Gorsuch, J., dissenting
warn users about the known dangers of asbestos. And there’s a colorable argument that their responsibility didn’t end when the Navy, as part of routine upkeep, swapped out the original asbestos parts for replacements supplied by others. Under traditional tort principles, the seller of a defective, “unreasonably dangerous” product may be liable to an injured user if the product “is expected to and does reach the user… without substantial change in the condition in which it is sold.” 2 Restatement (Second) of Torts §402A(1)(b), pp. 347–348 (1963–1964). And replacing worn-out parts every now and then with equivalently dangerous third-party parts may not qualify as a “substantial change” if the replacement part does “no more than perpetuate” problems latent in the original. Sage v. Fairchild-Swearingen Corp., 70 N. Y. 2d 579, 584–587, 517 N. E. 2d 1304, 1306–1308 (1987); see, e.g., Whelan v. Armstrong Int’l Inc., 455 N. J. Super. 569, 597–598, 190 A. 3d 1090, 1106–1107 (App. Div. 2018). Of course, the defendants’ original failure to warn might not be the legal cause of any harm if the use of the replacement part was unforeseeable, or if an intervening action severed the connection between the original sale and the injurious use. For example, if the replacement part itself posed the danger–or if, by the time the original part wore out, safer alternatives had become available. The Court’s new standard, however, does not address these defendants separately, but focuses on the bare metal defendants.
