Amicus Curiae 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 16, 2018
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No. 17-1104
In the Supreme Court of the United States
_______________
AIR AND LIQUID SYSTEMS CORP., ET AL.,
Petitioners,
v.
ROBERTA G. DEVRIES, ADMINISTRATRIX OF THE ESTATE OF
JOHN B. DEVRIES, DECEASED, ET AL.,
Respondents.
_______________
On Writ of Certiorari to the United States Court of
Appeals for the Third Circuit
_______________
AMICI CURIAE BRIEF OF COALITION FOR
LITIGATION JUSTICE, INC., AMERICAN INSURANCE ASSOCIATION, AMERICAN TORT REFORM
ASSOCIATION, AND NFIB SMALL BUSINESS
LEGAL CENTER IN SUPPORT OF PETITIONERS
_______________
Mark A. Behrens
Counsel of Record
SHOOK, HARDY & BACON L.L.P.
1155 F Street, NW, Suite 200
Washington, DC 20004
(202) 783-8400
mbehrens@shb.com
July 16, 2018
(Additional Counsel Listed on Inside Cover)
Additional Counsel for Amici Curiae
Christopher E. Appel
SHOOK, HARDY & BACON L.L.P.
1155 F Street, NW, Suite 200
Washington, DC 20004
(202) 783-8400
Of Counsel
Kenneth Stoller
AMERICAN INSURANCE ASSOCIATION
555 12th Street, NW, Suite 550
Washington, DC 20004
(202) 828-7100
Karen R. Harned
Elizabeth Milito
NFIB SMALL BUSINESS LEGAL CENTER
1201 F Street, NW, Suite 200
Washington, DC 20004
(202) 314-2061
H. Sherman Joyce
Lauren S. Jarrell
AMERICAN TORT REFORM ASSOCIATION
1101 Connecticut Avenue, NW, Suite 400
Washington, DC 20036
i
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?
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ....................................
i
TABLE OF CONTENTS ........................................
ii
TABLE OF AUTHORITIES ..................................
iii
INTEREST OF AMICI CURIAE ...........................
1
INTRODUCTION AND
SUMMARY OF THE ARGUMENT .................
3
ARGUMENT ..........................................................
7
I.
II.
TRADITIONAL TORT LAW
PRINCIPLES DO NOT SUPPORT
IMPOSITION OF LIABILITY FOR
HARMS CAUSED BY THIRD-PARTIES...
7
A DUTY TO WARN OF RISKS IN
OTHERS’ PRODUCTS IS UNSOUND
POLICY .......................................................
16
A. A DUTY RULE WOULD LEAD TO A FLOOD
OF NEW ASBESTOS CASES, UNDULY
PRESSURE REMAINING DEFENDANTS,
AND FUEL THE SEARCH FOR “SOLVENT
BYSTANDERS”............................................
16
B. NON-ASBESTOS MARITIME TORT CASES
WILL INCREASE .........................................
19
C. THE DUTY WOULD BE ENDLESS AND
UNPREDICTABLE .......................................
20
D. OVER-WARNING COULD UNDERMINE
CONSUMER SAFETY ...................................
21
E. A DUTY WOULD NOT PREVENT FUTURE
HARM ........................................................
21
iii
III. ASBESTOS TRUSTS PROVIDE AN
ALTERNATIVE COMPENSATION
SYSTEM FOR HARMS CAUSED BY
BANKRUPT FORMER ASBESTOS
PRODUCERS ..............................................
23
CONCLUSION .......................................................
27
iv
TABLE OF AUTHORITIES
Cases
Page
Acoba v. Gen. Tire, Inc., 986 P.2d 288
(Haw. 1999) .......................................................... 14
Amchem Prods. Inc. v. Windsor, 521 U.S. 591
(1997) ..................................................................... 4
Bartel v. John Crane, Inc., 316 F. Supp. 2d 603
(N.D. Ohio 2004), aff’d sub nom. Lindstrom v.
A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir.
2005) ....................................................................... 3
Baughman v. General Motors Corp., 780 F.2d 1131
(4th Cir. 1986) ................................................ 13, 14
Boyd v. Warren Pumps, LLC, 654 F. App’x 875
(9th Cir. 2016) ........................................................ 9
Braaten v. Saberhagen Holdings, 198 P.3d 493
(Wash. 2008) ............................................. 10, 11-12
Brown v. Drake-Willock Int’l, Ltd.,
530 N.W.2d 510 (Mich. App. 1995) ..................... 12
Cabasug v. Crane Co., 989 F. Supp. 2d 1027
(D. Haw. 2013) ....................................................... 9
Childress v. Gresen Mfg. Co., 888 F.2d 45
(6th Cir. 1989) ...................................................... 13
Cousineau v. Ford Motor Co., 363 N.W.2d 721
(Mich. Ct. App. 1985) ........................................... 14
Crews v. Air & Liquid Sys. Corp., 2014 WL
639685 (N.D.N.Y. Feb. 18, 2014)........................... 9
Dalton v. 3M Co., 2013 WL 4886658 (D. Del. Sept.
12, 2013), report and recommendation adopted,
2013 WL 5486813 (D. Del. Oct. 1, 2013) ........ 10-11
v
Dreyer v. Exel Indus., S.A., 326 F. App’x 353
(6th Cir. 2009) ...................................................... 13
Firestone Steel Prods. Co. v. Barajas,
927 S.W.2d 608 (Tex. 1996) ................................. 14
Fleck v. KDI Sylvan Pools, 981 F.2d 107
(3d Cir. 1992) ....................................................... 14
Ford Motor Co. v. Wood, 703 A.2d 1315
(Md. Ct. Spec. App. 1998), abrogated on
other grounds, John Crane, Inc. v.
Scribner, 800 A.2d 727 (Md. 2002) ...................... 15
Grant v. Foster Wheeler, LLC, 140 A.3d 1242
(Me. 2016) ............................................................ 10
Harris v. Ajax Boiler, Inc., 2014 WL 3101941
(W.D.N.C. July 7, 2014) ....................................... 13
Horne v. Owens-Corning Fiberglas Corp.,
4 F.3d 276 (4th Cir. 1993) ................................... 22
Huck v. Wyeth, Inc., 850 N.W.2d 353 (Iowa 2014) ... 11
In re Deep Vein Thrombosis, 356 F. Supp. 2d 1055
(N.D. Cal. 2005) ................................................... 12
In re Garlock Sealing Technologies, LLC,
504 B.R. 71 (W.D.N.C. Bankr. 2014) ............ 18, 26
In re Joint E. & S. Dists. Asbestos Litig.,
237 F. Supp. 2d 297 (E. & S.D.N.Y. 2002) .......... 22
Lindstrom v. A-C Prod. Liab. Trust,
424 F.3d 488 (6th Cir. 2005) ................................. 8
Lytell v. Goodyear Tire & Rubber Co.,
439 So. 2d 542 (La. Ct. App. 1983) ...................... 14
vi
Matter of New York City Asbestos Litig.
(Dummitt v. Crane Co.) and Matter of
Eighth Jud. Dist. Asbestos Litig. (Suttner
v. Crane Co.), 59 N.E.3d 458 (N.Y. 2016) ........... 15
May v. Air & Liquid Sys. Corp., 129 A.3d 984
(Md. 2015) ............................................................ 15
McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170
(9th Cir. 2016) ........................................................ 9
McNair v. Johnson & Johnson, 2018 WL 2186550
(W. Va. May 11, 2018) ........................................... 8
Mitchell v. Sky Climber, Inc., 487 N.E.2d 1374
(Mass. 1986) ......................................................... 12
Morgan v. Bill Vann Co., Inc., 969 F. Supp. 2d 1358
(S.D. Ala. 2013) .................................................... 10
Moss v. Trane U.S., Inc., 2016 WL 916435
(W.D. Wis. Mar. 10, 2016) ................................... 10
Nelson v. Air & Liquid Sys. Corp., 2014 WL
6982476 (W.D. Wash. Dec. 9, 2014) ...................... 9
Oneal v. Alfa Laval, Inc., 2014 WL 5341878
(S.D. Fla. Oct. 19, 2014) ........................................ 9
O’Neil v. Crane Co., 266 P.3d 987
(Cal. 2012) .................................................. 9, 11, 21
Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ....... 4
Rastelli v. Goodyear Tire & Rubber Co.,
591 N.E.2d 222 (N.Y. 1992) ................................. 15
Reynolds v. Bridgestone/Firestone, Inc.,
989 F.2d 465 (11th Cir. 1993).............................. 14
Robinson v. Flowserve, 2015 WL 11622965
(D. Wyo. Oct. 9, 2015) .......................................... 10
vii
Rockman v. Union Carbide Corp., 266 F. Supp. 3d
839 (D. Md. 2017), appeal dismissed sub nom.
Rockman v. Georgia-Pacific, LLC, 2017 WL
7135451 (4th Cir. Oct. 23, 2017) ........................... 3
Sanders v. Ingram Equip., Inc., 531 So. 2d 879
(Ala. 1988) ............................................................ 13
Shaw v. Gen. Motors Corp., 727 P.2d 387
(Colo. App. 1986) ............................................. 12-13
Simonetta v. Viad Corp., 197 P.3d 127
(Wash. 2008) .................................................. 10, 12
Spencer v. Ford Motor Co., 367 N.W.2d 393
(Mich. Ct. App. 1985) ........................................... 14
Stallings v. Georgia-Pacific Corp., 2015 WL
7258518 (W.D. Ky. Nov. 17, 2015) ........................ 9
Stark v. Armstrong World Indus., Inc.,
21 F. App’x 371 (6th Cir. 2001) ............................. 9
Straley v. United States, 887 F. Supp. 728
(D. N.J. 1995) ....................................................... 21
Taylor v. Elliott Turbomachinery Co., Inc.,
90 Cal. Rptr. 3d 414 (Ct. App. 2009) ............. 20, 22
Thing v. La Chusa, 48 Cal. 3d 644 (1989) .................. 7
Toole v. Georgia-Pacific, LLC, 2011 WL 7938847
(Ga. Ct. App. 2011) .............................................. 10
Toth v. Econ. Forms Corp., 571 A.2d 420
(Pa. Super. Ct. 1990) ........................................... 13
Vedros v. Northrop Grumman Shipbuilding, Inc.,
2014 WL 1093678 (E.D. La. Mar. 14, 2014) ......... 9
Walton v. Harnischfeger, 796 S.W.2d 225
(Tex. App. 1990) ................................................... 13
viii
Westchem Agric. Chems. v. Ford Motor Co.,
990 F.2d 426 (8th Cir. 1993) ............................... 12
Whiting v. CBS Corp., 982 N.E.2d 1224 (Table)
(Mass. Ct. App. 2013) .......................................... 10
Wiler v. Firestone Tire & Rubber Co.,
95 Cal. App. 3d 621 (1979) .................................. 14
Zambrana v. Standard Oil Co. of Cal.,
26 Cal. App. 3d 209 (1972) .................................. 14
Statutes and Regulations
11 U.S.C. § 524(g)...................................................... 23
29 C.F.R. § 1910.1001 ............................................... 22
Other Authorities
63A Am. Jur. 2d Products Liability § 1027 ................ 8
American Academy of Actuaries’ Mass Torts Subcommittee, Overview of Asbestos Claims Issues
and Trends (Aug. 2007), available at https://
www.actuary.org/pdf/casualty/asbestos_
aug07.pdf................................................................ 5
Mark A. Behrens & Margaret Horn, Liability for
Asbestos-Containing Connected or Replacement Parts Made by Third Parties: Courts Are
Properly Rejecting this Form of Guilt by Association, 37 Am. J. Trial Advoc. 489 (2014) .......... 11
Jenni Biggs et al., A Synthesis of Asbestos Disclosures from Form 10-Ks — Updated (Towers
Watson June 2013), available at https://
www.towerswatson.com/en-US/Insights/
Newsletters/Americas/americas-insights/2013/
A-Synthesis-of-Asbestos-Disclosures-FromForm-10-Ks-Updated ................................. 5, 18, 19
ix
Lester Brickman, Fraud and Abuse in Mesothelioma
Litigation, 88 Tul. L. Rev. 1071 (2014) ............... 26
S. Todd Brown, Bankruptcy Trusts, Transparency
and the Future of Asbestos Compensation,
23 Widener L.J. 299 (2013) ...................... 17-18, 25
S. Todd Brown, Specious Claims and Global
Settlements, 42 U. Mem. L. Rev. 559 (2012) ....... 15
Steven J. Carroll et al., Asbestos Litigation (RAND
Corp. 2005), available at https://www.rand.org/
content/dam/rand/pubs/monographs/2005/
RAND_MG162.pdf .............................................. 3-4
George Scott Christian & Dale Craymer, Texas
Asbestos Litigation Reform: A Model for the
States, 44 S. Tex. L. Rev. 981 (2003) ................... 21
Company Name and Year of Bankruptcy Filing
(Chronologically), available at
https://www.crowell.com/files/List-ofAsbestos-Bankruptcy-Cases-ChronologicalOrder.pdf .............................................................. 18
Deposition of Jared Garelick, in Cummings v.
General Elec., No. 13-CI-006374 (Jefferson
Ky. Cir. Ct. Dec. 14, 2015) ................................... 26
Lloyd Dixon & Geoffrey McGovern, Asbestos Bankruptcy Trusts and Tort Compensation (Rand
Corp. 2011), available at https://www.rand.org/
content/dam/rand/pubs/monographs/
2011/RAND_MG1104.pdf .................................... 23
x
Lloyd Dixon & Geoffrey McGovern, Bankruptcy’s
Effect on Product Identification in Asbestos
Personal Injury Cases (RAND Corp. 2015)
available at https://www.rand.org/content/
dam/rand/pubs/research_reports/RR900/
RR907/RAND_RR907.pdf .................................... 27
Lloyd Dixon et al., Asbestos Bankruptcy Trusts:
An Overview of Trust Structure and Activity
with Detailed Reports on the Largest Trusts
(Rand Corp. 2010), available at https://www.
rand.org/content/dam/rand/pubs/
technical_reports/2010/RAND_TR872.pdf .......... 23
Christopher Edley, Jr. & Paul C. Weiler,
Asbestos: A Multi-Billion-Dollar Crisis,
30 Harv. J. on Legis. 383 (1993) ......................... 19
Peter Geier, Asbestos Litigation Moves On With
World War II Shipyard Cases ‘Dying Off’,
Plaintiff Attorneys Dig Deeper to Find New
Strategies, 130:5 Recorder (San Francisco)
(Jan. 9, 2006).......................................................... 6
Patrick M. Hanlon & Anne Smetak, Asbestos
Changes, 62 N.Y.U. Ann. Surv. Am. L. 525
(2007) ...................................................................... 4
John J. Hare & Daniel J. Ryan, Uncloaking
Bankruptcy Trust Filings in Asbestos Litigation: Refuting the Myths About Transparency,
15-9 Mealey’s Asb. Bankr. Rep. 1 (2015) ............ 24
James A. Henderson, Jr., Sellers of Safe Products
Should Not Be Required to Rescue Users from
Risks Presented by Other, More Dangerous
Products, 37 Sw. U. L. Rev. 595 (2008) .............. 7-8
xi
Michael Hoenig, Commentary, No Liability for
Another’s Asbestos Products, N.Y.L.J., Feb. 17,
2012 ...................................................................... 16
Joseph W. Hovermill et al., Targeting of
Manufacturers, 47 No. 10 DRI For Def. 52
(Oct. 2005) ....................................................... 19-20
James S. Kakalik et al., Costs of Asbestos Litigation
(RAND Corp. 1983), available at https://
www.rand.org/pubs/reports/R3042.html .............. 3
Adrienne Bramlett Kvello, The Best of Times
and the Worst of Times: How Borg-Warner
and Bankruptcy Trusts Are Changing Asbestos Settlements in Texas, 40 The Advoc. (Tex.)
80 (2007) ............................................................... 24
Manville Personal Injury Settlement Trust 2002
TDP Proof of Claim Form, http://
www.claimsres.com/wp-content/uploads/2016/
11/POC02V4.pdf .................................................. 25
‘Medical Monitoring and Asbestos Litigation’–A
Discussion with Richard Scruggs and Victor
Schwartz, 17-3 Mealey’s Litig. Rep.: Asb. 19
(Mar. 1, 2002) ......................................................... 5
Mark D. Plevin et al., Where Are They Now,
Part Six: An Update on Developments in
Asbestos-Related Bankruptcy Cases, 11-7
Mealey’s Asb. Bankr. Rep. 1 (Feb. 2012) .............. 4
Paul Riehle et al., Product Liability for Third
Party Replacement or Connected Parts:
Changing Tides From the West, 44 U.S.F.
L. Rev 33 (2009) ..................................................... 6
xii
Eduardo C. Robreno, The Federal Asbestos
Product Liability Multidistrict Litigation
(MDL-875): Black Hole or New Paradigm?,
23 Widener L.J. 97 (2013) ................................... 16
Marc C. Scarcella & Peter R. Kelso, A Reorganized
Mess: The Current State of the Asbestos Bankruptcy Trust System, 14-7 Mealey’s Asb. Bankr.
Rep. 32 (2015) ...................................................... 24
Marc C. Scarcella et al., The Philadelphia Story:
Asbestos Litigation, Bankruptcy Trusts and
Changes in Exposure Allegations From 19912010, 27-3 Mealey’s Litig. Rep.: Asb. 1
(Nov. 7, 2012) ......................................................... 4
Victor E. Schwartz, A Letter to the Nation’s Trial
Judges: Asbestos Litigation, Major Progress
Made Over the Past Decade and Hurdles You
Can Vault in the Next, 36 Am. J. of Trial Advoc.
1 (2012) ................................................................... 6
Victor E. Schwartz & Russell W. Driver,
Warnings in the Workplace: The Need for a
Synthesis of Law and Communication
Theory, 52 U. Cin. L. Rev. 38 (1983) ................... 21
Dionne Searcy & Rob Barry, As Asbestos Claims
Rise, So Do Worries About Fraud, Wall St. J.,
Mar. 11, 2013, at A1, available at https://
www.wsj.com/articles/SB100014241278873238
64304578318611662911912 ................................ 25
William P. Shelley et al., The Need for Further
Transparency Between the Tort System and
Section 524(g) Asbestos Trusts, 2014 Update –
Judicial and Legislative Developments and
Other Changes in the Landscape Since 2008,
23 Widener L.J. 675 (2014) ................................. 23
xiii
James Stengel, The Asbestos End-Game,
62 N.Y.U. Ann. Surv. Am. L. 223 (2006) ........ 3, 19
Mary Elizabeth Stern & Lucy P. Allen, Resolution
Values Dropped 35% While Filings and Indemnity Payments Continued at Historical Levels
(NERA Econ. Consulting June 2016), available
at http://www.nera.com/content/dam/nera/
publications/2017/PUB_Asbestos_
Litigation_Trends_0217.pdf ................................ 18
Joseph E. Stiglitz et al., The Impact of Asbestos
Liabilities on Workers in Bankrupt Firms,
12 J. Bankr. L. & Prac. 51 (2003) ....................... 19
U.S. Gov’t Accountability Office, GAO-11-819,
Asbestos Injury Compensation: The Role and
Administration of Asbestos Trusts (Sept. 2011),
available at https://www.gao.gov/assets/590/
585380.pdf .......................................... 23, 25, 26, 27
Thomas M. Wilson, Institutionalized Fraud in
Asbestos Bankruptcy Trusts, 29-7 Mealey’s
Litig. Rep.: Asb. 1 (2014) ..................................... 24
INTEREST OF AMICI CURIAE1
The Coalition for Litigation Justice, Inc., American Insurance Association, American Tort Reform
Association, and NFIB Small Business Legal Center
are organizations whose members include companies
that manufactured or sold various products used in
conjunction with asbestos-containing products and
insurers of those companies.
Amici are concerned that if the Court holds product manufacturers liable for harms caused by other
manufacturers’ asbestos-containing products, the decision will unduly pressure the remaining solvent defendants in the asbestos litigation, including small
businesses. The four decades old asbestos litigation
has already bankrupted over 120 companies and
shows no sign of abating. A duty finding would also
open the door to lawsuits against countless companies whose products are used with other potentially
hazardous products sold by third parties. Finally,
other courts may be guided by the Court’s decision
when deciding similar cases under state common
law.
The Coalition for Litigation Justice, Inc. is a nonprofit association formed by insurers in 2000 to address and improve the asbestos litigation environ-
1 No counsel for a party authored this brief in whole or in part;
and no party, party’s counsel, or other person or entity—other
than the amici or their counsel—contributed money that was
intended to fund preparing or submitting the brief. The parties
have consented to the filing of the brief.
2
ment.2 The Coalition has filed over 100 amicus curiae briefs in cases that may have a significant impact
on the asbestos litigation environment.
The American Insurance Association (“AIA”),
founded in 1866 as the National Board of Fire Underwriters, is a leading national trade association
representing approximately 340 major property and
casualty insurance companies. AIA members collectively underwrite more than $134 billion in direct
property and casualty premiums nationwide, and
range in size from small companies to the largest insurers with global operations. AIA files amicus curiae briefs in significant cases on issues of importance
to the insurance industry and marketplace.
Founded in 1986, the American Tort Reform Association (“ATRA”) is a broad-based coalition of businesses, corporations, municipalities, associations,
and professional firms that have pooled their resources to promote reform of the civil justice system
with the goal of ensuring fairness, balance, and predictability in civil litigation. For over three decades,
ATRA has filed amicus curiae briefs in cases before
state and federal courts that have addressed important liability issues.
The NFIB Small Business Legal Center, a nonprofit, public interest law firm established to protect
the rights of America’s small-business owners, is the
legal arm of the National Federation of Independent
The Coalition includes Century Indemnity Company; San
Francisco Reinsurance Company; Great American Insurance
Company; Nationwide Indemnity Company; Resolute Management Inc., a third-party administrator for numerous insurers;
and TIG Insurance Company.
2
3
Business (“NFIB”). NFIB is the nation’s oldest and
largest organization dedicated to representing the
interests of small-business owners throughout all fifty states. The approximately 350,000 members of
NFIB own a wide variety of America’s independent
businesses.
INTRODUCTION AND
SUMMARY OF THE ARGUMENT
Originally and for many years, the primary defendants in asbestos cases were companies that
mined asbestos or manufactured friable, amphibolecontaining thermal insulation. See James S. Kakalik
et al., Costs of Asbestos Litigation 3 (RAND Corp.
1983).3 Hundreds of thousands of claims were filed
against the major asbestos producers, such as JohnsManville Corp, Owens Corning Corp., and W.R.
Grace & Co.4
3 See Bartel v. John Crane, Inc., 316 F. Supp. 2d 603, 605 (N.D.
Ohio 2004) (“While there is debate in the medical community
over whether chrysotile asbestos is carcinogenic, it is generally
accepted that it takes a far greater exposure to chrysotile fibers
than to amphibole fibers to cause mesothelioma.”), aff’d sub
nom. Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488 (6th Cir.
2005); Rockman v. Union Carbide Corp., 266 F. Supp. 3d 839,
846 (D. Md. 2017) (“chrysotile asbestos is classified in an entirely separate mineralogical family from amphibole asbestos and
is widely considered less potent.”), appeal dismissed sub nom.
Rockman v. Georgia-Pacific, LLC, 2017 WL 7135451 (4th Cir.
Oct. 23, 2017).
4 See James Stengel, The Asbestos End-Game, 62 N.Y.U. Ann.
Surv. Am. L. 223, 237 (2006) (“As leading plaintiffs’ counsel Ron
Motley and Joe Rice observed some time ago, the first seventeen asbestos defendants to go into bankruptcy represented
‘one-half to three-quarters of the original liability share.’”). According to RAND, “[a]pproximately 730,000 people had filed an
asbestos claim through 2002.” Steven J. Carroll et al., Asbestos
4
By the late 1990s, the asbestos litigation had
reached such proportions that this Court noted the
“elephantine mass” of cases, Ortiz v. Fibreboard
Corp., 527 U.S. 815, 821 (1999), and referred to the
litigation as a “crisis.” Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 597 (1997). Mass filings pressured
“most of the lead defendants and scores of other companies” into bankruptcy, including virtually all manufacturers of asbestos-containing thermal insulation.
Steven J. Carroll et al., Asbestos Litigation 67 (RAND
Corp. 2005).
Following a 2000-2002 wave of bankruptcies
among asbestos manufacturers,5 “plaintiffs’ attorneys
shifted their litigation strategy away from the traditional thermal insulation defendants and towards
peripheral and new defendants….” Marc C. Scarcella et al., The Philadelphia Story: Asbestos Litigation,
Bankruptcy Trusts and Changes in Exposure Allegations From 1991-2010, 27-3 Mealey’s Litig. Rep.: Asb.
1, 1 (Nov. 7, 2012); Carroll et al., supra, at xxiii
(plaintiffs began to “press peripheral non-bankrupt
defendants to shoulder a larger share of the value of
asbestos claims and to widen their search for other
corporations that might be held liable for the costs of
asbestos exposure and disease.”).6 The litigation beLitigation xxiv (RAND Corp. 2005). Tens of thousands of additional claims have been filed since 2002.
5 See Mark D. Plevin et al., Where Are They Now, Part Six: An
Update on Developments in Asbestos-Related Bankruptcy Cases,
11-7 Mealey’s Asb. Bankr. Rep. 1, Chart 1 (Feb. 2012) (there
were as many asbestos-related bankruptcies from 2000-2002 as
in the previous two decades combined).
6 See also Patrick M. Hanlon & Anne Smetak, Asbestos Chang-
es, 62 N.Y.U. Ann. Surv. Am. L. 525, 556 (2007) (the “surge of
5
came an “endless search for a solvent bystander,” according to one plaintiff’s attorney. ‘Medical Monitoring and Asbestos Litigation’–A Discussion with Richard Scruggs and Victor Schwartz, 17-3 Mealey’s
Litig. Rep.: Asb. 19 (Mar. 1, 2002) (quoting Mr.
Scruggs).
The Towers Watson consulting firm has identified
“more than 10,000 companies, including subsidiaries,
named in asbestos litigation.” Jenni Biggs et al., A
Synthesis of Asbestos Disclosures from Form 10-Ks —
Updated 1 (Towers Watson June 2013). Companies
formerly viewed as peripheral defendants are “now
bearing the majority of the costs of awards relating
to decades of asbestos use.” American Academy of
Actuaries’ Mass Torts Subcommittee, Overview of
Asbestos Claims Issues and Trends 3 (Aug. 2007).
In an attempt to further stretch the liability of
still-solvent companies, some plaintiffs’ counsel (as
in this case) are promoting the theory that makers of
uninsulated products in “bare metal” form should
have warned about potential harms from exposure to
asbestos-containing external thermal insulation
manufactured and sold by third-parties and attached
post-sale, such as by the Navy. Plaintiffs’ lawyers
are also claiming that manufacturers of products
such as pumps and valves that originally came with
asbestos-containing gaskets or packing should have
warned about potential harms from exposure to replacement internal gaskets or packing or replace-
bankruptcies” triggered “a search for new recruits to fill the gap
in the ranks of defendants”).
6
ment external flange gaskets manufactured and sold
by third parties.7
Plaintiffs’ lawyers are promoting this novel theory because the major asbestos producers have exited
the tort system through bankruptcy and the Navy is
immune. See Paul Riehle et al., Product Liability for
Third Party Replacement or Connected Parts: Changing Tides From the West, 44 U.S.F. L. Rev 33, 38
(2009) (“Not content with the remedies available
through bankruptcy trusts and state and federal
worker compensation programs, claimants’ lawyers
have extended the reach of products liability law to
‘ever-more peripheral defendants’” whose products
may have been used by others with asbestoscontaining products) (citation omitted); Victor E.
Schwartz, A Letter to the Nation’s Trial Judges: Asbestos Litigation, Major Progress Made Over the Past
Decade and Hurdles You Can Vault in the Next, 36
Am. J. of Trial Advoc. 1, 24-25 (2012) (“As a substitute [for bankrupt former defendants], plaintiffs seek
to impose liability on solvent manufacturers for
harms caused by products they never made or sold.”).
Traditional tort principles do not support the duty
Respondents seek here, as demonstrated by many
non-asbestos cases. The proposed duty also represents unsound policy.
Further, an alternative compensation system exists to compensate Respondents for harms caused by
the bankrupt former asbestos producers. To the exSee Peter Geier, Asbestos Litigation Moves On With World
War II Shipyard Cases ‘Dying Off’, Plaintiff Attorneys Dig Deeper to Find New Strategies, 130:5 Recorder (San Francisco) 12
(Jan. 9, 2006).
7
7
tent Respondents’ exposures to asbestos came from
bankrupt companies’ products, trusts established in
bankruptcy provide a remedy. Maritime law’s special solicitude for the safety and protection of sailors
should not mean that Respondents have a tort remedy against companies for asbestos-containing products they did not make or sell.
Respondents and the Third Circuit justify their
theory based on foreseeability. But courts must
draw a line limiting tort liability in order to avoid the
unending slippery slope that a foreseeability standard would inevitably create. See Thing v. La Chusa,
48 Cal. 3d 644, 659 (1989) (foreseeability, “is endless
because foreseeability, like light, travels indefinitely
in a vacuum.”). To maintain consistency and certainty in the law, that line is logically drawn to bar liability where a plaintiff is harmed by a product that
was neither made nor sold by the defendant.
Amici urge the Court to reverse the Third Circuit’s decision and affirm the District Court’s grant
of summary judgment in favor of Petitioners.
ARGUMENT
I. TRADITIONAL TORT LAW PRINCIPLES
DO NOT SUPPORT IMPOSITION OF
LIABILITY FOR HARMS CAUSED BY
THIRD-PARTIES
Ordinarily, manufacturers are named in asbestos
cases with respect to asbestos they made or sold—not
to hold them liable for products made by others. It is
black-letter product liability law that manufacturers
are not liable for harms caused by others’ products in
cases such as this one. See James A. Henderson, Jr.,
Sellers of Safe Products Should Not Be Required to
8
Rescue Users from Risks Presented by Other, More
Dangerous Products, 37 Sw. U. L. Rev. 595, 602
(2008).8
A manufacturer’s ability to foresee that its product may be used in conjunction with a third-party’s
product does not turn the manufacturer into an insurer for harms caused by the other’s product. Otherwise, a manufacturer would “be required to perform a watchdog function in order to rescue product
users from risks it had no active part in creating and
over which it cannot exert meaningful control.” Id.
at 601.
In a maritime asbestos personal injury case like
this one, the Sixth Circuit Court of Appeals held that
a manufacturer “cannot be held responsible for the
asbestos contained in another product.” Lindstrom
v. A-C Product Liability Trust, 424 F.3d 488, 496
(6th Cir. 2005). The court explained, “[t]his form of
guilt by association has no support in the law of
See also 63A Am. Jur. 2d Products Liability § 1027 (“The
manufacturer’s duty to warn is restricted to warnings based on
the characteristics of the manufacturer’s own products. The
law generally does not require a manufacturer to study and analyze the products of others and warn users of the risks of those
products. Consequently, even where the manufacturer erroneously omits warnings, the most the manufacturer could reasonably be expected to foresee is that consumers might be subject
to the risks of the manufacturer’s own product, since those are
the only risks the manufacturer is required to know. The manufacturer is not required to warn of dangers posed by use of another manufacturer’s product in the same vicinity as its product
was used.”); McNair v. Johnson & Johnson, 2018 WL 2186550,
at *5 (W. Va. May 11, 2018) (“[r]equiring the defendant in a
products liability case to be either the manufacturer or the seller of the product is the majority rule in this country”).
8
9
products liability.” Stark v. Armstrong World Indus.,
Inc., 21 F. App’x 371, 381 (6th Cir. 2001). The Ninth
Circuit in Boyd v. Warren Pumps, LLC, 654 F. App’x
875, 877 (9th Cir. 2016), has held that pump manufacturers “may be held liable only for [a sea captain’s] exposure to asbestos-containing products that
were either manufactured or supplied by them.” In
McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170,
1174 (9th Cir. 2016), a maritime general negligence
case against shipbuilders, the Ninth Circuit held
that a sailor had to demonstrate exposure to asbestos
from materials installed by the defendants to have a
claim against them.9
In another case, the California Supreme Court
explained, “we have never held that a manufacturer’s duty to warn extends to hazards arising exclusively from other manufacturers’ products.” O’Neil v.
Crane Co., 266 P.3d 987, 997 (Cal. 2012). The court
concluded, “expansion of the duty of care as urged
would impose an obligation to compensate on those
whose products caused the plaintiffs no harm. To do
so would exceed the boundaries established over decades of product liability law.” Id. at 1007.
The Washington Supreme Court has said there is
“little to no support . . . for extending the duty to
9 See also Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1041 (D.
Haw. 2013); Stallings v. Georgia-Pacific Corp., 2015 WL
7258518, at *4 (W.D. Ky. Nov. 17, 2015); Nelson v. Air & Liquid
Sys. Corp., 2014 WL 6982476, at *13 (W.D. Wash. Dec. 9, 2014);
Oneal v. Alfa Laval, Inc., 2014 WL 5341878, at *5 (S.D. Fla.
Oct. 19, 2014); Vedros v. Northrop Grumman Shipbuilding,
Inc., 2014 WL 1093678, at *3 (E.D. La. Mar. 14, 2014); Crews v.
Air & Liquid Sys. Corp., 2014 WL 639685, at *5 (N.D.N.Y. Feb.
18, 2014).
10
warn to another manufacturer’s product.” Simonetta
v. Viad Corp., 197 P.3d 127, 132-33 (Wash. 2008).
The court held that a manufacturer is not liable for
failure to warn of the danger of exposure to asbestos
in insulation applied to its products if it did not
manufacture the insulation. In Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008), the court
rejected failure to warn claims against pump and
valve manufacturers for harm caused by asbestoscontaining replacement packing and replacement
gaskets made by third-parties.10
The “prevailing majority rule” is that a manufacturer “cannot be liable for a third party’s asbestos
materials used with its products, where the . . .
manufacturer was not in the chain of distribution of
such asbestos-containing materials.” Morgan v. Bill
Vann Co., Inc., 969 F. Supp. 2d 1358, 1366 (S.D. Ala.
2013); Dalton v. 3M Co., 2013 WL 4886658, at *10
10 See also Grant v. Foster Wheeler, LLC, 140 A.3d 1242, 1248
(Me. 2016) (summary judgment affirmed where plaintiff did not
demonstrate exposure to asbestos-containing products originating with defendants); Whiting v. CBS Corp., 982 N.E.2d 1224
(Table) (Mass. Ct. App. 2013) (affirming summary judgment to
manufacturers of turbines, pumps, valves, and pipes covered
with insulation made by a third party); Toole v. Georgia-Pacific,
LLC, 2011 WL 7938847, at *7 (Ga. Ct. App. 2011) (“[A]n asbestos victim must present evidence that he was exposed to a defendant’s products.”); Moss v. Trane U.S., Inc., 2016 WL
916435, at *1 (W.D. Wis. Mar. 10, 2016) (defendant not liable
for injuries “caused by products [its predecessor] did not manufacture, distribute or specify be used”); Robinson v. Flowserve,
2015 WL 11622965, at *11 (D. Wyo. Oct. 9, 2015) (“the Wyoming Supreme Court would adopt the bare metal defense and
hold that manufacturers are not strictly liable for aftermarket
replacement parts that the manufacturer did not manufacture
or supply”).
11
(D. Del. Sept. 12, 2013) (“The majority of courts . . .
refuse to impose liability upon manufacturers for the
dangers associated with asbestos-containing products manufactured and distributed by other entities.”), report and recommendation adopted, 2013 WL
5486813 (D. Del. Oct. 1, 2013).11
Courts that have broadened the traditional duty
to warn in some situations (as the Third Circuit did
below) justify their radical expansion of liability
based on foreseeability. The approach is geared to
make someone pay, even if that someone was not the
source of the exposure that caused the harm. See
Huck v. Wyeth, Inc., 850 N.W.2d 353, 380 (Iowa
2014) (“Deep-pocket jurisprudence is law without
principle.”).
Foreseeability considerations guide manufacturers as to when they must take safety measures with
respect to their own products, not to hold them responsible for others’ products. As the California Supreme Court explained, “manufacturers, distributors,
and retailers have a duty to ensure the safety of their
products . . . we have never held that these responsibilities extend to preventing injuries caused by other
products that might foreseeably be used in conjunction with a defendant’s product.” O’Neil, 266 P.3d at
991 (emphasis in original). The Washington Supreme Court said in Braaten, “whether the manufacturers knew replacement parts would or might contain asbestos makes no difference because such
11 See also Mark A. Behrens & Margaret Horn, Liability for As-
bestos-Containing Connected or Replacement Parts Made by
Third Parties: Courts Are Properly Rejecting this Form of Guilt
by Association, 37 Am. J. Trial Advoc. 489 (2014).
12
knowledge does not matter, as we held in Simonetta.” 198 P.3d at 500 (citing Simonetta, 197 P.3d
at 136).
Courts in non-asbestos cases have refused to impose liability on manufacturers of products used in
conjunction with harm-causing products made by
others. For example, in Brown v. Drake-Willock International, Ltd., 530 N.W.2d 510 (Mich. App. 1995),
a Michigan appellate court held that dialysis machine manufacturers owed no duty to warn hospital
employees of the risk of exposure to formaldehyde
supplied by another company even though the dialysis machine manufacturers had recommended the
use of formaldehyde to clean their machines. The
court held: “The law does not impose upon manufacturers a duty to warn of the hazards of using products manufactured by someone else.” Id. at 515.
Courts have reached similar conclusions in other
types of cases. For example, a pickup truck manufacturer had no duty to warn consumers against improper installation of aftermarket equipment, see
Westchem Agric. Chems. v. Ford Motor Co., 990 F.2d
426, 432 (8th Cir. 1993); an airplane manufacturer
was not liable for passengers’ circulatory problems
caused by seats made by a third-party and installed
post-sale, see In re Deep Vein Thrombosis, 356 F.
Supp. 2d 1055, 1068 (N.D. Cal. 2005); a manufacturer of electrically powered lift motors used in conjunction with scaffolding equipment had no duty to warn
of risks created by scaffolding made by others, see
Mitchell v. Sky Climber, Inc., 487 N.E.2d 1374, 1376
(Mass. 1986); a truck cab and chassis manufacturer
was not liable when a dump bed and hoist made by a
third-party post-sale caused an injury, see Shaw v.
13
Gen. Motors Corp., 727 P.2d 387, 390 (Colo. App.
1986); a crane manufacturer had no duty to warn
about rigging it did not place in the stream of commerce, see Walton v. Harnischfeger, 796 S.W.2d 225,
226 (Tex. App. 1990); a hydraulic valve manufacturer
was not liable for a defective log splitter used in conjunction with its product, see Childress v. Gresen
Mfg. Co., 888 F.2d 45, 46, 49 (6th Cir. 1989); a manufacturer of a paint sprayer was not liable when a solvent sold by a third-party to clean the sprayer
burned a user, see Dreyer v. Exel Indus., S.A., 326
F. App’x 353, 358 (6th Cir. 2009); a metal forming
equipment manufacturer was not liable for a defective wood planking used in conjunction with its
product, see Toth v. Econ. Forms Corp., 571 A.2d 420,
423 (Pa. Super. Ct. 1990); and a manufacturer of a
garbage packer mounted on a truck chassis was not
liable for a defect in a chassis made by a third-party,
see Sanders v. Ingram Equip., Inc., 531 So. 2d 879,
880 (Ala. 1988).
Courts in non-asbestos cases also have refused to
impose liability on manufacturers for harms caused
by replacement parts sold by third-parties. For example, in Baughman v. General Motors Corp., 780
F.2d 1131 (4th Cir. 1986), the Fourth Circuit, applying South Carolina law, refused to hold a truck manufacturer liable for a tire mechanic’s injuries when a
tire mounted on a replacement wheel rim assembly
exploded.12 The plaintiff contended that even though
the vehicle’s manufacturer did not place the reSee Harris v. Ajax Boiler, Inc., 2014 WL 3101941, at *5
(W.D.N.C. July 7, 2014) (finding Baughman to be “persuasive”
on the lack of a duty to warn about asbestos-containing products from third-parties).
12
14
placement wheel into the stream of commerce, the
vehicle was nevertheless defective because the manufacturer failed to adequately warn of dangers with
similar wheels sold by others. The court said, “[t]he
duty to warn must properly fall upon the manufacturer of the replacement component part.” Id. at
1333. The court explained:
Where, as here, the defendant manufacturer
did not incorporate the defective component
part into its finished product and did not place
the defective component into the stream of
commerce, the rationale for imposing liability
is no longer present. The manufacturer has
not had the opportunity to test, evaluate, and
inspect the component; it has derived no benefit from its sale; and it has not represented to
the public that the component part is its own.
Id. at 1132-33 (emphasis added).13
In Fleck v. KDI Sylvan Pools, 981 F.2d 107, 118
(3d Cir. 1992), the Third Circuit, applying Pennsylvania law, held that it would be “unreasonable” to
impose liability on a swimming pool manufacturer
for injuries sustained by a diver as a result of a lack
of depth markers and warnings on a replacement
pool liner made by another manufacturer.
13 See also Firestone Steel Prods. Co. v. Barajas, 927 S.W.2d 608
(Tex. 1996); Acoba v. Gen. Tire, Inc., 986 P.2d 288 (Haw. 1999);
Zambrana v. Standard Oil Co. of Cal., 26 Cal. App. 3d 209
(1972); Wiler v. Firestone Tire & Rubber Co., 95 Cal. App. 3d
621 (1979); Lytell v. Goodyear Tire & Rubber Co., 439 So. 2d
542 (La. Ct. App. 1983); Spencer v. Ford Motor Co., 367 N.W.2d
393 (Mich. Ct. App. 1985); Cousineau v. Ford Motor Co., 363
N.W.2d 721 (Mich. Ct. App. 1985); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465 (11th Cir. 1993).
15
The weak foundation for the Third Circuit’s duty
theory is further exposed by the fact that some courts
adopting the duty in asbestos cases appear not to
embrace it in non-asbestos cases.14 The rulings are
just the latest example of courts improperly applying
special results-oriented rules to asbestos cases instead of treating such actions like other product liability cases.15
The Court should reject Respondents’ invitation
to twist maritime tort law. As one commentator explained:
Asbestos litigation, over the decades, has
taken products liability substantive law, case
handling procedures, trial practice and
evidence well beyond then-existing frontiers.
Responsive to creative, persuasive and
resourceful claimants’ counsel, sensitive to the
plight of numerous seriously injured plaintiffs,
fearful of clogged court dockets and institutional paralysis, many courts rushed headlong
14 Compare Matter of New York City Asbestos Litig. (Dummitt v.
Crane Co.) and Matter of Eighth Jud. Dist. Asbestos Litig.
(Suttner v. Crane Co.), 59 N.E.3d 458 (N.Y. 2016), with Rastelli
v. Goodyear Tire & Rubber Co., 591 N.E.2d 222 (N.Y. 1992);
May v. Air & Liquid Sys. Corp., 129 A.3d 984 (Md. 2015), with
Ford Motor Co. v. Wood, 703 A.2d 1315 (Md. Ct. Spec. App.
1998), abrogated on other grounds, John Crane, Inc. v. Scribner,
800 A.2d 727 (Md. 2002).
15 See S. Todd Brown, Specious Claims and Global Settlements,
42 U. Mem. L. Rev. 559, 566 (2012) (because of relaxed evidentiary requirements applied by some courts earlier in the asbestos litigation, “many claims that would not be compensable in
typical personal injury cases – e.g., those lacking sufficient evidence to establish specific causation – could now go before a
jury and be compensable.”).
16
to create systems that would force settlements
and penalize those defendants who chose trial
by saddling them with onerous conditions.
Many bankruptcies later, however, the new
waves of asbestos litigation now reach out
farther to more remote defendants, and often
stretch proofs of exposure and causation in
seeking to cast the broader liability net. The
recent decisions [rejecting a duty to warn with
respect to third-parties’ asbestos-containing
products] reflect that bedrock evidentiary and
products liability principles and the policies
that underlie them ought not be compromised
even though the claim is labeled as one involving “asbestos.”
Michael Hoenig, Commentary, No Liability for Another’s Asbestos Products, N.Y.L.J., Feb. 17, 2012.
II. A DUTY TO WARN OF RISKS IN OTHERS’
PRODUCTS IS UNSOUND POLICY
A. A DUTY RULE WOULD LEAD TO A FLOOD OF
NEW ASBESTOS CASES, UNDULY PRESSURE
REMAINING DEFENDANTS, AND FUEL THE
SEARCH FOR “SOLVENT BYSTANDERS”
A flood of new cases could be expected if the Court
affirms the Third Circuit’s decision. Because the use
of asbestos-containing products was so prevalent on
ships for fireproofing (an important consideration at
sea), many asbestos actions fall under maritime
law.16 Hundreds of companies made products that
16 See Eduardo C. Robreno, The Federal Asbestos Product Lia-
bility Multidistrict Litigation (MDL-875): Black Hole or New
Paradigm?, 23 Widener L.J. 97 (2013) (“During World War II,
the United States government used asbestos in Navy shipyards
17
arguably were used in the vicinity of asbestoscontaining insulation or other asbestos-containing
products. Many product manufacturers may have
never sold a product containing an asbestoscontaining component (e.g., manufacturers of steel
pipe and pipe hangers; makers of nuts, bolts, washers, wire, and other fasteners of pipe systems; makers of any equipment attached to and using the pipe
system; and paint manufacturers), but they could potentially be held liable under the Third Circuit’s decision.17 Manufacturers and sellers of tools used
with asbestos-containing materials, such as power
saws, sanders, drills, hammers, or chisels, also could
face liability.
Defendants would also face undue pressure because they would be required to shoulder the cost of
harms caused by others’ asbestos products in addition to those caused by their own products. Some
companies could be forced into bankruptcy, like
scores of other asbestos defendants that faced extreme liability.18 So far, over 120 companies have
when constructing and repairing ships for the war effort. The
Navy became the country’s largest consumer of asbestos, stockpiling and using it to prevent fires on the newly constructed
combat vessels. During that period, the Navy employed approximately 4.5 million shipyard workers who potentially could
have been exposed to asbestos fibers.”).
17 The Third Circuit identified factors for courts to consider in
deciding whether liability can arise, such as whether the defendant’s product was originally equipped with an asbestoscontaining part that would eventually require replacement,
such as a gasket, but made clear that these may not be the only
facts on which liability can arise.
18 See S. Todd Brown, Bankruptcy Trusts, Transparency and the
Future of Asbestos Compensation, 23 Widener L.J. 299, 306
18
declared bankruptcy due at least in part to asbestosrelated liabilities.19
In addition, additional defendants would be
pulled into the litigation as plaintiffs’ attorneys expand their dragnet search for “solvent bystanders.”
See In re Garlock Sealing Technologies, LLC, 504
B.R. 71 (W.D.N.C. Bankr. 2014) (describing how a
gasket and packing manufacturer became a target of
asbestos cases following the bankruptcy wave until
the company was forced into bankruptcy partly because of manipulation of plaintiff exposure evidence).
It is also important to note that the asbestos litigation shows no sign of abating. A 2016 review of
asbestos-related liabilities reported to the U.S. Securities and Exchange Commission by more than 150
publicly traded companies found that “[f]ilings remained flat at the levels observed since 2007….”
Mary Elizabeth Stern & Lucy P. Allen, Resolution
Values Dropped 35% While Filings and Indemnity
Payments Continued at Historical Levels 1 (NERA
Econ. Consulting June 2016). Another study found
that mesothelioma claim filings have “remained near
peak levels since 2000.” Jenni Biggs et al., A Synthesis of Asbestos Disclosures from Form 10-Ks — Updated 1 (Towers Watson June 2013). “Typical projections based on epidemiology studies assume that
mesothelioma claims arising from occupational expo(2013) (“Defendants who were once viewed as tertiary have increasingly become lead defendants in the tort system, and
many of these defendants have also entered bankruptcy in recent years.”).
19 See Company Name and Year of Bankruptcy Filing (Chrono-
logically), available at https://www.crowell.com/files/List-ofAsbestos-Bankruptcy-Cases-Chronological-Order.pdf.
19
sure to asbestos will continue for the next 35 to 50
years.” Id. at 5.
Bankruptcies have terrible consequences for
claimants, affected companies, workers, retirees, and
communities.20 Plaintiff recoveries are substantially
delayed while companies are in bankruptcy.21
B. NON-ASBESTOS MARITIME
TORT CASES WILL INCREASE
The duty created by the Third Circuit would also
lead to new non-asbestos maritime tort filings since
presumably the duty would extend to any product
foreseeably used in conjunction with any hazard on a
ship. For example, manufacturers of paint brushes
may have to caution against the hazards of breathing
mineral spirits that are commonly used to clean
paint brushes. See Joseph W. Hovermill et al., Targeting of Manufacturers, 47 No. 10 DRI For Def. 52,
20 See also Joseph E. Stiglitz et al., The Impact of Asbestos Lia-
bilities on Workers in Bankrupt Firms, 12 J. Bankr. L. & Prac.
51, 70-88 (2003) (exploring the effect of asbestos-related liabilities and bankruptcies on employment, retirement security, government finances, and other economic factors); Christopher
Edley, Jr. & Paul C. Weiler, Asbestos: A Multi-Billion-Dollar
Crisis, 30 Harv. J. on Legis. 383, 386 (1993) (bankruptcy puts
substantial burdens on the “shareholders, employees, pensioners, and communities of asbestos defendants”).
21 See James Stengel, The Asbestos End-Game, 62 N.Y.U. Ann.
Surv. Am. L. 223, 260-61 (2006) (“RAND looked at eleven major
asbestos bankruptcies and found that the average duration between filing and plan confirmation (which is the earliest date
payments could start) was six years. One case took ten years.
During these periods the trusts pay no money to claimants.
Furthermore, in the typical case plan confirmation itself can
precede any payment by months, if not years, due to various
startup delays.”).
20
54 (Oct. 2005). Perhaps the only limit on such an
expansive duty requirement would be the imagination of creative plaintiffs’ lawyers.
C. THE DUTY WOULD BE
ENDLESS AND UNPREDICTABLE
If a manufacturer’s duty were defined by foreseeable uses of other products, the chain of warnings
and liability would be endless and unpredictable.
Manufacturers cannot be expected to have research
facilities to identify potential dangers with respect to
all products that may be used in conjunction with or
in the vicinity of their own products. See Taylor v.
Elliott Turbomachinery Co., Inc., 90 Cal. Rptr. 3d
414, 422-23 (Ct. App. 2009) (“a bright-line legal distinction tied to the injury-producing product in the
stream of commerce . . . acknowledges that overextending the level of responsibility could potentially
lead to commercial as well as legal nightmares in
product distribution”) (emphasis in original). Companies “might well face the dilemma of trying to insure against ‘unknowable risks and hazards.’” Id. at
439 (citation omitted).
The unpredictability that would be created by the
imposition of liability would make it harder for businesses to grow and create jobs. Commentators have
observed with respect to asbestos litigation:
The uncertainty of how remaining claims may
be resolved, how many more may ultimately
be filed, what companies may be targeted, and
at what cost, casts a pall over the finances of . .
. American businesses. The cost of this unbridled litigation diverts capital from productive
purposes, cutting investment and jobs. Uncer-
21
tainty about how future claims may impact
their finances has made it more difficult for affected companies to raise capital and attract
new investment, driving stock prices down and
borrowing costs up.
George Scott Christian & Dale Craymer, Texas Asbestos Litigation Reform: A Model for the States, 44
S. Tex. L. Rev. 981, 998 (2003).
D. OVER-WARNING COULD
UNDERMINE CONSUMER SAFETY
Consumer safety could be undermined by the potential for over-warning and through conflicting information that may be provided by manufacturers of
different components and makers of finished products. See Victor E. Schwartz & Russell W. Driver,
Warnings in the Workplace: The Need for a Synthesis
of Law and Communication Theory, 52 U. Cin. L.
Rev. 38, 43 (1983) (“The extension of workplace
warnings liability unguided by practical considerations has the unreasonable potential to impose absolute liability. . . .”). As the California Supreme Court
said in O’Neil, “To warn of all potential dangers
would warn of nothing.” 266 P.3d at 1006 (citation
omitted); see also Straley v. United States, 887 F.
Supp. 728, 747 (D. N.J. 1995) (“Courts have held that
it is unreasonable to impose a duty upon a manufacturer to warn of all possible dangers posed by all
possible uses of a product because such ‘billboard’
warnings would deprive the user of an effective
warning.”).
E. A DUTY WOULD NOT PREVENT FUTURE HARM
Imposing liability on a defendant for others’ postsale use of asbestos-insulation or replacement parts
22
made by third-parties would not serve the policy of
preventing future harm. As a California Court of
Appeal explained:
It is doubtful respondents had any ability to
control the types of products that were used
with their equipment so long after it was sold.
They delivered various parts to the Navy during World War II and had no control over the
materials the Navy used with their products
twenty years later when [plaintiff] was exposed to asbestos. Indeed, imposing a duty to
warn on respondents now will do nothing to
prevent the type of injury before us – latent
asbestos-related disease resulting from exposure four decades ago. Such exposures have
already taken place, and in light of the heavily
regulated nature of asbestos today, it is most
unlikely that holding respondents liable for
failing to warn of the danger posed by other
manufacturers’ products will do anything to
prevent future asbestos-related injuries.
Taylor, 90 Cal. Rptr. 3d at 439.22
22 In 1972, the federal Occupational Safety and Health Admin-
istration (“OSHA”) first issued permanent standards regulating
occupational exposure to asbestos. See 29 C.F.R. § 1910.1001.
“The 1972 OSHA regulations established standards for exposure to asbestos dust and mandated methods of compliance
with the exposure requirements, including monitoring work
sites, compelling medical examinations, and, for the first time,
labeling products with warnings.” Horne v. Owens-Corning Fiberglas Corp., 4 F.3d 276, 280 (4th Cir. 1993). After 1972,
OSHA’s asbestos regulations “became increasingly stringent
over time” and most uses of asbestos ceased in the United
States. In re Joint E. & S. Dists. Asbestos Litig., 237 F. Supp.
2d 297, 310 (E. & S.D.N.Y. 2002).
23
III. ASBESTOS TRUSTS PROVIDE AN
ALTERNATIVE COMPENSATION
SYSTEM FOR HARMS CAUSED BY
BANKRUPT FORMER ASBESTOS
PRODUCERS
Maritime law’s solicitude for the safety and protection of sailors does not justify “robbing Peter to
pay Paul,” which is the consequence of the Third Circuit’s ruling. Billions of dollars are available in
trusts to pay asbestos claimants for harms caused by
debtor companies that exited the tort system through
bankruptcy.23 See U.S. Gov’t Accountability Office,
GAO-11-819, Asbestos Injury Compensation: The
Role and Administration of Asbestos Trusts 3 (Sept.
2011) ($36.8 billion in asbestos trusts as of 2011);
Lloyd Dixon & Geoffrey McGovern, Asbestos Bankruptcy Trusts and Tort Compensation 2 (RAND Corp.
2011). To the extent Respondents’ exposures to asbestos came from products made by bankrupt companies, the trusts provide a remedy. See William P.
Shelley et al., The Need for Further Transparency Between the Tort System and Section 524(g) Asbestos
Trusts, 2014 Update – Judicial and Legislative Developments and Other Changes in the Landscape
Since 2008, 23 Widener L.J. 675, 675 (2014) (trusts
established in asbestos-related bankruptcy reorganizations “answer for the tort liabilities of the great
23 Section 524(g) of the Bankruptcy Code provides a mechanism
for companies with asbestos-related liabilities to reorganize,
channel their asbestos liabilities into trusts, and emerge from
bankruptcy with immunity from asbestos-related tort claims.
See 11 U.S.C. § 524(g); Lloyd Dixon et al., Asbestos Bankruptcy
Trusts: An Overview of Trust Structure and Activity with Detailed Reports on the Largest Trusts (RAND Corp. 2010).
24
majority of the historically most-culpable large manufacturers that exited the tort system through bankruptcy over the past several decades”).
The asbestos trust system is non-adversarial; it is
much easier and faster than bringing a lawsuit. See
John J. Hare & Daniel J. Ryan, Uncloaking Bankruptcy Trust Filings in Asbestos Litigation: Refuting
the Myths About Transparency, 15-9 Mealey’s Asb.
Bankr. Rep. 1, 3 (2015) (“Plaintiffs’ lawyers routinely
advertise their ability to file trust claims ‘quickly and
easily,’ and tell potential clients that paralegals
evaluate potential trust claims and undertake the
filing process. The evidence also demonstrates that
trust claims are paid more quickly than tort
claims.”); Marc C. Scarcella & Peter R. Kelso, A Reorganized Mess: The Current State of the Asbestos
Bankruptcy Trust System, 14-7 Mealey’s Asb. Bankr.
Rep. 32, 39 (2015) (“Unlike lawsuits filed in the tort
system, the trust compensation process is intended
to avoid the time, expense, and resource burden often
associated with litigation.”).
Further, because trust payment procedures are
voted on “by the claimants through their attorneys,
and the trusts often do not contest liability, it is
much easier to collect against a bankruptcy trust
than a solvent defendant.” Adrienne Bramlett Kvello, The Best of Times and the Worst of Times: How
Borg-Warner and Bankruptcy Trusts Are Changing
Asbestos Settlements in Texas, 40 The Advoc. (Tex.)
80, 80 (2007); see also Thomas M. Wilson, Institutionalized Fraud in Asbestos Bankruptcy Trusts, 29-7
Mealey’s Litig. Rep.: Asb. 1, 6 (2014) (“the trusts, designed by the same individuals who are now submitting claims, contain ‘loopholes’ allowing for ease of
25
payment, often without the need for any real proof.
By using the loopholes which have been integrated
into the system itself, asbestos claimants can legitimately obtain compensation which they are otherwise precluded from obtaining in the tort system.”).
To recover from an asbestos trust, a claimant files
a short claim form which, among other things, “requires a statement of injury; information sufficient to
establish asbestos exposure attributable to the
trust’s predecessor . . . and a determination as to
whether the claimant is seeking expedited or individual review.” S. Todd Brown, Bankruptcy Trusts,
Transparency and the Future of Asbestos Compensation, 23 Widener L.J. 299, 317-18 (2013).24 The
claimant will also submit evidence of exposure, such
as a “work history, Social Security records, invoices,
employer records, or deposition testimony of the
claimant or coworkers taken in asbestos litigation,”
and “medical reports or records sufficient to support
a diagnosis for the specific disease being claimed or,
if applicable, a copy of a death certificate.” U.S.
Gov’t Accountability Office, supra, at 18; see also Dionne Searcy & Rob Barry, As Asbestos Claims Rise,
So Do Worries About Fraud, Wall St. J., Mar. 11,
2013, at A1 (“Unlike court, where plaintiffs can be
cross-examined and evidence scrutinized by a judge,
trusts generally require victims or their attorneys to
supply basic medical records, work histories and sign
forms declaring their truthfulness. The payout is far
24 For a representative trust claim form, see Manville Personal
Injury Settlement Trust 2002 TDP Proof of Claim Form,
http://www.claimsres.com/wp-content/uploads/2016/11/
POC02V4.pdf.
26
quicker than a court proceeding and the process is
less expensive for attorneys.”).
If a trust determines that a claim meets the criteria required for payment, the trust will make an offer
based on a percentage of the “scheduled value” for
the alleged injury, as set forth on a grid. A recent
deposition of the general counsel of the Manville
Trust established that there is no backlog and that
an offer can be made within days after submission.
See Deposition of Jared Garelick, in Cummings v.
General Elec., No. 13-CI-006374 (Jefferson Ky. Cir.
Ct. Dec. 14, 2015), at 34-36. After the offer is accepted, payments tend to be made quickly.25
It is common for claimants to receive multiple
trust payments since each trust operates independently and workers were often exposed to different asbestos products. See Lester Brickman, Fraud
and Abuse in Mesothelioma Litigation, 88 Tul. L.
Rev. 1071, 1078-79 (2014).
Trust payments in the aggregate can be substantial. In a recent bankruptcy case involving gasket
and packing manufacturer Garlock Sealing Technologies, LLC, a typical mesothelioma plaintiff’s recovery was estimated to be $1–1.5 million, “including an
average of $560,000 in tort recoveries and about
$600,000 from 22 trusts.” In re Garlock Sealing
Technologies, LLC, 504 B.R. at 96.
25 The U.S. GAO estimates that approximately 97-98% of trust
claims are processed on this expedited basis. See U.S. Gov’t
Accountability Office, supra, at 20. Only a tiny percentage of
claimants seek individual review in the hopes of obtaining more
compensation from the trusts. See id. at 554; Deposition of Jared Garelick, supra, at 37-38.
27
The Third Circuit’s ruling would mean that in
addition to the substantial recoveries available to
maritime asbestos plaintiffs today—i.e., (1) payments
from potentially multiple trusts for trust-related exposures and (2) tort actions against still-solvent defendants for exposures if connected to their own
products26—plaintiffs would also have a tort remedy
against additional defendants for asbestoscontaining products they did not make or sell. This
is unnecessary to meet maritime law’s solicitude for
the safety and protection of sailors.
CONCLUSION
For these reasons, amici urge the Court to reverse
the Third Circuit’s decision and affirm the District
Court’s grant of summary judgment in favor of Petitioners.
Respectfully submitted,
Mark A. Behrens
Counsel of Record
26 See Lloyd Dixon & Geoffrey McGovern, Bankruptcy’s Effect on
Product Identification in Asbestos Personal Injury Cases iii
(RAND Corp. 2015) (“Plaintiffs now often receive compensation
both from the trusts and through a tort case.”); see also U.S.
Gov’t Accountability Office, supra, at 15 (“Although 60 companies subject to asbestos-related liabilities have filed for bankruptcy under Chapter 11 and established asbestos bankruptcy
trusts in accordance with § 524(g), asbestos claimants can also
seek compensation from potentially liable solvent companies
(that is, a company that has not declared bankruptcy) through
the tort system.”).
28
Christopher E. Appel
SHOOK, HARDY & BACON L.L.P.
1155 F Street, NW, Suite 200
Washington, DC 20004
(202) 783-8400
Of Counsel
Kenneth Stoller
AMERICAN INSURANCE ASSOCIATION
555 12th Street, NW, Suite 550
Washington, DC 20004
(202) 828-7100
Karen R. Harned
Elizabeth Milito
NFIB SMALL BUSINESS LEGAL CENTER
1201 F Street, NW, Suite 200
Washington, DC 20004
(202) 314-2061
H. Sherman Joyce
Lauren S. Jarrell
AMERICAN TORT REFORM ASSOCIATION
1101 Connecticut Avenue, NW, Suite 400
Washington, DC 20036
Dated: July 16, 2018
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.