MDL Asbestos Judge Holds Navy Ship Not A “Product” Under Strict Liability Law

Guest bloggers David M. Governo and Corey M. Dennis are attorneys at Governo Law Firm in Boston, where they focus on the defense of toxic tort, product liability, environmental, and insurance coverage claims. Mr. Governo is the immediate past Chairman of the Toxic Tort and Environmental Law Section of the Federation of Defense & Corporate Counsel (FDCC).

Earlier this month, Judge Robreno of the U.S. District Court of the Eastern District of Pennsylvania, who presides over the federal Asbestos Products Liability Litigation consolidated Multidistrict Litigation docket (MDL 875), considered an issue of first impression under maritime law in Mack v. General Electric Company, MDL-875, No. 2:10-78940-ER, 2012 WL 4717918 (E.D. Pa. Oct. 3, 2012): whether a Navy ship is a “product” under strict product liability law.

The defendants were Navy ship builders—General Dynamics, Northrop Grumman Shipbuilding, and Todd Pacific Shipyards—who moved for summary judgment on the ground that a Navy ship is not a product for which strict product liability applies and that the sophisticated user defense relieved them of liability. Judge Robreno agreed that a Navy ship is not a “product” for purposes of strict product liability law, reasoning that: (1) the role of a Navy ship builder is “more like a provider of a service” than “a manufacturer or supplier of a product”; and (2) imposing liability on a Navy shipbuilder for thousands of products would be an undue burden likely to discourage shipbuilding. He concluded, therefore, that the manufacturers of the various asbestos-containing products aboard the ships, rather than the ship builders, should “bear the burden of preventing harm” to Navy seamen.

Judge Robreno also adopted the “sophisticated user” defense under maritime law, which relieves a product manufacturer of its duty to warn end users who are “sophisticated” regarding the hazards of the product by virtue of their training, education, or employment. However, he rejected the defendants’ argument that the Navy’s sophistication regarding asbestos discharged their duty to warn the plaintiff, finding that the lack of evidence of the seaman plaintiff’s sophistication was fatal to the defense.

Judge Robreno limited the applicability of the sophisticated user defense under maritime law, concluding that the defense only applies: (1) to negligent failure to warn claims; and (2) where the end user himself (e.g., Navy seaman) was a sophisticated user of the product. As a result, the defendants’ motions for summary judgment were granted as to the plaintiff’s strict liability claims, but denied as to the plaintiff’s negligent failure to warn claims.

While not binding precedent, the Mack decision represents persuasive authority that Navy ship builders may rely on to establish that they should not be held liable, at least under strict liability, for Navy ships. However, Judge Robreno’s ruling on the sophisticated user defense, the applicability of which varies greatly by jurisdiction, is less helpful for defendants. Although he adopted the sophisticated user defense under maritime law, under his interpretation, the sophisticated user defense is very limited.

 This ruling is at odds with the laws of some states, including Massachusetts. See Carrel v. Nat’l Cord & Braid Corp., 447 Mass. 431, 441 (2006) (adopting sophisticated user doctrine as a defense to claims of negligent failure to warn and failure to warn under breach of warranty, as pertaining to end users or intermediaries); Taylor v. Am. Chemistry Council, 576 F.3d 16, 25 (1st Cir. 2009) (explaining sophisticated user defense applies to end users or intermediate parties, such as employers).