Three years and one pandemic after the U.S. Supreme Court provided guidance in March 2019 on the bare metal defense in asbestos litigation commonly known as “DeVries,” the bare metal defense is alive and well.[i] Some predicted the DeVries decision, while limited to maritime law, would provide a basis for courts outside the maritime law context to follow that decision and effect qualifications on the liability of manufacturers for third-party components added to their products. While the full impact of the DeVries decision has yet to be determined, and there are at least two decisions that were impacted by the high court’s “middle ground” approach in DeVries, most decisions have held that DeVries is “cabined” to maritime law.

DeVries – Qualifications to the Bare Metal Defense Under Maritime Law

The U.S. Supreme Court analyzed three approaches to the bare metal defense which provides that product manufacturers should not be liable for harms caused by later-added third-party parts.[ii]

1) the more plaintiff-friendly foreseeability rule where liability attaches when it was foreseeable that the product would be used with another product or part (even if the product did not require use or incorporation of that product or part);

2) the more defendant-friendly approach of no liability if the manufacturer did not make, sell or distribute the part or incorporate the parts into the product (even if the product required incorporation of that part and the manufacturer knew that the integrated product was likely to be dangerous for its intended uses);

3) the middle approach, where there is liability for duty to warn when the product requires incorporation of a part and the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses.

            The Court then adopted the middle approach stating its ruling was only for the maritime tort context, (“We do not purport to define the proper tort rule outside of the maritime context.”).[iii] Specifically, the Court held: 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.[iv] 

            In limiting the ruling to the maritime tort context, the Court found that “[m]aritime law has always recognized a ‘special solicitude for the welfare’ of those who undertake to ‘venture upon hazardous and unpredictable sea voyages.’” and that “[m]aritime law's longstanding solicitude for sailors reinforces our decision to require a warning in these circumstances.”[v] 

State Court Rulings Since DeVries

Since the DeVries decision, a number of courts across the country have declined to apply it outside the maritime law context:

However, two federal courts have analyzed and applied DeVries to interpret the bare metal defense in non-maritime cases:

            These decisions provide a snapshot of how the DeVries decision has been interpreted and how it has impacted the bare metal defense over the last three years. Overall, it appears that the reach of DeVries outside of the intended maritime law context is limited.

[i] Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 203 L. Ed. 2d 373 (2019). 

[ii] Id., at 139 S. Ct. 986, 988.

[iii] Id., at 139 S. Ct. 986, 995.

[vi] Davis v. John Crane, Inc., 836 S.E.2d 577, 583-584 (Ga. App. 2019). 

[vii] Coffman v. Armstrong Int'l, Inc., 615 S.W.3d 888, 897-99 (Tenn. 2021).

[viii] C.A. No. 18C-11-148 ASB, at PP. 7-9 (Del. Super. Dec. 23, 2019) (ORDER).

[ix] C.A. No. 20C-01-264 ASB, at PP. 10-11 (Del. Super. April 8, 2021) (ORDER).

[x] Lopez v. McDermott, Inc., 2020 WL 3964989, at *2 & *8 (E.D. La. 2020).

[xi] Robinson v. Flowserve, Case No. 14-CV-161-ABJ, 2015 WL 11622965 (D. Wyo. Oct. 9, 2015).

[xii] Robinson v. Grove US, LLC, 2021 WL 5235548, *8-9 (D. Wyo.  2021).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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