United States District Court, N.D. New York
MICHAEL COHAN, ESQ., KARDON A. STOLZMAN, ESQ., NAPOLI BERN RIPKA SHKOLNIK & ASSOCIATES LLP, New York, New York, Attorneys for Plaintiffs.
ANGELA DIGIGLIO, ESQ., ERIC R.I. COTTLE. ESQ., NICOLE M. KOZIN, ESQ., K & L GATES LLP., New York, New York, Attorneys for Defendant Crane Co.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, Jr., Chief District Judge.
Although Plaintiffs' complaint contains six causes of action, only their first cause of action for negligence, their third cause of action for failure to warn as it relates to Plaintiff Dwight Crews' exposure to asbestos aboard a military vessel, and their sixth cause of action for loss of consortium apply to Defendant Crane Co. Currently before the Court is Defendant Crane Co.'s motion for summary judgment. See Dkt. No. 112. Plaintiffs oppose this motion. See Dkt. No. 138. The Court heard oral argument in support of, and in opposition to, this motion on December 11, 2013, and reserved decision at that time. The following is the Court's written disposition of the pending motion.
Plaintiff Dwight Crews (hereinafter referred to as "Plaintiff") suffers from malignant mesothelioma. Plaintiff served in the U.S. Navy from 1965 to 1971. He served aboard the USS Wright for six months in 1966. He entered as a fireman apprentice and was promoted to fireman. Aboard the USS Wright, Plaintiff worked in close proximity to senior officers in the engine room who performed maintenance on pumps and valves.
Plaintiff achieved the rank of Second Class Petty Officer Machinist Mate. After completing nuclear training, he served as a Machinist Mate Second Class aboard the USS Bainbridge from approximately 1968 to 1971. Aboard the USS Bainbridge, Plaintiff was responsible for maintenance and repair of equipment that included pumps and valves.
Plaintiff alleges that he was exposed to asbestos while he worked on, and in the direct vicinity of other naval officers who performed work on, asbestos-containing Crane gaskets on both the USS Wright and USS Bainbridge. Plaintiff states that he knew the gaskets were asbestos through his experience and training in the Navy. He asserts that he worked with gaskets that Defendant Crane manufactured at least once a day. He knew that they were Crane gaskets because the name "Crane" was written on the gasket material. He describes the gasket as a "fibrous material" put in between flanges, or valve casings, where the two halves of the casing come together in order to prevent leakage. Plaintiff cut the gaskets with a ball-peen hammer, which created dust that he breathed. He also removed gaskets from Crane valves with either a paint scraper or a wire brush, which created dust that he breathed.
Furthermore, Plaintiff asserts that he knew that the valves with which he worked were Crane valves because the name Crane was on the valve casing. Plaintiff removed and was in direct vicinity of other officers who removed Crane gaskets from the internal bonnet of Crane valves, which created dust that he breathed on many occasions. Finally, Plaintiff states that he was exposed to asbestos-containing packing materials through his work with Crane valves. He pulled asbestos packing from the packing glands of Crane valves, which created dust that he breathed. He performed this work numerous times, as well as working in the direct vicinity of others who removed packing from Crane valves that created dust that he breathed.
A. Applicable law
Whether maritime law or New York law applies to Plaintiff's claims against Defendant Crane Co. is a threshold determination that is a question of federal law[.] See Floyd v. Air & Liquid Sys. Corp., MDL No. 875, 2012 WL 975615, *1 (E.D. Pa. Feb. 8, 2012) (citing U.S. Const. art. III, § 2; 28 U.S.C. § 1333(1)). For maritime law to apply, "a plaintiff's exposure underlying a products liability claim must meet both a locality test and a connection test." Id. (citation omitted). "The locality test requires that the tort occur on navigable waters or, for injuries suffered on land, that the injury be caused by a vessel on navigable waters." Id. (citation omitted). In determining whether the work was on "navigable waters, " "work performed aboard a ship that is docked at the shipyard is sea-based work, performed on navigable waters." Id. (citation omitted).
In this case, the parties agree that maritime law applies to Plaintiff's claims against Defendant Crane Co. Plaintiff served in the Navy from 1965 to 1971 and alleges that he was exposed to asbestos related to Defendant Crane Co.'s products on both the USS Wright and the USS Bainbridge. Based on these assertions, the Court concludes that Plaintiff's claims against Defendant Crane Co. satisfy both the ...