November 1, 2018, Trial News | The American Association For Justice Archive

November 1, 2018, Trial News

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SCOTUS debates negligence, duty to warn in sailors’ asbestos cancer cases

Alyssa E. Lambert

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Oral arguments in Air & Liquid Systems Corp. v. DeVries presented the U.S. Supreme Court with the question of whether “bare-metal” manufacturers can be held liable under maritime law for injuries caused by asbestos-containing materials added to their equipment after the point of sale. The justices tried to delineate a standard for when these manufacturers have a duty to warn, especially if the dangerous component must be added.

What happens when general negligence principles intersect with maritime law on the edge of products liability? It may sound like a Torts 101 hypothetical, but it was the focus of oral arguments before the U.S. Supreme Court in Air & Liquid Systems Corp. v. DeVries. The question was whether “bare-metal” manufacturers can be held liable under maritime law for injuries caused by asbestos-containing materials added to their equipment after the point of sale. The justices tried to delineate a standard for when these manufacturers have a duty to warn, especially if the dangerous component must be added for the product to function as intended. (No. 17-1104 (U.S. oral arg. Oct. 10, 2018).)

The case involves two Navy sailors who developed lung cancer from exposure to asbestos-containing products. John DeVries was exposed to asbestos dust on a regular basis while maintaining engine room equipment in the U.S.S. Turner from 1957-1960. Similarly, Kenneth McAfee, a rigger for the Navy, alleged he was exposed to asbestos dust while removing and replacing asbestos gaskets aboard the U.S.S. Wanamassa and at the Philadelphia Naval Shipyard.

In 2012, they separately sued several of the equipment and ship manufacturers for negligence and strict liability under §402A of The Restatement (Second) of Torts for failure to warn; only DeVries sued Air & Liquid Systems. The defendants removed the cases to federal court in Pennsylvania and moved for summary judgment based on the bare-metal defense, which absolves equipment manufacturers of liability for injuries caused by asbestos products if a third party adds the asbestos to the equipment post sale. The district court granted the separate motions in both cases, and the plaintiffs appealed. Both men died of their disease during the litigation, and their wives continued the suits.

The Third Circuit remanded, instructing the lower court to consider the negligence claims and address “a split in authority as to whether a bright-line rule or a fact-specific standard governed the bare-metal defense’s availability.” The district court applied the bright-line rule and granted summary judgment. The plaintiffs appealed a second time, and also moved to consolidate the appeals—both motions were granted.

In its decision last year reversing the district court, the Third Circuit adopted the fact-specific standard: “[A] manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials if the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s failure to a provide a reasonable and adequate warning.” Several defendants from both cases filed a petition for certiorari, which was was granted.

The petitioners’ attorney, Shay Dvoretzky of Washington, D.C., opened by arguing for a bright-line application of the bare-metal rule, saying that the manufacturers had no duty to warn. Justice Ruth Bader Ginsburg immediately jumped on that contention: “[T]hey’re making a product that is useless unless the asbestos is added. And doesn’t that make a difference?”

“Justice Ginsburg’s opening question was exactly right. The underpinning of the petitioners’ brief was that the lower court gave away the store by using the foreseeability argument, but that was never the Third Circuit’s underlying rationale,” said Jeffrey White, associate general counsel for AAJ, who authored AAJ’s amicus brief in support of the plaintiff-respondents. “The defendants try to force this case into the strict products liability box. Instead, it is a negligence case.”

Justice Sonia Sotomayor was also skeptical: “The asbestos as sold is perfectly safe. . . . What causes it to degrade is your ship . . . Your product heats up to such an extreme degree that it degenerates the asbestos. So it’s somewhat incongruous for me to think that you’re saying that the harm’s caused by the asbestos.”

Dvoretzky continued to press for a bright-line rule and argued there was no duty to warn. Justice Neil Gorsuch questioned the fairness and costs associated with such warnings. “What are the negatives associated with that? Why is that bad?” Justice Brett Kavanaugh echoed that sentiment: “Why are too many warnings bad?”

Washington, D.C., attorney Thomas Goldstein, who argued on the respondents’ behalf, opened with the underlying premise that this is a failure-to-warn case under the restatement. “[T]he Court of Appeals here quite explicitly limited its holding to situations in which you have a product that has a part and that part is required for it to operate.” Goldstein, who spoke for several minutes without interruption, (an unusual occurrence at the Court) also noted that the manufacturers—the petitioners—are the most efficient party to give the warning and that the warning should be in the manual, not on the equipment component or part.

White said it was a good sign that Goldstein was allowed to present his argument uninterrupted for so long. “If the justices disagreed with what he was saying, they would have poked holes in his argument.”

Several justices focused on a series of hypotheticals involving manufacturers of products that would be used with another potentially dangerous product and the foreseeability of that use: ashtrays and tobacco; flashlights and batteries; and aircrafts and exploding engines. A few of the justices appeared to struggle with where to draw the foreseeability line.

Justice Samuel Alito asked Goldstein why the Navy wasn’t best party to warn. Goldstein countered that the manufacturers, not the Navy, were the experts and therefore in the best position to provide warnings of known hazards involving their ships and equipment.

“One of the first things that Tom [Goldstein] did was state that this is a negligence case guided by the restatement, not a products case,” said Philadelphia attorney Richard Myers, who represents the plaintiffs. “Chief Justice Roberts and Justice Gorsuch sort of seized on that—If you know it’s harmful, don’t you have to warn about it?”

“These pieces of machinery in no way entered the stream of commerce. They were sold to the Navy to be placed on a particular ship and stay there, so the stream of commerce argument does not apply,” Myers continued. “The manufacturers provided technical manuals for maintenance and repair. In those manuals, the defendants failed to warn about the danger of asbestos, but in one of them, there were 105 other warnings.”

Although the petitioners’ brief focused on the Navy’s potential culpability, that was not the case during oral argument. “The petitioner backed off the ‘blame the Navy’ argument. If this was a private shipbuilder, the court would hold them liable,” Myers noted.

Myers said that if his clients lose, it will probably be 5-4, but also said he “could see an opinion narrowly crafted [in his clients’ favor] where Roberts, Gorsuch, and Kavanaugh get on board.”

Goldstein thought that the argument went well, but “wouldn’t read too much into the conservative justices’ questions, at least in terms of predicting that one specific justice would agree with us. But we got enough supporting questions to feel cautiously optimistic.”

If the Court affirms and remands, Myers and his clients will have to contend with the government contractor defense, which gives the manufacturers immunity. “The government contractor defense is a difficult one, and the burden of proof is on the defendants,” Myers said.

Goldstein noted that a victory for the respondents wouldn’t really change the landscape of asbestos litigation. “The great majority of lower courts have rejected the defendants’ arguments already. It’s the other side that’s hoping for a big change in the law.”

Regardless of how the Court decides, White noted the case's unusual nature. “The Court doesn’t usually get to decide a tort law issue. This is going to be one of those instances where the decision will be taught in law schools because it pushes the boundary and is on the edge of tort law,” White said. “But ultimately, the only issue here is duty to warn.”