Amicus Curiae Brief — Air & Liquid Systems Corp. v. DeVries, 139 S. Ct. 986 (2019) (No. 17-1104)

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No. 17-1104

In The

Supreme Court of the Anited States

AIR AND LIQUID SYSTEMS CORP.,

CBS CORPORATION, AND FOSTER WHEELER LLC,

Petitioners,

Vv.

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 Saurru 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) 226-6964

WWW COCKLELEGALBRIEFS COM

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE...........0..00.c000000 1

SUMMARY OF ARGUMENT ..................ccccceeeeeeeees 2

REIS vectcsemansccssisusstssinativmeciameemmaniiinaiins 4

I. Liability Here Would Violate The Founda-

tional 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...................

Il. Product Manufacturers Have No Duty To

Warn About Risks Of Products They Do Not

Ill. The Common Law Disfavors Creation Of Tort

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

CORSA cccccccsceccevcccosscecsesnsnncegossosnesssossonnssans

TABLE OF AUTHORITIES

CASES

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

EEE ee ee os ee

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

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

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

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

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

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

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

EE eT

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

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

Bateman v. Johns-Manville Sales Corp., 781

F.2d 1132 (Gth Cir. 1986) ................ccccccceceeeseees

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

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

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

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

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

TABLE OF AUTHORITIES — Continued

Page

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

0 Eee 16

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

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

8 Ee 15

Brandenburger v. Toyota Motor Sales, U.SA.,

Inc., 513 P.2d 268 (Mont. 1973)...................cc.c0000000 11

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

O_O 26

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

Se 8

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

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

Rs, ee rectnressitcsnceninmmnaneneninnineentnciininaesmmsce 7

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

I iicccinintaacintanisenineniinatinntemnitenennniiingscinpaunbaiibaninaemttaiensee 16

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

Bi ctescctsicnnnattcneninntantainasinenteaimanaannmmatninmsmemmeytnmenes 17

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

EE 33

Clift v. Vose Hardware, Inc., 848 A.2d 1130 (R.1.

I cccxtscsntnsisenintienennctsiiniongendideinnieninanndimdsenianesccten 12

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

TT eensscitstndneeasanecenmnninmassemmasesisennienennnnitnnntatnninnarddl 8

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

SEI Cite inicccnsicnnninsncinncbuneinasavesioncenetiabsiustainipiinenisie 35

TABLE OF AUTHORITIES — Continued

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

Se Sea

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

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

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

eI idacsternicrterneneriarssieninnesititinesstiearnianee

Eckhardt v. Qualitest Pharmaceuticals, Inc.,751

Ga aaa nsitersethseransninnscsiannutnsscsetntigeesiuntsitiainidiiommee

Ga ccinctheseieiceseecenresdeianinenasienntinicanieetemnnnsnmuteninonans

Se I iceentihincricccasssistesipapnestniesinsenseuiintadebiecccs

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

365 So.2d 966 (Ala. 1978) .0.00.0........ceccceceeeeeeeeee

EE A er eee

Flynn v. American Home Products Corp., 627

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

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

Se attic cecneensaensitnniechsdeubtiniemsniaeses

Fricke v. Owens-Corning Fiberglas Corp., 618

So.2d 473 (La. App. 1993) ooo... eccccecccseeeeseeeeesees

TABLE OF AUTHORITIES — Continued

Page

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

Siri hiasicionsnusienestecniuitninsninauedesitgienndsiatnabingdintahinattinbenmnnees 23

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

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

Siaiiitisssrenssiccesstiainicieienhieniibeeiienlinenaatnscinadeiidibaiaaeeldiaiaitianbenbiiiate 16

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

EE 15

Goldman v. Johns-Manville Sales Corp., 514

I tnnrinciesenicnietenbmeniumeiuimerees 17

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

Ne RE calehatshcliesnisinicnrtensiheinttiemsinitinbniineaiciapemmcens 6

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

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

i ciaa ta cserieeatiieeila tanita claim bliasiiceaenes 13

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

Ee eT 8

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

Es HIT diccnsnnnsncpeticeetenistmeantmebiguseieienrenes 20

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

IIIT icscidaiiicehinceittadicaehhtaiaeiiatiniMatagenilaiedaathhieniidiesabisesahiad 8

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

ERE Sere eer a 11

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

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

BODIE ensthesecsncesanscesndinneccenitenitanniens 15

TABLE OF AUTHORITIES — Continued

Page

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

ee ninetitaiemiaecniceiittiiaiiniatrainnindiaaitaa ial hates aati 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

i ieertininctciteatincicsiatidtetniliaiiatiattiatineniens 20

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

I aaa aria 17

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

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

EEE anne 28

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

TENSES IAEA RN nN T eS 26

Johnson v. Teva Pharmaceuticals USA, Inc., 758

TT A eT 23

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

EE eee en nee 11

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

| 28

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

EER Se eee a ee Ce Se a 10

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

eels lhe ert aaa canes 23

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

UE I sie cectaeckncsinneetenctianitione 10

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

Fe cttenccnennionsusennsenitensutenssaneputpmanensainsnimimemiasmnates 17

vii

TABLE OF AUTHORITIES — Continued

Page

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

EERE ARS PAE Seen Pee ON 18

Lewis v. Lewis & Clark Marine, Inc., 531 US.

ERE LE EA Ae ee ee 4

Lindstrom v. A-C Product Liability Trust, 424

ce 14

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

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

EE a 12

Maggio v. Zeitz, 333 U.S. 56 (1948) 2000... ccccccccecceeee 32

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

RR A RS NC a SY Eee a 17

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

IE TTI Acisenttsenisiintiaiiciiana sansa de dda liacal dill teas oissaes 9

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

EEE ES ea eae A ee Sen 10

McConkey v. McGhan Med. Corp., 144

F. Supp.2d 958 (E.D. Tenn. 2000) ...0.0000000000 cc. 27

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

at iiiiniictiiciaitessdtitsditiitebiiieadtinnhadtitiiatantintieeiedsinsdl 4

McNair v. Johnson & Johnson, SE.2d _,

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

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

i cibiistasinainaitisinntinnisnidnaridientitinnaltjanusiaiiiaanaitittaiitatiensns 17

Metro-North Commuter Railroad Co. v. Buckley,

ENS eee 29

viii

TABLE OF AUTHORITIES — Continued

Page

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

8 ree 11

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

GID, TIED cncncscoctsonsensendotenmeanesenteastatsannessetenesestoenee 25

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

III cencieuidennidtetntnnnensonuedeanidvaimagintiaiinssnemmtustenmsumseereess 23

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

i ciontntennerintcaitnepnanndintepeenanvenetimenenpnastonssanedmnenacsuaces 18

Mullen v. Armstrong World Indus, Inc., 246

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

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

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

TI ccccintsccnscnteceimebstasedpendantunetmmittdeagenmanmeianandzesensenese 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) 0.00....0.cccccccecceeceeeeeceeeneerees 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

kk een 17

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

A ee 32

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

GE ie iicicihiiceesnciiibetunczteememnanetannntiattinmnstenmesbtecsvese 12

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

IIT csinncednitatessntentivsendsseninncbtiinssnséiatenuscnsemmacnstinedeess 10

TABLE OF AUTHORITIES — Continued

Page

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

SUI cinsscticistsinintatandisiimipsstdantninbiteaeneidiideiamianiedpesesnes 23

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

Mie Tih nhicirdichacisinitnscnistenseneittannivadatpaniliaieeniiniiiees 27, 28

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

EE LN nee a 24

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

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

ant eincisuuistennsendhaeneniasennnsbiieinlcenshidndidtibiiiietadiiiienedeee: 23

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

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

Siiiinnscsensestietcindnnnebiisteasisistainbuateidbigistibadinintsdalidslinippsdsonenets 33

Rastelli v. Goodyear Tire & Rubber Co., 591

eR SE EG io BR cnctccccsenscesecnccsesscivesen 20, 25, 26

Reed v. Cent. Soya Co., 671 N.E.2d 1069 (Ind.

ana ices cidnibasaniiitiniiecisstsininanescebgiicaneeeinaninetiancesenseceses 9

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

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

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

SII inlicticiiteniscasvencticitessiambabemitdasescttladsindbeeners 35

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

EEE ee ee ea Ae cS)

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

I ictiicistatiatasieieierdcuscatannaincneniapiiiaiatatabinsdtabeennds 17

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

ee ars tihicancncsickiliiblaniciccletabaietmecinns 35

TABLE OF AUTHORITIES — Continued

Page

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

SEIT cinidicipcinidienhlicniatnaciiapaieotminaieiiaduiiasimnmiasbinies 34

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

STITT sioienichcccianrnadiensiiiniddaaneiaietunbicnniainausiliiniiandessions 25

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

EN ie ES ES eS 8

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

Sari cieciesbtihaeiceiaiaiiaaahisthiiandecrddeiebapsbibeiintaiggninetapineteeesed 8

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

IER ES CO 13

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

oii acsiesdiicdnntsdiasnanintibensasoaeiaieuisansibidevninibinndabihabiiedreweney 23

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

EERE TERE See CRE Sa 19

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

ia ibisistanbchapeiehiibinssistasctiiailigliiailaeiieainitamabeabainiaiandniitinnes 15

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

Ny Tre inininciiatctieniniuinntddntnnssiaiiiniginceaiaiamtssentcses 19

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

STII sdiicietielsachatamridinatemsioniemaanatetna becunapantinhiciiiebsescenaenia 18

Smith v. Wyeth Laboratories, Inc., 1986 WL

720792 (S.D.W. Va. Aug. 21, 1986) ..............00.0:cc00e- 28

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

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

i ncashetianladisiadiassniandedianidnaiiniaineininninbanbeluiidiideasenie: 23

— heaalharee aia aking aio olen vere ee eae

TABLE OF AUTHORITIES — Continued

Page

Strayhorn v. Wyeth Pharmaceuticals, 737 F.3d

REISE RR te tS ENE RED 23

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

EEE a PS SE Oe ae ewe Re ee 19

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

ius visihsinesitcscbeadshintesbalbeescheesidbiaiiiaiaiammbaticbaisbibinibgasidstatidiingaias 23

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

Sarre hicennsancuiatibineapdiaanenesesndsianidentbiapiiniidinbialainimpabiansnssees 12

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

Sai vicindatstataeniccineaidbiaeiniuehidctsiiciinadtaatiasbitigeniiimdipabineetianndnentend 8

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

TIT i hinciiceniniinnaiiidhacendinisimmaiitticintassismdiemanes )

Toth v. Econ. Forms Corp., 571 A.2d 420 (Pa. Su-

STE, Ter isinlasdnapniianipnpdicionhasninditansinambesiiinhceiipiemnsenans 27

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

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

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

Tisriiirii uiictecastsusinensindictindinsilincsiassinuidiieaiickaihdadhicaiiseaiieniinnnerancee 9

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

Sia tassccceshincetseseidsutassannceiiaiiiaieiaisthinisatidedideniniaegpinbianeeeiaes 7

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

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

ee hecicecernanniatcsinsenicipiiientiinsiationnibimsietiteiisabeasegs 27

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

I cicisenatehintinsesinshideninieinspiiidatmiiianditeincintingnegannd 8

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

xii

TABLE OF AUTHORITIES — Continued

Page

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

RSE CREST en Seco ee 17

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

RIES ENE OS Se ne 12

Yates v. Ortho-McNeil-Janssen Pharmaceuticals,

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

Sat diiccsdlevenhccakertnranaiddniesaietincadtsbendseanadpeasiccinieusbtinisiatiiiann 18

STATUTES

iii cenicrcicecicicssnsssteniocccninnteninassanl 24

Ts I cre eeesecctccsnnnenterccenmnesnersvesseste 20

Pa escalate 20

Colo. Rev. Stat. §13-21-401(2)...0...........:cccccceeeeeeeneeeneee 20

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

sc siactinslnassunciguiiilil 20

ET RT ET 20

6 EET REC nae RE eT ee 20

TE 20

i eceniineitianaiiail 20

Be I Bis SIs ccncoccnsscuncnsvssnssonesesnsseniecuste 20

Eee aT 20

Re le IE ells cnnssocnssnmennnenccsnvinnecneseczetecemeeniennsiit 20

ese

TABLE OF AUTHORITIES — Continued

Page

I iicicisienctcenncemnsnnactemnnnianansstantal 20

N.D. Cent. Code §28-01.3-O1 .00.............ccceeseceeeeeeeeeeeeees 20

Ohio Rev. Code $2307.71 13) ..........ccccccccccccsssesccccessseee 20

i a aasinchatannaneimnnmentesesanialil 20

i ctbensinienemmannnnpaaties 21

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

Tex. Civ. Prac. & Rem. Code §82.001(2)................0:000 21

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

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

, 9 | Re OR Enea 21

RULE

I AEs iieicntenserpiicautieipnteenatnislnsinniicnbiaiemapenapenetsn 1

OTHER AUTHORITIES

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

Restatement (Second) of Torts §4, comment a

IIIT isn siccin se chainiahbhesi aie nbanieniestamitenindaiedeaniaediaaiementinemecantl 32

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

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

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

TTTTIIT isch hortacind banseieibaeaententabihaiabiitadintiiddipebinisinietinieres 31

xiv

TABLE OF AUTHORITIES — Continued

Restatement (Third) of Torts, Products Liability

ER eee See ee

Restatement (Third) of Torts, Products Liability

RES oe eee

Richard E. Kaye, American Law of Products Li-

ability 3d §32:9 (May 2018 Supp.)..........................

Richard Scruggs & Victor Schwartz, Medical

Monitoring and Asbestos Litigation — A Dis-

cussion with Richard Scruggs and Victor

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

I III on tiiie scceniciininsathdanclinetaibibniokemesinanetia

INTEREST OF AMICUS CURIAE'

The Product Liability Advisory Council, Inc. (PLAC)

is a non-profit professional association of corporate mem-

bers representing a broad cross-section of American

and international product manufacturers.’ These com-

panies seek to contribute to improvement and reform

of the law in the United States and elsewhere, partic-

ularly that governing the liability of manufacturers of

products and those in the supply chain. PLAC’s per-

spective is derived from the experiences of a corporate

membership that spans a diverse group of industries

throughout the manufacturing sector. In addition, sev-

eral hundred leading product litigation defense attor-

neys 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, includ-

ing 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 main-

taining traditional tort elements, such as product iden-

tification 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 mem-

bers, or its counsel made a monetary contribution intended to

fund the preparation or submission of the brief. Pursuant to Su-

preme Court Rule 37.2(a), counsel for amicus curiae notified coun-

sel 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 other-

wise place into the stream of commerce. Product liabil-

ity 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 com-

mon law of admiralty, this Court looks to the common-

law 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 responsi-

bility for harm caused by the products they sell.

After nearly half a century, asbestos litigation has

bankrupted nearly all of the solvent potential defend-

ants against which product liability could rationally

apply.’ 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 re-

spondents 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, suf-

fices 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 de-

fendant did not make or sell. Such a duty would distort

liability and leave manufacturers and sellers responsi-

ble 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 disgvised 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 prod-

uct years later regardless of any defendant’s ability to

* Between 1982 and 2018, 121 asbestos defendants declared

bankruptcy. See https://www.crowell.com/files/List-of-Asbestos-

Bankruptcy-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 products-

liability cases sounding in maritime law should per-

mit liability where defendants never made, sold, or dis-

tributed the allegedly injurious product — necessitates

examination of analogous common-law principles. Mari-

time 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 “recognized!

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 con-

cepts weigh against expansion of maritime product-

liability duties here: First is the core policy of product-

liability 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 manu-

facturer’s own products. Finally, feasibility concerns

bar imposition of sweeping liability through creation of

duties that are impossible as a practical matter to per-

form. This brief discusses each in turn.‘

lL. Liability Here Would Violate The Founda-

tional Requirement Of Product-Liability

Law That The Cost Of Product-Related Inju-

ries 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, common-

law precedent, as will be seen, applies the same principles to both

ti and strict liability.

This expansion of asbestos liability, however, flies

in the face of the most fundamental tenets of product-

liability law. “The purpose of such liability is to insure

that the costs of injuries resulting from defective prod-

ucts are borne by the manufacturers that put such prod-

ucts on the market.” Greenman v. Yuba Power Prods.,

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

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

adopted by dozens of states, expressly identified these

“justifications” for modern strict liability:

¢ “(Tjhe seller, by marketing his product ... ,

has undertaken and assumed a special re-

sponsibility toward any member of the con-

suming 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.”

¢ “{Plublic 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.”

5 Likewise Justice T m : —

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 prod-

ucts.”

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 pol-

icy 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 manufactur-

ers 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

A number of jurisdictions have done so by ex-

pressly 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); Ver-

mont: Webb v. Navistar Int'l Transp. Corp., 692 A.2d

343, 346 (Vt. 1996).

Other state high courts have independently ex-

pressed similar reasons for linking product liability to

product manufacture, marketing, and sale. The Cali-

fornia Supreme Court reiterated in Brown v. Superior

Court, 751 P.2d 470, 478 (Cal. 1988), that the “funda-

mental reasons” for product liability “are to deter man-

ufacturers 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 de-

fendant’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 mod-

ern 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 mar-

ket.”) (footnote and quotation marks omitted).

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

786 P.2d 939, 944 (Ariz. 1990) (“strict liability was in-

tended to place the loss caused by defective products

on those who create the risk and reap the profit”) (ci-

tation 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 defec-

tive [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 lia-

bility 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 prod-

ucts liability [is] the spreading of loss to manufactur-

ers 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 bur-

den 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”).®

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 uv 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 ex-

ception 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.” Jd. 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 distrib-

ute 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.SA., 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 consid-

erations which motivate imposition of strict liability on

those who create risk and obtain profit by placing de-

fective 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 mar-

keting enterprise should bear the cost of marketing de-

fective 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 prod-

uct.”).

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) (“[iJt 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”) (cita-

tion and quotation marks omitted).

Washington: Macias v. Saberhagen Holdings,

Inc., 282 P.3d 1069, 1072 (Wash. 2012) (“a manufac-

turer does not have a duty to warn of the dangers in-

herent 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 para-

mount position to distribute the costs of the risks cre-

ated 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”) (ci-

tation and quotation marks omitted).

Applying these fundamental product-liability prin-

ciples, 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” has resulted

in repeated assertion of the sort of liability claims at

issue here. Petitioners are not alleged to have manu-

factured any products that actually exposed respond-

ents to asbestos. In precisely these situations, most

’ See Richard Scruggs & Victor Schwartz, Medical Monitor-

ing and Asbestos Litigation - A Di ion with Richard S

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

2002) (quoting plaintiffs’ attorney Scruggs describing the asbes-

tos litigation in these terms).

courts have likewise invoked fundamental product-

liability 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. Causa-

tion, in turn requires proof, inter alia, that the defend-

ant was actually “exposed to the defendant’s product.”

Id. A defendant “cannot be held responsible for mate-

rial ‘attached or connected’ to its product” where the plain-

tiff “almost certainly could not have handled the original!”

material, so that any asbestos exposure “would be at-

tributable 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 |defend-

ant’s] product.’” Jd. at 994-95. Thus:

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

We have never held that strict liability ex-

tends to harm from entirely distinct products

that the consumer can be expected to use

with, or in, the defendant’s nondefective prod-

uct. Instead, we have consistently . . . requirled]

proof that the plaintiff suffered injury caused

by a defect in the defendant’s own product.

Id. at 995. “The same policy considerations that mili-

tate against imposing strict liability in this situation

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

at 1007.

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

131-38 (Wash. 2008), and Braaten v. Saberhagen Hold-

ings, 198 P.3d 493, 497-504 (Wash. 2008), Washing-

ton’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.” Simo-

netta, 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 trans-

late that knowledge into a cost of production

against which liability insurance can be ob-

tained. 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.*

® 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 (Tl. App. 2013).

For similar reasons, the Oklahoma Supreme

Court refused to impose another, albeit less radical’

form of non-manufacturer liability - market share lia-

bility — in asbestos litigation:

|Pjublic policy favoring recovery on the part of

an innocent plaintiff does not justify the abro-

gation 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.” Jd.

Likewise, Texas rejected market share liability as

a means of holding non-manufacturers liable in asbes-

tos cases. “A fundamental principle of traditional prod-

ucts 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, liabil-

ity 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 de-

fendant’s product simply could not be determined, here it is un-

disputed 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 as-

bestos litigation.'®

Numerous other states have likewise rejected at-

tempts to impose non-manufacturer product liability

in various circumstances. Most recently, in West Vir-

ginia, the state’s highest court rejected the imposi-

tion of warning-based liability on manufacturers of

branded prescription drugs for injuries concededly

caused by their generic competitors. “[P|roducts liabil-

ity 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 prod-

ucts liability action . . . for the plaintiff to identify the

defendant as either the manufacturer or seller of the

man v. Jdohns-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 (IL 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, 1133-

34 (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,

__§.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!

... mone 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 in-

dustry will absorb the damages resulting from its neg-

ligence”).

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

(lowa 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 engi-

neering more appropriately within the legislative do-

main’ ”) (quoting Mulcahy v. Eli Lilly & Co., 386 N.W.2d

67, 76 (lowa 1986)).

Missouri: Za/fft 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 in-

jury”).

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

191 (Ohio 1998) (“imposition of liability upon a manu-

facturer for harm that it may not have caused is the

very legal legerdemain, at least by our long held tradi-

tional 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 al-

ternative liability” in a product-liability case would

“require| | a profound change in fundamental tort prin-

ciples”).

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

Inc., 690 A.2d 169, 172 (Pa. 1997) (“Pennsylvania . . . fol-

lows the general rule that a plaintiff. . . must establish

that a particular defendant’s negligence was the prox-

imate cause of her injuries”; “|alpplication 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 consist-

ently refused to extend market share liability beyond

the single situation where it had been legislatively en-

couraged, expressing “judicial resistance to the expan-

sion of duty” and expressing “practical concerns both

about potentially limitless liability and about the un-

fairness 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 ex-

ist where the defendant “did not contribute to the al-

leged defect in a product, had no control over it, and

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

Reinforcing the common law, many states have en-

acted statutes explicitly defining “product liability” ac-

tions 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 “relly| ... on the fact that a manufac-

turer has no control over the third-party product and in fairness

cannot be expected to inspect” other manufacturers’ products. /n

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

2016). Instead, that court opted for a burdensome and unpredict-

able case-by-case evaluation of the “design, mechanics or eco

nomic necessity” of products that never contained any asbestos to

which a plaintiff was exposed. Jd. at 474. That court’s blithe as-

surance that such liability would “not impose| | extreme or unrea-

sonable 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 Re-

statement §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 al-

most universally recognized product-liability princi-

ples 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 product-

related 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.

Il. Product Manufacturers Have No Duty To

Warn About Risks Of Products They Do Not

Make.

As a specific application of the common law’s lim-

iting 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 gener-

ally has a duty to warn of the dangers of its own prod-

ucts, 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 Ten-

nessee 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

lowa 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 compet-

itor’s product. Where would such liability

stop?

850 N.W.2d at 380 (citation omitted). Similarly, in Jn 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 respon-

sible for warning defects in bioequivalent generic prod-

ucts. 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.’” Jd. at 938. Second, non-manufactur-

ing defendants “do not owe users of generic drugs a

duty that can give rise to liability.” Jd. 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).'”

'? Darvocet examined and applied the laws of Arkansas, Con-

lina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee,

Texas, Washington, and West Virginia. Jd. at 941-54. Other appel-

late 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 Pharmaceu-

ticals, 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) (apply-

ing Mississippi & Texas law); Strayhorn v. Wyeth Pharmaceuti-

cals, 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 Ar-

kansas 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 result-

oriented 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 re-

stricted to warnings based on the character-

istics of the manufacturer’s own product.

Understandably, the law does not require a

manufacturer to study and analyze the prod-

ucts 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 manu-

facturer 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] prod-

uct.” 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 Car-

olina law).

[Plaintiff’s] position would require a manu-

facturer 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 com-

patible 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 man-

ufacturer had no duty to warn about the flammable na-

ture 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 dan-

gerous in the absence of the warning urged by

plaintiffs. The dried paint spots did not ex-

plode. The explosion resulted from the use of

a product (gasoline) supplied by a seller other

than (defendant).

Id. at 306. “[Mjanufacturers dijo] 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. “[Wle

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 inade-

quate warnings about a product it neither manufac-

tured 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 dan-

gers of [products] it did not produce.”).

In Yates v. Ortho-McNeil-Janssen Pharmaceuti-

cals, 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.” Jd. 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 infor-

mation on other products in the marketplace.

Such a duty would require drug manufactur-

ers to rely upon the representations made by

competitor drug companies. This arrange-

ment would only lead to greater liability on

behalf of drug manufacturers that were re-

quired to vouch for the efficacy of a competi-

tor’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”).’*

» * For other prescription medical product decisions rejecting

warnings concerning other products, see Johnson v. American Cy-

poe og 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

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 asbes-

tos cases,” Ortiz v. Fibreboard Corp., 527 U.S. 815, 821

(1999), defendants are only subject to liability for inad-

equacies 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.

Ill. 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 peti-

tioners’ 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 dis-

pute, 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 as-

bestos exposure from petitioners’ products. Unable (or

unwilling) to limit themselves to actual sources of as-

bestos 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

wa. _ 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:

* wuntethered 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 prod-

ucts made part of a complex system; and

* would impose liability for products that were

specified, installed, and maintained by a so-

phisticated third-party owner. '*

Respondents offer no practical way for a defendant

to identify, let alone communicate with, the large num-

ber 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 “[mljany products cannot possibly be

made entirely safe for all consumption” and “some prod-

ucts [are], in the present state of human knowledge,

are quite incapable of being made safe for their in-

tended and ordinary use.” Restatement (Second) of

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

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

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

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). 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 “[Ijife will have to be made over,

and human nature transformed” before such

a duty could “be accepted as the norm of con-

duct, the customary standard to which behav-

ior 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 impractica-

ble without his fault.” Restatement (Second) of Contracts §261

(1981).

100 (N.Y. 1928)). Even more recently the Delaware Su-

preme Court held:

[I]n take-home asbestos exposure cases, man-

ufacturers 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, in-

efficient, 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 im-

plemented, would have no practical effect would be

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

A.3d 1028, 1039 (Md. 2013). “[Wle think it unreasona-

ble 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 end-

less.” 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.’” Jd. (quot-

ing 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 recip-

ients 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 like-

wise resisted the creation of duties that are impossi-

ble to satisfy. The Texas Supreme Court refused to

impose on landowners a duty to warn an amorphous

audience of workers for multiple “independent” em-

ployers:

[T]here are a number of independent con-

tractors, 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 8.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 nui-

sance.” 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 de-

fendant’s care; “it is difficult, if not impossible, to de-

termine 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 be-

tween 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 un-

limited number of persons unknown to those defend-

ants, and for an unlimited amount of time, that duty is

effectively incapable of performance. Rather, respond-

ents 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 ba-

sis for product liability; therefore, respondents’ argu-

ments to recognize such liability in maritime law are

not well-taken.

CONCLUSION

“(In 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 never-

ending saga of asbestos litigation continues to “def|y|

customary judicial administration and calls for na-

tional 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 con-

text, a radical expansion of product liability largely un-

known to the common law.

For the foregoing reasons, the decision of the Court

of Appeals for the Third Circuit should be reversed.

Respectfully submitted,

JAMES M. BECK

PRODUCT LIABILITY Counsel of Record

Apvisory COUNCIL, INC. REED SMITH LLP

1850 Centennial Park 1717 Arch St., Suite 3100

Drive, Suite 510 Philadelphia, PA 19103

Reston, VA 20191 (215) 851-8168

(703) 264-5300 jmbeck@reedsmith.com

Counsel for Amicus Curiae

July 16, 2018

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