Injured Sailors May Seek Punitive Damages in the Asbestos MDL

U.S. District Judge Eduardo C. Robreno of the Eastern District of Pennsylvania, who oversees asbestos multidistrict litigation, issued a decision in July permitting injured sailors to seek punitive damage awards. In Re: Asbestos Products Liability Litigation (No. VI), Hector L. Sanchez, et al. v. Various Defendants, Consolidated Under MDL Docket No. 875. Characterizing the questions raised as issues of first impression, Judge Robreno’s ruling is directed at limited types of cases brought under maritime law. Specifically, Judge Robreno ruled that punitive damages may be sought under unseaworthiness claims brought outside of actions under the Jones Act (46 U.S.C. § 30104, et seq.) and the Death on the High Seas Act (DOHSA) (46 U.S.C. § 30301, et seq.). The ruling harkens back to long standing common law principles definitive of maritime law.

The case was brought on behalf of merchant marines and their survivors against various ship owners. The plaintiffs assert unseaworthiness claims, alleging exposure to asbestos-containing products used aboard the ships, causing lung injuries. Based on these claims, the plaintiffs’ complaints sought recovery of punitive damages.

Before Judge Robreno were approximately 1,800 motions for partial judgment on the pleadings filed by the defendants with respect to the plaintiffs’ claims for punitive damages. The defendants argued that punitive damages are unavailable under the general maritime doctrine of unseaworthiness. The plaintiffs argued that punitive damages may be awarded for unseaworthiness claims under the test established in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009). Further, the plaintiffs argued that punitive damages are not only proper in unseaworthiness claims brought by injured seamen directly, but also extend to survival actions.

In evaluating the proper scope of remedies available under general maritime law, Judge Robreno provided a thoughtful analysis of the evolution of remedies historically available under general maritime law, recognizing that the Supreme Court has yet to weigh in on the issue of punitive damages under general maritime law. Traditional maritime law limited seamen’s actions against their employers to claims for “maintenance and cure” and “unseaworthiness.” The Supreme Court has recognized unseaworthiness as a strict liability tort, holding a shipowner “liable for failure to supply a safe ship irrespective of fault and irrespective of the intervening negligence of crew members.” Miles v. Apex Marine Corp., 498 U.S. 19, 25 (1990) (citing Mahnich v. Southern S.S. Co., 321 U.S. 96, 100 (1944)). General maritime law did not permit either survival or wrongful death actions, and thus recovery, if a seaman died from his injuries. Not until the Jones Act and DOHSA, enacted by Congress in 1920, were seamen and their relatives afforded causes of action for wrongful death and survivorship under maritime law. Under both statutes, recovery is limited to pecuniary damages.

The court’s analysis of the plaintiffs’ claims was twofold. Applying the recent Atlantic Sounding decision which dealt with claims for maintenance and cure, the court evaluated whether both the cause of action and remedy sought by the living plaintiffs predated enactment of the 1920 statutes. Reaffirming the Supreme Court’s ruling in Miles and Atlantic Sounding for death claims, the court acknowledged that “wrongful death actions are an entirely different matter, as they do not predate the Jones Act.” Holding that “the remedies available in wrongful death actions are limited to those available under the Jones Act and DOHSA,” the court looked to Atlantic Sounding, which distinguishes death claims under maritime law from general maritime claims:

Like wrongful death claims, survival claims do not predate the Jones Act. Recognizing that absent a change in traditional maritime principles, any award of punitive damages in a survival action “represents an expansion of the general maritime law that must conform to the remedies condoned by Congress.”

As for those plaintiffs not asserting injuries of death, the court established that both maintenance and cure and unseaworthiness predated the enactment of the federal maritime statutes. Because of this, Judge Robreno extended the ruling in Atlantic Sounding, which held that punitive damages have long been an accepted remedy under general maritime law, and that nothing in the Jones Act altered this understanding, permitting living sailors to recover punitive damages for unseaworthiness claims.

Turning to the asbestos-specific aspects of the case, Judge Robreno looked to the history of asbestos products and litigation as a whole. Noting that asbestos is heavily regulated today, that there is little conduct left to deter in light of the Occupational Safety and Health Administration (“OSHA”) regulating occupational exposure to asbestos since 1971, and that many corporations who sold asbestos-containing products have declared bankruptcy in light of asbestos litigation, the court gave credence to the defendants’ arguments that punitive damages are not appropriate in asbestos cases.

Judge Robreno rationalized his ruling on punitive damage awards by indicating that, while it will not necessarily deter or punish asbestos defendants since asbestos is strictly regulated today, the potential lies for deterrence of future reckless conduct with regard to different “risky” products. In citing to the Sixth Circuit, Judge Robreno explained that “whether a defendant’s particular course of conduct has ceased is irrelevant to the accomplishment of the broader general deterrence function of punitive damages awards.” While permitting punitive damages in response to 27 of the approximately 1,800 motions for partial judgment, Judge Robreno held that any relief for punitive damages under maritime law must conform to limitations under the Due Process Clause, maritime law and proceeding standards provided by Federal Rule of Civil Procedure 12.

The full impact of the In Re Asbestos Products decision remains to be seen. While the court’s reasoning maybe a powerful tool to preclude punitive damages for vessel owners faced with claims for wrongful death or survival unseaworthiness claims, the reach of the court’s decision as to direct claims by seamen is not clear. Most likely, other courts will need to weigh in on this specific issue in the future in order to determine the availability of punitive damages in unseaworthiness claims under maritime law generally.