In March, in an opinion authored by Justice Kavanaugh, the Supreme Court of the United States decided a maritime tort claim which discussed the “bare metal” defense commonly asserted by manufacturers in asbestos litigation. The case, Air & Liquid Systems Corp. v. Devries, — S.Ct. —, 2019 WL 1245520 (2019), arose out of the Third Circuit. The underlying cases involved allegations that two men developed asbestos-related diseases from exposures to asbestos while serving in the U.S. Navy and in a shipyard. The estates for the men alleged the plaintiffs worked around asbestos-containing insulation, gaskets, and packing which had been incorporated into other equipment, such as pumps and valves. The estates alleged maritime claims sounding in negligence and strict liability.
Various equipment manufacturers moved for summary judgment, arguing that the products they sold to the Navy (e.g. compressors, condensers, steam traps, pumps, engines, etc.) consisted of “bare metal” and that when these products left their control they did not contain any asbestos-containing component parts. The equipment manufacturers argued that they could not be held liable for any injuries allegedly caused by the asbestos-containing insulation, gaskets, and/or packing products which were manufactured by third parties and later added to their respective equipment. The district court agreed and granted the dispositive motions. On appeal, the Third Circuit reversed and remanded, reasoning that these types of exposure were “foreseeable and inevitable.”
The Supreme Court affirmed the Third Circuit ruling by a vote of 6-3, with Justice Gorsuch authoring a dissent that was joined by Justices Alito and Thomas. Justice Kavanaugh’s majority opinion held that a manufacturer has a duty to warn when:
- Its product requires a particular component part to function;
- The manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended purposes; and
- The manufacturer has no reason to believe that the integrated product’s end users will realize that danger.
In this decision, the Supreme Court chose not to adopt the manufacturer’s preferred “bare metal” test. But, at the same time, the Supreme Court did not entirely adopt the Third Circuit’s “foreseeability” test. Instead, the Supreme Court adopted a third approach, which allows for a foreseeability analysis in the event the manufacturer required the incorporation of an asbestos-containing component part that made the integrated product dangerous for its intended users. The Supreme Court’s analysis hinged on common law tort policy principles, which generally find that manufacturers are in a better position to warn end users of potential dangers associated with their products.
While the Supreme Court’s decision did not adopt the manufacturers’ preferred bright line “bare metal” defense, it did not close the door on the defense entirely. Notably, this decision does not directly impact asbestos exposure claims that are premised on state law negligence or strict liability. Indeed, the Supreme Court expressly stated that its opinion is not intended to govern state law claims, as it did “…not purport to define the proper tort rule outside of the maritime context.” Despite not being of precedential value outside of the maritime context, however, it is anticipated that this case will filter through state law litigation and may have repercussions on how judges apply the “bare metal” defense outside the context of maritime claims. Nonetheless, manufacturers facing state law claims likely will continue to assert the defense depending on factors applicable to each particular product and company.
The Asbestos Litigation Defense Group at HAWS-KM represents manufacturers, distributors, contractors, and premises owners in asbestos litigation throughout the country. If you have any questions regarding this content, please contact the author at (651) 227-9411.
