Petitioners Brief — Air and Liquid Systems Corp., et al., Petitioners v. Roberta G. DeVries, Individually and as Administratrix of the Estate of John B. DeVries, Deceased, et al.

Supreme Court briefJul 9, 2018

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No. 17-1104

IN THE

Supreme Court of the United States

AIR AND LIQUID SYSTEMS CORP., CBS

CORPORATION, AND FOSTER WHEELER LLC,

Petitioners,

ROBERTA G. DEVRIES, Administratrix of the Estate

of John B. DeVries, Deceased, and Widow in her own

right,

Respondent.

INGERSOLL RAND COMPANY,

Petitioner,

SHIRLEY MCAFEE, Executrix of the Estate of

Kenneth McAfee, and Widow in her own right,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Third Circuit

Brief for the Petitioners

Benjamin M. Flowers

JONES DAY

325 John H. McConnell

Blvd., Suite 600

Columbus, OH 43215

Shay Dvoretzky

Counsel of Record

Jeffrey R. Johnson

Vivek Suri

JONES DAY

51 Louisiana Ave NW,

Washington, DC 20001

Tel.: (202) 879-3939

sdvoretzky@jonesday.com

Counsel for Petitioner CBS Corporation

(Additional counsel listed on inside cover)

Christopher G. Conley

EVERT WEATHERSBY

HOUFF

200 Cleveland Road,

Suite 6

Bogart, GA 30622

Counsel for Petitioner

CBS Corporation

Christopher J. Keale

Afigo I. OkpewhoFadahunsi

TANENBAUM KEALE LLP

1085 Raymond Blvd.

One Newark Center

16th Floor

Newark, NJ 07102

Counsel for Petitioner

Foster Wheeler LLC

Brady L. Green

WILBRAHAM, LAWLER &

BUBA

1818 Market Street,

Suite 3100

Philadelphia, PA 19103

Counsel for Petitioner

Air & Liquid Systems

Corp. (successor by merger to Buffalo Pumps,

Inc.)

John J. Hare

MARSHALL DENNEHEY

WARNER COLEMAN &

GOGGIN

2000 Market Street,

Suite 2300

Philadelphia, PA 19103

Counsel for Petitioner

Ingersoll-Rand Company

(continued from front cover)

QUESTION PRESENTED

Can products-liability defendants be held liable

under maritime law for injuries caused by products

that they did not make, sell, or distribute?

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The petitioners, all of whom were defendantsappellees below, are:

1. Air & Liquid Systems Corp. is a wholly owned

subsidiary of Ampco-Pittsburgh Corporation, a publicly traded corporation. It is the successor-bymerger to Buffalo Pumps, Inc.

2. CBS Corporation is a publicly traded company.

National Amusements, Inc. is a privately held company, which beneficially owns directly and indirectly

the majority of the voting stock of CBS Corporation.

To CBS Corporation’s knowledge, no publicly held

corporation owns 10% or more of the voting stock of

CBS Corporation.

3. Foster Wheeler LLC is a wholly-owned indirect

subsidiary of John Wood Group plc (Scotland), a publicly traded company. No known person or entity

currently owns 10 percent or more of John Wood

Group plc’s (Scotland) publicly traded common stock.

4. The parent company for Ingersoll-Rand Company is Ingersoll Rand PLC, a publicly traded corporation. No other publicly traded corporation owns

more than 10 percent of Ingersoll Rand Company

stock.

General Electric Company is also a respondent

supporting the petitioners under Rule 12.6. It was a

defendant-appellee below. It will be filing its own

brief.

iii

The plaintiffs-appellants below, who are respondents in this Court, are:

1. Roberta DeVries, in her individual capacity and

in her capacity as administratrix of the estate of

John B. DeVries, and

2. Shirley McAfee, Executrix of the Estate of

Kenneth McAfee, Deceased, and Widow in her own

right.

In addition to the petitioners and the General

Electric Company, the following parties were listed

as either defendants or defendants-appellees on the

Third Circuit’s docket below:

20th Century Gove Corp. of Texas

Allen Bradley Co.

Allen Sherman Hoff

American Optical

American Optical Corp.

AMTICO Division of American Biltrite

Aurora Pumps

AZRock Industries, Inc.

AO Smith Corp.

10. BF Goodrich Co.

11. Baltimore Ennis Land Co. Inc.

12. Bayer Cropscience Inc.

13. Borg Warner Corp.

14. Burnham LLC

15. BW/IP Inc.

16. Carrier Corp.

17. Certain Teed Corp.

18. Cleaver Brooks Inc.

19. Crane Co.

20. Crown Cork & Seal Co., Inc.

21. Federal Mogul Asbestos Personal Injury

Trust

22. Gallagher Fluid Seals, Inc.

23. Goodyear Tire & Rubber Co.

24. Goulds Pumps, Inc.

25. Hajoca Corp.

26. Hampshire Industries, Inc.

27. IMO Industries, Inc.

28. J.A. Sexauer

29. J.H. France Refractories Co.

30. John Crane, Inc.

31. Metropolitan Life Insurance Co.

32. Minnesota Mining & Manufacturing Co.

33. McCord Gasket Co.

34. NOSROC Corporation

35. Oakfabco, Inc.

36. Owens-Illinois, Inc.

37. Parker Hannifin Corp.

38. Pecora Corp.

39. Peerless Industries, Inc.

40. Riley Stoker Corp.

41. Selby Battersby & Co.

42. Sid Harvey Mid Atlantic, Inc.

43. Thermal Engineering, Inc.

44. Trane U.S. Inc.

45. Warren Pumps, LLC

46. Weil McClain Division of the Marley Co.

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT .................................. ii

TABLE OF AUTHORITIES................................... viii

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ....... 2

INTRODUCTION ....................................................... 3

STATEMENT OF THE CASE ................................... 3

SUMMARY OF ARGUMENT .................................. 12

ARGUMENT ............................................................ 18

MANUFACTURERS ARE NOT

LIABLE FOR INJURIES ALLEGEDLY

CAUSED BY THIRD-PARTY

ASBESTOS ADDED TO THEIR

EQUIPMENT POST-SALE ............................... 18

A. Well-settled tort-law principles forbid

such liability ................................................ 19

B. The principles of maritime law

require the same rule.................................. 34

II. THE THIRD CIRCUIT’S

ALTERNATIVE APPROACH

CONTRADICTS THE COMMON LAW

AND UNDERMINES THE

PURPOSES OF MARITIME LAW ................... 40

vii

TABLE OF CONTENTS

(continued)

Page

A. Tort-law principles do not

support the foreseeability-based test

that the Third Circuit adopted ................... 40

B. The Third Circuit’s approach

contradicts the principles of

maritime law ............................................... 48

III. THE PETITIONERS ARE ENTITLED TO

JUDGMENT AS A MATTER OF LAW ............ 52

CONCLUSION ......................................................... 54

viii

TABLE OF AUTHORITIES

Page(s)

CASES

Acoba v. Gen. Tire,

986 P.2d 288 (Haw. 1999) .................................... 19

Ammar v. United States,

342 F.3d 133 (2d Cir. 2003) ................................. 39

Atlantic Sounding Co. v. Townsend,

447 U.S. 404 (2009) .............................................. 39

Baughman v. Gen. Motors Corp.,

780 F.2d 1131 (4th Cir. 1986) ............ 19, 20, 22, 23

Braaten v. Saberhagen Holdings,

198 P.3d 493 (Wash. 2008) .................................. 29

Brown v. Drake-Willock Int’l, Ltd.,

530 N.W.2d 510

(Mich. Ct. App. 1995) ................................... passim

Bryant v. Glastetter,

38 Cal. Rptr. 2d 291

(Cal. Ct. App. 1995).............................................. 22

Bynum v. FMC Corp.,

770 F.2d 556 (5th Cir. 1985) ................................ 27

Cal. Div. of Labor Standards

Enforcement v. Dillingham

Constr., N.A. Inc.,

519 U.S. 316 (1997) .............................................. 33

Castillo v. Spiliada Mar. Corp.,

937 F.2d 240 (5th Cir. 1991) ................................ 39

TABLE OF AUTHORITIES

(continued)

Page(s)

Cent. of Georgia Ry. Co. v. Price,

32 S.E. 77 (Ga. 1898) ..................................... 25, 26

Cerveny v. Aventis, Inc.,

855 F.3d 1091 (10th Cir. 2017) ............................ 29

Childress v Gresen Mfg. Co.,

888 F.2d 45 (6th Cir. 1989) .......................... passim

Conner v. Alfa Laval, Inc.,

842 F. Supp. 2d 791 (E.D. Pa. 2012) ................... 32

Dandridge v. Crane Co.,

2016 WL 319938

(D.S.C. Jan. 27, 2016) .......................................... 51

DeLovio v. Boit,

7 F. Cas. 418 (C.C.D. Mass. 1815) ................. 15, 34

Dreyer v. Exel Indus., S.A.,

326 F. App’x 353 (6th Cir. 2009)........ 19, 20, 22, 24

East River Steamship Corp. v.

Transamerica Delaval, Inc.,

476 U.S. 858 (1986) ...................................... passim

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) .................................. 15, 34, 37

Fabend v. Rosewood Hotels &

Resorts, L.L.C.,

381 F.3d 152 (3d Cir. 2004) ................................. 26

Feres v. United States,

340 U.S. 135 (1950) ................................................ 9

TABLE OF AUTHORITIES

(continued)

Page(s)

Firestone Steel Prods. Co. v. Barajas,

927 S.W.2d 608 (Tex. 1996) ........................... 23, 29

Garrett v. Moore-McCormack Co.,

317 U.S. 239 (1942) ........................................ 35, 39

Gaulding v. Celotex Corp.,

772 S.W.2d 66 (Tex. 1989) ................................... 23

Gilman v. Cent. Vermont Ry. Co.,

107 A. 122 (Vt. 1919) ........................................... 32

Grant v. Foster Wheeler, LLC,

140 A.3d 1242 (Me. 2016) .............................. 29, 31

Harden v. Gordon,

11 F. Cas. 480 (C.C.D. Me. 1823) ........................ 38

Harris v. Rapid Am. Corp.,

532 F. Supp. 2d 1001 (N.D. Ill. 2007) .................... 5

Holmes v. Sec. Investor Prot. Corp.,

503 U.S. 258 (1992) ............................ 13, 22, 30, 54

Hovsepian v. Crane Co.,

2016 WL 4158891

(E.D. Mo. Aug. 5, 2016) .......................................... 4

In re Certified Question from Fourteenth

Dist. Ct. of Appeals of Tex.,

740 N.W.2d 206 (Mich. 2007) .............................. 41

In re Darvocet, Darvon, & Propoxyphene

Prods. Liab. Litig.,

756 F.3d 917 (6th Cir. 2014) ................................ 25

TABLE OF AUTHORITIES

(continued)

Page(s)

In re Deep Vein Thrombosis,

356 F. Supp. 2d 1055

(N.D. Cal. 2005).............................................. 22, 23

In re New York City Asbestos Litig.,

59 N.E.3d 458 (N.Y. 2016) ........................... passim

Iseberg v. Gross,

879 N.E.2d 278 (Ill. 2007) .................................... 21

Kelcey v. Tankers Co.,

217 F.2d 541 (2d Cir. 1954) ................................. 38

Kermarec v. Compagnie Generale

Transatlantique,

358 U.S. 625 (1959) ...................................... passim

Kochera v. Foster Wheeler, LLC,

2015 WL 5584749

(S.D. Ill. Sept. 23, 2015) ....................................... 51

Lamkin v. Towner,

563 N.E.2d 449 (Ill. 1990) .................................... 41

Lindstrom v. A-C Prod. Liab. Tr.,

424 F.3d 488 (6th Cir. 2005) .................... 23, 29, 31

May v. Air & Liquid Systems Corp.,

129 A.3d 984 (Md. 2015) .............................. passim

McKown v. Simon Prop. Grp., Inc.,

344 P.3d 661 (Wash. 2015) .................................. 41

Miles v. Apex Marine Corp.,

498 U.S. 19 (1990) .............................. 16, 35, 38, 48

xii

TABLE OF AUTHORITIES

(continued)

Page(s)

Mitchell v. Sky Climber, Inc.,

487 N.E.2d 1374 (Mass. 1986) ............................. 23

Moragne v. States Marine Lines, Inc.,

398 U.S. 375 (1970) .............................................. 34

Murillo v. Seymour Ambulance

Ass’n, Inc.,

823 A.2d 1202 (Conn. 2003) ................................. 41

Nat’l Union Fire Ins. Co. of Pittsburgh,

Pa. v. Riggs Nat’l Bank of

Washington, D.C.,

5 F.3d 554 (D.C. Cir. 1993) .................................. 26

Newman v. Gen. Motors Corp.,

524 So. 2d 207 (La. Ct. App. 1988) ...................... 23

Nishida v. E. I. Du Pont De

Nemours & Co.,

245 F.2d 768 (5th Cir. 1957) .......................... 50, 51

Norfolk S. Ry. Co. v. Kirby,

543 U.S. 14 (2004) .................................... 15, 34, 37

O’Neil v. Crane Co.,

266 P.3d 987 (Cal. 2012) .............................. passim

PLIVA, Inc. v. Mensing,

564 U.S. 604 (2011) .............................................. 25

Reino de España v. Am. Bureau of

Shipping,

729 F. Supp. 2d 635 (S.D.N.Y. 2010) ................... 41

Reynolds v. Bridgestone/Firestone, Inc.,

989 F.2d 465 (11th Cir. 1993) ...................... passim

xiii

TABLE OF AUTHORITIES

(continued)

Page(s)

Robertson v. Baldwin,

165 U.S. 275 (1897) .............................................. 38

S. Pac. Co. v. Jensen,

244 U.S. 2051 (1917) ............................................ 43

Saratoga Fishing Co. v. J.M.

Martinac & Co.,

520 U.S. 875 (1997) ........................................ 29, 32

Schrock v. Wyeth, Inc.,

727 F.3d 1273 (10th Cir. 2013) ............................ 25

Stark v. Armstrong World Indus., Inc.,

21 F. App’x 371 (6th Cir. 2001) ............... 14, 33, 49

T.H. v. Novartis Pharms. Corp.,

407 P.3d 18 (Cal. 2017) .................................. 24, 25

The Lottawanna,

88 U.S. 558 (1874) ................................................ 18

Toth v. Econ. Forms Corp.,

571 A.2d 420 (Pa. Super. Ct. 1990) ..................... 23

Warner v. Goltra,

293 U.S. 155 (1934) ........................................ 34, 35

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. art. III, § 2, cl. 1 ....................................... 2

11 U.S.C. § 524 .................................................... 16, 37

28 U.S.C. § 1254 .......................................................... 2

28 U.S.C. § 1291 .......................................................... 2

28 U.S.C. § 1333 ...................................................... 1, 2

xiv

TABLE OF AUTHORITIES

(continued)

Page(s)

28 U.S.C. § 1442 .......................................................... 2

OTHER AUTHORITIES

73 Fed. Reg. 49603 (Aug. 22, 2008) .......................... 28

Restatement (Second) of Torts

§ 314 (1965) .................................................... 13, 21

Restatement (Second) of Torts

§ 315 (1965) ........................................ 13, 21, 30, 54

Restatement (Second) of Torts

§ 431 (1965) .......................................................... 21

Restatement (Third) of Torts:

Prod. Liab. § 1 (1998) ........................................... 19

James A. Henderson, Jr. &

Aaron D. Twerski,

Doctrinal Collapse in Products

Liability: The Empty Shell of

Failure to Warn,

65 N.Y.U. L. Rev. 265 (1990) ............................... 28

Michael L. Marlow,

Too Much (Questionable)

Information?,

Regulation 20 (Winter 2013–14) ................... 28, 29

A. Mitchell Polinsky & Steven Shavell,

The Uneasy Case for Product

Liability,

123 Harv. L. Rev. 1437 (2010) ............................. 47

TABLE OF AUTHORITIES

(continued)

Page(s)

Richard A. Posner,

Economic Analysis of Law 183

(6th ed. 2003)........................................................ 27

Prosser & Keeton on the Law of Torts

§ 56 (5th ed. 1984) ................................................ 21

RAND Corporation,

Asbestos Bankruptcy Trusts 28

(2010) .............................................................. 16, 37

Victor E. Schwartz & Mark A. Behrens,

Asbestos Litigation: The “Endless

Search for a Solvent Bystander,”

23 Widener L.J. 59 (2013).................................... 24

Joanna M. Shepherd,

Products Liability and Economic

Activity: An Empirical Analysis of

Tort Reform’s Impact on Businesses,

Employment, and Production,

66 Vand. L. Rev. 257 (2013)................................. 47

OPINIONS BELOW

1. Air & Liquid Systems Corp., et al., v.

DeVries. The United States District Court for the

Eastern District of Pennsylvania awarded summary

judgment to the defendants in a series of unpublished orders. See 2014 WL 6746811 (Foster

Wheeler LLC), Pet. App. 71a; 2014 WL 6746795

(CBS Corporation), Pet. App. 63a; 2014 WL 6746960

(Buffalo Pumps, Inc.).

The United States Court of Appeals for the Third

Circuit remanded in an unpublished order. Pet. App.

48a–51a. The District Court again awarded summary judgment, in an opinion published at 188 F.

Supp. 3d 454. Pet. App. 20a–42a. The Third Circuit

reversed in an opinion published at 873 F.3d 232.

Pet. App. 1a–17a.

2. Ingersoll Rand Co. v. McAfee. The Eastern

District of Pennsylvania awarded summary judgment to Ingersoll-Rand Company in an unpublished

order available at 2014 WL 12601085. Pet. App. 55a.

The Third Circuit remanded in an unpublished order. Pet. App. 43a–47a. The District Court again

awarded summary judgment in an unpublished order. Pet. App. 18a–19a. On appeal, the Third Circuit

consolidated the case with DeVries and reversed in

an opinion published at 873 F.3d 232. Pet. App. 1a–

17a.

JURISDICTION

John and Roberta DeVries sued nearly 50 entities

in Pennsylvania state court. So did Kenneth and

Shirley McAfee, in a separate action. Both cases

were removed to the Eastern District of Pennsylvania. That court had jurisdiction under 28 U.S.C.

§ 1333(1), because both cases arose from injuries that

allegedly occurred aboard vessels on navigable waters, and under § 1442(a)(1), because several defendants stated a colorable federal common-law defense

to claims arising from their conduct as contractors

for the United States Navy.

After the District Court awarded summary judgment to the petitioners in both cases, Roberta

DeVries and Shirley McAfee (in their individual capacities and on behalf of their husbands’ estates)

separately appealed to the Third Circuit. That court

had jurisdiction under 28 U.S.C. § 1291. It consolidated the cases and decided them on October 3, 2017.

Justice Alito extended the petitioners’ time to petition for certiorari until January 31, 2018, and they

filed on that date. See Air & Liquid Sys. Corp., et al.

v. DeVries, et al., No. 17A625. This Court granted

certiorari on May 14, 2018, and has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The judicial Power shall extend … to all Cases

of admiralty and maritime Jurisdiction …

U.S. Const. art. III, § 2, cl. 1.

INTRODUCTION

The defendants are military contractors. Each

contracted with the Navy to manufacture and supply

shipboard equipment, which each agreed to make

and supply in the manner and form dictated by the

Navy’s precise specifications. The plaintiffs are the

estates and wives of former sailors. They allege that

the sailors were injured by asbestos-containing materials that the Navy (or a third-party shipbuilder)

added to the defendants’ equipment after the defendants delivered it to the Navy. They concede that the

defendants did not make, sell, or distribute these later-added materials. They nonetheless say that the

defendants should have warned about the risks associated with this third-party asbestos. The Third Circuit agreed with this position, and held as a matter

of general maritime law that equipment manufacturers may be liable for failing to warn about the

risks of third-party asbestos.

The Third Circuit erred. Product manufacturers

are not liable under general maritime law for injuries caused by products that they did not make, sell,

or distribute. Because it is undisputed that the petitioners did not make, sell, or distribute the asbestos

alleged to have caused the sailors’ injuries, each is

entitled to judgment as a matter of law. This Court

should reverse the Third Circuit’s judgment.

STATEMENT OF THE CASE

1. The Navy controls what goes on its ships. For

much of the twentieth century, the Navy exercised

that control to require the use of asbestos. See JA

35–36. For example, it used asbestos-containing materials with its steam-driven propulsion systems.

These systems integrated many pieces of equipment

and thousands of feet of piping. Combined, they

generated heat that produced steam that powered

turbines that propelled Navy ships. The Navy used

asbestos as insulation on the exterior of the systems’

equipment and piping.

It also used asbestoscontaining parts inside these systems. JA 40. For

instance, many gaskets used to form seals between

metal components contained asbestos. JA 378–80;

see also JA 318–19, 395.

The Navy required and used asbestos in many

other ways too, including in gaskets for equipment

(like air compressors) that played no role in the

steam-propulsion systems. Pet. App. 61a; JA 518–19.

Indeed, asbestos was so prevalent on ships that, despite being prized for its light weight, it added as

much as 300 tons to aircraft carriers and 22 tons to

destroyers. JA 36.

The asbestos used aboard ships sometimes had to

be replaced. See JA 280–81. For example, insulation, gaskets, and other asbestos-containing materials used with the steam-propulsion systems had to

be replaced because they wore out. And if sailors had

to break a seal formed by an asbestos gasket to fix

equipment to which the seal was connected, they

would replace the asbestos-containing gasket with a

new one. See JA 318–20.

The Navy knew that asbestos could be dangerous.

Hovsepian v. Crane Co., 2016 WL 4158891, at *3

(E.D. Mo. Aug. 5, 2016); see JA 56–66. As early as

1922, the Navy Health Bulletin recommended precautions for those working with asbestos. JA 57. In

1939, the Navy Surgeon General reported that asbestos causes lung disease and prescribed methods to

prevent inhalation. JA 59. That same year, the

Handbook of the Navy Hospital Corps recommended

that those working with asbestos use masks. JA 58–

59. And in 1943, the Navy co-authored (with the

U.S. Maritime Commission) safety standards that

recommended the use of “respiratory protective

equipment” in general, and “dust respirator[s]” in

particular, when handling asbestos. JA 63; see generally JA 110–94. These examples, and many like

them, show that “by 1940” the Navy “was a leader in

the field of occupational medicine relating to … asbestos exposure.” Harris v. Rapid Am. Corp., 532 F.

Supp. 2d 1001, 1006 (N.D. Ill. 2007).

The Navy used asbestos-containing materials because its engineers concluded that asbestos “best met

the Navy’s military requirements” despite its risks.

JA 35–36. It was well-suited for use aboard Navy

ships because of its “optimum heat retention, low

weight, fire resistance, resistance to water damage

and insect infestation, and cost-efficiency.” JA 36; see

JA 194–205. Its light weight was particularly important: Without insulation, the ship’s systems

“would be inefficient due to loss of heat[,] and sailors

would be burned or unable to operate in engineering

spaces due to heat levels.” JA 36. But every pound

of insulation was one less pound of “weapons or fuel”

that the ship could carry. JA 36. As a result, the

Navy needed its insulation to be as light as possible.

Asbestos achieved this, while protecting sailors from

dangerously hot equipment.

The Navy continued requiring asbestos parts and

insulation until it found acceptable substitutes in the

late 1970s. JA 36. Only then did it begin to remove

and replace the asbestos-containing materials with

the safer substitutes. That took time; given the

many tons of asbestos on its ships, the Navy could

not quickly remove it without immobilizing the entire fleet. JA 38. But the Navy eventually transitioned away from asbestos, and much of the equipment originally used with asbestos is still in use today without asbestos. JA 38 (addressing transition).

2. At all times relevant here, the Navy contracted

with manufacturers to supply shipboard equipment.

To retain control over its ships, it required contractors to make and supply their equipment in strict

compliance with detailed Navy specifications. It

scrutinized contractor-provided equipment, rejecting

any that failed to conform to its requirements. JA

34–35, 41.

Several features of the Navy’s requirements are

relevant here. First, the Navy forbade contractors

from supplying certain equipment with external asbestos insulation. JA 35. Instead, the Navy required

contractors to deliver their equipment uninsulated,

or in what is today sometimes called “bare-metal”

form. Only after the Navy accepted the equipment

would the Navy (or a third-party shipbuilder) install

it and insulate it with asbestos. See JA 35.

Second, the Navy required that some equipment

be used with asbestos-containing internal materials,

such as gaskets. See JA 798. These materials sometimes wore out and had to be replaced. When that

occurred, the Navy, not the original equipment manufacturers, chose to continue using asbestoscontaining materials, see JA 31, 288, which the Navy’s own sailors (or, again, a third-party shipbuilder)

then installed, see, e.g., JA 789–93.

Finally, the Navy retained total control over the

manuals accompanying contractor-supplied equipment, including their instructions and warnings. JA

38–41, 77–84. For example, its military specifications “addressed the instructions considered essential by the Navy to warn individuals working with

[shipboard] equipment and material about potential

hazards.” JA 39. At first, military specifications for

technical manuals did not even mention warnings.

JA 39. When the Navy revised its specifications in

1957 to address warnings, it intended to include “only warnings concerning how someone might be immediately physically injured by their actions or cause

serious damage to equipment.” JA 39. And these

updated specifications expressly directed that “warnings were to be used sparingly,” and “consistent with

real need.” JA 39.

The Navy consciously decided to address long-term

health hazards such as those presented by asbestos

through “personnel training” rather than through

warnings. JA 40, 201–10. As a result, when several

of its asbestos suppliers offered to provide warnings

in the 1940s, the Navy refused. JA 76. Years later,

the Navy specifically considered whether to put a

hazard label on a form of asbestos insulation. The

Navy decided not to do so. JA 80. There is also no

evidence that “the Navy, at any time during the

1930s through the 1960s, instructed or permitted a

supplier of engineering equipment … to affix or provide any asbestos-related warning with its equipment.” JA 77. Given the Navy’s knowledge of the

dangers asbestos posed, its familiarity with the use

of asbestos-containing materials aboard its ships,

and its control over product manuals, it would have

required warnings (and would not have approved

manuals without them) if it thought warnings appropriate. JA 39.

The Navy’s conscious decision to rely on personnel

training rather than individual warnings made

sense. It needed to “provide clear, concise directions”

to sailors and civil contractors. JA 38–39. Ships in

general, and Navy ships in particular, are dangerous

places. There is no way to warn of everything without diluting the most important warnings. That is

why the Navy limited the use of warnings to imminent threats to life and limb. JA 39.

3. This case began as two separate cases, one

brought by the DeVrieses and one by the McAfees.

John DeVries served aboard the USS Turner between 1957 and 1960, where he worked as an engineer. Pet. App. 63a–64a, 68a–69a. Bath Iron Works

built that ship for the Navy in 1945 with parts made

by many other contractors. JA 272, 384–89. These

contractors included three of the petitioners: Foster

Wheeler made “economizers” for use inside some of

the ship’s boilers. JA 383. CBS’s predecessor-ininterest (Westinghouse Electric Corporation) made

generators, forced-air blowers, and turbines. Pet.

App. 64a. Air & Liquid Systems’ predecessor-ininterest (Buffalo Pumps) supplied some of the ship’s

pumps. Pet. App. 80a. John DeVries and his wife

sued these companies after he developed cancer.

They claimed that his exposure to the asbestos that

the Navy added to these companies’ equipment postsale caused his disease.

Kenneth McAfee served on the USS Wanamassa

and the USS Commodore from the late 1970s to the

early 1980s. Pet. App. 56a; JA 517, 570. The Navy

commissioned the Commodore in 1959, and received

delivery on the Wanamassa in 1973. JA 586. Petitioner Ingersoll manufactured the compressors used

on both ships. Pet. App. 56a. McAfee, like DeVries,

developed cancer, allegedly because of his exposure

to asbestos that the Navy added to these compressors

after buying them from Ingersoll. He and his wife

sued Ingersoll (and others) for failing to warn about

the dangers of this later-added asbestos.

It is undisputed that the petitioners delivered

their products in strict compliance with Navy specifications, free of external asbestos insulation. Pet.

App. 4a. As noted, the Navy did require that contractors supply some equipment with asbestoscontaining internal parts installed already. It is undisputed, however, that any original asbestoscontaining parts had worn out—and the Navy had

replaced them many times—before DeVries and

McAfee set foot aboard their ships. It is also undisputed that none of the petitioners made, sold, or distributed any asbestos-containing replacement parts

used aboard these ships. Thus, neither DeVries nor

McAfee ever came into contact with asbestoscontaining material made, sold, or distributed by the

petitioners. Pet. App. 61a, 69a–70a, 77a–78a, 85a–

86a.

The DeVrieses and the McAfees could not sue the

Navy for the injuries that they claimed to have sustained from shipboard exposure to asbestos, because

it is immune from suit. See Feres v. United States,

340 U.S. 135 (1950). So instead they sued the petitioners and dozens of other companies who made

equipment to which the Navy later added the asbes-

tos-containing materials that allegedly caused their

injuries. They alleged, among other things, negligent failure to warn. According to them, the petitioners had a duty to warn about the third-party asbestos-containing insulation and replacement parts

added to their products post-sale. And, according to

them, each breached that duty by failing to give a

warning about the dangers of asbestos.

The District Court granted summary judgment to

the petitioners in both cases. It held that equipment

manufacturers have “no duty” to “warn of the dangers associated with another manufacturer’s ‘product’ (or component part).” Pet. App. 29a–30a. Since

none of the petitioners made, sold, or distributed the

asbestos-containing products that injured DeVries or

McAfee, none were liable for the injuries that asbestos caused. Pet. App. 18a–19a, 35a–37a.

4. On appeal, the Third Circuit consolidated the

DeVries and McAfee cases and then reversed. It

characterized the issue as whether a manufacturer

can be held liable “for an asbestos-related injury

most directly caused by parts added on to the manufacturer’s product.” Pet. App. 5a. After puzzling for

a few pages over the “vexing question” whether to

address the issue as a matter of “duty” or “proximate

cause,” Pet. App. 6a–9a, the court determined that it

did not matter: Either way, it said, the question is

whether the injuries were reasonably foreseeable,

since “foreseeability is a concept embedded” in both

elements. Pet. App. 7a–9a.

Because of this, the court viewed the case “as a debate over what a bare-metal manufacturer could reasonably foresee—no asbestos-related injuries, or

some?” Pet. App. 10a (internal citation omitted). So

framed, the court rejected the “bright-line rule” that

no bare-metal manufacturer could foresee asbestosrelated injuries because the alternative approach—

one in which some asbestos-caused injuries are “reasonably foreseeable” to those who do not supply asbestos—would be more consistent with the principles

of maritime law. Pet. App. 5a, 13a. The court believed that a reasonable foreseeability test would

promote maritime law’s concern for the “protection of

sailors,” since that test would “permit a greater

number of deserving sailors to receive compensation,

and compensation closer to what they deserve.” Pet.

App. 13a, 15a.

The Third Circuit acknowledged that what is reasonably foreseeable would “necessarily be factspecific.” Pet. App. 15a. Yet it tried to list a few situations in which liability is likely. For instance, a

manufacturer “may be subject to liability if it reasonably could have known, at the time it placed its

product into the stream of commerce, that”:

(1)

asbestos is hazardous, and

(2)

its product will be used with an asbestos

containing part, because

(a)

the product was originally equipped

with an asbestos containing part that

could reasonably be expected to be replaced over the product’s lifetime,

(b)

the manufacturer specifically directed

that the product be used with an asbestos-containing part, or

Pet. App. 15a–16a.

The court stressed that these “may or may not be

the only facts on which liability can arise”; the “finer

contours of ” its test would have to “be decided on a

case-by-case basis.” Pet. App. 16a.

5. Four of the defendants in the DeVries and

McAfee matters—Air & Liquid Systems, CBS, Foster

Wheeler, and Ingersoll—petitioned for review of the

Third Circuit’s ruling. This Court granted certiorari

on May 14, 2018.

SUMMARY OF ARGUMENT

The plaintiffs allege that John DeVries and Kenneth McAfee were injured from exposure to asbestos.

They concede that the petitioners did not make, sell,

or distribute the asbestos that allegedly injured

these sailors. Instead, they allege that the petitioners made equipment to which, years after the equipment’s manufacture and sale, the Navy or some other third party added asbestos-containing materials

made by others. And, they say, the petitioners negligently failed to warn DeVries and McAfee about the

dangers of those later-added materials.

The Third Circuit held that the petitioners did indeed have a duty to warn about the risks of lateradded asbestos-containing products if their use was

“reasonably foreseeable.” This case asks whether

that is right: Can equipment manufacturers be held

liable for failing to warn about the risks of thirdparty products added to their equipment post-sale?

I.A. Because the case arises under general maritime law—that “amalgam of traditional common-law

rules, modifications of those rules, and newly created

rules” that apply in admiralty, East River Steamship

Corp. v. Transamerica Delaval, Inc., 476 U.S. 858,

865 (1986)—the answer derives from common-law

rules and the principles of maritime law. These rules

and principles all require reversing the Third Circuit, and holding that those outside a product’s chain

of distribution are not liable for the injuries it causes.

Start with traditional tort doctrine, under which

product manufacturers are not liable for injuries

caused by products made, sold, and distributed by

others. This traditional rule applies even when the

combined use of a third-party product with the manufacturer’s own is foreseeable. For example, a tire

manufacturer has no duty to warn about the dangers

of the wheels for which the tire is specifically designed, Reynolds v. Bridgestone/Firestone, Inc., 989

F.2d 465, 471–72 (11th Cir. 1993), and the maker of a

component part commissioned for use in a log splitter need not investigate whether the component is

safe for its intended use, Childress v Gresen Mfg. Co.,

888 F.2d 45, 48–49 (6th Cir. 1989).

The rule limiting liability to those within a product’s chain of distribution derives from two foundational tort-law principles. First, defendants have no

duty to protect the public from third parties, even

when the danger created by third parties is foreseeable. See Restatement (Second) of Torts §§ 314–15.

Second, a defendant is not liable simply because its

conduct forms one link in the causal chain leading to

injury. There must be something directly connecting

the defendant’s wrongdoing to the plaintiff ’s injury.

Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268

(1992). That direct connection is missing when third

parties make, supply, and sell the injury-causing

product.

Applying these rules to the asbestos context means

that equipment manufacturers are not liable for injuries caused by asbestos added to their products

post-sale. When asbestos is added to equipment

post-sale, either as insulation or in the form of a replacement part, the equipment manufacturer’s only

connection to the asbestos is the foreseeability of its

use. As just addressed, that is not enough to justify

tort liability.

In addition to contradicting settled tort-law principles, a foreseeability-based test for liability would

prove unworkable. “On a ship most things are connected to other things,” and thus foreseeably used

with those other things. Stark v. Armstrong World

Indus., Inc., 21 F. App’x 371, 381 (6th Cir. 2001). So

if manufacturers of naval equipment had to warn

about the risks of all products that might foreseeably

be used with their own, they would have to warn

about innumerable other products, and sailors would

be inundated with warnings. This would lead to

overwarning, causing sailors to ignore those warnings that are most important. And the risk of such

open-ended liability would increase equipment prices

without an offsetting gain to product safety. After

all, equipment manufacturers have no control over

the third-party products that are added to their

equipment post-sale, or the conditions in which they

are used. Moreover, they cannot prevent their customers from purchasing asbestos, or search for nonasbestos alternatives, dictate safety precautions, or

oversee the inclusion of warnings. Nor can they ensure that decisions to use such materials—and the

work practices involved—conform to evolving

knowledge. Subjecting these manufacturers to liability would cause them to increase their prices (to

hedge against the risk of liability), while diluting the

incentive of those best positioned to reduce risk—the

makers and sellers of the injurious products themselves—to do so. That is neither fair nor efficient.

B. The foregoing reflects the traditional common-law rule: Those outside a product’s chain of distribution cannot be held liable for the injuries that

product causes.

This leaves only the question

whether the principles of maritime law dictate modifying the common-law rule. See East River, 476 U.S.

at 864–65. They do not. The law limiting liability to

those inside a product’s chain of distribution fully accords with maritime law’s “traditions of simplicity

and practicality.” Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625, 631 (1959). The easily applied rule yields predictable results, which will

lead to uniformity of the sort that admiralty jurisdiction exists to assure. See DeLovio v. Boit, 7 F. Cas.

418, 443 (C.C.D. Mass. 1815) (Story, J.). And predictability will also allow producers of maritime equipment to “look ahead with some ability to know what

the stakes are in choosing one course of action or another,” Exxon Shipping Co. v. Baker, 554 U.S. 471,

502 (2008), thereby promoting maritime law’s “fundamental interest” in the “protection of maritime

commerce.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14,

25 (2004) (emphasis omitted).

II. The Third Circuit’s test, under which manufacturers must provide warnings about later-added

components whenever the risk of injury is deemed

“reasonably foreseeable” under the circumstances,

accomplishes none of this. A test that requires answering an abstract question (is the risk of injury

“reasonably foreseeable”?) through the totality of the

circumstances will provide few clear answers. This

lack of clarity, and the difficulty of application, will

undermine maritime law’s “traditions of simplicity

and practicality.” Kermarec, 358 U.S. at 631. And its

unpredictable application would contradict maritime

law’s interests in uniformity and the promotion of

maritime commerce.

The Third Circuit purported to justify its approach

as promoting the welfare of seamen by “permit[ting]

a greater number of deserving sailors to receive compensation, and compensation that is closer to what

they deserve.” Pet. App. 13a. But the relevant question is not whether injured sailors can recover, but

from whom they can recover. To say that they should

recover does not mean they should collect from parties (like the petitioners) that did not breach a duty

or cause their injuries. What is more, they can in

fact recover from other sources, including dozens of

“asbestos trusts” that have paid out billions of dollars

to date, RAND Corporation, Asbestos Bankruptcy

Trusts 28 (2010), available at https://perma.cc/5HY2H6DH, and that are required by federal law to continue doing so, 11 U.S.C. § 524(g)(2). In any event,

the Third Circuit’s exclusive reliance on the welfare

of seamen is misguided, since this Court has held

that maritime courts should not “expand remedies at

will simply because it might work to the benefit of

seamen and those dependent upon them.” Miles v.

Apex Marine Corp., 498 U.S. 19, 36 (1990). On top of

that, a concern for the welfare of seamen does not

support the Third Circuit’s approach, which will spur

companies to give more warnings than are necessary,

thus diluting the effect of important ones and thereby impairing the safety of sailors.

III. In sum, traditional tort-law doctrine and the

principles of maritime law support the rule limiting

liability to those in a product’s chain of distribution.

Because the petitioners did not make, sell, or distribute the asbestos-containing products that allegedly injured DeVries and McAfee, they are entitled to

judgment as a matter of law. Indeed, the facts here

vividly show that liability should be limited to those

inside the chain of distribution. That is because the

connection between the petitioners and the plaintiffs’

alleged injuries is significantly attenuated: The

plaintiffs allege injuries from exposure to asbestoscontaining insulation and replacement parts added

to the petitioners’ equipment years (or even decades)

after its sale. Those injuries were possible only because of a series of independent decisions—for example, the Navy’s decision to require the use of asbestos

for decades after learning of its dangers, and the decisions of innumerable third parties who chose to

make, sell, and distribute the later-added asbestos.

In light of the many independent decisions standing

between the petitioners’ actions and the injuries alleged, the petitioners did not cause those injuries in

any meaningful sense.

This Court should reverse the Third Circuit’s

judgment, and remand with instructions to affirm

the District Court’s entries of summary judgment in

favor of the petitioners.

ARGUMENT

May manufacturers of naval equipment be held liable under maritime law for injuries caused by asbestos that they did not make, sell, or distribute, and

that Navy sailors and third-party shipbuilders added

to their equipment post-sale? Because no statute resolves this question, the answer turns on the general

maritime law—the “amalgam of traditional commonlaw rules, modifications of those rules, and newly

created rules” that apply in admiralty. East River,

476 U.S. at 865. When determining the general maritime law, admiralty courts look to “state and federal

sources,” including the common law. Id. at 864; accord The Lottawanna, 88 U.S. 558, 576 (1874). They

then decide, considering maritime law’s own “principles,” whether to incorporate the law from these other sources into maritime law. East River, 476 U.S. at

865.

Here, the common law and the principles of maritime law point in the same direction: Manufacturers

are not liable for injuries caused by products that

they did not make, sell, or distribute, even if those

products might foreseeably be used with their own.

MANUFACTURERS ARE NOT LIABLE FOR

INJURIES

ALLEGEDLY

CAUSED

THIRD-PARTY ASBESTOS ADDED TO

THEIR EQUIPMENT POST-SALE.

In general, there is no duty to protect the public

from third parties. In the products-liability context,

this means that manufacturers are not liable for injuries caused by third parties’ products. The reasons

for this rule are just as applicable at sea as they are

on land. The Court should recognize it as binding in

cases governed by maritime law.

A. Well-settled tort-law principles forbid

such liability.

The principle that a person is not liable for injuries

caused by someone else’s products follows from products-liability cases, from tort-law doctrine generally,

and from the purposes of tort law.

1. Products-Liability Cases. Courts have long

held that companies can be held liable for the injuries that their products cause. In the Restatement’s

terms: “One engaged in the business of selling or

otherwise distributing products who sells or distributes a defective product is subject to liability for

harm to persons or property caused by the defect.”

Restatement (Third) of Torts: Prod. Liab. § 1 (1998).

Conversely, courts have traditionally held that

companies are not liable for injuries caused by others’

products. Car manufacturers need not warn about

the dangers of aftermarket parts compatible with

their vehicles. See Baughman v. Gen. Motors Corp.,

780 F.2d 1131, 1132 (4th Cir. 1986). Tire manufacturers have no duty to warn about the dangers of the

wheels with which they are compatible—even when

they are designed specifically to be used with those

wheels. See Reynolds, 989 F.2d at 471; accord Acoba

v. Gen. Tire, 986 P.2d 288, 305 (Haw. 1999). The

maker of dialysis machines has no duty to warn

about the risks of the third-party formaldehyde

used—at the maker’s recommendation—to clean its

machines. Brown v. Drake-Willock Int’l, Ltd., 530

N.W.2d 510, 514–15 (Mich. Ct. App. 1995); accord

Dreyer v. Exel Indus., S.A., 326 F. App’x 353, 357–58

(6th Cir. 2009). And the manufacturer of a customordered component piece has no duty to investigate

whether its piece is safe for use in the customer’s log

splitter. See Childress, 888 F.2d at 49.

All of this fully accords with consumer expectations. The home chef who buys a butcher’s knife

would hardly expect a warning about the dangers of

other products—undercooked meat, for example—

with which the knife will foreseeably be used. Similarly, a hockey player would be surprised to learn

that he could sue the maker of his skates for failing

to warn about the risk of head injury associated with

an improperly secured helmet. A swimmer injured

while diving into a shallow pool would not think to

sue the maker of her swimsuit for failing to warn

about the risks of diving without first checking the

depth. It would be absurd if a smoker could sue the

manufacturer of his cigar lighter or ash tray for failing to warn about the dangers of smoking. And it

would be equally absurd if a boater could sue the

seller of marine gasoline for failing to warn about the

risks of boating at high speeds.

Perhaps because a rule subjecting companies to liability for the dangers of third-party products would

lead to these untenable results, few plaintiffs outside

the asbestos context have even argued for such a

rule. And, outside the asbestos context, those who

have made these arguments have failed. See, e.g.,

Brown, 530 N.W.2d at 515; Reynolds, 989 F.2d at

471; Baughman, 780 F.2d at 1132–33.

2. Tort Doctrine. The rule limiting liability to

those within a product’s chain of distribution derives

from foundational tort-law principles.

To start, one of the most “deeply rooted” principles

of Anglo-American tort law is the “difference … between misfeasance and nonfeasance.” Prosser &

Keeton on the Law of Torts § 56 (5th ed. 1984). A defendant is liable only for his own “active misconduct

working positive injury,” not for his passive “failure

to take steps to protect” victims from harms caused

by third parties. Id. This traditional principle is

sometimes expressed as a “duty”: A defendant owes

no duty to protect the public from dangers that third

parties create. Restatement (Second) of Torts § 315

(1965). It can also be expressed as proximate causation: To recover in negligence, the plaintiff must

show that “[t]he actor’s negligent conduct” caused the

harm. Id. § 431 (emphasis added). Either way, the

underlying principle is that a defendant is liable for

the consequences of his own wrongdoing, not for failing to ameliorate the wrongdoing of others. And that

is true without regard to how foreseeable the third

party’s wrongdoing is; in general, no one has a duty

to stop, and no one can be held liable for, even foreseeable third-party misconduct. See id. § 314; accord, e.g., Iseberg v. Gross, 879 N.E.2d 278, 284 (Ill.

2007).

The second principle is related to the first: A defendant cannot be held liable simply because its conduct forms one link in the causal chain leading to injury. Instead, there must be something more directly

connecting the defendant’s wrongdoing to the plaintiff ’s injury. Without this requirement, any affirmative act serving as a but-for cause of a later injury

would subject the actor to liability. That would

amount to imposing a duty to rescue, since it would

obligate would-be defendants to intervene to protect

would-be plaintiffs from injuries caused by downstream actors. This principle is perhaps most naturally expressed in terms of proximate cause, which

requires “some direct relation between the injury asserted and the injurious conduct alleged.” Holmes,

503 U.S. at 268. But it can also be thought of as duty, as it is when courts proclaim that there is no duty

to protect against remote harms. See, e.g., Bryant v.

Glastetter, 38 Cal. Rptr. 2d 291, 296–97 (Cal. Ct. App.

1995). Either way, the underlying principle recognizes that the plaintiff must prove something more

than a but-for connection.

Applied to the products-liability context, these

principles mean that a defendant is responsible only

for the injuries directly caused by its own products,

not for the failure to protect consumers against injuries caused by third-party products foreseeably used

with its own. Again, one can think of this principle

under the rubric of either duty or proximate causation. The manufacturer of product A has no duty to

warn consumers against the hazards of product B.

And a plaintiff cannot recover against the manufacturer of one product for harms caused by a different

product.

The cases discussed at the outset reflect this principle. See, e.g., Brown, 530 N.W.2d at 515; Baughman, 780 F.2d at 1133; Reynolds, 989 F.2d at 471;

Childress, 888 F.2d at 49. Many others confirm it.

See, e.g., Dreyer, 326 F. App’x at 357–58 (6th Cir.

2009) (manufacturer of paint sprayer had no duty to

warn about dangers of product foreseeably used to

clean it); O’Neil v. Crane Co., 266 P.3d 987, 991 (Cal.

2012) (no liability for third-party asbestos-containing

replacement parts); In re Deep Vein Thrombosis, 356

F. Supp. 2d 1055, 1067–68 (N.D. Cal. 2005) (no duty

to warn about risks presented by seats foreseeably

installed on Boeing’s planes); Toth v. Econ. Forms

Corp., 571 A.2d 420, 423 (Pa. Super. Ct. 1990) (scaffolding company not responsible for warning about

risk of injury arising from scaffolding’s use with defective boards); Newman v. Gen. Motors Corp., 524

So. 2d 207, 209 (La. Ct. App. 1988) (GMC not liable

for defective ratchet added to vehicle by a third party

post-sale); Gaulding v. Celotex Corp., 772 S.W.2d 66,

68 (Tex. 1989) (no liability without proof of which defendant made injury-causing asbestos).

The rule limiting liability to those inside a product’s chain of distribution is a “fundamental principle” of products-liability law. Gaulding, 772 S.W.2d

at 68. It applies without regard to whether the

plaintiff seeks relief in strict liability or negligence.

See O’Neil, 266 P.3d at 991; Childress, 888 F.2d at 48;

Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 492

(6th Cir. 2005). Similarly, it applies to all theories of

products liability. Thus, manufacturers are not liable for the design or manufacturing defects of thirdparty components (like wheels) added to their products (like cars) post-sale. See Baughman, 780 F.2d at

1132. And a “manufacturer generally does not have

a duty to warn or instruct about another manufacturer’s products,” even where “a third party might

use those products in connection with the manufacturer’s own product.” Firestone Steel Prods. Co. v.

Barajas, 927 S.W.2d 608, 614 (Tex. 1996); accord

Mitchell v. Sky Climber, Inc., 487 N.E.2d 1374, 1376

(Mass. 1986).

All this is true even for defendants who reasonably

could have foreseen that their products would be

used with the injury-causing product. That is clear

from the cases so holding. See, e.g., Dreyer, 326 F.

App’x at 357–58; Brown, 530 N.W.2d at 514; Reynolds, 989 F.2d at 472; Childress, 888 F.2d at 47–48.

It is equally clear from the dearth of cases holding

otherwise. For as long as people have been starting

fires by striking flint against steel, they have been

using products together with other products. In all

that time, there have been innumerable situations

where the maker of a non-defective product was

more solvent—or for some other reason a more attractive defendant—than the maker of the injurycausing defective product. In all those cases over all

those years, plaintiffs’ lawyers have had strong incentive to sue the maker of the non-defective product. Why, then, after all these centuries, are there

not more suits against those who made non-defective

products for injuries caused by defective products

foreseeably used along with their own? Why, for that

matter, did asbestos plaintiffs sue bare-metal manufacturers like the petitioners only after running out

of other defendants to sue? See Victor E. Schwartz &

Mark A. Behrens, Asbestos Litigation: The “Endless

Search for a Solvent Bystander,” 23 Widener L.J. 59,

61 (2013) (explaining the history of asbestos litigation).

The most logical explanation is that tort law has

never permitted such suits. Indeed, the sparse cases

imposing liability on one manufacturer for injuries

caused by another’s product are aberrant and widely

regarded as contradicting foundational tort-law principles. Take the outlier cases holding brand-name

drug manufacturers liable for injuries caused by

their generic counterparts. See, e.g., T.H. v. Novartis

Pharms. Corp., 407 P.3d 18, 29 (Cal. 2017). But see

Schrock v. Wyeth, Inc., 727 F.3d 1273, 1285 (10th Cir.

2013); In re Darvocet, Darvon, & Propoxyphene

Prods. Liab. Litig., 756 F.3d 917, 938–39 (6th Cir.

2014). Not one member of this Court imagined that

possibility when the Court held that failure-to-warn

claims against generic manufacturers are preempted—indeed, quite the opposite. See PLIVA, Inc. v.

Mensing, 564 U.S. 604, 625 (2011) (“acknowledg[ing]

the unfortunate hand that federal drug regulation

has dealt” those who are injured by generic drugs);

id. at 643 (Sotomayor, J., dissenting) (“[A] drug consumer’s right to compensation for inadequate warnings now turns on the happenstance of whether her

pharmacist filled her prescription with a brand-name

drug or a generic.”). That centuries of tort law have

not produced any widely accepted body of case law

allowing liability for third-party products is a good

sign that centuries-old principles do not allow it.

3. Purposes of Tort Law. All of this fully accords

with tort law’s purposes: Vindicating plaintiffs who

are wronged, and efficiently allocating responsibility

to the party best-positioned to stop the harm.

From one perspective, the main function of tort

law is to give remedies to people injured by wrongful

conduct. Tort law does this by imposing liability on

those parties who can fairly be blamed for the plaintiff ’s injury. Attenuated connections do not count.

That is why a railroad that negligently fails to drop a

passenger off at her stop, and then buys her a hotel

room for the night, is not liable when an exploding

lamp injures her while she sleeps. Cent. of Ga. Ry.

Co. v. Price, 32 S.E. 77, 77–78 (Ga. 1898). It is also

why a campground cannot be held liable for failing to

warn patrons about the dangers on an adjoining

property. Fabend v. Rosewood Hotels & Resorts,

L.L.C., 381 F.3d 152, 155 (3d Cir. 2004). Both the

railroad and the campground played a causal role in

the plaintiff ’s injuries. In neither case, however, is

the plaintiff seeking relief for an injury fairly attributable to the defendant’s wrongdoing.

The same logic supports the rule limiting liability

to those inside a product’s chain of distribution.

These companies have control over their products;

they can test them, address any safety concerns, and

even stop the products from going to market. In contrast, those outside the chain of distribution cannot

control third-party products used with their own.

Holding them liable for injuries caused by these

third-party products would impose liability for harms

inflicted by someone else’s wrongdoing. That is exactly the sort of attenuated liability that tort law

concepts like duty and proximate cause prohibit. See

Cent. of Ga. Ry., 32 S.E. at 77–78; Fabend, 381 F.3d

at 155.

Tort law’s concern with efficiency also supports the

traditional rule imposing liability only on those within a defective product’s chain of distribution. From

this perspective, liability belongs with the party “who

is best positioned to avoid the loss.” Nat’l Union Fire

Ins. Co. of Pittsburgh, Pa. v. Riggs Nat’l Bank of

Washington, D.C., 5 F.3d 554, 557 (D.C. Cir. 1993)

(Silberman J., concurring). “Placing liability with

the least-cost avoider increases the incentive for that

party to adopt preventive measures and ensures that

such measures would have the greatest marginal effect on preventing the loss.” Id. And in the productsliability context, even where the least-cost avoider

cannot prevent the injury, the prospect of liability

will lead to increased prices, and “the increased prices will … discourage consumers from purchasing

risky products and thereby lower total accident costs

to society.” Bynum v. FMC Corp., 770 F.2d 556, 571

(5th Cir. 1985); see also Richard A. Posner, Economic

Analysis of Law 183 (6th ed. 2003).

This Court has recognized that products-liability

law is built upon the least-cost avoider rationale; it

fixes “responsibility” for injuries caused by defective

products “wherever it will most effectively reduce the

hazards to life and health inherent in defective products that reach the market.” East River, 476 U.S. at

866 (internal quotation marks omitted). That rationale justifies limiting liability to those within the

chain of distribution. For one thing, those inside the

chain of distribution are the only parties positioned

to do anything about a potential defect; they can test

their products and fix them before they hit the market. For another, imposing liability on those outside

the chain of distribution would blunt the incentive to

perform that testing. After all, if liability were imposed on those outside the chain of distribution, each

party within the chain of distribution would face a

lower risk of liability, and thus have less incentive to

improve product safety.

What is more, imposing liability on those outside

the chain of distribution would result in increased

costs not justified by an offsetting gain to safety. Any

company that may be held liable for selling a product

must increase its prices to account for that risk. The

added costs might be justified if they encourage consumers to buy, and manufacturers to develop, safer

products. But imposing liability on those outside the

chain is unlikely to encourage the production of safer

products. That is because those outside the chain of

distribution are rarely capable of doing anything to

make third-party products safer. As the California

Supreme Court explained, there “is no reason to

think a product manufacturer will be able to exert

any control over the safety of replacement parts or

companion products made by other companies.”

O’Neil, 266 P.3d at 1007. Given this lack of control,

imposing liability on the manufacturers and suppliers of safe products—forcing them to raise their prices or exit the market—would do little except discourage socially and mutually beneficial sales. That is

the definition of inefficiency.

In fact, imposing liability on those outside the

chain of distribution would undermine safety in the

failure-to-warn context, because it would lead to

overwarning. See id. Those who read warnings have

only so much time in the day, and they will ignore

warnings altogether—including the ones they need—

if they are inundated with useless ones. See, e.g.,

FDA, 73 Fed. Reg. 49603, 49605–06 (Aug. 22, 2008)

(overwarning may dilute other “more important

warnings” and “deter appropriate use” of beneficial

products); James A. Henderson, Jr. & Aaron D.

Twerski, Doctrinal Collapse in Products Liability:

The Empty Shell of Failure to Warn, 65 N.Y.U. L.

Rev. 265, 296–97 (1990).

Any modern consumer knows the feeling. A restaurant patron in California, for example, likely receives warnings “about olives, bread, and chicken because those foods” naturally “contain trace amounts

of substances known to cause cancer in rodents” at

much higher doses. Michael L. Marlow, Too Much

(Questionable) Information?, Regulation 20, 22 (Winter 2013–14). If she bothers to read this information,

it may deter her from engaging in perfectly healthy

behavior. More likely, however, she will just start to

ignore warnings altogether—including those that she

really needs.

To avoid this, courts should not take the view that

a party’s “willingness to strengthen its warning is

something always to be encouraged.” Cerveny v.

Aventis, Inc., 855 F.3d 1091, 1102 (10th Cir. 2017). A

good place to start is with refusing to impose on

manufacturers “a duty to warn or instruct about another manufacturer’s products.”

Firestone, 927

S.W.2d at 614. That at least removes the incentive to

issue warnings about products made, sold, and distributed by others.

4. Asbestos. Under the doctrine set out above,

equipment manufacturers are not liable for injuries

caused by asbestos added to their equipment postsale.

When a third party makes an asbestoscontaining component, it puts a product of its own

into the stream of commerce. See Saratoga Fishing

Co. v. J.M. Martinac & Co., 520 U.S. 875, 884–85

(1997) (in maritime law, components added to a

product after its sale are “not part of the product” to

which they are added). Those outside the chain of

distribution thus owe no duty as to, and are not the

proximate causes of, injuries that the asbestos causes. See, e.g., Lindstrom, 424 F.3d at 492–95; Grant v.

Foster Wheeler, LLC, 140 A.3d 1242, 1248–49 (Me.

2016); O’Neil, 266 P.3d at 996; Braaten v. Saberhagen

Holdings, 198 P.3d 493, 502 (Wash. 2008).

To see why this is true, first consider manufacturers who made, sold, and distributed equipment with

no asbestos at all. This equipment of course presents

no asbestos-related danger unless some third party

introduces a danger through the manufacture, distribution, and installation of its own, separate product containing asbestos. To hold the original equipment manufacturer liable for this later-introduced

risk would contravene the rule that there is no duty

to protect the public from third-party actions. Restatement (Second) of Torts § 315 (1965). It would be

equally inconsistent with the concept of proximate

causation, which requires “some direct relation between the injury asserted”—here, an asbestos-caused

disease—“and the injurious conduct alleged.”

Holmes, 503 U.S. at 268. The connection between

the equipment manufacturer and the asbestoscaused injury is quite indirect, since it depends on a

third party introducing the risk by producing and installing asbestos.

True, the bare-metal manufacturer might foresee

that asbestos-containing materials will be used with

its product. But that is not enough to justify liability.

If it were, the maker of dialysis machines would have

to issue warnings about the dangers of the chemicals

it recommends for cleaning its machines, Brown, 530

N.W.2d at 514, the tire manufacturer could be liable

for injuries caused by the wheel for which it was specifically designed, Reynolds, 989 F.2d at 471, the cutler could be sued for the dangers of undercooked

meat, and so on. In each of these cases, the harm

posed by some third-party product is wholly foreseeable. And in each, the manufacturer of the safe

product is not liable for the injuries that a thirdparty product caused, because it neither owed a duty

nor proximately caused the injury.

The same logic applies to manufacturers whose

equipment originally came with asbestos-containing

parts that were replaced before the user used that

equipment. These manufacturers stood in the same

relation to any later-added asbestos as did the makers of asbestos-free equipment: Both could have

foreseen the future use of asbestos, but neither had

any control over third parties’ decisions whether to

use asbestos-containing parts in the future. Any injuries arising from later-added asbestos, including

later-added replacement parts, resulted directly from

third-party conduct. Thus, just like the makers of

equipment originally supplied without any asbestos,

makers of equipment with asbestos-containing parts

had no duties relating to, and did not proximately

cause any injuries arising from, asbestos added to

their equipment post-sale. See, e.g., Lindstrom, 424

F.3d at 492–95; Grant, 140 A.3d at 1248–49; O’Neil,

266 P.3d at 996.

All of this accords with tort law’s interest in giving

plaintiffs a remedy against those who wrong them.

As suggested above, once these manufacturers put

their equipment into the stream of commerce, they

could not “exert any control over the safety of replacement parts or companion products made by other companies.” O’Neil, 266 P.3d at 1007. Nor could

they exert any control over whether some intermediary, like the Navy, continued to require asbestos.

And these independent decisions to supply asbestos

and require it were often made over the course of

many years, even decades (as in DeVries). There is

no relevant sense in which an injury that results

from a series of independent decisions by the Navy

and third parties is fairly attributable to the manu-

facturer who supplied the equipment. At most, the

equipment manufacturer created “a mere condition”

that allowed some other party to take independent

actions that injured the plaintiff. The creation of

such a condition has never been enough to constitute

a “proximate cause.” Gilman v. Cent. Vermont Ry.

Co., 107 A. 122, 125 (Vt. 1919). What is more, imposing liability would amount to a duty to protect

against third-party actions. These longstanding tortlaw rules show that manufacturers of equipment to

which injury-causing asbestos is later added do not

commit the sort of “wrong” for which tort law imposes liability.

That conclusion is even stronger when the plaintiff

was exposed to asbestos while working on complex

systems, such as propulsion systems in ships, see,

e.g., Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791,

800 (E.D. Pa. 2012), or steam-pipe systems in buildings, see In re New York City Asbestos Litig. (“Dummitt”), 59 N.E.3d 458, 467 (N.Y. 2016). These systems generally consist of many individual component

products; for example, the turbines in a propulsion

system, or the piping in a heating system. If it was

important to use asbestos, it was important to the

system as a whole. Imposing liability on whoever

made the part of a system to which the injurycausing asbestos happened to be attached would

make “the scope of a manufacturer’s liability turn on

what seems” to be a “fortuity.” Saratoga, 520 U.S. at

881.

Many of the same considerations bear on tort law’s

concern with regulating the conduct of product manufacturers. The “curbstone philosopher[’s]” observation that “everything is related to everything else,”

Cal. Div. of Labor Standards Enforcement v. Dillingham Constr., N.A. Inc., 519 U.S. 316, 335 (1997)

(Scalia, J., concurring), is particularly true at sea:

“On a ship most things are connected to other

things,” Stark, 21 F. App’x at 381, so most ship components will be used with other components. As a

result, imposing liability on everyone who made a

product foreseeably used with asbestos would risk

imposing liability on everyone who made or sold a

product incorporated into a ship’s (or a building’s, or

a car’s) asbestos-containing systems. That would no

doubt increase the price of each component, but it

would do nothing at all to improve safety. Worse, it

would dilute the incentive to make a safer product by

spreading the risk of liability to those (often solvent

defendants) outside the asbestos-containing product’s

chain of distribution.

The interconnectivity also raises concerns about

overwarning. Requiring each manufacturer whose

equipment was foreseeably used with asbestos to

warn about the risks of asbestos would have inundated those tasked with maintaining that equipment

with warnings. And that would have presented dangers all its own, because ships—especially warships—pose many immediate risks to life and limb

that a sailor could miss if warned of every potential

risk. In this context, the more sensible approach was

the one the Navy adopted: Give warnings only of the

most immediate threats, dealing with long-term hazards, such as those posed by asbestos, through training and other means. JA 39–40.

What all of this shows is that traditional tort principles support the so-called “bare-metal rule,” under

which equipment manufacturers are not liable for

injuries caused by asbestos insulation and asbestoscontaining components obtained by the user from

other sources and added to the equipment by a third

party post-sale.

B. The principles of maritime law require

the same rule.

The next question is whether this tort-law doctrine

comports with the principles of maritime law. It

does.

1. Principles of maritime law. The Constitution

gives federal courts jurisdiction over suits arising in

admiralty, thereby securing “a uniformity of rules

and decisions in all maritime questions.” DeLovio, 7

F. Cas. at 443. This uniformity protects parties from

being held to different standards in different parts of

the country, allowing them to “look ahead with some

ability to know what the stakes are in choosing one

course of action or another.” Exxon Shipping, 554

U.S. at 502. This predictability promotes maritime

law’s most “fundamental interest”: “the protection of

maritime commerce.” Norfolk S., 543 U.S. at 25 (internal quotation marks and emphasis omitted). And

the benefits of predictability have fostered a

longstanding tradition of “simplicity and practicality”

in maritime law. Kermarec, 358 U.S. at 631.

Maritime law also has a long tradition of “special

solicitude for the welfare of those men who undertook to venture upon hazardous and unpredictable

sea voyages.” Moragne v. States Marine Lines, Inc.,

398 U.S. 375, 387 (1970). The principle arose in an

era when courts viewed sailors as “ignorant and

helpless, and so in need of protection against [themselves] as well as others.” Warner v. Goltra, 293 U.S.

155, 162 (1934). While at sea, these men were at the

mercy of the ship and the captain. Given this disparity in power, maritime-law doctrines sometimes

make it easier for seamen to recover against their

disproportionately powerful employers. See Garrett

v. Moore-McCormack Co., 317 U.S. 239, 246 (1942).

This Court has never, however, used maritime law’s

concern with the welfare of seamen to adopt whatever rule maximizes their potential for recovery. To the

contrary, it expressly stated that courts should not

“expand remedies at will simply because it might

work to the benefit of seamen and those dependent

upon them.” Miles, 498 U.S. at 36.

The Court has often turned to the foregoing principles in determining the general maritime law. East

River, 476 U.S. 858, is illustrative. There, the Court

held that maritime law recognizes the “economic loss

rule,” under which “a manufacturer in a commercial

relationship has no duty under either a negligence or

strict products-liability theory to prevent a product

from injuring itself.” Id. at 871. It relied in large

part on its view that rejecting the economic-loss rule

would impair maritime commerce by collapsing the

distinction between contract law and tort law, and by

subjecting maritime-equipment manufacturers to

large, unpredictable awards. Id. at 871–75. “In

products-liability law, where there is a duty to the

public generally, foreseeability is an inadequate

brake” on liability, and “[p]ermitting recovery for all

foreseeable claims for purely economic loss would

make a manufacturer liable for vast sums.” Id. at

874. So while state courts had disagreed about

whether to adopt the economic-loss rule, this Court

determined that the rule ought to apply as a matter

of maritime law, since it fit with that body of law as a

whole.

Similarly instructive is the Court’s decision in

Kermarec v. Compagnie Generale, which held that

maritime law does not incorporate the common law’s

distinction between invitees and licensees as it relates to premises liability. 358 U.S. at 630–31. The

complexity of that distinction had caused courts “to

formulate increasingly subtle verbal refinements, to

create subclassifications among traditional commonlaw categories, and to delineate fine gradations in

the standards of care which the landowner owes to

each,” “produc[ing] confusion and conflict” even in

the common law. Id. at 630, 631. “[T]o import such

conceptual

distinctions”—even

long-recognized

ones—“would be foreign to” maritime law’s “traditions of simplicity and practicality.” Id. at 631.

2. Applicability of the traditional rule. The

rule limiting liability to those within the chain of distribution fully accords with maritime law. For one

thing, it is predictable and easily applied. Courts

must only identify the injury-causing product and

ask whether the defendant made, sold, or distributed

it. If the answer is yes, the defendant might be liable. If the answer is no, the defendant is not liable.

This test avoids all the complications that would

arise from asking whether the interaction between

products is foreseeable, a complication that is especially serious on ships, where most things are connected.

For another thing, the rule yields predictable, uniform results across the country, allowing those engaged in maritime commerce and navigation to “look

ahead with some ability to know what the stakes are

in choosing one course of action or another,” without

having to worry about being subject to different rules

in different parts of the country. Exxon Shipping,

554 U.S. at 502. That promotes maritime law’s “fundamental interest”—fostering maritime commerce.

Norfolk S., 543 U.S. at 25.

Finally, there is maritime law’s interest in the welfare of seamen. The traditional rule limiting liability

to those in the chain of distribution leaves sailors no

worse off than any other tort litigant. For instance,

they can still sue manufacturers of asbestoscontaining parts, just like anyone else injured by a

defective product. They also have access to asbestosspecific procedures, such as the “asbestos trusts” established in accordance with federal bankruptcy law.

These trusts, funded with the reorganizing company’s assets, must “use [their] assets or income to pay

claims and demands.” 11 U.S.C. § 524(g)(2). In return for the establishment of this trust, the bankruptcy court may enter a channeling injunction requiring that asbestos claims be brought against the

trust rather than the reorganized company. Id.

§ 524(g)(1). More than 50 asbestos trusts have been

established. RAND Corporation, Asbestos Bankruptcy Trusts 28 (2010), available at https://perma.cc/

5HY2-H6DH. Through 2008, these trusts had paid

out $10.9 billion in claims to “hundreds of thousands

of claimants.” Id. at 13, 28. They will continue to do

so, since federal law requires such trusts to operate

in a way that “provide[s] reasonable assurance that

the trust will … be in a financial position to pay …

present claims and future demands.” 11 U.S.C.

§ 524(g)(2).

Of course, it is easy to conceive of liability rules

that might permit recovery by individual sailors

where traditional tort law does not. (“The sailor always wins,” for starters.) This Court, however, has

long denied that courts should adopt whatever rule

helps sailors the most. Miles, 498 U.S. at 36. And in

any event, the justifications for giving seamen “special solicitude” are outdated and inapplicable to this

case. Centuries ago, admiralty courts believed that

seamen were “deficient in that full and intelligent

responsibility for their acts which is accredited to ordinary adults” and therefore needed “the protection

of the law in the same sense in which minors and

wards are entitled to the protection of their parents

and guardians.” Robertson v. Baldwin, 165 U.S. 275,

287 (1897). As Justice Story put it: “They are generally poor and friendless, and acquire habits of gross

indulgence, carelessness, and improvidence. ... Every

court should watch with jealousy an encroachment

upon the rights of seamen ... because they are

thoughtless and require indulgence; because they are

credulous and complying; and are easily over

reached.” Harden v. Gordon, 11 F. Cas. 480, 483, 485

(C.C.D. Me. 1823)

It should go without saying that this conception of

sailors, especially Navy sailors, is worse than outdated. The disparaging characterizations, already criticized more than 70 years ago, see Kelcey v. Tankers

Co., 217 F.2d 541, 548 (2d Cir. 1954) (Hand J., dissenting), are downright absurd today:

The modern reality is that most seamen are no

longer “friendless”; rather, they have gained

strength through collectivity, and they are a

well-organized work force with sophisticated

leaders who constantly press for better working

conditions, pay, and benefits, as well as increased job security. Thus, the need for judicial

intervention to protect seamen has been substantially lessened.

Ammar v. United States, 342 F.3d 133, 146 (2d Cir.

2003).

The other justification for “special solicitude” is the

notion that seamen are at the mercy of the captain

and ship while at sea, and thus require special protection. See Castillo v. Spiliada Mar. Corp., 937 F.2d

240, 243 (5th Cir. 1991). But this justification is pertinent only when evaluating the scope of a captain’s

or shipowner’s duty to otherwise helpless sailors.

See, e.g., Atlantic Sounding Co. v. Townsend, 447

U.S. 404 (2009). It has minimal relevance in the

products-liability context, where the danger posed

bears no relation to the ship’s captain or owner.

Such cases do not involve the sort of inequality in

bargaining power this Court has cited as justification

for the special-solicitude rule. See Garrett, 317 U.S.

at 246.

3. Conclusion.

The traditional common-law

rule—that product manufacturers are liable only for

the products they make, sell, or distribute—best implements the principles of maritime law. So too is

the more specific rule that product manufacturers

are not liable for asbestos added to their products

post-sale. The Court should therefore recognize

these rules as a matter of maritime law.

II. THE THIRD CIRCUIT’S ALTERNATIVE

APPROACH

CONTRADICTS

THE

COMMON LAW AND UNDERMINES THE

PURPOSES OF MARITIME LAW.

The Third Circuit rejected the bright-line rule

above in favor of the following approach crafted specifically for asbestos cases: A “manufacturer of a

bare-metal product may be held liable for a plaintiff ’s

injuries suffered from later-added asbestoscontaining materials if the facts show the plaintiff ’s

injuries were a reasonably foreseeable result of the

manufacturer’s failure to provide a reasonable and

adequate warning.” Pet. App. 15a.

The Third Circuit adopted this test for two reasons. First, it determined that a product manufacturer “may be held liable” at common law “if the

plaintiff ’s injury was a reasonably foreseeable result

of the manufacturer’s conduct.” Pet. App. 6a. Second, it concluded that its rule would “permit a greater number of deserving sailors to receive compensation” than would the bright-line rule. Pet. App. 13a.

Neither justification is persuasive. Foreseeability

is not the test at common law, and the Third Circuit’s

approach cannot be justified simply because it affords some individual plaintiffs greater recoveries.

A. Tort-law principles do not support the

foreseeability-based test that the Third

Circuit adopted.

The Third Circuit held that manufacturers may

have a duty to warn about third-party products used

with their own products when the risk of harm is

reasonably foreseeable. Pet. App. 5a–6a, 45a–46a.

The Third Circuit derived this test based on its mis-

taken belief that foreseeability alone creates a duty.

That is wrong, as even the New York and Maryland

Courts of Appeals acknowledged when they adopted

tests similar to the Third Circuit’s as a matter of

state law. Those courts adopted the foreseeabilitybased test based entirely on policy concerns, without

regard to the doctrinal points set out above. Infra

42–48. As a result, the approaches used by all three

courts are as inconsistent with tort law as are the

tests they adopted.

1. The Third Circuit’s flawed approach. The

Third Circuit concluded that manufacturers are liable for all “foreseeable” results of their decision to

make a particular product. Pet. App. 6a–9a. This

foreseeability-focused analysis contradicts hornbook

law. As state courts across the country have held, in

“strict liability as in negligence, ‘foreseeability alone

is not sufficient to create an independent tort duty.’”

O’Neil, 266 P.3d at 1005 (quoting Erlich v. Menezes,

981 P.2d 978, 891 (Cal. 1999)); see also, e.g., McKown

v. Simon Prop. Grp., Inc., 344 P.3d 661, 666 (Wash.

2015); In re Certified Question from Fourteenth Dist.

Ct. of Appeals of Tex., 740 N.W.2d 206, 212 (Mich.

2007); Murillo v. Seymour Ambulance Ass’n, Inc., 823

A.2d 1202, 1205 (Conn. 2003); Lamkin v. Towner, 563

N.E.2d 449, 454 (Ill. 1990). Lower courts sitting in

admiralty have recognized the same principle. See,

e.g., Reino de España v. Am. Bureau of Shipping, 729

F. Supp. 2d 635, 645 (S.D.N.Y. 2010).

Thus, the principle that a defendant has no duty to

protect the public from the misconduct of others remains valid even if an injury is foreseeable. For example, a bystander has no legal duty to rescue a pedestrian who falls off of a dock and into the ocean,

even if it is entirely foreseeable that the man will

drown without assistance. In the same way, the

manufacturer of a product has no legal duty to warn

a consumer against the hazards of products made by

others, whether or not it can foresee those hazards.

Indeed, the leading state cases holding that product manufacturers can be liable under state law for

injuries caused by later-added asbestos—May v. Air

& Liquid Systems Corp., 129 A.3d 984 (Md. 2015),

and Dummitt, 59 N.E.3d 458—acknowledge as much.

While foreseeability might be relevant to whether a

defendant violated a duty, courts “cannot recognize a

duty based entirely on the foreseeability of the harm

at issue.” Dummitt, 59 N.E.3d at 470; accord May,

129 A.3d at 990. Thus, even the courts that agree

with the Third Circuit’s bottom line reject its approach.

2. The state courts’ flawed approaches. The

approaches that May and Dummitt used, however,

are equally indefensible. Neither seriously grappled

with the doctrinal points set out above, supra 19–25,

and each thus settled on a foreseeability-based test

at odds with these doctrinal principles, see May, 129

A.3d at 1001–11 (Watts, J., dissenting) (criticizing

the majority for expanding liability beyond what settled doctrine or prior cases allowed). Both courts

characterized tort law as an exercise in policymaking, and determined that imposing liability on baremetal manufacturers made good policy. According to

these courts, “the determination of whether a duty

exists represents a policy question of whether the

specific plaintiff is entitled to protection from the

acts of the defendant.” May, 129 A.3d at 994 (citation omitted). In divining sound policy:

the court must settle upon the most reasonable

allocation of risks, burdens and costs among the

parties and within society, accounting for the

economic impact of a duty, pertinent scientific

information, the relationship between the parties, the identity of the person or entity best positioned to avoid the harm in question, the public policy served by the presence or absence of a

duty and the logical basis of a duty.

Dummitt, 59 N.E.3d at 469; accord May, 129 A.3d at

989 (providing a similar list of “non-exclusive factors”).

Whatever its merits under state law, this freewheeling approach has no place under maritime law.

“Courts cannot give or withhold at pleasure” when

“exercising the limited jurisdiction of admiralty.” S.

Pac. Co. v. Jensen, 244 U.S. 205, 220–21 (1917)

(Holmes, J., dissenting). Rather than conducting

their own independent inquiries into sound policy,

admiralty courts must develop legal rules in light of

the common law and the “body of customs and ordinances of the sea.” Id. at 220; see, e.g., East River,

475 U.S. at 864 (“body of maritime tort principles”).

In any event, the foreseeability-based, totality-ofthe-circumstances rules that Dummitt and May

adopted fail on their own terms. Dummitt held a

manufacturer must “warn of the danger arising from

the known and reasonably foreseeable use of its

product in combination with a third-party product

which, as a matter of design, mechanics or economic

necessity, is necessary to enable the manufacturer’s

product to function as intended.” 59 N.E.3d at 463.

It then held that manufacturers who made products

much like the petitioners’ owed a duty to warn about

the dangers of later-added asbestos. Id. at 483.

May, for its part, concluded that manufacturers

have a duty to warn about the dangers posed by later-added asbestos when:

(1) a manufacturer’s product contains asbestos

components, and no safer material is available;

(2) asbestos is a critical part of the pump sold by

the manufacturer;

(3) periodic maintenance involving handling asbestos gaskets and packing is required; and

(4) the manufacturer knows or should know of

the risks from exposure to asbestos.

129 A.3d at 994.

The first problem with these tests is that they contradict the courts’ self-professed desire to “[c]abin the

duty” to avoid “exposing manufacturers to limitless

liability.” May, 129 A.3d at 995. As Dummitt put it,

courts “must draw a commonsense line at which duty

ends,” because the “duty to warn must have a logical

basis and scope that limits the legal consequences of

wrongs to a controllable degree.” 59 N.E.3d at 473

(internal citations and quotation marks omitted).

Neither the Dummitt nor the May formulation accomplishes this. Both use impossibly vague terms to

assess foreseeability. Take whether asbestos was

“necessary to enable the manufacturer’s product to

function as intended” (Dummitt’s formulation) or

whether it was a “critical part” of the composite

product (May’s formulation). The Navy eventually

stopped using asbestos-containing parts with its

equipment, replacing them with non-asbestos substi-

tutes, JA 38, so asbestos was never “necessary” in the

strict sense of that word. The courts presumably

mean something like “practically necessary,” but that

clarifies nothing. If there is an alternative to the

component that works only slightly less efficiently or

costs slightly more, is the dangerous component still

“necessary” to or a “critical part” of the overall product? Who knows, but if the answer to that question

is yes, then courts—and manufacturers prospectively

trying to comply with the law—face intolerable burdens. What if the safer alternative is only 75% as

efficient as the more dangerous alternative? What if

it is 85% as efficient but costs 10% more? What if it

just costs 15% more? What about 25%? Moreover, in

the Navy context, “necessity” is further complicated

because the Navy often required asbestos-containing

products in equipment. In such instances, such components were “necessary” whether or not the asbestos content was “necessary” in some technical respect.

These aren’t the only imponderables that manufacturers will face. Whether something is “critical,”

May, 129 A.3d at 994, or “economically necessary,”

Dummitt, 59 N.E.3d at 463, cannot be determined in

a vacuum. For example, the Navy presumably has a

lower margin for performance-related deficiencies

than commercial shippers, and a lower margin for

such deficiencies on battleships than on patrol boats

or oceanographic research vessels. On the other

hand, the Navy also has deeper pockets than international shippers, who may be wealthier than smalltime fishing companies. To assess whether a third

party’s hazardous product was “critical” or “economically necessary” to its own, then, a manufacturer

would have to account for many incommensurable

factors—including the relative danger, cost, and efficiency of a host of possible third-party components,

the cost constraints within an industry, and so forth.

No one has provided useful guidance on how manufacturers (prospectively) or courts (retrospectively)

should balance these variables.

In addition to the uncertainty, there is another

problem unique to the asbestos context. As explained above, asbestos was commonly attached to

complex systems—heating systems, propulsion systems, and so on. Just about every component of

these systems was foreseeably used “in combination

with” asbestos. Dummitt, 59 N.E.3d at 463. And if

asbestos was necessary (or “critical” or “economically

required”) for any part of that system to “function as

intended,” then it was equally necessary for every

other part of it as well. To impose liability only on

the party that made the part of the system to which

asbestos happened to have been attached hardly

qualifies as “a commonsense line.” Id. at 473

In finding a duty to warn about the risks of lateradded asbestos anyway, Dummitt and May both relied heavily on their conclusion that the maker of a

durable good to which asbestos is later added is wellpositioned to learn of the risk and give a warning.

See Kermarec, 358 U.S. at 630–31. But the maker,

seller, and distributor of the asbestos are all better

positioned to give a warning about the dangers the

asbestos poses. Those parties can be sure that their

warning reaches either the user or an intermediary

with each distribution—someone will see the warning on the package. The maker of a durable good, in

contrast, can do little to ensure that warnings reach

anyone beyond the product’s first recipient, and is

powerless to adjust its already-distributed warnings

in light of newly discovered information.

Dummitt and May also stressed that imposing a

duty would not “saddle manufacturers with an untenable financial burden.” 59 N.E.3d at 473. In

reaching this conclusion, Dummitt asserted that

“[p]rior judicial recognition of a manufacturer’s duty

to warn” had “not imposed extreme or unreasonable

financial liability on manufacturers.” Id. at 473.

That assertion is itself doubtful; there is no good evidence that modern products-liability law is costjustified, and good reason to doubt that it is. See A.

Mitchell Polinsky & Steven Shavell, The Uneasy

Case for Product Liability, 123 Harv. L. Rev. 1437,

1469–76 (2010); cf. Joanna M. Shepherd, Products

Liability and Economic Activity: An Empirical Analysis of Tort Reform’s Impact on Businesses, Employment, and Production, 66 Vand. L. Rev. 257, 261

(2013) (reporting “empirical results” indicating “that

several reforms that restrict the scope of products

liability have a significant impact on economic activity.”). In any event, prior judicial recognition of the

duty to warn has not (with any frequency, at least)

extended to the dangers of third-party products, and

thus shines little light on the reasonableness of the

burden that manufacturers will face under May’s

and Dummitt’s novel regimes.

Dummitt and May both asserted that any potential burdens are no big deal because of insurance. 59

N.E.3d at 473; 129 A.3d at 994. Again, it is far from

clear that insurance will be available in this new tort

regime, given the uncertainty of the risk. If it is, it

will be more expensive, and the added expense will

either force products from the market or lead to increased prices. It is hard to justify this added cost,

given the dubious value of the additional warnings

that the Dummitt and May rules could spur, all of

which would be over and above the warnings included with component parts, and over and above those

given by employers during training.

State courts are of course free, when applying

state law, to choose whatever rules they wish. But as

the foregoing shows, policy considerations do not

support the results in May and Dummitt, so those

cases are wrongly decided on their own terms. And

the test they adopted under state law is certainly improper in the context of general maritime law, given

the policies undergirding that body of law.

B. The

Third

Circuit’s

approach

contradicts the principles of maritime

law.

The Third Circuit reasoned that its foreseeabilitybased approach best fit with maritime law’s interest

in the welfare of seamen, because it would “permit a

greater number of deserving sailors to receive compensation, and compensation that is closer to what

they deserve.” Pet. App. 13a. On this basis alone, it

imposed its foreseeability test. Pet. App. 13a–15a.

This analysis suffers from three flaws. First, maritime courts are not supposed to “expand remedies at

will simply because it might work to the benefit of

seamen and those dependent upon them.” Miles, 498

U.S. at 36. Second, while maritime law should permit recovery for “deserving” sailors, Pet. App. 13a,

the critical question is: From whom do they deserve

to collect? Foundational tort-law and maritime-law

principles both point to the same answer: They deserve to collect from the parties who made, sold, and

distributed the injury-causing asbestos, not from solvent bystanders that did none of these things. Supra

18–40. Finally, the Third Circuit’s test would likely

make sailors worse off. It implicitly rests on the

flawed assumption that every warning is a good

warning. As addressed at length above, that is

wrong, especially on a warship. The Third Circuit’s

rule gives maritime companies incentive to warn

about the risks of every product foreseeably used

with their own. The effect will be to drown out the

truly important warnings, thus impairing rather

than improving the wellbeing of seamen.

In any event, the Third Circuit’s test is inconsistent with maritime law. Its vague, open-ended

standard, which turns on how foreseeable was the

product’s use with asbestos, would be unhelpful in

any context. But its application is especially complicated in maritime-law cases. Once again: “On a ship

most things are connected to other things.” Stark, 21

F. App’x at 381. And for most of the 20th century,

many of those things were in some way used with

asbestos. As a result, anyone who made a product or

product-component for use aboard a ship arguably

could reasonably have foreseen that its end users

might be injured if not warned about the risks asbestos posed.

The Third Circuit pointed to a number of scenarios

in which its foreseeability standard might be satisfied. For example, it suggested that a manufacturer

would be liable where it should have known that asbestos was dangerous and should have known that

asbestos would be used with its equipment because

its equipment came with asbestos that would need to

be replaced, because the manufacturer “specifically

directed” use with an asbestos-containing part, or because it “required an asbestos-containing part to

function properly.” Pet. App. 15a–16a.

These “fine gradations” and “subtle” distinctions

contradict maritime law’s “traditions of simplicity

and practicality.” Kermarec, 358 U.S. at 630–31.

Consider the category of cases in which “the product

required an asbestos-containing part to function

properly.” Pet. App. 15a. The concept of “functioning

properly” is ambiguous, and would require courts to

draw hairline distinctions, often arbitrary, between

manufacturers. For example, few products on board

ships would be completely inoperable without asbestos, and so the question is whether they operate so

inefficiently that they cease to “function properly.” It

is impossible simply and practically to identify the

point at which a product moves from “less efficient”

to “improperly functioning.” See supra 44–45.

The same problem plagues the prong of the test

suggesting liability for those who supply a product

with an asbestos-containing part or who “direct” that

it be used with such parts. It is true enough that

these manufacturers might reasonably foresee that

their products will be used with asbestos, but at

some point the manufacturer’s liability must end.

For example, if a ship owner continued making its

employees use asbestos-containing replacement

parts decades after the emergence of a perfect,

cheaper substitute, its independent decision to do so

would constitute an intervening act that freed the

manufacturer from liability. See Nishida v. E. I. Du

Pont De Nemours & Co., 245 F.2d 768, 774 (5th Cir.

1957) (defendant not liable when supplier of cattle

feed continued using defendant’s production method

after learning it was unsafe). As this shows, at some

point foreseeability can no longer justify liability.

But the Third Circuit provides no insight into when

that occurs. Does it occur once science identifies a

perfect substitute? Does it matter if the substitute is

more expensive? Does it matter how much more expensive it is? Does an almost-perfect substitute suffice? How close must it get? Did manufacturers “direct” the use of asbestos if the military required them

to recommend its use, and to reflect such use in their

parts lists? There is no simple, practical way of answering these inherently arbitrary questions.

It only gets worse. The Third Circuit stressed that

these categories are non-exhaustive, and that liability will necessarily turn on the facts of each case.

Pet.App. 16a. Thus, even if manufacturers and

courts can divine answers to the questions prompted

by the Third Circuit’s purported clarifications, many

others will remain, miring every solvent bystander in

intractable, unpredictable litigation and leaving

courts helpless to clean up the mess.

For all the same reasons, the Third Circuit’s test

would undermine the uniformity that maritime law

is supposed to promote. Its open-ended, unpredictable test is incapable of consistent application. Indeed, courts applying the foreseeability test have

reached contradictory results. Compare Dandridge

v. Crane Co., 2016 WL 319938, at *4 (D.S.C. Jan. 27,

2016) (duty to warn only if the defendant’s conduct

makes the use of asbestos “inevitable”) with Kochera

v. Foster Wheeler, LLC, 2015 WL 5584749, at *4 (S.D.

Ill. Sept. 23, 2015) (concluding otherwise).

What is more, complex, unpredictable rules “are

too indeterminate to enable manufacturers easily to

structure their business behavior.” East River, 476

U.S. at 870. In East River, this Court rejected a foreseeability-based approach to products-liability law in

favor of a bright-line rule, precisely because the foreseeability-based standard threatened limitless liability to those engaged in maritime commerce. Id. at

871–75. The same concerns apply here. Foreseeability in this context threatens massive liability, especially given the durable, interconnected nature of

ships. This risk will increase prices, lowering demand and hampering maritime commerce from both

a consumer’s and a supplier’s perspective. And since

the benefits of imposing liability on manufacturers

are uncertain at best, “[t]he increased cost to the

public that would result from holding a manufacturer liable in tort for injury to the product itself is not

justified.” Id. at 872.

III. THE PETITIONERS ARE ENTITLED TO

JUDGMENT AS A MATTER OF LAW.

It follows that product manufacturers cannot be

held liable under maritime law for injuries caused by

asbestos that they did not make, sell, or distribute.

That rule resolves this case. It is undisputed that

none of the petitioners made, sold, or distributed the

asbestos alleged to have caused John DeVries’s or

Kenneth McAfee’s injuries. Pet. App. 4a, 61a, 69a,

78a, 86a. Each petitioner is thus entitled to judgment as a matter of law, and the Third Circuit therefore erred in reversing the District Court’s awards of

summary judgment.

The facts here underscore why the petitioners

should not be liable for injuries caused by asbestos

that the Navy added to equipment originally supplied

by the petitioners. Again, the common-law rule can

be characterized in terms of duty or proximate causation. Either way, it reflects the notion that tort defendants are not liable for injuries too attenuated

from their own conduct. Here, the Navy retained

complete control over the products used aboard its

ships. Thus, no party to this case disputes the Navy’s active involvement in the decision whether to

use asbestos; its ships used asbestos because the Navy mandated that they do so. Similarly, the Navy

retained control over whether and how to warn about

asbestos. And given the Navy’s control over warnings, its preference for dealing with asbestos’s hazards through training rather than through warnings,

JA 39–40, and its consistent rejection of asbestos

warnings, JA 76, 80, the only logical conclusion is

that it did not think warnings were justified.

All of this shows that the attenuated nature of the

causal connection between the petitioners and the

alleged injuries is particularly stark. Both John

DeVries and Kenneth McAfee claimed to have been

injured by exposure to asbestos insulation and asbestos-containing replacement parts added to the petitioners’ equipment years or even decades after its

sale. Therefore, between the petitioners’ actions and

the injury-causing event stand countless independent decisions by other actors: the decisions by third

parties to make, sell, and supply asbestos-containing

insulation and replacement parts, the Navy’s decisions to continue using asbestos, the Navy’s decision

to address the risks of asbestos through training rather than through labeling or warnings, and so on.

The Navy, for its part, made these independent deci-

sions even though it appreciated the dangerous nature of asbestos no later than 1922—and even

though, by the late 1930s, it knew the risks well

enough to have published reports recommending

that those working with asbestos take steps to avoid

inhaling it. Supra 4–6.

The petitioners had no control over these decisions, and cannot fairly be said to have caused the

injuries that allegedly resulted. To hold otherwise

would be to impose on the manufactures of naval

equipment a duty to protect the public from the conduct of third parties. Contra Restatement (Second)

of Torts § 315 (1965). And it would ignore the rule

that proximate cause requires a “direct relation between the injury asserted and the injurious conduct

alleged,” Holmes, 503 U.S. at 268.

The common law reflects the collective wisdom of

generations of jurists. There is no plausible basis for

rejecting that wisdom here.

CONCLUSION

The Court should reverse the Third Circuit, and

remand with instructions to affirm the District

Court’s entries of summary judgment for the petitioners.

July 9, 2018

Respectfully submitted,

Benjamin M. Flowers

JONES DAY

325 John H.

McConnell Blvd.,

Suite 600

Columbus, OH 43215

Shay Dvoretzky

Counsel of Record

Jeffrey R. Johnson

Vivek Suri

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

Tel: (202) 879-3939

sdvoretzky@jonesday.com

Christopher G. Conley

EVERT WEATHERSBY

HOUFF

200 Cleveland Road,

Suite 6

Bogart, GA 30622

Counsel for Petitioner CBS Corporation

Brady L. Green

WILBRAHAM, LAWLER &

BUBA

1818 Market Street,

Suite 3100

Philadelphia, PA

19103

John J. Hare

MARSHALL DENNEHEY

WARNER COLEMAN &

GOGGIN

2000 Market Street,

Suite 2300

Philadelphia, PA 19103

Counsel for Petitioner

Air & Liquid Systems

Corp. (successor by

merger to Buffalo

Pumps, Inc.)

Counsel for Petitioner

Ingersoll-Rand Company

Additional Counsel on Next Page

Christopher J. Keale

Afigo I. OkpewhoFadahunsi

TANENBAUM KEALE LLP

1085 Raymond Blvd.

One Newark Center

16th Floor

Newark, NJ 07102

Counsel for Petitioner

Foster Wheeler LLC

Continued from Previous Page

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.