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No Preemption, Political Question Bars to Tort Claims

A motion to dismiss tort claims against defense contractors for lack of subject matter jurisdiction was denied because federal law and interests did not preempt the field of state tort law as it related to the contractors' duty to warn, and the claims did not present a nonjusticiable political question. The plaintiff, a former serviceman diagnosed with cancer, alleged he was exposed to asbestos used to insulate turbines on nuclear submarines and the contractors that manufactured the turbines knew, but failed to warn, of the dangers of asbestos. Moving to dismiss under Federal Rule of Civil Procedure 12(b)(1), the contractors argued federal interests and pervasive federal regulation of national defense preempted the field of state tort law, and the case required adjudication of whether the government would have allowed warnings, which was nonjusticiable.

No Displacement

Addressing the contractor's preemption arguments, the court rejected the contractor's attempt to insulate the case from the three-prong test for qualifying for the government contractor defense established in Boyle v. United Technologies Corp. ( 34 CCF 75,489). With respect to field preemption, affidavits of former Naval officers were insufficient to show the federal government had a clear and manifest intent to preempt the state law duty to warn. There was no evidence the government's war powers, federal regulations and policy, or law related to government procurement displaced the entire field of state tort law with respect to asbestos exposure claims by servicemen aboard Naval vessels. There also was no basis for disregarding Boyle based on the doctrine of conflict preemption. The issue of whether the Navy would have prevented the contractors from warning about any asbestos hazard went to the heart of the Boyle test's first prong --whether the Navy issued reasonably precise specifications for the product at issue.

No Second-Guessing

In asserting the existence of a political question, the contractors argued the court would be required to second-guess the government's warning policies. The contractors relied on four of six factors set forth in Baker v. Carr (369 US 186), which essentially asked whether the court would pass judgment on the policies and procedures of the executive or the legislature. Here, the court could perform its role without offending the doctrine of separation of powers. Adjudicating whether the contractors were required to warn of asbestos dangers in connection with the supply of turbines for use in warships did not challenge the government's choice of asbestos. Although inquiry into the government's policy on equipment warnings might be required, it did not implicate the wisdom and soundness of the government's policies or procedures. The action was between private parties based on well defined tort law principles, and the government would not be liable if the claims were successful. ( Donn v. A.W. Chesterton Co. (DC ED Pa 2012) 56 CCF 79,759)




(The news featured above is a selection from the news covered in the Government Contracts Report Letter, which is published weekly and distributed to subscribers of the Government Contracts Reporter. )


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