Air & Liquid Systems Corp. v. DeVries

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
AIR & LIQUID SYSTEMS CORP. ET AL. v. DEVRIES,
INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE
OF DEVRIES, DECEASED, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
No. 17–1104. Argued October 10, 2018—Decided March 19, 2019
Petitioners produced equipment for three Navy ships. The equipment
required asbestos insulation or asbestos parts to function as intend-
ed, but the manufacturers did not always incorporate the asbestos
into their products. Instead, the manufacturers delivered much of the
equipment to the Navy without asbestos, and the Navy later added
the asbestos to the equipment. Two Navy veterans, Kenneth McAfee
and John DeVries, were exposed to asbestos on the ships and devel-
oped cancer. They and their wives sued the manufacturers, alleging
that the asbestos exposure caused the cancer and contending that the
manufacturers were negligent in failing to warn about the dangers of
asbestos in the integrated products. Raising the “bare-metal de-
fense,” the manufacturers argued that they should not be liable for
harms caused by later-added third-party parts. The District Court
granted summary judgment to the manufacturers, but the Third Cir-
cuit, adopting a foreseeability approach, vacated and remanded.
Held: In the maritime tort context, a product manufacturer has a duty
to warn when its product requires incorporation of a part, the manu-
facturer knows or has reason to know that the integrated product is
likely to be dangerous for its intended uses, and the manufacturer
has no reason to believe that the product’s users will realize that
danger. Pp. 4–11.
(a) Tort law imposes a duty to exercise reasonable care on those
whose conduct presents a risk of harm to others. That includes a
duty to warn when the manufacturer “knows or has reason to know”
that its product “is or is likely to be dangerous for the use for which it
2 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
Syllabus
is supplied” and “has no reason to believe” that the product’s users
will realize that danger. 2 Restatement (Second) of Torts §388.
Three approaches have emerged on how to apply that “duty to warn”
principle when a manufacturer’s product requires later incorporation
of a dangerous part in order for the integrated product to function as
intended. The first—the foreseeability rule—provides that a manu-
facturer may be liable when it was foreseeable that its product would
be used with another product or part, even if the manufacturer’s
product did not require use or incorporation of that other product or
part. The second—the bare-metal defense—provides that if a manu-
facturer did not itself make, sell, or distribute the part or incorporate
the part into the product, the manufacturer is not liable for harm
caused by the integrated product—even if the product required incor-
poration of the part and the manufacturer knew that the integrated
product was likely to be dangerous for its intended uses. A third ap-
proach, falling between those two, imposes on the manufacturer a
duty to warn when its product requires incorporation of a part and the
manufacturer knows or has reason to know that the integrated prod-
uct is likely to be dangerous for its intended uses.
The third approach is most appropriate for this maritime context.
The foreseeability rule would sweep too broadly, imposing a difficult
and costly burden on manufacturers, while simultaneously overwarn-
ing users. The bare-metal defense ultimately goes too far in the other
direction. After all, a manufacturer that supplies a product that is
dangerous in and of itself and a manufacturer that supplies a product
that requires incorporation of a part that the manufacturer knows or
has reason to know is likely to make the integrated product danger-
ous for its intended uses both “kno[w] or ha[ve] reason to know” that
the product “is or is likely to be dangerous for the use for which it is
supplied.” And in the latter case, the product manufacturer will
often be in a better position than the parts manufacturer to warn of the
danger, because the product manufacturer knows the nature of the
ultimate integrated product. Requiring a warning in these circum-
stances will not impose a significant burden on manufacturers, who
already have a duty to warn of the dangers of their own products.
Nor will it result in substantial uncertainty about when product
manufacturers must provide warnings, because the rule requires a
manufacturer to warn only when its product requires a part in order
for the integrated product to function as intended. And this Court is
unaware of any substantial overwarning problems in those jurisdic-
tions that have adopted the approach taken here. Requiring the
product manufacturer to warn when its product requires incorpora-
tion of a part that makes the integrated product dangerous for its in-
tended uses is especially appropriate in the context of maritime law,
Cite as: 586 U. S. ____ (2019) 3
Syllabus
which has always recognized a “ ‘special solicitude for the welfare’ ” of
sailors. American Export Lines, Inc. v. Alvez, 446 U.S. 274, 285.
Pp. 4–10.
(b) The maritime tort rule adopted here encompasses all of the fol-
lowing circumstances, so long as the manufacturer knows or has rea-
son to know that the integrated product is likely to be dangerous for
its intended uses, and the manufacturer has no reason to believe that
the product’s users will realize that danger: (i) a manufacturer di-
rects that the part be incorporated; (ii) a manufacturer itself makes
the product with a part that the manufacturer knows will require re-
placement with a similar part; or (iii) a product would be useless
without the part. P. 10.
873 F.3d 232, affirmed.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. GOR-
SUCH, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ.,
joined.
Cite as: 586 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1104
_________________
AIR AND LIQUID SYSTEMS CORP., ET AL.,
PETITIONERS v. ROBERTA G. DEVRIES,
INDIVIDUALLY AND AS ADMINISTRATRIX OF
THE ESTATE OF JOHN B. DEVRIES,
DECEASED, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[March 19, 2019]
JUSTICE KAVANAUGH delivered the opinion of the Court.
In maritime tort cases, we act as a common-law court,
subject to any controlling statutes enacted by Congress.
See Exxon Shipping Co. v. Baker, 554 U.S. 471, 507–508
(2008). This maritime tort case raises a question about
the scope of a manufacturer’s duty to warn. The manufac-
turers here produced equipment such as pumps, blowers,
and turbines for three Navy ships. The equipment re-
quired asbestos insulation or asbestos parts in order to
function as intended. When used on the ships, the equip-
ment released asbestos fibers into the air. Two Navy
veterans who were exposed to asbestos on the ships devel-
oped cancer and later died. The veterans’ families sued
the equipment manufacturers, claiming that the manufac-
turers were negligent in failing to warn of the dangers of
asbestos.
The plaintiffs contend that a manufacturer has a duty to
warn when the manufacturer’s product requires incorpo-
2 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
Opinion of the Court
ration of a part (here, asbestos) that the manufacturer
knows is likely to make the integrated product dangerous
for its intended uses. The manufacturers respond that
they had no duty to warn because they did not themselves
incorporate the asbestos into their equipment; rather, the
Navy added the asbestos to the equipment after the
equipment was already on board the ships.
We agree with the plaintiffs. In the maritime tort con-
text, a product manufacturer has a duty to warn when (i)
its product requires incorporation of a part, (ii) the manu-
facturer 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. The District
Court did not apply that test when granting summary
judgment to the defendant manufacturers. Although we
do not agree with all of the reasoning of the U. S. Court of
Appeals for the Third Circuit, we affirm its judgment
requiring the District Court to reconsider its prior grants
of summary judgment to the defendant manufacturers.
I
Kenneth McAfee served in the U. S. Navy for more than
20 years. As relevant here, McAfee worked on the U. S. S.
Wanamassa from 1977 to 1980 and then on the U. S. S.
Commodore from 1982 to 1986. John DeVries served in
the U. S. Navy from 1957 to 1960. He worked on the
U. S. S. Turner.
Those ships were outfitted with equipment such as
pumps, blowers, and turbines. That equipment required
asbestos insulation or asbestos parts in order to function
as intended. When used as intended, that equipment can
cause the release of asbestos fibers into the air. If inhaled
or ingested, those fibers may cause various illnesses.
Five businesses—Air and Liquid Systems, CBS, Foster
Wheeler, Ingersoll Rand, and General Electric—produced
Cite as: 586 U. S. ____ (2019) 3
Opinion of the Court
some of the equipment that was used on the ships. Al-
though the equipment required asbestos insulation or
asbestos parts in order to function as intended, those
businesses did not always incorporate the asbestos into
their products. Instead, the businesses delivered much of
the equipment to the Navy without asbestos. The equip-
ment was delivered in a condition known as “bare-metal.”
In those situations, the Navy later added the asbestos to
the equipment.1
McAfee and DeVries allege that their exposure to the
asbestos caused them to develop cancer. They and their
wives sued the equipment manufacturers in Pennsylvania
state court. (McAfee and DeVries later died during the
course of the ongoing litigation.) The plaintiffs did not sue
the Navy because they apparently believed the Navy was
immune. See Feres v. United States, 340 U.S. 135 (1950).
The plaintiffs also could not recover much from the manu-
facturers of the asbestos insulation and asbestos parts
because those manufacturers had gone bankrupt. As to
the manufacturers of the equipment—such as the pumps,
blowers, and turbines—the plaintiffs claimed that those
manufacturers negligently failed to warn them of the
dangers of asbestos in the integrated products. If the
manufacturers had provided warnings, the workers on the
ships presumably could have worn respiratory masks and
thereby avoided the danger.
Invoking federal maritime jurisdiction, the manufactur-
ers removed the cases to federal court. The manufacturers
then moved for summary judgment on the ground that
manufacturers should not be liable for harms caused by
later-added third-party parts. That defense is known as
the “bare-metal defense.”
——————
1 Sometimes, the equipment manufacturers themselves added the
asbestos to the equipment. Even in those situations, however, the
Navy later replaced the asbestos parts with third-party asbestos parts.
4 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
Opinion of the Court
The District Court granted the manufacturers’ motions
for summary judgment. The U. S. Court of Appeals for the
Third Circuit vacated and remanded. In re Asbestos
Prods. Liability Litigation, 873 F.3d 232, 241 (2017). The
Third Circuit held that “a manufacturer of a bare-metal
product may be held liable for a plaintiff ’s injuries suf-
fered from later-added asbestos-containing materials” if
the manufacturer could foresee that the product would be
used with the later-added asbestos-containing materials.
Id., at 240.
We granted certiorari to resolve a disagreement among
the Courts of Appeals about the validity of the bare-metal
defense under maritime law. 584 U. S. ___ (2018). Com-
pare 873 F.3d 232 (case below), with Lindstrom v. A-C
Prod. Liability Trust, 424 F.3d 488 (CA6 2005).
II
Article III of the Constitution grants the federal courts
jurisdiction over maritime cases. Under 28 U.S. C. §1333,
the federal courts have “original jurisdiction, exclusive of
the courts of the States, of . . . [a]ny civil case of admiralty
or maritime jurisdiction, saving to suitors in all cases all
other remedies to which they are otherwise entitled.”
When a federal court decides a maritime case, it acts as
a federal “common law court,” much as state courts do in
state common-law cases. Exxon Shipping Co., 554 U.S.,
at 507. Subject to direction from Congress, the federal
courts fashion federal maritime law. See id., at 508, n. 21;
Miles v. Apex Marine Corp., 498 U.S. 19, 27 (1990);
United States v. Reliable Transfer Co., 421 U.S. 397, 409
(1975); Detroit Trust Co. v. The Thomas Barlum, 293 U.S.
21, 42–44 (1934). In formulating federal maritime law,
the federal courts may examine, among other sources,
judicial opinions, legislation, treatises, and scholarly
writings. See Exxon Co., U. S. A. v. Sofec, Inc., 517 U.S.
830, 839 (1996); East River S. S. Corp. v. Transamerica
Cite as: 586 U. S. ____ (2019) 5
Opinion of the Court
Delaval Inc., 476 U.S. 858, 864 (1986).
This is a maritime tort case. The plaintiffs allege that
the defendant equipment manufacturers were negligent in
failing to warn about the dangers of asbestos. “The gen-
eral maritime law has recognized the tort of negligence for
more than a century . . . .” Norfolk Shipbuilding &
Drydock Corp. v. Garris, 532 U.S. 811, 820 (2001); see
also Kermarec v. Compagnie Generale Transatlantique,
358 U.S. 625, 631–632 (1959). Maritime law has likewise
recognized common-law principles of products liability for
decades. See East River S. S. Corp., 476 U.S., at 865.
In this negligence case, we must decide whether a man-
ufacturer has a duty to warn when the manufacturer’s
product requires later incorporation of a dangerous part—
here, asbestos—in order for the integrated product to
function as intended.
We start with basic tort-law principles. Tort law im-
poses “a duty to exercise reasonable care” on those whose
conduct presents a risk of harm to others. 1 Restatement
(Third) of Torts: Liability for Physical and Emotional
Harm §7, p. 77 (2005). For the manufacturer of a product,
the general duty of care includes a duty to warn when the
manufacturer “knows or has reason to know” that its
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 dan-
ger. 2 Restatement (Second) of Torts §388, p. 301 (1963–
1964).
In tort cases, the federal and state courts have not
reached consensus on how to apply that general tort-law
“duty to warn” principle when the manufacturer’s product
requires later incorporation of a dangerous part in order
for the integrated product to function as intended. Three
approaches have emerged.
The first approach is the more plaintiff-friendly foresee-
ability rule that the Third Circuit adopted in this case: A
6 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
Opinion of the Court
manufacturer may be liable when it was foreseeable that
the manufacturer’s product would be used with another
product or part, even if the manufacturer’s product did not
require use or incorporation of that other product or part.
See, e.g., 873 F.3d, at 240; Kochera v. Foster Wheeler,
LLC, 2015 WL 5584749, *4 (SD Ill., Sept. 23, 2015); Chi-
cano v. General Elec. Co., 2004 WL 2250990, *9 (ED Pa.,
Oct. 5, 2004); McKenzie v. A. W. Chesterson Co., 277 Ore.
App. 728, 749–750, 373 P.3d 150, 162 (2016).
The second approach is the more defendant-friendly
bare-metal defense that the manufacturers urge here: If a
manufacturer did not itself make, sell, or distribute the
part or incorporate the part into the product, the manufac-
turer is not liable for harm caused by the integrated prod-
uct—even if the product required incorporation of the part
and the manufacturer knew that the integrated product
was likely to be dangerous for its intended uses. See, e.g.,
Lindstrom, 424 F.3d, at 492, 495–497; Evans v. CBS
Corp., 230 F. Supp. 3d 397, 403–405 (Del. 2017); Cabasug
v. Crane Co., 989 F. Supp. 2d 1027, 1041 (Haw. 2013).
The third approach falls between those two approaches.
Under the third approach, foreseeability that the product
may be used with another product or part that is likely to
be dangerous is not enough to trigger a duty to warn. But
a manufacturer does have a duty to warn when its 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. Under that
approach, the manufacturer may be liable even when the
manufacturer does not itself incorporate the required part
into the product. See, e.g., Quirin v. Lorillard Tobacco
Co., 17 F. Supp. 3d 760, 769–770 (ND Ill. 2014); In re New
York City Asbestos Litigation, 27 N.Y. 3d 765, 793–794, 59
N.E.3d 458, 474 (2016); May v. Air & Liquid Systems
Corp., 446 Md. 1, 29, 129 A.3d 984, 1000 (2015).
We conclude that the third approach is the most appro-
Cite as: 586 U. S. ____ (2019) 7
Opinion of the Court
priate for this maritime tort context.
To begin, we agree with the manufacturers that a rule of
mere foreseeability would sweep too broadly. See gener-
ally 1 Restatement (Third) of Torts: Liability for Physical
and Emotional Harm §7, Comment j, at 82; 2 Restatement
(Second) of Torts §395, Comment j, at 330. Many products
can foreseeably be used in numerous ways with numerous
other products and parts. Requiring a product manufac-
turer to imagine and warn about all of those possible
uses—with massive liability looming for failure to correctly
predict how its product might be used with other prod-
ucts or parts—would impose a difficult and costly burden
on manufacturers, while simultaneously overwarning
users. In light of that uncertainty and unfairness,
we reject the foreseeability approach for this maritime
context.
That said, we agree with the plaintiffs that the bare-
metal defense ultimately goes too far in the other direc-
tion. In urging the bare-metal defense, the manufacturers
contend that a business generally has “no duty” to “control
the conduct of a third person as to prevent him from caus-
ing physical harm to another.” Id., §315, at 122. That is
true, but it is also beside the point here. After all, when a
manufacturer’s product is dangerous in and of itself, the
manufacturer “knows or has reason to know” that the
product “is or is likely to be dangerous for the use for
which it is supplied.” Id., §388, at 301. The same holds
true, we conclude, when the manufacturer’s product re-
quires incorporation of a part that the manufacturer
knows or has reason to know is likely to make the inte-
grated product dangerous for its intended uses. As a
matter of maritime tort law, we find no persuasive reason
to distinguish those two similar situations for purposes of
a manufacturer’s duty to warn. See Restatement (Third)
of Torts: Products Liability §2, Comment i, p. 30 (1997)
(“[W]arnings also may be needed to inform users and
8 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
Opinion of the Court
consumers of nonobvious and not generally known
risks that unavoidably inhere in using or consuming the
product”).
Importantly, the product manufacturer will often be in a
better position than the parts manufacturer to warn of the
danger from the integrated product. See generally G.
Calabresi, The Costs of Accidents 311–318 (1970). The
product manufacturer knows the nature of the ultimate
integrated product and is typically more aware of the risks
associated with that integrated product. By contrast, a
parts manufacturer may be aware only that its part could
conceivably be used in any number of ways in any number
of products. A parts manufacturer may not always be
aware that its part will be used in a way that poses a risk
of danger.2
To be sure, as the manufacturers correctly point out,
issuing a warning costs time and money. But the burden
usually is not significant. Manufacturers already have a
duty to warn of the dangers of their own products. That
duty typically imposes a light burden on manufacturers.
See, e.g., Davis v. Wyeth Labs., Inc., 399 F.2d 121, 131
(CA9 1968); Butler v. L. Sonneborn Sons, Inc., 296 F.2d
623, 625–626 (CA2 1961); Ross Labs. v. Thies, 725 P.2d
1076, 1079 (Alaska 1986); Moran v. Faberge, Inc., 273 Md.
538, 543–544, 332 A.2d 11, 15 (1975). Requiring a manu-
facturer to also warn when the manufacturer knows or
has reason to know that a required later-added part is
likely to make the integrated product dangerous for its
intended uses should not meaningfully add to that burden.
The manufacturers also contend that requiring a warn-
ing even when they have not themselves incorporated the
part into the product will lead to uncertainty about when
product manufacturers must provide warnings. But the
——————
2 We do not rule out the possibility that, in certain circumstances, the
parts manufacturer may also have a duty to warn.
Cite as: 586 U. S. ____ (2019) 9
Opinion of the Court
manufacturers have not pointed to any substantial confu-
sion in those jurisdictions that have adopted this ap-
proach. And the rule that we adopt here is tightly cabined.
The rule does not require that manufacturers warn in
cases of mere foreseeability. The rule requires that manu-
facturers warn only when their product requires a part in
order for the integrated product to function as intended.
The manufacturers further assert that requiring a
warning in these circumstances will lead to excessive
warning of consumers. Again, however, we are not aware
of substantial overwarning problems in those jurisdictions
that have adopted this approach. And because the rule we
adopt here applies only in certain narrow circumstances, it
will not require a plethora of new warnings.
Requiring the product manufacturer to warn when its
product requires incorporation of a part that makes the
integrated product dangerous for its intended uses—and
not just when the manufacturer itself incorporates the
part into the product—is especially appropriate in the
maritime context. Maritime law has always recognized a
“special solicitude for the welfare” of those who undertake
to “venture upon hazardous and unpredictable sea voy-
ages.” American Export Lines, Inc. v. Alvez, 446 U.S. 274,
285 (1980) (internal quotation marks omitted). The plain-
tiffs in this case are the families of veterans who served in
the U. S. Navy. Maritime law’s longstanding solicitude for
sailors reinforces our decision to require a warning in
these circumstances. See Yamaha Motor Corp., U. S. A. v.
Calhoun, 516 U.S. 199, 213 (1996); Miles, 498 U.S., at 36;
Moragne v. States Marine Lines, Inc., 398 U.S. 375, 387
(1970).
For those reasons, we conclude as follows: In the mari-
time 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
10 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
Opinion of the Court
intended uses, and (iii) the manufacturer has no reason to
believe that the product’s users will realize that danger.
We do not purport to define the proper tort rule outside of
the maritime context.
One final point for clarity: Courts have determined that
this rule applies in certain related situations, including
when: (i) a manufacturer directs that the part be incorpo-
rated, see, e.g., Bell v. Foster Wheeler Energy Corp., 2016
WL 5780104, *6–*7 (ED La., Oct. 4, 2016); (ii) a manufac-
turer itself makes the product with a part that the manu-
facturer knows will require replacement with a similar
part, see, e.g., Chesher v. 3M Co., 234 F. Supp. 3d 693,
713–714 (S. C. 2017); Quirin, 17 F. Supp. 3d, at 769–770;
May, 446 Md., at 29, 129 A. 3d, at 1000; or (iii) a product
would be useless without the part, see, e.g., In re New York
City Asbestos Litigation, 27 N.Y. 3d, at 793–794, 59 N.E.
3d, at 474. In all of those situations, courts have said that
the product in effect requires the part in order for the
integrated product to function as intended. We agree.
The maritime tort rule we adopt today therefore encom-
passes those situations, so long as the manufacturer
knows or has reason to know that the integrated product
is likely to be dangerous for its intended uses, and the
manufacturer has no reason to believe that the product’s
users will realize that danger.
* * *
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. The District Court should
evaluate the evidence under that rule. Although we do not
agree with all of the reasoning of the Third Circuit, we
Cite as: 586 U. S. ____ (2019) 11
Opinion of the Court
affirm its judgment requiring the District Court to recon-
sider its prior grants of summary judgment to the defend-
ant manufacturers.
It is so ordered.
Cite as: 586 U. S. ____ (2019) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1104
_________________
AIR AND LIQUID SYSTEMS CORP., ET AL.,
PETITIONERS v. ROBERTA G. DEVRIES,
INDIVIDUALLY AND AS ADMINISTRATRIX OF
THE ESTATE OF JOHN B. DEVRIES,
DECEASED, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[March 19, 2019]
JUSTICE GORSUCH, with whom JUSTICE THOMAS and
JUSTICE ALITO join, dissenting.
Decades ago, many of the defendants before us sold
“bare metal” products to the Navy. Things like the tur-
bines used to propel its ships. Did these manufacturers
have to warn users about the dangers of asbestos that
someone else later chose to add to or wrap around their
products as insulation?
Start with a couple of things we can all agree on. First,
everyone accepts that, under traditional tort principles,
the manufacturers who actually supplied the later-added
asbestos had to warn about its known dangers. Second,
everyone agrees that the court of appeals erred when it
came to analyzing the duties of the bare metal defendants.
The court of appeals held that the bare metal manufactur-
ers had a duty to warn because they could have “foreseen”
the possibility that others would later use asbestos in
conjunction with their products. Today, the Court rightly
rejects this “foreseeability” standard, succinctly explaining
that “[r]equiring a product manufacturer to imagine and
warn about all of those possible uses—with massive liabil-
ity looming for failure to correctly predict how its product
2 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
GORSUCH, J., dissenting
might be used with other products or parts—would impose
a difficult and costly burden on manufacturers, while
simultaneously overwarning users.” Ante, at 7.
Our disagreement arises only in what comes next.
Immediately after rejecting the court of appeals’ approach,
the Court proceeds to devise its own way of holding the
bare metal manufacturers responsible for later-added
asbestos. In the Court’s judgment, the bare metal defend-
ants had a duty to warn about the dangers of asbestos
introduced by others so long as they (i) produced a product
that “require[d] incorporation of ” asbestos, (ii) “kn[ew] or
ha[d] reason to know” that the “integrated product” would
be dangerous, and (iii) had “no reason to believe” that
users would realize that danger. Ante, at 9–10. The
Court’s new three-part standard surely represents an
improvement over the court of appeals’ unadorned “fore-
seeability” offering. But, respectfully, it seems to me to
suffer from many of the same defects the Court itself has
identified.
In the first place, neither of these standards enjoys
meaningful roots in the common law. The common law
has long taught that a manufacturer has no “duty to warn
or instruct about another manufacturer’s products, though
those products might be used in connection with the man-
ufacturer’s own products.” Firestone Steel Prods. Co. v.
Barajas, 927 S.W.2d 608, 616 (Tex. 1996). Instead, “the
manufacturer’s duty is restricted to warnings based on the
characteristics of the manufacturer’s own product.” Powell
v. Standard Brands Paint Co., 166 Cal. App. 3d 357, 364,
212 Cal. Rptr. 395, 398 (1985).1 It doesn’t matter, either,
——————
1 See also, e.g., Dreyer v. Exel Industries, S. A., 326 Fed. Appx. 353,
357–358 (CA6 2009); Barnes v. Kerr Corp., 418 F.3d 583, 590 (CA6
2005); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 472
(CA11 1993); Baughman v. General Motors Corp., 780 F.2d 1131, 1133
(CA4 1986); In re Deep Vein Thrombosis, 356 F. Supp. 2d 1055, 1068
(ND Cal. 2005); Acoba v. General Tire, Inc., 92 Haw. 1, 18, 986 P. 2d
Cite as: 586 U. S. ____ (2019) 3
GORSUCH, J., dissenting
whether a manufacturer’s product happens to be (or is
designed to be) “integrated” with another’s. Instead, it is
black-letter law that the supplier of a product generally
must warn about only those risks associated with the
product itself, not those associated with the “products and
systems into which [it later may be] integrated.” Re-
statement (Third) of Torts: Products Liability §5, Com-
ment b, p. 132 (1997).2
More than that, the traditional common law rule still
makes the most sense today. The manufacturer of a prod-
uct is in the best position to understand and warn users
about its risks; in the language of law and economics,
those who make products are generally the least-cost
avoiders of their risks. By placing the duty to warn on a
product’s manufacturer, we force it to internalize the full
cost of any injuries caused by inadequate warnings—and
in that way ensure it is fully incentivized to provide ade-
quate warnings. By contrast, we dilute the incentive of a
manufacturer to warn about the dangers of its products
when we require other people to share the duty to warn
and its corresponding costs. See S. Shavell, Economic
——————
288, 305 (1999); Brown v. Drake-Willock Int’l, Ltd., 209 Mich. App. 136,
144–146, 530 N.W.2d 510, 514–515 (1995); Rastelli v. Goodyear Tire &
Rubber Co., 79 N.Y. 2d 289, 297–298, 591 N.E.2d 222, 225–226
(1992); Walton v. Harnischfeger, 796 S.W.2d 225, 226 (Tex. App. 1990);
Toth v. Economy Forms Corp., 391 Pa. Super. 383, 388–389, 571 A.2d
420, 423 (1990); Mitchell v. Sky Climber, Inc., 396 Mass. 629, 631–632,
487 N.E.2d 1374, 1376 (1986); Johnson v. Jones-Blair Paint Co., 607
S.W.2d 305, 306 (Tex. Civ. App. 1980); 63A Am. Jur. 2d, Products
Liability §1027, p. 247 (2010); Behrens & Horn, Liability for Asbestos-
Containing Connected or Replacement Parts Made by Third-Parties:
Courts Are Properly Rejecting This Form of Guilt by Association, 37
Am. J. Trial Advocacy 489, 494–497 (2014).
2 See, e.g., Cipollone v. Yale Indus. Prods., Inc., 202 F.3d 376, 379
(CA1 2000); Crossfield v. Quality Control Equip. Co., 1 F.3d 701, 703–
704 (CA8 1993); Childress v. Gresen Mfg. Co., 888 F.2d 45, 48–49 (CA6
1989); Koonce v. Quaker Safety Prods. & Mfg. Co., 798 F.2d 700, 715
(CA5 1986).
4 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
GORSUCH, J., dissenting
Analysis of Accident Law 17 (1987); G. Calabresi, The
Costs of Accidents 135, and n. 1 (1970); Italia Societa per
Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S.
315, 324 (1964).3
The traditional common law rule better accords, too,
with consumer expectations. A home chef who buys a
butcher’s knife may expect to read warnings about the
dangers of knives but not about the dangers of under-
cooked meat. Likewise, a purchaser of gasoline may ex-
pect to see warnings at the pump about its flammability
but not about the dangers of recklessly driving a car. As
the Court today recognizes, encouraging manufacturers to
offer warnings about other people’s products risks long,
duplicative, fine print, and conflicting warnings that will
leave consumers less sure about which to take seriously
and more likely to disregard them all. In the words of the
California Supreme Court, consumer welfare is not well
“served by requiring manufacturers to warn about the
dangerous propensities of products they do not design,
make, or sell.” O’Neil v. Crane Co., 53 Cal. 4th 335, 343,
266 P.3d 987, 991 (2012); see also Cotton v. Buckeye Gas
Prods. Co., 840 F.2d 935, 938 (CADC 1988) (“The inclu-
sion of each extra item dilutes the punch of every other
item. Given short attention spans, items crowd each other
——————
3 See also Restatement (Third) of Torts: Products Liability §5, Com-
ment a, p. 131 (1997) (“If the component is not itself defective, it would
be unjust and inefficient to impose liability solely on the ground” that
others “utiliz[e] the component in a manner that renders the integrated
product defective”); Edwards v. Honeywell, Inc., 50 F.3d 484, 490 (CA7
1995) (placing liability on a defendant who is not “in the best position to
prevent a particular class of accidents” may “dilute the incentives of
other potential defendants” who should be the first “line of defense”);
National Union Fire Ins. Co. of Pittsburgh v. Riggs Nat. Bank of Wash-
ington, D. C., 5 F.3d 554, 557 (CADC 1993) (Silberman, J., concurring)
(“Placing liability with the least-cost avoider increases the incentive for
that party to adopt preventive measures” that will “have the greatest
marginal effect on preventing the loss”).
Cite as: 586 U. S. ____ (2019) 5
GORSUCH, J., dissenting
out; they get lost in fine print”).
The traditional tort rule bears yet another virtue: It is
simple to apply. The traditional rule affords manufactur-
ers fair notice of their legal duties, lets injured consumers
know whom to sue, and ensures courts will treat like cases
alike. By contrast, when liability depends on the applica-
tion of opaque or multifactor standards like the one pro-
posed below or the one announced today, “equality of
treatment” becomes harder to ensure across cases; “pre-
dictability is destroyed” for innovators, investors, and
consumers alike; and “judicial courage is impaired” as the
ability (and temptation) to fit the law to the case, rather
than the case to the law, grows. Scalia, The Rule of Law
as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989).
Just consider some of the uncertainties each part of the
Court’s new three-part test is sure to invite:
(i) When does a customer’s side-by-side use of two
products qualify as “incorporation” of the products?
Does hanging asbestos on the outside of a boiler count,
or must asbestos be placed inside a product? And
when is incorporation of a dangerous third-party
product “required” as opposed to just optimal or pre-
ferred? What if a potential substitute existed, but it
was less effective or more costly (surely alternatives to
asbestos insulation have existed for a long time)? And
what if the third-party product becomes less advanta-
geous over time due to advancing technology (as as-
bestos did)? When does the defendant’s duty to warn
end?
(ii) What will qualify as an “integrated product”? In
the past, we’ve suggested that a “product” is whatever
assemblage of parts is “placed in the stream of com-
merce by the manufacturer,” and we’ve stressed the
importance of maintaining the “distinction between
the components added to a product by a manufacturer
6 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
GORSUCH, J., dissenting
before the product’s sale . . . and those items added”
later by someone else. Saratoga Fishing Co. v. J. M.
Martinac & Co., 520 U.S. 875, 883–884 (1997). The
Court’s new standard blurs that distinction, but it is
unclear how far it goes. The Court suggests a turbine
and separately installed insulation may now qualify
as a single “integrated product.” But what about other
parts connected to the turbine? Does even the pro-
peller qualify as part of the final “integrated product”
too, so that its manufacturer also bears a duty to warn
about the dangers of asbestos hung around the tur-
bine? For that matter, why isn’t the entire ship an
“integrated product,” with a corresponding duty for all
the manufacturers who contributed parts to warn
about the dangers of all the other parts? And when
exactly is a manufacturer supposed to “know or have
reason to know” that some supplement to its product
has now made a resulting “integrated product” dan-
gerous? How much cost and effort must manufactur-
ers expend to discover and understand the risks asso-
ciated with third-party products others may be
“incorporating” with their products?
(iii) If a defendant reasonably expects that the manu-
facturer of a third-party product will comply with its
own duty to warn, is that sufficient “reason to believe”
that users will “realize” the danger to absolve the de-
fendant of responsibility? Or does a defendant have to
assume that the third-party manufacturer will behave
negligently in rendering its own warnings? Or that
users won’t bother to read the warnings others offer?
And what if the defendants here understood that the
Navy itself would warn sailors about the need for
proper handling of asbestos—did they still have to
Cite as: 586 U. S. ____ (2019) 7
GORSUCH, J., dissenting
provide their own warnings?4
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.
Nor is this kind of uncertainty costless. Consider what
might follow if the Court’s standard were widely adopted
in tort law. Would a company that sells smartphone cases
have to warn about the risk of exposure to cell phone
radiation? Would a car maker have to warn about the
risks of improperly stored antifreeze? Would a manufac-
turer of flashlights have to warn about the risks associated
with leaking batteries? Would a seller of hot dog buns
have to warn about the health risks of consuming pro-
cessed meat? Just the threat of litigation and liability
would force many manufacturers of safe products to spend
time and money educating themselves and writing warn-
ings about the dangers of other people’s more dangerous
products. All this would, as well, threaten to leave con-
sumers worse off. After all, when we effectively require
manufacturers of safe products to subsidize those who
make more dangerous items, we promise to raise the price
and restrict the output of socially productive products.
Tort law is supposed to be about aligning liability with
responsibility, not mandating a social insurance policy in
which everyone must pay for everyone else’s mistakes.
Finally and relatedly, the Court’s new standard impli-
cates the same sort of fair notice problem that the court of
appeals’ standard did. Decades ago, the bare metal de-
fendants produced their lawful products and provided all
the warnings the law required. Now, they are at risk of
——————
4 SeeApp. 40 (affidavit of retired Rear Admiral Roger B. Horne stat-
ing that “the Navy chose to control and make personnel aware of the
hazards of asbestos exposures through . . . military specifications and
personnel training”).
8 AIR & LIQUID SYSTEMS CORP. v. DEVRIES
GORSUCH, J., dissenting
being held responsible retrospectively for failing to warn
about other people’s products. It is a duty they could not
have anticipated then and one they cannot discharge now.
They can only pay. Of course, that may be the point. In
deviating from the traditional common law rule, the Court
may be motivated by the unfortunate facts of this particu-
lar case, where the sailors’ widows appear to have a lim-
ited prospect of recovery from the companies that supplied
the asbestos (they’ve gone bankrupt) and from the Navy
that allegedly directed the use of asbestos (it’s likely im-
mune under our precedents). Ante, at 3. The bare metal
defendants may be among the only solvent potential de-
fendants left. But how were they supposed to anticipate
many decades ago the novel duty to warn placed on them
today? People should be able to find the law in the books;
they should not find the law coming upon them out of
nowhere.
Still, there’s a silver lining here. In announcing its new
standard, the Court expressly states that it does “not
purport to define the proper tort rule outside of the mari-
time context.” Ante, at 10. Indeed, the Court acknowledges
that it has created its new standard in part because of the
“solicitude for sailors” that is a unique feature of our
maritime jurisdiction. Ante, at 9. All of this means, of
course, that nothing in today’s opinion compels courts
operating outside the maritime context to apply the test
announced today. In other tort cases, courts remain free
to use the more sensible and historically proven common
law rule. And given that, “unlike state courts, we have
little . . . experience in the development of new common-
law rules of tort,” Saratoga, 520 U.S., at 886 (Scalia, J.,
dissenting), that is a liberty they may be wise to exercise.5
——————
5 As the Court notes, some of the defendants sold the Navy products
that were not “bare metal” but contained asbestos at the time of sale.
Ante, at 3, n. 1. We can all agree that those defendants had a duty to
Cite as: 586 U. S. ____ (2019) 9
GORSUCH, J., dissenting
——————
warn users about the known dangers of asbestos. And there’s a color-
able argument that their responsibility didn’t end when the Navy, as
part of routine upkeep, swapped out the original asbestos parts for
replacements supplied by others. Under traditional tort principles, the
seller of a defective, “unreasonably dangerous” product may be liable to
an injured user if the product “is expected to and does reach the user
. . . without substantial change in the condition in which it is sold.” 2
Restatement (Second) of Torts §402A(1)(b), pp. 347–348 (1963–1964).
And replacing worn-out parts every now and then with equivalently
dangerous third-party parts may not qualify as a “substantial change”
if the replacement part does “no more than perpetuate” problems latent
in the original. Sage v. Fairchild-Swearingen Corp., 70 N.Y. 2d 579,
584–587, 517 N.E.2d 1304, 1306–1308 (1987); see, e.g., Whelan v.
Armstrong Int’l Inc., 455 N. J. Super. 569, 597–598, 190 A.3d 1090,
1106–1107 (App. Div. 2018). Of course, the defendants’ original failure
to warn might not be the legal cause of any harm if the use of the
replacement part was unforeseeable, or if an intervening action severed
the connection between the original sale and the injurious use. For
example, if the replacement part itself posed the danger—or if, by the
time the original part wore out, safer alternatives had become avail-
able. The Court’s new standard, however, does not address these de-
fendants separately, but focuses on the bare metal defendants.