SCOTUS to Decide the Fate of the Bare Metal Defense

May 14, 2018

Today, the Supreme Court granted a petition for writ of certiorari on an issue of great consequence in asbestos litigation — the bare metal defense. Although the Court will decide this critical issue under maritime law alone, its decision will have implications far beyond cases involving this particular body of law.

In Air and Liquid Systems Corp. v. Devries, the petitioners ask the Court to resolve a split among the federal circuits on the following issue:  “Can products-liability defendants be held liable under maritime law for injuries caused by products that they did not make, sell, or distribute?” In a consolidated appeal from summary judgment awarded in two cases in the Eastern District of Pennsylvania, the Third Circuit answered “yes” to this question. The Sixth Circuit, however, has previously answered “no” to this question.

In one of the underlying cases, John DeVries alleged that his manipulation of asbestos-containing gaskets and packing while aboard the U.S.S. Turner caused him to develop lung cancer. He and his wife sued nearly 50 entities, claiming they were responsible for his injuries. CBS Corporation, Foster Wheeler LLC, and Buffalo Pumps manufactured and supplied equipment that the Navy used during Mr. DeVries’s tenure aboard the U.S.S. Turner, but they did not manufacture or supply any of the asbestos-containing insulation, gaskets, or packing alleged to have caused his injuries. The district court granted summary judgment to the manufacturers under the “bare-metal rule.” As the petitioners describe it, “Under that rule, companies that manufacture and sell equipment are not liable for injuries caused by third-party asbestos added to their equipment after it leaves their control.”

In the second matter, Kenneth McAfee and his wife sued nearly 50 entities for injuries allegedly caused when Mr. McAfee installed and removed asbestos-containing gaskets and packing during his service aboard the U.S.S. Wanamassa and the U.S.S. Commodore. Ingersoll manufactured and supplied compressors for the Navy, which Mr. McAfee repaired while aboard the ships. Ingersoll initially provided asbestos-containing gaskets and packing with its compressors in accordance with precise Navy specifications. But those parts would have been replaced with gaskets and packing made by a different manufacturer by the time Mr. McAfee worked on the compressors. The district court granted summary judgment to Ingersoll after determining that Ingersoll did not manufacture or supply the asbestos-containing parts used with its compressors.

In a consolidated appeal, the Third Circuit remanded both cases to the district court so that they could be decided under a five-factor “totality of the circumstances” test. In a petition for writ of certiorari, the equipment manufacturers pointed out the conflict between the Third Circuit’s new test and the Sixth Circuit’s bright-line approach to the same issue. The Supreme Court granted the equipment manufacturers' petition for writ of certiorari to resolve the split.

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