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April 09, 2019

US Supreme Court Strikes Down "Bare Metal" Defense and Expands Manufacturers' Duty to Warn in Maritime Products Liability Case

On March 19, 2019, in Air & Liquid Systems Corp., et al. v. Devries, Individually and as Administratrix of the Estate of Devries, Deceased, et al., No. 17-1104, the US Supreme Court held that, in maritime law cases, a manufacturer has a duty to warn of hazards resulting from integration of a dangerous part or component it did not manufacture if that part or component is necessary for the product to function as intended. Specifically, the court held that the manufacturer of an asbestos-free product can be liable for injuries caused by asbestos-containing component parts that are added to its product at a later date.

In Devries, two Navy veterans alleged exposure to asbestos caused them to develop cancer. The petitioners manufactured equipment on ships that required asbestos insulation or asbestos component parts to function as intended. The manufacturers delivered much of the equipment to the Navy without asbestos, and the Navy later added it. The plaintiffs alleged the manufacturers were negligent in failing to warn about the dangers of asbestos in the final, integrated products. The manufacturers argued they should not be liable for harm caused by later-added, third-party products they did not manufacture. This is routinely referred to as the “bare metal” defense in asbestos litigation. The district court granted summary judgment to the manufacturers, but the Third Circuit, adopting a foreseeability approach, vacated and remanded.

In reaching its decision, the court addressed basic principles of the “duty to warn” in tort law. It rejected the application of a “foreseeability rule” (i.e., imposing liability on a manufacturer if it was foreseeable that its product would be used with another product or part, even if the manufacturer’s product did not require use or incorporation of that other product or part). It also rejected the defendants’ bare metal defense. The court adopted a third theory, finding that for liability to exist, it is sufficient that (1) a manufacturer’s product requires incorporation of a part, (2) a manufacturer knows or has reason to know the integrated part is likely to be dangerous when used as intended, and (3) a manufacturer has no reason to believe the product’s users will realize its danger.

The court reasoned that product manufacturers will often be in a better position than parts manufacturers to warn of danger. This is because product manufacturers know the nature of the end product and already have a duty to warn of the dangers of their own products. Nor, the court reasoned, would this approach result in substantial uncertainty about when manufacturers must provide warnings. This is because a manufacturer need only warn when its product requires a part for the final product to function as intended. The court also reasoned this approach is especially appropriate in the context of maritime law, which has “always recognized a special solicitude for the welfare of sailors.” Citing American Export lines, Inc. v. Alvez, 446 U.S. 274, 285 (1980).

The Devries decision represents an extension of potential liability in the manufacturing chain under maritime law, both for asbestos cases specifically and for failure-to-warn cases generally, which is a departure from recognized common-law product liability principles. Because of the court’s limitation of the decision to maritime cases, this holding does not necessarily mean the end of the bare metal defense in non-maritime cases. The court specifically noted that federal and state courts have not reached a consensus on how to apply general tort duty to warn principles in similar circumstances. However, the court’s decision is already creating concern for the effect it will have on cases in which the alleged exposure occurs on dry land. Undoubtedly, future plaintiffs in non-maritime cases will seek to extend the reach of DeVries to advocate a broad duty to warn in all cases.


If you have any questions regarding the content of this alert, please contact Jennifer Leonardi, partner, at jleonardi@barclaydamon.com or another member of the firm’s Mass & Toxic Torts and Torts & Products Liability Defense Practice Areas.

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