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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0814%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2019

## Text

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.

ee
A

INGERSOLL RAND COMPANY,
Petitioner,
v.

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

@
aA

BRIEF OF THE PRODUCT LIABILITY
ADVISORY COUNCIL, INC., AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS

«€
4

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

i

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

21

as

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

I

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

Cn
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

iv
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

v

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

vi

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

ix

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

21

1

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.

2

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.

»
A

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

3

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.

4

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

5

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.

6

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.”

7

* “[(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

8

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).

9

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

10

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).

11

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”).

12

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”).

13

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).

14

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

15

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).

16

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.

17

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

© Black v. Abex Corp., 603 N.W.2d 182, 189 (N.D. 1999); Gold-
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).

18

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”).

19

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.”

20

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.

21

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).

22

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

23

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

24

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).

25

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

26

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’

27

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”:

28

{[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”).

29

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

30

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.

31

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)

32

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).

33

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

34

“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

35

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

36

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.

,*
vv

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.

37

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0814%3A19. Public record. Not legal advice.