Supreme Court

How Far Should Blame for Asbestos Go?

Thanks to its role overseeing maritime law, the Supreme Court will soon rule on liability limits for manufacturers adjacent to the asbestos industry.



American law tends to favor people who sue large corporations for liability, particularly plaintiffs who've contracted mesothelioma or other ailments after being exposed to the mineral asbestos, used for decades as a construction material. But is it reasonable to order manufacturers that never made, distributed, or sold asbestos to pay for its ill effects anyway, on the grounds that they had reason to foresee that the mineral would be used in conjunction with the products they did make?

The Supreme Court considered that question when it heard Air and Liquid Systems v. DeVries in October. Questions of tort law like this generally stay in the state court system and seldom make it to SCOTUS. But the Air and Liquid Systems case is an exception. It arises from maritime law, a sector of common law entrusted to the federal judiciary and ultimately to the high court.

In the cases at hand, the Third Circuit court of appeals ruled that Navy sailors harmed by breathing asbestos fibers could sue the makers of various ship components that had been delivered in "bare-metal" form, but were subsequently clad in asbestos insulation or connected using asbestos gaskets.

While the "bare-metal" liability question before the Court will directly affect only cases filed under maritime law, it could easily influence parallel cases arising on dry land. For example, plaintiffs who worked in the automotive trade have sued manufacturers of metal brake components that cut into asbestos pads causing fibers to be released, even though the components themselves contained no asbestos.

Modern asbestos litigation, the largest body of injury litigation in history, has been described as an unending quest for the solvent defendant. Within 30 years of the first breakthrough court decisions in the 1970s, pretty much all makers of the product had been forced into bankruptcy, including many building-materials companies that used the product as one ingredient in products like flooring and roof shingles. Many of the most obvious defendants were either immune from suit—the U.S. Navy in particular, whose commissioning, building, and operation of ships accounted for a large share of exposure—or could be made to pay out only under relatively ungenerous workers' compensation laws. By century's end, lawyers were suing an estimated 2,400 companies. As billion-dollar payouts roll on, lawyers continue to develop new legal theories to sue more and more peripheral defendants in hopes of finding firms that can actually afford to pay judgments.

Thus far, bare-metal liability has not proved a greatly persuasive theory with judges. While Maryland's high court adopted it in a 2015 case, most other state courts, even those in relatively liberal California and Washington, have declined to do so, as did the Sixth Circuit federal court of appeals. When the Third Circuit ruled otherwise, it created a split with the Sixth, making certiorari review by the Supreme Court more likely.

At oral argument in October, all four liberal Justices were outspoken in pushing the case for expanded liability, even as Justice Samuel Alito and other conservatives wondered where the doctrine would stop. Would ashtray manufacturers, having facilitated smoking, be liable for its harms?

One argument, advanced repeatedly in plaintiff-side briefs and echoed by Justice Sonia Sotomayor at argument, is that maritime law takes a particular interest in the welfare of seafarers, and a rule that permits them to win more lawsuits advances their welfare.

But libertarian law professor Richard Epstein, who filed an amicus brief siding with the manufacturers, has the better of the argument. To begin with, he identifies and criticizes the use of legal doctrine here to serve as surrogate (and extremely costly) social insurance: "the bankruptcy of parties that should be liable is no reason to impose onerous liability on parties that should not be liable."

Unpredictable liability drives up the cost of government contracting and, to the extent it falls on shipbuilding, the cost of navigation, another concern of maritime law. Liability for innocent businesses constitutes "a disguised welfare scheme that is inferior in every way to that which is already in place through the United States Navy, which follows its own protocols and is thus virtually certain not to take into account any supposed warnings that the bare metal manufacturer could issue."

The Court is likely to rule on Air and Liquid Systems v. DeVries some time this spring.

NEXT: British Food Nannies Want to Slap That Burger Right Out of Your Hand

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  1. Have we reached peak stupid yet?

    1. No; there are still more elections to come – – – –

    2. Peak stupid is unobtainable. But give America credit, we keep trying.

  2. That’s a bit of a stretch if the company never sold or distributed asbestos! I mean, it seems like the mindset of “you owe me reparations eventhough you never did anything directly to harm me”…

    1. The blame should go no further than comment-bot here.

        1. I think the current crop of comment-bots are scold-proof.

        2. Bots are evil.

  3. Within 30 years of the first breakthrough court decisions in the 1970s, pretty much all makers of the product had been forced into bankruptcy, including many building-materials companies that used the product as one ingredient in products like flooring and roof shingles.

    Once you sue the home builders who used the asbestos-laced shingles and flooring, the subcontractors who installed them, the stores that sold them, the trucking companies who delivered them and the newspapers that advertised them, you’re still going to be able to sue the oil companies who sold the trucking companies the fuel for their trucks, the paper companies who made the newsprint, the automotive companies who made the sub-contractors trucks, the steel companies who made the columns and beams for the stores, the banks who gave the home builder a construction loan………there’s no end to that thread once you start pulling it.

    I just can’t wait until it gets to suing the lawyers for all these companies who failed to warn them of their liabilities ahead of this shitstorm. Dereliction of duty, you bastards!

    1. You left out the schools that trained the scientists, engineers, managers and lawyers that gave rise to every use (and law) on the subject. You aren’t going to let them all off are you?

    2. I, Pencil, in reverse.

      1. Good! Very good!

    3. Wherever the crew ate lunch that day (if Budweiser was responsible for Great White setting their audience on fire, that’s not a stretch)

  4. How about the estates of the legislators who voted the funds for the Navy to order the ships that wound up with asbestos in them? Maybe the political contributions of those politicians? How about the funds of the judges who allocate blame to blameless entities?
    Why not just pick on Bill Gates, George Soros, the Koch brothers, Bloomberg, Nancy Pelosi, and a few other random rich folks? It would be just as fair.

    1. Don’t forget the Second Continental Congress, which authorized the creation of a navy in the first place

  5. 0.125 inches.

  6. How Far Should Blame for Asbestos Go?

    Far as the curse is found, Far as the curse is found, Far as, far as the curse is found!

  7. I would expect that Trump-appointed justices, at least, will want to bring us back to reason in the form of the assumption-of-risk doctrine. If saying so makes me a Neanderthal, I’ll be one.

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