In a 6-3 ruling on March 19, 2019, the United States Supreme Court held that, under maritime law, a product manufacturer has a duty to warn when its “bare metal” product requires incorporation of a part the manufacturer knows or has reason to know is likely to be dangerous, such as asbestos-containing components.
In Air & Liquid Systems Corp., et al. v. DeVries, No. 17-1104, 586 U.S. ___ (2019), the Supreme Court examined the scope of a manufacturer’s duty to warn of the dangers of asbestos when its own bare metal products are later combined with asbestos-containing parts that the manufacturer did not make or sell. Plaintiffs Kenneth McAfee and John DeVries (“Plaintiffs”) filed suit in state court against a number of product manufacturers alleging that they developed cancer as a result of exposure to asbestos-containing equipment, including pumps, blowers, and turbines manufactured by the defendants, while serving on U.S. Navy vessels.[1] Plaintiffs asserted, inter alia, that defendants were negligent in failing to adequately warn of the dangers associated with the use of their equipment, even though the defendant-manufacturers of the equipment at issue did not always incorporate asbestos into their products and instead delivered much of the equipment to the Navy without asbestos, in a condition known as “bare metal.” Defendants removed to federal district court under maritime jurisdiction and subsequently moved for summary judgment based on the “bare-metal defense.” The District Court granted the motions for summary judgment, and Plaintiffs appealed. The United States Court of Appeals for the Third Circuit vacated and remanded, holding that “a manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials” if the manufacturer could foresee that its product would be used with later-added asbestos-containing parts. In re Asbestos. Prods. Litig., 873 F.3d 232, 240 (3d Cir. 2017). The United States Supreme Court granted certiorari to resolve inconsistency among the Courts of Appeals regarding the validity and application of the bare-metal defense under maritime law.
In reviewing Plaintiffs’ failure to warn claim, the Supreme Court noted that maritime law has always recognized common-law principles of products liability. As such, the Court found it necessary to strike a balance between two doctrines; one favoring plaintiffs and the other favoring defendants. The plaintiff-friendly “foreseeability rule” provides that a manufacturer may be liable when it is foreseeable that its product would be used with a dangerous product, even if the manufacturer’s product did not require the incorporation of the dangerous product or part. The defendant-friendly “bare-metal defense” insulates the manufacturer of a product from liability if the manufacturer did not itself make, sell, or distribute the dangerous product or part incorporated into its own product, even if the manufacturer knew that incorporation of the dangerous part was necessary for its own product to be used as intended. Under the balanced approach adopted by the Court, a manufacturer has a duty to warn when its product requires incorporation of a dangerous component, even if the manufacturer does not itself incorporate the dangerous component. According to the Court, this approach strikes the appropriate balance, in the maritime context, between foreseeability and the potential burden on manufacturers to over-warn. As the Court pointed out, manufacturers already have a duty to warn of the dangers of their own products, and that duty “typically imposes a light burden on manufacturers.” DeVries, at p. 8 (citations omitted). Thus, “[r]equiring a manufacturer to also warn when the manufacturer knows or has reason to know that a required later-added part is likely to make the integrated product dangerous for its intended uses should not meaningfully add to that burden.” Id. Furthermore, the Court found that product manufacturers will often be in a better position than parts manufacturers to warn end-users of the dangers of the integrated part or product. See id. The Court was clear in emphasizing that its holding was “tightly cabined” and assigned an added duty on manufacturers to warn of the dangers of parts manufactured by third-parties “only when their product requires a part in order for the integrated product to function as intended.” Id. at p. 9. This limited additional duty, the Court stated, would not create confusion as to when manufacturers must warn, or lead to excessive warning of consumers. The Court found further justification for its holding specifically in the maritime context, because of maritime law’s longstanding “special solicitude for the welfare” of sailors. Id. (quoting Am. Export Lines, Inc. v. Alvez, 446 U.S. 274, 285 (1980)).
The Court added that its holding also applies in certain related situations, including when: 1) a manufacturer directs that a part be incorporated; 2) a manufacturer itself makes a product with a part that it knows will require replacement with a similar part; and 3) a manufacturer’s product would be useless without the part. See id. at p. 10. The underpinning for this rule, as the Supreme Court stated, was that “[i]n all of those situations, . . . the product in effect requires the part in order for the integrated product to function as intended.” Id. The Supreme Court remanded to the District Court to evaluate Plaintiffs’ claims under this new rule. Justices Roberts, Ginsburg, Breyer, Sotomayor, and Kagan joined in the ruling.
Justices Thomas and Alito joined in a dissent penned by Justice Gorsuch, which stated that the Court should have applied the traditional common law rule that places on manufacturers a duty to warn only with regard to products they actually manufactured. The Dissent found this rule would be both simpler to apply and would properly incentivize manufacturers to warn of the dangers of their own products.
While expressly limiting its holding to the maritime context, it is unclear whether the majority opinion may have nonetheless opened the door to attacks on the bare-metal defense in cases where substantive law other than maritime law applies. We expect plaintiffs to test those waters and use this decision to oppose summary judgment in jurisdictions that apply the bare-metal defense as an absolute bar to failure to warn claims based on component parts manufactured by third-parties.
[1] Plaintiffs ultimately died as a result of their cancer, and their respective widows pursued their claims.