Supreme Court finds manufacturer can be sued under maritime law for exposure to asbestos even if product is modified by a third party as long as defendant knows of modification

Back in October of last year I wrote that the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment.

Last week, the Court announced its decision ruling that, under maritime law, manufacturers can be sued for the injuries caused by their products even if the products were modified by third parties as long as those modifications were known by the manufacturer.

As reported in Jurist:

The suit was brought by two veterans, Kenneth McAfee and John DeVries, who alleged that they were exposed to asbestos while enlisted and developed terminal cancer as a result. The defendants manufactured equipment for ships for the US Navy, on which the plaintiffs served. Though the equipment was not produced with asbestos by the defendants, integration of the carcinogen was performed by the Navy after the installation of the equipment pursuant to instructions by the manufacturers. The suit argued that the two crewmembers were not given sufficient notice that they were being exposed to a dangerous material by the manufacturer, while the companies claimed that they were not liable because they did not install the asbestos materials themselves. Though a federal district court ruled in favor of the manufacturers, the US Court of Appeals for the Third Circuit reversed the decision, after which the manufacturers appealed to the Supreme Court.

In a 6-3 decision, Justice Brett Kavanaugh wrote that there were three different approaches that the court could take to constrain defendant liability in maritime product liability law. The first, a forseeability approach, would require manufacturers to anyone who came into contact with their product of any dangers that could be reasonably caused by their equipment, even if it is modified by a third party. Kavanaugh dismissed this test, stating that it would cause “confusion” and “overdisclosure” while being a substantial burden. The second test, the “bare-metal” defense asserted by the defendants, would prevent manufacturers from being held liable for any modifications undertaken by a third party. Kavanaugh stated that this test “goes too far in the opposite direction” from the forseeability test, allowing manufacturers to wash their hands of dangerous products by hiding behind third parties. The court therefore held that a middle-ground test is appropriate, holding manufacturers responsible for harm caused by third-party modifications that are undertaken with the manufacturer’s “knowledge or intention” that such a modification would make the product dangerous.

The case is called Air and Liquid Systems Corp. v. DeVries , and you can read the opinion here.  You can read other documents relevant to the case here.

The SCotUS blog has analysis here.

NJ Supreme Court to decide whether defendant has a duty to warn about asbestos exposure due to a replacement part in its product

The New Jersey Supreme Court has agreed to hear an appeal that will decide a manufacturer’s liability for asbestos-containing replacement parts that it did not manufacture or sell.  The Supreme Court granted certification after the Superior Court, Appellate Division, held that a manufacturer has a duty to warn of risks not just from the products it manufactures or sells, but also from asbestos-containing replacement parts necessary for its products to function.  You can read the lower court opinion here.

Here is a link to a short article that summarizes the possible approaches to the question and the issues involved.

Supreme Court hears oral argument in asbestos case under maritime law

A couple of weeks ago, the US Supreme Court heard oral arguments in a case that raises basic principles of tort law as related to maritime jurisdiction.  The case involves equipment that depended on asbestos insulation sold by various manufacturers that was installed many years ago on Navy ships.  The plaintiffs are a group of sailors injured by the asbestos used with the equipment. Because the injuries in question occurred at sea it arises under the general “maritime” law, judge-made federal law for which the Supreme Court is the final authority. The lower court found that the manufacturers could be liable because the injuries were foreseeable. 

The SCotUS blog has analysis here.  You can also access all the relevant documents in the case here.

New Jersey expands reach of possible liability in case where the plaintiff was exposed to toxic substance brought home by exposed worker

Back in May I wrote about a few recent cases that have recognized a cause of action on behalf of a spouse for injuries suffered due to exposure to toxic substances brought home by their spouse.  Typically, the cases involve mesothelioma caused by exposure to asbestos.  Go here for that post, which has links to others on the same subject.

As I explained back then, plaintiffs in these cases argue that the defendant should be liable because the injury is a foreseeable consequence of the risk created by the negligence conduct or product (depending on whether the claim is for negligence or strict liability). 

Since this is, obviously, just an argument in support of the element of proximate cause, defendants reply that liability could extend too far thus defeating the reason for proximate cause in the first place.  Since the notion of proximate cause is used to limit the reach of possible liability, they argue liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.  What if the worker, instead of going straight home after work, went to a bar every day for a beer or two with friends and other co-workers.  Any "regulars" at the bar could have a cause of action. 

It is not a frivolous argument, but courts have avoided it since the plaintiffs so far have been spouses, thus allowing courts to use the proximate cause analysis based on foreseeability while limiting the reach of the possible liability to the immediate family members.  

But, as you would expect, once you open the door...  The New Jersey Supreme Court has just expanded the reach a bit more by recognizing a cause of action for a plaintiff who was not married to the person exposed directly.  According to TortsProf blog the case involved a woman was not married to the worker whose clothes carried the asbestos at the time the exposure began, but who did later become his spouse. 

The important thing is that in reaching its conclusion, the court stated the spousal relationship was not the key, but rather that the most important factor, among several, to consider is foreseeability.   In the NJ case, although the plaintiff was not a spouse, she had a close personal relationship with the exposed worker and was exposed because she spent time with him at his residence during the time before their marriage. 

That makes complete logical sense; but the moment we base the analysis squarely on foreseeability, the more difficult it becomes to distinguish the case from the claim of the regular at the bar.

As Andrews famously said in Palsgraf (I am paraphrasing here), we may not like where we draw the line, but a line we must draw...

Go here for more information.

Judge awards $7 million in case involving a wife getting exposed to asbestos in her husband's work clothes

As you probably know, mesothelioma is a rare form of cancer caused by exposure to, and breathing of, asbestos fibers. Most asbestos cases involve plaintiffs who were exposed to asbestos directly (usually at work), but there are a few cases that have recognized liability for "second hand exposure."  These usually involve plaintiffs who were exposed to asbestos when the person who had been exposed directly brought the fibers home embedded in their clothes.

For example, back in 2013, I reported (here) that a jury in California awarded $27.3 million in damages to a woman who developed mesothelioma as a result of her contact with her husband's clothes.  Just about a year ago, I reported (here) that a Washington state jury awarded $3.5 million to the estate of a woman who died of mesothelioma for the same reason.

Now comes news (also here) that a trial judge in Louisiana has awarded $7 million to the surviving family members of a woman who died of cancer after years of washing her husband's asbestos-tainted clothes.

Plaintiffs in these cases argue that the defendant should be liable because the injury is a foreseeable consequence of the risk created by the negligence conduct or product (depending on whether the claim is for negligence or strict liability).  This, obviously, is just an argument in support of the element of proximate cause and defendants, therefore, reply that viewed this way, liability could extend too far thus defeating the reason for proximate cause in the first place.  Since the notion of proximate cause is used to limit the reach of possible liability, they argue liability should be limited to the injury to the person who was exposed directly.  Otherwise, any bystander who came in contact with this person could sue.  What if the worker, instead of going straight home after work, went to a bar every day for a beer or two with friends and other co-workers.  Any "regulars" at the bar could have a cause of action. 

It is not a frivolous argument, and I am guessing some courts have (or will) accept it.  But, as we have seen, a few have either rejected it or at least replied to it that even if the possible liability should be limited to exclude those bystanders, it should not exclude the immediate family members.  

Indiana Product Liability Act's Statute of Repose Found Unconstitutional For Asbestos Cases

Go here for the full story.

Jury awards $3.5 million in case involving a wife getting exposed to asbestos in her husband's work clothes

A Washington state jury has awarded $3.5 million to the estate of a woman who died of mesothelioma she contracted from exposure to asbestos carried home on her husband’s work clothes.  AboutLawsuits has the story here.

Most asbestos cases involve plaintiffs who were exposed to asbestos at work, but the plaintiff in this case was exposed to asbestos due to her contact with her husband, who as a result of his work, carried asbestos fibers home on his work clothes.  In a case like this, the issue of whether the possible liability of the defendant should be limited to the person exposed to asbestos directly at work. In the end, the issue is one of proximate cause or duty. Should the duty of the defendant extend to include the injuries suffered by anyone exposed to the fibers, or just to the injuries of those exposed at work?

The case is similar to a case in California in which the jury awarded $27.3 million in damages, and a case in Illinios in which the court remanded the case to allow the plaintiff a chance to support its allegation of duty.  You can read my comment on those cases here.

California jury awards $27.3 million in damages for second hand exposure to asbestos

AboutLawsuits is reporting (here) that a jury in California recently awarded $27.3 million in damages to a woman who developed mesothelioma as a result of "second hand exposure" to asbestos. As you probably know, mesothelioma is a rare form of cancer, which is only known to be caused by exposure to, and breathing of, asbestos fibers.

 

Most asbestos cases involve plaintiffs who were exposed to asbestos at work, but the plaintiff in this case was exposed to asbestos due to her contact with her husband who was the one exposed to the fibers at work. As a result of his work, the plaintiff's husband carried asbestos fibers home on his work clothes, which caused the plaintiff to develop mesothelioma years later.

 

These cases present the issue of whether the possible liability of the defendant should be limited to the person exposed to asbestos directly at work. In the end, the issue is one of proximate cause or duty. Should the duty of the defendant extend to include the injuries suffered by anyone exposed to the fibers, or just to the injuries of those exposed at work?

 

If we apply the traditional proximate cause analysis, the question is whether the injury is a foreseeable consequence of the risk created by the negligent conduct. If the answer is that reasonable people can disagree, then the case survives a motion to dismiss and goes to the jury.

 

Since asbestos fibers cling to clothes, it can easily be argued that exposure to others who come in contact with the contaminated clothes is a foreseeable consequence of the risk created. The problem with this, defendants argue, is that this subjects them to unlimited liability. What if a worker had the custom of going to a public establishment - a diner, restaurant, bar, etc - after work to meet with friends before changing? Should the defendant be liable to anyone who participated in those gatherings (as long as they can prove cause in fact)?

 

The concept of proximate cause was created precisely to achieve a level of fairness when it comes to possible unlimited liability. At some point we must draw a line - as Cardozo and Andrews agreed in Palsgraf v LIRR - and the key for the courts if figuring out how and where to do so.

 

In an asbestos second hand exposure case, the plaintiff will argue we should extend the possible liability to include the members of the exposed worker's household. The defendant will argue that there is no reason to extend the possible liability beyond the duty owed to the worker and that extending it to anyone else would be going too far.

 

The California case is similar to a case decided by the Illinois Supreme Court last year called Simpkins v. CSX. The allegations in Simpkins were essentially the same: a wife who was exposed to asbestos due to contact with her husband's clothes. The Court's opinion concluded that the complaint had not alleged sufficient evidence to support the claim that defendant owed a duty of care to the plaintiff but remanded to give the plaintiff the chance to do so. The court explained that in order for the claim to survive a motion to dismiss it would have to show specific facts relating to defendant's knowledge of the potential harms of asbestos. Only then would the court be able to answer the question on whether the injury was a foreseeable consequence of the risk created by the defendant. You can read the opinion here. For more on the case go here.

 

In other words, the case was remanded and allowed to continue, but I do not know what has happened since. If it is still being litigated, I am sure the recent verdict in California will provide the plaintiff with some support for her claims and approach. It may also influence the defendant to consider settling the matter before taking chances with a jury.

 

Supreme Court decides asbestos preemption case

Because I was paying so much attention to the oral arguments before the Supreme Court, I initially missed the fact that the Court issued an opinion in a torts related case called Kurns v. Railroad Friction Products,in which the Court found that a widow’s state-law claims against the manufacturers and distributors of locomotive products containing the asbestos that caused her husband’s death were preempted by federal law.  For more information on the case go here, here and here. For all the documents related to the case go here.

Record breaking verdict in asbestos exposure case

A Mississippi jury has awarded $322 million in damages for pain and suffering, future medical expenses and punitive damages to a former oil worker diagnosed with asbestosis, in what is believed to be the largest verdict for an asbestos suit in U.S. history.

According to the story in AboutLawsuits.com, one of the major issues during the trial was Brown’s literacy and whether the companies were responsible for workers who were unable to read understanding warning labels and signs. Brown was 16 when he began working in the oil fields and was illiterate.  Go here for the full story.