The opinion of the court was delivered by: J. Waldo Ackerman, District Judge.
This case involves a claim against the United States under the
Federal Tort Claims Act, 28 U.S.C. § 1346(b), § 2671 et seq., and
is based upon the sale of asbestos from the national stockpiles
by the Government to Union Asbestos and Rubber Company (UNARCO)
and to Owens-Corning Fiberglas Corporation, which purchased the
UNARCO plant in 1970. Also named as defendant is North American
Asbestos Corporation, a distributor of asbestos fibers who sold
asbestos to UNARCO and Owens-Corning. This case was filed in 1976
by five plaintiffs, employees of UNARCO who had contracted
asbestosis, a pulmonary lung disease. Four of these plaintiffs
voluntarily dismissed their claims pursuant to Federal Rule of
Civil Procedure 41(a) and William Stewart, the remaining original
plaintiff, died in 1978. Stewart's widow had filed an amended
complaint on January 14, 1977,
seeking recovery for her husband's medical expenses and for loss
of consortium. She remains as the only plaintiff in this case.
A discussion of some background material is necessary to put
this case in context. In 1966, the Office of Emergency
Preparedness (OEP) was authorized under the Strategic and
Critical Materials Stockpiling Act, 50 U.S.C. § 98 et seq., to
determine the types and amounts of materials to be stored for
national security needs. The OEP requested General Services
Administration-Defense Materials Service to prepare a plan for
the disposal of excess asbestos. The Stockpiling Act, 50 U.S.C. § 98b(e),
requires the express approval of Congress for disposal
plans unless the reason for the disposal is obsolescence. This
same statute requires that the plan and date of disposal be fixed
"with due regard to the protection of the United States against
avoidable loss on the sale or transfer of material to be released
and the protection of producers, processors, and consumers
against avoidable disruption of their usual markets."
Accordingly, GSA developed a plan for the disposal of 15,170
short tons of excess amosite asbestos over a period of years. The
average acquisition cost was $245 per short ton as of December
31, 1965. The market value as of March 4, 1966 was $241 per short
The plan and a proposed bill were submitted to Congress and on
May 11, 1966, the President approved Public Law 89-422
authorizing the Administrator of General Services to dispose of
the asbestos. That Act provides as follows:
Be it enacted by the Senate and House of
Representatives of the United States of America in
Congress assembled. That the Administrator of General
Services is hereby authorized to dispose of, by
negotiation or otherwise, approximately fifteen
thousand, one hundred and seventy short tons of
amosite asbestos now held in the national stockpile
established pursuant to the Strategic and Critical
Materials Stock Piling Act (50 U.S.C. § 98-98h) and the
supplemental stockpile established pursuant to
section 104(b) of the Agricultural Trade Development
and Assistance Act of 1954, as amended (7 U.S.C. § 1704(b)).
Such disposition may be made without regard
to the provisions of section 3 of the Strategic and
Critical Materials Stock Piling Act: Provided, That
the time and method of disposition shall be fixed
with due regard to the protection of the United
States against avoidable loss and the protection of
producers, processors, and consumers against
avoidable disruption of their usual markets.
Consequently, bids were solicited and the asbestos was sold to
UNARCO and others "as-is", without warranties of any kind.
Plaintiff's complaint, Count 6.1, against the United States
charges that at the time the product left the defendant's
control, the product was not reasonably safe in that:
(a) it contained no warning or label that inhalation
of asbestos particles caused fibrosis of the
lungs and other respiratory pathology, including
(b) it contained no instruction whatsoever as to safe
methods of handling and processing asbestos
Thus, plaintiff charges the Government with selling an
unreasonably unsafe product, a claim sounding in strict
liability. See Prosser, Law of Torts, § 99 (4th ed. 1971). It is
settled that the FTCA governs negligent or wrongful conduct, but
does not extend to claims based on strict liability. Dalehite v.
United States, 346 U.S. 15, 44-45, 73 S.Ct. 956, 972, 97 L.Ed.
1427 (1952); Laird v. Nelms, 406 U.S. 797, 921 S.Ct. 1899, 32
L.Ed.2d 499 (1972). Consequently, Count 6.1 is dismissed for
failure to state a claim on which relief can be granted.
Counts 6.2 and 6.3 respectively charge the United States with
negligence and wilful and wanton conduct in selling the asbestos
fibers to the plant without proper warnings or handling
instructions when it knew or should have known that inhalation of
asbestos particles caused fibrosis of the lungs.
The Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671 et
seq., waives the Government's sovereign immunity for certain
torts, providing relief to victims of negligent or wrongful acts
or omissions of Government employees committed while acting
within the scope of employment. The Government asserts, however,
that it has retained its immunity from liability in this case,
relying on 28 U.S.C. ...