DeVries’ Impact Beyond the Supreme Court

On March 19, 2019, the United States Supreme Court struck down the ‘bare metal defense,’ holding that under federal maritime law, industrial manufacturers have a duty to warn when: one, their products require incorporation of parts that the manufacturers know or should know will pose a danger to the user; and two, the manufacturers have no reason to believe the user will know of this danger.

In this case, two Navy veterans suffered exposure to asbestos on blowers, pumps, turbines, and other equipment during their service aboard Navy ships. They sued the equipment manufacturers, who did not themselves incorporate asbestos parts into their equipment. However, the plaintiffs correctly noted that the manufacturers’ equipment required use of asbestos parts to properly function as intended.

In rejecting the defendants’ ‘bare metal defense,’ Justice Kavanaugh noted that the law imposes a “duty to warn when the manufacturer ‘knows or has reason to know’ that its product ‘is or is likely to be dangerous for the use for which it is supplied.’” Air and Liquid Systems Corp. v. DeVries, No. 17-1104, 2019 WL 1245520 (U.S. 2019) (citing Restatement (Second) of Torts § 388 (1965)).

At the same time, however, the Court also refused to adopt the plaintiffs’ foreseeability approach, as it “would sweep too broadly, imposing a difficult and costly burden on manufacturers, while simultaneously overwarning users.” Id. Therefore, the Court adopted a compromise that still imposes the aforementioned duty, narrowed by the following elements:

"One, its product requires incorporation of a part; two, the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses; and three, the manufacturer has no reason to believe that the product’s users will realize that danger." Id.

So, what’s next?

The Court, at the outset, noted this decision’s narrow scope, stating that “[t]his is a maritime tort case,” and that the Court “do[es] not purport to define the proper tort rule outside of the maritime context.” Id. More importantly, DeVries is a federal common law case and does not bind state courts. Thus, it has limited direct applicability.

Yet, the Court, in adopting its approach, directly cited various states' cases, such as New York's and Maryland's, which have implemented this approach before DeVries. See In re New York Asbestos Litigation, 27 N.Y.3d 765 (2016); May v. Air & Liquid Systems Corp., 446 Md. 1 (2015). While most state still recognize the bare metal defense, an increasing number of cases has recently rejected the bare metal defense approach. Combined with a statistic showing that close to 30% of all asbestos case filings involve veteran plaintiffs, defendants must look out for future cases that could further limit the bare metal defense's viability.