Last week, the United States Supreme Court in a 6-3 decision held that in the maritime toxic tort context, a product manufacturer has a duty to warn when its product requires asbestos components to be subsequently incorporated into the product for it to properly function. Air & Liquid Sys. Corp. v. DeVries, No. 17-1104, slip op. at 9-10 (U.S. Mar. 19, 2019). The products at issue – shipping components including pumps, blowers, and turbines – required the addition of asbestos insulation or asbestos parts to properly function. The plaintiffs, two Navy veterans, were exposed to asbestos in the shipping components, and alleged that this exposure caused them to develop cancer. Although the Supreme Court’s decision is limited to the maritime toxic tort context, the DeVries decision will nevertheless cause many product manufacturers pause as they consider their obligations for issuing appropriate warnings for products that they know will ultimately have asbestos or other hazardous materials integrated into the product before it reaches an end-user.
Navy veterans Kenneth McAfee and John DeVries served on ships that were equipped with pumps, blowers, and turbines that required asbestos insulation or asbestos parts to properly function. The defendant manufacturers produced some of the equipment used on the ships that required asbestos insulation or parts to properly function. The defendant manufacturers, however, did not always incorporate asbestos into their products and instead delivered the equipment to the Navy without asbestos (i.e. in “bare-metal” condition) and asbestos was subsequently added to the equipment. McAfee and DeVries alleged that their exposure to asbestos in this equipment caused them to develop cancer and, along with their wives, sued the defendant manufacturers in Pennsylvania state court. McAfee and DeVries both died during the course of litigation.
The defendant manufacturers removed the cases to federal court on the basis of federal maritime jurisdiction, and then moved for summary judgment on the grounds that they should not be liable for harms caused by asbestos containing insulation or parts added to their shipping equipment by a third-party. The District Court for the Eastern District of Pennsylvania granted the motion for summary judgment, but the United States Court of Appeals for the Third Circuit reversed, finding that manufacturers of “bare-metal” products could face liability for plaintiffs’ asbestos exposure if it was foreseeable that the products would be used with asbestos materials. In re Asbestos Prods. Liab. Litig., 873 F.3d 232, 241 (3d Cir 2017). The Supreme Court granted certiorari to address division among the United States Courts of Appeals regarding the bare-metal defense under maritime law.
The question before the Supreme Court was whether a manufacturer has a duty to warn when its product requires subsequent incorporation of a dangerous part for the completed/integrated product to properly function. The Court explained that there were three approaches on how to apply a duty to warn when a manufacturer’s product requires later incorporation of a dangerous part needed for the integrated product to properly function: (1) the foreseeability rule; (2) the bare-metal defense; and (3) a “required part” approach, which falls between the foreseeability rule and bare-metals defense. Under the “required part” approach, a manufacturer has a duty to warn when its product requires incorporation of a part that it knows is likely dangerous for its intended uses, even if it does not incorporate the part into the product itself. Foreseeability is insufficient to trigger a duty to warn under the “required part” approach.
Ultimately the majority of the Supreme Court, in an opinion authored by Justice Kavanaugh, adopted the third approach, and held that it was most appropriate for the maritime toxic tort context. The Supreme Court rejected the foreseeability rule as uncertain and unfair for requiring product manufacturers to imagine and warn against all potential uses—a costly burden that would result in over-warning users. The Supreme Court also rejected the bare-metal defense, finding that it would unjustly absolve manufactures of liability.
The Supreme Court explained that the rule it adopted only required that manufacturers warn when their products require a part for the integrated product to function as intended, and does not require manufacturers to warn only when it is potentially foreseeable that the product could later have asbestos added. The Supreme Court explained that the “required part” rule was particularly appropriate in the maritime context because “[m]aritime law’s longstanding solicitude for sailors reinforces [the Court’s] decision to require a warning in these circumstances.” DeVries, No. 17-1104, slip op. at 9. Accordingly, the Supreme Court held that in the maritime toxic 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.” Id. at 10. The Supreme Court stressed that it did not agree with all of the Third Circuit’s reasoning, but affirmed its decision that required the District Court to reconsider its grant of summary judgment in favor of the defendant manufacturers, and held that the District Court should evaluate the evidence under the new “required part” rule.
The dissent, authored by Justice Gorsuch and joined by Justice Thomas and Justice Alito, agreed with the majority’s rejection of the foreseeability rule, but disapproved of the creation of the new “required part” standard and its three-part test for imposing a duty to warn on manufacturers in the maritime tort context. The dissent criticized the “required part” standard for creating too much uncertainty with respect to legal duties, rights, and liabilities.
Although the Supreme Court’s decision in DeVries is restricted to the maritime toxic tort context, it nevertheless has important implications for product manufacturers when evaluating their duty to warn for products that may later incorporate asbestos or other hazardous substances.