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U.S. Supreme Court to decide maritime law case involving manufacturer's "bare metal" defense and when companies must warn of asbestos risk

A case before the U.S. Supreme Court examines whether manufacturers of products that require asbestos as an add-on component should have to warn users of the risk, even when the product as it leaves the manufacturer contains no asbestos. The case was brought by two widows of Navy sailors who died of lung cancer after working with asbestos-laden equipment on board Navy vessels and in shipyards.

The women sued various companies that either manufactured asbestos-containing equipment or products, or manufactured equipment that, although not made with asbestos, was designed to be ultimately used with asbestos insulation or components. . The liability of the companies whose products did not contain asbestos (that is, the "bare metal" defendants) is not clear under maritime law. This is because the asbestos components were added to the equipment later by third parties. For example, if the equipment required asbestos gaskets, those gaskets were added by the users -- the Navy or the sailors. Such equipment though, was designed to be used with the asbestos gaskets (or asbestos-containing insulation or components) and, in some cases, would not have worked as intended without the asbestos gaskets.

The equipment manufacturers argue that they have no duty to warn workers of the asbestos-related risks associated with components installed after their equipment was sold. Using gaskets as an example again, the manufacturers claim that it should be the maker of the gasket, not the original equipment maker, that had a duty to warn consumers.

Their equipment contains no asbestos at the point it is sold, the manufacturers argue. Therefore, their connection to the asbestos-laden components is merely incidental and it should not fall on them to warn consumers.

The Navy widows argue that the equipment manufacturers are in the best position to prevent the harm. They also argue that their duty to warn should depend on the foreseeability of the harm and what would be the most efficient way to warn consumers. The risks of asbestos are well established and thus foreseeable. The widows argue that the manufacturer of the equipment, not the asbestos component, is in the best position to deliver an effective warning.

"If you make a product and the ordinary use or maintenance of that product is going to cause a harm that you know about, then you need to warn about that," argued their attorney during oral arguments on Oct. 10.

Justice Neil Gorsuch asked one equipment manufacturer's attorney whether there was any downside to requiring them to warn the public of the hazards of the asbestos components. The manufacturer's attorney responded that such a requirement could lead to "over-warning," in which a "deluge" of warnings dilutes the message of each individual warning.

The manufacturers are trying to get the Supreme Court to overturn a decision of the Third Circuit finding that the manufacturers may be liable for third party component parts if the injury was a "reasonably foreseeable" consequence of the manufacturer's failure to provide users with a sufficient warning.

The justices will now deliberate and return a ruling, which will likely take several months.

Although the outcome of the case is technically only applicable to maritime law cases, the Court's decision and rationale might be persuasive in other contexts.

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