Ninth Circuit Agrees with Hugo Parker: Not "Every Exposure Counts" and Navy Ships are not "Products"

Posted on Monday, 27 June 2016

In a long-awaited opinion, the Ninth Circuit became the first federal appellate court to hold that Naval warships are not "products" for purposes of strict products liability.  Plaintiffs’ subsequent petition for en banc review was denied, making the opinion final.

Naval vessels were never distributed commercially and therefore fall outside the realm of products liability law.  The panel also exonerated Hugo Parker’s shipbuilder client from any negligence, finding a lack of causation and rejecting plaintiffs' argument that "every-exposure-to-asbestos-counts," a theory which would impose liability on defendants responsible for exposures to minimal exposures at or even less than background levels. "Allowing causation to be established through testimony like [plaintiffs' expert] would 'permit imposition of liability on the manufacturer of any [asbestos-containing] product with which a worker had the briefest of encounters on a single occasion.'  Id.  This is precisely the sort of unbounded liability that the substantial factor test was developed to limit."

The Ninth Circuit noted that plaintiffs had cited no case under maritime law approving the "every exposure" theory.  The decision was announced less than four weeks after a California appeals court held that the "every exposure" theory is the subject of "legitimate scientific debate" and therefore experts should be allowed to offer the theory and juries must be permitted to resolve the conflicts between competing expert opinions. (Davis v Honeywell (March 3, 2016) 245 Cal.App.4th 477).

Edward R. Hugo argued the case; James C. Parker and Charles Park handled the briefing.


The entire published opinion is linked here.


McIndoe v. Huntington Ingalls, Inc., 2016 U.S. App. LEXIS 5893

  • Ninth Circuit
  • Case Nos. 13-56762, 13-56764
  • R. Gary Klausner, District Judge, Presiding
  • Before: Alex Kozinski, Diarmuid F. O'Scannlain, and Jay S. Bybee, Circuit Judges.
  • For Plaintiff: Richard M. Grant, Brayton Purcell LLP
  • For Defendant: Edward R. Hugo, James C. Parker, Charles Park of Hugo Parker, LLP for Bath Iron Works; Daniel J. Kelly of Tucker Ellis LLP, for Huntington Ingalls, Inc.


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