United States Supreme Court To Consider The Bare Metal Defense

by Husch Blackwell LLP
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The United States Supreme Court granted a petition for certiorari in Air and Liquid Systems Corp. et al. v. Devries et al. and is set to wade into the fiercely contested waters surrounding the bare metal defense under maritime law. Generally, the bare metal defense asserts that defendants that manufactured products composed of only metal, and no asbestos components, have no liability regarding asbestos-containing components later utilized in or on their products. Common examples of bare metal products would include pumps, turbines, and valves; and common examples of later installed asbestos-containing components would include asbestos gaskets, asbestos packing, or asbestos insulation. The case at bar is a consolidated appeal from two matters, DeVries v. General Electric Co., et al, and McAfee v. 20th Century Grove Corp. of Texas, et al, arising out of the Third Circuit. The Court will directly address the question: “Can products-liability defendants be held liable under maritime law for injuries caused by products that they did not make, sell, or distribute?”[1]

Background of the Case

As mentioned above, this matter arose out of two cases in the Third Circuit, DeVries and McAfee. The DeVries matter involved a plaintiff that served aboard the U.S.S. Turner from 1957 to 1960 as an engineer. The Turner was built by a non-party, Bath Iron Works. The US Navy required equipment manufactures to supply their products in “bare metal” form and then added insulation from third party suppliers according to Navy specifications. The equipment manufacturers may have supplied their equipment with internal asbestos components, i.e. gaskets, but it was uncontested that these original parts had worn out and been replaced multiple times before the plaintiff served on the Turner. Furthermore, the equipment manufacturers did not supply the replacement parts utilized by the Navy. In 2012, the Plaintiff was diagnosed with lung cancer and filed suit against the defendants, CBS Corporation, Foster Wheeler, and Buffalo Pumps who manufactured turbines, boilers, and pumps, under products-liability theories of strict liability and under negligence. The defendants, later becoming the petitioners before the Supreme Court, moved for summary judgment under the bare metal defense and their motions were granted.

The McAfee matter is similar in that the plaintiff served in the late 1970s aboard the U.S.S. Wanamassa and the U.S.S. Commodore as a merchant marine. Again, Defendant Ingersoll Rand, supplier of a compressor, supplied their equipment to the Navy according to specifications and without insulation. Any internal asbestos-containing components original to the equipment had worn out and been replaced many times before plaintiff served aboard either ship. Ingersoll Rand moved for summary judgment under the bare metal defense and their motions were granted.

The Third Circuit consolidated the appeals and affirmed the district court’s rulings with regards to the strict liability claims, but the Third Circuit remanded the cases to the district court with regards to the negligence claims. On remand, the District Court confirmed its rulings that there can be “no liability in negligence for asbestos exposure arising from a product (or component part) that a manufacturer did not manufacture or supply.”[2] The District Court reaffirmed summary judgment for the defendants in both cases, and the plaintiff appealed again in both cases.

Third Circuit’s Second Opinion

After the district court confirmed summary judgment in both McAfee and DeVries, the Third Circuit heard the matter on appeal. The Third Circuit again affirmed the district court’s ruling with respect to the strict liability claims, but it reversed and remanded the district court’s confirmed ruling with regards to the negligence claims.

In its opinion, The Third Circuit noted there is a split amongst the various state courts and federal courts. Some courts apply a bright line rule that manufacturers cannot be held liable for products or components it did not manufacture. Whereas, other courts apply a fact-specific standard that asks “whether the facts of the case made it foreseeable that hazardous asbestos materials would be used.”[3]

The Court surveyed the principles of maritime law for guidance in issuing a ruling. The Court heavily relied upon the principle that maritime law has a “special solicitude for the welfare of those men who undertook to venture upon the hazardous and unpredictable sea voyages”[4] and that it is better “to give than to withhold the remedy.”[5] The Court considered the principle of “simplicity and practicality,” but determined it did not favor one approach over the other. The Court briefly considered the principles of protecting commerce and the inclination towards uniform rules, but it opined that these principals were not particularly helpful in its analysis.

Accordingly, the Court found the “special solicitude for the safety and protection of sailors … dispositive”[6] and held that a bare-metal manufacturer may be subject to liability if:

At the time the [manufacturer] placed its product into the stream of commerce, that

  1. asbestos is hazardous, and
  2. its product will be used with an asbestos-containing part, because
    1. the product was originally equipped with an asbestos containing part that could reasonably be expected to be replaced over the product’s lifetime,
    2. the manufacturer specifically directed that the product be used with an asbestos containing part, or
    3. the product required an asbestos-containing part to function properly.[7]

Sixth Circuit’s Opinion

The Third Circuit’s opinion created a circuit split opposite the Sixth Circuit’s opinion in Lindstrom v. A-C Product Liability Trust.[8] In Lindstrom, the plaintiff was a merchant seaman engineer aboard numerous vessels. He developed mesothelioma and brought suit against various defendants under both products liability and negligence. The district court granted summary judgment to defendant appellees and the Sixth Circuit affirmed the ruling. Importantly, the court held that a defendant “cannot be held responsible for asbestos containing material that was incorporated into its product post-manufacture”[9] and that “a defendant ‘cannot be held responsible for material ‘attached or connected’ to its product on a claim of a manufacturing defect.”[10]

Potential Impact

As demonstrated above, courts across the country are sharply divided in their rulings regarding the bare metal defense. After well over a decade of litigation between plaintiffs and defendants on this issue, it was only a matter of time before the Supreme Court took on review of this issue. Anytime the Supreme Court takes on an issue of first impression, the legal landscape is certain to change. Given the limited scope of appeal (the bare metal defense applied to negligence claims under maritime law), the Supreme Court is likely to issue a limited ruling. Yet, both sides will surely weave this case into future arguments. A ruling in favor of the bare metal defense would be a victory for defendants in asbestos cases and would be widely cited as persuasive authority in their motions.

The petition and corresponding briefs can be found here.


[1] Petition for Cert. at i, Air and Liquid Systems Corp., et al., v. DeVries, et al., No. 17-1104.

[2] Appendix to the Petition for Cert. at 29a, Air and Liquid Systems Corp., et al., v. DeVries, et al., No. 17-1104.

[3] In re: Asbestos Prod. Liab. Litig. (No. VI), 873 F.3d 232, 238 (3d Cir. 2017), cert. granted sub nom. Air & Liquid Sys. Corp. v. Devries, No. 17-1104, 2018 WL 753606 (U.S. May 14, 2018) (citing morgana v states marine lines, inc., 398 us 375, 387 (1970)).

[4] Id. at 238.

[5] Id. (citing The Sea Gull, 21 F. Cas 909, 910 (C.C. Md. 1865))

[6] Id. at 240.

[7] Id.

[8] Lindstrom v. A-C Products Liability Trust, 424 F.3d 488 (6th Cir. 2005).

[9] Id. at 497.

[10] Id. at 495 (citing Stark v. Armstrong World Indus., Inc., 21 F. App’x 371, 375 (6th Cir. 2001)).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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