The Search For a Solvent Defendant

The first asbestos lawsuit was filed in 1929. The key decisions fixing liability for the terrible consequences of breathing asbestos came more than four decades ago. By the year 2000 almost all manufacturers of building materials that used asbestos were bankrupt, and since then the litigation can accurately be characterized as what Reason Magazine calls – “An unending quest for a solvent defendant.” That quest might come to a close when the Supreme Court decides Air and Liquid Systems v. DeVries, a tort case arising from maritime law. One problem for asbestos litigants is that the building and operation of ships accounts for a big share of injuries, and the U.S. Navy, the main builder and operator, is immune from suit. The issue before the court is a Third Circuit ruling that sailors harmed by breathing asbestos fibers could sue the makers of ship components that had been delivered in “bare-metal” form, but later clad in asbestos insulation or connected using asbestos gaskets. When the case was argued in October, conservative justices wondered whether the doctrine of “surrogate liability” dictated holding ashtray manufacturers liable for the harms of smoking. The liberals noted that maritime law takes a particular interest in the welfare of sailors, and a rule that permits them to win more lawsuits advances their welfare. A ruling will likely come in the spring.