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U.S. District Court in Illinois Denies Defendants’ Motion for Summary Judgment Under Statute of Limitations and Government Contractor Defenses U.S. District Court for the Southern District of Illinois, August 27, 2015
In this case, the plaintiff alleges that he developed asbestosis as a result of inhaling, ingesting, or otherwise absorbing large amounts of asbestos fibers from Westinghouse forced draft blowers during his Naval service aboard the USS Perry. Westinghouse moved for summary judgment on several grounds, first arguing that the plaintiff could not show that asbestos attributable to Westinghouse was a substantial factor in causing his injury. The court rejected this argument, reasoning that the plaintiff produced evidence demonstrating the presence of Westinghouse forced draft blowers operating within the fire room where the plaintiff was assigned, and that the plaintiff testified he breathed dust from working on those blowers when he removed asbestos-containing insulation that lined the sides of the blower.
Westinghouse also argued that it was entitled to summary judgment because it is shielded from liability pursuant to the government contractor defense. Westinghouse relied upon the affidavit of Admiral Roger B. Horne in support of its argument that its blowers were built according to Navy specifications and approved for installation by the Navy. The court found Admiral Horne's affidavit to be insufficient to meet Westinhouse’s burden on summary judgment because the affidavit only illustrated Navy approval of the design of the "USS Kitty Hawk" and not the USS Perry (on which the plaintiff served). The court also agreed with the plaintiff’s argument that Admiral Horne’s affidavit was insufficient to establish the government contractor defense because it only described general specifications for shipbuilding, and included references to Westinghouse turbines, as opposed to Westinghouse forced draft blowers.
Westinghouse also moved for summary judgment, arguing that the plaintiff’s claims were time barred because they were not pursued within three years of their accrual under 46 USC § 30106. In opposition to the motion, the plaintiff argued that while he subjectively believed he had an asbestos-related disease years prior, he was not legally chargeable with knowledge until his diagnosis by a physician in 2013. In denying the motion, the court held that “under Illinois law, it is a question of fact whether a Plaintiff has sufficient information to make him legally chargeable with knowledge under the ‘discovery rule.’ The same is true under maritime law. Considering the parties' opposing arguments as to when Plaintiff should have been legally chargeable with knowledge of his asbestos-related injury, the Court finds a genuine issue of material fact exists precluding summary judgment.” (Citations omitted.)
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