The United States Supreme Court will soon hear arguments in the Air Products case regarding a “bare-metal defense” application and maritime law. Because maritime law is under federal jurisdiction, the US Supreme Court will have the chance to hear a bare-metal case, which is usually heard in state court cases.
It is important to note that while the Supreme Court’s ruling with respect to the bare-metal defense will be important, its scope will be limited to maritime law, which is federal law. The vast majority of bare-metal defense cases are tort cases relating to asbestos issues in state court. Per the legal concept of stare decisis, US Supreme Court rulings, though influential, are not binding on state courts.
Product liability law has been a developing area of law for the last several years. Asbestos, once considered the magic mineral, has been linked to the onset of mesothelioma, a debilitating form of cancer that has killed many. People who worked in certain areas had significant exposure to asbestos and, over the years, have taken their claims to court.
A major target of asbestos lawsuits has been the manufacturers of the products containing the asbestos. Plaintiffs claim that the manufacturers were negligent in producing these products. In response, many manufacturers that made the basic products countered that they are not responsible for others adding in asbestos further along into the production of the product. These manufacturers claim that they only created the bare-metal of the product, which does not contain asbestos. As such, they claim, there is no liability for the products being asbestos-ridden.
While it is accurate that the manufacturers did not outfit the product with asbestos, they created a product designed to be fit with asbestos. Since they were part of the production of an item designed to hold asbestos, such a defense, in the eyes of plaintiffs, is not acceptable.
The question courts have been grappling with for years is whether tort liability applies when a manufacturer asserts a bare-metals defense.
Air Products Case
The widows of two long-time Navy servicemen sued the manufacturer of certain marine products that contained asbestos. The plaintiffs assert that they lost their husbands to mesothelioma because of the asbestos-laden products. Air Products countered that they are not responsible because they did not add asbestos, they simply made a product wherein others added asbestos. In other words, the bare-metal defense.
Currently, there is a split in the Circuit Courts about whether a bare-material defense is a valid tort defense. The Third Circuit Court of Appeals held that a manufacturer is liable for a third party adding asbestos if it is reasonably foreseeable that such will be added. According to this, there is no bare-metal defense available.
The Sixth Circuit Court of Appeals, by contrast, upheld the bare-material defense, reasoning that a manufacturer can only be liable for a product if the manufacturer:
- Had control over production of the asbestos,
- Derived benefit from the asbestos, and
- Placed it into the stream of commerce.
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