Tort Law’s Sleight of Hand – Part 4

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).

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