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United States Supreme Court Rejects the "Bare Metal" Defense in Maritime Cases

March 20, 2019

Air & Liquid Systems v. Devries
(No. 17–1104, March 19, 2019)

The families of naval veterans who had died of asbestos-related diseases brought products liability claims against the manufacturers of pumps, blowers, and turbines used on naval ships, claiming that the manufacturers had a duty to warn of the risks of asbestos-containing insulation the Navy used with their products. The district court granted summary judgment for the manufacturers, holding that under the “bare metal” defense, a manufacturer is not liable for failing to warn about asbestos-containing products used with its products that the manufacturer did not supply. The Third Circuit Court of Appeals reversed, holding that the manufacturers had a duty to warn because it was “foreseeable” that asbestos-containing products would be used with their products.

A majority of the Supreme Court affirmed the Third Circuit’s decision to reverse the summary judgment and remand for reconsideration, but adopted what it described as a middle approach, rejecting both the “bare metal” defense and the “foreseeability” test. The Court held that “[i]n the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires 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 uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.”

Justice Gorsuch, joined by two other justices, dissented, advocating for the “bare metal” defense, which is followed in the majority of jurisdictions, and arguing that the majority’s approach suffered from the same flaws as the “foreseeability” approach it rejected. In his dissenting opinion, Justice Gorsuch cited O’Neil v. Crane Co. (2012) 53 Cal.4th 335, in which the California Supreme Court held that product manufacturers are not liable for asbestos-containing products they did not place into the stream of commerce.

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