Grimes v. CBS Corporation
1:17-cv-08361-ALC
S.D.N.Y.Sep 16, 2021Background
- John Grimes worked as an apprentice coppersmith at the Brooklyn Navy Yard from Oct. 1961–Jan. 1963 and later developed mesothelioma; plaintiff is his estate/partner Linda Phelps.
- Grimes testified he was exposed to materials around boilers aboard warships, including the USS Constellation; Foster Wheeler manufactured the Constellation’s boilers.
- Plaintiff sued Foster Wheeler in state court alleging failure-to-warn and related tort theories based on exposure to third‑party asbestos-containing products used with Foster Wheeler boilers; the case was removed to federal court.
- Foster Wheeler moved for summary judgment and filed Daubert motions; the court granted summary judgment for Foster Wheeler and administratively denied the Daubert motions as unnecessary to decide the case.
- The court applied maritime law (Grubart two‑part test) and Air & Liquid Systems Corp. v. DeVries’s three‑part duty‑to‑warn framework, concluding Foster Wheeler had no duty to warn because its boilers did not require incorporation of asbestos insulation.
- The court excluded late/unsupported evidence about the USS Roan and permitted corporate representatives’ affidavits (Schroppe, Johnson) as Rule 56 evidence.
Issues
| Issue | Phelps' Argument | Foster Wheeler's Argument | Held |
|---|---|---|---|
| Choice of law: Do claims arise under maritime law? | Exposure aboard ships and in drydock is not sufficiently maritime when involving shipyard/shop work generally | Injury occurred aboard a completed vessel (USS Constellation) and is connected to traditional maritime activity | Maritime law governs (Grubart location and connection tests satisfied) |
| Duty to warn under DeVries: Did Foster Wheeler "require" incorporation of asbestos with its boilers? | Foster Wheeler was involved in design/policies and the boilers effectively required asbestos insulation; maintenance/repair is an intended use | Foster Wheeler built to military specifications and did not direct asbestos use or supply asbestos insulation | No genuine dispute that Foster Wheeler did not require asbestos incorporation; no duty to warn under DeVries; summary judgment for Foster Wheeler |
| Admissibility of Schroppe & Johnson affidavits | Untimely undisclosed expert testimony (no expert report) | Corporate representatives/consultants may submit admissible affidavits based on corporate records and review | Affidavits admissible for Rule 56 (corporate representative testimony allowed) |
| Evidence re USS Roan (late-identified vessel & Foster Wheeler boilers there) | Captain Woodruff later identified Roan; plaintiff relied on prior judicial opinions to show Foster Wheeler boilers on Roan | Identification was not timely, reliance on judicial opinion is hearsay/not admissible summary‑judgment evidence | Court excluded the Roan evidence as inadmissible or untimely; plaintiff failed to create a triable issue |
Key Cases Cited
- Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019) (articulates three‑part maritime duty‑to‑warn test for manufacturers regarding incorporation of hazardous third‑party parts)
- Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995) (two‑part test for determining when a tort arises under admiralty jurisdiction)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard; nonmoving party must show an essential element exists for trial)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (standard for determining genuine issues of material fact at summary judgment)
- Vasquez v. GMD Shipyard Corp., 582 F.3d 293 (2d Cir. 2009) (drydocked vessel still within navigable waters for admiralty purposes)
- Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239 (2d Cir. 2014) (discusses maritime commerce disruption factor under Grubart)