# Air and Liquid Systems Corp., et al. v. Roberta G. DeVries, Individually and as Administratrix of the Estate of John B. DeVries, Deceased, et al./Opinion of Justice Gorusch

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 turbines 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 manufacturers 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 liability looming for failure to correctly predict how its product ​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 defendants 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 “foreseeability” 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 manufacturer’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). It doesn’t matter, either, ​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.” Restatement (Third) of Torts: Products Liability §5, Comment b, p. 132 (1997).
More than that, the traditional common law rule still makes the most sense today. The manufacturer of a product 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 adequate 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 ​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).
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 expect 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 inclusion of each extra item dilutes the punch of every other item. Given short attention spans, items crowd each other ​out; they get lost in fine print”).
The traditional tort rule bears yet another virtue: It is simple to apply. The traditional rule affords manufacturers 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 application of opaque or multifactor standards like the one proposed below or the one announced today, “equality of treatment” becomes harder to ensure across cases; “predictability 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 preferred? 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 advantageous over time due to advancing technology (as asbestos 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 commerce by the manufacturer,” and we’ve stressed the importance of maintaining the “distinction between the components added to a product by a manufacturer ​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 propeller 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 turbine? 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” dangerous? How much cost and effort must manufacturers expend to discover and understand the risks associated with third-party products others may be “incorporating” with their products?
    (iii) If a defendant reasonably expects that the manufacturer 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 defendant 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 ​provide their own warnings?
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 manufacturer 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 processed meat? Just the threat of litigation and liability would force many manufacturers of safe products to spend time and money educating themselves and writing warnings about the dangers of other people’s more dangerous products. All this would, as well, threaten to leave consumers 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 implicates the same sort of fair notice problem that the court of appeals’ standard did. Decades ago, the bare metal defendants produced their lawful products and provided all the warnings the law required. Now, they are at risk of ​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 particular case, where the sailors’ widows appear to have a limited 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 immune under our precedents). Ante, at 3. The bare metal defendants may be among the only solvent potential defendants 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 maritime 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. ​
* ↑ 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 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).
* ↑ 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).
* ↑ See also Restatement (Third) of Torts: Products Liability §5, Comment 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 Washington, 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”).
* ↑ See App. 40 (affidavit of retired Rear Admiral Roger B. Horne stating that “the Navy chose to control and make personnel aware of the hazards of asbestos exposures through… military specifications and personnel training”).
* ↑ 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 warn users about the known dangers of asbestos. And there’s a colorable 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 available. The Court’s new standard, however, does not address these defendants separately, but focuses on the bare metal defendants.