Asbestos Case Among First for Kavanaugh in Supreme Court

The U.S. Supreme Court on Wednesday will hear a product liability case filed by widows of Navy sailors seeking to recover damages for injuries related to asbestos exposure.

It will be the third case on the docket for Justice Brett Kavanaugh, who was sworn in Saturday by Chief Justice John Roberts and retiring Justice Anthony Kennedy.

The asbestos case, Air and Liquid Systems Corp. v. DeVries, involves a group of Navy sailors who developed mesothelioma from asbestos exposure. Defendants include Air & Liquid Systems and other large companies that manufactured equipment used by the Navy.

Key facts about the case:

• Equipment sold by the companies typically had asbestos insulation added by third-party companies (now bankrupt) after the Navy purchased the machinery.

• The companies designed the equipment for use with asbestos insulation, a common building material in Navy ships for much of the 20th century. The machinery would not have functioned safely without the asbestos insulation.

• Injuries that occur at sea are typically outside of the territorial boundaries of any particular state. These cases fall under general maritime law where the ultimate authority is the Supreme Court.

Maritime cases are unique to the Supreme Court because there are no statutory or constitutional texts to interpret. Rulings in these cases are guided by past decisions on maritime questions.

Kavanaugh and the rest of the Supreme Court must decide whether the companies can be held liable under maritime law for injuries caused by asbestos they did not make, sell or distribute.

“Maritime law is one of the last subject areas where the U.S. Supreme Court applies ‘federal common law,’” Richard Myers, the attorney for the widows, told Bloomberg Law. “Although the resolution of manufacturers’ responsibilities for wear parts is an important issue in maritime law, the vast majority of asbestos lawsuits involve state law claims which are not directly affected by the U.S. Supreme Court’s decision under maritime law.”

Navy Is Immune from Liability

The U.S. Navy and other branches of the U.S. armed forces are not liable for the conditions of military vessels.

Veterans and their loved ones who develop asbestos-related diseases linked to military service generally file lawsuits against the companies that supplied the asbestos materials.

In 2014, a Philadelphia judge sided with Air & Liquid Systems and the other companies at summary judgement. However, the U.S. Court of Appeals for the Third Circuit remanded the case in 2017, ruling that manufacturers may face liability for third-party component parts if the injury was “reasonably foreseeable.”

Four companies are petitioning the U.S. Supreme Court on that ruling:

• Air & Liquid Systems (a subsidiary of Ampco-Pittsburgh Corp.)

• CBS Corp. (as the parent of National Amusements Inc.)

• Foster Wheeler LLC

• Ingersoll Rand PLC

Attorneys for the widows argue that while asbestos insulation was added after the sale to the Navy, the manufacturers knew asbestos was required for the machinery to safely function.

“A pervasive theme running through the briefs of petitioners is that the tragedy of asbestos disease and death among sailors was really all the Navy’s fault; the petitioners did nothing more than sell the Navy the products it wanted,” reads the amicus brief of the plaintiffs. “The Court should disregard this argument entirely, both for threshold reasons of relevance and because it is utterly meritless. This is an ancient contention in asbestos litigation that has been repeatedly rejected.”

Kavanaugh Appointment Worries Environmental Groups

Advocacy groups, such as the Environmental Working Group and the Asbestos Disease Awareness Organization, have expressed concern over the appointment of Kavanaugh to the Supreme Court.

In an August op-ed, EWG questioned if Kavanaugh would protect workers and consumers from dangerous health hazards such as asbestos.

The group cited past rulings by Kavanaugh as a judge on the U.S. Court of Appeals for the District of Columbia Circuit where he voted or argued against environmental issues such as mercury pollution, air pollution and water pollution.

In June, the Environmental Protection Agency announced a Significant New Use Rule that may open the door to new uses of asbestos after review from the agency.

“Ultimately, the EPA’s decision to ban asbestos or keep it legal, will almost certainly be challenged in the courts,” an EWG official said. “That’s why the critical swing vote on the Supreme Court — and Kavanaugh’s record on public health and safety — are so important.”

U.S. Sen. Tom Carper, D-Del., spoke on the Senate floor October 5 in opposition to Kavanaugh’s nomination. In his speech, he highlighted the greatest threat Kavanaugh may pose is with respect to the environment, based on the judge’s 12-year record on the bench.

“A review of Judge Kavanaugh’s nearly 300 opinions over the last 12 years — both concurrences and dissents — shows that Judge Kavanaugh has voted to weaken or block environmental protections a staggering 89 percent of the time,” Carper said. “I fear that, if confirmed, Judge Kavanaugh could well turn out to be the next Scott Pruitt; however, unlike former EPA Administrator Pruitt, whose tenure ended after 18 months, Brett Kavanaugh could damage our environment for a quarter century or more on the Supreme Court.”

In addition to the Navy asbestos exposure case, Kavanaugh will be a part of Supreme Court deliberations this week about immigration and the Armed Career Criminal Act.

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