safety of shipyard workers; (iii) the government's negligent failure to implement or to enforce health and safety standards, requirements and regulations; (iv) the government's negligent failure to exercise reasonable care in connection with the construction and repair of naval vessels at government and contract shipyards; (v) the government's negligent selection of contract shipyards; and (vi) the government's breach of its statutory and regulatory duties. These claims are very similar to those advocated by GAF, with the exception that GAF cited the government for selling asbestos products to it. GAF, 593 F. Supp. at 708.
Eagle-Picher perceives that the Court should not have the objections to the form of the legal complaints that it had in GAF, where it held that "it is inconceivable to this Court that these acts or omissions are applicable to every claim." 593 F. Supp. at 710, or that the Second Circuit had in Keene I with "Keene's laundry list of potential variables [which] makes it impossible for the government -- or a court -- to evaluate Keene's action against the government," 700 F.2d at 842. Instead of the numerous Standard Form 95s submitted by GAF, Eagle-Picher has submitted only one Standard Form 95 with one list of claims, each of which it believes is applicable to all of its underlying claimants.
In its attempt to correct the error made by other manufacturers such as GAF, Eagle-Picher looked to the superficial solution -- a consolidated Form 95 with legal claims ostensibly applicable to all of the underlying claimants -- without looking to the source of the problem cited by the courts in GAF, Keene I, and Keene II. The courts found that "each combination of facts, moreover, may raise a different legal issue so far as to the government's liability to Keene or our jurisdiction is concerned." Keene I, 700 F.2d at 839. By phrasing its claims in such a manner as to appear to apply to all of the underlying claimants, Eagle-Picher cannot disguise the fact that they would not.
Initially, the fifth claim, that of negligent selection of contract shipyards would logically only apply to underlying claimants who were private employees. Further, the remaining five claims are negligence claims. A claim for negligence requires pleading elements of duty and breach of that duty by the defendant. See Johnson v. United States, 178 U.S. App. D.C. 391, 547 F.2d 688, 695 n. 47 (D.C.Cir.1976); Rest.2d of Torts § 4 (1965) (Definition of "duty"). By combining its claim for both categories of employees, Eagle-Picher is assuming that the duty owed by the government to its own employees is the same as that which it owed to private employees over which it had no direct supervision and control.
To some extent, the plaintiff itself has admitted that this duty is not the same. In the hearing held on this motion, counsel for the plaintiff stated:
There is one other difference between the two categories that we have presented here, and that is in the private shipyard cases the Government has contended -- and I am sure ultimately will contend here -- that as a matter of fact it did not have control over the workplace in the private shipyard context.