Summary of Supreme Court Oral Argument on the Bare Metal Defense

On October 10, 2018, oral argument was conducted in Air and Liquid Systems Corp. v. DeVries, a case involving application of the bare metal defense in asbestos cases under maritime law, as previously reported. Petitioners were represented by Shay Dvoretzky of Jones Day and argued first. His first comment was that under long-standing tort law, manufacturers should not be liable for harm caused by third-party goods. Justice Ginsburg then immediately questioned whether the products at issue were of any use without the addition of asbestos. Dvoretzky responded that the same products are currently used by the Navy without asbestos. Justice Ginsburg replied by stating that the manufacturers knew that asbestos would be used, which is the central issue in this appeal. Dvoretzky countered by repeating his original statement that the products which caused the injury were manufactured by third parties, which should therefore bear the responsibility. Justice Sotomayor then challenged counsel’s argument by stating that the asbestos was safe until heat from the petitioners’ products caused it to degrade, making the petitioners’ products themselves the cause of the injury.

From there, counsel was questioned whether petitioners were seeking application of a special rule under admiralty law, or tort law generally. Dvoretzky commented that the lack of liability for a third-party’s products is a general tort principle which should be applied to admiralty law. He was challenged again by Justice Sotomayor on this point, noting that the principle is not uniformly adopted by the states. Dvoretzky responded that there is a split in asbestos cases, but argued that respondents have failed to demonstrate a single case outside of asbestos litigation where a product manufacturer is liable for injuries caused by a third-party’s product. He urged the court to adopt that broader view.

Next, counsel was asked to explain how that principle should be adopted when manufacturers required the use of asbestos, which is a hazardous product. Justice Kagan joined in, asking counsel to explain how his argument was fair, that a company could be not liable even though it directed the use of asbestos. Dvoretzky responded by stating that the burden should be placed on the parties that have the ability to control the harm, i.e. the insulation manufacturers.

Counsel for Respondents, Thomas Goldstein, then began his argument by stating that this is a failure to warn case under Section 388 of the Second Restatement, and that if company makes a product with a part that it knows is harmful, then it needs to provide a warning. Goldstein latched onto the argument that asbestos by itself is not harmful, but that when it is used on machines it degrades and requires replacement, creating harmful asbestos dust. Next, Goldstein mentioned the special solicitude of sailors, which sets apart this issue from one under ordinary common law, as the Third Circuit held. Next, Goldstein described how a warning could have been placed in the product manual, because that is where the person performing the repairs will see it. He argued that this is because any warning placed on actual asbestos material will have degraded over time.

In response to a question from Justice Gorsuch about the standard respondents wished to be applied, Goldstein argued adoption of the Third Circuit’s ruling that manufacturers’ should be responsible for the reasonably foreseeable harm that comes from their products. Of note, he stated that the Third Circuit “did not say that you are responsible for replacement parts that are reasonably foreseeable to be used with your machine.” Goldstein then worked through a host of hypotheticals posed by the court, in addition to some he offered, to demonstrate his arguments. At one point, Justice Roberts stated that one of the hypotheticals that counsel posed seemed to align with the petitioners’ position.

While the Justices posed more questions during the petitioners’ argument, it remains to be seen which way the court will rule. We will post an update here once a decision is reached by the court.

Read the full case decision here.