The Ex Post Facto Effect: The U.S. Supreme Court’s DeVries Decision and Asbestos Litigation in the United States

April 18, 2019Articles

Colleagues and clients frequently pose the question whether after more than forty years the asbestos litigation juggernaut has finally neared its inevitable conclusion.  The United States Supreme Court’s recent decision in Air and Liquid Systems Corp v. DeVries 586 U.S. ___ (2019) demonstrates why the tide of asbestos litigation is hardly receding.  To the contrary, rulings such as the Court’s rendition of current federal maritime common law can reasonably be expected to energize a surge in claims in the national asbestos tort system.

The DeVries decision embraces, but does not specifically acknowledge, two fundamental factors that have sustained asbestos litigation since its inception:  1) the cases usually involve substantial time delays between dates of manufacture, the alleged causative interaction with the product, and the manifestation of actual injury; and 2) the imposition of new and evolving legal obligations which did not exist at the time the products were originally manufactured and sold.

At issue in DeVries is the resolution of a split in the Circuit Courts of Appeal on the question whether a product manufacturer is liable under federal maritime common law for failing to warn original customers about the subsequent use and incorporation of replacement parts manufactured by others.  The Court held that under federal tort law in the maritime context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe the that product’s users will realize that danger. Notably, the Court’s ruling is stated in the present tense because the Court is actually applying this “new” articulation of the law to defendant product manufacturers with respect to their conduct surrounding products made and sold many decades ago and long before the court precedents giving rise to the defendants’ duties were fully conceived, much less written.

Article I Section 9 of the U.S. Constitution prohibits Congress from passing ex post facto laws, but that provision has generally been applied in the context of criminal or civil sanctions imposed to punish persons for past acts.  Akin to an ex post facto law but in the civil litigation context, the Court in DeVries has imposed legal duties and obligations on product manufacturers for past conduct undertaken at a time when no such duty existed or could have been reasonably anticipated.  As the dissent notes, the majority decision imposes “a duty [the product manufacturer defendants] could not have anticipated then and one they cannot discharge now.  They can only pay.”   The retrospective imposition of previously non-existent obligations on manufacturers remains a key feature fueling the asbestos litigation system in the U.S. 

A closer view of some case facts confirms at least part of the dissent’s observation.  One of the plaintiffs in the Devries case was the widow of a sailor who served in the U.S. Navy from 1957 to 1960 aboard a Navy ship originally built and commissioned during World War II.  Plaintiff alleged that the sailor encountered asbestos released from parts of equipment installed on the ship during his service. Although the date of the equipment’s manufacture and installation are not revealed in the opinion, it is reasonable to conclude that the original products at issue in the case were likely manufactured and installed sometime in the early 1940s and replacement parts were added or substituted sometime later but before 1960.  Plaintiff claimed the onset of asbestos-related disease sometime after 2009 and filed suit in late 2012.  As is quite common in asbestos litigation, one plaintiff’s case generally involves a product made in the 1940s, the alleged exposure to harm occurred some 15 to 20 years later, and the actual injury did not manifest for yet another 50 years. The time delay between manufacture and lawsuit in this case was more than 70 years.

There is nothing in the record that outlines the state of the law or the legally recognized duties that were imposed upon manufacturers at the time of manufacture or sale in the 1940s. Every case cited by the Court with respect to the requirements of tort or product liability law post-dates the manufacture of the product and the plaintiff’s exposure to the alleged harm. Stated another way, there is no analysis whether a manufacturer of equipment for sale to the U.S. Navy had at the time of manufacture a recognized legal duty to warn the government that aftermarket replacement parts manufactured by some other company may pose a hazard.  Any duty such a manufacturer had in the context of this case was applied retrospectively 70 years later.

The real effect of the Devries decision is that a manufacturer supplying critical equipment to the U.S. Navy during wartime exigencies in 1943 should have issued a written warning based on a legal duty that would not be recognized by the law until the Court’s opinion decades later.  This embraces the very concept of ex post facto – a law passed today that punishes behavior and imposes liability for conduct that was by all accounts appropriate and lawful at the time.  In this environment, it is little wonder that asbestos litigation is and will remain as vibrant as ever.