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SMITH v. JOHNS-MANVILLE CORP.

No. 85-5538.

795 F.2d 301 (1986)

Marshall A. SMITH, et al. v. JOHNS-MANVILLE CORPORATION, et al. HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. and HOOKER CHEMICALS & PLASTICS CORPORATION, Defendant and Third-Party Plaintiff, v. RAYBESTOS MANHATTAN, INC. and BELL ASBESTOS MINES, LTD., Defendant and Third Party Plaintiff, v. RAYBESTOS-MANHATTAN, INC., et al., Third-Party Defendants. Michael CEISWICH, et al. v. JOHNS-MANVILLE CORPORATION, et al. HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al. and BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff, v. ADVOCATE MINES, LTD., et al., Third-Party Defendants. Joseph ARDIN and Rose Ardin, his wife, et al. v. JOHNS-MANVILLE CORPORATION, et al. HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. and BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third Party Defendants. RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff, v. ADVOCATE MINES, LTD., et al., Third-Party Defendants. Betty P. ESPOSITO, Individually and as Executrix of the Estate of Robert I. Esposito, deceased v. JOHNS-MANVILLE CORPORATION, et al. HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. and BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff, v. ADVOCATE MINES, LTD., et al., Third-Party Defendants. Watts CHERNESKY and Mary Chernesky, his wife, et al. v. JOHNS-MANVILLE CORPORATION, et al. HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. and BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff, v. ADVOCATE MINES, LTD., et al., Third-Party Defendants. KARPINECZ, Thomas, Sr. and Filomena Karpinecz, his wife v. JOHNS-MANVILLE CORPORATION, et al. HOOKER CHEMICALS & PLASTICS CORP., Defendant-Third Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. and BELL ASBESTOS MINES, LTD., Defendant and Third-Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff, v. ADVOCATE MINES, LTD., et al., Third-Party Defendants. Calvin RANDOLPH and Joyce Randolph, his wife, et al. v. JOHNS-MANVILLE CORPORATION, et al. HOOKER CHEMICALS & PLASTICS CORP., Raybestos-Manhattan, Inc.; and Bell Asbestos Mines, Ltd., Defendants-Third Party Plaintiffs, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff, v. ADVOCATE MINES, LTD., et al., Third-Party Defendants. Edward Sherman LOWER; William J. Kenvin and Dorothy D. Kenvin, his wife v. JOHNS-MANVILLE CORPORATION, et al. HOOKER CHEMICALS & PLASTICS CORP., Raybestos-Manhattan, Inc.; and Bell Asbestos Mines, Ltd., Defendants-Third Party Plaintiff, v. LAKE ASBESTOS OF QUEBEC, LTD., et al., Third-Party Defendants. RAYBESTOS-MANHATTAN, INC., Defendant-Third Party Plaintiff, v. ADVOCATE MINES, LTD., et al., Third-Party Defendants. Appeal of UNITED STATES of America.

United States Court of Appeals, Third Circuit.

Reargued June 3, 1986.

Decided July 3, 1986.

Attorney(s) appearing for the Case

Scott D. Austin, Trial Atty. (argued), Richard K. Willard, Acting Asst. Atty. Gen., Thomas W. Greelish, U.S. Atty., Harold J. Engel, Acting Director, Torts Branch, Mary Catherine Cuff, Chief Civil Div., Joseph B. Cox, Jr., Asst. Director, Torts Branch, U.S. Dept. of Justice, Washington, D.C., for appellant.

Michael S. Giannotto (argued), David Booth Beers, Shea & Gardner, Washington, D.C., Joseph P. LaSala, Joseph F. Lagrotteria, Robinson, Wayne, Levin, Riccio, & La Sala, Newark, N.J., for appellee Brinco Mining Ltd. now Cassiar Mining Corp.

Alexander P. Waugh, Jr. (Argued), William J. Brennan, III, Robert D. Gilbert, Smith, Stratton, Wise, Heher & Brennan, Princeton, N.J., for appellee Bell Asbestos Mines, Ltd.

Peter W. Sachs, Sachs & Sachs, Holmdel, N.J., for appellee Hollingsworth & Vose Co.

Kathleen F. Moran, Morgan, Melhuish, Monaghan, Arvidson, Abrutyn & Lisowski, Livingston, N.J., for appellee, Raymark Industries.

Before HUNTER, HIGGINBOTHAM, and BECKER, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III Circuit Judge:

This case requires us to decide whether the General Service Administration's decision to sell surplus asbestos "as is," without warnings or warranties, falls within the discretionary function exception to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2680(a) (1982). Jurisdiction before the district court was based on the FTCA, 28 U.S.C. §§ 1346(b), 2671-80 (1982). Appellate jurisdiction...

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