April 11, 2019, Trial News
Maritime manufacturers have duty to warn sailors of known, dangerous risks, SCOTUS rules
Alyssa E. Lambert
Ruling in favor of sailors who developed cancer due to asbestos exposure aboard Navy ships, the U.S. Supreme Court has held, 6-3, that a maritime manufacturer has a duty to warn of known, dangerous risks. The Court said the duty is triggered when the manufacturer’s product requires a part to be incorporated to function; when it “knows or has reason to know that the integrated product is likely to be dangerous for its intended uses”; and when “the manufacturer has no reason to believe that the product’s users will realize that danger.” With this middle-of-the-road approach, the Court affirmed the Third Circuit’s decision in favor of the plaintiffs.
Ruling in favor of sailors who developed cancer due to asbestos exposure aboard Navy ships, the U.S. Supreme Court has held, 6-3, that a maritime manufacturer has a duty to warn of known, dangerous risks. The Court said the duty is triggered when the manufacturer’s product requires a part to be incorporated to function; when it “knows or has reason to know that the integrated product is likely to be dangerous for its intended uses”; and when “the manufacturer has no reason to believe that the product’s users will realize that danger.” With this middle-of-the-road approach, the Court affirmed the Third Circuit’s decision in favor of the plaintiffs. (Air & Liquid Sys. Corp. v. DeVries, 2019 WL 1245520 (U.S. Mar. 19, 2019).)
In DeVries, two Navy sailors developed lung cancer from exposure to asbestos-containing products. John DeVries was exposed to asbestos dust on a regular basis while maintaining engine room equipment on the U.S.S. Turner from 1957–1960. Similarly, Kenneth McAfee, a rigger for the Navy, alleged that he was exposed to asbestos dust while removing and replacing asbestos gaskets aboard the U.S.S. Wanamassa and at the Philadelphia Naval Shipyard.
In 2012, they separately sued several of the equipment and ship manufacturers for negligence and strict liability under §402A of The Restatement (Second) of Torts for failure to warn; only DeVries sued Air & Liquid Systems. The defendants manufacture large turbines, compressors, and pumps that are sold to the Navy and installed on the vessels, but these components cannot be used until sprayed with asbestos-containing insulation.
The defendants removed the cases to federal court in Pennsylvania and moved for summary judgment based on the bare-metal defense, which absolves equipment manufacturers of liability for injuries caused by asbestos products if a third party adds the asbestos to the equipment post sale. The district court granted the motions in both cases, and the plaintiffs appealed. Both men died of their disease during the litigation, and their wives continued the suits.
The Third Circuit remanded, instructing the lower court to consider the negligence claims and address “a split in authority as to whether a bright-line rule or a fact-specific standard governed the bare-metal defense’s availability.” The district court applied the bright-line rule and granted summary judgment. The plaintiffs appealed a second time and also moved to consolidate the appeals—both motions were granted.
In its 2017 decision reversing the district court, the Third Circuit adopted the foreseeability test, a fact-specific standard: “[A] manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials if the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s failure to a provide a reasonable and adequate warning.” Several defendants from both cases filed a petition for certiorari.
Oral arguments in October focused on foreseeability, with the manufacturer petitioners arguing that they had no duty to warn based on a bright-line application of the bare-metal rule. Several justices seemed skeptical of this, noting that the ship is useless until the asbestos is added.
Washington, D.C., attorney Thomas Goldstein, who argued on the respondents’ behalf, said that this is a failure-to-warn case under the restatement. “[T]he Court of Appeals here quite explicitly limited its holding to situations in which you have a product that has a part and that part is required for it to operate.”
Siding with the plaintiffs, the Court rejected the district court’s bright-line application of the bare-metal defense and the Third Circuit’s foreseeability test and chose an approach that falls squarely between the two. “Foreseeability that the product may be used with another product or part that is likely to be dangerous is not enough to trigger a duty to warn. But a manufacturer does have a duty to warn when its product requires incorporation of a part and the manufacturer has reason to know that the integrated product is likely to be dangerous for its intended use. . . . [T]he manufacturer may be liable even when [it] does not itself incorporate the required part into the product.”
Philadelphia attorney Richard Myers, who represents the plaintiffs, was not surprised by the result based on oral arguments. “It looked like they were trying to reach a narrow consensus from the bench, and I think they did—and this was a livable consensus for them.”
Justice Brett Kavanaugh, writing for the majority, noted that such a rule “is especially appropriate in the maritime context. . . . The plaintiffs in this case are the families of veterans who served in the U.S. Navy. Maritime’s longstanding solicitude for sailors reinforces our decision to require a warning in these circumstances.”
“They are not going to abandon solicitude for sailors, and they are going to view negligence the way that most of us view negligence. But it is a conservative remedy—the manufacturers were in the best position to know about the risks, and they had to provide the repair manuals,” Myers said. “I think the ruling is going to influence courts nationwide and that they’re likely to take a middle ground—the same road the Court took.”
“I think this ruling will make a big difference for a substantial number of plaintiffs who were exposed to asbestos on vessels while in the Armed Forces,” said Jeffrey White, associate general counsel for AAJ, who authored AAJ’s amicus brief in support of the plaintiffs.
Justice Neil Gorsuch, along with Justices Clarence Thomas and Samuel Alito, dissented, arguing that the bare-metal defense is the best course. But they agreed with the majority’s rejection of the foreseeability test.
As for what’s next, the case goes back to the Eastern District of Pennsylvania for the court to reconsider its prior grants of summary judgment to the defendants.
“At least two defendants raised the government contractor defense, and Judge Robreno will allow them to refile their summary judgment motions and let them address any other defenses other than bare-metal,” Myers said. “Assuming we get past summary judgment, then we get to go to trial.”