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Company can be liable for another’s product

We all know that manufacturers have a duty to warn about potential dangers arising from the use of their own products. It can even be a little annoying, all the pages of warnings at the beginning of a user’s manual when you only want to know how to turn the damn thing on, or the bulky tags attached to power cords. But when, if ever, does a company have a duty to warn about the dangers of another company’s product?

Supreme Court Justice Neil Gorsuch would have answered that question with a firm “never.” But he was recently outvoted, 6-3.

The case was brought by two Navy veterans who served decades ago. Their ships were equipped with pumps and turbines that “required asbestos insulation or asbestos parts in order to function as intended,” according to the majority opinion in the case. When the equipment was used as intended, it released asbestos fibers into the air. Sailors whose duty stations put them in proximity to the equipment breathed in asbestos fibers, which can cause cancer.

The two Navy veterans developed cancer. As far as the appellate court decisions in the case reveal, the defendants never denied that shipboard asbestos exposure was the cause. Both men died during the pendency of the litigation. The lawsuits were continued by their widows.

In America, whenever one person or company does unjustified harm to another, our government channels the grievance into the legal system, holding out the (sometimes illusory) promise that the wrong can be righted by a lawsuit. The vast legal apparatus we have constructed to right private wrongs is known as tort law.

In the tort suit brought by the Navy veterans (called Air & Liquid Systems v. DeVries), the party most responsible for the veterans’ asbestos exposure was obviously their employer, which should have made the Navy the principal defendant. But under Supreme Court precedent, the military cannot be sued for its negligent treatment of active-duty service members.

All right, then. The next-most responsible parties were the companies that manufactured the asbestos parts that released the lethal fibers into the air. But by the time the veterans filed suit, those companies were burned-out husks, having been pummeled into bankruptcy by previous litigation.

So who was left to sue? The veterans named the five companies that manufactured the turbines and pumps to which the asbestos was added. Those turbines and pumps had been nothing but bare metal when they came off the assembly line, incapable of giving cancer to anyone. The asbestos parts, made by different companies, were only installed later, often by the Navy itself.

But the manufacturers knew asbestos would have to be added, because their machines required it. They further knew asbestos was dangerous. Given those facts, did they have a duty to warn the sailors to wear respiratory masks? Or, in other words, did they have a duty to warn about the danger of another company’s product?

(The Supreme Court didn’t pause to ask whether individual sailors could realistically have decided for themselves whether to acquire and wear respiratory masks. Common sense tells you that any warning, to be effective, would have needed to be delivered to their superiors. But the question of a warning’s effectiveness is different from whether it should be given, which is all the court considered.)

Justice Brett Kavanaugh, writing for the majority, declared that the manufacturers had a duty to warn, which they failed to discharge. The case will now go back to the trial court to determine liability. Kavanaugh’s opinion emphasized the tort system’s regulatory function. Its overriding goal is to prevent injuries and illness. A warning about a product’s hazards provides the user with information necessary to make a sensible decision, potentially preventing a painful death, while the cost to the manufacturer “usually is not significant.” Given the great value of an inexpensive step, Kavanaugh and five of his colleagues concluded the manufacturers should have taken it.

In dissent, Justice Gorsuch pointed out the unfairness to the manufacturers. They did everything required of them at the time they supplied the equipment, many decades ago. To say now that they should have done more was unreasonable: “It is a duty they could not have anticipated then and one they cannot discharge now.” He suggested the majority’s judgment was clouded by sympathy for the widows.

The tort system functions as a regulatory agency, as Justice Kavanaugh demonstrated. But it also operates as a system of insurance, as Justice Gorsuch lamented. Those two Trump appointees could hardly be more similar in background and judicial philosophy, but it didn’t take long for a common-law tort to divide them.

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at