The State of the Bare Metal Defense in 2020: A Synopsis

In 2019, we saw the U.S. Supreme Court reject the bare metal defense under federal maritime law, resolving a circuit split on the issue. The Supreme Court held that “a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.” Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019). While this decision clarified the scope of a manufacturer’s duty in the maritime context, the viability of the bare metal defense at the state court level across the country remains in flux, with jurisdictions such as California, Georgia, Washington, and Massachusetts plainly recognizing the defense, while jurisdictions such as New York, Maryland, and most recently, New Jersey have set forth analytical framework to guide courts in determining whether to recognize to a bare metal product manufacturer’s duty to warn. Other hotbed jurisdictions such as Pennsylvania and Illinois are lacking in appellate guidance on the issue. Looking forward to 2021, a decision from the Tennessee high court is expected to resolve the debate in the Volunteer State.  

As for the jurisdictions that plainly recognize the defense, California law holds that “a product manufacturer generally may not be held strictly liable for harm caused by another manufacturer’s product, unless the defendant’s own product contributed substantially to the harm or the defendant participated substantially in creating a harmful combined use of the products.” O’Neil v. Crane Co., 135 Cal. Rptr. 3d 288, 266 P.3d 987 (Cal. 2012). Similarly, Washington law holds that “a manufacturer has no duty under common law products liability or negligence principles to warn of the dangers of exposure to asbestos in products it did not manufacture and for which the manufacturer was not in the chain of distribution.” Braaten v. Saberhagen Holdings, 165 Wn. 2d 373, 198 P.3d 493 (Wash. 2008). Additionally, the Court of Appeals in Georgia has held that Georgia law impliedly recognizes the bare metal defense, due to the threshold requirement that a plaintiff prove proximate causation by showing exposure to a particular manufacturer’s asbestos-containing product. See Davis v. John Crane, Inc., 353 Ga. App. 243, 836 S.E.2d 577 (Ga. 2019). Massachusetts courts, while in the non-asbestos context, have recognized the component parts doctrine as the law of the land, holding that the manufacturer of a non-defective product has “no underlying duty to warn of risks posed by the assembled product that arose out of the addition of other components and the decisions made, and actions taken, by downstream actors.” Pantazis v. Mack Trucks, 92 Mass. App. Ct. 477, 87 N.E.3d 1191 (Mass. 2017), citing Mitchell v. Sky Climber, Inc., 396 Mass. 629, 487 N.E.2d 1374 (Mass. 1986).

As for jurisdictions that have taken a more analytical approach, Maryland’s high court has held that a manufacturer may have a strict-liability duty to warn of the dangers of a third-party’s asbestos-containing replacement components, if (1) the manufacturer’s product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the product; (3) periodic maintenance involving handling asbestos components is required; and (4) the manufacturer knows or should know the risks from exposure to asbestos. See May v. Air & Liquid Sys. Corp., 446 Md. 1, 129 A.3d 984 (Md. 2015). New York’s highest court holds that a “product manufacturer has a duty to warn of the danger arising from the known and reasonably foreseeable use of its product in combination with a third-party product which, as a matter of design, mechanics or economic necessity, is necessary to enable the manufacturer’s product to function as intended.” In re N.Y.C. Asbestos Litig. (Dummitt), 27 N.Y.3d 765, 59 N.E. 3d 458, 474-75 (N.Y. 2016). In June 2020, New Jersey joined the likes of Maryland and New York, when its supreme court held that manufacturers and distributors may be found strictly liable for failure to warn of the potential hazards of asbestos-containing third-party components if (1) the manufacturer or distributor incorporated asbestos-containing components in its product, (2) the asbestos-containing component was integral to the product and necessary for it to function, (3) routine maintenance of the product required replacing the asbestos-containing component with similar asbestos-containing components, and (4) the exposure to the asbestos-containing components or replacements was a substantial factor in causing or exacerbating the plaintiff’s disease. See Whelan v. Armstrong Int’l, Inc., 242 N.J. 311, 231 A.3d 640 (N.J. 2020).

The Tennessee Supreme Court heard virtual oral argument in the matter of Coffman v. Armstrong International, Inc. in May 2020 on the question of “[w]hether the Court of Appeal erred in holding that the Equipment Defendants had a duty to warn of the dangers associated with the post-sale integration of asbestos-containing materials manufactured and sold by others.” In Coffman, trial court granted summary judgment to numerous pump, valve, and steam trap defendants after finding that they had affirmatively negated their alleged duty to warn on plaintiffs’ claims that arose from the post-sale integration of asbestos-containing insulation and flange gaskets, and replacement internal gaskets and packing manufactured and sold by others. See Coffan v. Armstrong Int’l, 2019 Tenn. App. LEXIS 357 (Tenn. 2019).The appellate court reversed, holding that while the issue was one of first impression, the bare metal defense was inconsistent with Tennessee law.  The court instead used a duty analysis found in prior state supreme court jurisprudence (Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008)), which required the weighing of factors such as the foreseeability of harm; the possible magnitude of potential harm; the social value and usefulness of the defendant’s conduct; and the feasibility, costs, and burdens of alternatives. A decision from the Tennessee Supreme Court to resolve the issue is expected in 2021.  

A review of the case law in other hotbed asbestos litigation jurisdictions such as Pennsylvania and Illinois reveals that the bare metal defense is in its infancy, as there are no appellate court decisions on the issue, though Pennsylvania’s Eastern District Court has predicted that Pennsylvania law would recognize the defense, to an extent. See Schwartz v. Abex Corp., 106 F.Supp. 3d 626 (E.D. Pa. 2015) (“[T]he court now predicts that under Pennsylvania law a manufacturer … of a product is not liable in strict liability for aftermarket asbestos-containing component parts that it neither manufactured or supplied …”). In sum, while the Supreme Court has rejected the defense in the limited maritime context, the debate over its viability remains alive and well at the state court level as we move into 2021.