Supreme Court OKs asbestos suits against non-asbestos manufacturers

Tuesday’s 6-3 decision in Air & Liquid Systems v. DeVries took an expansive view of asbestos liability in the maritime context. I discuss at Cato at Liberty:

…By requiring makers of components to pay for damages they did not cause in the name of warnings that the U.S. Navy almost certainly would not have heeded, the Court yields to an impulse to round up deep pockets lest a sympathetic set of litigants otherwise go uncompensated….

In his dissent, Gorsuch points out that [the new standard formulated by Justice Brett Kavanaugh for the majority] not only has no evident grounding in existing tort doctrine but is not in fact easy to apply or predict. …

But it seems almost quaint to ask whether a newly announced legal standard can readily be applied and predicted in the context of asbestos law, a sui generis creation in which the courts regularly extract vast sums from defendants on the basis of legal standards assuredly not recognized in law at the time those defendants acted in the 1950s, 1960s, and 1970s. The implications of assigning retrospective liability to actions lawful at the time loom large and disturbing over continuing expansions of liability like the one announced in today’s case.

6 Comments

  • Why does “ex post facto” not apply?

    • I’m not sure if there is actual court precedent on this or not, but the ex post facto clause is only considered applicable to criminal statutes. As I understand it, this goes all the way back to the founding era.

  • Doesn’t this put every manufacturer of electric and propulsion equipment on a ship, on the hook for asbestos suits? All of their equipment requires insulation, which used to be made out of asbestos, to function properly. All the pipe manufacturers, the ventilation ducts, fire protection equipment. This seems to drag everyone into the asbestos mess. What about the steel and bronze and aluminum manufacturers who supplied the raw materials, knowing that the equipment would have to be insulated?

  • The third prong of their test could be a failure point in the Court’s reasoning.
    ” iii) the manufacturer has no reason to believe that the product’s users will realize that danger.”

    Germany identified asbestos as a carcinogen in the 1930s. By the 1960s asbestos exposure was established as a cause of mesothelioma and other diseases. The U S Navy must have known, and sailors are their property. McAfee’s exposure didn’t occur until the late 1970s. Surely the Navy had protocols in place for asbestos exposure. It would be negligent not to.
    Therefore, the manufacturer could easily believe that warnings had been issued.

  • There is evidence that the Navy knew about the dangers of asbestos and refused to allow warnings to be placed on the containers the asbestos came in.

    The manufacturers of these metal products knew a warning would have done no good. The Navy would never have allowed it to be attached to the equipment.

    The Navy’s Sovereign immunity for their actions re asbestos is no reason to punish companies for providing equipment containing no asbestos for not providing a warning they would not have been allowed to provide.

  • For several decades now (ever since the last asbestos manufacturer went bankrupt), a just remedy for asbestos injuries has been obvious– a Federal compensation program, especially appropriate since much of the asbestos exposure was military. Money wasted on proving or disproving some company’s fourth-hand connection to asbestos exposure could instead be spent on treating victims. The continued inaction of Congress is an indictment of the corrupting effect of campaign contributions from the plaintiffs’ bar.

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