32 Defense Comment Summer 2019 There are many benefits to being a member of ADCNCN and the subcommittee groups. Please take advantage! TOXIC TORTS Edward P. Tugade | Chair U.S. Supreme Court Issues a Blow to the Bare Metal/ Component Parts Defense n the wake of diverging outcomes, and as the plaintiff and defense bars grappled with whether manufacturers were liable for a product they did not produce, but that they knew would be added later, on March 19, 2019, the U.S. Supreme Court ruled in Air and Liquid System Corp v. DeVries (2019) 139 S.Ct. 986 that a product manufacturer has a duty to warn when:  Its product requires incorporation of a part;  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 the product’s users will realize that danger. The defendants, Air & Liquid Systems and fourothermanufacturers,madeequipment for U.S. Navy ships that required asbestos parts to function as intended -- which the U.S. Navy added after receiving them in “bare-metal” condition. Two Navy veterans, Kenneth McAfee and John DeVries, and their wives, sued the manufacturers alleging that they developed mesothelioma from asbestos exposures, and that the equipment manufacturers were liable because they failed to warn about the dangers of asbestos. In defense, the product manufacturers (consisting of manufacturersofpumps,blowers,turbines and other equipment with asbestos later added to the equipment by other companies) argued they had no liability for delivering products in a condition known as “bare metal” and without the components that made them dangerous. In response, the majority ruled manufacturers have a duty to warn, with Justice Kavanaugh stating, “But the burden (time and money costs) is usually not significant. Manufacturers already have a duty to warn of the dangers of their own products.” He adds, “If the manufacturers had provided warnings, the workers on the ships presumably could have worn respirator masks and thereby avoided the danger.... The product manufacturer knows the nature of the ultimateintegratedproductandistypically more aware of the risks associated with that integrated product.” Further, “[a] manufacturer has a duty to warn when its product requires incorporation of a part and the manufacturer has reason to know that the integrated product is likely to be dangerous,” Kavanaugh said. This ruling ultimately strikes a blow to the bare metal/component parts defense advanced by the California Supreme Court in O’Neil v. Crane Co. (2012) 53 Cal.4th 335 (a manufacturer of equipment used on Navy vessels could not be held liable for injuries caused by other manufacturers’ asbestos-containing products used on the bare-metal equipment), now holding manufacturers liable for parts that they neither manufactured nor placed into the chain of distribution. The effect then, for asbestos cases under maritime law, is that plaintiffs are not required to prove that a particular equipment manufacturer’s own product caused or created the risk of harm. Now, to connect the dots from a defendant’s component parts to products that released carcinogens it neither made nor sold would squarely fall in the limitless imagination and ripple effect of liability Romito v. Red Plastic Co. (1995) 38 Cal.App.4th 59, 67 warned against: “Any product is potentially dangerous if accidentally misused or abused, and predicting the different ways in which accidents can occur is a task limited only by the scope of one’s imagination.” Indeed, despite analogous facts and similarlysituateddefendantmanufacturers, courts have employed diametrically opposed rationales to reach their conclusions. These conflicting approaches have finally attracted the heightened attention of the Supreme Court, which, for better or worse, has provided guidance to the divided courts. Stand by for a flood of litigation against manufacturers of bare- metal equipment later integrated with asbestos-containing products. TRANSPORTATION Jeffrey E. Levine | Chair ello Transportation Committee members.  We now have an official transportation committee that has met a few times since the start of the year.  We are planning a few events this year, so please stay tuned. In the meantime, here is a brief note about a case of interest: Stokes v. Muschinske [B280116, April 8, 2019]. In Stokes, the court held an expert testifying on the reasonable value of medical services may rely upon Medicare reimbursement rates without violating the collateral source rule.  This ruling can be especially helpful in trucking cases where injuries are typically catastrophic and plaintiff’s expert life care planner submits a high cost life care plan. If you have any suggestions or thoughts about future transportation events please send Jeff Levine an e-mail at jlevine@mathenysears.com. DO YOU AGREE OR DISAGREE? ... with the author of an article that you’ve read in Comment? Do you have a brilliant practice pointer for fellow defense counsel? Is there a subject that you would liketoseeaddressedinacontinuing legal education seminar? Is there something legislators in Sacramento can do to make your professional life easier? SendaLettertotheEditor. Seepage 1 for editorial information. Substantive Law Sections – continued from page 31