Summary

On July 7, 2021, the United States District Court for the Eastern District of Pennsylvania in the John B. Devries v. General Electric Company case granted summary judgment for two defendants based on the maritime tort bare metal defense. The ruling follows remand of the Supreme Court ruling that found a duty to warn of asbestos hazards when the manufacturer requires the asbestos-containing product, knows of the danger, and the end user will not anticipate the hazard. This decision provides a framework for defendants in future cases to argue they are not liable for asbestos-containing external insulation or replacement parts when Plaintiffs fail to establish the required methods of proof that a product “requires” an asbestos-containing part.

The Facts and Decision

As background, Plaintiffs alleged that John DeVries was exposed to asbestos while serving in the United States Navy onboard the U.S.S. Turner, a Gearing class destroyer, between 1957 and 1960. Specifically, Plaintiffs claimed Mr. DeVries was exposed to asbestos dust from insulation attached to turbines which led to his asbestos-related injury. Defendants General Electric (“GE”) and CBS Corporation (“CBS”) delivered these turbines to the shipyard in the condition commonly referred to as “bare metal,” meaning without insulation. Shipyard contractors later installed the insulation on the equipment. 

GE and CBS previously received summary judgement after the District Court found they were not liable in light of the “bare metal defense.” Plaintiffs appealed, and the Supreme Court remanded the case after announcing a new test for the bare metal defense under maritime law in Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019). This new maritime bare metal test states:

In the maritime tort context, 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.

Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 995 (U.S. 2019). 

Additionally, the Supreme Court clarified the “requires” prong of the bare metal test, explaining that “the product in effect requires the part in order for the integrated product to function as intended” in three certain related situations, including “when (i) a manufacturer directs that the part be incorporated; (ii) a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part; or (iii) a product would be useless without the part.” Id. at 995-96 (citations omitted). In this case, the “product” was the turbines, and the “part” was the asbestos-containing insulation.

The District Court, upon remand, determined Plaintiffs did not meet any of the three methods of proof for the “requires” prong of the bare metal defense under maritime law. First, Plaintiffs produced no relevant evidence that GE and CBS specified or directed the incorporation of asbestos insulation with the type of turbines used onboard the U.S.S. Turner. Plaintiffs attempted to establish this method of proof by producing evidence that some land-based turbines were manufactured by GE and CBS with asbestos insulation. They also produced partial documents regarding two Navy Essex class aircraft carriers which included insulation attachment drawings created by CBS. The District Court determined this evidence was irrelevant as to whether GE or CBS directed the incorporation of asbestos insulation with their turbines for the Turner. (emphasis added in the District Court’s opinion)

The second method of proof was also not met as Plaintiffs failed to show that GE and CBS made the turbines with asbestos insulation attached. There was little dispute that the maritime turbines were delivered without asbestos insulation. Because asbestos insulation was not attached to the turbines, it followed that GE and CBS did not make a product that would require replacement with a similar part. 

Finally, under the third method of proof, Plaintiffs failed to show that the turbines were useless without asbestos insulation. Both parties admitted that non-asbestos, but functionally equivalent, insulation types were available, known to, and approved for use by the Navy that would have allowed the turbines to function properly. Because the turbines were not useless without the asbestos insulation, Plaintiffs failed to prove the third method. With all three methods failing, summary judgment was awarded for Defendants.

Analysis

The District Court restricted its analysis to the first prong of the bare metal defense test because Plaintiffs failed to establish, through the three available methods, that the products “required” incorporation of the asbestos insulation. Evidence disproving these three methods proved key to the District Court’s analysis, including testimony from experts, produced schematics for the ship in question, and product specifications for the turbines. This first prong of the maritime bare metal defense is a powerful tool when drafting motions for summary judgment for product manufacturers shipping bare metal products, as failure by Plaintiffs to establish this prong should lead to dismissal. Defendants should look to utilize this defense in the maritime tort context, when possible, and sink Plaintiffs’ chances of bringing these claims to trial.