While federal maritime law recognizes strict product liability as a tort, it generally follows the Restatement (Third) of Torts formulation of the tort. Under the Restatement, a “product” for which there can be strict liability is “tangible personal property, distributed commercially for use or consumption. Warships are not distributed commercially for use or consumption. They are sold only to the government and are often built according to government plans and specifications. Hence, the shipbuilder cannot be held strictly liable for the asbestos in the warships it built for the US Navy. Summary judgment was properly granted against plaintiff in this asbestosis case because he could not prove that exposure to asbestos originally installed in the warships defendants built was a substantial factor in causing his mesothelioma. The evidence did not show how long he was exposed or the amount of asbestos dust present at the times he was exposed to it. The plaintiff’s expert’s theory that any exposure, however, small, is a substantial factor in causing asbestos-related illnesses once a threshold is crossed would read the substantial factor test out of existence.
Ninth Circuit Court of Appeals (O’Scannlain, J.); March 31, 2016; 2016 WL 1253903