The Voice

For some reason, I did not address his references to race. Was it because I was the only African American in the room? Was it because I was an associate and the individuals on the other side (a lobbyist with 30 years of experience and an experienced partner at a rival firm) were more senior than me? Or was it because I did not know what to say? Would I say, “Objection, implicit bias?” Afterall, there are no laws or rules of civil procedure providing “implicit bias” as grounds for an objection – but in that moment I wished such an objection existed. I later realized that I failed to address this individual’s constant inappropriate references to race primarily under the guise of maintain the “professional” status quo. I was attempting to overcome erroneous and ill-conceived stereotypes associated with young African American men. 

The impact of implicit bias on the legal profession is wide reaching. If we are not intentional and conscious in our interactions, implicit biases can creep into everything from our depositions, negotiations, mediations, trials, and inter-office interactions. And this is the case because implicit biases are unconscious attitudes and beliefs that manifest involuntarily within an individual’s mind, affecting their understanding, actions, perceptions, and decisions about others. These implicit biases are not automatically turned off just because we engage in a profession grounded in the principles of, among other things, truth and fairness. Yet, because our profession is premised on concepts of fair trials and justice, we should stand up and address situations of implicit bias that unfairly and unjustly impact others.

We all have likely had situations that required us to stand up for ourselves or others who we felt were treated wrong. That is never an easy task. In fact, I have found one of the most challenging situations to do so is as an attorney facing implicit bias in a professional setting. However, our job as attorneys is to be advocates for justice and fairness. So, action is necessary! As Edmund Burke said, “the only thing necessary for the triumph of evil is for good men [or women] to do nothing.” The same is true in the legal profession. The anxiety of addressing implicit bias in a legal setting can be crippling. Still, to improve the legal atmosphere for more diversity and inclusion and to ensure relevant and accurate proceedings, we must kindly, but firmly, address the implicit bias we encounter as attorneys.  

Minority attorneys across the nation face implicit bias daily. Many minority attorneys fear the repercussions of standing up for themselves or others. We think about how our reaction will affect our reputation, rapport with our colleagues, the next person who looks like us, and the overall ability to effectively do our job. It can be difficult, or at least tricky, to react considering these fears. However, it is in the best interest of ourselves, our colleagues, our mental health, the legal profession, and consistent with the spirit of integrity and justice, to directly address these situations in a kind, yet firm manner.

Awareness is the crucial first step to combating implicit bias. But by not standing up, we fail to provide individuals, who may be otherwise unaware of how their words and actions are offensive, with an opportunity to learn and grow. As Justice Sonia Sotomayor stated, “[t]he way to stop discrimination based on race [or any other grouping] is to speak openly and candidly on the subject . . ..” Therefore, I encourage attorneys to do as my Judge told me: stand up for yourself and others with kindness and firmness.

Kennard Davis serves as a member of the 2021-2022 DRI Membership Committee, 2021-2022 Vice-Chair of Supreme Court Swearing-In on the Young Lawyers Committee, 2021-2022 Diversity Liaison of DRI’s Commercial Litigation Committee and 2021-2022 Membership Chair of DRI Diversity and Inclusion Committee. Mr. Davis also currently serves as the Chair of the Law Student Forum for the 2022 DRI Diversity for Success Seminar and Corporate Expo. Additionally, he serves as the 2021-2022 Vice President of Membership of the Greater New Orleans Louis A. Martinet Legal Society, Inc.

The Facts and Decision

As background, Plaintiffs alleged that John DeVries was exposed to asbestos while serving in the United States Navy onboard the U.S.S. Turner, a Gearing class destroyer, between 1957 and 1960. Specifically, Plaintiffs claimed Mr. DeVries was exposed to asbestos dust from insulation attached to turbines, which led to his asbestos-related injury. Defendants General Electric (“GE”) and CBS Corporation (“CBS”) delivered these turbines to the shipyard in the condition commonly referred to as “bare metal,” meaning without insulation. Shipyard contractors later installed the insulation on the equipment. 

GE and CBS previously received summary judgement after the District Court found they were not liable in light of the “bare metal defense.” Plaintiffs appealed, and the Supreme Court remanded the case after announcing a new test for the bare metal defense under maritime law in Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019). This new maritime bare metal test states:

In the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.

Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 995 (U.S. 2019).

Additionally, the Supreme Court clarified the “requires” prong of the bare metal test, explaining that “the product in effect requires the part in order for the integrated product to function as intended” in three certain related situations, including “when (i) a manufacturer directs that the part be incorporated; (ii) a manufacturer itself makes the product with a part that the manufacturer knows will require replacement with a similar part; or (iii) a product would be useless without the part.” Id. at 995-96 (citations omitted). In this case, the “product” was the turbines, and the “part” was the asbestos-containing insulation.

The District Court, upon remand, determined Plaintiffs did not meet any of the three methods of proof for the “requires” prong of the bare metal defense under maritime law. First, Plaintiffs produced no relevant evidence that GE and CBS specified or directed the incorporation of asbestos insulation with the type of turbines used onboard the U.S.S. Turner. Plaintiffs attempted to establish this method of proof by producing evidence that some land-based turbines were manufactured by GE and CBS with asbestos insulation. They also produced partial documents regarding two Navy Essex class aircraft carriers, which included insulation attachment drawings created by CBS. The District Court determined this evidence was irrelevant as to whether GE or CBS directed the incorporation of asbestos insulation with their turbines for the Turner. (Emphasis added in the District Court’s opinion.)

The second method of proof was also not met as Plaintiffs failed to show that GE and CBS made the turbines with asbestos insulation attached. There was little dispute that the maritime turbines were delivered without asbestos insulation. Because asbestos insulation was not attached to the turbines, it followed that GE and CBS did not make a product that would require replacement with a similar part.  

Finally, under the third method of proof, Plaintiffs failed to show that the turbines were useless without asbestos insulation. Both parties admitted that non-asbestos, but functionally equivalent, insulation types were available, known to, and approved for use by the Navy that would have allowed the turbines to function properly. Because the turbines were not useless without the asbestos insulation, Plaintiffs failed to prove the third method. With all three methods failing, summary judgment was awarded for Defendants.

Analysis

The District Court restricted its analysis to the first prong of the bare metal defense test because Plaintiffs failed to establish, through the three available methods, that the products “required” incorporation of the asbestos insulation. Evidence disproving these three methods proved key to the District Court’s analysis, including testimony from experts, produced schematics for the ship in question, and product specifications for the turbines. This first prong of the maritime bare metal defense is a powerful tool when drafting motions for summary judgment for product manufacturers shipping bare metal products, as failure by Plaintiffs to establish this prong should lead to dismissal. Defendants should look to utilize this defense in the maritime tort context, when possible, and sink Plaintiffs’ chances of bringing these claims to trial.

Evelyn Fletcher Davis is a senior partner at Hawkins Parnell & Young LLP. As one of the leading toxic tort and product liability defense attorneys in the United States, Evelyn has tried, managed, and settled thousands of cases across the country. She has litigated complex cases involving toxic exposures, agriculture, transportation and general liability. Evelyn primarily practices at the state, federal, and appellate court levels in Alabama, Florida, and Georgia. As national counsel to several corporations, she manages and coordinates litigation nationwide.

Eric T. Hawkins is a partner at Hawkins Parnell & Young LLP. He focuses on representing businesses in product liability, toxic tort, environmental, and related litigation. He defends a wide variety of complex claims involving asbestos, talc, silica, benzene, premises liability, and personal injuries. As national and local counsel to several corporate clients, he develops cutting-edge litigation strategies for jurisdictions throughout the United States.

Timur Dikec is an associate with Hawkins Parnell & Young LLP. He is an experienced litigator who focuses on defending companies in products liability and toxic tort litigation. He regularly handles discovery, depositions, pleadings, and trial preparation.

Rob Blank, Carie Hall, and Rachael Kratz

DRI members Rob Blank and Carie Hall and associate Rachael Kratz of the Tampa office of Rumberger, Kirk & Caldwell obtained a defense verdict in a premise liability case. Plaintiff claimed she suffered a traumatic brain injury, C1 fracture, C2 fracture, C5-6 fusion, lower back injury, and shoulder injury from a fall, with $420,758.40 in past medical expenses and a life care plan totaling about $1.037 million for future medical care. In closing argument, Plaintiff’s counsel asked the jury to award $10,449,890.93. The defense proved there was no defect in the flooring surface. After a 10-day trial and three and a half hours of deliberations, the jury found no negligence, returning a verdict in Sea World’s favor on November 5, 2021. Plaintiff’s motion for new trial was denied; Sea World’s motion for fees and costs is pending.

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