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.,

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 OF THE PRODUCT LIABILITY

ADVISORY COUNCIL, INC., AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------JAMES M. BECK

Counsel of Record

REED SMITH LLP

1717 Arch St., Suite 3100

Philadelphia, PA 19103

(215) 851-8168

jmbeck@reedsmith.com

July 16, 2018

Counsel for Amicus Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ........................

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

ARGUMENT ...........................................................

I. Liability Here Would Violate The Foundational Requirement Of Product-Liability Law

That The Cost Of Product-Related Injuries

Should Be Borne By Those Who Profit From

The Sale Of Injurious Products ...................

II. Product Manufacturers Have No Duty To

Warn About Risks Of Products They Do Not

Make ............................................................. 21

III.

The Common Law Disfavors Creation Of Tort

Duties That Are Impossible To Satisfy ....... 29

CONCLUSION .......................................................

TABLE OF AUTHORITIES

Page

CASES

Ackley v. Wyeth Laboratories, 919 F.2d 397 (6th

Cir. 1990) .................................................................28

Acoba v. Gen. Tire, Inc., 986 P.2d 288 (Haw. 1999) ....... 25

Adamson v. Ortho-McNeil Pharm., Inc., 463

F. Supp.2d 496 (D.N.J. 2006) ...................................28

Allison v. Merck & Co., 878 P.2d 948 (Nev. 1994) ........8

Am. Exp. Lines, Inc. v. Alvez, 446 U.S. 274 (1980) ........... 4

Aubin v. Union Carbide Corp., 177 So.3d 489

(Fla. 2015)..................................................................9

Austin v. Raybestos-Manhattan, Inc., 471 A.2d

280 (Me. 1984) .........................................................10

Baker v. Poolservice Co., 636 S.E.2d 360 (Va. 2006) .......19

Barnes v. Kerr Corp., 418 F.3d 583 (6th Cir. 2005) ....... 21

Bateman v. Johns-Manville Sales Corp., 781

F.2d 1132 (5th Cir. 1986) .........................................17

Batoh v. McNeil-PPC, Inc., 167 F. Supp.3d 296 (D.

Conn. 2016)..............................................................28

Baughman v. Gen. Motors Corp., 780 F.2d 1131

(4th Cir. 1986)..........................................................25

Bell v. Pfizer, Inc., 716 F.3d 1087 (8th Cir. 2013) .......23

Black v. Abex Corp., 603 N.W.2d 182 (N.D. 1999) ......17

Blackston v. Shook & Fletcher Insul. Co., 764

F.2d 1480 (11th Cir. 1985) .......................................17

iii

TABLE OF AUTHORITIES – Continued

Page

Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332

(Tex. 2014) ...............................................................16

Boyle v. United Techs. Corp., 487 U.S. 500 (1988) ....... 31

Braaten v. Saberhagen Holdings, 198 P.3d 493

(Wash. 2008) ............................................................15

Brandenburger v. Toyota Motor Sales, U.S.A.,

Inc., 513 P.2d 268 (Mont. 1973)...............................11

Brown v. Drake-Willock Int’l, Ltd., 530 N.W.2d

510 (Mich. App. 1995)..............................................26

Brown v. Superior Court, 751 P.2d 470 (Cal.

1988) ..........................................................................8

Bylsma v. R.C. Willey, 416 P.3d 595 (Utah 2017).......12

Camacho v. Honda Motor Co., 741 P.2d 1240

(Colo. 1987) ................................................................7

Case v. Fibreboard Corp., 743 P.2d 1062 (Okla.

1987) ........................................................................16

Celotex Corp. v. Copeland, 471 So.2d 533 (Fla.

1985) ........................................................................17

Certainteed Corp. v. Fletcher, 794 S.E.2d 641

(Ga. 2016) ................................................................33

Clift v. Vose Hardware, Inc., 848 A.2d 1130 (R.I.

2004) ........................................................................12

Daly v. Gen. Motors Corp., 575 P.2d 1162 (Cal.

1978) ..........................................................................8

Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390

(Tex. 1967) ...............................................................35

TABLE OF AUTHORITIES – Continued

Page

Dent v. Dennis Pharmacy, Inc., 924 So.2d 927

(Fla. App. 2006) .......................................................34

Doe v. Ortho-Clinical Diagnostics, Inc., 335

F. Supp.2d 614 (M.D.N.C. 2004)..............................28

E. River S.S. Corp. v. Transamerica Delaval, Inc.,

476 U.S. 858 (1986) ............................................... 4, 7

Eckhardt v. Qualitest Pharmaceuticals, Inc., 751

F.3d 674 (5th Cir. 2014) ...........................................23

Escola v. Coca Cola Bottling Co., 150 P.2d 436

(Cal. 1944) .................................................................6

Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830

(1996) .........................................................................5

Firestone Steel Prod. Co. v. Barajas, 927 S.W.2d

608 (Tex. 1996) ........................................................24

First Nat’l Bank of Mobile v. Cessna Aircraft Co.,

365 So.2d 966 (Ala. 1978) .........................................7

Fisher v. Sibley Mem’l Hosp., 403 A.2d 1130

(D.C. 1979) .................................................................8

Flynn v. American Home Products Corp., 627

N.W.2d 342 (Minn. App. 2001) ................................23

Foster v. American Home Products Corp., 29 F.3d

165 (4th Cir. 1994) ...................................................23

Franzman v. Wyeth, Inc., 451 S.W.3d 676 (Mo.

App. 2014) ................................................................23

Fricke v. Owens-Corning Fiberglas Corp., 618

So.2d 473 (La. App. 1993) .......................................27

TABLE OF AUTHORITIES – Continued

Page

Fullington v. PLIVA, Inc., 720 F.3d 739 (8th Cir.

2013) ........................................................................23

Ga. Pac., LLC v. Farrar, 69 A.3d 1028 (Md. 2013) ...... 33

Gaulding v. Celotex Corp., 772 S.W.2d 66 (Tex.

1989) ........................................................................16

Gillenwater v. Honeywell Int’l, Inc., 996 N.E.2d

1179 (Ill. App. 2013) ................................................15

Goldman v. Johns-Manville Sales Corp., 514

N.E.2d 691 (Ohio 1987) ...........................................17

Greenman v. Yuba Power Prods., Inc., 377 P.2d

897 (Cal. 1963) ..........................................................6

Guarino v. Wyeth, 719 F.3d 1245 (11th Cir. 2013) ........ 23

Haase v. Badger Mining Corp., 682 N.W.2d 389

(Wis. 2004) ...............................................................13

Haglund v. Philip Morris, Inc., 847 N.E.2d 315

(Mass. 2006) ..............................................................8

Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d

1055 (N.Y. 2001) ......................................................20

Haugen v. Ford Motor Co., 219 N.W.2d 462 (N.D.

1974) ..........................................................................8

Heath v. Sears, Roebuck & Co., 464 A.2d 288

(N.H. 1983) ..............................................................11

Huck v. Wyeth, Inc., 850 N.W.2d 353 (Iowa 2014) .... 18, 22

Hughes v. A.W. Chesterton Co., 89 A.3d 179 (N.J.

Super. App. Div. 2014) .............................................15

TABLE OF AUTHORITIES – Continued

Page

In re Certified Question, 740 N.W.2d 206 (Mich.

2007) ........................................................................33

In re Darvocet, Darvon, & Propoxyphene Prods.

Liab. Litig., 756 F.3d 917 (6th Cir. 2014) .......... 22, 23

In re New York City Asbestos Litig., 59 N.E.3d

458 (N.Y. 2016) ........................................................20

Jackson v. Anchor Packing Co., 994 F.2d 1295

(8th Cir. 1993)..........................................................17

Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018) ........ 36

Johnson v. American Cyanamid Co., 718 P.2d

1318 (Kan. 1986) .....................................................28

Johnson v. Jones-Blair Paint Co., 607 S.W.2d 305

(Tex. App. 1980) .......................................................26

Johnson v. Teva Pharmaceuticals USA, Inc., 758

F.3d 605 (5th Cir. 2014) ...........................................23

Jones v. Johnson Mach. & Press Co., 320 N.W.2d

481 (Neb. 1982) .......................................................11

Kapps v. Biosense Webster, Inc., 813 F. Supp.2d

1128 (D. Minn. 2011) ...............................................28

Langley v. Harris Corp., 321 N.W.2d 662 (Mich.

1982) ........................................................................10

Lashley v. Pfizer, Inc., 750 F.3d 470 (5th Cir.

2014) ........................................................................23

Lee v. Crookston Coca-Cola Bottling Co., 188

N.W.2d 426 (Minn. 1971) ........................................10

Leng v. Celotex Corp., 554 N.E.2d 468 (Ill. App.

1990) ........................................................................17

vii

TABLE OF AUTHORITIES – Continued

Page

Leong v. Sears Roebuck & Co., 970 P.2d 972

(Haw. 1998) ..............................................................18

Lewis v. Lewis & Clark Marine, Inc., 531 U.S.

438 (2001). .................................................................4

Lindstrom v. A-C Product Liability Trust, 424

F.3d 488 (6th Cir. 2005) ...........................................14

Livingston v. Begay, 652 P.2d 734 (N.M. 1982) ..........11

Macias v. Saberhagen Holdings, Inc., 282 P.3d

1069 (Wash. 2012) ...................................................12

Maggio v. Zeitz, 333 U.S. 56 (1948) ............................32

Marshall v. Celotex Corp., 651 F. Supp. 389 (E.D.

Mich. 1987) ..............................................................17

Martin v. Ryder Truck Rental, Inc., 353 A.2d 581

(Del. 1976) .................................................................9

May v. Air & Liquid Sys. Corp., 129 A.3d 984

(Md. 2015) ................................................................10

McConkey v. McGhan Med. Corp., 144

F. Supp.2d 958 (E.D. Tenn. 2000) ...........................27

McKernan v. Gen. Motors Corp., 3 P.3d 1261

(Kan. 2000) ................................................................9

McNair v. Johnson & Johnson, ___ S.E.2d ___,

2018 WL 2186550 (W. Va. May 11, 2018) ......... 18, 23

Menne v. Celotex Corp., 861 F.2d 1453 (10th Cir.

1988) ........................................................................17

Metro-North Commuter Railroad Co. v. Buckley,

521 U.S. 424 (1997) .................................................29

viii

TABLE OF AUTHORITIES – Continued

Page

Mettinger v. Globe Slicing Mach. Co., 709 A.2d

779 (N.J. 1998) .........................................................11

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

(Mass. 1986) ............................................................25

Moretti v. Wyeth, Inc., 579 F. App’x 563 (9th Cir.

2014) ........................................................................23

Mulcahy v. Eli Lilly & Co., 386 N.W.2d 67 (Iowa

1986) ........................................................................18

Mullen v. Armstrong World Indus., Inc., 246

Cal.Rptr. 32 (App. 1988) ..........................................17

Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135 (2003)........29

Nutt v. A.C. & S. Co., 517 A.2d 690 (Del. Super.

1986) ........................................................................17

O’Neil v. Crane Co., 266 P.3d 987 (Cal. 2012) ...... 14, 15

Oddo v. Queens Vill. Comm. for Mental Health,

71 N.E.3d 946 (N.Y. 2017) .......................................35

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) .... 29, 36

Owens v. Garfield, 784 P.2d 1187 (Utah 1989) ..........35

Pace v. Air & Liquid Sys. Corp., 171 F. Supp.3d

254 (S.D.N.Y. 2016) .................................................17

Palsgraf v. Long Island R.R. Co., 162 N.E. 99

(N.Y. 1928) ...............................................................32

Phillips v. Kimwood Mach. Co., 525 P.2d 1033

(Or. 1974) .................................................................12

Phipps v. Gen. Motors Corp., 363 A.2d 955 (Md.

1976) ........................................................................10

TABLE OF AUTHORITIES – Continued

Page

PLIVA, Inc. v. Dement, 780 S.E.2d 735 (Ga. App.

2015) ........................................................................23

Pluto v. Searle Laboratories, 690 N.E.2d 619 (Ill.

App. 1997).......................................................... 27, 28

Powell v. Standard Brands Paint Co., 212 Cal.Rptr.

395 (App. 1985) .......................................................24

Quiroz v. ALCOA Inc., 416 P.3d 824 (Ariz. 2018) ......32

Rafferty v. Merck & Co., 92 N.E.3d 1205 (Mass.

2018) ........................................................................23

Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., ___

A.3d ___, 2018 WL 3134525 (Del. June 27,

2018 .........................................................................33

Rastelli v. Goodyear Tire & Rubber Co., 591

N.E.2d 222 (N.Y. 1992) ................................ 20, 25, 26

Reed v. Cent. Soya Co., 621 N.E.2d 1069 (Ind.

1993) ..........................................................................9

Reiter v. AC&S, Inc., 947 A.2d 570 (Md. App.

2008), aff ’d, 8 A.3d 725 (Md. 2010) ........................17

Rhodes v. Ill. Cent. Gulf R.R., 665 N.E.2d 1260

(Ill. 1996) .................................................................35

Robert F. Bullock, Inc. v. Thorpe, 353 S.E.2d 340

(Ga. 1987) ..................................................................9

Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d

Cir. 1990) .................................................................17

Russo Farms, Inc. v. Vineland Bd. of Educ., 675

A.2d 1077 (N.J. 1996) ..............................................35

TABLE OF AUTHORITIES – Continued

Page

Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276

(Nev. 2009) ...............................................................34

Sanders v. Ingram Equip., Inc., 531 So.2d 879

(Ala. 1988) ...............................................................25

Savage Arms, Inc. v. W. Auto Supply Co., 18 P.3d

49 (Alaska 2001) .......................................................8

Schall v. Sturm, Ruger Co., 300 S.E.2d 735 (S.C.

1983) ..........................................................................8

Schneider Nat’l, Inc. v. Holland Hitch Co., 843

P.2d 561 (Wyo. 1992) ...............................................13

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

2013) ........................................................................23

Senn v. Merrell-Dow Pharm., Inc., 751 P.2d 215

(Or. 1988) .................................................................19

Simonetta v. Viad Corp., 197 P.3d 127 (Wash.

2008) ........................................................................15

Skipworth v. Lead Indus. Ass’n, Inc., 690 A.2d

169 (Pa. 1997).............................................................. 19

Smith v. Eli Lilly & Co., 560 N.E.2d 324 (Ill.

1990) ........................................................................18

Smith v. Wyeth Laboratories, Inc., 1986 WL

720792 (S.D.W. Va. Aug. 21, 1986) ..........................28

Smith v. Wyeth, Inc., 657 F.3d 420 (6th Cir. 2011) ........ 23

Stanley v. Wyeth, Inc., 991 So.2d 31 (La. App.

2008 .........................................................................23

Sternhagen v. Dow Co., 935 P.2d 1139 (Mont.

1997) ........................................................................11

TABLE OF AUTHORITIES – Continued

Page

Strayhorn v. Wyeth Pharmaceuticals, 737 F.3d

378 (6th Cir. 2013) ...................................................23

Sutowski v. Eli Lilly & Co., 696 N.E.2d 187 (Ohio

1998) ........................................................................19

T.H. v. Novartis Pharm. Corp., 407 P.3d 18 (Cal.

2017) ........................................................................23

Tansy v. Dacomed Corp., 890 P.2d 881 (Okla.

1994) ........................................................................12

Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa.

2014) ..........................................................................8

Torres v. Goodyear Tire & Rubber Co., 786 P.2d

939 (Ariz. 1990) .........................................................9

Toth v. Econ. Forms Corp., 571 A.2d 420 (Pa. Super. 1990) .................................................................27

Univ. Sys. of N.H. v. U.S. Gypsum Co., 756

F. Supp. 640 (D.N.H. 1991)......................................17

Vannoy v. Uniroyal Tire Co., 726 P.2d 648 (Idaho

1985) ..........................................................................9

Wagner v. Clark Equip. Co., 700 A.2d 38 (Conn.

1997) ..........................................................................7

Walton v. Avco Corp., 610 A.2d 454 (Pa. 1992) ...........34

Walton v. Harnischfeger, 796 S.W.2d 225 (Tex.

App. 1990) ................................................................27

Webb v. Navistar Int’l Transp. Corp., 692 A.2d

343 (Vt. 1996) ............................................................8

West v. Caterpillar Tractor Co., 336 So.2d 80

(Fla. 1976)..................................................................9

xii

TABLE OF AUTHORITIES – Continued

Page

White v. Celotex Corp., 907 F.2d 104 (9th Cir.

1990) ........................................................................17

Whitehead v. Toyota Motor Corp., 897 S.W.2d

684 (Tenn. 1995) ......................................................12

Yates v. Ortho-McNeil-Janssen Pharmaceuticals,

Inc., 808 F.3d 281 (6th Cir. 2015) ............................27

Zacher v. Budd Co., 396 N.W.2d 122 (S.D. 1986) .........8

Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo.

1984) ........................................................................18

STATUTES

Ala. Code §6-5-530(a)..................................................24

Ariz. Rev. Stat. §12-681(5) ..........................................20

Ark. Code §16-116-101 ...............................................20

Colo. Rev. Stat. §13-21-401(2) .....................................20

Conn. Gen. Stat. §52-572n(a) .....................................20

Ga. Code §51-1-11(d-e) ...............................................20

Idaho Code §6-1402(1) ................................................20

Ind. Code §34-20-1-1 ........................................................ 20

Kan. Stat. §60-3302(a-c).................................................... 20

La. Stat. §9:2800.52 ......................................................20

Me. Rev. Stat. tit. 14, §221 ..........................................20

Miss. Code §11-1-63 ....................................................20

N.J. Stat. §2A:58C-2....................................................20

xiii

TABLE OF AUTHORITIES – Continued

Page

N.C. Gen. Stat. §99B-1 ................................................20

N.D. Cent. Code §28-01.3-01.......................................20

Ohio Rev. Code §2307.71(13) ......................................20

Or. Rev. Stat. §30.900 ..................................................20

S.C. Code §15-73-10 ....................................................21

Tenn. Code §29-28-105(a) ...........................................21

Tex. Civ. Prac. & Rem. Code §82.001(2) ........................ 21

Utah Code §78B-6-703(1)............................................... 21

Wash. Rev. Code §7.72.030(1) .....................................21

Wis. Stat. §895.046(3) .................................................21

RULE

Sup. Ct. R. 37.2(a) .........................................................1

OTHER AUTHORITIES

Restatement (Second) of Contracts §261 (1981)........32

Restatement (Second) of Torts §4, comment a

(1965) .......................................................................32

Restatement (Second) of Torts §402A (1965)............ 6, 21

Restatement (Second) of Torts §402A, comment c ..........7

Restatement (Second) of Torts §402A, comment i

(1965) .......................................................................31

Restatement (Second) of Torts §402A, comment k

(1965) .......................................................................31

xiv

TABLE OF AUTHORITIES – Continued

Page

Restatement (Third) of Torts, Products Liability

§5(b)(1) (1998) .........................................................24

Restatement (Third) of Torts, Products Liability

§10(2-3) (1998) .........................................................34

Richard E. Kaye, American Law of Products Liability 3d §32:9 (May 2018 Supp.) ..........................21

Richard Scruggs & Victor Schwartz, Medical

Monitoring and Asbestos Litigation – A Discussion with Richard Scruggs and Victor

Schwartz, 1-7:21 Mealey’s Asbestos Bankr.

Rep. 5 (Feb. 2002) ...................................................13

INTEREST OF AMICUS CURIAE1

The Product Liability Advisory Council, Inc. (PLAC)

is a non-profit professional association of corporate members representing a broad cross-section of American

and international product manufacturers.2 These companies seek to contribute to improvement and reform

of the law in the United States and elsewhere, particularly that governing the liability of manufacturers of

products and those in the supply chain. PLAC’s perspective is derived from the experiences of a corporate

membership that spans a diverse group of industries

throughout the manufacturing sector. In addition, several hundred leading product litigation defense attorneys are sustaining (non-voting) members of PLAC.

Since 1983, PLAC has filed more than 1,100 briefs as

amicus curiae in both state and federal courts, including this Court, presenting the broad perspective of

product manufacturers seeking fairness and balance

in the application and development of the law affecting

product risk management.

PLAC’s members have a strong interest in maintaining traditional tort elements, such as product identification and causation, that confine product liability

No party or counsel for a party authored any part of this

brief, and no person or entity other than amicus curiae, its members, or its counsel made a monetary contribution intended to

fund the preparation or submission of the brief. Pursuant to Supreme Court Rule 37.2(a), counsel for amicus curiae notified counsel of record for all parties of its intent to file this brief, and all

parties have consented to the filing of this brief.

See https://plac.com/PLAC/AboutPLACAmicus.

within reasonable limits. Fundamental to any rational

system of product liability is that defendants may

not be liable, under negligence or strict liability, for

the purported “defects” – including failure to warn – of

products they did not manufacture, market, or otherwise place into the stream of commerce. Product liability has always been justified on the ground that the

cost of product injuries should be borne by those who

profited from the products’ sale.

This amicus curiae brief is respectfully submitted

to the Court to address the public importance of these

issues apart from and beyond the immediate interests

of the parties to this case.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

In establishing what amounts to the federal common law of admiralty, this Court looks to the commonlaw experience of the fifty states that has addressed

the same, or similar, legal issues. In this case, the vast

majority of states adhere to the fundamental policy

that motivated the creation of product liability in the

first place – that manufacturers and sellers profiting

from product marketing should also assume responsibility for harm caused by the products they sell.

After nearly half a century, asbestos litigation has

bankrupted nearly all of the solvent potential defendants against which product liability could rationally

apply.3 As exemplified by this case, asbestos plaintiffs

have not been constrained by traditional legal theories

in their pursuit of additional deep pockets. They have

sued petitioners despite undisputed facts proving that

their products could not possibly have exposed respondents here to asbestos.

Instead, the legal theory this Court is being asked

to adopt is that manufacturers of one product are liable

to warn about the risks of other products made by

other, unrelated persons. The Court of Appeals held

that foreseeability alone, based on product function or

anticipated post-sale use by a sophisticated buyer, suffices to impose on the maker of a non-injurious product

an obligation to warn about the risks of other possibly

injurious ones.

For decades, state common law has wisely refused

to extend warning duties to risks of products that a defendant did not make or sell. Such a duty would distort

liability and leave manufacturers and sellers responsible for products from which they did not profit and over

which they could exercise no control.

Common-law courts also reject legal theories that

are thinly disguised excuses for imposition of absolute

liability. As a practical matter, the “duty” respondents

advocate is impossible to perform. The purported duty

would run to unknown persons encountering the product years later regardless of any defendant’s ability to

Between 1982 and 2018, 121 asbestos defendants declared

bankruptcy. See https://www.crowell.com/f iles/List-of-AsbestosBankruptcy-Cases-Chronological-Order.pdf.

transmit warnings effectively. It would run forever, to

persons claiming exposure decades after the defendant

parted with the product. It would run notwithstanding

the independent action (or inaction) of a sophisticated

third-party owner.

Nationwide, the common law overwhelmingly

rejects the sort of irrational, counterproductive, and

excessive product liability being asserted here. The

common law’s conclusion is a strong reason for this

Court to do likewise.

------------------------------------------------------------------

ARGUMENT

The question before the Court – whether productsliability cases sounding in maritime law should permit liability where defendants never made, sold, or distributed the allegedly injurious product – necessitates

examination of analogous common-law principles. Maritime jurisdiction provides for “remedies available at

common law.” Lewis v. Lewis & Clark Marine, Inc., 531

U.S. 438, 454 (2001). Thus, this Court has “translated

into maritime law” “clearly authorized [ ] common-law

principles.” Am. Exp. Lines, Inc. v. Alvez, 446 U.S. 274,

285 (1980). In particular, this Court has “recogniz[ed]

products liability, including strict liability, as part of

the general maritime law.” E. River S.S. Corp. v.

Transamerica Delaval, Inc., 476 U.S. 858, 865 (1986).

In this case, the Court

sitting in admiralty may draw guidance from,

inter alia, the extensive body of state law

applying proximate causation requirements

and from treatises and other scholarly sources.

Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 839 (1996).

Three interrelated, but distinct, common-law concepts weigh against expansion of maritime productliability duties here: First is the core policy of productliability law that risk should be congruent with profit.

Second is duty; the common-law’s reluctance – grounded

in policy – to extend the duty to warn beyond a manufacturer’s own products. Finally, feasibility concerns

bar imposition of sweeping liability through creation of

duties that are impossible as a practical matter to perform. This brief discusses each in turn.4

Liability Here Would Violate The Foundational Requirement Of Product-Liability

Law That The Cost Of Product-Related Injuries Should Be Borne By Those Who Profit

From The Sale Of Injurious Products.

In its decision below, the Third Circuit extended

asbestos liability to defendants that even respondents

concede did not make any asbestos-containing product

to which they were exposed. That court proclaimed

that “the bare-metal defense is nothing more than the

concept of foreseeability.” Pet. App. 8a.

While respondents allege only negligence claims, commonlaw precedent, as will be seen, applies the same principles to both

negligence and strict liability.

This expansion of asbestos liability, however, flies

in the face of the most fundamental tenets of productliability law. “The purpose of such liability is to insure

that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market.” Greenman v. Yuba Power Prods.,

Inc., 377 P.2d 897, 901 (Cal. 1963).5 The American Law

Institute’s Restatement (Second) of Torts §402A (1965),

adopted by dozens of states, expressly identified these

“justifications” for modern strict liability:

•

“[T]he seller, by marketing his product . . . ,

has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it.”

•

“[T]he public has the right to and does expect

. . . that reputable sellers will stand behind

their goods.”

•

“[P]ublic policy demands that the burden of

accidental injuries caused by products . . . be

placed upon those who market them, and be

treated as a cost of production against which

liability insurance can be obtained.”

Likewise Justice Traynor’s concurring opinion in Escola v.

Coca Cola Bottling Co., 150 P.2d 436, 444 (Cal. 1944), presaging

Greenman, recognized that a “manufacturer’s liability . . . should

not extend to injuries that cannot be traced to the product as it

reached the market.”

•

“[T]he proper persons to afford it [protection

of consumers] are those who market the products.”

Id., comment c.

Similarly, this Court has acknowledged, in the

maritime product-liability context, that “public policy

demands that responsibility be fixed wherever it will

most effectively reduce the hazards to life and health

inherent in defective products that reach the market.”

East River S.S., 476 U.S. at 866. Historically, that policy has always predicated liability on the defendant’s

role in marketing an allegedly defective product.

These core product-liability principles have been

followed by the high courts of practically every state in

the nation. The proposition that product manufacturers should be subject to product liability because they

control their products’ condition, profit from their sale,

and can insure against risks, is foundational. Thus, the

law of almost every American jurisdiction holds that

those in the chain of distribution of a product – and

only those entities – may be liable for product-related

injuries.

A number of jurisdictions have done so by expressly adopting as their own the “justifications” for

product liability from Restatement §402A, comment c

as quoted above. Alabama: First Nat’l Bank of Mobile

v. Cessna Aircraft Co., 365 So.2d 966, 967 (Ala. 1978);

Colorado: Camacho v. Honda Motor Co., 741 P.2d

1240, 1246 (Colo. 1987); Connecticut: Wagner v. Clark

Equip. Co., 700 A.2d 38, 52 (Conn. 1997); District of

Columbia: Fisher v. Sibley Mem’l Hosp., 403 A.2d

1130, 1134 n.10 (D.C. 1979); Massachusetts: Haglund

v. Philip Morris, Inc., 847 N.E.2d 315, 322 (Mass. 2006);

Nevada: Allison v. Merck & Co., 878 P.2d 948, 955

(Nev. 1994); North Dakota: Haugen v. Ford Motor Co.,

219 N.W.2d 462, 470 (N.D. 1974); Pennsylvania:

Tincher v. Omega Flex, Inc., 104 A.3d 328, 383 (Pa.

2014); South Carolina: Schall v. Sturm, Ruger Co.,

300 S.E.2d 735, 736 (S.C. 1983); South Dakota: Zacher

v. Budd Co., 396 N.W.2d 122, 143 (S.D. 1986); Vermont: Webb v. Navistar Int’l Transp. Corp., 692 A.2d

343, 346 (Vt. 1996).

Other state high courts have independently expressed similar reasons for linking product liability to

product manufacture, marketing, and sale. The California Supreme Court reiterated in Brown v. Superior

Court, 751 P.2d 470, 478 (Cal. 1988), that the “fundamental reasons” for product liability “are to deter manufacturers from marketing products that are unsafe,

and to spread the cost of injury . . . to the consuming

public . . . to reflect the increased expense of insurance

to the manufacturer”; see Daly v. Gen. Motors Corp.,

575 P.2d 1162, 1170 (Cal. 1978) (“the basis for [a defendant’s] liability remains that he has marketed or

distributed a defective product”). See also:

Alaska: Savage Arms, Inc. v. W. Auto Supply Co.,

18 P.3d 49, 53 (Alaska 2001) (“The purpose of the modern strict liability regime is to insure that the cost of

injuries resulting from defective products is borne by

the manufacturers that put such products on the market.”) (footnote and quotation marks omitted).

Arizona: Torres v. Goodyear Tire & Rubber Co.,

786 P.2d 939, 944 (Ariz. 1990) (“strict liability was intended to place the loss caused by defective products

on those who create the risk and reap the profit”) (citation and quotation marks omitted).

Delaware: Martin v. Ryder Truck Rental, Inc., 353

A.2d 581, 587 (Del. 1976) (“the cost of compensating for

injuries and damages arising from the use of a defective [product] should be borne by the party who placed

it in circulation”).

Florida: Aubin v. Union Carbide Corp., 177 So.3d

489, 503 (Fla. 2015) (“The cost of injuries or damages

. . . resulting from defective products, should be borne

by the makers of the products who put them into the

channels of trade.”) (quoting West v. Caterpillar Tractor

Co., 336 So.2d 80, 92 (Fla. 1976)).

Georgia: Robert F. Bullock, Inc. v. Thorpe, 353

S.E.2d 340, 341 (Ga. 1987) (“the doctrine of strict liability puts a burden on the manufacturer . . . to take

responsibility for injury to members of the consuming

public for whose use and/or consumption the product

is made”).

Idaho: Vannoy v. Uniroyal Tire Co., 726 P.2d 648,

653 (Idaho 1985) (“the policy underlying strict products liability [is] the spreading of loss to manufacturers who are best able to absorb it”).

Indiana: Reed v. Cent. Soya Co., 621 N.E.2d 1069,

1072 (Ind. 1993) (“public policy demands that the burden of accidents be placed upon those who market

products and who can treat that burden as a cost of

doing business”).

Kansas: McKernan v. Gen. Motors Corp., 3 P.3d

1261, 1267 (Kan. 2000) (following “the public policy of

fixing responsibility for defective products on the party

who introduces the product to the market place”).

Maine: Austin v. Raybestos-Manhattan, Inc., 471

A.2d 280, 288 (Me. 1984) (“The seller becomes subject

to liability if an unreasonably dangerous product

causes injury.”).

Maryland: Phipps v. Gen. Motors Corp., 363 A.2d

955, 958 (Md. 1976) (product liability “advances the

policy of requiring those who make and sell defective

products to bear the costs of the injuries that result

therefrom”).6

Michigan: Langley v. Harris Corp., 321 N.W.2d

662, 665 (Mich. 1982) (“the public policy implicit in

products liability law [is] that the manufacturer is best

able to provide for the risk of defective products”).

Minnesota: Lee v. Crookston Coca-Cola Bottling

Co., 188 N.W.2d 426, 431 (Minn. 1971) (invoking the

“policy consideration[ ]” that “the burden of loss caused

In May v. Air & Liquid Sys. Corp., 129 A.3d 984, 994, 999-1000

(Md. 2015), however, the court discounted “crushing transaction

costs” and ignored precedent to carve out an asbestos-specific exception to the general rule that product-liability defendants are

not liable for harm caused by third-party products. The dissent,

relying on Phipps, correctly concluded that “this holding has no

support whatsoever in Maryland case law.” Id. at 1010 (Watts &

Battaglia, JJ., dissenting).

by placing a defective product on the market should be

borne by the manufacturer, who is best able to distribute it by insuring against inevitable hazards as a part

of the cost of the product”).

Montana: Sternhagen v. Dow Co., 935 P.2d 1139,

1143 (Mont. 1997) (“ ‘requiring the manufacturer to

bear the burden of injuries and losses enhanced by

such defects in its products’ ”) (quoting Brandenburger

v. Toyota Motor Sales, U.S.A., Inc., 513 P.2d 268, 275

(Mont. 1973)).

Nebraska: Jones v. Johnson Mach. & Press Co.,

320 N.W.2d 481, 484 (Neb. 1982) (“public policy considerations which motivate imposition of strict liability on

those who create risk and obtain profit by placing defective products in the stream of commerce”).

New Hampshire: Heath v. Sears, Roebuck & Co.,

464 A.2d 288, 293 (N.H. 1983) (“the risk of liability is

best borne by the companies that profited from their

sale”).

New Jersey: Mettinger v. Globe Slicing Mach. Co.,

709 A.2d 779, 783 (N.J. 1998) (“The underlying public

policy is that those engaged in the producing and marketing enterprise should bear the cost of marketing defective products.”).

New Mexico: Livingston v. Begay, 652 P.2d 734,

738 (N.M. 1982) (“an important reason for imposing

strict liability was to encourage manufacturers to take

care in production activities”).

Oklahoma: Tansy v. Dacomed Corp., 890 P.2d 881,

884 (Okla. 1994) (“The manufacturer is in a position of

control over the manufacture and testing of the product.”).

Oregon: Phillips v. Kimwood Mach. Co., 525 P.2d

1033, 1041 (Or. 1974) (“one of the principal rationales

behind the imposition of strict liability . . . is that the

manufacturer is in the position of distributing the cost

of such risks among all users of the product”).

Rhode Island: Clift v. Vose Hardware, Inc., 848

A.2d 1130, 1132 (R.I. 2004) (“[i]t is axiomatic that a

plaintiff must prove that the proximate cause of his or

her injuries was the defendant’s product”).

Tennessee: Whitehead v. Toyota Motor Corp., 897

S.W.2d 684, 693 (Tenn. 1995) (a “principal reason[ ]” for

product liability is “to encourage greater care in the

manufacture of products that are distributed to the

public”).

Utah: Bylsma v. R.C. Willey, 416 P.3d 595, 606

(Utah 2017) (“we ensure that the costs of injuries

resulting from defective products are borne by the

[sellers] that put such products on the market”) (citation and quotation marks omitted).

Washington: Macias v. Saberhagen Holdings,

Inc., 282 P.3d 1069, 1072 (Wash. 2012) (“a manufacturer does not have a duty to warn of the dangers inherent in a product that it does not manufacture, sell,

or supply”).

Wisconsin: Haase v. Badger Mining Corp., 682

N.W.2d 389, 396 (Wis. 2004) (“the seller is in the paramount position to distribute the costs of the risks created by the defective product he is selling”; “the

manufacturer has the greatest ability to control the

risk created by his product”) (citations and quotation

marks omitted).

Wyoming: Schneider Nat’l, Inc. v. Holland Hitch

Co., 843 P.2d 561, 582 (Wyo. 1992) (“strict liability . . .

reflects a sound public policy consideration that the

manufacturer who places a product in the stream of

commerce . . . is best able to bear the risk of loss”) (citation and quotation marks omitted).

Applying these fundamental product-liability principles, numerous courts have specifically invoked them

as grounds for rejecting attempts to extend liability to

defendants that, as here, are entirely outside the chain

of distribution of the products that allegedly injured

the plaintiffs.

Starting with asbestos litigation, the plaintiffs’

“endless search for a solvent bystander”7 has resulted

in repeated assertion of the sort of liability claims at

issue here. Petitioners are not alleged to have manufactured any products that actually exposed respondents to asbestos. In precisely these situations, most

See Richard Scruggs & Victor Schwartz, Medical Monitoring and Asbestos Litigation – A Discussion with Richard Scruggs

and Victor Schwartz, 1-7:21 Mealey’s Asbestos Bankr. Rep. 5 (Feb.

2002) (quoting plaintiffs’ attorney Scruggs describing the asbestos litigation in these terms).

courts have likewise invoked fundamental productliability principles to reject expansive liability for

products defendants did not make.

Most directly relevant is Lindstrom v. A-C Product

Liability Trust, 424 F.3d 488, 495-97 (6th Cir. 2005),

which rejected such liability, as here, under maritime

law. Both negligence and strict liability require that “a

plaintiff must establish causation.” Id. at 492. Causation, in turn requires proof, inter alia, that the defendant was actually “exposed to the defendant’s product.”

Id. A defendant “cannot be held responsible for material ‘attached or connected’ to its product” where the plaintiff “almost certainly could not have handled the original”

material, so that any asbestos exposure “would be attributable to some other manufacturer.” Id. at 495.

In O’Neil v. Crane Co., 266 P.3d 987 (Cal. 2012),

California law tracked the “bedrock principle” of

product liability “requir[ing] that ‘the plaintiff ’s injury

must have been caused by a “defect” in the [defendant’s] product.’ ” Id. at 994-95. Thus:

[T]he reach of strict liability is not limitless.

We have never held that strict liability extends to harm from entirely distinct products

that the consumer can be expected to use

with, or in, the defendant’s nondefective product. Instead, we have consistently . . . requir[ed]

proof that the plaintiff suffered injury caused

by a defect in the defendant’s own product.

Id. at 995. “The same policy considerations that militate against imposing strict liability in this situation

apply with equal force in the context of negligence.” Id.

at 1007.

Similarly, in Simonetta v. Viad Corp., 197 P.3d 127,

131-38 (Wash. 2008), and Braaten v. Saberhagen Holdings, 198 P.3d 493, 497-504 (Wash. 2008), Washington’s highest court rejected expansion of asbestos

liability to non-asbestos containing products. The court

concluded, under both negligence and strict liability,

that product liability should be “limited to those in the

chain of distribution of the hazardous product.” Simonetta, 197 P.3d at 134; see also Braaten, 198 P.3d at 504.

Fundamental tort principles were at stake:

We justify imposing liability on the defendant

who, by manufacturing, selling, or marketing

a product, is in the best position to know of the

dangerous aspects of the product and to translate that knowledge into a cost of production

against which liability insurance can be obtained. Here, [defendant] did not manufacture

or market the asbestos insulation. Nor did

[defendant] have control over the [product] . . .

selected. Thus, as the following analysis of

these factors establishes, [defendant] is not

strictly liable for failure to warn.

Simonetta, 197 P.3d at 134; accord Braaten, 198 P.3d

at 504.8

See also Hughes v. A.W. Chesterton Co., 89 A.3d 179, 190

(N.J. Super. App. Div. 2014); Gillenwater v. Honeywell Int’l, Inc.,

996 N.E.2d 1179, 1200 (Ill. App. 2013).

For similar reasons, the Oklahoma Supreme

Court refused to impose another, albeit less radical9

form of non-manufacturer liability – market share liability – in asbestos litigation:

[P]ublic policy favoring recovery on the part of

an innocent plaintiff does not justify the abrogation of the rights of a potential defendant to

have a causative link proven . . . where there

is a lack of circumstances which would insure

that there was a significant probability that

those acts were related to the injury.

Case v. Fibreboard Corp., 743 P.2d 1062, 1067 (Okla.

1987). “The creation of a program of compensation for

victims of asbestos related injuries . . . is a matter for

the legislative body and not for the courts.” Id.

Likewise, Texas rejected market share liability as

a means of holding non-manufacturers liable in asbestos cases. “A fundamental principle of traditional products liability law is that the plaintiff must prove that

the defendants supplied the product which caused the

injury.” Gaulding v. Celotex Corp., 772 S.W.2d 66, 68

(Tex. 1989). See Bostic v. Georgia-Pacific Corp., 439

S.W.3d 332, 340 (Tex. 2014) (reaffirming Gaulding). As

Case and Gaulding exemplify, market share liability as

Market share liability is less radical than the theory being

advanced here. For one thing, under a market share theory, liability would only be partial, limited to a defendant’s market share,

not the 100% recovery respondents seek. Also unlike market

share liability in Case, where exposure or lack of exposure to defendant’s product simply could not be determined, here it is undisputed that neither of respondents’ decedents was exposed to

any asbestos-containing product made by any petitioner.

a theory for holding non-manufacturers liable for other

persons’ products has also been widely rejected in asbestos litigation.10

Numerous other states have likewise rejected attempts to impose non-manufacturer product liability

in various circumstances. Most recently, in West Virginia, the state’s highest court rejected the imposition of warning-based liability on manufacturers of

branded prescription drugs for injuries concededly

caused by their generic competitors. “[P]roducts liability law is abundantly clear [that] liability is premised

upon the defendant being the manufacturer or seller of

the product in question,” thus, “it is essential in a products liability action . . . for the plaintiff to identify the

defendant as either the manufacturer or seller of the

Black v. Abex Corp., 603 N.W.2d 182, 189 (N.D. 1999); Goldman v. Johns-Manville Sales Corp., 514 N.E.2d 691, 702 (Ohio

1987); Celotex Corp. v. Copeland, 471 So.2d 533, 536-39 (Fla.

1985); Reiter v. AC&S, Inc., 947 A.2d 570, 573 (Md. App. 2008),

aff ’d, 8 A.3d 725 (Md. 2010); Leng v. Celotex Corp., 554 N.E.2d 468,

470-71 (Ill. App. 1990); Mullen v. Armstrong World Indus., Inc.,

246 Cal. Rptr. 32, 35-37 (App. 1988); Jackson v. Anchor Packing

Co., 994 F.2d 1295, 1303 (8th Cir. 1993) (applying Arkansas law);

Robertson v. Allied Signal, Inc., 914 F.2d 360, 379-81 (3d Cir. 1990)

(applying Pennsylvania law); White v. Celotex Corp., 907 F.2d 104,

105 (9th Cir. 1990) (applying Arizona law); Menne v. Celotex Corp.,

861 F.2d 1453, 1468 n.22 (10th Cir. 1988) (applying Nebraska

law); Bateman v. Johns-Manville Sales Corp., 781 F.2d 1132, 113334 (5th Cir. 1986) (applying Louisiana law); Blackston v. Shook &

Fletcher Insul. Co., 764 F.2d 1480, 1483 (11th Cir. 1985) (applying

Georgia law); Nutt v. A.C. & S. Co., 517 A.2d 690, 694 (Del. Super.

1986); Pace v. Air & Liquid Sys. Corp., 171 F. Supp.3d 254, 263

n.10 (S.D.N.Y. 2016); Univ. Sys. of N.H. v. U.S. Gypsum Co., 756

F. Supp. 640, 655-56 (D.N.H. 1991); Marshall v. Celotex Corp., 651

F. Supp. 389, 392-94 (E.D. Mich. 1987).

product complained of.” McNair v. Johnson & Johnson,

___ S.E.2d ___, 2018 WL 2186550, at *5 (W. Va. May 11,

2018) (citation and quotation marks omitted). See also:

Hawaii: Leong v. Sears Roebuck & Co., 970 P.2d

972, 979 (Haw. 1998) (“Because [defendant] did not

manufacture or commercially distribute [the product]

. . . none of the public policy rationales justifying the

doctrine of strict products liability would be served by”

imposing liability).

Illinois: Smith v. Eli Lilly & Co., 560 N.E.2d 324,

342-43 (Ill. 1990) (“there may not be an incentive to

produce safer products if liability could still be imposed

as a result of the negligence of others in the industry

and if the manufacturer knows that others in the industry will absorb the damages resulting from its negligence”).

Iowa: Huck v. Wyeth, Inc., 850 N.W.2d 353, 376

(Iowa 2014) (“to expand tort liability to those who did

not make or supply the injury-causing product used by

the plaintiff involves policy choices and ‘social engineering more appropriately within the legislative domain’ ”) (quoting Mulcahy v. Eli Lilly & Co., 386 N.W.2d

67, 76 (Iowa 1986)).

Missouri: Zafft v. Eli Lilly & Co., 676 S.W.2d 241,

247 (Mo. 1984) (finding “insufficient justification . . . to

support abandonment of so fundamental a concept of

tort law as the requirement that a plaintiff prove, at a

minimum, some nexus between wrongdoing and injury”).

Ohio: Sutowski v. Eli Lilly & Co., 696 N.E.2d 187,

191 (Ohio 1998) (“imposition of liability upon a manufacturer for harm that it may not have caused is the

very legal legerdemain, at least by our long held traditional standards, that we believe the courts should

avoid”).

Oregon: Senn v. Merrell-Dow Pharm., Inc., 751

P.2d 215, 223 (Or. 1988) (“adoption of any theory of alternative liability” in a product-liability case would

“require[ ] a profound change in fundamental tort principles”).

Pennsylvania: Skipworth v. Lead Indus. Ass’n,

Inc., 690 A.2d 169, 172 (Pa. 1997) (“Pennsylvania . . . follows the general rule that a plaintiff . . . must establish

that a particular defendant’s negligence was the proximate cause of her injuries”; “[a]pplication of market

share liability . . . would lead to a distortion of liability

which would be so gross as to make determinations of

culpability arbitrary and unfair.”).

Virginia: Baker v. Poolservice Co., 636 S.E.2d 360,

365 (Va. 2006) (product liability “has no application

[where defendant] was not the manufacturer of the

[product] or any of its component parts”).

Finally, in New York, the highest court had consistently refused to extend market share liability beyond

the single situation where it had been legislatively encouraged, expressing “judicial resistance to the expansion of duty” and expressing “practical concerns both

about potentially limitless liability and about the unfairness of imposing liability for the acts of another.”

Hamilton v. Beretta U.S.A. Corp., 750 N.E.2d 1055,

1061 (N.Y. 2001). Similarly, in Rastelli v. Goodyear Tire

& Rubber Co., design-related liability for a product

used in conjunction with the defendant’s could not exist where the defendant “did not contribute to the alleged defect in a product, had no control over it, and

did not produce it.” 591 N.E.2d 222, 226 (N.Y. 1992).11

Reinforcing the common law, many states have enacted statutes explicitly defining “product liability” actions so that liability is confined to those who

manufactured, distributed or were otherwise involved

with the product that actually caused injury. Ariz. Rev.

Stat. §12-681(5); Ark. Code §16-116-101; Colo. Rev.

Stat. §13-21-401(2); Conn. Gen. Stat. §52-572n(a); Ga.

Code §51-1-11(d-e); Idaho Code §6-1402(1); Ind. Code

§34-20-1-1; Kan. Stat. §60-3302(a-c); La. Stat. §9:2800.52;

Me. Rev. Stat. tit. 14, §221; Miss. Code §11-1-63; N.J.

Stat. §2A:58C-2; N.C. Gen. Stat. §99B-1; N.D. Cent.

Code §28-01.3-01; Ohio Rev. Code §2307.71(13); Or.

Subsequently, in a case similar to that before the Court,

the New York Court of Appeals departed from Rastelli in asbestos

litigation and refused to “rel[y] . . . on the fact that a manufacturer has no control over the third-party product and in fairness

cannot be expected to inspect” other manufacturers’ products. In

re New York City Asbestos Litig., 59 N.E.3d 458, 477-78 (N.Y.

2016). Instead, that court opted for a burdensome and unpredictable case-by-case evaluation of the “design, mechanics or economic necessity” of products that never contained any asbestos to

which a plaintiff was exposed. Id. at 474. That court’s blithe assurance that such liability would “not impose[ ] extreme or unreasonable financial liability on manufacturers,” id. at 473, is belied

by decades of real-world experience with asbestos litigation,

which has bankrupted over 120 defendants. See supra note 3.

Rev. Stat. §30.900; S.C. Code §15-73-10 (codifying Restatement §402A); Tenn. Code §29-28-105(a); Tex. Civ.

Prac. & Rem. Code §82.001(2); Utah Code §78B-6-703(1);

Wash. Rev. Code §7.72.030(1); Wis. Stat. §895.046(3).

In sum, across the nation, fundamental and almost universally recognized product-liability principles require that, for liability to attach, the defendant

must have: (1) control over the product so that it could

improve product safety, and (2) profited from the sale

of the product so that it would be fair to treat productrelated injuries as a cost of doing business. This is so

both outside and within asbestos litigation. The cases

before the Court fulfill neither of these prerequisites.

II.

Product Manufacturers Have No Duty To

Warn About Risks Of Products They Do Not

Make.

As a specific application of the common law’s limiting product liability to those who profit from sale of

injurious products, a product manufacturer’s duty to

warn of product risks does not extend to include the

risks of products it did not make. Richard E. Kaye,

American Law of Products Liability 3d §32:9 (May

2018 Supp.). “Although a product manufacturer generally has a duty to warn of the dangers of its own products, it does not have a duty to warn of the danger

of another manufacturer’s products.” Barnes v. Kerr

Corp., 418 F.3d 583, 590 (6th Cir. 2005) (applying Tennessee law).

Even where – unlike asbestos – the defendant has

made an identical product, the vast majority of courts

have resisted expanding the duty to warn to reach

those other, competing products. In Huck v. Wyeth, the

Iowa Supreme Court cautioned:

It may well be foreseeable that competitors

will mimic a product design or label. But,

we decline [plaintiff ’s] invitation to step onto

the slippery slope of imposing . . . liability on

manufacturers for harm caused by a competitor’s product. Where would such liability

stop?

850 N.W.2d at 380 (citation omitted). Similarly, in In re

Darvocet, Darvon, & Propoxyphene Prods. Liab. Litig.,

756 F.3d 917 (6th Cir. 2014), the court examined the

laws of 22 states and concluded that none would hold

a manufacturer of a branded prescription drug responsible for warning defects in bioequivalent generic products. First, “it is well-settled law” that the “ ‘threshold

requirement of any products-liability claim is that the

plaintiff assert that the defendant’s product caused the

plaintiff ’s injury.’ ” Id. at 938. Second, non-manufacturing defendants “do not owe users of generic drugs a

duty that can give rise to liability.” Id. Combining both

reasons:

An overwhelming majority of courts . . . have

rejected the contention that a name brand

manufacturer’s statements regarding its drug

can serve as the basis for liability for injuries

caused by another manufacturer’s drug.

Id. (citations and footnote omitted).12

Darvocet examined and applied the laws of Arkansas, Connecticut, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana,

Maryland, Michigan, Mississippi, Nebraska, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee,

Texas, Washington, and West Virginia. Id. at 941-54. Other appellate decisions rejecting imposition of so-called “innovator liability”

on branded drug manufacturers for injuries caused by allegedly

inadequately labeled generic drugs are: McNair, supra; Johnson

v. Teva Pharmaceuticals USA, Inc., 758 F.3d 605, 614-15 (5th Cir.

2014) (applying Louisiana law); Eckhardt v. Qualitest Pharmaceuticals, Inc., 751 F.3d 674, 681 (5th Cir. 2014) (applying Texas law);

Lashley v. Pfizer, Inc., 750 F.3d 470, 476-78 (5th Cir. 2014) (applying Mississippi & Texas law); Strayhorn v. Wyeth Pharmaceuticals, 737 F.3d 378, 403-05 (6th Cir. 2013) (applying Tennessee

law); Schrock v. Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013)

(applying Oklahoma law); Fullington v. PLIVA, Inc., 720 F.3d 739,

744 (8th Cir. 2013) (applying Arkansas law); Guarino v. Wyeth, 719

F.3d 1245, 1251-53 (11th Cir. 2013) (applying Florida law); Bell v.

Pfizer, Inc., 716 F.3d 1087, 1092-93 (8th Cir. 2013) (applying Arkansas law); Smith v. Wyeth, Inc., 657 F.3d 420, 423-24 (6th Cir.

2011) (applying Kentucky law); Foster v. American Home Products

Corp., 29 F.3d 165, 168-71 (4th Cir. 1994) (applying Maryland

law); Moretti v. Wyeth, Inc., 579 F.App’x 563, 564-65 (9th Cir. 2014)

(applying Nevada law); PLIVA, Inc. v. Dement, 780 S.E.2d 735, 743

(Ga. App. 2015); Franzman v. Wyeth, Inc., 451 S.W.3d 676, 689-92

(Mo. App. 2014) (applying Kentucky law); Stanley v. Wyeth, Inc.,

991 So.2d 31, 34-35 (La. App. 2008); Flynn v. American Home

Products Corp., 627 N.W.2d 342, 350 (Minn. App. 2001).

Only California recognizes such a theory, but this resultoriented deviation has not been extended to any other context.

See T.H. v. Novartis Pharm. Corp., 407 P.3d 18, 31 n.2 (Cal. 2017)

(absence of federal preemption would prompt “reconsideration of

the brand-name manufacturer’s duty in this category of cases”).

Massachusetts requires intentional conduct to expand the duty to

warn in this fashion. Rafferty v. Merck & Co., 92 N.E.3d 1205, 1220

However, the law’s refusal to impose duties to

warn about the risks of other entities’ products long

precedes the recent controversy about innovator drug

liability. “A manufacturer generally does not have a

duty to warn or instruct about another manufacturer’s

products, even though a third party might use those

products in connection with the manufacturer’s own

product.” Firestone Steel Prod. Co. v. Barajas, 927

S.W.2d 608, 614 (Tex. 1996).

[I]t is clear the manufacturer’s duty is restricted to warnings based on the characteristics of the manufacturer’s own product.

Understandably, the law does not require a

manufacturer to study and analyze the products of others and to warn users of risks of

those products.

Powell v. Standard Brands Paint Co., 212 Cal. Rptr.

395, 398 (App. 1985) (citations omitted).

For example, it is black letter law that the manufacturer of a non-defective component part has no duty

to warn about other components that it did not make,

unless it “substantially participates in the integration

of the component into the design of the [overall] product.” Restatement (Third) of Torts, Products Liability

§5(b)(1) (1998). The duty to warn “has no application

. . . because [defendant] was not the manufacturer of

the [product] or any of its component parts.” Baker, 636

S.E.2d at 365. “[A] distributor or manufacturer of a

(Mass. 2018). In Alabama, a decision allowing innovator liability

was promptly overturned by statute. Ala. Code §6-5-530(a).

nondefective component is not liable for defects in a

product that it did not manufacture, sell, or otherwise

place in the stream of commerce.” Sanders v. Ingram

Equip., Inc., 531 So.2d 879, 880 (Ala. 1988). “We have

never held a manufacturer liable, however, for failure

to warn of risks created solely in the use or misuse of

the product of another manufacturer.” Mitchell v. Sky

Climber, Inc., 487 N.E.2d 1374, 1376 (Mass. 1986).

There is no “rationale for imposing liability” where

“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.” Baughman v. Gen. Motors Corp., 780

F.2d 1131, 1132-33 (4th Cir. 1986) (applying South Carolina law).

[Plaintiff ’s] position would require a manufacturer to test all possible replacement parts

made by any manufacturer to determine their

safety and to warn against the use of certain

replacement parts. If the law were to impose

such a duty, the burden upon a manufacturer

would be excessive.

Id. at 1133.

In Rastelli, supra, the court “decline[d] to hold that

one manufacturer has a duty to warn about another

manufacturer’s product when the first manufacturer

produces a sound product.” 591 N.E.2d at 225-26.

Merely because two products could be used together

did not create any duty to warn about the risks of compatible products. Accord Acoba v. Gen. Tire, Inc., 986

P.2d 288, 304-05 (Haw. 1999) (“a manufacturer owes a

duty to warn regarding its own product, not regarding

products it did not produce, sell, or control”) (following

Rastelli).

Nor is judicial reluctance to require warnings

about other entities’ products limited to component

parts. In Johnson v. Jones-Blair Paint Co., 607 S.W.2d

305 (Tex. App. 1980), the court held that a paint manufacturer had no duty to warn about the flammable nature of other products typically used to clean up spilled

paint, even though paint spatters are an inevitable

part of painting.

[T]he product (paint) is not unreasonably dangerous in the absence of the warning urged by

plaintiffs. The dried paint spots did not explode. The explosion resulted from the use of

a product (gasoline) supplied by a seller other

than [defendant].

Id. at 306. “[M]anufacturers d[o] not have a duty to

provide warnings for dangerous conditions present in

other products.” Brown v. Drake-Willock Int’l, Ltd., 530

N.W.2d 510, 515 (Mich. App. 1995) (“recommend[ing]”

a cleaning method created no duty to warn about it,

since “the manufacturers . . . had no duty to warn

about others’ products”).

Analogously, a scaffolding manufacturer that did

not supply wood planks used to floor the scaffold had

no duty to warn about the wood. “Foreseeability” that

wood planks would be used did not create a duty. “[W]e

emphasize [defendant] did not supply the ‘defective’

product.” “Pennsylvania law does not permit” liability

for not “warn[ing] of dangers inherent in [a product]

that it did not supply.” Toth v. Econ. Forms Corp., 571

A.2d 420, 422-23 (Pa. Super. 1990). The same is true of

a strap used to fasten a load. Walton v. Harnischfeger,

796 S.W.2d 225, 226 (Tex. App. 1990) (“a manufacturer

does not have a duty to warn or instruct about another

manufacturer’s products, even though those products

might be used in connection with the manufacturer’s

own product”).

In a successor liability situation, the court in Fricke

v. Owens-Corning Fiberglas Corp., was “not prepared

to hold a manufacturer responsible for alleged inadequate warnings about a product it neither manufactured nor sold” where the defendant sold the company

and the successor used the same allegedly defective

warning on its own products. 618 So.2d 473, 475 (La.

App. 1993). Accord McConkey v. McGhan Med. Corp.,

144 F. Supp.2d 958, 964 (E.D. Tenn. 2000) (“Plaintiffs

cannot establish that [prior owner] owed a duty to the

customers of [corporate successor] to warn about dangers of [products] it did not produce.”).

In Yates v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., 808 F.3d 281 (6th Cir. 2015) (applying New

York law), no duty existed to warn about the allegedly

lower risks of competing drugs. Warning duties existed

only about a product’s own risks, “not to different drugs

treating the same ailment.” Id. at 291-92. Earlier, Pluto

v. Searle Laboratories, 690 N.E.2d 619 (Ill. App. 1997),

rejected the same argument, finding no duty to warn

about the comparative risks of “competing products”:

[Defendant] is under no duty to provide information on other products in the marketplace.

Such a duty would require drug manufacturers to rely upon the representations made by

competitor drug companies. This arrangement would only lead to greater liability on

behalf of drug manufacturers that were required to vouch for the efficacy of a competitor’s product. Furthermore, such a duty would

raise serious implications regarding the free

flow of commerce in that industry.

Id. at 621. See Batoh v. McNeil-PPC, Inc., 167 F. Supp.3d

296, 314 (D. Conn. 2016) (“[defendant] owed no duty

. . . to warn [plaintiff ’s] physician about a product that

it did not make or sell”); Adamson v. Ortho-McNeil

Pharm., Inc., 463 F. Supp.2d 496, 504 (D.N.J. 2006)

(“courts have routinely held that competitors have no

duty to advertise or sell a competitor’s products”).13

For other prescription medical product decisions rejecting

warnings concerning other products, see Johnson v. American Cyanamid Co., 718 P.2d 1318, 1326 (Kan. 1986) (rejecting claim that

defendant “did not provide information on alternate vaccines”);

Ackley v. Wyeth Laboratories, 919 F.2d 397, 405 (6th Cir. 1990)

(manufacturer “not obligated to provide a comparison of its drug

with others”) (applying Ohio law); Kapps v. Biosense Webster, Inc.,

813 F. Supp.2d 1128, 1158 (D. Minn. 2011) (defendant “does not

reprocess its own” devices, therefore no duty to warn of risks of

third-party reprocessing); Doe v. Ortho-Clinical Diagnostics, Inc.,

335 F. Supp.2d 614, 626-27 (M.D.N.C. 2004) (that defendant

“knew that other manufacturers were copying its expired patent”

did not create duty to warn); Smith v. Wyeth Laboratories, Inc.,

1986 WL 720792, at *10 (S.D.W. Va. Aug. 21, 1986) (“no authority

for [plaintiffs’] argument that a drug manufacturer may be required

to represent that other drugs with similar effects are safer”).

The duty that respondents advocate in these cases

is a far cry from “traditionally compensable” warning

claims in either strict liability or negligence. Norfolk &

W. Ry. Co. v. Ayers, 538 U.S. 135, 148 (2003). The risks

alleged here undisputedly arose from contact with

products that petitioners never produced and never

controlled. Outside of the “elephantine mass of asbestos cases,” Ortiz v. Fibreboard Corp., 527 U.S. 815, 821

(1999), defendants are only subject to liability for inadequacies in their warnings about their own products.

Maritime law should not cast aside this causal and

policy-laden limitation, and set sail on the endless sea

of liability for unwarned-of risks from any product

made by anyone that might “foreseeably” be used in

conjunction with a defendant’s product. Such claims

pose “a threat of unlimited and unpredictable liability”

of the sort this Court properly rejected in Metro-North

Commuter Railroad Co. v. Buckley, 521 U.S. 424, 433

(1997) – not coincidentally, another asbestos case. The

Court should likewise reject the expansive claims

being asserted here.

III. The Common Law Disfavors Creation Of Tort

Duties That Are Impossible To Satisfy.

Another aspect of the novel warning duty allowed

by the Court of Appeals is that, as a practical matter,

complying with the purported duty is so difficult that

successful compliance is essentially impossible.

In DeVries, the navy ship incorporating the petitioners’ products as original equipment was built in

1945. The non-asbestos-containing equipment at issue

was built to the navy’s World War II specifications.

John DeVries served aboard that ship over ten years

later, between 1957 and 1960. Only occasionally, at

best, did he actually operate this equipment.

In McAfee, Kenneth McAfee served on two navy

ships that first went into service in 1958 and 1973. He

served in the late 1970s and early 1980s. Without dispute, installation of the relevant products occurred

long enough before McAfee’s service that the original,

navy-specified, asbestos-containing components had

all worn out and been replaced many times over before

his service began. Petitioners had nothing to do with

selecting or obtaining replacement parts for the navy.

In both cases, respondents have no evidence of asbestos exposure from petitioners’ products. Unable (or

unwilling) to limit themselves to actual sources of asbestos exposure, respondents sued anyone they could

identify – in excess of fifty defendants apiece. However,

if the “keystone is the concept of foreseeability,” Pet.

App. 7a, then any manufacturer could have a duty to

warn irrespective of what products they made. It need

only be “foreseeable” that their products would be used

along with other, asbestos-containing products that

wear out or otherwise become unidentifiable during

the decades between a plaintiff ’s alleged exposure and

when suit is filed.

The warning duty being asserted in this case is

thus:

•

untethered to the risks of the defendant’s own

product;

•

extends for an unlimited time;

•

extends to an ever-changing and unlimited

group of persons with no relationship to the

defendant;

•

would be owed by manufacturers of all products made part of a complex system; and

•

would impose liability for products that were

specified, installed, and maintained by a sophisticated third-party owner.14

Respondents offer no practical way for a defendant

to identify, let alone communicate with, the large number of people to whom their novel duty is allegedly

owed over an open-ended period of time.

The common law does not adopt impossible duties

as a back door to absolute liability. Restatement §402A

recognizes that “[m]any products cannot possibly be

made entirely safe for all consumption” and “some products [are], in the present state of human knowledge,

are quite incapable of being made safe for their intended and ordinary use.” Restatement (Second) of

Torts §402A, comments i, k (1965). Such risks are not,

by themselves, grounds for liability. Id. More generally,

Cf. Boyle v. United Techs. Corp., 487 U.S. 500, 511-13 (1988)

(discussing sophistication of federal procurement agencies in “balancing” risk and effectiveness).

a duty may not impose an “obligation which is not

within the actor’s ability to perform, since it relates

only to the actor’s conduct over which as such he has

control.” Restatement (Second) of Torts §4, comment

a (1965).15 This Court reached essentially the same

conclusion in the bankruptcy context, holding that

even “reprehensible” conduct cannot warrant “an order

which creates a duty impossible of performance, so

that punishment can follow.” Maggio v. Zeitz, 333 U.S.

56, 64 (1948).

Reasons of impracticality have also led most

courts in asbestos litigation to refuse to extend the

duty to warn to encompass family members and other

persons exposed to asbestos fibers from the clothing of

asbestos workers, as such persons are unknown to, and

unreachable by, the defendants.

Of course, it would be “simpler” if everyone

owed a legal duty of care to all people at all

times. . . . But “[l]ife will have to be made over,

and human nature transformed” before such

a duty could “be accepted as the norm of conduct, the customary standard to which behavior must conform.” Such a limitless duty

framework is impractical, unmanageable, and

has never been the law in this state.

Quiroz v. ALCOA Inc., 416 P.3d 824, 843 (Ariz. 2018)

(quoting Palsgraf v. Long Island R.R. Co., 162 N.E. 99,

A similar doctrine of contract law provides that a party’s

performance is “discharged” if performance “is made impracticable without his fault.” Restatement (Second) of Contracts §261

(1981).

100 (N.Y. 1928)). Even more recently the Delaware Supreme Court held:

[I]n take-home asbestos exposure cases, manufacturers face no impractical burden to put

out area-wide warnings in communities where

they have sold products, to get employee lists

for household launderers, or to target local dry

cleaners or commercial launderers. We agree

with the Manufacturers that imposing such a

broad duty to warn would be impractical, inefficient, and unfair.

Ramsey v. Ga. S. Univ. Advanced Dev. Ctr., ___ A.3d ___,

2018 WL 3134525, at *18 (Del. June 27, 2018). Warning

duties may not “impose an extraordinarily onerous and

unworkable burden.” In re Certified Question, 740

N.W.2d 206, 217 (Mich. 2007). “To impose a duty that

either cannot feasibly be implemented or, even if implemented, would have no practical effect would be

poor public policy indeed.” Ga. Pac., LLC v. Farrar, 69

A.3d 1028, 1039 (Md. 2013). “[W]e think it unreasonable to impose a duty . . . to warn all individuals” who

are “family members or simply members of the public

who were exposed to asbestos-laden clothing, as the

mechanism and scope of such warnings would be endless.” Certainteed Corp. v. Fletcher, 794 S.E.2d 641, 645

(Ga. 2016).

Outside of asbestos litigation, manufacturers and

sellers of mind-affecting drugs do not owe duties to

anyone injured by such drugs’ users who chose to drive

under their influence. To impose a duty to warn “an

anonymous member of the driving public” who was

“not a known or identifiable third party” is excessive.

Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1281

(Nev. 2009). To hold that a defendant “owed a legal

duty ‘under those circumstances would create a zone

of risk [that] would be impossible to define.’ ” Id. (quoting Dent v. Dennis Pharmacy, Inc., 924 So.2d 927 (Fla.

App. 2006)).

Similarly, Walton v. Avco Corp., 610 A.2d 454 (Pa.

1992), tightly confined liability for post-sale duty to

warn to ensure its practicability. Walton excluded from

that duty “mass-produced” or other “objects that could

get swept away in the currents of commerce, becoming

impossible to track or difficult to locate.” Id. at 459.

Post-sale duties to warn are limited to potential recipients who “can be identified” and to warnings that “can

be effectively communicated.” Restatement (Third) of

Torts, Products Liability §10(2-3) (1998).

In other analogous situations, courts have likewise resisted the creation of duties that are impossible to satisfy. The Texas Supreme Court refused to

impose on landowners a duty to warn an amorphous

audience of workers for multiple “independent” employers:

[T]here are a number of independent contractors, each employing scores of workmen.

The identities of some of the workmen will

change from day to day. To impose the duty

on the [landowner] to know and to warn

every workman on the project of a dangerous

condition would subject him to an impossible

burden.

Delhi-Taylor Oil Corp. v. Henry, 416 S.W.2d 390, 394

(Tex. 1967).

Similarly, in nuisance law, “when the nuisance

cannot physically be removed, it is unfair to impose a

continuing, impossible to fulfill duty to remove the nuisance.” Russo Farms, Inc. v. Vineland Bd. of Educ., 675

A.2d 1077, 1086 (N.J. 1996). In a negligence per se

case, reading a statute “to create a legally enforceable

duty . . . to protect all children from child abuse” was

rejected because “[s]uch a duty would be impossible to

perform.” Owens v. Garfield, 784 P.2d 1187, 1191 (Utah

1989). See Oddo v. Queens Vill. Comm. for Mental

Health, 71 N.E.3d 946, 949 (N.Y. 2017) (no liability for

injuries caused by persons after discharge from defendant’s care; “it is difficult, if not impossible, to determine when [such a duty] would end”); Rhodes v. Ill.

Cent. Gulf R.R., 665 N.E.2d 1260, 1271 (Ill. 1996) (“the

impracticality of imposing a legal duty to rescue between parties who stand in no special relationship to

each other would leave us hesitant to do so”).

Because respondents’ postulated duty to warn

would run from a large number of defendants to an unlimited number of persons unknown to those defendants, and for an unlimited amount of time, that duty is

effectively incapable of performance. Rather, respondents are inviting the Court to impose absolute liability

for asbestos exposure upon manufacturers that, on the

undisputed record, did not even make any product that

exposed respondents’ decedents to asbestos. Absolute

liability, via an impossible duty, is not a recognized basis for product liability; therefore, respondents’ arguments to recognize such liability in maritime law are

not well-taken.

------------------------------------------------------------------

CONCLUSION

“[I]n the realm of domestic law . . . this Court has

recently and repeatedly said that a decision to create a

private right of action is one better left to legislative

judgment in the great majority of cases.” Jesner v. Arab

Bank, PLC, 138 S.Ct. 1386, 1402 (2018) (citations and

quotation marks omitted). While the seemingly neverending saga of asbestos litigation continues to “def[y]

customary judicial administration and calls for national legislation,” Ortiz, 527 U.S. at 821, the Court

need not become complicit in its perpetuation. Thus,

the Court should not recognize, in the maritime context, a radical expansion of product liability largely unknown to the common law.

For the foregoing reasons, the decision of the Court

of Appeals for the Third Circuit should be reversed.

Respectfully submitted,

PRODUCT LIABILITY

ADVISORY COUNCIL, INC.

1850 Centennial Park

Drive, Suite 510

Reston, VA 20191

(703) 264-5300

JAMES M. BECK

Counsel of Record

REED SMITH LLP

1717 Arch St., Suite 3100

Philadelphia, PA 19103

(215) 851-8168

jmbeck@reedsmith.com

Counsel for Amicus Curiae

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.