Supreme Court Takes Up Asbestos ‘Bare-Metal Defense’ (1)

Bloomberg Law’s® extensive network of reporters and editors provides comprehensive authoritative coverage of significant developments and issues  in  product safety and liability...

By Peter Hayes

The U.S. Supreme Court will consider whether a manufacturer may be held liable under maritime law for asbestos-related injuries caused by third-party components.

Application of the “bare-metal defense,” which shields a manufacturer from liability for aftermarket replacement parts containing asbestos made by another company, has divided the federal circuits.

Air & Liquid Systems Corp., CBS Corp., and Foster Wheeler LLC have asked the high court to overturn a U.S. Court of Appeals for the Third Circuit ruling that manufacturers may face liability for third-party component parts if the injury was reasonably foreseeable.

However the court rules, the precedent will be somewhat limited in scope, an attorney for the plaintiffs in the case said. “Maritime law is one of the last subject areas where the U.S. Supreme Court applies ‘federal common law,’” attorney Richard Myers with Paul, Reich & Myers P.C. in Philadelphia told Blooberg Law, “Although the resolution of manufacturers’ responsibilities for wear parts is an important issue in maritime law, the vast majority of asbestos lawsuits involve state law claims which are not directly affected by the U.S. Supreme Court’s decision under maritime law,” he said.

Defense attorney John Hughes with Meagher & Geer in Minneapolis says the case is of interest to parts manufacturers and that the issue has been “festering forever in different states.”Hughes is not involved in the case but has defended asbestos claims. Even if the ruling is not binding on state courts, whoever prevails will use the decision as persuasive authority, he said. Asbestos defense attorney Jonathan Ruckdeschel with Ruckdeschel Law Firm LLC in Ellicott City, Md., predicts that the court will rule in favor of the plaintiffs. “I don’t think the Supreme Court will be bamboozled,” he said. The bare-metal defense is “a clever word game,” Ruckdeschel said. “It’s like Ford saying of the exploding Pinto that they weren’t responsible because it wasn’t the original tank of gas,” he said.

The estate of John Devries sued the companies, alleging he developed lung cancer from asbestos exposure while working as an engineer in the U.S. Navy.

Devries worked around equipment containing components, including gaskets and packing, made with asbestos, the complaint alleges.

The Sixth Circuit has ruled that manufacturers may invoke the “bare-metal defense” to liability.

Paul, Reich & Myers in Philadelphia represents the estate of John B. DeVries.

Jones Day in Washington represents Air & Liquid Systems Corp.

The case is Air & Liquid Sys. Corp. v. Devries , U.S., No. 17-1104, cert. granted 5/14/18 .

To contact the reporter on this story: Peter Hayes in Washington at PHayes@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

Copyright © 2018 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Product Liability & Toxics Law News