Under the Restatement (Third) of Torts: Products Liability § 5, Comment b (1998), the supplier of a product generally must warn about only those risks associated with the product itself, not those associated with the “products and systems into which [it is] integrated.”
However, in Air and Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019), the Supreme Court created a different rule in the context of maritime asbestos claims. In that case, the defendants produced “bare-metal” equipment, such as pumps, blowers, and turbines, for Navy ships that required asbestos insulation or asbestos parts to function as intended. The manufacturers delivered the equipment to the Navy without asbestos, and the Navy later added asbestos to the equipment. Two Navy veterans were exposed to asbestos on the ships and developed cancer. The district court granted summary judgment for the manufacturers, finding no duty to warn. In reversing, the Third Circuit Court of Appeals adopted a “more plaintiff-friendly” foreseeability rule, rejecting the “more defendant-friendly” bare-metal defense.
Under the Third Circuit’s rule, a manufacturer may be liable when it was foreseeable that its product would be used with another harmful product or part, even if the manufacturer’s product did not require use or incorporation of that other harmful product or part. Under the bare-metal defense, if a manufacturer did not itself make, sell, or distribute the harmful part or incorporate the harmful part into the product, the manufacturer is not liable for harm caused by the integrated product—even if its product required incorporation of the harmful part and the manufacturer knew that the integrated product was likely to be dangerous for its intended uses.
The Supreme Court concluded that the foreseeability rule was too hot, the bare-metal defense too cold, and a middle-ground approach was just right. The Court held that a product manufacturer has a duty to warn when (1) its product requires incorporation of a [harmful] 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.
Significantly, the opinion appears to rest on the special facts of the case: the plaintiffs could not recover from the Navy or the manufacturers of the asbestos insulation. The Court also noted maritime law’s historical “‘special solicitude for the welfare’ of those who undertake to ‘venture upon hazardous and unpredictable sea voyages’” and the plaintiffs’ status as families of navy veterans, factors “reinforc[ing the] decision to require a warning in these circumstances.”
The dissenting opinion (Gorsuch, J.) also observed that the majority’s decision may have been motivated by the constellation of unfortunate facts. It concluded, however, that this new maritime common law rule was flawed for the following reasons:
- It dilutes the incentive of a manufacturer to warn about the dangers of its products because others share responsibility to warn and bear the costs of warning.
- It encourages manufacturers to offer warnings about other people’s products, thereby risking 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.
- Application of opaque or multifactor standards makes it difficult to ensure equality of treatment across cases, destroys predictability for innovators, investors, and consumers, and increases the likelihood that courts will fit the law to the case, rather than the case to the law.
- The increased threat of litigation and liability will force many manufacturers of safe products to spend time and money educating themselves and drafting warnings regarding other manufacturers’ more dangerous products.
- Requiring manufacturers of safe products to subsidize manufacturers of more dangerous products promises to raise the price and restrict the output of socially productive products.
In summary, per the dissent, “tort law is supposed to be about aligning liability with responsibility, not mandating a social insurance policy in which everyone must pay for everyone else’s mistake.” The “silver lining” was that the majority “expressly states that it does ‘not purport to define the proper tort rule outside the maritime context.’” And the dissent admonished that “nothing in today’s opinion compels courts operating outside the maritime context to apply the test announced today. In other tort cases, courts remain free to use the more sensible and historically proven common law rule, . . . [and] that is a liberty they may be wise to exercise.”
To date, the Court’s decision in fact appears to be limited to the context of maritime asbestos cases. Most courts addressing the issue have declined to adopt the Supreme Court’s rule and reasoning and have reaffirmed that manufacturers do not have a duty to warn of dangers associated with integration of another manufacturer’s product. In Coffman v. Armstrong International, Inc., 615 S.W.3d 888, 898 (Tenn. 2021), the Tennessee Supreme Court rejected DeVries as limited to maritime cases and concluded that manufacturers have no duty to warn of dangers associated with post-sale integration of asbestos-containing parts. In Martinez v. Medical Depot, Inc., 434 F. Supp. 3d 537, 547 (S.D. Tex. 2020), the court reached the same result, quoting the DeVries dissent. In Davis v. John Crane, Inc., 836 S.E.2d 577, 584 (Ga. App. 2019), the court recognized the bare-metal defense and concluded DeVries was only applicable in the maritime context.
So far, apart from asbestos cases governed by maritime law, a hard case has not made bad law, thanks to a well-written dissent. Time will tell whether other courts will restrict the DeVries decision to the maritime asbestos context where it belongs.
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