Shipbuilders Cleared on Veteran’s Fatal Cancer

PASADENA, Calif. (CN) - Clearing a shipbuilder for a Navy captain's fatal mesothelioma, the Ninth Circuit found Thursday that the warships where the veteran was allegedly exposed to asbestos do not qualify as "products" for strict products liability.

After James McIndoe died in 2011 from complications related to mesothelioma, the captain's widow and daughters assigned blame for the man's illness to the two Naval on which McIndoe served in the 1960s.

Both the aircraft carrier USS Coral Sea and the guided-missile cruiser USS Worden contained pipe insulation made from asbestos, and McIndoe was allegedly present on both ships when maintenance sent the toxic fibers airborne.

The McIndoe family sued Huntington Ingalls, as predecessor to the Coral Sea's shipbuilder, Northrop Grumman; and Worden shipbuilder Bath Iron Works.

A federal judge in Los Angeles granted the companies summary judgment, however, and the Ninth Circuit affirmed Thursday.

The general aim of strict products liability is to place responsibility on "the party most able to prevent harm" caused by dangerous products, and thus to incentivize proper "design and quality control" of those products.

Since the ships were never distributed commercially, the court agreed that they cannot be considered "products" for the purposes of products liability.

"These goals would be advanced little by imposing liability on the builder of a custom-ordered naval ship," Judge Diarmuid O'Scannlain said, writing for a three-person panel.

The 17-page opinion emphasizes that a shipbuilder "does not manufacture - and has little ability to control the quality of - the many thousands of component parts installed on each ship, let alone to account in its pricing for the virtually unlimited liability that would flow from a rule holding it strictly liable for their dangers."

McIndoe's exposure to asbestos during ship maintenance remains in question, but the court noted that the captain's heirs also must show that this exposure was a "substantial factor" contributing to his death.

"Even if McIndoe was around asbestos dust several times, his heirs presented no evidence regarding the amount of exposure to dust from originally installed asbestos, or critically, the duration of such exposure during any of these incidents," the ruling states (italics in opinion).

"This is precisely the sort of unbounded liability that the substantial factor test was developed to limit," O'Scannlain added.

The McIndoes were represented by Richard Grant with Brayton Purcell of Novato, Calif.,

Huntington Ingalls was represented by Daniel Kelly with Tucker Ellis in San Francisco, California.

James Parker and Charles Park, of Brydon Hugo & Parker in San Francisco, represented Bath Iron Works.

The attorneys did not return emails seeking comment.

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