Products Liability Law Daily Wrap Up, DEFENSES TO LIABILITY—ASBESTOS—D. Del.: Helicopter maker’s objections to Magistrate’s report overruled in Navy mechanic death case, (Oct 4, 2024)

By Pankhuri Bhatnagar, B.A. LL.B.

The manufacturer’s government contractor and sovereign immunity defenses failed because a naval document raised a triable issue about the Navy’s product warning requirements.

In an asbestos exposure suit brought against a helicopter maker by the widow of a Navy mechanic who died of lung cancer, the federal district court in Delaware adopted a Magistrate Judge’s report and recommendation to grant in part and deny in part the manufacturer’s summary judgment motion. The court found that genuine issues existed as to whether the helicopters utilized asbestos-containing components, whether exposure to such parts was a substantial factor in causing the worker’s illness, and whether the manufacturer “required” the incorporation of asbestos-containing replacement parts (McInnis v. Hexcel Corp., No. 22-1087 (MN) (SRF) (D. Del. Sept. 30, 2024)).

Background. A man served as a naval helicopter mechanic onboard the USS Midway, Enterprise, New Orleans, and Ranger from 1972 until 1981. His work involved repairing Sikorsky SH-3 helicopters, which allegedly contained component parts made with asbestos that he would routinely handle and replace. In 2021, he was diagnosed with lung cancer. He died a year later, and his wife/estate brought an asbestos exposure suit against several entities, including the company that owned the SH-3 helicopters—Sikorsky Aircraft Corporation (owner). The complaint asserted claims for negligence, strict liability, and conspiracy. A Magistrate Judge issued a Report and Recommendation that the court deny Sikorsky’s summary judgment motion as to the first two counts and grant it as to the third count. The owner objected to the report’s findings that a genuine dispute of material fact existed as to: (1) whether asbestos-containing materials utilized on Sikorsky’s SH-3 helicopters were a substantial factor in causing the decedent’s injuries; (2) Sikorsky’s duty to warn; (3) Sikorsky’s government contractor defense; and (4) whether it was prohibited from warning about the dangers of asbestos. The court considered each challenge in turn.

Witnesses’ testimonies. Since the mechanic died before he could be deposed, his wife relied on product identification witnesses to support the claim that her husband was exposed to asbestos during his time in the Navy. The decedent’s shipmate testified that he ordered the parts used for the aircraft’s maintenance and recalled seeing references to “asbestos” in the parts manuals for some products. He explained that the parts often deteriorated and released dust, which the decedent inhaled during repair and/or replacement work. Two other colleagues testified about the kind of work the decedent performed on the aircraft and the components parts he handled, but did not know the composition of any of these parts. Sikorsky’s Senior Materials and Process Engineer (engineer) asserted in an unrelated proceeding that Sikorsky utilized asbestos-containing parts in some of its helicopters, including gaskets, adhesives, cloths, and honeycomb, but he did not specifically mention the SH-3 helicopter. In the instant case, he explained that one of his job duties involved finding replacement helicopter parts that do not contain asbestos. Lastly, Sikorsky’s corporate representative averred that it was standard to have clamps, gaskets, sleeves, seals, and adhesives onboard Sikorsky helicopters.

Asbestos components. The owner first submitted that the Magistrate’s report incorrectly considered testimony regarding SH-3 helicopter parts that were not at issue here. However, certain components, such as insulated cable jackets, were at issue, and the decedent’s shipmate testified to being regularly exposed to them. Sikorsky claimed that the shipmate’s testimony about ordering asbestos-containing components was inadmissible hearsay as it was based on statements contained in unidentified “parts manuals” or statements made by unknown individuals. The court clarified that the shipmate did not learn everything about potential asbestos-containing parts from the product manuals, and even without the purported hearsay statements, the record contained sufficient evidence to infer that the parts contained asbestos. Sikorsky’s employees averred that Sikorsky was aware of asbestos-containing parts being incorporated into its helicopters; the corporate representative described those very products as being standard on Sikorsky helicopters; and the shipmate identified the types of parts used and ordered for the SH-3. Taken together, this evidence was adequate to show that asbestos-containing parts were utilized on SH-3 helicopters and that the decedent was exposed to them.

Duty to warn. Under Air & Liquid Sys. Corp. v. DeVries, 586 U.S. 446 (2019), a manufacturer has a duty to warn regarding asbestos-containing parts it did not manufacture or supply when its product requires incorporation of a part that it knows is likely to be dangerous and there is reason to believe that the product’s users will realize that danger. Sikorsky claimed that the estate proffered no evidence that the decedent encountered an SH-3 Part-At-Issue that was original to the aircraft or that Sikorsky “required” the incorporation of asbestos-containing replacement parts in SH-3 helicopters. The court reasoned that the shipmate’s belief that asbestos products “were the correct heat elements” to order could reasonably imply that Sikorsky “required” the use of asbestos-containing products for its SH-3 helicopters to work as intended and that this dispute was one for a jury to determine. Accordingly, the court adopted the report’s recommendation about denying the owner’s motion as to Counts I and II.

Affirmative defenses. Sikorsky pointed to the declarations of its corporate representative that Sikorsky could not take action in the SH-3’s design and manufacture that exceeded government-delegated authority. Two other witnesses testified that the military exerted control over the design, manufacture, and warning placement on the SH-3; had knowledge of the dangers of asbestos exposure; and did not seek safety-related advice from product manufacturers. The wife cited SEANAV Instruction 6260.005, a naval document which purportedly indicated that the Navy encouraged manufacturers to place warnings on end products, to argue that there was no proof that Sikorsky attempted to provide any asbestos warning or was prohibited from doing so by the military. The owner replied that the instruction applied only to “containers of hazardous chemicals” and was not intended to govern manufacturer labeling, and that the precedent on which the Magistrate relied was inapplicable as it did not involve a military aircraft manufacturer. This court noted that the challenged precedent was not the only case to find that the SEANAV Instruction was sufficient to raise genuine issues of material fact. The burden of showing an absence of a genuine dispute rested with Sikorsky. Since it failed to carry this burden, its motion was denied as to the government contractor defense. The owner also disagreed with the report’s derivative sovereign immunity analysis. The court again held that the SEANAV Instruction created a triable issue, making it inappropriate to grant summary judgment on the sovereign immunity defense as well.

The case is No. 22-1087 (MN) (SRF).

Judge: Noreika, M.

Attorneys: Thomas C. Crumplar (Jacobs & Crumplar, P.A.) for Lisa McInnis. Nicholas E. Skiles (Swartz Campbell LLC) for Sikorsky Helicopter.

Companies: Sikorsky Helicopter

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