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Manufacturer has duty to issue warning in marine asbestos case


A manufacturer has a duty to issue a warning when its product requires incorporation of a part that is likely to be dangerous, said the U.S. Supreme Court Tuesday in a divided opinion in an asbestos case.

The ruling, however, applies only in the context of maritime law, said the majority opinion in its 6-3 ruling in Air & Liquid Systems Corp. et al. v. DeVries et al.

The ruling has limited applicability, says an attorney.

The case was originally filed by two men, Kenneth McAfee and John DeVries, who had developed cancer and later died, with their widows pursuing the case.

The U.S. Navy ships they worked on were outfitted with equipment such as pumps, blowers and turbines that required asbestos insulation or parts to function as intended, according to the ruling. When used as intended, that equipment caused the release of asbestos fibers into their air.

The men alleged their exposure to the asbestos caused them to develop cancer and sued the equipment manufacturers.

The U.S. District Court in Philadelphia granted the manufacturers’ motion for summary judgment, which was overturned by the 3rd U.S. Circuit Court of Appeals in October 2017. The Supreme Court’s majority opinion also ruled in favor of the plaintiffs, but on different grounds.

There are three approaches that can be taken in duty to warn cases, said the ruling. The first “plaintiff-friendly” approach, which was adopted by the 3rd Circuit, is manufacturers may be liable when it is foreseeable its product would be used with another product.

The second, “defendant-friendly,” “bare metal” approach, which was advocated by the defendants, is that a manufacturer is not liable for harm caused by a product integrated with its own, even if the product required incorporation of the part, and the manufacturer knew the integrated product was likely to be dangerous.

The third approach, which the majority opinion said was the “most appropriate for this maritime tort context,” is that the manufacturer must issue a warning when its product requires incorporation of a product that makes the integrated product dangerous. 

This ruling only applies in the context of maritime law, however, said the opinion, in remanding the case to the district court. “Maritime law has always recognized a ‘special solicitude for the welfare’ of those who undertake ‘to venture upon hazardous and unpredictable sea voyages,’” said the ruling, in quoting an earlier opinion. The ruling was delivered by Justice Brett Kavanaugh.

A dissent delivered by Justice Neil Gorsuch quoted an earlier ruling and said, “The common law has long taught that a manufacturer has ‘no duty to warn or instruct about another manufacturer’s products, though those products may be sued in connection with the manufacturer’s own products.’”

The plaintiff attorney in the case, Richard P. Myers, a member of Paul, Reich & Myers P.C. in Philadelphia, said in a statement, “We look forward to the trial of these cases upon remand.” The defense attorneys could not be reached for comment.

The ruling has limited applicability, said Andrew Tauber, a partner with Mayer Brown in Washington, D.C., who is not involved in the case.

“It is limited both by the fact that it applies only to maritime cases” and apples only “to components that are necessary for the operation of the integrated product at hand. I think both of those limitations mean this will apply to a relatively small number of cases,” he said.

“It’s certainly not binding in any other contexts,” he added. “That said, as the Supreme Court of the U.S. the court’s decisions are certainly treated with respect by other courts, and it would not be surprising if other courts in other jurisdictions dealing with similar issues looked to this decision as providing some analysis as to how to approach the issues they’re confronting.”





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