Cook County Record

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‘Third view’ of bare metal defense could complicate asbestos litigation

By Joe Dyton | Nov 11, 2016

Asbestos 12

NEW ORLEANS – A federal judge in Louisiana made waves in a recent asbestos lawsuit, delivering a ruling establishing a potential “third view” on the so-called “bare metal defense” deployed by industrial defendants against asbestos exposure litigation.

As asbestos litigation has continued to evolve, lawsuits have also targeted manufacturers who produced "bare metal" components that were later covered in asbestos or used in conjunction with other products containing asbestos in various industrial settings. 

These manufacturers have argued they should not be held responsible for exposure to asbestos fibers which allegedly later occurred, causing illness or death. In other words, the law doesn’t require a manufacturer to warn about any product that it doesn’t own. The U.S. Court of Appeals for the Sixth Circuit shared this view.

However, in response, plaintiffs have argued - and some courts have found - alternatively, that other manufacturers should be held liable for making products which could not function, but for the asbestos that covered those components or were deployed along with them. In the U.S. District Court for the Northern District of Illinois’ decision in Quirin v. Lorillard Tobacco Co., the court determined it is up to a manufacturer to warn users about asbestos under maritime law when “the defendant manufactured a product that, by necessity, contained asbestos components, where the asbestos-containing material was essential to the proper functioning of the defendant’s product, and where the asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else.”

In the recent decision from the U.S. District Court for the Eastern District of Louisiana, Judge Lance Africk signaled he would apply a "third view" to the defense strategy,  in an Oct. 4 opinion delivered in the case of Bell v. Foster Wheeler Corp

Africk rejected both sides’ theories, finding flaws in both. Regarding the defendants' proposal, the judge believed, “even if defendants do not have a duty to warn arising out of merely manufacturing a particular product that might be used with asbestos, they can nonetheless have duties arising out of taking the additional action of negligently recommending that a plaintiff use asbestos in conjunction with the manufacturer’s products.” 

As for the plaintiffs, the judge felt their proposal was just as unconvincing and stated, “imposing plaintiff’s proposed duty to warn would have had the effect of reading the long-recognized general rule that ‘component sellers should not be liable when the component itself is not defective’ entirely out of products liability law.” Before imposing liability, “the Court will require plaintiffs to show that defendants did something beyond merely manufacturing a product that might foreseeably be used with asbestos.” 

Instead, the judge indicated he could implement a  “third view," saying the court  “will take into account whether the manufacturer included asbestos components in the original product and, if not, the extent to which the component part manufacturer either (1) was involved in the design of the broader product, or (2) negligently entrusted its component to an incompetent assembler.” The court will also determine if the manufacturer recommended a customer use asbestos along with its product.

A “third view” brings more uncertainty into the “bare metal defense” that’s constantly changing. It will require more analysis to review the defense’s applicability to a manufacturer rather the two views that existed already within the split of authority, said  attorney Kevin J. Penhallegon, of the firm of Miles & Stockbridge in Baltimore.

“The opinion is really just a ruling in a trial court on pending motions for summary judgment,” Penhallegon told the Cook County Record. “So what that means is, at this point, it doesn’t really have any precedential value outside of the context of this particular case since it’s not from an appellate court. However, the judge’s ruling allows the parties additional time to brief the issues pursuant to the standard enunciated by the court, and a subsequent ruling on the motions applying that standard may provide further insight into how the court will analyze the defense going forward.”

Going forward, if the “third view” proposed by the court in this case is more widely adopted; parties in asbestos litigation may need to conduct a threshold analysis of the issues to decide what standard to move forward with. Instead of a clear rule that parties can determine liability based on a standard set of principles, the parties will have to debate which standard to use. Then there will be an argument over why the defendant is liable or not under the chosen standard. 

Should the use of such a third view on the bare metal defense take root, the decision could have an impact in Illinois. Nearly half of all asbestos exposure lawsuits in the U.S. in 2015 were filed in downstate Madison County, in the St. Louis metro area. Cook County is also home to dozens of such lawsuits annually.

“It’s an interesting case, but I don’t necessarily think of it as all that significant at this point because we don’t really know what impact it’s going to have going forward,” Penhallegon said. “However, if other courts begin to adopt this judge’s proposed standards, that could have an impact on the application of the bare metal defense on a broader scale.”

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Organizations in this Story

U.S. Court of Appeals for the Sixth CircuitU.S. District Court for the Eastern District of Louisiana