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Asbestos Claims by Military Widows Buoyed by High Court

The Supreme Court refused Tuesday to disturb asbestos litigation brought by military widows whose husbands died of lung cancer.

WASHINGTON (CN) - The Supreme Court refused 6-3 Tuesday to disturb asbestos litigation brought by military widows whose husbands died of lung cancer.

Taking aim at Buffalo Pumps and more than 50 other companies that had contracted with the U.S. Navy, Roberta Devries and Shirley McAfee sought compensation not just from the makers of asbestos insulation and asbestos parts but also the makers of the equipment that would not work without asbestos. Indeed the asbestos-part makers had long been bankrupt.

A federal judge in Philadelphia sided with so-called bare-metal companies at summary judgment in 2014, but the Third Circuit brought new life to the proceedings in 2017, setting the stage for arguments at the Supreme Court this past October.

Writing for the majority this morning, Justice Brett Kavanaugh noted that maritime tort law requires manufacturers to warn consumers when products may require incorporation of a dangerous part in the “foreseeable future.” 

Led by Air & Liquid Systems, the companies argued that this type of “foreseeability” was too broad since they had “no duty to control the conduct of a third person as to prevent him from causing harm to another.”

But Justice Kavanaugh rebuffed the contention.

“That is true, but it is also beside the point here,” the 11-page opinion states. “After all, when a  manufacturer’s product is dangerous in and of itself, the manufacturer knows or has a reason to know that the product is or is likely to be dangerous for the use in which it is supplied.”

Kavanaugh said the product manufacturer is generally in a better position to warn than the parts manufacturer because the former has an awareness of the inherent design of its goods.

Knowing what dangers may be lurking when certain parts are integrated into the final product ultimately falls to them, Kavanaugh explained.

A parts manufacturer, on the other hand, may only be aware that its part could “conceivably” be used, he said

As for the argument that it costs the manufacturer too much time or too much money to warn about potentially dangerous parts, Kavanuagh found the cost of a caveat negligible in light of the risk posed to users.

Warnings are also given special consideration in this matter because of a longstanding need under maritime law to “recognize the special solicitude for the welfare of those who undertake to venture upon hazardous and unpredictable sea voyages,” the opinion states.

Justice Kavanaugh was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

In his dissent, Justice Neil Gorsuch said traditional tort rules – not maritime ones – held the most virtue when deciding the case because it would trigger the least amount of confusion in liability cases to come.

“The traditional rule affords manufacturers fair notice of their legal duties, lets injured consumers know who to sue and ensures courts will treat like cases alike,” Gorsuch wrote, joined by Justices Clarence Thomas and Samuel Alito.

But if liability ultimately depends on the application of “opaque” standards – like foreseeability - then it becomes harder to ensure that fairness, Gorsuch argued.

Where the actual line is drawn on liability and integrated products must also be determined, he added.  

“When does a customer’s side-by-side use of two products qualify as incorporation? Does hanging asbestos on the outside of a boiler room count? Or must asbestos be placed inside a product?” Gorsuch wrote.

“Headscratchers like these are sure to enrich lawyers and entertain law students but they also promise to leave everyone else wondering about their legal duties, rights and liabilities,” Gorsuch wrote.

Gorsuch noted that there is a “silver lining,” however to the new standard for product liability.

“Nothing in today’s opinion compels courts operating outside the maritime context to apply the test announced today,” he wrote. “In other tort cases, courts remain free to use the more sensible and historically proven common law rule.”

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