Osterhout v. Crane Co.

PEARL OSTERHOUT,Individually and as Representative of the Estate of Robert Osterhout, Plaintiff, v. CRANE CO.; FMC CORP., on behalf of its former Peerless Pump and Northern business;FOSTER WHEELER LLC; IMO INDUSTRIES INC.; and WARREN PUMPS LLC, Defendants.

5:14-CV-208 (MAD/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 21, 2016

APPEARANCES:

LEVY KONIGSBERG, LLP

800 Third Avenue, 11th Floor

New York, New York 10022

Attorneys for Plaintiff

O'CONNELL & ARONOWITZ, P.C.

54 State Street

9th Floor

Albany, New York 12207-2501

Attorneys for Plaintiff

SEDGWICK, LLP

Three Gateway Center, 12th Floor

Newark, New Jersey 07102

Attorneys for Defendants Foster

Wheeler, LLC

K & L GATES LLP

599 Lexington Avenue

New York, New York 10020-6030

Attorneys for Defendant Crane Co.

KELLEY JASONS MCGOWAN

SPINNELLI HANNA & REBER, LLP

120 Wall Street, 30th Floor

New York, New York 10005

Attorneys for Defendant FMC Corp.

LEADER & BERKON, LLP

630 Third Avenue

New York, New York 10017

Attorneys for Defendant Imo Industries

Inc. and Warren Pumps LLC

OF COUNSEL:

JEROME H. BLOCK, ESQ.

KEITH W. BINDER, ESQ.

PAMELA A. NICHOLS, ESQ.

MICHAEL A. TANENBAUM, ESQ.

DENNIS V. VEGA, ESQ.

MATTHEW STRAUS, ESQ.

ANGELA DIGIGLIO, ESQ.

ERIC R.I. COTTLE, ESQ.

NICOLE M. KOZIN, ESQ.

CHRISTOPHER P. HANNAN, ESQ.

AMY ZUMSTEG, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On or about February 7, 2014, Plaintiffs Robert Osterhout ("Mr. Osterhout") and Pearl Osterhout commenced this action against Defendants in New York State Supreme Court, Onondaga County. See Dkt. No. 1-1. The Complaint included allegations that the decedent, Mr. Osterhout, was injured as a result of exposure to asbestos while serving in the United States Navy from approximately 1947 to 1952, and while aboard the USS Charles H. Roan (DD-853) ("USS Roan"). See id.

On February 27, 2014, Defendants Foster Wheeler and General Electric Company removed this action to this Court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). See Dkt. No. 1. Currently before the Court are Defendants Crane Co. and Foster Wheeler's motions for summary judgment. See Dkt. Nos. 305 and 309. Also before the Court are Defendants Crane Co., CBS Corp. and Foster Wheeler's motions in limine seeking to preclude the testimony of Plaintiff's expert, Dr. Steven Markowitz. See Dkt. Nos. 308 and 311.

II. BACKGROUND

Mr. Osterhout enlisted in the U.S. Navy on August 5, 1947. See Dkt. No. 309-1 at ¶ 3. After completing basic training, he boarded the USS Roan on December 15, 1947. See id. When Mr. Osterhout boarded the USS Roan, he was ranked a Fireman Apprentice. See id.

Mr. Osterhout was deposed on March 12, 13 and 14, May 8 and September 18, 2014. See id. at ¶ 4. He testified that he was assigned to the number two aft-fire room during his service aboard the ship. See id. Mr. Osterhout served a total of approximately 30 months aboard the USS Roan. See id. at ¶ 6. He last served in the fire room aboard the ship on October 17, 1950, and received an "Other Than Honorable" discharge from service in the Navy on August 7, 1951. See id.

Mr. Osterhout testified that during his service aboard the USS Roan, he performed work as a check man and burner man. See id. at ¶ 7. According to Mr. Osterhout, a check man "worked the valves that control the amount of water going to the boilers, and as the ship called for more steam, you'd have to light more burners, and that would take more water because you were making more steam." Dkt. No. 310-6 at 94.¹ Further, Mr. Osterhout testified that burner men would responsible for lighting and cleaning the burners. See id. at 94-96. The check man would be positioned on the second floor of the fire room, while the burner man would be positioned on the lower level. See id. at 94-95. According to Mr. Osterhout, he believed that he was aboard the USS Roan for three or four years before he became a check man. See id. at 126; Dkt. No. 327-2 at ¶ 8.

As a check man, Mr. Osterhout stood watch and operated the check valves that controlledthe flow of water to the boilers. See Dkt. No. 309-1 at ¶ 9. Moreover, Mr. Osterhout testified to repacking the check valves while the ship was in port. See id. Mr. Osterhout was unaware of the maintenance history of any of the check valves, but indicated that many of his shipmates in the fire room frequently worked on these valves, and that he was not the first person to maintain or overhaul any of the check valves associated with the boilers. See id.; Dkt. No. 327-2 at ¶ 9. Foster Wheeler did not furnish spare or replacement valve stem packing or packing rings for the check valves. See id. at ¶ 10.

As a burner man, Mr. Osterhout was responsible for lighting and cleaning the burners, inserting the burners into the boilers, and monitoring the operation of the burners. See id. at ¶ 11. This work was performed while the ship was at sea. See id. Mr. Osterhout did not indicate that he ever disassembled, repaired, or fixed the burners. See id. Moreover, as a burner man he was responsible for cleaning the tubes inside the boiler while the ship was in port. See id. at ¶ 12. This involved using a wire brush to remove the carbon deposits on the tubes. See id. The tubes which Mr. Osterhout cleaned were made of metal and contained no asbestos. See id. at ¶ 13. The tubes, which would collect soot, slag, and carbon, would have been cleaned several times before Mr. Osterhout boarded the USS Roan. See id.

Mr. Osterhout also testified that he repaired the firebrick inside the boiler on two occasions. See Dkt. No. 309-1 at ¶ 14. He indicated that, to make this repair, he dug less than two (2) inches into the firebrick wall inside the boiler and subsequently patched up the wall by applying a mortal-like substance to the wall. See id. In reviewing the technical manual governing Mr. Osterhout's alleged firebrick repair work, Plaintiff's expert, Captain Moore, confirmed that the Bureau of Ships Technical Manual, drafted by the U.S. Navy, required four (4) inches of firebrick against the first layer of the interior wall of the boiler. See id. at ¶ 15; Dkt. No.310-8 at 62. According to Moore, the manual established that the firebrick and associated mortar discussed by Mr. Osterhout contained no asbestos. See id. There has been no indication that any insulation deep within the boilers behind several layers of firebrick was ever exposed during Mr. Osterhout's work. See id.

Mr. Osterhout also testified that an asbestos cement surface covered the exterior of the boiler. See Dkt. No. 309-1 at ¶ 16. Foster Wheeler did not provide any external insulation for the exterior of the boiler or any piece of equipment in the fire room aboard the USS Roan. See id. at ¶ 17.

The USS Roan was laid down on April 2, 1945 and launched on March 15, 1946. See id. at ¶ 18. Mr. Osterhout reported to service aboard the ship fifteen (15) months after the ship went into service. See id. Pursuant to a contract with the U.S. Navy in 1943, Foster Wheeler furnished four Babcock and Wilcox ("B&W") design "marine type oil-burning, single uptake, air-encased water tube steam generators (boilers)" for the USS Roan. See id. at ¶ 19.² According to Foster Wheeler, it was "contractually required to provide the boilers and drawings, while B&W was required to provide the instruction manuals on behalf of [Foster Wheeler]." Id.³ Plaintiff, however, denies that the instruction manual was drafted or supplied by a company other than Foster Wheeler. See Dkt. No. 327-2 at ¶ 19. In support of this assertion, Plaintiff cites to amanual entitled "Instructions for the Operation and Maintenance of Foster Wheeler Marine Steam Generators Installed in U.S. Navy Destroyers, Instruction Book FWB-1967." Id. (citing Dkt. Nos. 327-5, 327-6, and 327-7). Plaintiff points to the fact that the front cover states "Foster Wheeler Corporation," with no mention of B&W and the second page again only lists Foster Wheeler, provides its corporate address, and the date "June, 1944." Id.

Prior to Mr. Osterhout's arrival aboard the ship, the boilers would have undergone scheduled maintenance that required workers to open the boilers for inspection and service. See Dkt. No. 309-1 at ¶ 20; Dkt. No. 327-2 at ¶ 20. Initial fitting out and shakedown cruises for the ship occurred from September 1946 to January 1947. See id. For instance, the access doors on the boilers would have been opened on multiple occasions prior to the decedent boarding the USS Roan. See id. at ¶ 21. Navy cleaning requirements, as provided in the Bureau of Ships manual, state that the internal conditions of the waterside of the boiler⁴ must be inspected and cleaned every 1,800 to 2,000 operating/steaming hours (75 to 83 days), and the internal conditions of the fireside of the boilers must be inspected and cleaned every 600 operating/steaming hours (25 days). See id. Doing so requires opening the access points such as access doors and man-holes. See id. When these access points are opened, gaskets must be replaced, and under these requirements, gaskets are rapidly consumed. See id.

As described by Mr. McCaffery, Foster Wheeler's Navy expert, Mr. Osterhout, or another sailor in his vicinity, would have to open the boiler access door anytime the "firesides" of the boiler needed to be cleaned, something that occurred frequently on a Navy destroyer such as the USS Roan. See Dkt. No. 327-2 at ¶ 22. Mr. Osterhout recalled cleaning the tubes of the boilers(scrubbing out the inside of the tubes with a wire brush); an activity he claimed doing "more frequently than anything." Id. Mr. Osterhout also recalled other sailors opening the boilers to perform this work. See id.

In the 450 days that elapsed between the commissioning of the vessel and Mr. Osterhout's first boarding the vessel, sailors would have accessed the interior of the boilers on multiple occasions. See Dkt. No. 309-1 at ¶ 23. Each time the access doors to the furnace are opened for fireside inspections and cleaning, the...