Supreme Court Weighs Third-Party Liability in Asbestos Case

WASHINGTON (CN) – The U.S. Supreme Court on Wednesday was asked to decide under what circumstances companies can be held liable under maritime law for injuries related to asbestos exposure.

The case before the court — the third on its docket for Justice Brett Kavanaugh — was  Air and Liquid Systems Corp. v. Devries. It was brought by Roberta DeVries and Shirley McAfee, both widows of Navy sailors, who claim their husbands died of lung cancer following exposure to asbestos-laden equipment used aboard various U.S. Navy vessels and shipyards.

After their husbands died, the women sued over 50 companies, including Air and Liquid Systems, for liability, claiming the companies’ manufacturing contracts with the Navy made them responsible for the injuries.

But the companies have pushed back, claiming they can’t be held liable for the dead men’s injuries because the asbestos was added to their products by third parties after the point of sale.

Shay Dvoretzky, representing the Air and Liquid Systems Corporation, told the justices that even if the exposure occured as they widows say it did, his client’s connection to the toxic goods was only incidental.

But Thomas Goldstein, the attorney for the women, said this suggestion fails to take into account the manufacturer’s responsibility to warn workers of known or possible hazards associated with the goods.

Citing Supreme Court precident, Goldstein noted that the justices have historically assigned liability at sea on a concept known as “forseeability.”

Because Air and Liquid Systems Corp. knew its products would be used with asbestos insulation, the potential harm from asbestos was easy to foresee, he said.

But Dvoretzky argued that the justices should consider the questions arising from the case as a matter of simple tort law. Tort law, he said, “places the duty to warn and also the liability on the party that is in the best position to control or avoid the harm.”

Justice Sonia Sotomayor responded by noting that the asbestos products were, at the time of sale, “perfectly safe” because the asbestos was integrated into equipment used by the sailors, primarily compressors or gaskets.

But what caused the goods degradation factored in, she said.

“What caused it to degrade is your ship, your product. [It] heats up to such an extreme degree that it degenerates the asbestos … The asbestos is in [that] shape because of what you did to it, meaning what your product did to it: it’s integrated, not standing alone,” Sotomayor said.

Dvoretsky responded by explaining that while the equipment may have degraded, this was not unusual. It’s “just what happens to asbestos when it’s used,” he said, likening it to gasoline used in a car which eventually must be replaced.

“Our product is not contributing to harm in any way that is different than what otherwise happens to asbestos,” he said.

But under normal tort law, Sotomayor said, “if you create a car that has a spark in the tank, and the gasoline, which is what explodes the car, explodes, the consumer is not going to sue the gasoline company. It’s going to sue you, the car manufacturer, because you produced a defective product that caused an injury that the gasoline would otherwise not cause. Why are you different?”

The difference is the safety of the product itself, Dvoretzky said.

While asbestos is what is causing the harm, unlike the defective car – which is creating a spark that a properly operating car should not create, thereby causing injury – Air and Liquid System’s equipment is “not making asbestos any more dangerous than it would be,” he said.

It should be up to the asbestos component manufacturers to warn users of the potential harm, not Air and Liquid, he said.

Justice Neil Gorsuch asked Dvoretzky to explain what “downsides” come with expanding the company’s duty to warn.

This would lead to “over-warning,” he said.

A “deluge” of warnings means the messages would become diluted, Dvoretzky continued. Manufacturers would also lack clarity about what they must warn about, he added, eventually increasing operational costs, he said..

Goldstein said the matter before the justices should be “uncontroversial.”

“If you make a product and the ordinary use or maintenance of that product is going to cause a harm that you know about, then you need to warn about that,” he said.

The most “efficient party” to give warning would be Air and Land, he argued, because it’s “their machine.”

Goldstein provided another hypothetical: if there’s a flashlight and the manufacturer of the batteries that go into the flashlight know, once it’s in the product, acid will leak on the users hands – wouldn’t it be the battery manufacturer’s duty to warn, he asked.

“It is technically the case that the battery inside is leaking, but you’re operating a flashlight and you’re going to be exposed to that risk,” he said.

On rebuttal, Dvoretzky pushed back a final time, saying that unlike the defective battery example, the products his client creates simply aren’t inherently dangerous in themselves.

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