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Supreme Court of the United States No. 17-1104 IN THE Supreme Court of the United States AIR AND LIQUID SYSTEMS CORP., et al., Petitioners, v. ROBERTA G. DEVRIES, INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF JOHN B. DEVRIES, DECEASED, et al., Respondents. –––––––––––––––––––––––––––––– INGERSOLL RAND COMPANY , Petitioner, v. SHIRLEY MCAFEE, EXECUTRIX OF THE ESTATE OF KENNETH MCAFEE, AND WIDOW IN HER OWN RIGHT, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES CouRT OF APPEALS FOR THE THIRD CIRcuIT BRIEF FOR RESPONDENTS DENYSE F. CLANCY RicHARD P. MYERS KAZAN, MCCLAIN, SATTERLEY Counsel of Record & GREENWOOD ROBERT E. PAUL 55 Harrison Street, Suite 400 ALAN I. REicH Oakland, CA 94607 PATRick J. MYERS (877) 995-6372 PAUL, REicH & MYERS, P.C. [email protected] 1608 Walnut Street, Suite 500 Philadelphia, PA 19103 (215) 735-9200 [email protected] Counsel for Respondents (Additional Counsel Listed on Inside Cover) 281732 JONATHAN RUckdESCHEL WILLIAM W.C. HARTY THE RUckdESCHEL LAW PATTEN, WORNOM, HATTEN FIRM, LLC & DIAMONSTEIN 8357 Main Street 12350 Jefferson Avenue, Ellicott City, MD 21043 Suite 300 (410) 750-7825 Newport News, VA 23602 [email protected] (757) 223-4500 [email protected] Counsel for Respondents i QUESTION PRESENTED Under general maritime negligence law, does a manufacturer have a duty to warn users of the known hazards arising from the expected and intended use of its own product? ii TABLE OF CONTENTS Page QUESTION PRESENTED .......................i TABLE OF CONTENTS......................... ii TABLE OF APPENDICES .....................viii TABLE OF CITED AUTHORITIES ...............x INTRODUCTION ...............................1 COUNTER STATEMENT OF THE CASE .........6 A. Respondents were exposed to asbestos during the expected and intended use of petitioners’ machines ..................6 1. Petitioners supplied machines that required asbestos parts to function .......6 2. Petitioners’ manuals required routine maintenance of the machines, which exposed users to asbestos dust ...........8 3. Petitioners’ maintenance manuals and machine labels did not warn of the hazards of breathing asbestos dust ...............9 B. Petitioners, and not the Navy, designed their machines to require use of asbestos parts ....................................10 iii Table of Contents Page 1. The Navy viewed the petitioners’ machines, their necessary asbestos parts, and manuals as integrated units ................................10 2. Petitioners sold machines requiring asbestos parts to both the military and civilian markets ...................11 3. Petitioners’ machines would not work without asbestos parts .................12 C. Replacement asbestos parts were identical to the original asbestos parts ...............14 D. Petitioners insured against the dangers posed by the use of their machines, which included coverage for asbestos exposure ......15 E. The Navy required petitioners to warn users of their machines of the dangers they would face, including asbestos dust ..........16 1. The Navy warning requirements were not limited to hazards that cause “immediate harm.”...............16 2. The DOD required warnings for toxic and carcinogenic dust .............17 iv Table of Contents Page 3. By the 1980s, petitioners warned about asbestos with no resultant “overwarning” phenomenon ............18 F. Proceedings Below ........................18 SUMMARY OF ARGUMENT ...................22 ARGUMENT...................................26 I. The Third Circuit’s holding is compelled by this Court’s maritime precedent .............26 A. Maritime law has long recognized negligence, including its foreseeability test..................................26 B. Petitioners’ proposed blanket immunity is antithetical to maritime law.............28 1. Maritime negligence law applies a duty of reasonable care under the circumstances of each case..............................28 2. Maritime law holds that a product is the entire “integrated package,” including its asbestos parts and maintenance manual ...............29 v Table of Contents Page 3. Blanket immunity for petitioners would unfairly require shipyards and ship owners to pay for petitioners’ negligence ........................30 4. Solicitude for sailors is not an “outdated” policy................32 C. Under maritime law, there was no superseding cause .....................34 D. In maritime cases, this Court has clearly distinguished between property damage and personal injury claims..............36 II. The Third Circuit’s test accords with maritime law .............................37 A. A test based on reasonable care under the circumstances of each case accords with maritime principles ...............37 B. Lindstrom is limited to strict products liability, and has no bearing on negligent failure to warn claims..................39 III. The Third Circuit’s test accords with the prevailing law on land......................40 vi Table of Contents Page A. A clear majority of the states adopt the same rule as the Third Circuit...............................41 B. The two state court decisions cited by petitioners do not preclude the application of the Third Circuit’s test...............43 C. Petitioners’ rule would leave maritime workers worse off than land-based workers ....................45 IV. The Third Circuit’s test accords with traditional common-law tort principles ................................46 A. Traditional principles of tort law impose a duty to warn of foreseeable dangers of a product ...................46 B. The manufacturer’s duty of care extends to warning about foreseeable dangers arising from its integrated product ....................48 C. Whether a harm is a foreseeable consequence of one’s actions is the foundation of this Court’s negligence jurisprudence.........................50 vii Table of Contents Page D. Petitioners are not innocent manufacturers of innocuous components parts ................................52 V. Petitioners are the parties best positioned to avoid the loss .............................53 VI. The government contractor defense is not at issue ..................................57 VII. The Third Circuit applied the correct rule, and properly remanded for further factual determinations .....................58 CONCLUSION .................................60 viii TABLE OF APPENDICES Page APPENDIX A ..................................1a DeVries, et ux. v. General Electric Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 269-3, Pages 28, 38-39, 43, 58-59, 60-62) (Motion for Summary Judgment of CBS Corp.) (Plaintiff’s Discovery Deposition, Pages 324, 350-351, 358, 397-398, 403-405) APPENDIX B .................................10a DeVries, et ux. v. General Electric Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 270-3, Pages 6, 56-58) (Motion for Summary Judgment of General Electric Company) (Plaintiff’s Discovery Deposition, Pages 79; 386-388) APPENDIX C .................................14a DeVries, et ux. v. General Electric Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 274, Pages 18-19, 21, 26, 28, 38) (Motion for Summary Judgment of Buffalo Pumps, Inc.) (Plaintiff’s Discovery Deposition, Pages 70-71; 90; 101; 112; 235) APPENDIX D .................................20a DeVries, et ux. v. General Electric Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 277-1, Pages 11, 13, 20) (Motion for Summary Judgment of Foster Wheeler LLC) (Plaintiff’s Discovery Deposition, Pages 268-269, 274-275, 425-427) ix Table of Appendices Page APPENDIX E .................................26a DeVries, et ux. v. General Electric Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 291-2, Pages 34-35, Doc. 291-3, Pages 1-35) (Response to Motion for Summary Judgment of Foster Wheeler, LLC) (Affidavit of Captain Bruce Woodruff, Pages 1-38) APPENDIX F ................................139a DeVries, et ux. v. General Electric Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 296, Pages 17, 18, 19, 22-24) (Response to Motion for Summary Judgment of CBS Corp.) (Plaintiff’s Discovery Deposition, Pages 72-73, 82, 385, 399-402, 406-408) APPENDIX G ................................149a DeVries, et ux. v. General Electric Co., et al., No. 13-cv-474 (E.D. Pa.) (Doc. 298, Pages 21-22, 23) (Response to Motion for Summary Judgment of Buffalo Pumps, Inc.) (Plaintiff’s Discovery Deposition, Pages 198-205, 238-241) x TABLE OF CITED AUTHORITIES Page CASES: Acoba v. General Tire, Inc., 986 P.2d 288 (Haw. 1999).......................53 Air & Liquid Systems Corp v. Allianz Underwriters Ins. Co., 2013 U.S. Dist. 2013 Westlaw 5436934 (Sept. 27, 2013 W.D. PA) ....................15-16 Am. Exp. Lines, Inc. v. Alvez, 446 U.S. 274 (1980) ............................33 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)..........................6, 59 Andrews v. 3M Co., No. 2:13-cv-2055, 2015 WL 12831315 (D.S.C. May 22, 2015), on reconsideration, sub nom. Andrews v. CBS Corp., 2015 WL 12831342 (D.S.C. June 18, 2015) ........39 Appalachian Ins. Co. v. GE, 863 N.E.2d 994 (N.Y. 2007).....................15 Baughman v. General Motors Corp., 780 F.2d 1131 (4th Cir. 1986)....................49 Bell v. Foster Wheeler Energy Corp., 2016 WL 5780104 (E.D. La. Oct. 4, 2016) ...38, 41, 55 xi Cited Authorities Page Boyle v. United Techs. Corp., 487 U.S. 500 (1988).......................passim Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008).................. 43, 44 Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008)............................51 Brown v. Drake-Willock Intern, Ltd., 209 Mich. App. 136 (1995) ......................50 Certain Underwriters at Lloyd’s, London
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