Gorsuch, J., dissenting
being held responsible retrospectively for failing to warn about other people’s products. It is a duty they could not have anticipated then and one they cannot discharge now. They can only pay. Of course, that may be the point. In deviating from the traditional common law rule, the Court may be motivated by the unfortunate facts of this particular case, where the sailors’ widows appear to have a limited prospect of recovery from the companies that supplied the asbestos (they’ve gone bankrupt) and from the Navy that allegedly directed the use of asbestos (it’s likely immune under our precedents). Ante, at 3. The bare metal defendants may be among the only solvent potential defendants left. But how were they supposed to anticipate many decades ago the novel duty to warn placed on them today? People should be able to find the law in the books; they should not find the law coming upon them out of nowhere.
Still, there’s a silver lining here. In announcing its new standard, the Court expressly states that it does “not purport to define the proper tort rule outside of the maritime context.” Ante, at 10. Indeed, the Court acknowledges that it has created its new standard in part because of the “solicitude for sailors” that is a unique feature of our maritime jurisdiction. Ante, at 9. All of this means, of course, that nothing in today’s opinion compels courts operating outside the maritime context to apply the test announced today. In other tort cases, courts remain free to use the more sensible and historically proven common law rule. And given that, “unlike state courts, we have little… experience in the development of new common-law rules of tort,” Saratoga, 520 U. S., at 886 (Scalia, J., dissenting), that is a liberty they may be wise to exercise.[1]
- ↑ As the Court notes, some of the defendants sold the Navy products that were not “bare metal” but contained asbestos at the time of sale. Ante, at 3, n. 1. We can all agree that those defendants had a duty to
