Video Ops Inc.; Dotspotter Inc.; Dutchess Resource Management, Inc.;
Dynamic Soap, Inc.; Eagle Direct, Inc.; Elite Productions Inc.; Elysium
Productions Inc.; Energy Development Associates Inc.; EPI Music LLC; Erica
Film Productions, Inc.; ET Media Group Inc.; Eventful, Inc.; Evergreen Programs
LLC; EWB Corp.; Eye Creative Media Group Inc.; Eye Explorations Inc.; Eye Net
Works Inc.; Eye Productions Inc.; Fifty-Sixth Century Antrim Iron Co., Inc.; Film
v
Intex Corp.; Films Ventures (Fiji) Inc.; First Hotel Investment Corp.; Forty-Fourth
Century Corp.; Four Crowns, Inc.; French Street Management LLC; Front Street
Management Inc.; G&W Leasing Co.; G&W Natural Resources Co., Inc.; Games
Exchange Inc.; Gateway Fleet Co.; Glendale Property Corp.; Glory Productions
Inc.; Gloucester Titanium Co., Inc.; GNS Productions Inc.; GolfWeb; Gorgen, Inc.;
Grammar Productions Inc.; Granite Productions Inc.; Granville Pictures Inc.;
Green Tiger Press, Inc.; Group W Television Stations, L.P.; Gulf & Western
Indonesia, Inc.; H R Acquisition Corp.; Hamilton Projects, Inc.; Hit Radio, Inc.;
Image Edit, Inc.; IMR Acquisition Corp.; INFCO Network Inc.; Infinity
Broadcasting Corp.; Inside Edition Inc.; Interstitial Programs Inc.; Irvine Games
Inc.; Irvine Games USA Inc.; Jumbo Ticket Songs Inc.; Just U Productions, Inc.;
K.W. M., Inc.; Kalen Productions Inc.; Katled Systems Inc.; Kilo Mining Corp.;
King World Corp.; King World Development Inc.; King World Direct Inc.; King
World Media Sales Inc.; King World Merchandising, Inc.; King World
Productions, Inc.; King World Studios West Inc.; King World/CC Inc.; Kristina
Productions Inc.; KUTV Holdings, Inc.; KW Development Inc.; KWP/RR Inc.;
KWP Studios Inc.; KWTS Productions Inc.; Large Ticket Songs Inc.; Laurel
Entertainment LLC; Levitt Property Managers, Inc.; Liliana Productions Inc.;
Lincoln Point Productions Inc.; Los Angeles Television Station KCAL LLC; Low
Key Productions Inc.; LT Holdings Inc.; Maarten Investerings Partnership;
vi
Magical Jade Productions Inc.; Magic Molehill Productions, Inc.; The Matlock Co.;
Mattalex LLC; Melrose Productions Inc.; Meredith Productions LLC; Merlot Film
Productions, Inc.; Merritt Inc.; Miami Television Station WBFS Inc.; MVP.com
Sports, Inc.; Narrabeen Productions Inc.; The New Jersey Zinc Exploration Co.;
Nicki Film Productions, Inc.; North Shore Productions Inc.; NTA Films, Inc.; O
Good Songs Co.; O’Connor Combustor Corp.; OM/TV Productions Inc.; On
Broadband Networks LLC; Orange Ball Networks Subsidiary PRC LLC; Orange
Square Inc.; OurChart.com LLC; Our Home Productions Inc.; Outdoor TDI LLC;
Outlet Networks Inc.; Part-Time Productions Inc.; PCCGW Co., Inc.; PCI Canada
Inc.; PCI Network Partner II Inc.; PCI Network Partner Inc.; Permutation
Productions Inc.; Philadelphia Television Station WPSG Inc.; Pittsburgh
Television Station WPCW Inc.; PMV Productions, Inc.; Possible Productions Inc.;
Possum Point Incorporated; Pottle Productions, Inc.; Preye, Inc.; Proxy Music LLC;
Quemahoning Coal Processing Co.; Radford Studio Center Inc.; Raquel
Productions Inc.; Real TV Music Inc.; Recovery Ventures Inc.; Republic
Distribution LLC; Republic Entertainment LLC; Republic Pictures Enterprises
LLC; Republic Pictures Productions LLC; RH Productions Inc.; RTV News Inc.;
RTV News Music Inc.; Sacramento Television Stations Inc.; Salton Sea Songs
LLC; San Francisco Television Station KBCW Inc.; The Saucon Valley Iron and
Railroad Co.; SBX Acquisition Corp.; Scott-Mattson Farms, Inc.; Ship House, Inc.;
vii
SHOtunes Music LLC; Show Works Productions Inc.; Showtime Digital Inc.;
Showtime Live Entertainment Inc.; Showtime Marketing Inc.; Showtime Melodies
Inc.; Showtime Networks Inc.; Showtime Networks Inc. (U.K.); Showtime
Networks Satellite Programming Co.; Showtime Online Inc.; Showtime Pictures
Development Co.; Showtime Satellite Networks Inc.; Showtime Songs Inc.;
Showtime/Sundance Holding Co. Inc.; SIFO One Inc.; SIFO Two Inc.; Simon &
Schuster Digital Sales Inc.; Simon & Schuster Global Services Inc.; Simon &
Schuster India LLC; Simon & Schuster International Inc.; Simon & Schuster, Inc.;
SN Digital LLC; SNI/SI Networks LLC; Soapmusic Co.; Solar Service Co.;
SongFair Inc.; Spelling Daytime Songs Inc.; Spelling Daytime Television Inc.;
Spelling Entertainment Group LLC; Spelling Entertainment LLC; Spelling
Satellite Networks Inc.; Spelling Television Inc.; SportsLine.com, Inc.; St. Johns
Realty Investors; Starfish Productions Inc.; Stargate Acquisition Corp. One; Stat
Crew Software, Inc.; Stranglehold Productions, Inc.; Sunset Beach Productions,
Inc.; Survivor Productions, LLC; Swift Justice Productions Inc.; T&R Payroll Co.;
Taylor Forge Memphis, Inc.; TDI Worldwide LLC; TDI Worldwide Investments
Inc.; Television Station KTXA Inc.; Television Station WTCN LLC; Television
Station WWHB LLC; The CW Television Stations Inc.; The Late Show Inc.; They
Productions Inc.; Things of the Wild Songs Inc.; Third Century Co.; Thirteenth
Century Corp.; Thirtieth Century Corp.; Timber Purchase Co.; Toe-to-Toe
viii
Productions Inc.; Torand Payroll Co.; Torand Productions Inc.; Total Warehouse
Services Corp.; Trans-American Resources, Inc.; TSM Services Inc.; Tube Mill,
Inc.; TV Guide Online Holdings LLC; TV Scoop Inc.; UCGI, Inc.; UPN; UPN
Holding Co., Inc.; UPN Properties, Inc.; Ureal Productions Inc.; VE Development
Co.; VE Drive Inc.; VE Television Inc.; VI Services Corp.; VISI Services Inc.;
Visions Productions, Inc.; VJK Inc.; VNM Inc.; VP Direct Inc.; VPix Inc.; VP
Programs Inc.; VSC Compositions LLC; VSC Music LLC; Waste Resource
Energy, Inc.; WBCE Corp.; WCC FSC I, Inc.; WCC Project Corp.; Westgate
Pictures Inc.; Westinghouse Aircraft Leasing Inc.; Westinghouse Asset
Management Inc.; Westinghouse Canada Holdings L.L.C.; Westinghouse CBS
Holding Co., Inc.; Westinghouse Electric Corp.; Westinghouse Environmental
Management Co. of Ohio, Inc.; Westinghouse Hanford Co.; Westinghouse
Holdings Corp.; Westinghouse Idaho Nuclear Co., Inc.; Westinghouse Investment
Corp.; Westinghouse Licensing Corp.; Westinghouse Reinvestment Co., L.L.C.;
Westinghouse World Investment Corp.; W-F Productions, Inc.; Wilshire
Entertainment Inc.; Wilshire/Hauser Co.; World Volleyball League, Inc.;
Worldvision Enterprises LLC; Worldvision Enterprises (United Kingdom) Ltd.;
Worldvision Enterprises of Canada, Ltd.; Worldvision Home Video LLC; WPIC
Corp.; WT Animal Music Inc.; WT Productions Inc.; York Resource Energy
Systems, Inc.; Young Reader’s Press, Inc.; 14 Hours Productions Inc.; 4400
ix
Productions Inc.; 1928778 Ontario Inc.; Abaco Farms Ltd.; AG Films Canada Inc.;
Audioscrobbler Ltd.; Bahamas Underwriters Services Ltd.; Cania Productions Inc.;
Cayman Overseas Reinsurance Association; CBS-CSI International B.V.; CBS
Broadcast International B.V.; CBS Broadcast-Kingworld - CBS Lux Holding LLC
S.C.S.; CBS Broadcast International of Canada Ltd.; CBS Broadcast Services Ltd.;
CBS Canada Co.; CBS Canada Holdings Co.; CBS Canadian Film and Television
Inc.; CBS CSI Distribution - CBS Lux Holding LLC S.C.S.; CBS EMEA Ltd.;
CBS Enterprises (UK) Ltd.; CBS Films Canadian Productions Inc.; CBS Holdings
(Bermuda) 2 Ltd.; CBS Holding (Germany) B.V.; CBS Holdings (Germany) II
B.V.; CBS Interactive Ltd.; CBS Interactive Pte Ltd.; CBS Interactive Pty. Ltd.;
CBS International (Netherlands) B.V.; CBS International Holdings B.V.; CBS
International Sales Holdings B.V.; CBS International Television (UK) Ltd.; CBS
International Television Australia Pty Ltd.; CBS International Television Italia Srl;
CBS International Television Japan GK; CBS Luxembourg S.a.r.l.; CBS Outdoor
Metro Services Ltd.; CBS S AG; CBS Pimco UK; CBS Showtime – CBS Lux
Holding LLC S.C.S.; CBS Studios International GmbH; CBS Studios – CBS Lux
Holding LLC S.C.S.; CBS UK; CBS UK Channels Ltd.; CBS UK Productions Ltd.;
CBS SEA Channels Pte. Ltd.; CBS Worldvision – CBS Lux Holding LLC S.C.S.;
CBS Worldwide Ltd.; Channel Community Networks Corp.; Channel Services SA;
Charter Oil (Bahamas) Ltd.; Charter Oil Specialties Ltd.; Chuanmei Information
x
Technologies (Shanghai) Co., Ltd.; CNET (Beijing) Information Technology Co.,
Ltd.; CN Pilot Productions Inc.; Columbia Broadcasting Systems Ltd.; Danger
Productions Inc.; dFactory Sarl; Famous Players Investments B.V.; First Cut
Productions Inc.; GFB Productions Inc.; Grand Bahama Petroleum Co. Ltd.;
Grande Alliance Co. Ltd.; Granville Canadian Productions Inc.; Gravity
Productions Inc.; Gulf & Western do Brazil Industria e Comercio Limitada; Gulf &
Western International N.V.; Gulf & Western Ltd.; International Raw Materials Ltd.;
King & Maxwell Productions Inc.; Last.FM Acquisition Ltd.; Last.FM Ltd.; LS
Productions Inc.; Mayday Productions Inc.; New Coral Ltd.; New Providence
Assurance Co. Ltd.; PC Home Cayman Ltd.; Pocket Books of Canada, Ltd.;
Prospect Co. Ltd.; PTC Holdings C.V.; R.G.L. Realty Ltd.; Republic Pictures Corp.
of Canada Ltd.; Sagia Productions Inc.; SF Films Inc.; Showtime Canada ULC;
Showtime Distribution B.V.; Simon & Schuster (Australia) Pty. Ltd.; Simon &
Schuster (UK) Ltd.; Simon & Schuster of Canada (1976) Ltd.; Simon & Schuster
Publishers India Private Ltd.; Spelling Television (Canada) Inc.; Spelling
Television Quebec Inc.; St. Francis Ltd.; St. Ives Co. Ltd.; Streak Productions Inc.;
TB Productions Inc.; Tele-Vu Ltee.; TMI International B.V.; Ultra Productions
Inc.; VBC Pilot Productions Inc.; Viper Productions Inc.; Westinghouse Corporate
Resources; Woburn Insurance Ltd.; Worldvision Enterprises (France) SARL;
xi
Worldvision Enterprises de Venezuela; Worldvision Enterprises Latino-Americana,
S.A.; Worldvision Filmes do Brasil, Ltda.; WVI Films B.V.; YP Productions Inc.
TABLE OF CONTENTS
Page
xii
CORPORATE DISCLOSURE STATEMENT PURSUANT TO COURT OF
APPEALS RULE 500.1(F) .............................................................................. i
TABLE OF AUTHORITIES .................................................................................xiv
INTEREST OF AMICUS CURIAE ........................................................................... 1
QUESTIONS PRESENTED ..................................................................................... 2
INTRODUCTION AND SUMMARY OF ARGUMENT ....................................... 2
ARGUMENT ............................................................................................................ 5
I. CRANE HAD NO DUTY TO WARN MR. DUMMITT ABOUT
THE DANGERS OF ASBESTOS PRODUCTS THAT THIRD
PARTIES MANUFACTURED, SOLD, AND SUPPLIED TO THE
NAVY ............................................................................................................. 5
A. A Defendant Is Only Liable For Products It Manufactures Or
Sells ...................................................................................................... 6
B. Sound Public Policy Supports This General Rule ............................. 10
II. THERE ARE NO APPLICABLE EXCEPTIONS TO THE RULE
THAT A DEFENDANT IS ONLY LIABLE FOR PRODUCTS IT
MANUFACTURES OR SELLS .................................................................. 12
A. A Defendant Has No Duty To Warn About Foreseeable Harms
Caused By Third Parties’ Products .................................................... 12
B. This Court Should Not Create An Exception To These General
Rules ................................................................................................... 20
1. Concerns about unlimited liability are particularly acute
in the maritime warfare context ............................................... 20
2. The Navy’s knowledge regarding the dangers of asbestos
was “state-of-the-art” ............................................................... 22
3. It is unlikely that Mr. Dummitt would have or could have
heeded any warning issued by Crane ....................................... 26
4. There are serious questions whether the Navy would
have allowed any such warning in the first place .................... 28
xiii
5. Imposing a duty to warn is antithetical to the government
contractor defense .................................................................... 30
III. THE FIRST DEPARTMENT ERRED BY IMPOSING A DUTY ON
CRANE TO WARN ABOUT THIRD PARTIES’ PRODUCTS ................ 33
CONCLUSION ....................................................................................................... 35
TABLE OF AUTHORITIES
Page(s)
xiv
NEW YORK CASES
Berkowitz v. A.C. & S., Inc.,
733 N.Y.S.2d 410 (1st Dep’t 2001) .................................................................... 15
Church v. Callanan Indus.,
99 N.Y.2d 104 (2002) ....................................................................................... 6, 7
Codling v. Paglia,
32 N.Y.2d 330 (1973) ......................................................................... 7, 10, 11, 12
Conway v. Marsh & McLennon, Inc.,
310 N.Y.S.2d 455 (1st Dep’t 1970) (per curiam) ............................................... 10
Davies v. Ferentini,
914 N.Y.S.2d 17 (1st Dep’t 2010) ...................................................................... 34
Dummitt v. Crane Co.,
990 N.Y.S.2d 174 (1st Dep’t 2014) .............................................................passim
Espinal v. Melville Snow Contractors,
98 N.Y.2d 136 (2002) ................................................................................... 5, 6, 7
Goldberg v. Kollsman Instrument Corp.,
12 N.Y.2d 432 (1963) ............................................................................... 7, 10, 11
Hamilton v. Beretta U.S.A. Corp.,
96 N.Y.2d 222 (2001) ..................................................................................passim
Hansen v. Honda Motor Co.,
480 N.Y.S.2d 244 (2d Dep’t 1984) ..................................................................... 14
Hess v. Mack Trucks, Inc.,
552 N.Y.S.2d 423 (2d Dep’t 1990) ....................................................................... 7
In re Eighth Judicial Dist. Asbestos Litig. (In re Drabczyk),
938 N.Y.S.2d 715 (4th Dep’t 2012) ................................................................... 13
TABLE OF AUTHORITIES
(continued)
Page(s)
xv
Kaloz by Kaloz v. Risco,
466 N.Y.S.2d 218 (N.Y. Sup. Ct. 1983) ............................................................. 14
Liriano v. Hobart Corp.,
92 N.Y.2d 232 (1998) ......................................................................................... 19
Matter of Eighth Judicial Dist. Asbestos Litig. (Holdsworth v. A.W.
Chesterton Co.),
11 N.Y.S.3d 397 (4th Dep’t 2015) ..................................................................... 15
Matter of New York City Asbestos Litig.,
36 Misc.3d 1234(A), (N.Y. Sup. Ct. 2012) ........................................................ 15
Matter of New York City Asbestos Litig. (Holdampf v. A.C. & S., Inc.),
5 N.Y.3d 486 (2005) ........................................................................................... 14
Moch Co. v. Rensselaer Water Co.,
247 N.Y. 160 (1928) ............................................................................................. 7
Mulhall v. Hannafin,
841 N.Y.S.2d 282 (1st Dep’t 2007) .................................................................... 26
Parvi v. City of Kingston,
41 N.Y.2d 553 (1977) ......................................................................................... 16
Pulka v. Edelman,
40 N.Y.2d 781 (1976) ..................................................................................... 5, 14
Rastelli v. Goodyear Tire & Rubber Co.,
79 N.Y.2d 289 (1992) ..................................................................................passim
Rogers v. Sears, Roebuck & Co.,
701 N.Y.S.2d 359 (1st Dep’t 2000) .................................................................... 16
TABLE OF AUTHORITIES
(continued)
Page(s)
xvi
Sage v. Fairchild-Swearingen Corp.,
70 N.Y.2d 579 (1987) ............................................................................. 16, 17, 18
Sawyer v. A.C. & S., Inc.,
32 Misc.3d 1237(A) (N.Y. Sup. Ct. 2011) ......................................................... 16
Sosna v. Am. Home Prods.,
748 N.Y.S.2d 548 (1st Dep’t 2002) .................................................................... 26
Tortoriello v. Bally Case,
606 N.Y.S.2d 625 (1st Dep’t 1994) .............................................................. 13, 17
CASES FROM OTHER JURISDICTIONS
Acoba v. Gen. Tire, Inc.,
986 P.2d 288 (Haw. 1999) .................................................................................... 9
Albrecht v. A.O. Smith Water Prods.,
No. 11-civ-5990, 2011 WL 5109532 (S.D.N.Y. Oct. 21, 2011) .................. 23, 24
Baughman v. Gen. Motors Corp.,
780 F.2d 1131 (4th Cir. 1986) ................................................................ 11, 19, 26
Boyle v. United Techs. Corp.,
792 F.2d 413 (4th Cir. 1986) (per curiam) ......................................................... 32
Boyle v. United Techs. Corp.,
487 U.S. 500 (1988) .....................................................................................passim
Braaten v. Saberhagen Holdings,
198 P.3d 493 (Wash. 2008) (en banc) ............................................................ 9, 10
Castaldo v. Pittsburgh-Des Moines Steel Co.,
376 A.2d 88 (Del. 1977) ................................................................................. 9, 10
TABLE OF AUTHORITIES
(continued)
Page(s)
xvii
Cuomo v. Crane Co.,
771 F.3d 113 (2d Cir. 2014) ......................................................................... 29, 31
Curry v. Am. Standard,
No. 7:08-CV-10228, 2010 U.S. Dist. LEXIS 142496
(S.D.N.Y. Dec. 6, 2010) ..................................................................................... 16
Davis v. Komatsu Am. Indus. Corp.,
42 S.W.3d 34 (Tenn. 2001)................................................................................... 9
Dreyer v. Exel Indus., S.A.,
326 F. App’x 353 (6th Cir. 2009) ......................................................................... 8
Ferguson v. Lorillard Tobacco Co.,
475 F. Supp. 2d 725 (N.D. Ohio 2007) ........................................................ 24, 29
Greenberg v. Larox, Inc.,
No. 11-cv-6524, 2015 WL 6457046 (W.D.N.Y. Oct. 26, 2015) .................. 13, 18
Hanson v. ACandS, Inc.,
No. 2:09-66701, 2011 WL 5458366 (E.D. Pa. June 23, 2011) .......................... 31
Harris v. Rapid Am. Corp.,
532 F. Supp. 2d 1001 (N.D. Ill. 2007) .......................................................... 24, 29
Lindstrom v. A-C Prod. Liab. Trust,
424 F.3d 488 (6th Cir. 2005) ................................................................................ 9
Loos v. Am. Energy Savers, Inc.,
522 N.E.2d 841 (Ill. App. Ct. 1988) ............................................................... 9, 10
Machnik v. Buffalo Pumps Inc.,
506 F. Supp. 2d 99 (D. Conn. 2007) ................................................................... 24
TABLE OF AUTHORITIES
(continued)
Page(s)
xviii
MacQueen v. Union Carbide Corp.,
No. 13-831, 2013 WL 6571808 (D. Del. Dec. 13, 2013) ............................. 23, 25
Miller v. United Techs. Corp.,
660 A.2d 810 (Conn. 1995) ................................................................................ 22
Olschewske v. Asbestos Defendants (B-P),
No. C 10-1729 PJH, 2010 WL 3184317 (N.D. Cal. Aug. 11, 2010) ................. 24
O’Neil v. Crane Co.,
266 P.3d 987 (Cal. 2012) .............................................................................passim
Quiles v. Sikorsky Aircraft,
84 F. Supp. 2d 154 (D. Mass. 1999) ................................................................... 22
Ruppel v. CBS Corp.,
701 F.3d 1176 (7th Cir. 2012) ...................................................................... 29, 32
Sanders v. Ingram Equip., Inc.,
531 So. 2d 879 (Ala. 1988) ............................................................................. 9, 10
Schreiner v. Wieser Concrete Prods., Inc.,
720 N.W.2d 525 (Wis. Ct. App. 2006) ................................................................. 9
Searls v. Doe,
505 N.E.2d 287 (Ohio Ct. App. 1986) ............................................................ 9, 10
Shaw v. Gen. Motors Corp.,
727 P.2d 387 (Colo. App. 1986) ..................................................................... 9, 10
Spencer v. Ford Motor Co.,
367 N.W.2d 393 (Mich. Ct. App. 1985) ......................................................... 9, 10
Stark v. Armstrong World Indus., Inc.,
21 F. App’x 371 (6th Cir. 2001) ......................................................................... 20
TABLE OF AUTHORITIES
(continued)
Page(s)
xix
Stout v. Borg-Warner Corp.,
933 F.2d 331 (5th Cir. 1991) ........................................................................ 22, 25
Sundstrom v. McDonnell Douglas Corp.,
816 F. Supp. 587 (N.D. Cal. 1993) ..................................................................... 23
Surre v. Foster Wheeler LLC,
831 F. Supp. 2d 797 (S.D.N.Y. 2011) .......................................................... 13, 33
Tate v. Boeing Helicopters,
55 F.3d 1150 (6th Cir. 1995) .............................................................................. 32
Walton v. Harnischfeger,
796 S.W.2d 225 (Tex. App. 1990) .................................................................. 9, 10
Westchem Agr. Chems. Inc. v. Ford Motor Co.,
990 F.2d 426 (8th Cir. 1993) ........................................................................ 11, 20
Yeroshefsky v. Unisys Corp.,
962 F. Supp. 710 (D. Md. 1997) ......................................................................... 23
STATUTES
Burke-Wadsworth Act, Pub. L. No. 76-783,
54 Stat. 885 (Sept. 16, 1940) .............................................................................. 29
OTHER AUTHORITIES
51 A.L.R.3d 1344 (1973 & Supp. 2011) ............................................................... 8, 9
63 Am. Jur. 2d Prods. Liab. § 157 (2d ed. 2011) ....................................................... 8
63A Am. Jur. 2d Prods. Liab. § 1027 ........................................................................ 8
Annual Report of the Surgeon General, U.S. Navy (1939) ..................................... 23
TABLE OF AUTHORITIES
(continued)
Page(s)
xx
J. LeRoy Blazer, Industrial Hygiene for Insulation Workers, U.S.
Navy Medical New Letter Vol. 51, No. 10 (May 24, 1958) .............................. 21
E.W. Brown, Industrial Hygiene and the Navy in National Defense,
War Medicine 3 (Jan. 1941) ............................................................................... 23
BUMED Memorandum, Threshold limit values for toxic materials
(Nov. 7, 1955) ..................................................................................................... 25
Bureau of Ships Manual, Chapter 39, Thermal Insulation
(Aug. 24, 1945) ................................................................................................... 21
John T. Finnegan, Everyman’s Story (Eloquent Books 2009) ................................ 27
Fleischer, et al., A Health Survey of Pipe Covering Operations in
Construction of Navy Vessels, 28 J. of Industrial Hygiene &
Toxicology 1 (Jan. 1946) .................................................................................... 24
James A. Henderson, Jr., Sellers of Safe Products Should Not Be
Required To Rescue Users From Risks Presented By Other, More
Dangerous Products, 37 SW. U. L. REV. 595 (2008) .......................................... 12
P.A. Laidlaw, Thermal Insulation on Ships, Bureau of Ships J.
(Mar. 1956, Vol. 4, No. 11) ................................................................................ 21
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) ........................ 30
Military Specification—Identification Plates, Information Plates and
Marking Information for Identification of Electrical, Electronic,
and Mechanical Equipment (MIL-I-I5024 (SHIPS)) ......................................... 29
Navy Dep’t, Manual of Instructions for Purchase & Administration of
Insurance on Navy Department Contracts (1940) .............................................. 25
TABLE OF AUTHORITIES
(continued)
Page(s)
xxi
Norfolk Navy Yard, Commander’s Order No. 21/40 (Apr. 11, 1940) .................... 25
Note, Abandoning Ship: Government Liability for Shipyard Asbestos
Exposures, 67 N.Y.U.L. REV. 1034 (1992) ........................................................ 27
John W. Petereit, The Duty Problem With Liability Claims Against
One Manufacturer for Failing to Warn About Another
Manufacturer’s Product, TOXIC TORTS & ENVT’L L. (Winter 2005) ................. 18
Restatement (Second) of Torts § 4 (1965) ................................................................. 6
Restatement (Second) of Torts § 402A (1965) .......................................................... 7
Restatement (Third) of Torts§ 5 (1998) ......................................................... 8, 11, 28
Thomas W. Tardy, III & Laura A. Frase, Liability of Equipment
Manufacturers for Products of Another: Is Relief in Sight?, Harris-
Martin Columns, May 2007 ................................................................................ 18
U.S. War Production Board, Strategic and Critical Materials List
(Jan. 30, 1940)..................................................................................................... 21
1
INTEREST OF AMICUS CURIAE
CBS Corporation (“CBS”) is a Delaware Corporation with substantial
operations in New York. Its predecessor, Westinghouse Electric Corporation
(“Westinghouse”), supplied turbines to the United States Navy for use in combat
vessels. Westinghouse manufactured and supplied this equipment in accordance
with the Navy’s detailed specifications.
When Westinghouse supplied its equipment to the Navy, the Navy required
turbines to be supplied in so-called “bare metal” form, meaning that they were not
insulated by the manufacturer before delivery to the Navy. Instead, the Navy
specifications required third parties to insulate the turbines with asbestos-
containing materials after their delivery. When the turbines were originally
delivered to the Navy, the Navy at various times also required that the turbine
package include certain asbestos-containing gaskets. Westinghouse did not
manufacture these asbestos-containing gaskets; it obtained them from third parties.
When those gaskets later wore out and needed to be replaced, the Navy selected
and obtained replacements for those gaskets from the manufacturer of the gaskets
or other third parties that were primarily in the business of supplying gaskets for
the Navy; the Navy did not obtain these items from Westinghouse. The
replacement gaskets that the Navy selected may or may not have contained
asbestos, depending on the military specifications applicable at the relevant time.
2
In this case, Mr. Dummitt was allegedly injured by asbestos products that
Crane never manufactured or supplied. Under the First Department’s approach,
which holds Crane liable for Mr. Dummitt’s injuries, CBS may also face claims
from countless Navy personnel who were exposed to asbestos products that
Westinghouse neither manufactured nor supplied, but that the Navy used in or
around turbines made by Westinghouse. CBS thus has a substantial interest in the
outcome of this case.
QUESTIONS PRESENTED
I. Is a defendant’s duty to warn under New York law limited to harmful
products that the defendant manufactures or sells, such that there is no duty to warn
about third parties’ products?
II. Does it contravene public policy to impose on government contractors
a duty to warn about third parties’ products when the government knows about the
danger, there are serious questions as to whether any such warning would have
been heeded or permitted, and any such duty would conflict with federal law as
articulated in Boyle v. United Technologies Corp., 487 U.S. 500 (1988)?
INTRODUCTION AND SUMMARY OF ARGUMENT
The central question in this case is whether Crane had a duty to warn Mr.
Dummitt about asbestos products that others—not Crane—manufactured and
supplied to the Navy. Black-letter tort law and sound public policy provide the
3
same answer: A defendant is only liable for injuries caused by products it
manufactures or sells. Because Crane had no duty to warn, the plaintiff’s claim
fails as a matter of law.
I. Basic tort law provides that a defendant generally has no duty to
prevent third parties from harming others. For this reason, a defendant is typically
not liable for harmful conditions that it does not actually create. This principle
applies in the context of products liability, and a defendant is only responsible for
harms caused by products it manufactures or sells. The law therefore does not
impose liability for harm caused by third parties’ products.
This rule accords with sound public policy. Products liability is based on the
judgment that businesses, rather than consumers, should bear the risk of their
harmful products. For this reason, the law imposes liability on parties that
manufacture or sell harmful products because those entities benefit from the sale of
such products and are in the best position to ensure that their products are safe.
But these rationales are inapposite when a party does not manufacture or sell an
injury-causing product. In those instances, imposing liability would be unjust and
inefficient.
II. Importantly, there are no exceptions to the fundamental rule that a
defendant is only liable for products it manufactures or sells. New York courts
have routinely rejected the notion that foreseeability gives rise to a duty to warn
4
about products manufactured and sold by third parties. Thus, this Court has held
that, even when it is foreseeable that a third party’s harmful product will be used
with the defendant’s product, the defendant has no duty to warn about the third
party’s product. Some lower New York courts have suggested that a defendant
may have a duty to warn when it knows to a certainty that a third party’s harmful
product will be used with the defendant’s product—but the notion that either
foreseeability or known certainty gives rise to a legal duty where none would
otherwise exist is wrong, and cannot be reconciled with this Court’s decisions.
Moreover, imposing any such duty on Crane would contravene public
policy. Under the circumstances of this case, the costs of creating a new duty to
warn would outweigh any potential benefits. First, the policy concerns that
counsel against imposing liability for third parties’ products are particularly acute
in the maritime warfare context. Second, it would be unjust to impose a duty to
warn on government contractors where, as here, the government had extensive
knowledge about the relevant dangers. Third, it would be inefficient to impose
such a duty when it is unlikely that injured parties would have heeded any such
warning. Fourth, imposing a duty decades after the fact is unfair where there are
serious questions as to whether the government would have permitted a warning in
the first place. And finally, imposing a duty on Crane would penalize the very
behavior that the government contractor defense is designed to protect.
5
III. None of the reasons provided by the First Department justifies
imposing a duty on Crane to warn about the dangers of third parties’ products.
First, it is irrelevant that Crane sold certain asbestos products because Mr.
Dummitt was never exposed to those products. The First Department’s reasoning
radically departs from products liability law by suggesting that plaintiffs can sue
any defendant who manufactured or sold a product similar to the product that
actually injured them.
Second, state law should not impose a duty on Crane based on its supposed
collaboration with the Navy. Creating a duty to warn on that basis would penalize
government contractors for the very behavior that federal law protects. The First
Department’s decision not only makes New York law an anomaly in this regard; it
will deter New York businesses from participating in federal contracts and will
drive federal contractors away from New York.
ARGUMENT
I. CRANE HAD NO DUTY TO WARN MR. DUMMITT ABOUT THE
DANGERS OF ASBESTOS PRODUCTS THAT THIRD PARTIES
MANUFACTURED, SOLD, AND SUPPLIED TO THE NAVY
“[A] threshold question in tort cases is whether the alleged tortfeasor owed a
duty of care to the injured party.” Espinal v. Melville Snow Contractors, 98
N.Y.2d 136, 138 (2002). “In the absence of duty, there is no breach and without a
breach there is no liability.” Pulka v. Edelman, 40 N.Y.2d 781, 782 (1976). As a
6
matter of general tort law and sound public policy, Crane had no duty to warn
about the dangers of products that it did not manufacture or supply. Plaintiff’s
claim fails as a matter of law because it is undisputed that Mr. Dummitt was not
injured by any of Crane’s products.
A. A Defendant Is Only Liable For Products It Manufactures Or
Sells
Bedrock principles of tort law provide that “[a] defendant generally has no
duty to control the conduct of third persons so as to prevent them from harming
others, even where as a practical matter [the] defendant can exercise such control.”
Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 233 (2001) (internal quotation
marks omitted); see Restatement (Second) of Torts § 4 (1965). For this reason, a
defendant is typically liable only for harms or injuries that he causes through his
own conduct.
This rule limits a defendant’s liability in several contexts. For example, this
Court has held that a defendant generally is not liable in tort to third parties for
injuries resulting from the defendant’s deficient performance of a contract. See
Church v. Callanan Indus., 99 N.Y.2d 104, 111 (2002); see Espinal, 98 N.Y.2d at
138. But if, in the course of performing his contract, the defendant “launch[es] a
force or instrument of harm” by creating or exacerbating an unreasonable risk of
harm to third parties, then he may be liable. See Church, 99 N.Y.2d at 111;
7
Espinal, 98 N.Y.2d at 140.1 By contrast, when the harm is caused by a defendant’s
mere “inaction”—i.e., “a refusal to become an instrument for good”—tort liability
does not attach. Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 168 (1928).
The same rule applies in the context of products liability, and the law
penalizes only parties who “launch a force or instrument of harm” by designing,
manufacturing, or selling products that cause injury. See, e.g., Codling v. Paglia,
32 N.Y.2d 330 (1973) (car manufacturer liable for injuries caused by defective
steering mechanism); Goldberg v. Kollsman Instrument Corp., 12 N.Y.2d 432,
436-37 (1963) (vendors and manufacturers liable for harms caused by products
they design, make, or sell); Hess v. Mack Trucks, Inc., 552 N.Y.S.2d 423 (2d Dep’t
1990) (manufacturers and suppliers of truck liable for harms caused by failure to
warn about danger of overloading truck). The law does not impose liability on a
defendant for harm caused by others’ products. See Restatement (Second) of Torts
§ 402A (1965) (strict liability only for “[o]ne who sells” product). As the
American Law Reports note, “[i]t is obvious that to hold a producer, manufacturer,
1 Tort liability may also arise in other limited situations, where a third party’s
injury results from his reasonable reliance on the defendant’s continued
performance of his contractual obligations, or where the defendant’s obligations
“entirely displaced the other party’s duty to maintain the premises safely.” Church,
99 N.Y.2d at 111-112; see Espinal, 98 N.Y.2d at 140. Neither of those exceptions
is relevant here, where Crane’s contract with the Navy precluded additional
warnings and where the Navy instituted its own measures to protect personnel. See
Parts II.B.2 & 4, infra.
8
or seller liable for injury caused by a particular product, there must first be proof
that the defendant produced, manufactured, sold, or was in some way responsible
for the product.” 51 A.L.R.3d 1344 § 2[a] (1973 & Supp. 2011); see 63 Am. Jur.
2d Prods. Liab. § 157 (2d ed. 2011) (“A fundamental principle of traditional
products liability law is that the plaintiff must prove that the defendant
manufacturer made the product which caused the injury.”). Only in those instances
can it be said that a defendant “launched the force or instrument of harm” that
caused the injury.
For these reasons, products-liability law does “not extend[] manufacturer
liability to products manufactured by another, even when used in combination,
unless the manufacturer’s own product creates the risk of harm.” Dreyer v. Exel
Indus., S.A., 326 F. App’x 353, 357 (6th Cir. 2009). Established treatises likewise
reaffirm the black-letter rule that a manufacturer generally has no duty of care with
respect to another’s products. See, e.g., Restatement (Third) of Torts: Prod. Liab.
§ 5 cmt. a (1998); 63A Am. Jur. 2d Prods. Liab. § 1027. State appellate courts
from across the country—including New York—have recognized the same rule.2
2 See, e.g., Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 298
(1992); O’Neil v. Crane Co., 266 P.3d 987, 991 (Cal. 2012); Braaten v.
Saberhagen Holdings, 198 P.3d 493, 498 (Wash. 2008) (en banc); Schreiner v.
Wieser Concrete Prods., Inc., 720 N.W.2d 525, 530-31 (Wis. Ct. App. 2006);
Davis v. Komatsu Am. Indus. Corp., 42 S.W.3d 34, 38-39 (Tenn. 2001); Acoba v.
Gen. Tire, Inc., 986 P.2d 288, 305 (Haw. 1999); Walton v. Harnischfeger, 796
9
Importantly, the general rule that limits liability outside a defective product’s
chain of distribution bars all potential claims, “[r]egardless of the theory which
liability is predicated upon.” 51 A.L.R.3d 1344 § 2[a]. Thus, the rule applies
equally to all three potential products liability theories—manufacturing defect,
design defect, and failure to warn. E.g., Lindstrom v. A-C Prod. Liab. Trust, 424
F.3d 488, 495 (6th Cir. 2005) (in manufacturing-defect case, rejecting liability
where “asbestos that [plaintiff] may have been exposed to in connection with
[defendant’s] product [was] attributable to some other manufacturer”); Sanders v.
Ingram Equip., Inc., 531 So. 2d 879, 880 (Ala. 1988) (in design-defect case, “a
distributor or manufacturer of a nondefective [product] is not liable for defects in a
product that it did not manufacture, sell, or otherwise place in the stream of
commerce”); Braaten v. Saberhagen Holdings, 198 P.3d 493, 498 (Wash. 2008)
(en banc) (describing “majority rule” as a “‘manufacturer’s duty to warn is
restricted to warnings based on the characteristics of the manufacturer’s own
products,’” not “‘products of others’”). And because the rule is premised on the
(continued…)
S.W.2d 225, 227-28 (Tex. App. 1990); Sanders v. Ingram Equip., Inc., 531 So. 2d
879, 880 (Ala. 1988); Loos v. Am. Energy Savers, Inc., 522 N.E.2d 841, 845 (Ill.
App. Ct. 1988); Searls v. Doe, 505 N.E.2d 287, 289-90 (Ohio Ct. App. 1986);
Shaw v. Gen. Motors Corp., 727 P.2d 387, 390-91 (Colo. App. 1986); Spencer v.
Ford Motor Co., 367 N.W.2d 393, 396 (Mich. Ct. App. 1985); Castaldo v.
Pittsburgh-Des Moines Steel Co., 376 A.2d 88, 90 (Del. 1977).
10
absence of a duty of care concerning another entity’s products, it also bars claims
sounding in negligence. See, e.g., O’Neil v. Crane Co., 266 P.3d 987, 1006-07
(Cal. 2012); Braaten, 198 P.3d at 501; see also, e.g., Walton v. Harnischfeger, 796
S.W.2d 225, 228 (Tex. App. 1990) (“[T]he absence of a duty” to warn about a
third party’s products “compels a summary judgment for [a manufacturer] based
upon its ‘no-duty’ ground[.]”).
B. Sound Public Policy Supports This General Rule
This rule makes eminent sense. Products liability law is premised on the
notion that manufacturers owe a duty to people who use their products, and that
strict liability “remove[s] the economic consequences of accidents from the victim
who is unprepared to bear them and place[s] the risk on the enterprise in the course
of whose business they arise.” Goldberg, 12 N.Y.2d at 440 (Burke, J., dissenting);
see also Codling, 32 N.Y.2d at 341. That risk thus “becomes part of the cost of
doing business and can be effectively distributed among the public through
insurance or by a direct reflection in the price of the goods or service.” Goldberg,
12 N.Y.2d at 440 (Burke, J., dissenting); see Codling, 32 N.Y.2d at 341.
But this rationale does not support extending liability to “one who was not
the manufacturer of the article or of its parts, who was not the vendor of the article,
who was not charged with its inspection and who made no representation with
regard to it.” Conway v. Marsh & McLennon, Inc., 310 N.Y.S.2d 455, 456 (1st
11
Dep’t 1970) (per curiam). Tort law therefore imposes liability only on parties that
actually cause harm, whether by designing, manufacturing, or selling a defective
product. Compare, e.g., Codling, 32 N.Y.2d 330; Goldberg, 12 N.Y.2d at 436-37,
with Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 297-98 (1992).
“[S]ound public policy” supports limiting the liability of a manufacturer to
its own products, even if a defective product is used in combination with the
manufacturer’s product. Westchem Agr. Chems. Inc. v. Ford Motor Co., 990 F.2d
426, 430 (8th Cir. 1993). As the Restatement notes, to do otherwise would be both
“unjust and inefficient.” Restatement (Third) of Torts: Prods. Liab. § 5 cmt. a. It
would be unjust because the manufacturer of the safe product will “ha[ve] derived
no benefit from [the] sale” of the defective product. Baughman v. Gen. Motors
Corp., 780 F.2d 1131, 1133 (4th Cir. 1986); see also O’Neil, 266 P.3d at 1007
(“[L]ittle moral blame can attach to a failure to warn about dangerous aspects of
other manufacturers’ products.”). And it would be inefficient because a party
outside the defective product’s distribution chain will have no “opportunity to test,
evaluate, and inspect” other manufacturers’ products, Baughman, 780 F.2d at 1133,
making it extremely costly to impose a duty on that party. See Restatement (Third)
of Torts: Prods. Liab. § 5 cmt. a. By contrast, imposing liability on manufacturers
and distributors of defective products makes sense, because they are the ones most
knowledgeable about, and most able to ensure the safety of, their own products.
12
See Codling, 32 N.Y.2d at 340-41; see generally James A. Henderson, Jr., Sellers
of Safe Products Should Not Be Required To Rescue Users From Risks Presented
By Other, More Dangerous Products, 37 SW. U. L. REV. 595 (2008).
II. THERE ARE NO APPLICABLE EXCEPTIONS TO THE RULE
THAT A DEFENDANT IS ONLY LIABLE FOR PRODUCTS IT
MANUFACTURES OR SELLS
There is no basis for departing from the rule that a defendant is only liable
for products it manufactures or sells. This Court has rejected the argument that
foreseeability gives rise to a duty to warn about products manufactured and sold by
third parties. Moreover, under the circumstances of this case, imposing a duty to
warn about third party’s products would contravene public policy.
A. A Defendant Has No Duty To Warn About Foreseeable Harms
Caused By Third Parties’ Products
1. New York courts have routinely refused to impose a duty to warn
about products that a defendant did not manufacture or sell—even when the use of
a third party’s harmful product in combination with the defendant’s own product is
foreseeable.
In Rastelli, the plaintiff’s decedent was killed while inflating a nondefective
tire manufactured by Goodyear when the multipiece tire rim, which Goodyear did
not manufacture, separated explosively. Goodyear’s tire was compatible with
some multipiece tire rims, and the plaintiff submitted evidence that Goodyear
knew that all such tire rims had a propensity to explode. 79 N.Y.2d at 294. Given
13
Goodyear’s knowledge that multipiece tire rims were dangerous and that third
parties often used such rims with Goodyear’s tires, it was foreseeable that someone
might be injured while using the multipiece tire rim in combination with
Goodyear’s tires. Nevertheless, because “Goodyear [did not] create[] the
dangerous condition,” this Court refused to impose a duty to warn. Id. at 298.
Likewise, in Tortoriello v. Bally Case, 606 N.Y.S.2d 625 (1st Dep’t 1994),
the court held that the manufacturer of a walk-in freezer had no duty to warn about
the dangers of a quarry tile floor that it did not manufacture or supply. The use of
a quarry tile floor was foreseeable: The defendant’s “own literature depicted
quarry tile as one of three available floor materials for walk-in freezers.” Id. at 627.
But the defendant’s knowledge that some people would install quarry tile floors
was not sufficient to create a duty to warn. See id.
Other cases similarly reject the notion that foreseeability can give rise to a
duty. See, e.g., Greenberg v. Larox, Inc., No. 11-cv-6524, 2015 WL 6457046
(W.D.N.Y. Oct. 26, 2015) (defendant not liable for injuries caused by third-party
product recommended by defendant for use with defendant’s own product); In re
Eighth Judicial Dist. Asbestos Litig. (In re Drabczyk), 938 N.Y.S.2d 715 (4th
Dep’t 2012) (defendant not liable for injuries caused by asbestos manufactured and
supplied by third parties and used in combination with defendant’s products);
Surre v. Foster Wheeler LLC, 831 F. Supp. 2d 797, 801 (S.D.N.Y. 2011) (“Even if
14
the defective product is one of a limited number of third-party products that the
manufacturer knows will be used in conjunction with its own, no duty arises so
long as the manufacturer played no part in selecting the defective product.”);
Hansen v. Honda Motor Co., 480 N.Y.S.2d 244, 245-46 (2d Dep’t 1984)
(motorcycle manufacturer not liable for injuries caused by replacement rear wheel
and replacement wheel spokes, however foreseeable the use of such replacement
parts may have been); Kaloz by Kaloz v. Risco, 466 N.Y.S.2d 218, 220 (N.Y. Sup.
Ct. 1983) (pool manufacturer had no duty to warn about defective ladder
manufactured by third party even though the use of a ladder was “a sine qua non”
to the use of the pool).
These cases reaffirm that “[f]oreseeability should not be confused with duty.”
Pulka, 40 N.Y.2d at 785. Foreseeability “merely determines the scope of the duty
once it is determined to exist,” Hamilton, 96 N.Y.2d at 232, and it is “inapplicable”
where there is “no duty,” Pulka, 40 N.Y.2d at 785. See also Matter of New York
City Asbestos Litig. (Holdampf v. A.C. & S., Inc.), 5 N.Y.3d 486, 494 (2005)
(“[F]oreseeability bears on the scope of a duty, not whether a duty exists in the first
place[.]”). Thus, because a defendant does not have a duty to warn about third-
party products in the first place, it is irrelevant that such third-party products
foreseeably may be used with a defendant’s product. See Pulka, 40 N.Y.2d at 785.
15
2. There is some confusion in lower New York courts about whether a
defendant’s knowledge that a third party’s harmful product will be used in
combination with the defendant’s sound product triggers a duty to warn. In other
words, some courts have suggested that when the use of a third party’s harmful
product is certain rather than simply foreseeable, there may be grounds for
creating an exception to the rule that defendants are responsible only for their own
products. Those lower courts are wrong.
For example, in Berkowitz v. A.C. & S., Inc., 733 N.Y.S.2d 410, 411 (1st
Dep’t 2001), the First Department concluded that a pump manufacturer may have a
“duty to warn concerning the dangers of asbestos that it neither manufactured nor
installed on its pumps.” The one-paragraph order contains little analysis to support
its departure from well-settled tort principles; however, the court appears to have
created a duty because “the government provided certain specifications involving
insulation,” and “it [was] at least questionable whether pumps transporting steam
and hot liquids on board a ship could be operated safely without insulation.” Id.
Relying on Berkowitz, some lower courts in New York have held that a defendant
is liable for injuries caused by asbestos products it neither manufactured nor
supplied if the defendant “knew” that such products would be used with its own.
See, e.g., Matter of Eighth Judicial Dist. Asbestos Litig. (Holdsworth v. A.W.
Chesterton Co.), 11 N.Y.S.3d 397, 398-99 (4th Dep’t 2015); Matter of New York
16
City Asbestos Litig., 36 Misc.3d 1234(A), at *4 (N.Y. Sup. Ct. 2012); Sawyer v.
A.C. & S., Inc., 32 Misc.3d 1237(A) (N.Y. Sup. Ct. 2011); see also Curry v. Am.
Standard, No. 7:08-CV-10228, 2010 U.S. Dist. LEXIS 142496, at *5-6 (S.D.N.Y.
Dec. 6, 2010).
Berkowitz, in turn, relied on the First Department’s decision in Rogers v.
Sears, Roebuck & Co., 701 N.Y.S.2d 359 (1st Dep’t 2000), which held that a grill
manufacturer had a duty to warn about the dangers of a defective propane tank that
it did not make or supply. There is no basis, however, for extending Rogers to the
asbestos context. The grill manufacturer did, in fact, undertake to warn about the
risk of explosion, and the court found that, having done so, it had a duty to make
its warnings adequate. See id. at 360; see also Parvi v. City of Kingston, 41
N.Y.2d 553, 559 (1977) (“[E]ven when no original duty is owed to the plaintiff to
undertake affirmative action, once it is voluntarily undertaken, it must be
performed with due care.”). Moreover, the grill manufacturer’s warning reflected
its awareness of the danger created by the combination of the grill and a propane
tank—a danger that neither product would have caused on its own. See Rogers,
701 N.Y.S.2d at 360. Rogers is thus inapposite in the context of asbestos cases,
where the asbestos—and the asbestos alone—causes the injury.3
3 For similar reasons, Respondent’s reliance on Sage v. Fairchild-
Swearingen Corp., 70 N.Y.2d 579 (1987), is likewise misplaced. In Sage, a
17
More important, Rogers does not stand for the proposition that knowledge or
certainty gives rise to a duty where none would otherwise exist—a notion that is
wrong as a matter of New York law and public policy. As an initial matter, the
line between foreseeability and known certainty is fuzzy at best. Surely it could be
said that the defendant in Tortoriello “knew” that at least some purchasers of its
freezers would install quarry tile floor. After all, walk-in freezers require some
sort of floor, and the defendant’s own literature depicted quarry tile as one of three
available floor materials. 606 N.Y.S.2d at 627. Similarly, the defendant in Rastelli
“knew” that at least some individuals would use its tires with defective multipiece
rims: The tire was compatible with 24 different models of multipiece rims, and the
plaintiff presented evidence indicating that Goodyear was aware that all such rims
(continued…)
plaintiff caught her finger in a ladder hanger on the doorframe of an airplane’s
cargo compartment. Id. at 583. This Court held that the defendant, who designed
and manufactured the cargo compartment, including the placement of the hanger,
could be liable for the injury even though the hanger involved in the accident was a
replacement manufactured by a third party. Id. at 583-87. Importantly, the
“plaintiff’s claim was based both on the defective design of the hanger and of the
doorway to the cargo compartment,” and the jury found that “it was the
manufacturer’s defective design—both of the hanger and of the compartment
doorway—which caused the injury.” Id. at 584, 586-87 (emphasis added). Thus,
Sage is simply a straightforward application of the rule that a defendant is liable
for harmful products that it manufactures. It does not support imposing liability on
Crane here, where Mr. Dummitt’s injuries were caused exclusively by asbestos that
Crane neither manufactured nor supplied. See Greenberg, 2015 WL 6457046
(defendant not liable for injuries caused exclusively by third-party’s product, even
though that product was used with the defendant’s own product).
18
had a propensity to explode. 79 N.Y.2d at 294. Yet this Court refused to depart
from the general rule that a defendant has no duty to warn about dangers presented
by a third party’s product.
3. Furthermore, sound public policy counsels against creating a duty to
warn about other parties’ products based on a defendant’s knowledge that such
products will be used in combination with its own. Most safe products foreseeably
can be used with some harmful product. If manufacturers were required to
anticipate and warn about all products that might be used in connection with their
own, then a “syringe manufacturer would be required to warn of the dangers of any
and all drugs it may be used to inject, and the manufacturer of bread would be
required to warn of peanut allergies, as a peanut butter and jelly sandwich is a
foreseeable use of bread.” Thomas W. Tardy, III & Laura A. Frase, Liability of
Equipment Manufacturers for Products of Another: Is Relief in Sight?, Harris-
Martin Columns, May 2007, at 6. In addition to creating “potentially limitless
liability,” Hamilton, 96 N.Y.2d at 233, this would lead to “legal and business
chaos,” John W. Petereit, The Duty Problem With Liability Claims Against One
Manufacturer for Failing to Warn About Another Manufacturer’s Product, TOXIC
TORTS & ENV’TL L. 7 (Winter 2005). Moreover, “[r]equiring too many warnings
trivializes and undermines the entire purpose of the rule, drowning out cautions
19
against latent dangers of which a user might not otherwise be aware.” Liriano v.
Hobart Corp., 92 N.Y.2d 232, 242 (1998).
These same concerns apply with equal force where a third-party product
replaces something that the defendant originally supplied or is a necessary
component of a defendant’s own product. See O’Neil, 266 P.3d at 996 n.6. A
defendant has no ability to control the manufacture of third-party replacement parts,
nor does it derive any benefit from their sale. See Baughman, 780 F.2d at 1113.
Rather than diffusing the risk of making or selling defective replacement parts,
products-liability law appropriately channels liability to the parties actually
responsible for them, thereby incentivizing those parties to develop safer
alternatives, warn about necessary dangers, or stop selling dangerous products.
The same is true where the third-party part is a purportedly “necessary” component:
The law appropriately discourages parties from making and selling defective parts
by ensuring that only those parties are liable for any resulting injuries. Moreover,
imposing liability based on whether a given third-party product is “necessary” or
“required” inevitably would lead to unpredictable and inconsistent results: A given
product may be “necessary” or “required” for a host of reasons (e.g., efficiency,
cost, consumer preference), but that does not mean that a defendant’s product
cannot operate without it.
20
B. This Court Should Not Create An Exception To These General
Rules
The societal costs of imposing a duty on Crane to warn about third parties’
products would far outweigh any potential benefits. See Hamilton, 96 N.Y.2d at
236 (“[A]ny judicial recognition of a duty of care must be based upon an
assessment of its efficacy in promoting a social benefit as against its costs and
burdens.”).
1. Concerns about unlimited liability are particularly acute in
the maritime warfare context
As an initial matter, the public policy concerns that support the rule that a
defendant has a duty warn only about products it manufactures or sells are
particularly acute when the products at issue are manufactured for Navy ships:
“On a ship most things are connected to other things,” so any attempt to hold one
manufacturer liable for another’s products would “implicate[] a broad[er] class of
potential sources of exposure” than in the more typical land-based context. Stark v.
Armstrong World Indus., Inc., 21 F. App’x 371, 381 (6th Cir. 2001). In addition,
ships and engines are made to last for decades. It is thus especially unreasonable
to expect a manufacturer “to anticipate improper installation of all foreseeable
aftermarket equipment [to its products,] and to ironclad [them] against every
conceivable harm from [the] improper installation” of another manufacturer’s
defective product. Westchem, 990 F.2d at 430.
21
Moreover, a party’s inability to “control the conduct of third persons” is
particularly limited in this context, where the Navy designed each component of its
ships in order to achieve its military goals. Hamilton, 96 N.Y.2d at 233. Warship
insulation, for example, needed to be both lightweight and fire resistant. Bureau of
Ships Manual, Chapter 39, Thermal Insulation § 39-3 (Aug. 24, 1945); P.A.
Laidlaw, Thermal Insulation on Ships, Bureau of Ships J. (Mar. 1956, Vol. 4, No.
11) at 2. The Navy determined that asbestos was uniquely capable of meeting its
defense needs, and it found competing materials to be inadequate. See, e.g.,
Memorandum from A.L. Becker, Commander, San Francisco Naval Shipyard, to
Chief, Bureau of Ships regarding Thermal Insulation (Nov. 6, 1950); Letter from
War Production Board (July 10, 1042) (concluding that non-asbestos material was
“unsuitable for use in the Naval Service”); J. LeRoy Balzer, Industrial Hygiene for
Insulation Workers, U.S. Navy Medical New Letter Vol. 51, No. 10 (May 24, 1958)
(“[F]or maritime construction …, there [was] no economical or desirable substitute
for asbestos insulation products.”). Indeed, asbestos was so valuable that it was
one of only fifteen commodities deemed “critical” to the United States’ efforts
during World War II. See U.S. War Production Board, Strategic and Critical
Materials List (Jan. 30, 1940).
22
Imposing a duty to warn about third parties’ products would be especially
unfair when the Navy specifically chose those products to advance national
defense policy.
2. The Navy’s knowledge regarding the dangers of asbestos
was “state-of-the-art”
Furthermore, there is no reason to impose a duty to warn about dangers
associated with third parties’ products when the government, as purchaser, already
knows about those dangers. Imposing a duty to warn in that context would make
little sense, and it would be particularly unfair to shift the economic risk of such
products to an entity that did not make or sell them.
Indeed, when the government purchases a product that it knows is harmful,
even the actual supplier of that product does not have a duty to warn about its
dangers. The government contractor defense shields suppliers from liability “when
there is evidence in the record that the government knew about the problem and
there is no evidence that the contractor withheld any additional information about
the problem.” Miller v. United Techs. Corp., 660 A.2d 810, 835 (Conn. 1995); see
Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988) (government contractor
defense applies where “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”); see also, e.g., Stout v. Borg-Warner Corp., 933 F.2d 331, 336 (5th Cir.
1991); Quiles v. Sikorsky Aircraft, 84 F. Supp. 2d 154, 170 (D. Mass. 1999);
23
Sundstrom v. McDonnell Douglas Corp., 816 F. Supp. 587, 590 (N.D. Cal. 1993).
For that reason, “[a] defendant is not required to warn the government where the
government knew as much or more than the defendant contractor about the hazards
of the product.” Albrecht v. A.O. Smith Water Prods., No. 11-civ-5990, 2011 WL
5109532, at *5 (S.D.N.Y. Oct. 21, 2011) (internal quotation marks omitted). In
other words, where the government has “sufficient parity” of knowledge, a supplier
has no duty to warn of dangers. Yeroshefsky v. Unisys Corp., 962 F. Supp. 710,
721 (D. Md. 1997); see also MacQueen v. Union Carbide Corp., No. 13-831, 2013
WL 6571808, at *11 (D. Del. Dec. 13, 2013).
There is no question that the Navy was well aware of the dangers of asbestos
by 1960, when Mr. Dummitt was allegedly first exposed. Dummitt v. Crane Co.,
990 N.Y.S.2d 174, 179 (1st Dep’t 2014). Indeed, “the Navy recognized such
health hazards as early as 1922,” and in 1939, the Surgeon General of the U.S.
Navy released an annual report describing the dangers of asbestos and asbestosis.
MacQueen, 2013 WL 6571808, at *11; Albrecht, 2011 WL 5109532, at *2; Annual
Report of the Surgeon General, U.S. Navy at 24 (1939). In a November 1940
address, Navy Medical Corps Captain Ernest W. Brown stated that asbestosis was
“one of the chief potential occupational health hazards in Navy Yards.” E.W.
Brown, Industrial Hygiene and the Navy in National Defense, War Medicine 3, 11-
12 (Jan. 1941). Several Navy publications from the early 1940s likewise
24
“acknowledge[d] the health hazards of asbestos exposure.” Albrecht, 2011 WL
5109532, at *2 (discussing Navy Medical Bulletin and Minimum Requirements for
Safety and Industrial Health for Contract Shipyards). And in 1946, Dr. Philip
Drinker of the Harvard School of Public Health published a report commissioned
by the Navy that discussed asbestosis, “a well-known industrial disease caused by
only one thing—prolonged breathing of asbestos dust.” Fleischer, et al., A Health
Survey of Pipe Covering Operations in Construction of Navy Vessels, 28 J. of
Industrial Hygiene & Toxicology, 1:9-16 (Jan. 1946).
In light of these and dozens of other official Navy documents, courts have
repeatedly concluded that the Navy’s knowledge of the dangers associated with
asbestos was “state of the art” and that “by 1940 [it] was a leader in the field of
occupational medicine relating to, among other things, asbestos exposure.”
Olschewske v. Asbestos Defendants (B-P), No. C 10-1729 PJH, 2010 WL 3184317,
at *3 (N.D. Cal. Aug. 11, 2010); 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) (“Navy ‘was well aware of the health hazards
associated with the use of asbestos from the early 1920s[.]’”); Ferguson v.
Lorillard Tobacco Co., 475 F. Supp. 2d 725, 730-31 (N.D. Ohio 2007) ( “[N]aval
publications such as ‘Instructions to Medical Officers’ in a U.S. Naval Bulletin
from 1922, the 1939 Handbook of the U.S. Navy Hospital Corps., and the 1939
25
Annual Report of the Surgeon General of the United States Navy … recognize[]
asbestos as hazardous[.]”). In fact, the Navy adopted a permissible exposure level
for asbestos more than 16 years before the federal government adopted one under
OSHA. BUMED Memorandum, Threshold limit values for toxic materials (Nov. 7,
1955). It had also “outlined steps to prevent exposure to asbestos” by the 1940s.
MacQueen, 2013 WL 6571808, at *11; see Navy Dep’t, Manual of Instructions for
Purchase & Administration of Insurance on Navy Department Contracts 39-40
(1943) (“Operations with asbestos can be safely performed if the dusty work is
segregated and if ventilation hoods enclosing the process … are furnished or
special respirators are worn.” ); Norfolk Navy Yard, Commander’s Order No.
21/40 (Apr. 11, 1940) (“All Navy Yard employees who are assigned permanent or
part time work in … amosite, asbestos, … [or] pipe covering” were engaged in
“[h]azardous [w]ork” and required monthly examinations and semi-annual x-ray
examinations.).
Because the Navy was independently aware of the hazards of asbestos,
suppliers like Crane had no duty to warn about those products. See, e.g., Boyle,
487 U.S. at 512; Stout, 933 F.2d at 336. And indeed, imposing any such duty in
this context would not make sense: In light of the Navy’s knowledge, the Navy—
and not military contractors—was in the best position to warn its workers about the
dangers of asbestos.
26
Respondent is thus incorrect to suggest that Crane had a duty to warn
regarding any original asbestos materials that were allegedly contained in Crane’s
valves. See Resp. Br., 5, 45-47. And if Crane had no duty to warn against dangers
of asbestos products that it actually supplied to the Navy, then it certainly has no
duty to warn against dangerous products supplied by third parties. Imposing a
duty to warn about a third party’s product would be particularly unjust where the
third party itself has no such duty. It would also be inefficient: In light of the
Navy’s state-of-the-art knowledge about asbestos, there is no reason to impose
liability on parties outside a product’s distribution chain who have no “opportunity
to test, evaluate, and inspect” other manufacturers’ products. Baughman, 780 F.2d
at 1133.
3. It is unlikely that Mr. Dummitt would have or could have
heeded any warning issued by Crane
There is also no reason to create a duty to warn where, as here, there are
serious questions as to whether any such warning would have been heeded.
A plaintiff asserting a failure-to-warn claim bears a heavy burden to prove
that his injury would not have occurred had a proper warning been given. This
“includes adducing proof that the user of a product would have read and heeded a
warning had one been given.” Sosna v. Am. Home Prods., 748 N.Y.S.2d 548, 549
(1st Dep’t 2002); see also, e.g., Mulhall v. Hannafin, 841 N.Y.S.2d 282, 287 (1st
Dep’t 2007). Here, there is no evidence that Mr. Dummitt sought out labels or
27
instructions for products he encountered while in the Navy. He merely asserted
that he would have obeyed warnings had he received them. (See R. 5678.)
Notwithstanding Mr. Dummitt’s bald assertion, it is unlikely that he would
have been able to heed any warnings as a practical matter. Indeed, the Navy was
not following its own safety protocols regarding asbestos, which included
segregation of dusty work, ventilation requirements, and the use of respirators. See
Note, Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,
67 N.Y.U.L. REV. 1034, 1058-59 (1992) (discussing evidence that Navy rarely
followed its own safety protocols regarding asbestos). If the Navy was not
following its own safety guidelines, there is no reason to believe that it would have
implemented safety procedures based on a vendor’s warning.
Under these circumstances, individual workers like Mr. Dummitt would
have had a difficult time implementing safety procedures dictated by a vendor’s
warning. Members of the Navy have little choice but to obey their officers’
commands. See Enlistment Agreement (“As a member of the Armed Forces of the
United States, I will be: (1) Required to obey all lawful orders and perform all
assigned duties.”). Every soldier is required to adhere to the mantra, “There is the
right way, the wrong way, and the Navy way,” and “the efficiency and safety of
the Navy—and, therefore, of the nation—depend on each man doing his duty in the
right place at the right time.” John T. Finnegan, Everyman’s Story 12 (Eloquent
28
Books 2009) (describing author’s experience in the Navy during World War II);
Bluejackets’ Manual at 46. Moreover, it would be logistically and financially
impractical for the Navy to permit workers to depart from Navy protocol on an
individualized basis. Against this backdrop, the trial court’s improper instruction
that the jury should presume that Mr. Dummitt would have heeded a warning was
particularly prejudicial. See Dummitt, 990 N.Y.S.2d at 196 (Friedman, J.,
dissenting).
For all these reasons, it is far from clear that Mr. Dummitt could have or
would have heeded any warnings from Crane. In this context, the costs of
imposing a duty to warn about a third party’s harmful product far outweigh the
social benefits. See Hamilton, 96 N.Y.2d at 232 (“[A]ny extension of the scope of
duty must be tailored to reflect accurately the extent that its social benefits
outweigh its costs.”); Restatement (Third) of Torts: Prods. Liab. § 5 cmt. a
(extending duty to warn about products manufactured and sold by others imposes
unnecessary costs).
4. There are serious questions whether the Navy would have
allowed any such warning in the first place
In addition, there is no reason to impose duty to warn about third parties’
products on a government contractor, decades after the fact, where there are
serious questions as to whether the government would have allowed any such
warning in the first place.
29
Navy specifications strictly limited the labeling requirements for hazardous
materials, as well as the content of technical manuals, information plates, and
safety materials. The Navy specifications governing identification and information
plates for turbines and valves stipulated exactly which information should be
included. See Military Specification—Identification Plates, Information Plates and
Marking Information for Identification of Electrical, Electronic, and Mechanical
Equipment (MIL-I-I5024 (SHIPS)). Government contractors that failed to comply
with those specifications, particularly in a wartime setting, risked criminal
penalties. See Burke-Wadsworth Act, Pub. L. No. 76-783, 54 Stat. 885 (Sept. 16,
1940); see also Ferguson, 475 F. Supp. 2d at 730 (government contractors “could
not deviate from Navy specifications during a time of war”).
Importantly, as Crane attempted to demonstrate, those specifications did not
permit private manufacturers to warn regarding the dangers of asbestos. See
Dummitt, 990 N.Y.S.2d at 197 (Friedman, J., dissenting); see also, e.g., Ruppel v.
CBS Corp., 701 F.3d 1176, 1185 (7th Cir. 2012) (testimony that “the Navy did not
‘want any change in the specifications [regarding asbestos] as the performance
with the present materials was entirely satisfactory’”); Harris, 532 F. Supp. 2d at
1005 (testimony 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”); cf. Cuomo v. Crane
30
Co., 771 F.3d 113, 117 (2d Cir. 2014) (“[T]he Navy issued detailed and
comprehensive specifications regarding the production and packaging of its
valves—specifications that for all their particularity made no mention of asbestos
warnings.”). Indeed, in 1945, the Navy considered and rejected offers by
manufacturers of asbestos insulation to provide precautions regarding the use of
their insulation, stating that it saw no need to revise its own specifications to permit
such supplier-supplied warnings. 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).
In this context, it is far from clear that government contractors like Crane
could have warned individuals like Mr. Dummitt about the dangers of third parties’
asbestos-containing products. It is particularly unjust to impose a duty to warn
about a third party’s products based on speculation as to how the Navy would have
reacted to hypothetical warnings proposed by government contractors
approximately 50 years ago. There is no good reason to extend the duty to warn to
include products that a defendant did not manufacture or sell when there is doubt
that the defendant was even capable of satisfying such a duty in the first place.
5. Imposing a duty to warn is antithetical to the government
contractor defense
Finally, imposing a duty on Crane to warn about third parties’ products
would create a conflict between New York and federal law. Assuming that Crane
31
participated in writing the Navy’s manual for machinery and provided detailed
design drawings, see Dummitt, 990 N.Y.S.2d at 190, it engaged in exactly the sort
of “active contractor participation” that the government contractor defense is
designed to protect, Boyle, 487 U.S. at 513.
In Boyle, the U.S. Supreme Court held that a government contractor is not
liable under state law for defects in military equipment when “(1) the United States
approved reasonably precise specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United States about the dangers in
the use of the equipment that were known to the supplier but not to the United
States.” Id. at 512.
Under Boyle, a government contractor is protected from liability even when
it plays a role in developing the allegedly defective design and even if the
government did not specifically prohibit the warnings at issue. The government
need only “approve[] reasonably precise specifications.” Id. Although that
approval must “‘transcend rubber stamping’ to allow a defendant to be shielded
from state law liability,” a defendant need not show that “the Navy specifically
forbade the manufacturer from placing warnings on its products.” Hanson v.
ACandS, Inc., No. 2:09-66701, 2011 WL 5458366 at *1, n.1 (E.D. Pa. June 23,
2011); see also, e.g., Cuomo, 771 F.3d at 116 (rejecting argument that federal
contractor defense requires “evidence that the Navy prohibited or actively
32
prescribed the content of any proposed asbestos labels”); Ruppel, 701 F.3d at 1185
n.2 (rejecting argument that “the government contractor defense requires the Navy
to have precluded adequate warnings”); Tate v. Boeing Helicopters, 55 F.3d 1150,
1157 (6th Cir. 1995) (government contractor need not prove that government
prohibited warnings).
Importantly, a government contractor benefits from this defense even when
it developed the allegedly defective design or collaborated with the government in
developing that design. Indeed, the government contractor defense is intended to
protect precisely these sorts of interactions. In Boyle, for example, the government
contractor “worked together” with the Navy “to prepare detailed specifications for
the … helicopter,” and the contractor “built a mock-up of the cockpit with all the
instruments and controls, including … [the allegedly defective] emergency escape
hatch.” Boyle v. United Techs. Corp., 792 F.2d 413, 414-15 (4th Cir. 1986) (per
curiam).
Imposing a duty on Crane to warn about third parties’ products would
“penalize, and thus deter” the very collaboration that the government contractor
defense is designed to protect. Boyle, 487 U.S. at 513.
33
III. THE FIRST DEPARTMENT ERRED BY IMPOSING A DUTY ON
CRANE TO WARN ABOUT THIRD PARTIES’ PRODUCTS
The First Department created an exception to the rule that a defendant is not
liable for a third party’s products, and imposed a duty to warn about such products
when a manufacturer has “a sufficiently significant role, interest, or influence in
the type of component used with its product after it enters the stream of commerce.”
Dummitt, 990 N.Y.S.2d at 189. None of the First Department’s reasons justifies
this result.
First, the court observed that Crane sold some asbestos-containing products,
branded as “Cranite.” Id. at 190. But that is irrelevant because Mr. Dummitt was
never exposed to any Cranite products. See id. at 195 n.3 (Friedman, J.,
dissenting). The relevant question is whether Crane had a duty to warn about the
products that actually caused Mr. Dummitt’s injury; it is not whether Crane
manufactured or sold any products that are similar to the ones that injured him.
See Surre, 831 F. Supp. 2d at 803 (defendant’s marketing of asbestos insulation
was immaterial to its liability for asbestos products manufactured and sold by
others).
By suggesting that Crane is liable for third parties’ products because Crane
itself sold similar products, the First Department improperly applied market-share
liability. Based on this reasoning, plaintiffs could sue any defendant who
manufactured or sold any product similar to the one that caused their injury—a
34
radical departure from well-settled products liability law. See 1-3 Products
Liability § 3.06 (“Numerous courts … have consistently held that asbestos is
inappropriate for the market share liability theory.” (collecting cases)). That result
is inconsistent with Rastelli, where this Court refused to impose liability even
though the defendant in that case manufactured multipiece rims similar to the one
that had injured the decedent, had lobbied against a proposed ban on such rims,
and had refused to recall its own multipiece rims despite knowledge of the hazard.
79 N.Y.2d at 294, 296.
Second, the court determined that it was appropriate to impose a duty on
Crane because Crane allegedly helped write the Navy’s manual for machinery in
1946, “which specifically directed the use of asbestos for insulation,” and because
“Crane provided the Navy with detailed drawings specifying the components to
use with each valve,” many of which “contemplated the use of asbestos.”
Dummitt, 990 N.Y.S.2d at 190. As Crane argues, the evidence does not support
the First Appellate Division’s conclusions. See App. Br., 48-54. Moreover, design
drawings incorporating or reflecting the Navy’s own specifications requiring the
use of third-party asbestos components are an insufficient basis for imposing
liability. Cf. Davies v. Ferentini, 914 N.Y.S.2d 17, 19 (1st Dep’t 2010)
(“[P]roviding construction drawings [regarding highway guard rail] pursuant to the
[Department of Transportation’s] directives, review, inspection and approval, do
35
not rise to the requisite standard of creating a dangerous condition so as to be
deemed to have launched a force or instrument of harm[.]”).
In fact, evidence that Crane collaborated with the Navy in the design of
Navy equipment would cut directly against liability. By creating a new duty under
these circumstances, the First Department punished Crane for collaborating closely
with the Navy in its design of warships. In other words, the Court created a new
rule of tort liability that penalizes the very behavior that the U.S. Supreme Court
sought to incentivize in Boyle through the government contractor defense. See
Boyle, 487 U.S. at 513. This antithetical result, which is by no means limited to
the asbestos context, will have significant ramifications for federal contractors
doing business in New York. Faced with the prospect of encountering state-law
tort liability decades later, New York businesses will either hesitate to participate
in government contracts or leave New York. There is no basis for creating a new
duty that leads to this undesirable and anomalous result.
CONCLUSION
For the foregoing reasons, the Court should reverse the decision of the First
Department and direct entry of judgment for Crane Co.
Dated: March 18,2016
36
Respectfully Submitted,
Emily J. Kennedy
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
Tel: (202) 879-3939
Fax: (202) 626-1700
Christopher G. Conley
EVERT WEATHERSBY HOUFF
200 Cleveland Road, Suite 6
BonaM- r!aorg; r) 'H\J;;:22 o 1. 1.., '-J~ 1." JVV
Tel: (706) 389-7300
Fax: (706) 389-7301
Counsel for Amicus Curiae