Supreme Court questions who is responsible in two sailors’ deaths

Oct. 10, 2018
Washington D.C. – The U.S. Supreme Court heard oral arguments on Wednesday to determine corporate liability in the cancer-related deaths of two Navy sailors exposed to asbestos.

John DeVries and Kenneth McAfee, represented in the case by their widows, worked on naval ships in the 1970s to1980s, regularly maintaining equipment containing asbestos.

Shay Dvoretzky, representing the Air and Liquid Systems Corp., argued the company could not be found responsible for the sailors’ illness because their products did not contain asbestos at the time of the sale. The asbestos was added after the machinery was sold to the Navy.

The court’s liberal justices immediately challenged the company’s denial of responsibility, arguing it was clear their product would need to contain asbestos,

Washington D.C. – The U.S. Supreme Court heard oral arguments on Wednesday to determine corporate liability in the cancer-related deaths of two Navy sailors exposed to asbestos.

John DeVries and Kenneth McAfee, represented in the case by their widows, worked on naval ships in the 1970s to1980s, regularly maintaining equipment containing asbestos.

Shay Dvoretzky, representing the Air and Liquid Systems Corp., argued the company could not be found responsible for the sailors’ illness because their products did not contain asbestos at the time of the sale. The asbestos was added after the machinery was sold to the Navy.

The court’s liberal justices immediately challenged the company’s denial of responsibility, arguing it was clear their product would need to contain asbestos,  a carcinogen known to cause cancer.

“They’re making a product that is useless unless the asbestos is added,” Justice Ruth Bader Ginsburg said. “So they know that the sale of this equipment is dependent upon asbestos being incorporated into it.”  

The case, because the complaint is related to a Navy ship, falls under maritime law, which has a different set of standards than civil law.

Thomas Goldstein, representing the two sailors’ widows, argued the company still had a responsibility toward those affected by the asbestos.  “If you make a product and the ordinary use of that product is going to cause a harm that you know about, then you need to warn about it.”

This led the court’s conservative-leaning justices to question the consequences of carrying corporate liability too far.

“Do you see any other downsides to expanding the scope of the duty to warn in this way?” Justice Neil Gorsuch asked Dvoretzky. “I’m talking as a matter of doctrine and policy.”

Justice Brett Kavanaugh, newly appointed to the court following a tumultuous confirmation process, also pressed the lawyer to explain how placing too much responsibility on companies could lead to over warning.

“Why are too many warnings bad?” Kavanaugh asked. “Why is that bad? You said too many warnings – explain that to me.”

Justice Elena Kagan questioned Dvoretzky’s explanation that too many warnings would lead people to ignore them. “At most, you have two warnings here… I would think that that’s kind of good,” Kagan said.

Throughout the oral arguments, a few justices turned to hypothetical scenarios to illustrate the consequences of broadening the understanding of liability, questioning whether companies had to anticipate every possible danger. From an ashtray causing lung cancer to a battery leaking acid, the justices pushed the sailors’ lawyers to explain how far one can take corporate responsibility.

Justice Sonia Sotomayor described a recent instance of buying a flashlight, which warned her not to store it with the battery.

“Did you feel over warned?” Kagan asked to laugher.

The court is expected to issue the ruling on Air and Liquid Systems Corp v. Devries in January.