March 19, 2019 4:52PM

On Asbestos Blame, Supreme Court is Still At Sea

With Justices Kavanaugh and Roberts crossing over to join the liberals, the Supreme Court ruled 6–3 today in Air & Liquid Systems v. DeVries that federal maritime law permits seafarers claiming asbestos‐​related ailments to sue manufacturers of ship components such as boilers and turbines that contained no asbestos, on the grounds that they knew that the mineral would be used in conjunction with their product later in such forms as insulation or connective gaskets. Justice Neil Gorsuch, dissenting on behalf of himself and Justices Thomas and Alito, had the better argument: doing so requires stretching traditional bounds of tort liability in a way that imposes unreasonable duties to warn. By requiring makers of components to pay for damages they did not cause in the name of warnings that the U.S. Navy almost certainly would not have heeded, the Court yields to an impulse to round up deep pockets lest a sympathetic set of litigants otherwise go uncompensated.

wrote about the case in December and quoted libertarian law professor Richard Epstein, who criticized the use of legal doctrine here “to serve as surrogate (and extremely costly) social insurance: ‘the bankruptcy of parties that should be liable [i.e., primary asbestos manufacturers] is no reason to impose onerous liability on parties that should not be liable.’ ” At the same time I noted the argument, which plaintiffs relied on heavily and seems to have influenced today’s outcome, “that [federal] maritime law takes a particular interest in the welfare of seafarers, and a rule that permits them to win more lawsuits advances their welfare.”

In today’s majority opinion, Justice Kavanaugh purports to steer a middle path between the liberal “foreseeability” rule announced by the Third Circuit below (if the maker of the “bare‐​metal” component could have foreseen the asbestos use, it had an obligation to warn) and the traditional tort rule (you don’t have to warn of the dangers of other people’s products) by attaching an additional restriction: the integration of the other, dangerous product must be “required” if the overall assembly is to function as intended. In his dissent, Gorsuch points out that this new complication not only has no evident grounding in existing tort doctrine but is not in fact easy to apply or predict. Can we know that asbestos was required when, especially in recent years, other insulation materials were available but were spurned by the Navy as too expensive or inconvenient? Many parts of ships, or other complex systems, can be deemed “required” for the whole. If a type of vehicle is known to flip over too easily, are we sure the victims could not sue the makers of the windshield wipers for not warning of that, even though the wipers did not in any way cause the rollovers?

But it seems almost quaint to ask whether a newly announced legal standard can readily be applied and predicted in the context of asbestos law, a sui generis creation in which the courts regularly extract vast sums from defendants on the basis of legal standards assuredly not recognized in law at the time those defendants acted in the 1950s, 1960s, and 1970s. The implications of assigning retrospective liability to actions lawful at the time loom large and disturbing over continuing expansions of liability like the one announced in today’s case.