On October 10th, the United States Supreme Court heard arguments in Air & Liquid Systems Corp., et al. v. Devries, et al., No. 17-1104, over whether the manufacturer of a bare metal product, in this case engines on a Navy ship, may be held liable for injuries suffered from later-added asbestos-containing materials. Under maritime law, the Third Circuit said yes, if the facts show the manufacturer reasonably could have known that asbestos is hazardous and its product will be used with an asbestos-containing part, because (a) the product was originally equipped with the asbestos part, which needs to be replaced, (b) the manufacturer specifically directed that the product be used with the asbestos-containing part, or (c) the product required the asbestos-containing part to properly function.

Even though the case was brought under maritime law, the arguments centered on the application of general tort law and foreseeability. The Court’s decision will have broader implications for the bare-metal defense, for which there is currently a split of authority among state courts.

The manufacturers argued the Supreme Court should adopt the ordinary tort law rule that defendants may be liable for injuries caused by their own products, but not for injuries caused by third-party products foreseeably used with their own. As a matter of policy the burden should be on the party best able to control the harm, in this case the asbestos-component manufacturer. Technology changes over time, and the warnings applicable when the engine was first installed on the ship may be superseded by later technology advances. In response to a question by Chief Justice Roberts, the manufacturers argued, “As technology changes, our warning from 1945 might well have become outdated and inconsistent with a state-of-the-art warning provided later.” Likewise, requiring an engine manufacturer to warn about every third-party product that might be used with its engine at a later date would lead to over-warning, which would dilute the effectiveness of the warnings provided. It could also lead to inconsistent warnings where a specific warning is given when the product is initially installed on the ship, but years later the basis for the warning changes as technology advances.

In response to questions about the fact that the engine manual recommended the use of asbestos and indicated the engine would not work without asbestos, the manufacturers argued that there were viable alternatives to asbestos use, and even if the manufacturer directed that asbestos be used with its product, the Navy had the ability to decide what to use.

The plaintiff urged the Court to adopt the reasonable foreseeability test articulated by the Third Circuit, arguing that, “if you make a product and the ordinary use of that product is going to cause a harm that you know about, then you need to warn about that.” The manufacturer is in the best position to warn because “it’s their machine.” The manufacturer is “much more familiar with how the parts work than the part manufacturer because the parts can be used for lots of different machines.” This is the integrated product doctrine—“the manufacturer of the integrated product knows how its product is operating, knows what effect will happen on the parts, and it centralizes the warnings” in a product manual.

In response to questions from Justice Alito about why the Navy isn’t in the best position to warn since it chooses the specifications for the engines, plaintiff argued the Navy required manufacturers to provide manuals on how machines are maintained because the Navy is not the expert. Rather, the manufacturers are the experts—they are the ones who tested and designed the machines and know what kind of gasket will work best with the machine.

It is not certain how the Supreme Court will come out on the issue. If the Court concludes that the manufacturers did have a duty to warn about the use of third-party asbestos-containing components with their products, the decision could lead states that permit such a defense to reconsider. Likewise, if the Court concludes the manufacturers did not have a duty to warn, states that have previously rejected the bare metal defense might be convinced to adopt it. Thus, the decision may have broad implications for the availability of the bare-metal defense in all asbestos cases.