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 briefAug 24, 2018

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No. 17-1104

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In The

Supreme Court of the United States

-----------------------------------------------------------------AIR AND LIQUID SYSTEMS CORP., ET AL.,

Petitioners,

ROBERTA G. DEVRIES, ADMINISTRATRIX OF

THE ESTATE OF JOHN B. DEVRIES, DECEASED,

AND WIDOW IN HER OWN RIGHT, ET AL.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

United States Court Of Appeals

For The Third Circuit

-----------------------------------------------------------------AMICI CURIAE BRIEF ON BEHALF OF

MULTIPLE VETERANS ORGANIZATIONS

IN SUPPORT OF RESPONDENTS

-----------------------------------------------------------------CHRISTIAN HARTLEY

Counsel of Record

MAUNE RAICHLE HARTLEY

FRENCH & MUDD, LLC

1015 Locust St.

St. Louis, MO 63101

Phone: (314) 241-2003

chartley@mrhfmlaw.com

AUGUST 2018

Counsel for Amici Curiae

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

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .........................

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

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

II.

MARITIME LAW HAS HISTORICALLY

PROVIDED SAILORS WITH SPECIAL

SOLICITUDE WHICH DEMANDS THE

RECOGNITION OF A DUTY ON PETITIONERS IN THIS CASE .........................

PETITIONERS HAD A DUTY TO WARN

OF THE FORESEEABLE USE OF THEIR

ASBESTOS-CONTAINING PRODUCTS

WHEN THEY KNEW SUCH USE WOULD

EXPOSE U.S. NAVY SAILORS TO ASBESTOS ............................................................... 13

A. It was the use of Petitioners’ fully functional products – including the integral

asbestos wear parts – that caused Respondents harm and triggered a duty to

warn ..................................................... 16

B. Petitioners had a duty to warn because

they were in the best position to prevent

the harm and could have easily warned

U.S. Navy sailors of the danger ............. 20

C. Upholding the Third Circuit’s narrow

finding of duty on the part of equipment

manufacturers will not lead to Petitioners’ dystopian future of rampant liability and superfluous warnings ............... 23

TABLE OF CONTENTS – Continued

Page

III.

MARITIME LAW COMPELS THE ADOPTION OF THE NATIONAL TREND RECOGNIZING A DUTY TO WARN AGAINST

FORESEEABLE ASBESTOS EXPOSURE

INCUMBENT IN THE ROUTINE AND

NECESSARY REPAIR OF MANUFACTURERS’ PRODUCTS ............................... 26

IV.

ALLOWING PETITIONERS TO ESCAPE

LIABILITY FOR THEIR ASBESTOSCONTAINING PRODUCTS WOULD

PRECLUDE U.S. SAILORS FROM OBTAINING COMPLETE REDRESS FOR THEIR

WRONGFULLY-CAUSED INJURIES ....... 30

A. Precluding claims against Petitioners

would eviscerate the tort remedy veterans have had against negligent equipment manufacturers for decades .......... 31

B. Neither the asbestos bankruptcy trust

system nor the VA benefits system

provides adequate compensation for

the preventable suffering and death of

those veterans exposed to Petitioners’

asbestos ................................................. 33

C. Neither the VA nor the bankruptcy

trust system fulfills the foundational

product liability tenet of deterrence

that can only be provided by the civil

justice system ....................................... 37

CONCLUSION..................................................... 38

iii

TABLE OF CONTENTS – Continued

Page

APPENDIX

Letter to Mr. G. Hiner from William J. Taylor,

M.D., General Electric (January 23, 1979)..... App. 1

Excerpts from Responses of Defendant Buffalo

Pumps, Inc. to Plaintiffs’ Standard Interrogatories, Superior Court of the State of California, in and for the County of Los Angeles

(December 27, 2006)........................................ App. 4

Amendment or Solicitation/Modification of Contract Between NAVAL Regional Procurement

Office and Foster Wheeler Corp.................... App. 11

Excerpts from Technical Manual on the Description, Operation and Maintenance Instructions

for the 1200 PSI Main Boiler, Foster Wheeler

Corp. (May 15, 1980) ..................................... App. 21

TABLE OF AUTHORITIES

Page

CASES

Appalachian Ins. Co. v. General Elec. Co., 863

N.E.2d 994 (N.Y. 2007) ............................................31

Atlantic Sounding Co., Inc. v. Townsend, 557

U.S. 404 (2009) .................................................. 37, 38

Borel v. Fibreboard Paper Prods. Corp., 493 F.2d

1076 (5th Cir. 1973) .................................................10

Boyle v. United Technologies Corp., 487 U.S. 500

(1988) .......................................................................11

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

(Wash. 2008) ...................................................... 28, 29

Chandris, Inc. v. Latsis, 515 U.S. 347 (1995)................7

Chesher v. 3M Co., 234 F.Supp.3d 693 (D.S.C.

2017) .................................................................. 26, 29

Chicano v. General Elec., Co., 2004 WL 2250990

(E.D. Pa. 2004) .........................................................17

Daigle v. Point Landing, Inc., 616 F.2d 825 (5th

Cir. 1980) ............................................................. 7, 14

East River Steamship Corp., 476 U.S. 858

(1986) ............................................................... passim

Exxon Shipping Co. v. Baker, 554 U.S. 471

(2008) .......................................................................37

Harden v. Grodon, 11 F.Cas. 480 (D. Me. 1823) ...........6

Holdren v. Buffalo Pumps, Inc., 614 F.Supp.2d

129 (D. Mass 2009) ..................................................12

TABLE OF AUTHORITIES – Continued

Page

In re Hawaii Fed. Asbestos Cases, 665 F.Supp.

1454 (D. Haw. 1986) ................................................31

In re New York City Asbestos Litig. (Dummitt),

59 N.E.3d 458 (N.Y. 2016) ....................... 9, 21, 26, 27

Kaiser v. Armstrong World Ind., Inc., 678 F.Supp.

29 (D.P.R. 1987) .......................................................31

Kosmynka v. Polaris Ind., Inc., 462 F.3d 74 (2d

Cir. 2006) .................................................................19

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

1069 (Wash. 2012) ...................................................29

Mack v. General Elec. Co., 896 F.Supp.2d 333

(E.D. Pa. 2012) .........................................................14

MacPherson v. Buick Motor Co., 111 N.E. 1050

(N.Y. 1916) ...............................................................13

Mavroudis v. Pittsburgh-Corning Corp., 935

P.2d 684 (Wash. Ct. App. 1997) ...............................33

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

(Md. 2015) .................................................... 21, 27, 28

McKenzie v. A.W. Chesterton Co., 373 P.3d 150

(Or. Ct. App. 2016) ...................................................29

Miles v. Apex Marine Corp., 498 U.S. 19 (1990) .........29

Miranda v. Abex Corp., 2008 WL 4778886

(S.D.N.Y. 2008) ........................................................12

Moragne v. States Marine Lines, Inc., 398 U.S.

375 (1970) .............................................................. 6, 7

Norfolk Shipbuilding & Drydock Corp. v. Garris,

532 U.S. 811 (2001) ...................................................7

O’Neil v. Crane Co., 266 P.3d 987 (Cal. 2012) ............29

TABLE OF AUTHORITIES – Continued

Page

Piccirelli v. Johns-Manville Sales Corp., 128

A.D.2d 762 (N.Y. App. Div. 1987) ............................31

Poage v. Crane Co., 523 S.W.3d 496 (Mo. Ct. App.

2017) ............................................................ 21, 25, 29

Pope & Talbot v. Hawn, 346 U.S. 406 (1953) .......... 7, 11

Quirin v. Lorrillard Tobacco Co., 17 F.Supp.3d

760 (N.D. Ill. 2014) ................................ 14, 15, 17, 22

Saratoga Fishing Co. v. J.M. Martinac & Co., 520

U.S. 875 (1997) .................................................. 14, 18

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

2008) ........................................................................29

Summers v. Tice, 199 P.2d 1 (Cal. 1948) ....................15

Swogger v. Waterman S.S. Corp., 518 N.Y.S.2d

715 (N.Y. App. Div. 1987) ...........................................6

The Lottawana, 88 U.S. 558 (1874) ........................ 6, 26

Whelan v. Armstrong Int’l, Inc., 2018 WL

3716036 (N.J. Sup. Ct. 2018) ............................. 14, 26

Wible v. Keene Corp., 1987 WL 15833 (E.D. Pa.

1987) ........................................................................31

Willis v. Buffalo Pumps, Inc., 34 F.Supp.3d 1117

(S.D. Cal. 2014) ........................................................29

Wolfe v. Ford Motor Co., 376 N.E.2d 143 (D.

Mass. 1978) ..............................................................25

vii

TABLE OF AUTHORITIES – Continued

Page

Woo v. General Elec. Co., 393 P.3d 869 (Wash. Ct.

App. 2017) ...................................................... 9, 15, 29

Woodling v. Garret Corp., 813 F.2d 543 (2d Cir.

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

OTHER AUTHORITIES

Rules for the Regulation of the Navy of the

United Colonies of North-America, Nov. 28,

1775 ...........................................................................6

38 U.S.C. § 1311(a)(1) .................................................36

Restatement (Second) of Torts § 402A

(1965) ........................................................... 14, 15, 17

Alani Golanski, When Sellers of “Safe” Products

Turn Ostrich in Relation to Dangerous PostSale Components, 39 Sw. L. Rev. 69 (2009) ............19

J.R. Millette, et al., Asbestos-Containing Sheet

Gaskets and Packing, in Sourcebook on Asbestos Diseases, Vol. 12. Asbestos Health Risks

153-188 (1996) .........................................................19

Owens Corning/Fibreboard Asbestos Personal

Injury Trust Distribution Procedures (Dec. 2,

2015) ........................................................................34

Notice of Current Payment Percentage, Owens

Corning/Fibreboard Asbestos Personal Injury

Trust (Aug. 8, 2017) ................................................34

Manville Personal Injury Settlement Trust Distribution Process (Jan. 2012) ..................................35

viii

TABLE OF AUTHORITIES – Continued

Page

Manville Personal Injury Settlement Trust Pro

Rata Announcement (Nov. 8, 2016) ........................35

Hon. Mark Davidson, et al., Asbestos Bankruptcy Trusts and Their Impact on the Tort

System, 7 J.L. Econ. & Pol’y 281 (2010) ..................36

INTEREST OF AMICI CURIAE1

Amici are organizations that advocate for the

rights and interests of those who served in the United

States Navy. These organizations are comprised of U.S.

Navy veterans who served aboard submarines, destroyers, aircraft carriers and ships to protect American interests at home and abroad. Many of Amici’s

members were exposed to asbestos-containing equipment during their service. As a result, Amici have a

significant interest in ensuring maritime law provides

access to justice for those veterans who were injured

by asbestos-containing products and equipment.

The Retired Enlisted Association (“TREA”) is a

501(c)(19) national organization comprised of retired

enlisted military men and women from all branches of

the U.S. military. TREA has thirty-six active chapters

in the United States and Puerto Rico. Military Veterans Advocacy is a non-profit 501(c)(3) organization

with over 10,000 followers that works to protect the

rights and benefits of current and former military servicemen. The Blue Water Navy Vietnam Veterans

Association is a non-profit 501(c)(3) organization comprised of 800 members and 3500 followers that supports veterans of all wars and advocates on behalf of

Pursuant to Supreme Court Rule 37, all parties received

timely notice of Amici’s intent to file and consented to the filing of

this brief. Amici state that no party’s counsel authored the brief

in whole or in part; no party’s counsel contributed money that was

intended to fund preparing or submitting the brief; and no person

– other than Amici and their counsel – contributed money intended to fund preparing or submitting the brief.

veterans injured during their service. The Hamilton

County Veterans Association is a 501(c)(3) organization with hundreds of members that was created to

provide support and advocacy for military personnel

and their families.

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

SUMMARY OF ARGUMENT

For as long as maritime law has existed in the

United States, American sailors have relied on it for

protection from harm. The Third Circuit, acknowledging admiralty’s special solicitude for sailors, correctly

recognized a duty on manufacturers whose products –

used as intended – harmed American sailors. This

Court should reinforce maritime law’s protective underpinnings by upholding the opinion below.

Under maritime law, Petitioners2 had a duty to

warn of the foreseeable use of their asbestos-containing products since they knew such use would endanger

the lives of U.S. Navy sailors. Petitioners foresaw the

asbestos hazard inherent in the routine repair and

maintenance of their products. Petitioners specified asbestos use, knew its application was certain, and often

installed the initial asbestos components prior to delivery. At the time of Mr. DeVries’ service, many of Petitioners’ products required asbestos to function as

designed in the specific high-temperature, high-pressure

systems at issue. It was this routine, intended and

References to “Petitioners” include General Electric Company who filed a separate brief on July 9, 2018.

synergistic use of Petitioners’ products – including the

necessary asbestos wear parts Petitioners knew were

dangerous – that triggered Petitioners’ duty to warn.

A simple mask could have protected Respondents

from the harm caused by asbestos. Mr. DeVries testified he would have worn a mask if he had known using

Petitioners’ products would kill him. But he did not

wear respiratory protection because Petitioners never

warned him. The jurisdictional trend across the country holds manufacturers accountable for this negligent

failure to warn. In New York, Maryland and numerous

other states, U.S. veterans would be entitled to compensation in this case. Refusing Respondents the same

redress here would undermine one of maritime law’s

central concerns: uniformity.

Petitioners attempt to escape their unremarkable

duty to warn their products’ users by cunningly redefining just what those products are. Instead of the fully

functional products they advertised and sold to the

Navy, Petitioners seek to narrow this Court’s focus to

skeletal “bare metal” components. But Petitioners’ myopic definition of a “product” conflicts with both traditional notions of product liability law and common

sense. Component parts like the foreseen or specified

asbestos wear parts constitute part of the overall product, especially when they are necessary for the product’s intended use. Moreover, Petitioners were in the

best position to warn U.S. sailors of the foreseen hazards of their asbestos-containing products because

they manufactured the static, longstanding equipment

that synergistically worked with asbestos components

to create those hazards. In fact, many equipment manufacturers (albeit after the timeframe at issue in this

case) actually did warn sailors of the hazards of asbestos exposure attendant with the required repair – including Petitioners. See App. 4-10; 21-30. Despite all of

Petitioners’ post-hoc claims of impotence, they cannot

dispute that they ultimately warned about the hazards

of asbestos lurking in their products – just not early

enough to save Mr. DeVries and Mr. McAfee.

Affirming the Third Circuit’s narrow finding of

duty on the part of equipment manufacturers will not

lead to Petitioners’ dystopian future of rampant liability and superfluous warning. The rule adopted by the

court below does not require manufacturers to warn

about products that could potentially be used in conjunction with their goods. Rather, the test requires

foreseeability of actual use of lethal substances, coupled

with some further action beyond mere knowledge of

such use. Petitioners’ parade of horribles does not withstand scrutiny under this common-sense analysis.

Allowing Petitioners to escape liability for foreseeable harm caused by their product designs would preclude American veterans from obtaining complete

relief and provide a concomitant windfall to manufacturers historically held to account by juries assessing

those manufacturers’ actions. Reversal would eviscerate the tort remedy historically available to these sailors. Despite Petitioners’ attempt to rewrite history

as it pertains to their culpability and their liability,

Petitioners have been active defendants in asbestos

litigation for decades, including in the very type of circumstances before this Court.

Further, neither the asbestos bankruptcy trust

system nor the U.S. veterans’ benefit system provides

adequate compensation for the suffering and death of

sailors exposed to asbestos. Other commercial entities

and the public fisc need not be required to subsidize

tortfeasors’ negligent conduct. And neither system provides meaningful compensation to sailors suffering

from asbestos-caused lung cancer.

Most importantly, U.S. veterans suffering the consequences of Petitioners’ conduct have an interest in

utilizing American courts to prevent their brethren

sailors from similar harm. Many seaman bring suit to

disincentivize future misconduct despite knowing that

– like Mr. DeVries and Mr. McAfee – they will likely

not live to see their recovery. This last act of service

should not be thwarted to assuage commercial interests.

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

ARGUMENT

MARITIME LAW HAS HISTORICALLY

PROVIDED SAILORS WITH SPECIAL

SOLICITUDE WHICH DEMANDS THE

RECOGNITION OF A DUTY ON PETITIONERS IN THIS CASE.

Maritime law’s special solicitude for sailors demands that Petitioners be held liable for their negligent failure to warn U.S. Navy sailors about the lethal

hazards of asbestos exposure incident to the routine,

intended use of their products. The Third Circuit’s ruling upholds the “humane and liberal character” of admiralty by providing Respondents with a remedy for

their injuries. To allow Petitioners to escape liability

for the death of Mr. DeVries and Mr. McAfee would disregard centuries of maritime jurisprudence and undermine the protective policy heralded by this Court’s

prior admiralty cases.

The founders adopted the traditions and laws of

admiralty as they existed at the time the Constitution

was enacted. See The Lottawana, 88 U.S. 558, 565-66

(1874). Even in 1775, in the so-called “Navy of the

United Colonies of America,” sailors on American ships

relied upon maritime law and traditions to provide

predictability and protection. See Rules for the Regulation of the Navy of the United Colonies of NorthAmerica, Nov. 28, 1775, available at https://www.

history.navy.mil/research/library/online-reading-room/

title-list-alphabetically/r/navy-regulations-17751.html.

The “overall purposes and designs of admiralty” serve

“to protect those men and women who go to sea from

the hazards of that endeavor, over which they have little or no control.” Swogger v. Waterman S.S. Corp., 518

N.Y.S.2d 715, 720 (N.Y. App. Div. 1987).

Justice Story proclaimed admiralty’s bedrock

principle of sailor protection nearly two hundred years

ago in Harden v. Grodon, 11 F.Cas. 480, 485 (D. Me.

1823). Since that time, maritime law has afforded

those who brave the treacherous seas “special solicitude” under U.S. law. Moragne v. States Marine Lines,

Inc., 398 U.S. 375, 387 (1970). This Court has calculated that the “heightened legal protections” maritime

law provides sailors is necessary to offset the special

hazards of the sea. Chandris, Inc. v. Latsis, 515 U.S.

347, 354 (1995).

Maritime law has protected sailors from injury

caused by the negligence of tortfeasors for well over a

century. Norfolk Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001). In negligence cases specifically, the “traditional discretion” and flexibility of

maritime law has been contrasted with the “harsh

rule” of common law. Pope & Talbot v. Hawn, 346 U.S.

406, 408-09 (1953). It follows that a general theory of

negligence in admiralty incorporates principles of both

product liability and a duty of care, which includes

liability imposed for a manufacturer’s failure to warn

normal product users of harm that is reasonably foreseeable. East River Steamship Corp., 476 U.S. 858, 859

(1986); Daigle v. Point Landing, Inc., 616 F.2d 825, 827

(5th Cir. 1980). This Court has reasoned that “it better

becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy,

when not required to withhold it by established and

inflexible rules.” Moragne, 398 U.S. at 387 (quoting

Chief Justice Chase in The Sea Gull, 21 F. Cas. 909,

910 (No. 12,578) (CC Md. 1865)).

The historic “special solicitude” afforded seamen

by this Court’s maritime jurisprudence demands

reinforcing a manufacturer’s duty to warn in this

case. Here, it was certainly foreseeable that Petitioners’ products would expose Mr. DeVries and Mr.

McAfee to lethal asbestos during routine maintenance.

Petitioners sold their products to the Navy for use in

high-heat applications where asbestos was necessary

for them to properly function. DJA 420.3 If these manufacturers had simply installed a warning on, or supplied a warning with, their products, Respondents

would have worn respiratory protection during the required maintenance and their injuries would have

been prevented. JA 326-27.

It is undisputed that Petitioners either specified

asbestos wear parts for their machinery or knew asbestos was necessary for their products to work as

designed. Buffalo Pumps, for example, specifically designed its pumps to include asbestos components until

the early 1980s; its engineering drawings regularly

specified asbestos gaskets. DJA 375-404; 406-08. Buffalo’s corporate representative testified that suitable

non-asbestos replacements for their pumps did not exist until that time. Id. Foster Wheeler similarly admits

it knew asbestos products were used on its equipment

based on Foster Wheeler-approved standards and

maintained a bound book of insulation standards for

its equipment. JA 393-96; DJA 1159-63. Some Petitioners even provided shipbuilders with spare replacement

parts. DJA 697. In the DeVries case, for example, Foster Wheeler provided hundreds of replacement gaskets

for Mr. DeVries’ ship. Id. at 1151-53.

“DJA” refers to the Joint Appendix filed with the Third Circuit in the DeVries appeal (No. 15-1278).

Other Petitioners regularly specified asbestos on

their products. Westinghouse specified the asbestos insulation used on its turbines “in the field” and demanded that “[o]nly insulation materials approved by

Westinghouse will be permitted on Westinghouse turbines and piping.” DJA 643-45.4 On marine turbines,

like those encountered by Mr. DeVries, Westinghouse

required that asbestos-containing gaskets be used as

replacement parts. DJA 684. Similarly, General Electric admits that before the 1970s, asbestos-containing

insulation, packing and gaskets were necessary for

its steam turbines to function as designed. Woo v. General Elec. Co., 393 P.3d 869, 877-78 (Wash. Ct. App.

2017). In this regard, the equipment manufacturers,

rather than the Navy, were the experts in how their

equipment best functioned. The notion that the Navy

somehow knew better than the equipment experts

what specific material should be used with this equipment is a false one. The Navy’s specifications were

guided, first and foremost, by the manufacturers’ own

specifications and uniform business practice to use asbestos in this equipment in high-temperature, highpressure settings. See In re New York City Asbestos

Litig. (Dummitt), 59 N.E.3d 458, 464 (N.Y. 2016) (“In

the acknowledgements section [of ‘Naval Machinery,’]

the manual stated that ‘valuable assistance’ in the revision of the manual ‘was rendered by the manufacturers named herewith’ and that ‘[m]any of the figures in

From the record, it appears Westinghouse also instructed

those workers in the field on the proper way to install asbestos

insulation and pipe covering on its turbines. DJA 648-62.

the book were made from illustrations furnished by

these manufacturers.’ ”).

A duty to warn sounding in negligence under maritime law should not turn, as Petitioners advance, on

the fortuitous nature of whether Mr. DeVries or Mr.

McAfee was the first person to repair this equipment,

or the second, or the twentieth; it should turn on

whether a danger was attendant to the use of the

equipment as designed.

Even more damningly, Petitioners knew of the

hazards of asbestos well before Mr. DeVries or Mr.

McAfee ever set foot on their respective ships.5 Borel v.

Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1083, n.7

(5th Cir. 1973) (by the mid-1930s hazards of asbestos

universally accepted). For the negligible cost of a

printed warning, Petitioners could have alerted them

to wear respiratory protection, thereby preventing

their cancers. If admiralty affords Navy sailors any

“solicitude” at all, surely it provides (as tort law does

for land-based workers) the right to a basic warning

against exposure of lethal substances. Id. at 1093 (once

asbestos dangers become foreseeable, duty to warn

attaches). Maritime’s protective underpinnings and

heightened protection for U.S. sailors necessitate a

remedy here.

General Electric’s own doctor inquired of the company:

“how do we justify our use [of asbestos] before 1972 when the suggestion that a relationship existed between asbestos and cancer

was made in 1935 and confirmed in 1955?” Jan. 23, 1979 letter

from W. Taylor, M.D., App. 1-3.

Petitioners and their amici argue this Court

should stray from the centuries-old foundation of maritime law: the principle that sailors should enjoy special protections. Their argument represents a

radical departure from a doctrine that has been consistently recognized and enforced by this Court for

decades. No authority provides for such drastic departure. Upending admiralty’s central tenet would undermine the reliance thousands of sailors have upon

maritime law’s concern for their safety – effectively

breaking a promise the United States has made to

those willing to weather the sea in her service.

Moreover, the fundamental policy reasons why

maritime law provided sailors this special solicitude

still exist today. Despite the last century’s technological advances, sailors at sea are still isolated in a way

land-based workers are not. Pope & Talbot, 346 U.S. at

424 (citing “cramped quarters, long hours and complete subjection to the will of the master” as traditional

maritime conditions). It is still impossible to escape a

surface ship or submarine deployed for service in the

middle of the ocean. This is purely a matter of geography. And Navy sailors – especially – still have little

control over their safety while at sea.6 Sailors’ sleeping

Petitioners try to blame the U.S. Navy for Respondents’ asbestos exposure in a backdoor attempt to escape liability via the

Government Contractor Defense under Boyle v. United Technologies Corp., 487 U.S. 500 (1988). This issue is not before the Court

as it was not ruled on by any lower court in this case. Regardless,

the Navy relied upon the thousands of product manufacturers to

provide any warning necessary for the safe use of their product.

DJA 417-21; 703; 743 (navy specification requiring contractors

quarters are still cramped. Their conditions are still

difficult. They still “swab the decks” and spend hours

in cramped spaces below deck. The hours are still long

and sailors are still estranged from their families for

months on end. These dangers have always been inherent in the work of a sailor; the “special solicitude” constructed to counterbalance those dangers must remain

intact.

Nor do the other considerations of maritime law

outweigh the overarching special solicitude at issue in

these cases. In arguing the contrary, Petitioners and

their amici attempt to evade the straightforward duty

owed to Mr. DeVries and Mr. McAfee by littering their

briefs with irrelevant references to “profit” and “increase[d] equipment prices.” Pet. Br. at 14; Br. of Amicus Curiae Prod. Liability Advisory Council, Inc. at 5.

They cite language from East River Steamship regarding “business behavior” and “increased cost.” See Pet.

Br. at 52; Br. of Amicus Curiae Chamber of Commerce

of the United States of America, et al., at 3. But the

policy determination Petitioners ask this Court to

make should not be whitewashed behind corporate

jargon and abstract economic models; East River

provide safety precautions in instruction books). Holdren v. Buffalo Pumps, Inc., 614 F.Supp.2d 129, 145 (D. Mass. 2009) (military specification required manufacturers to prepare technical

manuals). Also, Petitioners’ argument that the military exercised

direct control to prohibit warnings regarding asbestos has been

rejected by multiple courts across the country. Id. at 146 (“Certainly, [the Navy specifications] do not exclude asbestos warnings

on their face.”); Miranda v. Abex Corp., 2008 WL 4778886

(S.D.N.Y. 2008).

Steamship was about purely economic losses between

corporate entities, not lethal harm to sailors.

Indeed, East River Steamship counsels heavily

against the policy windfall Petitioners advance here.

This Court recognized that if a “product injures only

itself the reasons for imposing a tort duty are weak,”

but that physical injuries bring “overwhelming misfortune” to a victim. 476 U.S. at 871 (citations omitted).

This case concerns – as the Third Circuit recognized – the heightened need for a manufacturer’s duty

when the injury caused by its products involves not

“repair costs and lost profits,” but funeral costs and lost

lives of U.S. servicemen. The question comes down to

this: Is the protection of our Navy sailors worth imposing a duty to warn on the part of product manufacturers when it is foreseeable that their products will

expose sailors to a deadly carcinogen during routine

repair? The answer can only be an unqualified yes.

II.

PETITIONERS HAD A DUTY TO WARN OF

THE FORESEEABLE USE OF THEIR ASBESTOS-CONTAINING PRODUCTS WHEN

THEY KNEW SUCH USE WOULD EXPOSE

U.S. NAVY SAILORS TO ASBESTOS.

Over one hundred years ago, Justice Cardozo held

“the presence of a known danger, attendant upon a

known use, makes vigilance a duty.” MacPherson v.

Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916). In

admiralty, a duty of care – which depends on a defendant’s knowledge of risk – may include a failure to warn

the plaintiff of harm that is reasonably foreseeable.

Daigle, 616 F.2d at 827. Black letter law, whether in

admiralty or common law, provides for a duty in this

case. Whelan v. Armstrong Int’l, Inc., 2018 WL 3716036,

*12 (N.J. Sup. Ct. 2018) (acknowledging “recent trend”

to hold manufacturers liable for replacement parts in

asbestos litigation).

Maritime law’s adoption of Restatement (Second)

of Torts § 402A (1965) reiterates the approval of failure-to-warn principles when foreseeable harm would

come from regular use of marine products. Saratoga

Fishing Co. v. J.M. Martinac & Co., 520 U.S. 875, 879

(1997); Mack v. General Elec. Co., 896 F.Supp.2d 333,

n. 2 (E.D. Pa. 2012). Specifically, Comment h of § 402A

requires a manufacturer to warn when, as here, “he

has reason to anticipate that danger may result from

a particular use” of its product. Restatement (Second)

of Torts § 402A, Cmt h.

Courts applying maritime law have recognized the

specific duty at issue here. In Quirin v. Lorrillard

Tobacco Co., 17 F.Supp.3d 760 (N.D. Ill. 2014), the

plaintiff brought suit against Crane Co. for her husband’s exposure to asbestos while he worked on Crane

valves during his naval service. Id. at 763. Crane

sought summary judgment, alleging its valves were

“bare metal” that were not pre-insulated. Id. at 764,

768-69. But the Northern District of Illinois applied

maritime law and denied Crane’s motion.

The so-called “bare metal” defense, the court reasoned, will not provide shelter for failing to warn of

foreseeable danger intrinsic in the use and repair of

the manufacturer’s product:

a duty may attach where the defendant

manufactured a product that, by necessity,

contained asbestos components, where the

asbestos-containing material was essential to

the proper functioning of the defendant’s

product, and where the asbestos-containing

material would necessarily be replaced by

other asbestos-containing material, whether

supplied by the original manufacturer or

someone else.

Id. at 769-70. Because some, if not all, of Crane’s valves

needed asbestos-containing components to function

properly in the Navy’s high-heat applications, the duty

to warn attached. Id. at 770.

As discussed supra, Petitioners in this case foresaw the danger sailors like Mr. DeVries and Mr.

McAfee faced during regular, anticipated use of their

products in the high-heat applications required on U.S.

Navy ships. Woo, 393 P.3d at 878-79; DJA 491. Maritime law, via incorporation of the Second Restatement,

lays on Petitioners a duty to warn users about this

known hazard and prevent the harm that befell Respondents. By failing to discharge that duty, Petitioners contributed to the death of these veterans.7 The

Petitioners’ effort to escape liability for their part in this

tragedy by foisting blame upon the Navy or the component part

manufacturer is shameful and legally improper. As any first year

law student knows, there may be multiple proximate causes of an

injury, and multiple parties may be liable for coexistent negligent

conduct. See, e.g., Summers v. Tice, 199 P.2d 1 (Cal. 1948). Any

Third Circuit properly applied well-worn rules of maritime negligence when it found that Respondents’

claims must be allowed to proceed to trial.

A. It was the use of Petitioners’ fully functional products – including the integral

asbestos wear parts – that caused Respondents harm and triggered a duty

to warn.

Petitioners attempt to sidestep their common law

duty to warn by redefining the product at issue. Instead of the fully functional product they advertised to

the Navy, they now rebrand themselves in an attempt

to limit their liability, asserting they only should be responsible for the skeletal shell – i.e., the “bare metal”

parts – inevitably (and at Petitioners’ behest) used

with consumable asbestos parts. Setting aside for a

moment the factual question of whether any Petitioner

actually provided mere metal fixtures, Petitioners’ myopic definition of what constitutes a “product” conflicts

with both traditional notions of product liability law

and common sense.

Component parts like those asbestos wear parts

foreseen or specified by Petitioners for use with their

other entities’ failure to warn, if proven, has no bearing on

whether Petitioner product manufacturers also had a duty to

warn. After all, “the fact that the intervening actor, such as an

employer who controls defective machinery, knows of the dangers

and merely fails to warn or otherwise protect the plaintiff does

not of itself relieve the original actor from liability.” Woodling v.

Garret Corp., 813 F.2d 543, 556 (2d Cir. 1987).

naval equipment constitute part of the overall product

because they were deemed necessary for the product’s

routine and normal function. Restatement (Second)

§ 402A, Cmt h; Quirin, 17 F.Supp.3d at 769-70. It is unimaginable that Buffalo Pumps advertised a disassembled metal shell to the Navy. It advertised a fully

functional pump – which only worked once assembled

as Buffalo intended. Similarly, a Westinghouse turbine

would have been useless to the Navy unless it could

function properly, which required asbestos insulation.

Westinghouse’s specification of asbestos insulation is

an implicit admission that the product was not complete or operational until assembled. DJA 643-45. The

fact that the specified assembly took place on the ship

instead of at the factory does not lead to the conclusion

that the “product” was the fictional amalgam of individually delivered subcomponents.8 As one judge recognized, the “products from which [plaintiff ] inhaled

asbestos fibers are properly understood to be the turbines covered with asbestos-containing insulation, as

fully functional units.” Chicano v. General Elec., Co.,

2004 WL 2250990, *3 (E.D. Pa. 2004).

Applying Petitioners’ flawed logic to everyday

products highlights that logic’s absurdity. For example,

no one would argue that a refillable ink pen consists of

This is particularly true when a Petitioner provided or

sold asbestos-containing component parts to the Navy. Foster

Wheeler, for example, provided the USS Turner with nearly one

thousand replacement gaskets. DJA 1151-53. Westinghouse also

sold asbestos-containing replacement parts, such as asbestos gaskets and “ancillary insulation” for its steam and gas turbines to

customers. DJA 667-69.

two products: the pen “shell” and the refillable ink required for it to write. No – the product advertised to

the customer is a fully functioning ink pen. The purpose of the pen is to write. The manufacturer knows

the pen requires ink or it will be useless.

Similarly, the gas in an automobile’s tank is not a

separate product that can be blamed if the car is negligently designed to explode on impact. While it was

technically the gas that caught fire, it was the negligent car design that caused the explosion. The driver

purchased a fully functioning automobile, not its separate components. This is true the first time the driver

fills up the gas tank and it is true the hundredth time.9

Nor could the car be labeled as merely a “bare metal”

product if it had been originally sold without any gas.

For manufacturers that sold the Navy products

containing pre-installed internal asbestos components,

Petitioners’ position is even more far-fetched. Those

Petitioners admit asbestos components were installed

during initial manufacture and cannot deny they had

a duty to warn the first sailor exposed to their product.10 Pet. Br. at 9; Saratoga Fishing, 520 U.S. at 877

Petitioners admit it would be “absurd if a boater could sue

the seller of marine gasoline” for boating injuries. Pet. Br. at 20.

They fail to explain why U.S. Navy sailors injured by asbestos are

not entitled to the same protections as recreational boaters.

Buffalo Pump’s corporate representative, for example, testified that its pumps were shipped completely assembled. DJA

407. Foster Wheeler also testified that “there were encapsulated

gaskets and tapes on different products that left the factory.” JA

395-96.

(maritime product consists of a good “as built and outfitted by its original manufacturer and sold to an initial user.”) Petitioners are left, then, with the baseless

argument that their duty to warn somehow dissipated

upon the product’s first foreseeable and necessary repair. But they cannot explain why the second sailor

working on their product is not protected from the

same hazard from the same product hours later. Tort

law does not support such arbitrary line-drawing. See,

e.g., Alani Golanski, When Sellers of “Safe” Products

Turn Ostrich in Relation to Dangerous Post-Sale Components, 39 Sw. L. Rev. 69 (2009).

Finally, even assuming arguendo some of the products in this case consist of bare metal shells provided

by Petitioners, a duty to warn still attached because

the synergistic use of the metal products with the asbestos-containing components is what created the hazard. Kosmynka v. Polaris Ind., Inc., 462 F.3d 74, 81 (2d

Cir. 2006) (manufacturers have duty to warn against

latent dangers resulting from foreseeable use of their

products). It was not until, for example, an asbestos

gasket was combined with Petitioners’ equipment and

the attendant steam that any danger existed. Intact

asbestos gaskets release only small amounts of asbestos – however, baked-on gaskets that require scraping

release high levels of asbestos for sailors to breathe.

See J.R. Millette, et al., Asbestos-Containing Sheet Gaskets and Packing, in Sourcebook on Asbestos Diseases,

Vol. 12. Asbestos Health Risks 153-88 (1996). The

same is true of the asbestos packing in (and insulation

on) Petitioners’ products. No hazard existed until the

packing became brittle and friable, or the insulation

needed to be torn off of the product for repairs.11 It was

this foreseeable, unavoidable synergistic use of Petitioners’ products with replaceable asbestos wear parts

that created the hazard in this case and triggered their

duty to warn.

B. Petitioners had a duty to warn because

they were in the best position to prevent

the harm and could have easily warned

U.S. Navy sailors of the danger.

A central tenet of maritime product liability and

negligence law provides those in the best position to

prevent the harm bear the duty to warn. East River

Steamship, 476 U.S. at 866 (“public policy demands

that responsibility be fixed wherever it will most effectively reduce the hazards to life and health . . . ”) (citation omitted). Here, Mr. DeVries testified that by the

time he took the packing out of Navy pumps, it had

crumbled so much it “didn’t have something that you

could see writing on.” JA 275-76.

Petitioners, in other words, were in the best position to warn about the asbestos exposure that necessarily resulted from routine maintenance of their

products. Since the asbestos components wore down or

disintegrated when used with this equipment, one of

the only conceivable places a warning about this

Mr. DeVries testified that by the time he pulled the packing out of the pumps, it had disintegrated into “particles” he

breathed in. JA 275-76.

hazard could be located was on Petitioners’ static,

longstanding metal devices. See, e.g., In re New York

City Asbestos Litig. (Dummitt), 50 N.E.3d at 472 (finding the manufacturer of the durable product typically

in the best position to warn).

Petitioners and their amici argue there was no

feasible way to warn sailors of the known asbestos hazards incumbent in the repair of their products. This is

demonstrably false. Petitioners regularly supplied

Navy sailors with relevant information on their products through castings, stampings or tags directly on

the equipment. For example, Buffalo specified its

pumps be marked with a plate containing its name, the

ship number, the size of the pump, various measurements, pressure limits and other information. DJA

394. Westinghouse turbines similarly had nameplates

affixed to the vessel. DJA 687-88. There is no reason

this stamped plate could not have included a warning

regarding asbestos, or the skull and crossbones required by the Navy for poisons. DJA 419.

Petitioners also could have included asbestos

warnings in the instruction manuals they provided the

Navy. After all, the entire purpose of such manuals was

to inform those working on their equipment how to operate, maintain, and repair it. Sailors regularly consulted these manuals. See, e.g., May v. Air & Liquid

Systems Corp., 129 A.3d 984, 987-88 (Md. 2015) (“[Machinist mate] testified that he would go to the log room

and consult the instruction manuals on any piece of

equipment he serviced.”) and Poage v. Crane Co., 523

S.W.3d 496, 512 (Mo. Ct. App. 2017) (Navy sailor

testified he had onboard access to manufacturer’s

equipment manuals for every piece of machinery on

ship). Mr. DeVries even testified in this case that he

was familiar with the equipment manuals and their

specifications. JA 261; DJA 1144. This reliance is why

the Navy required contractors to include any safety

precautions in their manuals. DJA 742-46.

There were numerous ways Petitioners could have

warned Mr. DeVries and Mr. McAfee about the hazards

lurking in their products. One need not even exhaust

the countless ways Petitioners could have warned.

Rather, one can simply look at how equipment manufacturers eventually provided warnings of asbestos

hazards – albeit too late for Respondents. Crane Co.,

for example, supplied sailors with notice its valves

likely contained asbestos gaskets and packing in the

mid-1980s via a permanent warning tag installed on

its product. See Quirin, 17 F.Supp.3d at 765. Other

equipment manufacturers (including Petitioners) included warnings about asbestos in the manuals provided to the Navy.

Buffalo Pumps, for example, admits that in 1987 –

for pumps it sold to the U.S. Navy – it “affixed warning

labels to the pumps containing the customer-supplied

gaskets prior to shipment.” App. 4-10, Buffalo Pumps,

Inc.’s Interrogs. Resp. No. 14, Beauchamp v. AllisChalmers Corp. Prod. Liab. Trust. These warning labels stated “DANGER GASKET MATERIAL CONTAINS ASBESTOS AVOID OPERATIONS TO IT

THAT WILL CREATE DUST CANCER AND LUNG

DISEASE HAZARD.” App. at 9. And Petitioner Foster

Wheeler entered into a contract with the U.S. Navy in

1973 where Foster Wheeler agreed to revise the original manuals it provided to the Navy.12 App. at 11-20.

No later than 1980, Foster Wheeler’s Navy manual included a warning about the hazards of asbestos, calling

asbestos “a major health hazard” and warning against

using asbestos replacement gaskets on its equipment.

App. at 21-30.

Petitioners’ post-hoc claim of impotence rings hollow in light of this evidence; they had every ability to

issue a warning that would have reached sailors like

Mr. DeVries and Mr. McAfee.

C. Upholding the Third Circuit’s narrow

finding of duty on the part of equipment

manufacturers will not lead to Petitioners’ dystopian future of rampant liability and superfluous warnings.

Petitioners and their amici attempt a rhetorical

sleight-of-hand by claiming that the Third Circuit’s

ruling will lead to unchecked liability for manufacturers who fail to warn about any products used in conjunction with theirs. General Electric, for example,

argues if this Court finds a duty in this case, syringe

manufacturers will have to warn of any drugs their syringes inject, or jam manufacturers will have to warn

This contract makes clear the Navy relied on Foster

Wheeler to draft its manuals – going so far as to hold Foster

Wheeler liable for “correct spelling, grammatical and typographical errors . . . ” App. at 20.

of peanut allergies. General Elec.’s Br. at 32 (citations

omitted). Petitioners’ hyperbolic examples only prove

to sharpen the contrast between the Third Circuit’s

narrow rule – applied solely to ship settings involving

high-temperature, high-pressure equipment where the

use of asbestos was inevitable – and the free-for-all liability straw man they have erected.

The Third Circuit did not determine Petitioners

owed users a duty because asbestos components or insulation could potentially be used in conjunction with

their product. Rather, the test requires foreseeability

of actual asbestos use plus some other evidence of affirmative conduct by Petitioners regarding the use of

asbestos, or their knowing failure to warn notwithstanding the practical necessity of the inevitable use of

asbestos components with their products. Op. at 240.

This other conduct could be specification of asbestos,

requirement of asbestos for the proper function of a

product, or inclusion of asbestos in the initial design of

the product. Id. Such a narrow test puts the burden on

plaintiffs to provide substantial evidence of concrete

action above and beyond manufacture of a product that

is foreseeably used in conjunction with a separate, dangerous product. Put differently, the test is not a pure

foreseeability test, but a “foreseeability-plus” test that

serves to create predictability in the law and confine

the duty to very limited circumstances.

Petitioners next argue that finding a duty on the

part of manufacturers to warn about the hazards of

their asbestos products will lead to an overabundance

of warnings – to the point that none would be heeded.

But there can be no excessive warning when what is at

stake is the ultimate injury of death. At issue is not a

paper cut; it is the loss of life. It is well-settled, in this

regard, that the more severe the potential injury, the

more crucial the need for a warning. Wolfe v. Ford Motor Co., 376 N.E.2d 143, 146 (D. Mass. 1978) (forcefulness of warning must be commensurate with the

danger involved). The Navy standards relied on the

same principle.

Moreover, withholding vital health information

from sailors would be akin to treating our military men

and women as children, unable to make measured decisions concerning their own safety. Petitioners are in

no position to determine what warnings sailors would

or would not have followed to protect themselves.13 Indeed, the common law heeding presumption guards

against this self-serving, post-hoc assumption. Poage,

523 S.W.3d at 512 (heeding presumption applied to

Navy veteran’s asbestos action). Such paternalistic

conjecture has no place in American jurisprudence and

certainly cannot govern the duty owed by product manufacturers to the men and women of the armed services.

Mr. DeVries testified that he would have made sure he and

his workers wore protective masks if there had been warnings

about asbestos exposure on Petitioners’ products. JA 326-27.

III. MARITIME LAW COMPELS THE ADOPTION

OF THE NATIONAL TREND RECOGNIZING

A DUTY TO WARN AGAINST FORESEEABLE

ASBESTOS EXPOSURE INCUMBENT IN

THE ROUTINE AND NECESSARY REPAIR

OF MANUFACTURERS’ PRODUCTS.

The national trend in state and federal courts is to

impose liability on equipment manufacturers who

failed to warn of the foreseeable asbestos hazards attendant with the repair of their products. Whelan, 2018

WL 3716036 at *12 (“The recent trend, however, appears skewed towards the imposition of liability on

manufacturers even where the worker’s exposure was

to replacement parts . . . ”). Courts sitting in admiralty

have recognized that the majority view under state law

rejects the so-called “bare metal” defense. Chesher v.

3M Co., 234 F.Supp.3d 693, 708 (D.S.C. 2017). This

Court long ago recognized maritime law’s goal of uniformity among the states. The Lottawanna, 88 U.S. at

566. Admiralty is accordingly an “amalgam” of state

and federal common law. East River Steamship, 476

U.S. at 864-65. This deference to federal and state jurisprudence compels the recognition of a narrow duty

sounding in negligence here.

New York recognized a duty on equipment manufacturers to warn about the inherent dangers of foreseeable asbestos exposure upon repair of their

products in In re New York City Asbestos Litig. (Dummitt), 59 N.E.3d 458 (N.Y. 2016). In Dummitt, a Navy

boiler technician brought suit against Crane Co. and

other equipment manufacturers for asbestos exposure

he sustained during repair and use of their allegedly

bare metal valves and products. Id. at 464-65. Like Mr.

DeVries, Mr. Dummitt consulted manufacturer-provided manuals for the equipment he worked on. Id.

Crane’s valves “could not function as intended in a

high-pressure, high-temperature steam pipe system

without asbestos-based gaskets, packing and insulation.” Id. at 480. Like here, it was the synergistic use of

these asbestos components with Crane’s product that

caused the hazardous asbestos exposure. Id. at 483.

The New York court therefore held that an equipment

manufacturer has a duty to warn of the danger arising

from the reasonably foreseeable use of its product in

combination with a third-party product which, “as a

matter of design, mechanics or economic necessity, is

necessary to enable the manufacturer’s product to

function as intended.” Id. at 463. This “foreseeabilityplus” duty provides both predictability in its application and an inherent limit in the scope of a manufacturer’s liability in these scenarios. Significantly, just as

is at issue here, the Dummitt duty sounded in negligence rather than true strict products liability.

Maryland similarly recognized an equipment

manufacturer’s duty to warn when routine maintenance of its product exposed sailors to asbestos. In May

v. Air & Liquid Systems Corp., 129 A.3d 984, 986 (Md.

2015), the widow of Philip May, a naval machinist,

brought suit against the manufacturers of heavy-duty

pumps that required asbestos-containing replacement

parts. Mr. May testified that he would consult the instruction manuals for the equipment he serviced and

that he was provided no warning about asbestos exposure from the defendants’ pumps. Id. at 986-87. The

Maryland court determined the “product” at issue was

not the expendable component parts, but was the complete and functional pumps. Id. at 1000. The court held

that equipment manufacturers have a duty to warn in

the limited circumstances when “(1) a manufacturer’s

product contains asbestos components, and no safer

material is available; (2) asbestos is a critical part of

the pump sold by the manufacturer; (3) periodic

maintenance involving handling asbestos gaskets and

packing is required; and (4) the manufacturer knows

or should know of the risks from exposure to asbestos.”

Id. at 994. Like Dummitt, this “foreseeability-plus”

duty provides both predictability in its application and

an inherent limit in the scope of a manufacturer’s liability.

In striking contrast, the state law upon which Petitioners rely was decided upon true strict liability

principles rather than negligence. Braaten v. Saberhagen Holdings, 198 P.3d 493, n.6 (Wash. 2008) (contrasting Washington’s pure strict liability approach

with other jurisdictions “that apply a more negligentlike approach to failure-to-warn claims”). And even in

those states, courts have retreated from such a harsh,

absolute rule by subsequently imposing a duty on

equipment manufacturers in asbestos litigation. As

the doctrinal underpinnings of this component part liability has evolved, even these states allow for failureto-warn liability when the seller specified asbestos

components. For example, Petitioners and their amici

cling tight to Simonetta and Braaten, two early “bare

metal” asbestos cases out of Washington. Pet.’s Br. at

29, citing Braaten, 198 P.3d 493, and General Elec. Br.

at 21, citing Simonetta v. Viad Corp., 197 P.3d 127

(Wash. 2008). But they surreptitiously omit the Washington Supreme Court’s en banc opinion clarifying that

Simonetta and Braaten did not alter the common law

rule to warn of foreseeable asbestos exposure. Macias

v. Saberhagen Holdings, Inc., 282 P.3d 1069, 1076

(Wash. 2012) (“Critically, for present purposes, the

products involved in the Simonetta and Braaten cases

did not require that asbestos be used in conjunction

with their products, nor were they specifically designed

to be used with asbestos.”); see also Woo, 393 P.3d 869.

Similarly, the California Supreme Court’s opinion in

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

tempered by subsequent opinions interpreting O’Neil

to allow replacement part liability in certain cases.

Willis v. Buffalo Pumps, Inc., 34 F.Supp.3d 1117, 1123

(S.D. Cal. 2014).

Historically this Court has refused to utilize its

admiralty powers to create a rule that is disfavored in

numerous states. Miles v. Apex Marine Corp., 498 U.S.

19, 36 (1990). It should likewise refuse to do so here.

Courts across the country hold equipment manufacturers responsible in negligence when they specified, foresaw or required asbestos components in their products.

See, e.g., Poage, 523 S.W.3d 496; McKenzie v. A.W. Chesterton Co., 373 P.3d 150 (Or. Ct. App. 2016); Chesher,

234 F.Supp.3d 693. Sailors in New York, Maryland and

states across the country would rightly be entitled to

recover under the facts in this case. It defies logic for

Petitioners to be shielded from liability for identical

conduct here.

IV. ALLOWING PETITIONERS TO ESCAPE

LIABILITY FOR THEIR ASBESTOSCONTAINING PRODUCTS WOULD PRECLUDE U.S. SAILORS FROM OBTAINING

COMPLETE REDRESS FOR THEIR WRONGFULLY-CAUSED INJURIES.

A reversal in this case would be a windfall for

manufacturers of dangerous products that injured

U.S. sailors for decades. But more importantly, it would

unjustifiably withhold from America’s veterans their

opportunity to seek justice in America’s courts. Petitioners and their amici offer up alternative compensation schemes as a salve for the wound a reversal would

inflict on countless veterans. But neither the bankruptcy trust system nor the veteran’s benefits structure provides substantive redress for these sailors.

Precluding historically available tort actions against

negligent product manufacturers undermines a fundamental reason many injured sailors opt to bring suit:

to deter negligent conduct and, hopefully, prevent their

brethren sailors from suffering a similarly avoidable

tragedy.

A. Precluding claims against Petitioners

would eviscerate the tort remedy veterans have had against negligent equipment manufacturers for decades.

Petitioners attempt to rewrite the history of asbestos litigation, casting equipment manufacturers as

“peripheral” defendants only recently roped into asbestos litigation by plaintiffs searching for a “deeper

pocket.” Pet. Br. at 24; General Elec.’s Br. at 42-43. This

long-peddled trope is neither relevant nor true. Petitioners have been active litigants in asbestos litigation

for decades. Their liability is not new. Reversing the

Third District’s opinion would only serve to cut off injured veterans from a historically available remedy.

This Court should not shift the burden of Petitioners’

misconduct onto veterans who served their country.

Westinghouse has been defending Navy asbestos

cases since the 1970s. Piccirelli v. Johns-Manville

Sales Corp., 128 A.D.2d 762 (N.Y. App. Div. 1987)

(1979 asbestos action brought by Brooklyn Navy Yard

worker). Foster Wheeler defended asbestos cases

brought by Navy veterans as early as 1986. In re

Hawaii Fed. Asbestos Cases, 665 F.Supp. 1454 (D. Haw.

1986) and Kaiser v. Armstrong World Ind., Inc., 678

F.Supp. 29 (D.P.R. 1987). General Electric, likewise,

has actively defended asbestos cases since at least the

mid-1980s. Wible v. Keene Corp., 1987 WL 15833 (E.D.

Pa. 1987) (asbestos action including General Electric

Co. and Westinghouse Electric Co. as product defendants). General Electric’s claims that it could “not possibly have anticipated” its current asbestos liability is

particularly dubious in light of its procurement of

insurance covering asbestos injuries in these exact

circumstances. General Elec.’s Br. at 41; Appalachian

Ins. Co. v. General Elec. Co., 863 N.E.2d 994, 996

(N.Y. 2007) (dispute over General Electric’s asbestos

insurance coverage after asbestos claims “substantially increased” in 1991, with New York court avowing

that the typical asbestos suit against General Electric

was based on its failure to warn about the use of its

turbines with asbestos insulation that had been manufactured by others). Consequently, contrary to Petitioners’ assertion, they have already incorporated the

cost of the liability at issue here into their insurance

coverage model.

Petitioners would like this Court to believe that

upholding the decision below would open up a “new”

theory of liability for defendants heretofore untouched

by asbestos litigation. A simple search of historical asbestos cases proves that assertion untrue. In fact, if

this Court were to preclude asbestos actions against

Petitioners in this case, it would drastically curtail currently available remedies for injured U.S. veterans.

B. Neither the asbestos bankruptcy trust

system nor the VA benefits system provides adequate compensation for the

preventable suffering and death of

those veterans exposed to Petitioners’

asbestos.

Petitioners paint the asbestos bankruptcy trust

system as a metaphorical jackpot available to anyone

injured by asbestos. But those familiar with the trust

system’s bureaucratic mire know asbestos victims often go uncompensated, and always end up undercompensated. Petitioners’ attempt to shift all costs

stemming from their negligent conduct onto the U.S.

Department of Veterans Affairs (“VA”) is similarly misplaced. The U.S. public should not be required to foot

the bill for conduct juries have repeatedly found tortious. Moreover, the pittance provided by the VA fails

to near the reimbursement owed to Respondents for

the loss of their husbands.

Asbestos bankruptcy trusts create trust distribution procedures (“TDP’s”) that entitle those injured by

asbestos to recover pursuant to certain criteria. TDP’s

incorporate restrictions on eligibility, caps on the

amount of recovery, and evidentiary hurdles that many

veterans cannot meet. For example, the Owens Corning/Fibreboard Asbestos Personal Injury Trust holds

the liability for exposure to asbestos-containing Kaylo

insulation, commonly used on U.S. Navy ships. Mavroudis v. Pittsburgh-Corning Corp., 935 P.2d 684, 686

(Wash. Ct. App. 1997); see also DJA 645 (Westinghouse

specification for Kaylo insulation on turbines). Owens

Corning’s TDP provides a schedule of recovery based

on “disease levels” and medical/exposure criteria, then

limits the amount recoverable in each case to a percentage of the payment determined. See Owens Corning/

Fibreboard Asbestos Personal Injury Trust Distribution

Procedures, pp. 3, 6 (Dec. 2, 2015), available at http://

www.ocfbasbestostrust.com/wp-content/uploads/2015/

12/OC-FB.-Amended-TDP.12.2.2015-C0463534x9DB

18.pdf.

Per the Owens Corning TDP, someone who suffers

from asbestos-caused lung cancer is scheduled to

receive a mere $4,440 – but only if he can provide evidence of “significant occupational exposure” to asbestos.14 Id. at pp. 31-32. While this seems straightforward,

the TDP defines “significant occupational exposure” to

require at least five years of occupational asbestos exposure. Id. at 50. But many Navy enlistments are limited to four years. Mr. DeVries, for example, testified

he had no asbestos exposure outside of a naval career

that only spanned 1957 to 1960. JA 262-67. Based upon

the information available from the record, then, Mr.

DeVries is unlikely to have recovered any compensation from the Owens Corning trust for his exposure to

Per the TDP, the payment for the scheduled $40,000

available to Lung Cancer 1 sufferers is reduced by the 11.1%

“Payment Percentage” calculation for claims against the OC

Sub-Account. § 4.2 of Owens Corning TDP at p. 17; Notice of Current

Payment Percentage, Aug. 8, 2017, available at http://www.

ocfbasbestostrust.com/wp-content/uploads/2017/08/OC-FB.-OCSubaccount-Notice-C0616366x9DB18.pdf.

Kaylo insulation utilized to insulate Petitioners’ equipment.

Navy veterans are forced to jump through similar

bureaucratic hoops for almost every other asbestos

trust. The Manville Personal Injury Settlement Trust,

which holds liability for Johns Manville insulation,

is another commonly cited source of purported reparations for veterans disabled by asbestos. Manville

Personal Injury Settlement Trust Distribution Process

(Jan. 2012), available at http://www.claimsres.com/

wp-content/uploads/2016/11/2002-TDPJanuary-2012Revision.pdf. Currently, a lung cancer diagnosis has a

scheduled value of $0 for the Manville Trust – meaning

both Mr. DeVries and Mr. McAfee likely received no

compensation for their exposure to Johns Manville insulation on Petitioners’ products during their service

in the Navy. Id. at 9. Even if a veteran is able to prove

he has lung cancer and another underlying asbestosrelated nonmalignant disease and was exposed to asbestos for longer than five years, he is entitled to a

mere $4,845, hardly the “jackpot” Petitioners claim.15

Bankruptcy trusts provide little, if any, remedy to veterans injured by asbestos. Certainly, the underlying

goal of tort law – to make the plaintiff whole – is not

Id. at 9, 12. Per the TDP, the payment for the scheduled

$95,000 available to Lung Cancer (Two) sufferers who can prove

another nonmalignant disease and five years of exposure is reduced by the 5.1% “pro rata payment percentage” calculation for

claims against the trust. Trust Pro Rata Announcement (Nov. 8,

2016) available at http://www.claimsres.com/wp-content/uploads/

2016/11/Pro-rata-announcement-Nov-2016.pdf.

met by the trust system alone, particularly where the

solvent manufacturers are joint tortfeasors.

The VA compensation system similarly fails to

provide sufficient recompense to families of veterans

killed by asbestos products. For widows of veterans

like Respondents, the basic monthly rate for their

spouses’ death is $1,283.11. 38 U.S.C. § 1311(a)(1),

available at https://benefits.va.gov/Compensation/

current_rates_dic.asp. That amount in no way accounts

for the pain and suffering that results from asbestosrelated cancer in the last months of life.16 Petitioners’

argument that little over $15,000 a year (paid by the

U.S. government, not product manufacturers) is sufficient compensation for the preventable death of a loved

one amounts to throwing coins on the graves of injured

sailors. This Court should refuse to allow Petitioners to

shift the liability for their negligent decisions onto the

government.

One Texas judge described his experience of presiding over

a Texas asbestos docket as follows: “ . . . a person that is diagnosed with mesothelioma typically has a year to live, and essentially over the course of the year, they suffocate to death. I have

seen day-in-the-life films ad nauseum on mesothelioma cases, and

I have nightmares from having seen those day-in-the-life films.”

Hon. Mark Davidson, et al., Asbestos Bankruptcy Trusts and

Their Impact on the Tort System, 7 J.L. Econ. & Pol’y 281, 293

(2010).

C. Neither the VA nor the bankruptcy trust

system fulfills the foundational product

liability tenet of deterrence that can only

be provided by the civil justice system.

Asking an asbestos-afflicted veteran why he opted

to spend the last few months of his life sitting for depositions with corporate defense attorneys leads to two

typical answers: 1. he wants to ensure his family is financially able to bear the inevitable loss, and 2. he

wants to protect current sailors from experiencing the

preventable devastation of negligent corporate conduct. The civil justice system – with its ability to award

punitive damages – is the only means of obtaining both

objectives.

Punitive damages are available in maritime common law. See, e.g., Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404, 411 (2009) and Exxon Shipping Co.

v. Baker, 554 U.S. 471 (2008). This Court instructed

that punitive damages in maritime law are “aimed not

at compensation but principally at retribution and deterring harmful conduct.” Exxon Shipping, 554 U.S. at

492. Indeed, punitive damages have been deemed particularly important in maritime common law actions

because general maritime law limits the availability of

some compensatory damages, such as purely economic

loss or purely emotional distress. Id. at 519-20 (Stevens, J., concurring in part and dissenting in part)

(“Under maritime law, then, more than in the land-tort

context, punitive damages may serve to compensate

for certain sorts of intangible injuries not recoverable

under the rubric of compensation.”) Indeed, when

faced with the argument that compensatory damages

suffice for those injured at sea, Justice Thomas reasoned “[t]he laudable quest for uniformity in admiralty

does not require the narrowing of available damages to

the lowest common denominator . . . ” Atlantic Sounding, 557 U.S. at 424.

In this case, Petitioners once again seek to narrow

the available damages in admiralty by offloading the

bill for their conduct onto both the Navy and bankrupt

entities. But this ignores sailors’ longstanding ability

to recover punitive damages under historical maritime

law and, in doing so, undermines the very purpose of

punitive damages recognized by this Court. Worse still,

hewing to Petitioners’ reasoning would obliterate the

protective deterrent effect that current litigation has

against future harmful conduct against Navy sailors.

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

CONCLUSION

Maritime law provides special solicitude for sailors. This must also be true for those like Mr. DeVries

and Mr. McAfee who took to the high seas in service of

their country. The nationwide trend permitting plaintiffs to seek recovery against equipment manufacturers provides injured veterans a remedy against those

who failed to warn about asbestos exposure from the

inevitable, foreseeable use of their products. The Third

Circuit’s opinion simply maintained this uniformity.

Many veterans sue defendants like Petitioners despite knowing they will likely not live to see any

recovery. Their purpose is often to ensure the negligent

conduct of defendants is brought to light and current

sailors are not subject to similar disregard. This Court

should not silence these sailors in their last act of service to their fellow seamen.

For these reasons, Amici urge the Court to affirm

the Third Circuit’s decision.

Respectfully submitted,

CHRISTIAN HARTLEY

Counsel of Record

MAUNE RAICHLE HARTLEY

FRENCH & MUDD, LLC

1015 Locust St.

St. Louis, MO 63101

Phone: (314) 241-2003

chartley@mrhfmlaw.com

AUGUST 2018

Attorney for Amici Curiae

The Retired Enlisted Association

Military Veterans Advocacy

The Blue Water Navy

Vietnam Veterans Association

The Hamilton County

Veterans Association

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.