Tort Law’s Sleight of Hand – Part 5

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).

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