The Third Circuit Finds That Manufacturers May Be Liable for Products They Did Not Manufacture, Supply, or Place Into the Stream of Commerce.  In In re Asbestos Prods. Liab. Litig., 2017 U.S. App. LEXIS 19118 (3d Cir. October 3, 2017), the United States Court of Appeals for the Third Circuit held that a manufacturer which did not supply asbestos-containing components with its products may still be held liable for injuries resulting from subsequently incorporated asbestos-containing components that the manufacturer did not produce, distribute, or otherwise place into the stream commerce under maritime law.  The Court found whether liability can be imposed turns on the issue of foreseeability – which is incorporated into both the duty and causation elements of a negligence claim.   Although the Court found that whether liability can be imposed is a fact specific inquiry that must be decided on a case-by-case basis, the Court noted that manufacturers may be subject to liability under the following circumstances:

If [the manufacturer] reasonably could have known, at the time it placed its products into to stream of commerce, that:

(1)        Asbestos is hazardous, and

(2)        [The manufacturer’s] product will be used with an asbestos-containing part, because:

(a)        the product was originally equipped with an asbestos containing part that could reasonably be expected to be replaced over the product’s lifetime,

(b)        the manufacturer specifically directed that the product be used with an asbestos-containing part, or

(c)        the product required an asbestos-containing part to function properly.

In re Asbestos Prods. Liab. Litig., 2017 U.S. App. LEXIS at *17-18.

The decision leaves open the question of whether liability will be imposed if the manufacturer did not specify the use of asbestos-containing components and there were both asbestos and non-asbestos containing components that could have been incorporated into the product.  As such, manufacturers who did not specify the use of asbestos-containing components in their products have an argument that In re Asbestos Prods. Liab. Litig. does not lead to the imposition of liability.

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[1] The Court did not determine the applicability of its ruling on strict liability claims as the Appellants had waived any arguments concerning strict liability on appeal.  However, based on the reasoning in the opinion, it appears likely that the holding will apply to strict liability claims as well.