U.S. Supreme Court Mulls Over Asbestos Litigation

Date: November 16, 2018

In the 1990s asbestos lawsuits targeted big companies who manufactured asbestos products; however, those companies have almost all gone bankrupt. This means that aggressive plaintiffs have widened their search for potential defendants by targeting small businesses that were not involved with the manufacturing of asbestos.

For example, we’ve talked with small town hardware stores that have been roped into asbestos cases along with dozens of other companies that had little if any connection to the alleged exposure(s). But the U.S. Supreme Court is now set to decide a case that may potentially limit liability against small businesses.

In Air Liquid Systems v. DeVries, the Court will decide whether defendant companies should be held liable for asbestos exposure if they neither manufactured asbestos, sold asbestos or installed asbestos. One might reasonably question how a plaintiff could even name such a defendant in an asbestos lawsuit with a straight face. Indeed, this shows just har far asbestos plaintiffs are reaching in their ever-expanding search for solvent defendants.

Our  amicus brief to the Supreme Court, argued that it would be inappropriate to hold these peripheral defendants liable because plaintiffs can pursue payouts from large trusts that were established by the asbestos manufactures when they were going through bankruptcy. We also expressed concern that these plaintiffs may double-dip and pursue claims against tangential defendants in court and later seek more money from an asbestos trust.

As a technical matter the decision in this case will not bind state courts facing similar cases, but it will be deemed highly persuasive authority—meaning we may expect state courts to follow the Supreme Court’s lead. On a related point, product liability cases are typically heard in state courts because there is no federal common law. But the Air Liquid Systems case falls within an exception to that general rule because the alleged asbestos exposure occurred at sea. Ronald Mann provides further explanation at SCOTUS Blog for anyone interested in learning more.

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