On March 19, 2019, the Supreme Court decided Air & Liquid Systems Corp. v. Devries, a case addressing the liability of a manufacturer under maritime law for injuries caused when asbestos was incorporated into their product by a third party after sale.
The Air & Liquid Systems Corporation (ALS) produced equipment for United States Navy ships. Parts of the equipment required asbestos insulation and asbestos parts in order to function but the manufacturers delivered the equipment without asbestos and the Navy added it later. Two Navy veterans, Kenneth McAfee and John DeVries developed cancer and died after being exposed to asbestos while stationed on the ships. Their families sued manufacturer ALS in federal district court, alleging that it had negligently failed to warn about the dangers of asbestos in the integrated products. ALS countered that it should not be held liable for asbestos that was added later by a third party, an argument known as the “bare metal” defense. The district court ruled in favor of ALS but the U.S. Court of Appeals for the Third Circuit vacated that judgment and remanded the case, concluding that a “bare metal” manufacturer could still be held liable if it was foreseeable that the materials in question would have been used with later-added asbestos-containing materials. The Supreme Court then granted certiorari to resolve a split among the circuit courts of appeals on whether the “bare metal” defense is valid under maritime law.
By a vote of 6-3, the Supreme Court affirmed the judgment of the Third Circuit. Justice Kavanaugh delivered the opinion of the Court, holding that, in the maritime tort context, a product manufacturer has a duty to warn when its product requires incorporation of a part, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and the manufacturer has no reason to believe that the product’s users will realize that danger. The majority opinion was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Gorsuch filed a dissenting opinion, in which Justices Thomas and Alito joined.
To discuss the case, we have Karen R. Harned, Executive Director, NFIB Small Business Legal Center.