For your delectation and delight, desultory dicta on the law of delicts.

Tort Law – Theory versus Practice

November 5th, 2020

The Journal of Tort Law was founded, in 2006, by Jules Coleman as a scholarly forum for exchange of heterodox views of tort law.  Under its current Editor In Chief, Christopher Robinette, the journal has continued its exploration of tort theory and philosophy of law. Practitioners can sharpen their practice considerably by understanding the deep structure, theory, and philosophy of tort law, but it seems equally clear that theorists can and must pay attention to what actually happens in tort litigation. Professor Robinette should thus be commended for featuring a symposium in the pages of the journal on “What Practitioners Can Teach Academics about Tort Litigation.”

A passage from Immanuel Kant’s The Critique of Pure Reason (1781) is often paraphrased as “theory without practice is empty and practice without theory is blind.”  Yogi Berra gets credit for the deeper insight that “in theory, there is no difference between theory and practice, but in practice, there is.” Professor Robinette has empowered Yogi’s world view by turning over the pages of the forthcoming issue of the Journal of Tort Law to practitioners, who offer their views on what is actually going on in tort law.

Earlier this week, the various symposium contributions to “What Practitioners Can Teach Academics about Tort Litigation” appeared online as “in press” articles at the Journal of Tort Law. The contributors come from various subdisciplines of tort law, and from differing perspectives of lawyers for pursuers and defenders. This issue will be, I believe, perfect pandemic reading. Here are the symposium articles:

Nathan A. Schachtman, “Products Liability Law – Lessons from the Military and Industrial Contexts

Malcolm E. Wheeler & Theresa Wardon Benz, “Litigation Financing: Balancing Access with Fairness,”

Paul Figley, “Defending Government Tort Litigation: Considerations for Scholars,”

Victor E. Schwartz, “Expert Testimony Needs Judges to Act as “Gatekeepers”: The Maryland Court of Appeals Teaches Why

Thomas E. Albro & Thomas M. Hendell, “What Practitioners can Teach Academics about Tort Litigation – The Plaintiff’s Perspective in Medical Malpractice Litigation”

Scott B. Cooper, “What Practitioners can Teach Academics about Tort Litigation: Auto Accidents from the Plaintiff’s Counsel

Daniel E. Cummins, “Fighting the Good Fight: The Insurance Defense Litigator

Sara M. Peters, “Shifting the Burden of Proof on Causation: The One Who Creates Uncertainty Should Bear Its Burden

As for my contribution, I can say it is a better and more succinct article for my having received suggestions from the editor, Professor Robinette. One of the casualties of page limitations, however, was my failure to acknowledge other lawyers who commented on early drafts, or who pointed me to pertinent briefs. Thank you John Garde, Kirk Hartley, Timothy Kapshandy, Michael Pichini, Robert Pisani, David Speziali, and John Ulizio, for reading drafts, listening to rants, or providing briefs. My article is better for your help, but like Donald Trump, you bear no responsibilities for any errors.

Tort Law’s Sleight of Hand – Part 6

August 11th, 2020

The dissenting justices, in an opinion by Justice Gorsuch, would have affirmed the trial court’s application of the bright-line bare metal defense, in DeVries. Citing black-letter law as restated by the American Law Institute, the dissent opined that the common law precedent and policy favored a rule that “the supplier of a product generally must warn about only those risks associated with the product itself, not those associated with the ‘products and systems into which [it later may be] integrated’.”[1]

The dissent criticized the court’s retrospective imposition of a liability rule and its ignoring common law precedent, as well as the unpredictability and cost of the court’s new rule, and the breadth and the difficulty of cabining the three-part test. As part of its criticism of the majority opinion, the dissent argued that the stated rule will lead to incoherent and incongruous results, and presented a parade of horribles that might arise within the scope of the new rule:

“The traditional common law rule [which would recognize the bare metal defense] better accords, too, with consumer expectations. A home chef who buys a butcher’s knife may expect to read warnings about the dangers of knives but not about the dangers of undercooked meat. Likewise, a purchaser of gasoline may expect to see warnings at the pump about its flammability but not about the dangers of recklessly driving a car.”[2]

How telling that all the envisioned bad legal consequences involve one-on-one consumer cases, without the presence of a sophisticated employer as intermediary, operating under a complex regulatory scheme to provide a comprehensive safety program to the end user!

The dissent continues its vision of bad consequences by contemplating the substantial costs placed upon product manufacturers whose products are meant to be used with other companies’ products:

“Consider what might follow if the Court’s standard were widely adopted in tort law. Would a company that sells smartphone cases have to warn about the risk of exposure to cell phone radiation? Would a car maker have to warn about the risks of improperly stored antifreeze? Would a manufacturer of flashlights have to warn about the risks associated with leaking batteries? Would a seller of hot dog buns have to warn about the health risks of consuming processed meat?”[3]

Again, the dissent is fixated on consumer products, used by ordinary consumers, outside of a heavily regulated workplace, and without the need for a highly technical industrial hygiene safety regimen.

When the dissent considered the issue of who was in the best position to warn, Justice Gorsuch simply argued, without evidence, that the parts supplier, not the bare metal manufacturer was in the “best position” to warn:

“The manufacturer of a product is in the best position to understand and warn users about its risks; in the language of law and economics, those who make products are generally the least-cost avoiders of their risks. By placing the duty to warn on a product’s manufacturer, we force it to internalize the full cost of any injuries caused by inadequate warnings—and in that way ensure it is fully incentivized to provide adequate warnings. By contrast, we dilute the incentive of a manufacturer to warn about the dangers of its products when we require other people to share the duty to warn and its corresponding costs.”[4]

Of course, in McAffee’s case, the asbestos insulation manufacturers had been warning for over a decade before he started his service in the Navy. As documented by the plaintiffs’ own expert witness, Barry Castleman:

“In 1964, Johns-Manville (“J-M”) was among the first companies to provide warnings with its asbestos-containing products, namely its asbestos insulation. During and after this time frame, J-M sold asbestos insulation to the United States military. In any extensive review of J-M documents, which have included visits to the J-M archives in Denver, Colorado, I have never seen any evidence that J-M removed or altered the warning labels that appeared on its asbestos insulation for sales to the United States military.”[5]

As for the argument without evidence about which party, bare metal manufacturer or asbestos-insulation manufacturer, can “best” warn, all the justices ignored the party that can truly best warn, the government. Placing liability on any supplier dilutes the incentive for the Navy to carry out its statutory duties. As Justice Gorsuch acknowledged:

“Tort law is supposed to be about aligning liability with responsibility, not mandating a social insurance policy in which everyone must pay for everyone else’s mistakes.”[6]

It really is time for remote suppliers to stop having to pay for injuries caused by their purchasers, especially when the purchasers are knowledgeable and have duties to protect their employees from the injuries claims.

As disconnected as the justices in DeVries were from the realities of military service-related and industrial injuries, there is some good news to come out of the high court. First, despite the suggestions of why there might be a duty, the  Court did not hold that there was a duty; it provided three considerations for the trial court’s determining whether a duty exists, on remand.

Second, the Court located the relevant considerations for the existence and scope of a putative duty in Section 388. Although all the justices missed the relevance of this section to the three-way industrial situation, the case law under Section 388 is voluminous, and speaks directly to the situation of a “chattel to be supplied for the use of another.” In fairness to the Court, and to the parties, the case did not go up on appeal on the basis of a “sophisticated intermediary” defense. Summary judgment had been granted below on the simple notion that a seller should not be responsible for warning of another company’s product. The manufacturer appellants did extensively discuss Navy knowledge or changing “state of the art,” in their briefs. At best, the appellants’  discussions were tangential. The shape of the initial summary judgment motion may have been shaped by an earlier decision of the asbestos MDL court, which rejected the sophisticated intermediary defense under maritime law.[7] The Supreme Court’s embrace of Section 388, and its incorporation of 388’s standards, into the three articulated conditions for the existence of a duty (and particularly into the third condition, “the manufacturer has no reason to believe that the product’s users will realize that danger.”).

Third, there is a renewed summary judgment motion now pending before the MDL court. In addition to now explicitly raising a government contractor defense,[8] the defendants have carefully marshaled the evidence of Navy knowledge to show that the third condition of DeVries must necessarily fail: the manufacturer had ample reason to believe that the product’s users will realize the relevant danger.[9]

[1]  DeVries, 139 S.Ct. at 997 (Gorsuch, J., dissenting) (quoting from Restatement (Third) of Torts: Products Liability § 5, Comment b, p. 132 (1997)).

[2]  DeVries, 139 S.Ct. at 998 (Gorsuch, J., dissenting).

[3]  DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting).

[4]  DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting) (citing Steven Shavell, Economic Analysis of Accident Law 17 (1987); Guido Calabresi, The Costs of Accidents 135 & n. 1 (1970); Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 324 (1964)).

[5]  Declaration of Barry L. Castleman (July 18, 2008), in Joint Appendix, vol. 2,  at 462, in Air and Liquid Systems Corp. v. DeVries, No. 17-1104 (filed July 9, 2018), available at <>

[6]  DeVries, 139 S.Ct. at 999 (Gorsuch, J., dissenting).

[7]  Mack v. General Electric Co., 896 F. Supp. 2d 333 (E.D. Pa. 2012).

[8]  Boyle v. United Technologies Corp., 487 U.S. 500 (1988).

[9]  See Memorandum of Law in support of Defendant General Electric Company’s Renewed Motion for Summary Judgment, in DeVries v. General Elec. Co., no. 5:13-cv-00474-ER, docket entry no. 396 (E.D. Pa. filed April, 1, 2020).

Tort Law’s Sleight of Hand – Part 5

August 10th, 2020

A supreme flouting of the military and industrial contexts can be found in DeVries v. Air & Liquid Systems Corporation,[1] where two former Navy sailors, plaintiffs John DeVries and Kenneth McAffee, sued asbestos-containing product manufacturers and some non-asbestos product manufacturers on claims that they developed lung cancer from their workplace exposure to asbestos. DeVries served in the Navy from 1957 to 1960; McAffee served from 1977 to 1980, and 1982 to 1986. The asbestos-containing product manufacturers settled or were bankrupt. The non-asbestos products were pumps, turbines, and blowers, which plaintiffs alleged required asbestos –containing insulation to be affixed when installed in naval ships. The plaintiffs brought their suits for failure to warn, in the Philadelphia Court of Common Pleas, but defendants removed to the federal asbestos multi-district litigation (MDL) court, invoking maritime jurisdiction. The MDL trial judge granted summary judgment to the non-asbestos product manufacturers on their “bare metal” defense, on the basis of the absence of asbestos in their products and the absence of any duty to warn about asbestos in another manufacturer’s product.[2] The Third Circuit reversed the judgments on ground that the duty question turned on “forseeability” of the asbestos products’ being added to the bare metal products, and remanded to the MDL court for further consideration.[3] The Supreme Court granted the bare metal manufacturers’ petition for certiorari, and nominally affirmed the remand to the MDL court, but unanimously reversed the Third Circuit’s holding based upon forseeability.

The Supreme Court split, however, on what the appropriate standard for assessing the existence of a duty, vel non, in maritime law, where the federal courts must act as common law courts in developing legal rules and principles. Three justices, in dissent, would have applied a bright-line bare metal defense, as contended for by petitioners.[4] The majority eschewed both the invariant bare metal defense and the Third Circuit’s infinitely flexible forseeability test, for a “third way.”[5]

The third way consisted of a three-part test articulated by the majority; a product manufacturer has a duty to warn when:

“(i) its product requires incorporation of a part,

(ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and

(iii) the manufacturer has no reason to believe that the product’s users will realize that danger.”[6]

The court’s stated standard is much less interesting than its reasoning process, which goes 2020. The majority starts with “basic tort-law principles,” a seemingly good place. Even more encouraging, the majority looks to Restatement (Second) of Torts § 388, p. 301 (1963–1964), for defining the “general duty of care includes a duty to warn when the manufacturer

“knows or has reason to know” that its product “is or is likely to be dangerous for the use for which it is supplied” and the manufacturer “has no reason to believe” that the product’s users will realize that danger.”[7]

Starting with Section 388 is excellent, but the majority studiously ignored the rich commentary and case law that addresses this general duty in the context of sales of products to intermediaries. Based upon Section 388, the majority argues that there is no legal daylight between having a duty to warn for a product that is “dangerous in and of itself,” or for a product that will become dangerous when integrated with other products, the hazards of which the product manufacturers knows or should know. For its equating the two situations, the majority adverts to a comment to the Restatement (Third) of Torts, which suggests that “warnings also may be needed to inform users and consumers of nonobvious and not generally known risks that unavoidably inhere in using or consuming the product”.[8]

The majority, having found a possible source of the bare metal defendants to warn, sadly takes no time in assessing whether warnings were needed by the United States government, and whether the hazards were obvious and generally known. Here the two plaintiffs’ cases diverge. DeVries served in the Navy from 1957 to 1960, when there were some studies that associated lung cancer with chronic overexposure to asbestos that had resulted in asbestosis. The key study was conducted by Sir Richard Doll in 1955, which showed the association but only among those who had been overexposed in the early years of the manufacturing plant.[9] There was no causal inference claimed, and Doll had not controlled for smoking histories. The causal relationship between lung cancer and asbestos exposure that does not give rise to asbestosis is still controversial, and was not suggested until long after DeVries left his service. Similarly, the relationship between mesothelioma (which neither plaintiff had) and blue asbestos (crocidolite) was not seriously entertained until 1960, and only after for other types of asbestos minerals.[10] By the time McAffee started his service in 1977, most insulation products sold to other than the Navy no longer contained asbestos, and the hazards of asbestos were certainly known to employers, unions, and of course, to the federal government.

In addition to the temporal disconnect, the majority gave virtually no consideration to the three-way relationship between the product supplier defendants, the plaintiffs, and the plaintiffs’ employer, the United States government. After casually noting that the plaintiffs did not sue the government because of their apparent belief that “the Navy was immune,”[11] the majority attempted its justification of its standard for a duty to warn, with the usual non-evidence based recitation of policies, and without any mention of the Navy as employer, manufacturer and owner of vessels, and supervisor of workplace.

1. The bare metal defendants argued that warnings cost time and money, but the majority seemed to think otherwise; warnings are inexpensive and easy to give, which counted in favor of finding a duty to warn. The majority characterized the duty as already existing for the bare metal product, and that the burden to warn of another entity’s product “usually is not significant,” and warning for the intended uses of the integrate product “should not meaningfully add to that burden.”[12]

The majority gave no consideration to the cost of having one’s warnings endlessly second guessed in an unpredictable legal system, the effect of insurability and insurance premiums, and the risk of misjudging where the “knowledge” needle might land decades later, when courts and juries judge adequacy of warnings through the retrospectroscope, with the help of tendentious expert witnessing. Perhaps more important, the majority ignored the context of the bare metal defendants’ having sold to the federal government, with its massive knowledge infrastructure of the National Academies of Science, Engineering, and Medicine, the Centers for Disease Control, the National Institute for Occupational Safety and Health, just to name a few. The hazard from the asbestos-containing components was conditional; it could arise only when work on the integrate product disturbed and aerosolized the asbestos insulation, gasket, or other component. Only the government employer would know whether, when, and how this might happen. There is no identifiable hazard from non-aerosolized, non-respirable asbestos products. The mere presence of an asbestos-containing product on the ship is not a hazard to sailors. The mean ambient asbestos fiber (all types) concentration on ships has been measured to be 0.008 fibers/cubic centimeter, well below the current OSHA permissible exposure limit for asbestos.[13] Of course, these levels would be higher at times and places when the Navy required workers to maintain pumps, blowers, or turbines, but only the Navy would know what asbestos levels it was generating by its required work. Only the Navy was required to provide industrial hygiene techniques (including ventilation, wetting, isolation, respiratory protection, appropriate to the circumstances it created.

There is one additional wrinkle to the glib rationale that warnings are easy to give. In opposing defendants’ petition for certiorari, plaintiffs noted that “Mr. DeVries did not know who manufactured the [asbestos-containing] replacement components or “wear parts” that they installed because these parts had been removed from the packaging when the parts were delivered to the engineering spaces.”[14] The plaintiffs offered this fact as a reason why they could not identify the manufacturers of asbestos-containing products that were used on board ship. The fact has much greater salience for the claim that warnings could be easily given. Starting in 1964, Johns-Manville Corporation, the major manufacturer of asbestos-containing insulation, started warning. (The incurious Supreme Court, both majority and dissent, was oblivious to this fact as well as the extensive regulation of asbestos-containing products by the federal government.) Given the nature of the insulation, Johns-Manville and other companies, affixed their warnings to the cardboard packaging in which the insulation shipped. The Navy, however, removed all insulation from its packaging on shore before delivering it to workers, or to storage, on vessels. Cardboard was a serious fire hazard on ship.

The government so completely controlled the workplace that a verbal warning at the time of the sale would be meaningless compared with the comprehensive duty of the Navy, as employer, to educate and train, to supervisor, and to discipline its employees. The law does not know useless acts.[15]

2. A correlative, airy fairy rationale for why warnings might be required is that warnings would allow workers to exercise the choice to wear a respirator. The majority asserts that “[i]f the manufacturers had provided warnings, the workers on the ships presumably could have worn respiratory masks and thereby avoided the danger.”[16]

If the justices signing on to this majority opinion had given this any thought, they might have wondered where Navy sailors, on board ship, would obtain respiratory masks. They could not very well just duck out to the local hardware store; nor would they know what respirator to purchase. They might ask their supervising officer, but the selection of a respirator turns on the kinds of dusts and fumes, their measured levels, both average and peak intensities. Before industrial respirators are assigned, medical personnel must determine the respiratory competence of the workers assigned to wear them. Facial hair must be removed. Ambient heat levels must be factored in to the decision to require respirators to be worn, and for how long. Respirators that would filter asbestos fibers invariably have canisters that hold replaceable filters, which must be inspected and periodically replaced. Respirator use cannot and does not happen in the industrial context at the judgment of employees, who lack the sophisticated measuring devices to assess the actual contaminant air levels. Furthermore, industrial hygiene practice has, for the last 90 years, made the respirator the last choice in comprehensive safety programs, which must start with product substitution, ventilation, wetting techniques, worker rotation, and other measures, all of which would have part of a comprehensive safety program implemented by the Navy.

3. The majority, citing no evidence in the record or anywhere on Planet Earth, argued that “importantly, the product manufacturer will often be in a better position than the parts manufacturer to warn of the danger from the integrated product.”[17] The majority goes on to assert that:

“The product manufacturer knows the nature of the ultimate integrated product and is typically more aware of the risks associated with that integrated product. By contrast, a parts manufacturer may be aware only that its part could conceivably be used in any number of ways in any number of products. A parts manufacturer may not always be aware that its part will be used in a way that poses a risk of danger.”[18

The majority does not even attempt to argue that its ungrounded generalizations have any relevance to the bare metal suppliers vis-à-vis asbestos-containing product manufacturers.

4. Perhaps the most delicious irony served up by the majority for its holding is the “Special Solicitude for Sailors,”[19] that maritime law provides. The majority tells us that:

“[m]aritime law has always recognized a ‘special solicitude for the welfare’ of those who undertake to ‘venture upon hazardous and unpredictable sea voyages’.”[20]

The majority cited several cases for this “special solicitude,” but three of the cited cases involved suits against the vessel owners or operators.[21] The remaining case cited was a consumer case against a jet-ski manufacturer, in which the Court rejected the application of maritime law, and so no special solicitude there.[22]

Invoking “special solicitude” on the facts of DeVries is akin to arguing for an extension of products liability for a product that caused a workplace accident because the non-party employer has a common law duty to provide a safe workplace. To cap off this non-sequitur, Justice Kavanaugh, the author of the majority opinion in DeVries, joined the majority opinion in The Dutra Group v. Batterton, decided the same term as DeVries, in which the Court announced that the special solicitude towards sailors has only a small role to play in contemporary maritime law.[23] A foolish consistency may be the hobgoblin of little minds, but it may be the least we can expect from due process.

5. The last motive for the majority’s rejecting the bare metal defense was the poor-mouthing raised by the plaintiffs who “could not recover much from the manufacturers of the asbestos insulation and asbestos parts because those manufacturers had gone bankrupt.” The majority did not expand upon this as a “reason,” but again the fact of multiple bankruptcies explains little and justifies nothing. Over 100 companies have gone bankrupt in whole or in part because of the asbestos litigation.[24] This economic devastation would suggest that rational limits on liability should be sought rather than imposing substantial liability upon companies that did not sell the asbestos-containing product that arguably contributed to the plaintiffs’ injuries. The bankruptcies that the majority tangentially referenced have distorted the litigation process substantially. Not only have they create a crushing burden on the remaining defendants under joint and several liability rules,[25] they have created a litigation environment in which product identification of the bankrupt companies’ products is fraudulent, or conveniently, suppressed.[26]

Furthermore, the poor-mouthing was unwarranted. There had been solvent defendants other than the bare metal suppliers, and the plaintiffs had ample opportunity to collect from the many bankruptcy trusts. As veterans, the plaintiffs had access to medical care through the Veterans Administration, as well as benefits for service-related injuries.

[1]  ___ U.S. ___, 139 S.Ct. 986 (2019).

[2]  DeVries v. General Electric Co., 188 F. Supp. 3d 454 (E.D. Pa. 2016).

[3]  In re Asbestos Prods. Liab. Litig. (No. VI), 873 F.3d 232 (3d Cir. 2017).

[4]  ___ U.S. ___, 139 S.Ct. 986, 996 (2019) (Gorsuch, J., dissenting) (joined by Alito, J., and Thomas, J.)

[5]  This third way is likely to be as successful as its historical predecessor. See Graham Greene, The Quiet American (1955).

[6]  DeVries, 139 S.Ct. at 991. In this short opinion, the majority repeated its three-part test three times. Id. at 993-94, and 995.

[7]  DeVries, 139 S.Ct. at 994.

[8]  Id., citing and quoting Restatement (Third) of Torts: Products Liability § 2, Comment i, p. 30 (1997)

[9]  Richard Doll, “Mortality from Lung Cancer in Asbestos Workers,”  12 Br. J. Indus. Med. 81 (1955).

[10]  See J. Christopher Wagner, C.A. Sleggs, and Paul Marchand, “Diffuse pleural mesothelioma and asbestos exposure in the North Western Cape Province,” 17 Br. J. Indus. Med. 260 (1960); J. Christopher Wagner, “The discovery of the association between blue asbestos and mesotheliomas and the aftermath,” 48 Br. J. Indus. Med. 399 (1991).

[11]  DeVries, 139 S.Ct. at 992 (citing Feres v. United States, 340 U.S. 135 (1950)).

[12]  Id. at 994-95.

[13]  Dana M. Murbach, Amy K. Madl, Ken M. Unice, Jeffrey S. Knutsen, Pamela S. Chapman, Jay L. Brown, and Dennis J. Paustenbach, “Airborne concentrations of asbestos onboard maritime shipping vessels (1978-1992),” 52 Ann. Occup. Hyg. 267 (2008).

[14]  Brief in Opposition to Petition for Certiorari at 2, in Air & Liquid Systems Corp. v. DeVries, No. 17-1104, U.S. Supreme Court (filed Mar. 23, 2018).

[15]  The fundamental tenet in our jurisprudence has been expressed in various ways, including as the ancient maxim “lex non cogit ad inutilia.” Ohio v. Roberts, 448 U.S. 56, 74 (1980) (“The law does not require the doing of a futile act.”); Cary v. Curtis, 44 U.S. 236, 246 (1845) (“[T]he law never requires … a vain act.”); New York, New Haven & Hartford R.R. v. lannoti, 567 F.2d 166, 180 (2d Cir. 1977) (“The law does not require that one act in vain.”); Terminal Freight Handling Co. v. Solien, 444 F.2d 699, 707 (8th Cir. 1971) (“The law does not and should not require the doing of useless acts.”); Bohnen v. Harrison, 127 F. Supp. 232, 234 (N.D. Ill. 1955) (“It is fundamental that the law does not require the performance of useless acts.”); Stevens v. United States, 2 Ct. Cl. 95 (U.S. Ct. Cl. 1866) (“[T]he law does not require the performance of a useless act.”);  In re Anthony B., 735 A.2d 893, 901 (Conn. 1999) (“It is axiomatic that the law does not require a useless and futile act.”); Wilmette Partners v. Hamel, 594 N.E.2d 1177, 1187 (Ill. App. 1992) (“[I]t is a basic legal tenet that the law never requires a useless act.”); People v. Greene Co. Supervisors, 12 Barb. 217, 1851 WL 5372, at *3 (N.Y. Sup. Ct. 1851). See also Seaconsar Far East, Ltd. v. Bank Markazi Jomhouri Islami Iran, [1999] I Lloyd’s Rep. 36, 39 (English Court of Appeal 1998).

[16]  DeVries, 139 S.Ct. at 992.

[17]  DeVries, 139 S.Ct. at 994. The majority did cite Guido Calabresi’s text, The Costs of Accidents 311–318 (1970), but this is hardly empirical evidence of any of the extravagant claims made by the court.

[18]  Id.

[19]  Not to be confused with a bar of this name in New Orleans.

[20]  DeVries, 139 S.Ct. at 995.

[21]  Moragne v. States Marine Lines, Inc., 398 U.S. 375, 376 (1970) (suit against vessel owner); American Export Lines, Inc. v. Alvez, 446 U.S. 274 , 285 (1980) (suit against vessel owner); Miles v. Apex Marine Corp., 498 U.S. 19, 21-22 (1990) (suit against vessel’s operators and owner).

[22]  Yamaha Motor Corp. v Calhoun, 516 U.S. 199, 202, 213 (1996) (rejecting maritime law and applying state law in jet ski accident).

[23]  The Dutra Group v. Batterton, ___ U.S. ___, 139 S.Ct. 2275, 2287 (2019) (holding that maritime law does not countenance punitive damage awards, special solicitude or not). See generally Tod Duncan, “Air & Liquid Systems Corporation v. DeVries: Barely Afloat,” 97 Denver L. Rev. 621, 636 (2020) (criticizing the majority opinion’s reliance upon he special solicitude rationale without considering its relevance or appropriateness).

[24]  Crowell & Moring, “List of asbestos bankruptcy cases” (Jan. 24, 2020).

[25]  Lloyd Dixon & Geoffrey McGovern, “Bankruptcy Trusts Complicate the Outcomes of Asbestos Lawsuits,” Rand Research Paper (2015).

[26]  Lloyd Dixon & Geoffrey McGovern, “Bankruptcy’s Effect on Product Identification in Asbestos Personal Injury Cases,” Rand Research Report (2015) (noting that bankruptcy increases the likelihood that the bankrupt’s products will not be identified in subsequent tort case discovery).

Tort Law’s Sleight of Hand – Part 4

August 8th, 2020

Beshada’s refusal to consider the industrial context of asbestos claims, with the usual involvement of sophisticated employers charged with providing a complex safety program for its workers, became the judicial norm in many decisions in state and federal courts. Ostensibly this alleged inequality of knowledge about latent hazards would justify limiting the application of the sophisticated intermediary doctrine. Many courts accepted the claim, often without evidence, that the dissemination of knowledge of asbestos hazards was different from the pervasive understanding of silica, cobalt, beryllium, benzene, and other hazards.

Low-level, or short and intense exposures to one kind of asbestos, crocidolite, is associated with mesothelioma, but many manufacturers did not use crocidolite in their products and the knowledge about this danger of crocidolite emerged in a very dramatic and public way such that there was not likely to be any “secret” knowledge held back by the product manufacturers. The scientific evidence of the carcinogenicity of other fibers emerged at different times, and with respect to mesothelioma, there is clearly a dramatic difference in hazardous potentials between and among the different mineral fibers that make up the commercial category of asbestos. Clearly some courts have been impressed by the special hazards of “asbestos,” from even fleeting or nominal exposures, without distinguishing mineral fiber types.

In 1985, the Fourth Circuit, applying Virginia law, refused to apply the learning of Section 388 to an asbestos case arising out of employment by the Newport News Shipbuilding and Drydock Company. Without citing any evidence, the court explained that the defense was unavailable because the hazard was “very great,” the burden to warn was “not great,” and the employer was unaware of asbestos hazards during plaintiffs’ employment before 1964.[1] The employer at issue was a huge industrial concern, with an extensive industrial hygiene department. Furthermore, the shipyard was building ships for the United States Navy, under Navy supervision of almost a century when these cases were filed.

In 1990, the Fourth Circuit held in Willis v. Raymark Industies, that its previous 1985 decision was binding, even though the Willis case involved employees of E.I. du Pont & Nemours Company, a different employer from the court’s previous case.[2] The legal irony was thick. A year earlier, in 1989, the New Jersey Supreme Court affirmed a judgment against du Pont in a case brought by employees who established at trial that their employer had intentionally harmed them with respect to their use of asbestos.[3] One of the plaintiffs’ key “state of the art” witnesses throughout the 1980s and 1990s was Gerrit W. H. Schepers, who was the directory of the pathology laboratory at du Pont in the 1950s, and went on to work for the United States government in the 1960s and 1970s. As a testifying expert witness for plaintiffs, Schepers attempted to establish knowledge of asbestos hazards throughout the 1940s and afterwards.

Asbestos manufacturing defendants fared slightly better in front of Judge Jack Weinstein, after New York modified its statute of limitations to include a discovery rule for latent diseases arising from asbestos exposure. The defendants moved to dismiss the claims under the sophisticated intermediary doctrine.[4] In its analysis, citing New York and general case law support, the Judge Weinstein acknowledged the general availability of the doctrine, noting that:

“In certain circumstances, if the chain of distribution is such that the duty to warn ultimate users logically falls upon an intermediary in the chain, instead of the manufacturer, the “sophisticated intermediary” doctrine may completely protect a manufacturer from liability under a theory of negligence.”[5]

Judge Weinstein stopped short, however, of recognizing the sophisticated intermediary defense as dispositive in asbestos cases because, “the latent quality of the defect in asbestos products makes the issue of sophisticated intermediary and intervening negligence questions of fact for the jury to decide.”[6]

The rationale did not, however, explain very much, given that virtually all the sophisticated intermediary cases involved a latent defect. Judge Weinstein gave virtually no consideration to the extensive knowledge the United States government had about asbestos hazards in its shipyards, at all times that were material to the cases before him.

Knowledge of hazards of any product may change over time, as can the regulatory context for the use of the product. In 1970, the Occupational and Safety Health Act (OSHA)[7] went into effect, and essentially federalized employers’ obligations to provide comprehensive safety programs. The federal government gained increased authority to establish and enforce safety and health standards for virtually all workers in the United Sates. Previously, only companies with federal contracts were subject to regulations and inspections under the Walsh-Healy Act.

In 1971, President Nixon signed an Executive Order that acknowledged that the federal government, as the country’s largest employer:

“has a special obligation to set an example for safe and healthful employment. It is appropriate that the Federal Government strengthen its efforts to assure safe and healthful working conditions for its own employees.”[8]

The Order went on to make OSHA regulations applicable to federal places of employment.

After the passage of OSHA, employers in both the private and public sectors could no longer legitimately claim ignorance of their obligations to provide a comprehensive safety program that included engineering and administrative controls over respirable dusts and fumes. Detailed regulations concerning respirators, when and how they should be selected, used, fitted, cleaned, and replaced became national law.

The passage of OSHA affected courts’ willingness to extend Section 388 to asbestos personal injury cases. In some cases involving exposures after the creation of federal OSHA, courts have upheld the applicability of the sophisticated intermediary as a complete legal defense. For example, in Triplett v. Minnesota Mining & Manufacturing Company, the court, applying Indiana law, granted summary judgment to a respirator manufacturer, on basis of the sophisticated intermediary defense, in a post-OSHA asbestos lung cancer case.[9] Similarly, in Bean v. Asbestos Corporation Limited, a Virginia trial court upheld the defense for asbestos sales after 1970.[10] The courts in Triplett and Bean emphasized the equality of knowledge of asbestos hazards among suppliers and employers. In essence, the courts were taking judicial notice, based upon OSHA, that employers were knowledgeable and sophisticated about the relevant hazards.

In the early days of the asbestos litigation,[11] defendants made several attempts to implead the government, or to sue for indemnification after settling. With some few exceptions, these efforts were largely unsuccessful.[12]  There is, however, a huge corpus of primary historical documents that evidences the Navy’s extensive and sophisticated knowledge and expertise in the hazards of asbestos exposure.  In 1842, Congress enacted legislation that included the creation of the Navy Bureau of Medicine and Surgery (BUMED). Congressional legislation in 1871 gave the chief of BUMED the title of Surgeon General, with the rank of commodore. In addition to BUMED, the Navy would develop several operational divisions, including Naval Operations, Office of Naval Research, Office of Industrial Relations, Bureau of Naval Personnel, and Bureau of Ships, with overlapping responsibilities for health and safety. The Navy regarded asbestos insulation and fireproofing as essential to its military goals, and these multiple divisions all addressed safe use of asbestos materials.

Since at least 1922, the Navy kept informed of occupational hazards, including asbestos, through its own research, and through input from the Public Health Service and from other published research.[13] As war production of naval vessels ramped up in 1940, the Navy took an extensive interest in asbestos safety, both for Naval shipyards, as well as for private commercial shipyards that were constructing naval vessels.[14] The Navy published various journals and magazines to disseminate information to its medical and safety officers. Some of the relevant publications were Safety Review, starting in 1944, United States Navy Medicine, The Naval Medical Bulletin, and United States Navy Medical News Letter.

In the post-war era, the Navy remained intensely interested in the developing scientific record of asbestos hazards. Just as an example of the Navy’s continued monitoring of occupational health and safety developments from the academic, industrial, and labor communities, the reader may wish to look at the published Proceedings of the Third Annual Navy Industrial Health Conference (April 1951). This publication included an attendance list several pages long, showing naval officers from Naval Operations, Office of Naval Research, Office of Industrial Relations, Bureau of Ordinance, Bureau of Naval Personnel, and Bureau of Ships. The chief industrial hygienist from each Naval Shipyard was in attendance. The Navy’s conference was held concurrently with conferences of the Industrial Medical Association, and the American Conference of Industrial Hygiene Association. Over 100 medical officers, medical service corps industrial health officers, civilian industrial hygienists and nurses, from over 80 Navy stations and shipyards attended. Here is how the Proceedings described the Navy’s efforts:

“Industrial health is not new in the Navy. An occupational health service, similar to those in effect at great corporations as General Motors, Du Pont, Westinghouse and many others, has been functioning since 1941. * * *

The Navy has been in the forefront, along with other government agencies and great private corporations in developing an effective occupational health program. This period of defense mobilization finds the Navy among the leaders in the field or industrial medicine and industrial hygiene.”

The Navy was well aware of the increasing evidence of associations between asbestos exposures and some cancer outcomes.  Not that the Navy needed any warnings, in 1968, Irving Selikoff, of Mt. Sinai Medical Center, made a splashy media story about his having “warned” the Navy and other branches of the government about asbestos cancer hazards.[15]

For those who do have years to commit to reviewing the primary historical evidence, there is a substantial historical literature of secondary evidence that summarizes the key historical evidence.[16] The massive weight of the primary and secondary evidence makes incontrovertible the conclusion that the United States had equal or greater knowledge of the hazards of asbestos at all relevant times, and that the government was in a vastly superior position to control asbestos exposures, outfit employees and servicemen with personal protective devices, and to communicate risk information.

The tort law significance of the Navy knowledge is great. Historically, a large percentage of asbestos personal injury claims have been filed by Navy sailors and civilian shipyard workers at Navy and private contract shipyards, where they worked on naval vessels that incorporated asbestos-containing insulation products.

In some states, employer knowledge was inadmissible in strict liability cases, and plaintiffs’ counsel would withdraw their negligence claims when they saw that defense counsel were prepared to implicate the government and its extensive knowledge. Even in so-called strict liability cases, the intermediary’s knowledge had important potential in defending against punitive damage claims, which were often still in the case. And in some states, employer knowledge remained a defense in products liability trials, even when summary judgments were not given.[17]

In the Philadelphia County, Pennsylvania, asbestos litigation, plaintiffs’ counsel soon learned that reverse-bifurcation fit their litigation model perfectly: quick, inexpensive trials without the bother of countering liability defenses. When defendants occasionally found a judge who would permit all-issue trials, and they presented “state-of-the-art” or sophisticated intermediary defenses, they often surprised themselves as well as plaintiffs’ counsel and judges with their success.[18]

[1]  Oman v. Johns-Manville Corp., 764 F.2d 224, 233 & n.5 (4th Cir. 1985), cert. denied sub nom. Oman v. H.K. Porter, 474 U.S. 970 (1985). In 1985, the Fourth Circuit decided Beale v. Hardy, 469 F.2d 213 (4th Cir. 1985), which held that Section 388 was a complete defense in silicosis cases under Virginia law, in the absence of any warnings.

[2]  Willis v. Raymark Indus., Inc., 905 F.2d 793, 797 (4th Cir. 1990) (disallowing sophisticated intermediary defense based upon unsupportable factual predicate).

[3]  Millison v. EI Du Pont De Nemours & Co., 115 N.J. 252, 558 A.2d 461 (1989).

[4]  In re Joint Eastern & Southern District Asbestos Litig., 827 F. Supp. 1014 (S.D.N.Y. 1993).

[5]  827 F. Supp. at 1055 (citing both the Goodbar case and Restatement (Second) § 388).

[6]  Id. at 1055 (citations omitted).

[7]  84 Stat. 1590 (1970)

[8]  Executive Order 11612—Occupational Safety and Health Programs for Federal Employees (July 26, 1971), available at, last visited Aug. 7, 2020.

[9]  422 F. Supp. 2d 779 (W.D. Ky. 2006).

[10]  1998 WL 972122 (Va. Cir. Ct. 1998).

[11]  Dube v. Pittsburgh Corning Corp., 870 F.2d 790, 796-800 (1st Cir.1989) (holding that the government’s failure to warn of asbestos exposure hazards was not protected by discretionary function exception to the Federal Tort Claims Act, when Government never made affirmative decision whether to warn).

[12]  See generally Susan L. Barna, “Abandoning Ship: Government Liability for Shipyard Asbestos Exposures,” 67 New York Univ. L. Rev. 1034 (1992) (describing multiple attempts to obtain contribution or indemnification); Statement of Linda G. Morra, Associate Director Human Resources Division, on behalf of the United States General Accounting Office, “The Status of Asbestos Claims Against The Federal Government”; before the House Committee on the Judiciary, Subcommittee on Administrative Law and Governmental Relations (June 30, 1988).

[13]  See Louis Israel Dublin & Philip Leiboff, “Occupation Hazards and Diagnostic Signs: A Guide to Impairments to Be Looked for in Hazardous Occupations”; U.S. Bureau of Labor Statistics Bull. No. 306 (1922), republished as “Notes on Preventive Medicine for Medical Officers, United States Navy; Instructions to Medical Officers,” in 17 Division of Preventive Medicine 883, 898 (1922) (describing signs and symptoms of pneumoconiosis caused by chronic occupational asbestos exposure). Of course, the Navy was bound by the knowledge of the public health agencies as a matter of law. See Miller v. Diamond Shamrock Co., 275 F.3d 414, 422-23 (5th Cir. 2001) (“There can be no reasonable dispute that knowledge possessed by the United States Public Health Service, the Army Chemical Corps Chemical Warfare Laboratories, the President’s Science Advisory Committee, the National Academy of Sciences, the Office of the Army Surgeon General, the Navy’s Bureau of Medicine and Surgery, and the Advanced Research Project Agency of the Department of Defense is the knowledge of the military.”)

[14]  Ernest M. Brown, “Industrial hygiene and the Navy in national defense,” 1 War Medicine 3 (1940) (listing over a dozen occupational hazards in United States Naval shipyards, including asbestosis among workers who made pipe-insulation covering).

[15]  Thomas O. Toole, “U.S. Warned of Asbestos Peril,” Wash. Post A4, col. 1 (Dec. 4, 1968) (describing Dr. Selikoff’s warnings to the Navy and other branches of the U.S. government about the malignant and non-malignant risks of asbestos exposure).

[16]  Kara Franke & Dennis Paustenbach, “Government and Navy knowledge regarding health hazards of Asbestos: A state of the science evaluation (1900 to 1970),” 23(S3) Inhalation Toxicology 1 (2011) (detailing historical documentation of the Navy’s knowledge of asbestos hazards in its shipyards); Denis H. Rushworth, “The Navy and Asbestos Thermal Insulation,” Naval Engineers J. 35 (Spring 2005); Samuel A. Forman, “U.S. Navy Shipyard Occupational Medicine Through World War II,” 30 J. Occup. Med. 28 (1988) (providing a history of Navy knowledge through World War II); Jacqueline Karnell Corn & Jennifer Starr, “Historical perspective on asbestos: Policies and protective measures in World War II shipbuilding,” 11 Am. J. Indus. Med. 359 (1987); Peter A. Nowinski, “Chronology of Asbestos Regulation in United States Workplaces,” in Karen Antman & Joseph Aisner, eds., Asbestos-Related Malignancy  99 (1986) (Nowinski represented the government in direct lawsuits against the United States for its role in creating the asbestos hazards of federal and contract shipyards). See also Rachel Maines, Asbestos and Fire: Technological Tradeoffs and the Body at Risk (2005).

[17]  See, e.g., In re Related Asbestos Cases, 543 F.Supp. 1142 (N.D. Calif. 1982) (permitting defendants to assert that Navy was sophisticated user as an affirmative defense at trial).

[18]  See, e.g., O’Donnell v. The Celotex Corp., Phila. Cty. Ct.C.P., July 1982 Term, Case. No. 1619 (trial before Hon. Levan Gordon, and a jury; May 1989) (defense verdict in case in which plaintiffs presented negligence claims and defendants presented extensive evidence of the Navy’s superior knowledge of asbestos hazards and control of workplace).