Maritime Proctor Blog
As a practicing attorney at Chamberlain Hrdlicka in Houston, the focus of my practice is two-fold: I represent companies and individuals in civil litigation. I also do extensive work (of both a litigation and transactional nature) in the Admiralty, Maritime, and Energy fields.
I have been licensed to practice law since 2003. During that time, I've first and second chaired several trials to verdicts, as well as handled hundreds of other cases to amicable resolutions.
I'm a product of public schools, specifically Friendswood High School in Friendswood, Texas (Class of 1996), The University of Texas at Austin (BA-2000), and The University of Texas School of Law (JD - 2003).
Texas Super Lawyers magazine named me as a “Texas Super Lawyer” in the field of Transportation/Maritime Law in 2019 and 2020. Prior to turning 40, I was recognized by Super Lawyers as a Transportation/Maritime Law “Rising Star” from 2011-2018. In the past, both H-Texas Magazine and Houstonia Magazine named me as a “Top Lawyer in Houston” in the field of Admiralty and Maritime Law.
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We pause in our maintenance and cure discussion (for one day) to address a new, hot-off-the-press decision from the Supreme Court of the United States authored by Justice Brett Kavanaugh: Air & Liquid Sys. Corp. v. Devries, 2019 U.S. LEXIS 2087, No. 17-110 (March 19, 2019).
Facts & Relevant Background
In the underlying litigation, the plaintiffs (Kenneth McAfee and John DeVries) served in the U.S. Navy at various period of time – McAfee from 1977 to 1986 aboard 2 vessels, and DeVries from 1957-1960 aboard one vessel. Each of these vessels utilized different mechanical equipment that, in turn, required the use of asbestos insulation or parts in order to operate correctly. Obviously, we know from years of litigation (and even more daytime television commercials) that (a) use of these products can release asbestos fibers into the air and (b) if a person inhales or is exposed to those fibers, they are put at a greater risk of various illnesses, including lung cancer and/or asbestosis. Both McAfee and DeVries’s lawsuits alleged they contracted cancer from asbestos exposure while in the Navy. For ease of reference, we refer to each of the McAfee and DeVries plaintiffs collectively as “the plaintiffs.”
The plaintiffs did not sue the Navy, as they believed it would be immune from a tort suit. The Court noted the plaintiffs did not sue the manufacturers of the actual asbestos products, as they went bankrupt. Instead, the plaintiffs sued the manufactures of the component parts that used the asbestos, and argued since the manufacturers knew (a) their component parts used asbestos products and (b) asbestos is dangerous, the manufacturers of the component parts had a duty to warn of the dangers of asbestos.
Lower Court Proceedings
The plaintiffs filed their suits separately in Pennsylvania state courts. Ultimately, the defendants successfully removed both suits to the Eastern District of Pennsylvania, which determined that the circumstances of each case satisfied the maritime tort jurisdiction test, and thus maritime law applied.
The product manufacturers asserted a “bare metal” defense, which the Third Circuit described as “a manufacturer who delivers a product ‘bare metal’ – that is, without the insulation or other material that must be added for the product’s prper operation – is not generally liable for injuries caused by asbestos in later-added materials.” The District Court applied a “bright line” interpretation of the bare metal defense, and thereby granted the summary judgment motions. The plaintiffs appealed to the Third Circuit, who reversed, holding that maritime law (a) protects “sailors” and (b) a manufacturer of a bare metal product is still liable for a failure to warn when the use of a dangerous lubricating product is reasonably foreseeable.
The Supreme Court Majority Opinion
In a 6-3 decision, the Supreme Court disagreed with both the District Court and Third Circuit, and crafted a new “bare-metal defense” for maritime torts. Justice Kavanaugh wrote the majority opinion, in which Chief Justice Roberts and Justices Kagan, Breyer, Sotomayor, and Ginsburg joined. Justice Gorsuch filed a dissent, joined by Justices Thomas and Alito.
In reaching their decision, Justice Kavanaugh began his analysis by noting that the Supreme Court acts “as a common law court, subject to any controlling statues enacted by Congress.” Later in the opinion, Justice Kavanaugh recited the generally accepted duty to warn from the Restatement (Second) of Torts, §388, which requires a product manufacturer to warn potential users as part of its general duty of care “when the manufacturer ‘knows or has reason to know’ that is product ‘is or is likely to be dangerous for the use for which it is supplied’ and the manufacturer ‘has no reason to believe’ that the product’s users will realize that danger.”
Recognizing the special status afforded seafarers (the opinion uses “sailors” instead of “seamen”) under Admiralty law, the Court rejected both the bright line test used by the District Court (and the Sixth Circuit in Lindstrom v. A-C Prod. Liability Trust) as well as the foreseeability test used by the Third Circuit. Instead, the Court held as follows:
In the maritime tort context, we hold that a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.
Thus, the Court disagreed with the reasoning of the Third Circuit but affirmed the Third Circuit’s judgment, which required the District Court to apply a different standard than the bright line test to the “bare metal” defense.
The Supreme Court – Dissenting Opinion.
Justice Gorsuch, writing for Justices Thomas and Alito, began his analysis by noting that the majority correctly rejected the foreseeability test. However, Justice Gorsuch found the new test as equally problematic as the foreseeability standard, giving three main examples or hypotheticals of the difficulty of application:
-1- Can a person’s side-by-side use of two products constitute “incorporation” of the products?
-2- What is an “integrated product?”
-3- If a defendant believed the manufacturer of the integrated or incorporated product believed that product’s manufacturer would warn others, is that sufficient to comply with this new duty?
The dissent concluded this analysis as follows:
Headscratchers like these are sure to enrich lawyers and entertain law students, but they also promise to leave everyone else wondering about their legal duties, rights, and liabilities.
Moreover, the dissent analyzed an issue the majority opinion did not examine: the issue of fair notice. Specifically, Justice Gorsuch notes that these claims arise from products made “decades ago” where the manufacturers complied with the law, “provided all the warnings the law required.” The dissent viewed the new rule as creating a situation of retroactive responsibility “for failing to warn about other people’s products.”
Analysis & Take-Aways
There are several immediate take-aways from this decision.
First, we have a new rule in Admiralty and Maritime cases for products liability and the manufacturer’s duty to warn when the manufacturer produces a “bare metal” product. That test purports to be a middle ground between the rejected foreseeability and bright line tests previously used by the lower courts. Notably, this rule is limited to the Admiralty and Maritime context by the language of Justice Kavanaugh’s opinion.
Second, the scope of this new rule within the Admiralty and Maritime context is arguably unclear. A question remains as to whether the “bare metal” defense articulated in the majority applies to non-seamen, i.e. longshore workers. Could it apply to passengers as well?
On the one hand, the opinion couches the creation of this middle ground rule as appropriate in maritime law due to the special protections afforded seafarers. Longshore workers and passengers are not seamen. They do not receive special protections under Admiralty law in the same way as do people who faces the perils of the sea.
On the other hand, the Court’s statement of the rule in its holding (as seen above) does not limit the language to seamen or sailors. The dissent also states the rule is limited to the “maritime context” without further clarification.
We predict this issue will likely be litigated in the near future. Neither the majority nor the dissent addresses this specific issue, as there likely are numerous longshore workers in a similar position to the plaintiffs in the instant matter.
Third, the opinion does not analyze (ostensibly leaving it to the lower courts) about when manufacturers of “bare metal” products (either in this case or generally) knew or should have known that the use of asbestos in the “bare metal” product would result in exposure to asbestos fibers. Is it at the time the product rolls off the assembly line, when it is installed, or does the obligation continue throughout the life of the product? This question, raised by the dissent, will likely spawn further litigation and appeals.
Fourth and finally, does this call into question past settlements on asbestos claims where a bare metal product was at issue? The answer is one hammered into our heads in law school: it depends. If such a manufacturer was previously sued and settled, with the plaintiff(s) signing a global settlement and general release of all claims foreseen and unforeseen, known and unknown, it would likely be difficult to re-litigate those claims. However, it would be prudent, if the claim sounded in Admiralty, to review those releases and determine if the language is strong enough to withstand the onset of new litigation predicted by Justice Gorsuch and the dissenter.
 2019 U.S. LEXIS 2087 at *7-8.
 Sadly, both these veterans died during the course of their litigation.
 2019 U.S. LEXIS 2087 at *8, citing to Feres v. United States, 340 U.S. 135 (1950).
 Id. at *9.
 See In re Asbestos Prods. Liab. Litig., 873 F.3d 232, 234 (3rd Cir. 2017), overruled by Air & Liquid Sys. Corp. v. Devries, 2019 U.S. LEXIS 2087 (2019).
 Id. at 234.
 873 F.3d at 234.
 873 F.3d at 234-35.
 Id. at *5-6, citing to Exxon Shipping Co. v. Baker, 554 U.S. 471, 507-08 (2008).
 2019 U.S. LEXIS 2087 at *11, citing to 2 Restatement (Second)
 424 F.3d 488 (6th Cir. 2005).
 2019 U.S. LEXIS 2087 at 11-13 (March 19, 2019).
 2019 U.S. LEXIS 2087 at *18.
 2019 U.S. LEXIS 2087 at *19 (Gorsuch, J., dissenting).
 2019 U.S. LEXIS 2087 at 23-25.
 2019 U.S. LEXIS 2087 at *26-27.
 2019 U.S. LEXIS 2087 at *16.
 2019 U.S. LEXIS 2087 at *27-28.
Author - Maritime Law Blog
Daniel Knight practices in the areas of admiralty and maritime law, as well as general civil litigation and appellate issues. He has expertise in ...