Court Applies the Reasonable Foreseeability Test to the “Bare-Metal Defense” in Asbestos Case Under Maritime Law
The Third Circuit in In Re: Asbestos Products Liability Litigation (No.VI) Case Nos. 16-2602 & 16-2669 (October 3, 2017) issued its opinion on the availability of the “bare-metal defense” in asbestos cases under maritime law.
Appellants in this case were widows of deceased husbands who claimed that their husbands had contracted cancer from asbestos exposure while serving onboard U.S. Navy ships. Asbestos-containing insulation had been added to the ship’s machinery. Appellants named several manufacturers of products found onboard these ships that were “bare-metal,” meaning that the products were manufactured without any asbestos-containing materials, and the asbestos-containing material was added later.
At the district court level, the manufacturers argued that because they shipped their products “bare-metal,” they could not be held liable for the sailors’ injuries. The district court agreed and granted the manufacturers’ summary judgment motions.
The Third Circuit reversed the district court’s decision. It noted that the U.S. Supreme Court had not addressed this issue, but in the lower courts there is a split on this defense. The Third Circuit said “some courts apply a bright-line rule, holding that a manufacturer of a bare-metal product is never liable for injuries caused by later-added asbestos-containing material.” Others apply a fact-specific standard where a bare-metal manufacturer may be held liable “if the plaintiff’s injury was a reasonably foreseeable result of the manufacturer’s conduct.”
In deciding the Third Circuit’s approach to the bare-metal defense, the Court first looked at the doctrinal root of the bare-metal defense in the context of a negligence claim. It found that the defense is rooted in both duty and causation, and its “keystone” is the concept of foreseeability which is embedded in each element.
However, the Court said that foreseeability alone does not resolve the issue and turned to “established principles” of maritime law to determine whether the bare-metal defense amounts to manufacturers never being liable for injuries caused by later-added asbestos-containing material. The Court focused on four principles of maritime law: 1.) its special solicitude for the safety and protection of sailors; 2.) its “traditions of simplicity and practicality"; 3.) its protection of maritime commerce; 4.) and maritime law’s desire to seek out “uniform rules to govern conduct and liability.”
Ultimately, the Court found that the special solicitude for the safety and protection of sailors was dispositive and held that it would adopt a standard-based approach to bare-metal manufacturers, which is “a manufacturer of a bare-metal product may be held liable for plaintiff’s injuries suffered from later-added asbestos-containing materials if the facts show that the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s failure to provide a reasonable and adequate warning.”
The Court opined that a bare-metal manufacturer may be liable, for example, when a manufacturer reasonably could have known at the time it placed its product into the stream of commerce that: 1.) asbestos is hazardous and 2.) its product will be used with an asbestos containing part because a.) the product was originally equipped with an asbestos containing part that could reasonably be expected to be replaced over the product’s lifetime, or b.) the manufacturer specifically directed that the product be used with an asbestos-containing part, or c.) the product required an asbestos – containing part to function properly.
While not controlling in other circuits, the Third Circuit’s decision on the bare-metal defense in asbestos cases under maritime law could expand bare-metal manufacturers’ exposure to liability in such cases.