On March 19, 2019, the U.S. Supreme Court decided the first case involving maritime law in several years. In Air & Liquid Systems Corp. et al v. Devries, et al, 586 US ___ (2019), Justice Kavanaugh, writing for the majority in a 6-3 decision, ruled that manufacturers have a duty to warn when: (i) their products require incorporation of a part; (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended use; and (iii) the manufacturer has no reason to believe that the product user will realize that danger.
The claims involved two veterans of the U.S. Navy who had worked on ships outfitted with equipment such as blowers, pumps, and turbines that, although not originally manufactured with asbestos, required asbestos installation or asbestos parts in order to function as intended. When used as intended, this equipment caused the release of asbestos fibers that were inhaled by the plaintiffs causing them to develop cancer. The plaintiffs and their wives sued the equipment manufacturers in Pennsylvania State Court but did not sue the Navy because of a belief that the Navy was immune. In addition, the plaintiffs were unable to recover from the actual manufacturers of the asbestos insulation and products because those manufacturers had gone bankrupt. Thus, their sole recourse was suing the manufacturers of the products as manufactured, even though the manufacturers did not either produce the asbestos or install asbestos related products in the pumps or blowers.
The manufacturers asserted what the court referred to as the “bare metal” defense, contending that they should not be held liable for harm caused by later added third-party parts.
The case was ultimately removed to federal court and the District Court granted the manufacturers’ summary judgment motion, which determination was vacated on appeal. The Court of Appeals held that the manufacturers could be held liable if the manufacturers could foresee that the product would be used with the later added asbestos containing materials.
Justice Kavanaugh went through the three traditional approaches to maritime tort duty-to-warn principals, where the manufacturer’s product requires later incorporation of a dangerous part in order for the integrated product to function as intended. The first approach, which was the most plaintiff friendly, involved a straight forward foreseeability rule. The second approach, more defendant friendly, provided that “bare metal” defenses are sustainable where the manufacturer did not itself make, sell, or distribute the part or incorporate the dangerous part into the product.
The third approach, which the Court adopted, was what the Court found to be the “in between” approach, meaning that if there is foreseeability that the product may be used with another product that is likely to be dangerous, a manufacturer does have a duty to warn where the product requires incorporation of the part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended use. Thus, in such a case the manufacturer may be liable even where the manufacturer does not itself incorporate the required part into the product.
The Court rationalized that the product manufacturer will generally be in a better position than a parts manufacturer to warn of the danger of the integrated product because the manufacturer of the product knows the nature of the ultimate integrated product and is typically more aware of risks associated with that product. In addition, the Court rejected the claim that issuing of warnings cost time and money by finding that the burden is not significant and that manufacturers generally already have a duty to warn of the dangers of their own products.
The Court was careful to note that this determination was limited to the maritime tort context and reiterated that the rule only applied where the manufacturer knew or had reason to know that the integrated product is likely to be dangerous for its intended use and the manufacturer has no reason to believe that the product users will realize that danger.
The dissent, per Justice Gorsuch, although agreeing that a simple foreseeability rule was overly broad, took issue with the majority, finding that the duty to warn should be borne principally by the dangerous product manufacturer as opposed to the manufacturer of a product that, in and of itself, is not dangerous, thus, generally agreeing with the basis for the bare metal defense.
Although limited to maritime cases, in which the Court expressed a “special solicitude” for sailors, it does appear that this decision will potentially open up an entirely new class of defendants to those claiming injury or death as a result of exposure to asbestos or other toxic substances not previously recognized in maritime law.