In this week's Air & Liquid Systems Corp. v. Devries decision, the U.S. Supreme Court held that, in the maritime law context, a manufacturer of an asbestos-free product can be liable for injuries caused by parts with asbestos created by third parties that were later incorporated to the manufacturer’s product. This extension of potential liability in the manufacturing chain, even if only under maritime law, has already drawn significant criticism in light of the Court’s clear departure from recognized common-law product liability principles and created concern for the effect it will have on cases arising on dry land.
The 6-3 majority led by Justice Brett Kavanaugh and joined by Chief Justice John Roberts and the Court’s four liberal justices, rejected the argument that liability does not extend to manufacturers that had no role in adding asbestos to their bare-metal products before they were put into the stream of commerce and instead gave such manufacturers a duty to warn when (1) its product requires incorporation of a part, (2) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (3) the manufacturer has no reason to believe that the product’s users will realize that danger.
The Plaintiffs, widows Roberta G. Devries and Shirley McAfee, brought claims alleging that their husbands, John B. Devries and Kenneth McAfee, got cancer from asbestos exposure while in serving in the Navy on ships during the 1950s and 1970s. The Defendants, including Air & Liquid Systems Corp., are companies that manufactured certain parts – pumps, blowers, turbines, and other equipment-that were sold to the United States Navy. Once the Navy got those products, they would be installed on the Navy ships with an asbestos-containing part or asbestos insulation made by different companies. The injuries related to this dispute could not be attributed to any asbestos that the Defendants supplied to the Navy. As the manufacturers of the asbestos insulation and asbestos parts applied to the equipment are now bankrupt, Plaintiffs looked to the manufacturers of the pumps and other equipment for liability. The District Court granted summary judgment to the manufacturers, but the Third Circuit vacated and remanded.
In reaching its decision to affirm, the Supreme Court stepped through the basic principles of tort law and the three possible approaches to the application of the “duty to warn” principle. Finding the foreseeability rule that the Third Circuit relied upon too plaintiff-friendly and the “bare-metal defense” proposed by the manufacturers too defendant-friendly, the Court stated that a middle approach was “most appropriate for this maritime context.” According to the Court, this decision will not impose a significant burden on manufacturers….[n]or will it result in substantial uncertainty about when product manufacturers must provide warnings, because the rule requires a manufacturer to warn only when its product requires a part in order for the integrated product to function as intended.” (emphasis in original).
The Court did not highlight why this decision was particularly required for maritime law other than to say that is in line with maritime law’s recognition of “a special solicitude for the welfare of those sailors who undertake to venture upon hazardous and unpredictable sea voyages,” an approach that critics of the Third Circuit decision and amici to the case argued was misplaced as it was meant for “disputes between the master of a ship and a sailor” and not “a dispute between the manufacturer of bare-metal products and the plaintiffs in these cases.”
The dissent filed by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Samuel Alito warns that "[e]ncouraging manufacturers to offer warnings about other people’s products risks long, duplicative, fine print, and conflicting warnings that will leave consumers less sure about which to take seriously and more likely to disregard them all." In providing examples of where the majority’s decision can lead, the dissent offered that "[a] home chef who buys a butcher’s knife may expect to read warnings about the dangers of knives but not about the dangers of undercooked meat” or that “a purchaser of gasoline may expect to see warnings at the pump about its flammability but not about the dangers of recklessly driving a car."
While there is concern as to whether this expansion of liability will influence non-maritime product liability law, it is clear that it creates immediate concern for manufacturers currently selling products to be used on ships that may require integration of another part from a third-party. These manufacturers will need to grapple with such questions as whether their product “requires” a part or not and what possible parts could be added by their customers who they do not control. Ultimately, the Navy and other maritime-related parties will also feel the effect of this decision whether it be through a price increase of these manufacturers’ products or the inability to find manufacturers willing to supply the needed product.