Friday, April 1, 2016
Ninth Circuit Rules:
Shipbuilders Not Liable for Sailor’s Asbestos-Related Death
By KENNETH OFGANG, Staff Writer
A shipbuilder is not responsible for the asbestos-related death of a naval captain, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
James McIndoe’s 2011 death from complications related to mesothelioma does not give rise to strict products liability under federal maritime law, Judge Diarmuid O’Scannlain wrote for the court. The naval warships on which he served were not “products,” the judge explained.
Nor can McIndoe’s family members recover on a general negligence theory, the judge added, because they failed to offer proof that he was exposed to asbestos installed by the defendants for a substantial period of time.
McIndoe served aboard the aircraft carrier USS Coral Sea and the guided-missile cruiser USS Worden in the 1960s. Both contained pipe insulation made from asbestos, and McIndoe was allegedly present on both ships when maintenance work involving the release of pipe insulation resulted in the release of asbestos fibers.
Last Two Defendants
The McIndoe family sued Huntington Ingalls Inc., whose predecessor Northup Grumman Shipbuilding, Inc. built the Coral Sea, and Bath Iron Works, which built the Worden. Other defendants were sued, but settled or were otherwise dismissed from the case.
U.S. District Judge R. Gary Klausner granted summary judgment in favor of Bath and Huntington.
O’Scannlain, writing for the appellate panel, explained that strict products liability is imposed in order to place responsibility on “the party most able to prevent harm,” and thus to incentivize proper “design and quality control” of those products. Since the warships were never distributed commercially, they cannot be considered “products” for the purposes of products liability, he said.
“These goals would be advanced little by imposing liability on the builder of a custom-ordered naval ship,” O’Scannlain said.
He emphasized that a shipbuilder “does not manufacture—and has little ability to control the quality of—the many thousands of component parts installed on each ship, let alone to account in its pricing for the virtually unlimited liability that would flow from a rule holding it strictly liable for their dangers.”
As for the negligence claims, O’Scannlain said the plaintiffs presented sufficient evidence of exposure, even if that evidence “was not especially strong.” But the plaintiffs did not raise a genuine issue of causation under the “substantial contributing factor” test, he concluded.
“[E]ven if McIndoe was around asbestos dust several times, his heirs presented no evidence regarding the amount of exposure to dust from originally installed asbestos, or critically, the duration of such exposure during any of these incidents,” the judge said.
“This is precisely the sort of unbounded liability that the substantial factor test was developed to limit,” O’Scannlain added.
The judge rejected the plaintiffs’ argument that they had presented sufficient evidence in the form of a medical expert’s declaration asserting that every exposure to asbestos above a certain level is necessarily a substantial factor in the contraction of asbestos-related diseases.
Expert Testimony Rejected
The expert, he noted, “did not speak to the severity of McIndoe’s exposure to originally installed asbestos—and generally did not make distinctions between the overall dose of asbestos McIndoe breathed aboard the ships and that portion of such exposure which could be attributed to the shipbuilders’ materials.”
In a footnote, O’Scannlain added that the expert could not competently assert that McIndoe suffered “high level exposures” based on the declarations of two witnesses who claimed to have been present when McIndoe was exposed, given the lack of detail in those declarations.
Judges Alex Kozinski and Jay Bybee concurred in the opinion.
The case is McIndoe v. Bath Iron Works, 13-56752.
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