If a manufacturer ships an engine without a gasket and the buyer replaces it with an asbestos-laden part, is the manufacturer liable for any resulting injuries? In an apparent issue of first impression, the U.S. Court of Appeals for the Third Circuit said yes.
The court’s decision came in the lawsuits of two widows of U.S. Navy sailors who contracted cancer from exposure to asbestos. In its ruling, the court scrapped the bare-metal defense—an argument that says if a manufacturer makes a product without asbestos, and asbestos is later added to it, the manufacturer cannot be held liable for the consequences.
Third Circuit Judge Thomas I. Vanaskie wrote in the court’s opinion that the U.S. Supreme Court has not addressed the issue.
“In that void, we survey bedrock principles of maritime law and conclude that they permit a manufacturer of even a bare-metal product to be held liable for asbestos-related injuries when circumstances indicate the injury was a reasonably foreseeable result of the manufacturer’s actions—at least in the context of a negligence claim,” Vanaskie said.
“The district court had instead applied the bright-line rule approach and entered summary judgment against the plaintiffs,” the judge continued. “We will vacate the entry of summary judgment on the plaintiffs’ negligence claims, affirm the entry of summary judgment on the plaintiffs’ product liability claims (which we conclude were abandoned on appeal), and will remand, for further proceedings.”
Richard P. Myers of Paul, Reich & Myers represented the plaintiffs, Roberta G. Devries and Shirley McAfee.
“We believe that the Third Circuit got it right when it ruled that machinery manufacturers are responsible in negligence for asbestos-containing wear products used in their machinery,” Myers said in an email. “The court validated maritime law’s ‘special solicitude for the safety and protection of sailors.’ We look forward to trying these cases in the district court on remand.”
Shay Dvoretzky of Jones Day argued the case for the manufacturing defendants and did not respond to a request for comment.
The central debate on the bare-metal defense, according to Vanaskie, hinged on the foreseeability of harm caused by a defendant’s product and then went into whether that foreseeability was governed by rules or standards.
“A rule is a legal directive that attempts to capture a background principle into an easy-to-apply form that is predictable and efficient,” like a speed limit, Vanaskie said. The downside, he noted, is that they are imperfect; for example, drivers can be punished for speeding safely while slow drivers cannot even if they “amble along haphazardly.”
“A standard, on the other hand, collapses the background principle into the actual legal directive, resulting in better accuracy and ‘fit’ with the underlying purpose, and fewer errors of over- and under-inclusion,” but with the drawback of being less predictable and efficient, Vanaskie said.
However, in the case of maritime law, the Third Circuit favored the standard approach.
“The special solicitude for the safety and protection of sailors is dispositive, because it counsels us to follow the standard-based approach, and none of the other principles weigh heavily in either direction,” Vanaskie said. “The standard-based approach is the one we will therefore follow: foreseeability is the touchstone of the bare-metal defense; a manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials if the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s failure to provide a reasonable and adequate warning.”