George Barnes worked as a shipfitter at the Long Beach Naval Shipyard for 25 years, from 1967 to 1992. In 2005 he was diagnosed with terminal lung cancer, a condition he blamed on exposure to asbestos at the yard. A San Francisco jury agreed and awarded Barnes and his wife, both 60 years old, $10.3 million.
The jury attributed 15 percent of the legal responsibility for his illness to the Thorpe Insulation Co., the only defendant to go to trial in the case. It assigned a further 25 percent to other companies not present in the courtroom, and 5 percent to Barnes himself. And it found the predominant share of the blame-55 percent-to rest with the U.S. Navy, which operated the Long Beach Naval Shipyard from its wartime origins in 1943 through its closure in 1997.
The Navy may have been the most blameworthy party, but it was not in danger of having to write a check to Barnes or his widow. As it had done in thousands of other asbestos cases, it avoided any legal or financial responsibility through what is known as sovereign immunity-the government's freedom from being sued except in cases where it consents to let a suit go forward. Barnes was not legally barred from suing various private companies that supplied the shipyard with asbestos-related products, but many of them were defunct, often bankrupted by earlier asbestos suits. The Thorpe Insulation Co. happened to be one of the remaining still-solvent companies, but a lawyer for Barnes said the Thorpe firm would probably not have the assets left to pay even its 15 percent share of the verdict.
Asbestos exposure has been a genuine public health calamity, having caused much death and disability among exposed workers. Much of the early journalistic coverage, taking its lead from Paul Brodeur's early series in The New Yorker, has treated the episode as a case study in the callousness of private enterprise, which is said to have exposed workers to the lethal mineral for decades until at last brought to heel by the efforts of public-health activists, government regulators, and trial lawyers. That's consistent with the wider conventional view, which treats hazardous products as a sort of standing reproach to capitalism: Businesses foist such products on us in search of profit, the narrative goes, while government protects us from them. And there is much in the asbestos debacle that does reflect discredit on private companies' actions.
Yet the government, our alleged protector, has done much at all levels to promote products later assailed as needlessly unsafe, from tobacco to lead paint, from cheap handguns to Agent Orange. Often the state is at least as aware of the risks as the businesses that distribute the product, and in at least as good a position to control or prevent them. But-shaped and propelled by the incentives provided by our litigation system-our process of organized blame hardly ever puts the government in the dock.
Asbestos has been used at least since Roman times, and ancient medical authorities noted that workers whose job was to handle the fiber developed diseases of the lungs. By the early 20th century insurance companies recognized asbestos fabrication as among the occupations most dangerous to human health, and by the 1930s-that is to say, before the outbreak of World War II-workers' compensation systems listed asbestosis as a compensable condition. In short, contrary to what is sometimes imagined, the hazardousness of airborne asbestos fibers was in no way a secret somehow confined to the executive offices of asbestos-mining tycoons. It was very much common knowledge to those who took an interest in industrially caused disease, including the federal government.
From 1939 on, the U.S. government's Liberty Ship and Victory Ship programs turned the formerly sleepy American shipbuilding trade into the engine of perhaps the most intense construction program in history. In the words of the Cardozo Law School professor and asbestos-law expert Lester Brickman, "One hundred and thirty-one shipyards operated on a 24 hour a day, 7 day a week schedule, building 7,000 ships and performing 67,000 repairs." From first to last, speed was of the essence: The time needed to complete new ships was shaved to mere weeks. Asbestos to insulate the ships was deemed a vital war material, and naval officials tightly controlled the mineral's distribution, ordering it delivered to government specifications, using powers of requisition to direct its purchase from private companies, and stockpiling the results at the government's General Services Administration facility at Baton Rouge, Louisiana.
That sense of urgency helped supply Great Britain and win a two-ocean war. The same haste, however, also relaxed the sense of caution with which workplace asbestos exposures were approached. Like other experienced participants in industry, the Navy was under no illusion that the substance was somehow safe. "Asbestosis is an industrial disease of the lungs incident to the inhalation of asbestos dust for prolonged periods," observed the Navy's Surgeon General in a 1939 annual report on health conditions at the New York (Brooklyn) Navy Yard; the report pointed out that the yard's pipe-coverers and insulators were exposed to such dust. Two years later, with the Liberty Ship program in high gear, it was proposed to have an outside inspector visit the yard to look for health hazards. Navy brass vetoed the visit. Commander C.S. Stephenson wrote to an Admiral McIntire on March 11, 1941: "I told him [a Mr. Bard] that I had spoken to you and that you had indicated that President Roosevelt thought that this might not be the best policy, due to the fact that they might cause disturbance in the labor element....None of our foundaries [sic] would pass the necessary inspection to obtain workers' compensation insurance from any of the insurance organizations. I doubt if any of our foundaries would be tolerated if the State industrial health people were to make surveys of them."
As federal judge Jack Weinstein put it in a ruling on later litigation: "The Navy, though aware of the hazards posed by asbestos dust, in its urge to build its warships as quickly as possible, did not inform workers of the dangers and neglected to make available protective precautions." Indeed, the judge noted, "The evidence produced indicates that these risks were known to Government officials at least as high as the highest Navy personnel and probably known to the President of the United States."