Maryland Expands The Potential For Manufacturer Liability In Failure To Warn Cases By Adopting An Exception To The Bare Metal Defense

Product manufacturers in Maryland have successfully argued for at least the last 16 years that, in terms of warnings, they are only responsible for products that they themselves have placed in the stream of commerce. In other words, manufacturers have generally avoided potential liability in tort for an alleged failure to warn of hazards associated with dangerous component parts that are used with their products, but that are placed in the stream of commerce by others. This is generally referred to as the "bare metal defense." On December 18, 2015, however, the scope of this defense changed radically.

In May v. Air & Liquid Sys. Corp., No. 5, September Term, 2015 Md. Lexis 864 (Md. Dec. 18, 2015), the Maryland Court of Appeals recognized a significant exception to the bare metal defense when it held that a manufacturer of pumps may be liable in negligence and/or strict liability for a failure to warn of the potential for injuries resulting from the use of dangerous component parts that were manufactured and placed in the stream of commerce by others. Specifically, the May court held that:

[A] manufacturer will have a duty to warn of asbestos-containing replacement components that it has not placed into the stream of commerce in strict liability in the same narrow circumstances as in negligence. That is, a manufacturer will have a duty to warn of asbestos-containing replacement components that it has not placed into the stream of commerce . . . only where (1) its product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packaging is required; and (4) the manufacturer knows or should know of the risks from exposure to asbestos.

Id. at *34-35.

The court, cognizant of the significant change it was making to Maryland law, appears to have taken great pains to limit the scope of its decision. This is evidenced by the fact that the court states its opinion specifically in terms of asbestos products and pumps. While the court was very specific in terms of how it defined this new exception, it is unlikely that the exception will remain confined solely to asbestos products and pumps because the underlying reasoning applies equally to other types of hazards and products.

There are, however, several important limitations in the opinion that are likely to ultimately confine the new exception. First, the...