Three years and one pandemic after the U.S. Supreme Court provided guidance in March 2019 on the bare metal defense in asbestos litigation commonly known as “DeVries,” the bare metal defense is alive and well.[i] Some predicted the DeVries decision, while limited to maritime law, would provide a basis for courts outside the maritime law context to follow that decision and effect qualifications on the liability of manufacturers for third-party components added to their products. While the full impact of the DeVries decision has yet to be determined, and there are at least two decisions that were impacted by the high court’s “middle ground” approach in DeVries, most decisions have held that DeVries is “cabined” to maritime law.
DeVries – Qualifications to the Bare Metal Defense Under Maritime Law
The U.S. Supreme Court analyzed three approaches to the bare metal defense which provides that product manufacturers should not be liable for harms caused by later-added third-party parts.[ii]
1) the more plaintiff-friendly foreseeability rule where liability attaches when it was foreseeable that the product would be used with another product or part (even if the product did not require use or incorporation of that product or part);
2) the more defendant-friendly approach of no liability if the manufacturer did not make, sell or distribute the part or incorporate the parts into the product (even if the product required incorporation of that part and the manufacturer knew that the integrated product was likely to be dangerous for its intended uses);
3) the middle approach, where there is liability for duty to warn when the product requires incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses.
The Court then adopted the middle approach stating its ruling was only for the maritime tort context, (“We do not purport to define the proper tort rule outside of the maritime context.”).[iii] Specifically, the Court held: 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.[iv]
In limiting the ruling to the maritime tort context, the Court found that “[m]aritime law has always recognized a ‘special solicitude for the welfare’ of those who undertake to ‘venture upon hazardous and unpredictable sea voyages.’” and that “[m]aritime law’s longstanding solicitude for reinforces our decision to require a warning in these circumstances.”[v]
State Court Rulings Since DeVries
Since the DeVries decision, a number of courts across the country have declined to apply it outside the maritime law context:
- Georgia – Citing the U.S. Supreme Court’s limitation of the standard to the maritime context and the particular concerns for sailors, the Georgia Court of Appeals declined to follow DeVries, and upheld summary judgment for a pump manufacturer, declining to expand Georgia law to require a manufacturer to warn of the hazards in another manufacturer’s product. [vi]
- Tennessee – The Tennessee Supreme Court held that the language of the Tennessee Products Liability Act controlled, and DeVries was limited to the maritime context. The manufacturer was not liable when the “end-products at issue were neither made nor sold by the Equipment Defendants.”[vii]
- Delaware – Two Delaware state court decisions declined to apply the DeVries ruling in interpreting state law requirements for the bare metal defense. In In Re: Asbestos Litig. (McDermott v. ABB, Inc., et al.),[viii] Superior Court Judge Jeffrey J. Clark declined to apply DeVries to Delaware substantive law stating that decision was limited to the maritime context, and also noted that even if the court applied DeVries, Plaintiff had not established facts that the Defendants either directed or specified that asbestos replacement parts were required in their products or knew or should have known that the products would require asbestos replacement parts. He then granted summary judgment for defendants which did not provide any of the replacement internal or external asbestos-containing parts. In In Re: Asbestos Litig. (Kulla),[ix] Superior Court Judge Sheldon K. Rennie also held that DeVries was limited to the application of maritime law and declined to follow it in analyzing the defense under Minnesota causation law in granting summary judgment for the manufacturer which did not make the asbestos-containing component to which plaintiff was allegedly exposed.
However, two federal courts have analyzed and applied DeVries to interpret the bare metal defense in non-maritime cases:
- Louisiana – A federal court judge in Louisiana pointed to DeVries as instructive on the standard of liability for third-party replacement parts under Louisiana law and declined to grant summary judgment for a manufacturer because the record was incomplete as to whether asbestos-containing flange gaskets were required for the product, or were merely foreseeable.[x]
- Wyoming – U.S. District Court Judge Freudenthal in Wyoming found that DeVries was instructive in predicting how the Wyoming Supreme Court would apply Wyoming law. Noting the Wyoming Supreme Court had not decided the issue, Judge Freudenthal looked to a decision from prior to DeVries,[xi] which predicted the Wyoming Supreme Court would adopt the bare-metal doctrine for purposes of strict liability, but concluded that the Wyoming Supreme Court would not adopt that doctrine as to negligence and would instead adopt a middle approach similar to what DeVries later adopted. Judge Freudenthal found that Flowserve decision persuasive and predicted that the Wyoming Supreme Court would find a manufacturer has a duty when it “designed a product that required or specified the use of a known-to-be hazardous aftermarket replacement part or additional part,” and denied the manufacturer summary judgment. [xii]
These decisions provide a snapshot of how the DeVries decision has been interpreted and how it has impacted the bare metal defense over the last three years. Overall, it appears that the reach of DeVries outside of the intended maritime law context is limited.
[i] , 139 S. Ct. 986, 203 L. Ed. 2d 373 (2019).
[ii] Id., at 139 S. Ct. 986, 988.
[iii] at 139 S. Ct. 986, 995.
[vi] Davis v. John Crane, Inc., 836 S.E.2d 577, 583-584 (Ga. App. 2019).
[vii] Coffman v. Armstrong Int’l, Inc., 615 S.W.3d 888, 897-99 (Tenn. 2021).
[viii] C.A. No. 18C-11-148 ASB, at PP. 7-9 (Del. Super. Dec. 23, 2019) (ORDER).
[ix] C.A. No. 20C-01-264 ASB, at PP. 10-11 (Del. Super. April 8, 2021) (ORDER).
[x] Lopez v. McDermott, Inc., 2020 WL 3964989, at *2 & *8 (E.D. La. 2020).
[xi] Robinson v. Flowserve, Case No. 14-CV-161-ABJ, 2015 WL 11622965 (D. Wyo. Oct. 9, 2015).
[xii] Robinson v. Grove US, LLC, 2021 WL 5235548, *8-9 (D. Wyo. 2021).
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