Claims based on enhanced risk of future harm just got harder to bring. Yesterday, the United States Court of Appeals for the First Circuit affirmed the dismissal of a complaint in which the plaintiff alleged the corrugated stainless steel tubing (CSST) in his home, used to transport gas, is defective because it is vulnerable to perforation from lightning strikes.

In Kerin v. Titeflex Corp., 2014 WL 5573356, — F.3d — (1st Cir. Nov. 4, 2014), the First Circuit found that the plaintiff lacked standing because he failed to plead that his alleged risk of harm was “anything but remote.” The plaintiff failed to allege facts that would permit the court to calculate or estimate the risk of harm. And he failed to allege facts sufficient to show the number of instances in which CSST actually caused harm.

The First Circuit also highlighted that multiple code-writing and legislative bodies explicitly permit the installation and use of CSST: “This is not a case of regulatory silence, but of regulatory approval of the … product after a study of the risks.” The First Circuit found this regulatory approval carried “particular weight because the political branches have, after study of the particular risk in question, concluded that such risk is both permissible and manageable.”

The First Circuit’s decision is of great importance and will likely be heavily cited in future un-manifested defect cases. In cases in which a plaintiff’s allegedly defective product has not malfunctioned, the issue of whether the plaintiff has standing is almost always contested. The First Circuit has now made clear that plaintiffs seeking to pursue such claims must—at minimum—allege facts that permit a court to assess the likelihood the risk will materialize.

Montgomery McCracken represented Titeflex Corporation.

Law360’s review of the opinion is available here.