Virginia Lawyers Weekly VA Lawyers Weekly
Where an engineering manufacturer intends to rely upon the government contactor defense in an asbestos suit, it must present evidence of the government’s knowledge about the asbestos hazards presented by the manufacturer’s products or equipment, and not just the government’s knowledge about the hazards of asbestos generally.
Background
On Nov. 8, 2021, plaintiff filed an objection to the magistrate judge’s ruling that by allowing defendant John Crane Inc., or JCI, to present evidence of the Navy’s knowledge about the hazards of asbestos generally, instead of the Navy’s knowledge about the asbestos hazards presented by JCI’s products, he “essentially rewrote the third element” of the government contractor defense “to permit a much broader array of evidence than is relevant to proof of this defense.”
Analysis
Suggesting that JCI could satisfy the third prong of the government contractor defense by only presenting evidence of the Navy’s general knowledge about the hazards of asbestos without connecting that knowledge to the JCI products at issue is contrary to the plain text and application of the test. For example, if JCI manufactured asbestos-containing ballpoint pens instead of asbestos-containing gaskets and packaging, the Navy would not be served at all by its knowledge about the health risks of asbestos without the Navy also being privy to the asbestos risk presented by JCI’s ballpoint pens or ballpoint pens generally.
Therefore, it is JCI’s burden to prove under the third prong of the defense that the Navy knew that JCI’s gaskets and packaging presented an asbestos risk and the Navy proceeded to use the products without warning labels anyway. JCI could potentially meet this burden by demonstrating that the Navy was aware of the asbestos risk presented by gaskets and packaging generally, as the defendants did in Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir. 2017), with respect to boilers.
The inquiry, however, is still tailored to the government’s knowledge about how specific products or “equipment” relate to a particular hazard. Nothing in Sawyer supports broadening that standard beyond its plain text to include the government’s knowledge about a hazard generally, unrelated to the product at issue.
Plaintiff’s objection sustained in part. Magistrate judge’s order vacated in part.
Mullinex v. John Crane Inc., Case No. 4:18-cv-00033, May 23, 2022. EDVA at Newport News (Jackson). VLW 022-3-228. 6 pp.
