Leigh Ann Benson, (left) and Stephen A. Miller, (right) of Cozen O'Connor.

The Supreme Court is considering a consolidated action presenting questions of liability for asbestos injuries caused by bare-metal products. “Bare-metal” in the products liability context describes products sold without asbestos-containing materials, such as insulation, but which depend upon those materials for safe and proper operation. The court may avoid making waves in the realm of products liability, however, as it is dealing with claims arising under maritime law. The court will determine whether, under maritime law, manufacturers can be held liable for injuries caused by asbestos-containing products that they did not make, sell or distribute but that were necessary additions to their products.

Manufacturers often rely on the “bare-metal” defense. They assert that manufacturers who produced “bare-metal” products that relied on later-added materials for proper operation are not liable for injuries caused by those secondary products. The court will decide if the defense should be applied as a bright-line rule or through a fact-specific analysis.

These actions began in state court in Philadelphia, but they were removed to federal court. The claims were brought by the widows of former sailors who suffered asbestos-related injuries due to exposure to insulation on naval ships in the 1950s and 1960s. The problematic insulation was added onto the Navy's ships in places like the engines, pumps, boilers, blowers and switchboards. The families of the late sailors, respondents before the Supreme Court, brought actions against dozens of manufacturers alleging, among other claims, negligence.

The manufacturer-petitioners produced, distributed and sold bare-metal products which required the addition of insulation in order for their products to work properly. They did not produce any asbestos-containing products. They designed products in such a way, however, that their functioning was dependent on the addition of the insulation. When the bare-metal products were in use and heated to extreme degrees, the insulation material released asbestos.

The federal courts in Philadelphia disagreed on the proper test to apply. Judge Eduardo Robreno of the U.S. District Court for the Eastern District of Pennsylvania applied the bare-metal defense as bright-line rule and granted summary judgment in the manufacturers' favor. The u.S. Court of Appeals for the Third Circuit, however, remanded. That court held that manufacturers would have had a duty to warn about the dangers of later-added materials if their use was “reasonably foreseeable.”

The manufacturers sought a ruling from the Supreme Court that the defense should be applied as a bright-line rule. Maritime law is a unique body of judge-made federal law that applies when injuries occur at sea and not within the bounds of any state or territory. The Supreme Court is the ultimate authority of maritime law and, thus, it is guided by its prior maritime decisions.  Prior Supreme Court decisions addressing negligence under maritime law have focused on the foreseeability of harm.

The sailors argued that the manufacturers had a duty to warn because it was expected that the intended use of their products would present hazards. The manufacturers knew that their products would be used, and indeed must be used, with insulation containing asbestos; therefore, the sailors' injuries were reasonably foreseeable.

The manufacturers argued that a foreseeability test would be impracticable because ships' settings vary greatly. On a ship, all products are essentially connected because all are attached to the vessel. If manufacturers were responsible for providing warnings for other products, an excess of warnings would result (with diminished effect). Also, if a manufacturer of a product on a ship could be liable for injuries caused by other products, there would be a tremendous increase in prices to compensate for the risk of “open-ended liability.”

Both the manufacturers and sailors relied on the distinct nature of maritime law to support their arguments. The sailors asserted that the body of law favors sailors' safety and protection —and thus a standard that would afford deserving servicemen the ability to recover for their damages should be adopted. The manufacturers focused on the connectedness of maritime products and the potential for diluting the effect of warnings for truly dangerous products.

The Supreme Court heard oral argument in early October. For the manufacturers, the justices' questioning focused on the nature of their product and its reliance on the later-added materials. Justice Ruth Bader Ginsburg acknowledged that, without the insulation, the bare-metal products would be useless. Likewise, Justice John Roberts added that it was only when the bare-metal products were in use and heated that the asbestos dangers presented themselves. Justice Sonia Sotomayor drew an analogy to a more relatable situation: when a spark in a gas tank causes an explosion, the injured party would bring an action against the car manufacturer, not the gasoline company.

Given the uniqueness of maritime law, the court could issue a narrow opinion. Nonetheless, it is likely that an analysis of the bare-metal defense by the Supreme Court could influence the treatment of asbestos cases outside of the maritime setting.

Stephen A. Miller practices in the commercial litigation group at Cozen O'Connor's Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Leigh Ann Benson also practices in the firm's commercial litigation group. She received her J.D. from Villanova University School of Law and her B.A., magna cum laude, from Virginia Tech.