PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 16-2602 & 16-2669

____________

IN RE: ASBESTOS PRODUCTS

LIABILITY LITIGATION (No. VI)

ROBERTA G. DEVRIES, Administratrix

of the Estate of John B. Devries, 

Deceased, and Widow in her own right, 

Appellant in 16-2602

_____________

IN RE: ASBESTOS PRODUCTS

LIABILITY LITIGATION (No. VI)

SHIRLEY MCAFEE, Executrix

of the Estate of Kenneth McAfee, 

Deceased, and Widow in her own right, 

Appellant in 16-2669

_____________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Judge: Honorable Eduardo C. Robreno 

(D.C. Nos. 5-13-cv-00474, 5-13-cv-06856, 2-01-md-00875)
2

______________

Argued March 29, 2017

______________

Before: VANASKIE, SHWARTZ, and RESTREPO, Circuit 

Judges

(Opinion Filed: October 3, 2017)

Richard P. Myers [ARGUED]

Robert E. Paul

Paul Reich & Myers

1608 Walnut Street

Suite 500

Philadelphia, PA 19103

Counsel for Appellants

John S. Howarth

Wilbraham Lawler & Buba

1818 Market Street

Suite 3100

Philadelphia, PA 19103

Counsel for Appellee Buffalo Pumps, Inc.

Shay Dvoretzky [ARGUED]

Emily J. Kennedy

Jones Day

51 Louisiana Avenue, N.W.

Washington, D.C. 20001

Counsel for Appellee CBS Corp.
3

Lee J. Janiczek

Reilly Janiczek McDevitt Herich & Cholden, PC

One South Penn Square

Suite 410, Widener Building

Philadelphia, PA 19107

Christopher J. Keale

Afigo I. Okpewho-Fadahunsi

Sedgwick

1085 Raymond Boulevard

One Newark Center, 16th Floor

Newark, NJ 07102

Counsel for Appellee Foster Wheeler LLC

Timothy E. Kapshandy

John A. Heller

Sidney Austin

One South Dearborn

Chicago, IL 60603

Rebecca K. Wood

Wen W. Shen

Sidley Austin

1501 K Street, N.W.

Washington, D.C. 20006

Counsel for General Electric Co.

Joseph I. Fontak

Leader & Berkon

1515 Market Street

Two Penn Center Building, Suite 1200

Philadelphia, PA 19102

Counsel for IMO Industries, Inc.
4

Laurie J. Hepler

Greines Martin Stein & Richland

One Embarcadero Center

Suite 500

San Francisco, CA 94111

Counsel for Appellee Warren Pumps

Carol A. VanderWoude

Marshall Dennehey Warner Coleman & Goggin

18th Floor

2000 Market Street

Suite 2300

Philadelphia, PA 19103

Counsel for Appellee Ingersoll Rand Co.

___________

OPINION OF THE COURT

___________

VANASKIE, Circuit Judge.

These asbestos cases involve the availability of the 

“bare-metal defense” under maritime law. The defense’s basic

idea is that a manufacturer who delivers a product “bare 

metal”—that is without the insulation or other material that 

must be added for the product’s proper operation—is not 

generally liable for injuries caused by asbestos in later-added

materials. A classic scenario would be if an engine 

manufacturer ships an engine without a gasket, the buyer adds

a gasket containing asbestos, and the asbestos causes injury to 

a worker. May the manufacturer be held liable? Some courts 
5

say no—never. Others rely on a more fact-specific standard

and ask whether the facts of the case made it foreseeable that 

hazardous asbestos materials would be used. Neither this 

Court nor the Supreme Court has confronted the issue.

In that void, we survey bedrock principles of maritime 

law and conclude that they permit a manufacturer of even a 

bare-metal product to be held liable for asbestos-related 

injuries when circumstances indicate the injury was a 

reasonably foreseeable result of the manufacturer’s actions—

at least in the context of a negligence claim. The District Court 

had instead applied the bright line rule approach and entered 

summary judgment against the plaintiffs. We will vacate the 

entry of summary judgment on the plaintiffs’ negligence 

claims, affirm the entry of summary judgment on the plaintiffs’ 

product liability claims (which we conclude were abandoned 

on appeal), and will remand, for further proceedings.

I.

Appellants Roberta G. Devries and Shirley McAfee are 

the widows of deceased husbands who served in the United 

States Navy. Each couple filed a Complaint in Pennsylvania 

state court alleging that the husband contracted cancer caused 

by exposure to asbestos. Devries alleges that on the U.S.S. 

Turner from 1957-60, her husband was exposed to asbestoscontaining insulation and components that were added onto the 

ship’s engines, pumps, boilers, blowers, generators, 

switchboards, steam traps, and other devices. McAfee alleges 

her husband was similarly exposed through his service on two 

ships and in the Philadelphia Naval Shipyard.

Devries and McAfee named a number of defendants, of 

which Appellee manufacturers (“Manufacturers”) are a 
6

subset.1 The Manufacturers each made their products “bare

metal,” in that if they manufactured an engine, they shipped it 

without any asbestos-containing insulation materials that 

would later be added.

Devries and McAfee’s Complaints each allege claims 

of negligence and strict liability. The Manufacturers removed 

to the Eastern District of Pennsylvania and invoked the baremetal defense in support of their respective summary judgment

motions, arguing that because they shipped their products bare 

metal, they could not be held liable for the sailors’ injuries. 

The District Court agreed and granted the Manufacturers 

summary judgment motions.

Devries and McAfee each appealed separately, raising 

an issue as to whether the District Court’s decision addressed 

their negligence claims. We summarily remanded with 

instructions that the District Court address the negligence issue 

and also consider a split in authority as to whether a bright-line 

rule or a fact-specific standard governed the bare-metal 

defense’s availability. In re Asbestos Prods. Liab. Litig., No. 

15-2667, Order (3d Cir. May 12, 2017) (McAfee); In re 

Asbestos Prods. Liab. Litig., No. 15-1278, Order (3d. Cir. Feb. 

5, 2016) (Devries).

On remand, the District Court applied the bright-linerule version of the bare-metal defense, and clarified that 

summary judgment had been entered in favor of the 

 

1 The Appellee-Manufacturers are Air & Liquid 

Systems Corp., CBS Corp., Foster Wheeler LLC, General 

Electric Co., IMO Industries Inc., Warren Pumps LLC, and 

Ingersoll Rand Co.
7

Manufacturers on both the strict liability and negligence 

claims. The Court reasoned that the rule approach was best 

because, according to the Court’s view of the precedents, 

maritime law favors uniformity and the rule approach was the 

majority view. 

Devries and McAfee appealed for a second time. We 

consolidated their appeals and ordered coordinated briefing.

II.

The District Court had federal-officer jurisdiction under 

28 U.S.C. § 1442(a)(1), and maritime jurisdiction under 28 

U.S.C. § 1333(1). We have jurisdiction under 28 U.S.C. 

§ 1291. We review the District Court’s grant of summary 

judgment de novo. Faush v. Tues. Morning, Inc., 808 F.3d 208, 

215 (3d Cir. 2015). 

III.

The key question in this case is the bare-metal defense’s 

availability: When, if ever, should a manufacturer of a product 

that does not contain asbestos be held liable for an asbestosrelated injury most directly caused by parts added on to the 

manufacturer’s product? Neither the Third Circuit nor the 

Supreme Court has addressed the question, and the courts from 

other jurisdictions that have are split. Some courts apply a 

bright-line rule, holding that a manufacturer of a bare-metal 

product is never liable for injuries caused by later-added 

asbestos-containing materials. See, e.g., Lindstrom v. A-C 

Prod. Liab. Tr., 424 F.3d 488, 492, 494-97 (6th Cir. 2005);

Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1038-43 (D. 

Haw. 2013). Others apply a more fact-specific standard,

stating, for example, that a bare-metal manufacturer may be 
8

held liable if the plaintiff’s injury was a reasonably foreseeable 

result of the manufacturer’s conduct. See, e.g., Quirin v. 

Lorillard Tobacco Co., 17 F. Supp. 3d 760, 768-70 (N.D. Ill. 

2014) (determining whether the addition of asbestos material 

was “foreseeable” by asking whether addition of asbestoscontaining materials was “inevitable,” and whether those 

added materials were “necess[ary]” or “essential” to the 

manufacturer’s product); Chicano v. Gen. Elec. Co., 2004 WL 

2250990, at *6 (E.D. Pa. Oct. 5, 2004) (asking if the addition 

of asbestos-containing materials was “foreseeable”).2

In addressing this question, we (1) examine the 

doctrinal roots of the bare-metal defense, and (2) address how 

 

2

Illustrative of the unsettled status of this issue, we 

recently certified to the Pennsylvania Supreme Court the 

question of whether under Pennsylvania law a manufacturer of 

a product can assert the bare metal defense in the context of a 

negligent failure to warn claim arising out of exposure to 

asbestos. See In re Asbestos Products Liability Lit. (No. VI), 

Crane Co., No. 16-3704 (3d Cir. Sept. 27, 2017) (Petition for 

Certification of Question of State Law).

Whether, under Pennsylvania law, a manufacturer has a duty 

to warn about the asbestos-related hazards of component parts 

it has neither manufactured nor supplied. 

If such a duty exists, what is the appropriate legal test to 

determine whether the company is in fact liable for failing to 

warn about the risks of asbestos? 

Id. at 11.
9

it should be applied in Devries and McAfee’s negligence 

actions.

A.

The doctrinal root of the bare-metal defense has proved 

to be a particularly vexing question. Some courts have rooted

the defense in causation: When if ever can it be said that a

bare-metal manufacturer causes an asbestos-related injury? 

See, e.g., Thurmon v. Ga. Pac., LLC, 650 F. App’x 752, 756 

(11th Cir. 2016) (“the ‘bare metal defense’ is, essentially, a 

causation argument”). Others locate the defense in duty: Can 

a manufacturer’s duty to act with reasonable care with respect 

to reasonably foreseeable risks and plaintiffs, be said to extend 

to asbestos-related injuries? See, e.g., Quirin, 17 F. Supp. 3d 

at 767-70 (reviewing the issue as one of “legal duty”). The

question is more than academic. If the elemental root is duty, 

the defense should be expected to operate differently in strict 

liability as compared to negligence, because a defendant’s duty 

of course differs between the two types of actions. See Chesher

v. 3M Co., 234 F. Supp. 3d, 693, 700-03 (D.S.C. 2017) 

(holding that the defense should apply in a weaker fashion in a 

negligence action, as compared to strict liability). The opposite 

might be true too—the defense should operate in similar 

fashion in both negligence and strict liability if it is rooted in 

causation, because the proximate cause inquiry cuts across the 

two types of actions. See, e.g., Lindstrom, 424 F.3d at 492 

(suggesting the defense applies similarly under “both 

negligence and strict liability theories”).

We find that both approaches are correct: the defense 

is rooted in both duty and cause because its keystone is the 

concept of foreseeability. When parties debate the bare-metal 

defense, they debate when and whether a manufacturer could
10

reasonably foresee that its actions or omissions would cause 

the plaintiff’s asbestos-related injuries. The bright-line rule

approach says it is never reasonably foreseeable, and the factspecific standard approach says it sometimes is. This debate 

over foreseeability sounds in both duty and cause, because 

foreseeability is a concept embedded in each element. See 

Gibbs v. Ernst, 647 A.2d 882, 891 (Pa. 1994) (highlighting “the 

common law notion of foreseeability as found in the concepts 

of duty and proximate cause”). In the duty element in a 

negligence action, foreseeability limits a defendant’s liability

to only the risks and plaintiffs that are reasonably foreseeable.

See Restatement (Third) of Torts: Phys. & Emot. Harm § 7, 

cmt. j (2010 Am. Law Inst.) (acknowledging “widespread use” 

of foreseeability as an aspect of the duty of reasonable care, 

despite the Restatement’s disagreement with such an 

approach). And in proximate cause, foreseeability limits a

defendant’s liability to only the injuries that are a reasonably 

foreseeable result of the defendant’s actions. Id. § 29, cmt. j 

(discussing foreseeability as an aspect of proximate cause in 

both negligence and strict-liability actions).3 Thus, the bare-

 

3

Instead of starting from subject-specific asbestos 

cases, we begin our focus with the ordinary and traditional 

principles of maritime and tort law, as exemplified in the most 

reliable treatises and restatements. Cf. M&G Polymers USA, 

LLC v. Tackett, 135 S. Ct. 926, 929-30 (2015) (abrogating a 

circuit’s labor-law-specific rule for contract interpretation, and 

calling on lower courts in labor-law cases to still adhere to 

“ordinary” and “traditional” principles of contract law); 

Paroline v. United States, 134 S. Ct. 1710, 1719-20 (2014) 

(citing, as authority for the federal common law of proximate 
11

metal defense is nothing more than the concept of 

foreseeability, as embedded in the duty of reasonable care in a 

negligence action and the proximate cause standard in a 

negligence or strict-liability action, as applied to the facts of a 

certain subset of asbestos cases.

This dual-elemental home for the defense does not, 

however, totally explain when or whether the defense’s 

application should differ from strict-liability to negligence. It 

might be that the defense could apply the same in both types of 

actions, because of the shared proximate-cause element. Or 

the differences in the two actions’ duty elements might mean

the defense is more forceful in one action than the other. See, 

e.g., Chesher, 234 F. Supp. 3d at 700-03 (holding that the 

defense is weaker in negligence and stronger in strict liability, 

because in strict liability the manufacturer’s duty is limited to 

the product, but with negligence the duty extends further); Bell

v. Foster Wheeler Energy Corp., No. 15-6394, 2016 WL 

5780104, at *5-7 (E.D. La. Oct. 4, 2016) (same). And of 

course the facts of a given case could be the most important 

variable.

We need not settle these doctrinal distinctions today, 

because Devries and McAfee waived their strict liability claim

in this appeal. As a general matter, an appellant waives an 

argument in support of reversal if it is not raised in the opening 

brief. McCray v. Fidelity Nat’l Title Ins. Co., 682 F.3d 229, 

241 (3d Cir. 2012). Here, in this appeal Devries and McAfee 

focused the entirety of their briefing on their negligence 

claims, yet attempted to also incorporate their strict-liability 

 

cause, the Restatement (Third) of Torts, Prosser and Keeton’s 

treatise on torts, and LaFave’s treatise on criminal law).
12

claim through a footnote: “By concentrating on [negligence] 

issues in this brief, Appellants do not waive any issues argued 

in their original briefs as to Defendants’ liability under [the 

strict liability claims].” (Appellants’ Br. at 2 n. 1). This 

attempt to shoehorn in an argument outside the briefs is

insufficient to raise an issue on appeal. See John Wyeth & 

Brother Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1076 n. 6 

(3d Cir. 1997) (stating that “arguments raised in passing (such 

as, in a footnote), but not squarely argued, are considered 

waived”); see also Skretvedt v. E.I. DuPont De Nemours, 372 

F.3d 193, 202-04 (3d Cir. 2004) (declining to consider 

arguments not properly raised and therefore waived). In 

particular, it fails to give fair notice of the claims being 

contested on appeal. Thus, Devries’s and McAfee’s waiver of 

their strict-liability arguments means that we will affirm the 

District Court’s decision to that extent, and need not fully

explore the precise contours of the defense’s distinctions in 

strict liability and negligence, beyond the unifying principle of 

foreseeability.

B.

For the negligence claims, rooting the bare-metal

defense in foreseeability does not on its own resolve the issue, 

because the split in authority can be characterized as a debate 

over what a bare-metal manufacturer could reasonably 

foresee—no asbestos-related injuries, see, e.g., Lindstrom, 424 

F.3d at 492, 494-97, or some, see, e.g., Quirin, 17 F. Supp. 3d 

at 769-70.
13

These two choices raise familiar tradeoffs between rules 

and standards.

4

 A rule is a legal directive that attempts to 

capture a background principle into an easy-to-apply form that 

is predictable and efficient. A speed limit is a good example: 

its goal is road safety, but because liability turns on speed 

rather than the amorphous definition of “safety” itself, it is 

easier for drivers, police, and insurers to shape their conduct 

accordingly. Rules have downsides though too, in that they

necessarily result in errors of over- and under-inclusion. In the

case of the speed limit, it furthers the policy of road safety, but 

does so imperfectly: speedy drivers get punished even if they 

speed safely, and slow drivers go free even if they amble along

haphazardly.

A standard, on the other hand, collapses the background 

principle into the actual legal directive, resulting in better 

accuracy and “fit” with the underlying purpose, and fewer 

errors of over- and under-inclusion. Another road-safety 

example would be a reckless-driving prohibition that simply 

prohibits driving that is “reckless.” Such a prohibition is less 

predictable and efficient than the speed limit, in that it is harder 

to predict what a decisionmaker will find to be “reckless” than 

whether he or she will agree that 76 miles per hour exceeds a 

 

4 For a review of the characteristics and tradeoffs of 

rules and standards, see Bryan A. Garner et al., The Law of 

Judicial Precedent 78 (2016) (noting that “rules and standards

. . . denote different levels of specificity for norms” and 

“judicial holding[s]”); Kathleen M. Sullivan, The Supreme 

Court, 1991 Term—Foreword: The Justices of Rules and 

Standards, 106 Harv. L. Rev. 22, 58-59 (1992).
14

70 m.p.h. speed limit. But liability better tracks the actual goal 

of road safety, because almost all “reckless” drivers are unsafe.

The point is there are tradeoffs, and courts face those

tradeoffs in choosing an approach to the bare-metal defense. 

The rule-based approach is efficient and predictable—baremetal manufacturers are simply not liable—but the downside 

is some deserving sailor-plaintiffs will not receive their due. 

On the other hand, the standard-based approach is bound to be 

less predictable and less efficient, because the standard’s factcentered nature will push more cases into discovery, see, e.g., 

Quirin, 17 F. Supp. 3d at 771-72 (denying defendant’s motion 

to dismiss after applying the standard), but the most-deserving 

sailor-plaintiffs are less likely to be denied compensation.

Thankfully, we do not weigh these tradeoffs in a 

vacuum. Maritime law is undergirded by established 

principles, at least four of which are implicated here. First and 

perhaps foremost, maritime law is deeply concerned with the 

protection of sailors, due to a historic and “special solicitude 

for the welfare of those men who undertook to venture upon 

hazardous and unpredictable sea voyages.” Moragne v. States 

Marine Lines, Inc., 398 U.S. 375, 387 (1970). This “special 

solicitude” developed “unknown to the common law,” and so 

maritime law is at times more lenient toward a sailor than a 

state’s common law may be to a similarly-situated plaintiff. Id. 

This divergence is acceptable if not appropriate because the 

“humane and liberal character of” maritime law counsels that 

it is better “to give than to withhold the remedy” wherever 

“established and inflexible rules” do not require otherwise. Id.

(quoting The Sea Gull, 21 F. Cas. 909, 910 (C.C. Md. 1865)). 

For example, in Moragne v. States Marine Lines, the Supreme 

Court made it permissible for maritime plaintiffs to bring 

wrongful death actions even though the common law 
15

disapproved of such actions. 398 U.S. at 381-88, 408-09. In 

arriving at that holding, the Court explicitly referenced and 

discussed maritime law’s special solicitude for sailor safety 

and how that solicitude permitted maritime law to have more

sailor-friendly rules than the common law. Id. at 386-88.5 

Here, maritime law’s special solicitude for sailors’ 

safety similarly favors the adoption of the standard-like 

approach to the bare-metal defense. A standard will permit a 

greater number of deserving sailors to receive compensation, 

and compensation that is closer to what they deserve. Given 

that results for sailor-victims will differ under a rule as 

compared to a standard, and since no “established” or 

“inflexible” rule prohibits the more forgiving standard, the 

“humane and liberal character” of maritime law counsels that 

we follow the standard. Even if certain states’ common laws 

would call for a more stringent rule, maritime law’s more 

liberal attitude permits us to diverge from that path.

Second, maritime law is built on “traditions of 

simplicity and practicality,” Kermarec v. Compagnie Generale 

Transatlantique, 358 U.S. 625, 631 (1959), but that principle 

cuts in both directions and does not provide much guidance. 

On one hand, “simplicity” might be seen as favoring the rulebased approach, because simplicity is related to predictability, 

and it is easier to predict how a rule will apply than a standard. 

 

5 Moragne’s holding was based most directly on 

principles other than the special solicitude for sailor safety, but 

the special solicitude was still crucial to the Court’s decision

because it explained why the Court’s ruling was appropriate 

even though it likely diverged from the common law. 

Moragne, 398 U.S. at 386-88.
16

On the other hand, “simplicity” could also be seen as favoring

a foreseeability-based standard, because simplicity is related to 

familiarity, and foreseeability is such a familiar and key part of

tort law. See id. at 631-32 (choosing to adopt a familiar 

standard over a “foreign” and “alien” rule while invoking 

maritime law’s “traditions of simplicity and practicality”).

The third and fourth principles implicated in this case 

are also not particularly helpful. Maritime law has a

“fundamental interest” in “the protection of maritime 

commerce,” Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S. 

603, 608 (1991) (quoting Sisson v. Ruby, 497 U.S. 358, 367 

(1990)), and seeks out “uniform rules to govern conduct and 

liability,” Foremost Ins. Co. v. Richardson, 457 U.S. 668, 674-

75 (1982). Here, the parties all argue these two principles

encourage the Court to side with whatever side is winning in 

the split in authority. The idea is that the sooner one side wins

out over the other, the sooner the split in authority is ended and

the goals of seamless commerce and uniformity of rules will 

be achieved. The rub, however, is determining which view is

the majority. The bright-line rule could be said to be in the 

lead because it has on its side the Sixth Circuit, the only court 

of appeals to weigh in. Lindstrom, 424 F.3d at 492, 494-97. 

The standard could similarly be said to be the majority view

because the courts that have confronted the question most 

recently have generally favored the standard, and have done so 

after a much more thorough analysis than that found in the

Sixth Circuit’s opinion in Lindstrom, which was decided much 

earlier in the debate over the bare-metal defense. Compare

Chesher, 234 F. Supp. 3d at 696-712 (analyzing in painstaking

detail the split in authority and adopting a version of the 

standard); Bell, 2016 WL 5780104, at *3-7 (same), with

Lindstrom, 424 F.3d at 494-97 (not mentioning the split in 
17

authority). We need not decide which approach is winning in 

terms of wins and losses—it is enough that the score is too 

close for us to say that the goals of seamless commerce and

rule-uniformity push in one way or the other.

In sum, the special solicitude for the safety and 

protection of sailors is dispositive, because it counsels us to 

follow the standard-based approach, and none of the other 

principles weigh heavily in either direction. The standardbased approach is the one we will therefore follow: 

foreseeability is the touchstone of the bare-metal defense; a

manufacturer of a bare-metal product may be held liable for a 

plaintiff’s injuries suffered from later-added asbestoscontaining materials if the facts show the plaintiff’s injuries 

were a reasonably foreseeable result of the manufacturer’s 

failure to provide a reasonable and adequate warning; and 

although cases will necessarily be fact-specific, alreadydecided precedents show, for example, that a bare-metal 

manufacturer may be subject to liability if it reasonably could 

have known, at the time it placed its product into the stream of 

commerce, that 

(1) asbestos is hazardous,6and 

(2) its product will be used with an asbestoscontaining part,7 because

 

6 See Bell, 2016 WL 5780104, at *5.

7 See id.
18

(a) the product was originally equipped 

with an asbestos containing part that 

could reasonably be expected to be replaced over 

the product’s lifetime,8

(b) the manufacturer specifically directed 

that the product be used with an asbestoscontaining part,9 or 

(c) the product required an asbestoscontaining part to function properly.10

 

These may or may not be the only facts on which liability can 

arise. The finer contours of the defense, and how it should be 

applied to various sets of facts, must be decided on a case-bycase basis.

IV.

Finally, the Manufacturers advanced two alternative 

arguments in support of an affirmance on the negligence 

claims. They argued (1) insufficient evidence had been 

presented as to causation and was fatal to Devries and 

McAfee’s claims, and (2) the government-contractor defense 

should insulate the Manufacturers from liability. These 

arguments were also presented below, but the District Court 

 

8 See Chesher, 234 F. Supp. 3d at 714; Quirin, 17 F. 

Supp. 3d at 769-71.

9 See Bell, 2016 WL 5780104, at *5, 7.

10 See Chesher, 234 F. Supp. 3d at 714; Quirin, 17 F. 

Supp. 3d at 769-70.
19

declined to rule on them because its bare-metal-defense

holding was sufficient to enter summary judgment in favor of

the Manufacturers. The Manufacturers urge us to address them 

now, on the grounds that we may affirm a judgment for any 

reason supported by the record. Brightwell v. Lehman, 637 

F.3d 187, 191 (3d Cir. 2011). Addressing alternative grounds

for affirmance, however, is a matter left to our discretion. See 

Gov’t of the V.I. v. Walker, 261 F.3d 370, 376-77 (3d Cir. 

2001) (declining to reach arguments raised before but not 

decided by the lower court, and instead remanding). Given that 

we are without the benefit of the District Court’s well-regarded

expertise, and the parties’ briefing and oral argument was 

appropriately focused on the bare-metal defense, we will leave 

the insufficient-evidence and contractor-defense arguments to 

be dealt with on remand.

V.

In conclusion, maritime law’s special solicitude for the 

safety and protection of sailors counsels us to adopt a standardbased approach to the bare-metal defense that permits a 

plaintiff to recover, at least in negligence, from a manufacturer 

of a bare-metal product when the facts show the plaintiff’s 

injuries were a reasonably foreseeable result of the 

manufacturer’s conduct. We will affirm the decision of the 

District Court with respect to Devries and McAfee’s strict 

liability claims, and remand for further proceedings on their 

negligence claims consistent with this Opinion.