Trial Magazine

In Air and Liquid Systems Corp. v. DeVries, the U.S. Supreme Court granted cert on the following question: Should “bare-metal” manufacturers be liable under maritime law for injuries caused by asbestos-containing materials added to their equipment after the point of sale? By a vote of 6-3, the Court ruled earlier this year that manufacturers of machinery for the U.S. Navy have a duty to warn sailors about the hazards of that integrated machinery when they know replacement parts will create a hazard for the sailors, even for replacement parts they do not supply themselves.¹

The case involved two sailors who developed lung cancer from their ­exposure to asbestos-containing products while working aboard Navy ships. The plaintiffs sued numerous ship ­equipment manufacturers, alleging that they were negligent in failing to warn about the risks of the asbestos in replacement machinery parts that had to be integrated by the Navy for the machinery to perform properly. The machinery manufacturers argued that they should not be held liable for the sailors’ exposure to asbestos in the replacement parts supplied to the Navy by other entities—known as the “­bare-metal­” defense.²

The district court granted summary judgment twice, and after initially remanding the case, the Third Circuit reversed on the second go-around. It adopted the foreseeability test, which is a fact-specific standard: “[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 facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s failure to provide a reasonable and adequate warning.”³

In defending the Third Circuit’s decision, we emphasized that it decided the case on negligence grounds only. The Supreme Court affirmed the Third Circuit’s decision on this narrower basis. It held that, in the maritime context, a product manufacturer has a duty to warn when its product requires the incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended use and has no reason to believe the product’s user will realize the danger.⁴

Negligence versus products liability. Although Justice Brett Kavanaugh blended products liability and negligence concepts in the majority opinion,⁵ I believe the case is best understood by parsing the distinctions between negligence and products liability.

The defense presented the question to the Supreme Court as one of strict products liability, despite the Third Circuit’s negligence-based ruling. The defense focused on the replacement parts rather than the machinery to which those parts were attached, just as the Sixth Circuit did in Lindstrom v. A-C Product Liability Trust.⁶ Lindstrom held that a machinery manufacturer that shipped its machinery “bare metal” was not responsible for asbestos-containing materials manufactured by others that the Navy then installed. According to the defendants, the Third Circuit’s decision in DeVries created a circuit split, even though Lindstrom did not address any issues of negligence or duty.

The rationale behind the defense’s strict products liability argument is that when the manufacturer sold its product into the “stream of commerce,” it had no idea who would ultimately own or use its machinery and what repair parts might be used on that machinery. However, the large machinery at issue here was sold to the Navy, and once it was installed on the ship, it was going to stay there for the life of the ship.

The defense also argued that one manufacturer had no reason to know what another manufacturer knew about its replacement component part, and that it therefore could not and should not be responsible for that component part because the machinery was “bare metal” and posed no danger when it was first installed on the naval ship. From a policy perspective, the defense could then argue that strict products liability had gone too far and that this case presented the opportunity to stop the trend.

But the record established that the defendants had contractual duties to provide the Navy with repair and ­maintenance manuals for their machinery and that, at a prima facie level, the defendants knew of the dangers of asbestos and failed to place any warnings at all in the manuals. We showed that the plaintiff did not know of the danger because the defendants breached their duty to warn of the asbestos danger in their repair manuals.

Negligence focuses on a defendant’s conduct and incorporates concepts of responsibility and fault. Conservative courts generally accept that an actor who has a duty to warn but who fails to comply with that duty should be held liable when a third party is injured because of that failure to warn. As Justice Kavanaugh observed, “the product manufacturer will often be in a better position than the parts manufacturer to warn of the danger from the integrated product.”⁷

We were able to demonstrate here that the machinery manufacturers knew the asbestos-containing parts would wear out and would need to be replaced with other asbestos-containing parts.

‘Solicitude for the sailor.’ The Court also affirmed the long-standing policy in maritime cases of “solicitude for the sailor.”⁸ This policy arose from the recognition that the life of a sailor is dangerous and it is incumbent on shipowners to lessen that danger whenever possible.⁹ The defense argued for a discontinuation of this policy because it was developed in the 1790s when the life of a sailor was much more dangerous than it is today. But it is still one of the most dangerous occupations in modern society. The majority embraced this policy and said that it reinforced the Court’s decision to require warnings.

Impact on state claims. The Court was careful to state that the decision was limited to maritime cases. Since these cases can be brought in both state and federal courts, DeVries is binding on every maritime case, no matter where it is brought. There is no longer a reason for a maritime defendant to remove a case filed in state court to federal court because the law may be more favorable. The Court also rejected the “bare-metal” defense.

Most state courts have policies that encourage workplace and product safety, and those policies may provide the reinforcement needed for state courts to reject the “bare-metal” defense in asbestos cases outside of maritime law.

Over the past few decades, we have seen statutory and decisional limitations placed on strict products liability cases. DeVries illustrates the potential alternative path.

Richard Myers is an attorney at Paul, Reich, and Myers in Philadelphia. He can be reached at rmyers@prmpclaw.com. He was counsel of record for the appellees in DeVries and coauthored their Supreme Court brief.

Notes

1. 139 S. Ct. 986 (U.S. 2019).
2. The DeVries dissenters acknowledge that the supplier of the replacement asbestos-­containing parts had a duty to warn. Id. at 996. When the machinery manufacturer supplied asbestos-containing replacement parts, it also had a duty to warn. Id. at n.5. In practice, most Navy clients do not know the name brands of replacement parts used on machinery. This is because such parts were kept in the ship’s storeroom and because the original packaging was often discarded due to the need to use space efficiently. 
3. In re Asbestos Prods. Liab. Litig. (No. VI), 873 F.3d 232, 240 (3d Cir. 2017).
4. 139 S. Ct. 986 at 991.
5. The majority discusses §388 of the Restatement (Second) of Torts with respect to negligence and Restatement (Third) of Torts: Products Liability §2, cmt. i in the same paragraph. Id. at 994.
6. 424 F.3d 488, 495 (6th Cir. 2005).
7. 139 S. Ct. 986 at 994.
8. See, e.g., Harden v. Gordon, 11 F. Cas. 480 (D. Me. 1823).
9. Here, the shipowner (the Navy) was immune from liability under the Feres doctrine. Feres v. United States, 340 U.S. 135 (1950).