On October 3, 2017, the United States Court of Appeals for the Third Circuit held—in a case of first impression—that a manufacturer of a “bare metal” product may be liable for a plaintiff’s injuries caused by later added asbestos-containing materials.
Roberta G. Devries and Shirley McAfee were widows of husbands who served in the United States Navy. Each filed a Complaint against a group of manufacturers alleging that their husband contracted cancer as a result of asbestos exposure. Devries alleged that her husband worked aboard the U.S.S. Turner from 1957-60. During that time, he allegedly was exposed to asbestos-containing insulation and components that were added to the manufacturers’ products aboard the ship. McAfee made similar allegations about her husband’s experience and subsequent illness after stints aboard two ships and a naval shipyard.
The manufacturers moved for summary judgment, asserting that the “bare metal” defense absolved them from liability. The bare metal defense is an affirmative defense, usually applied in the context of maritime law, and dictates that manufacturers do not have to warn of potential dangers associated with exposure to a part of their product if they did not make or distribute that part. The District Court found that the defense applied, and granted summary judgment to the manufacturers. Devries and McAfee appealed.
Prior to Devries and McAfee’s appeal, the Third Circuit had yet to address the applicability of the bare metal defense. Some courts from other jurisdictions applied a bright line rule, holding that a manufacturer cannot be liable for injuries caused by asbestos-containing parts added later to their products. For example, in Lindstrom v. A-C Prod. Liab. Tr., 424 F.3d 488, 496 (6th Cir. 2005), the Sixth Circuit held that a manufacturer could not “be held responsible for the asbestos contained in another product” such as replacement asbestos-containing gaskets and packing later added to the manufacturer’s products. Other courts have applied a more fact-specific standard, holding that a manufacturer could be liable if they knew or had reason to know that asbestos-containing parts would be used with their product. In other words, a manufacturer could only be liable if it was foreseeable that an asbestos-containing part would be added later (and, possible, whether it was foreseeable that those additions would cause injury).
The Third Circuit balanced both approaches in its analysis of Devries and McAfee’s appeal, and found that the bright-line rule was, put simply, too harsh. According to the court, “maritime law’s special solicitude for the safety and protection of sailors counsel[ed it] to adopt a standard-based approach to the bare-metal defense that permits a plaintiff to recover, at least in negligence, from a manufacturer of a bare-metal product when the facts show the plaintiff's injuries were a reasonably foreseeable result of the manufacturer’s conduct.” In re: Asbestos Prod. Liab. Litig. (No. VI), 873 F.3d 232, 241 (3d Cir. 2017).
The Third Circuit set out a number of factors that would be relevant to the foreseeability analysis when assessing the viability of the bare metal defense. These factors include first a determination of whether the manufacturer could have known at the time its product was placed into the stream of commerce that asbestos was hazardous. Second, it must be determined whether the manufacturer could have known at the time its product was placed into the stream of commerce that “its product will be used with an asbestos-containing part” under any number of reasons, such as that (a) “the product was originally equipped with an asbestos containing part that could reasonably be expected to be replaced over the product’s lifetime;” (b) “the manufacturer specifically directed that the product be used with an asbestos-containing part;” or (c) “the product required an asbestos-containing part to function properly.” The court held that that the application of its newly adopted standard could drive different analyses and outcomes with regard to the bare metal defense. As a result, the court reversed the District Court’s grant of summary judgment so that standard could be applied.
This case is the latest in a string of cases from different jurisdictions where courts have applied different standards with regard to the bare metal defense. The Third Circuit is the latest to decide what limits, if any, are placed on assertion of the defense. If and until the Supreme Court takes up the issue, it is likely that the jurisdictional divide regarding the defense’s applicability will continue. Litigators representing manufacturers of products that may have had asbestos-containing parts later added to the products should be aware of how the defense has been applied in courts across the country, both state and federal.
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