Argument analysis: Justices search for clear path to assessing responsibility for asbestos-dependent equipment on ships at sea

Wednesday morning the justices got a rare opportunity to ponder basic principles of tort law, as they closed the October session with the argument in Air and Liquid Systems v. DeVries. The case involves equipment sold by various manufacturers (including petitioner Air and Liquid Systems) that was installed many years ago on Navy ships. The equipment depended on asbestos insulation, which was installed shortly after the equipment reached the ships, to regulate its temperature. There also were asbestos gaskets between the parts, which on some occasions came with the original equipment, but were frequently replaced during the use of the equipment. The plaintiffs are a group of sailors (including respondent John DeVries) injured by the asbestos used with the equipment. This particular dispute is limited to injuries that cannot be attributed to any asbestos that the manufacturers supplied; all the relevant asbestos was applied to the equipment by third parties after the Navy acquired it.

Because the injuries in question occurred at sea, the liability of the manufacturers cannot be determined under the law of any particular state. Rather, it arises under the general “maritime” law, judge-made federal law for which the Supreme Court is the final authority. The case comes to the justices after the lower court found that the manufacturers could be liable because the injuries were foreseeable. Arguing on behalf of the manufacturers, Shay Dvoretsky contended that the justices should adopt a bright-line “bare-metal” rule, absolving the manufacturers from liability for any asbestos that they did not themselves make, sell or distribute.

Dvoretsky’s time was dominated by a group of justices pressing the idea that the manufacturers should be held responsible, at least if the sailors can prove that the manufacturers directed or required the use of asbestos with the equipment that they sold. Several justices seemed to think that the facts of the case made liability almost straightforward. For example, almost immediately after Dvoretsky began his presentation, Justice Ruth Bader Ginsburg interrupted him to ask whether it “make[s] a difference” that the manufacturers were “making a product that is useless unless the asbestos is added.”

In the same vein, Justice Sonia Sotomayor interjected her view that under “normal” principles of “tort law, if you create a car that has a spark in the tank, and the gasoline … explodes, the consumer is not going to sue the gasoline company. It’s going to sue you because you, the car manufacturer, produced a defective product that caused an injury that the gasoline would otherwise not cause. Why are you any different than the bare-metal car seller?”

Chief Justice John Roberts seemed to share Sotomayor’s perspective, saying: “Normally, you run a car with gasoline and it’s normally perfectly safe. Here, you normally run your product with asbestos and it’s not perfectly safe.”

Offering his own hypothetical, Justice Stephen Breyer commented that for him, the case is just “not that complicated.” Explaining with his usual expansiveness, he continued:

It’s the case in the Restatement. Judy loans her car for the evening to Grant, whom she knows is a very dangerous driver. The least-cost avoider, of course, is Grant. But, nonetheless, Judy is negligent. And the negligence that they’re claiming here is taking a thing, a physical thing which the manufacturer knows is dangerous and unreasonably putting it out into interstate commerce. And that’s why if you tell the user he’s got to use asbestos, knowing all the relevant things, that’s a negligent act.

Taking a somewhat different tack, Justices Elena Kagan and Neil Gorsuch spent a considerable portion of Dvoretsky’s time debating the problem as a matter of basic tort theory. Kagan started the discussion by interrupting Dvoretsky to ask: “When you say that even when this manufacturer is … direct[ing the buyers] to use asbestos, you are not liable, are you making a fairness argument? Are you making an efficiency argument? What kind of argument is that?” She offered Dvoretsky an “opportunity to tell me what sense would it make to say, even though you direct the use of asbestos, you can’t be liable for its harms.”

Dvoretsky repeatedly offered his position that a bright-line rule exempting the manufacturers was sensible, but Roberts seemed to share Kagan’s concerns, as he evinced skepticism about the breadth of the rule necessary for Dvoretsky to prevail:

What if you are the only one who knows about it? I mean, the asbestos manufacturer – their scientists haven’t discovered yet that it’s going to kill you, but you have, and … you still don’t have a duty to warn? … I know it’s not this case. But your position is even if you … are telling people to use asbestos with your product, [and] they don’t know that it’s harmful but you do, you have no duty to warn?

At that point, Gorsuch weighed in, explicitly aligning himself with the desire of “Justice Kagan [to address this] as a matter of doctrine and policy.” For Gorsuch, the key problem seemed to be the difficulty of defining any reason why we should be worried about obligating the manufacturers to warn their customers: “Besides the costs of having an additional warning, do you see any other downsides to expanding the scope of the duty to warn in this way?” He acknowledged that “[w]e normally do, you’re right, put the duty to warn with the lowest cost avoider.” But he added that “sometimes it’s expanded” and went on to agree with the sailors that “it has been expanded in this area,” which prompted him to “wonde[r] what are the negatives associated with that? Why is that bad?” Justice Brett Kavanaugh joined in on that point as well, asking at the very close of Dvoretsky’s presentation: “Why are too many warnings bad? … Explain that to me.”

The presentation of Thomas Goldstein on behalf of the sailors had quite a different texture, as the justices allowed him to talk without interruption for an extended period at the beginning of his presentation, which hinged on the contention that it was appropriate to hold the manufacturers responsible for the foreseeable consequences of the use of asbestos at their direction. As time went on, however, it became clear that several of the justices were concerned about defining the boundaries of a rule favoring the sailors. The discussion revolved around a series of hypotheticals, each of which involved the manufacturer of a product that foreseeably would be used in connection with another product that might be dangerous. The principal hypotheticals involved the manufacturers of ashtrays – presumptively not responsible for the harms to tobacco users; flashlights – presumptively not responsible for the harms from leaking batteries; and aircraft – presumptively not responsible for the harms from exploding engines.

Goldstein offered two principal responses. One was that the equipment here was necessarily integrated with the asbestos – it could not be used without it.  That seemed to work well as an answer for the ashtray hypothetical (at least in theory you could use an ashtray for something other than a tobacco receptacle). It did not go over nearly so well for the flashlight hypothetical – as it led Gorsuch to quip “I haven’t used a flashlight without a battery very often.”

Goldstein’s second answer was that the equipment itself contributed to the injury from the asbestos, something less likely to be true in the listed hypotheticals. Sotomayor was particularly receptive to this idea, as she had asked early on in the argument “[h]ow is [the asbestos] not the cause of the injury? The asbestos as sold is perfectly safe. It’s integrated. It’s whole. It doesn’t release molecules. What causes it to degrade is [the equipment, which] heats up to such an extreme degree that it degenerates the asbestos.” It was less clear, though, that the other justices accepted that response from Goldstein.

About the only thing that can be said to summarize is that the justices as a group seemed far from settled by the end of the morning.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in this case. The author of this post, however, is not affiliated with the firm.]