Supreme Court Decides Bare Metal Defense Under Maritime Law Air & Liquid Systems v. Devries, No. 17-1104, March 19, 2019

In a much anticipated decision regarding what is known as the bare metal defense, the U.S. Supreme Court affirmed the U.S. Court of Appeals which held that the manufacturer is strictly liable if it reasonably foreseeable harmful or toxic material will be added to the product by a third party. The Court resolved the split between the Third Circuit and the Sixth Circuit. The  Sixth Circuit held that the manufacturer has no liability.  The suit was brought by surviving spouses whose husbands were exposed to asbestos while working on various vessels.Judge Kavanaugh wrote the opinion which was joined by Chief Justice Roberts and Justices Ginsburgh, Breyer, Sotomayor and Kagan. Justice Gorsuch dissented and was joined by Justices Thomas and Alito.The majority recognized the plaintiff friendly approach adopted the 3rd Circuit and the defense friendly approach taken by the 6th Cir. It navigated a  course between the two. "Under the third approach, foreseeability that the product may be used with another product or part that is likely to be dangerous is not enough to trigger a duty to warn. But a manufacturer does have a duty to warn when its 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. Under that approach, the manufacturer may be liable even when the manufacturer does not itself incorporate the required part into the product." (No. 17-1104, p. 6)The dissent scathingly criticizes the majority for basing its conclusion "in part because of the 'solicitude for sailors.'" (No. 17-1104, p. 8)Many thanks to Kevin McGlone of Sher Gardner for informing us of this important development.A more detailed analysis will follow in the near future.The opinion can be reached following this URL to the Scotus website:https://www.supremecourt.gov/opinions/18pdf/17-1104_2co3.pdfWe are also certain that the Supreme Court has scheduled the Batterton case for oral argument on Monday, March 25.  Don Haycraft from Liskow & Lewis will be present for oral argument and will send us a report on the oral argument as soon as he can. Look for it Monday - Live (or Almost Live) From the U.S. Supreme Court.