Decommissioning the Bare-Metal Defense in Asbestos Litigation

Written by Ben Woody, Esq.

Edited by Bill Pfund, Esq.

When a manufacturer produces “bare-metal” products that require installation of asbestos products produced and installed by third parties, can the “bare-metal” manufacturer be held liable for injuries caused by asbestos exposure? Last month, the Supreme Court of the United States answered “yes.” Air & Liquid Systems v. DeVries, 139 S.Ct. 986 (2019).

Asbestos litigation has consumed the products liability space for decades. Asbestos claimants contend that neither the U.S. veterans’ benefit system nor asbestos bankruptcy trust fund system provide adequate compensation to individuals with asbestos claims. Accordingly, manufacturers of so-called bare-metal products have found themselves the defendants in asbestos litigation, as they are the only solvent targets left standing. These bare-metal manufacturers have relied a “bare-metal defense,” under which equipment manufacturers are not liable for injuries caused by asbestos insulation and asbestos-containing components obtained by the user from other sources and added to the equipment by a third party post-sale. This “defense” undergirds the principle that these bare-metal manufacturers did not owe a duty to the injured parties.

In the years leading up to the DeVries case, federal courts across the country have developed three different approaches to the bare-metal defense. Under the first, more plaintiff-friendly approach, the manufacturer may be liable when it was foreseeable that the manufacturer’s product would be used with another product or part, even if the manufacturer’s product did not require use or incorporation of that other product or part.

The second, more manufacturer-friendly approach, there is not liability for manufacturers who did not make, sell, or distribute a part that did not have the incorporated asbestos-related part into it, even if the manufacturer knew that the product required incorporation of asbestos-related parts and knew that it would be dangerous. This is the bare-metal defense.

The Court in DeVries chose the middle ground, holding that the product manufacture has a duty to warn when (1) its product requires incorporation of a part, (2) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (3) the manufacturer has no reason to believe that the product’s users will realize that danger. The courts that have previously applied this third standard have uniformly let these claims proceed to jury trials.

The DeVries Court’s clarification of the duty-to-warn of manufacturers is consistent with the Supreme Court of Virginia’s most recent asbestos case. In Quisenberry v. Huntington Ingalls, 296 Va. 233 (2018), the Supreme Court of Virginia held that an employer owed a duty of care to its employee’s family members who became exposed to asbestos by virtue of the employee wearing asbestos-covered clothes on their way home from work and into the home. The DeVries Court and the Quisenberry Court both agree that circumstances outside of the control of the alleged wrongdoer may nevertheless create a path to liability if the wrongdoer fails to advise of the attendant risks.

The DeVries decision will likely encourage an increase in asbestos claims. Retroactive liability insurance—including for asbestos liability—is available for purchase, so manufacturers who may have supplied such parts may be well advised to consider such policies.


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