Products Liability Law Daily District court enunciates ‘third view’ on asbestos ‘bare metal defense’ in maritime case
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Wednesday, October 5, 2016

District court enunciates ‘third view’ on asbestos ‘bare metal defense’ in maritime case

By John W. Scanlan, J.D.

Disagreeing with courts on both sides of a split of authority on the issue of a manufacturer’s liability in a maritime case for asbestos exposure resulting from asbestos that it did not add to the product, a federal district court in Louisiana set forth a new standard that it called a "third view" that it will apply to the case before it. Under this new standard, the court will take into account the extent to which the manufacturer included asbestos in the original product, the extent to which a component manufacturer was involved in the design of a finished product or negligently entrusted its component to an incompetent assembler, and whether the manufacturer recommended that a customer use asbestos in conjunction with its product, along with the extent to which the manufacturer can be liable only in negligence, not strict liability (Bell v. Foster Wheeler Energy Corp., October 4, 2016, Africk, L.).

A former U.S. Navy engineman, machinery repairman, and machinist mate was diagnosed with mesothelioma in 2015. Before his death in 2016, he brought suit against a number of companies that manufactured pumps, valves, condensers, compressors, and turbines that were used on the vessels on which he had served. Each of these products allegedly were used with asbestos components; the court observed that some of these products included asbestos components added by the original manufacturer, others had asbestos components included by the manufacturer that had subsequently been replaced by third-part products, others did not originally include asbestos components but had asbestos components manufactured by third parties that were added later. Ten companies moved for summary judgment.

Split in authority. The present court first noted that the Sixth Circuit, and courts following it (including the asbestos MDL court), have held that maritime law does not impose any duty upon a manufacturer to warn about any product that is not its own. Under the "bare metal defense," a manufacturer is not liable unless it made, sold, or otherwise controlled the asbestos fibers that caused the injury. These courts require plaintiffs to show for each defendant that the plaintiff was exposed to that defendant’s product and that the product was a substantial factor in causing injury to the plaintiff. The district court found that this interpretation of maritime law has the practical effect of blocking recovery much of the time due to the difficulty of identifying that manufacturer. It also said that this view overlooks a defendant’s potential liability for negligently advising a customer to use asbestos components in conjunction with its product. Furthermore, the defendants’ bare metal theory depended on establishing that a manufacturer’s duties in negligence actions go no further than its duties in strict liability actions, which cannot be correct, the court said.

According to the district court, there is a growing trend in state asbestos litigation for courts to recognize exceptions to this general rule under limited circumstances. However, these exceptions can be problematic, the court observed. While courts traditionally distinguish between makers of component parts and makers of finished products, courts that differ with the Sixth Circuit do not make this distinction. The plaintiffs urged the court to find that if it is foreseeable that a company’s products may be used with another company’s asbestos, then the company has a duty to warn regarding the other company’s asbestos product. However, this duty would be so broad as to be impossible to carry out, and the Navy worker’s theory would have the effect of eliminating the general rule that a component manufacturer is not liable if the component is not defective.

The "third view." The district court announced a "third view" standard that it will apply to the present case. The liability of a manufacturer of a finished product that incorporates asbestos components will depend on whether the harm was caused by a component added by the manufacturer, in which case the manufacturer can be held liable both in negligence or strict liability, or by an aftermarket component added by a user. In the latter case, the manufacturer cannot be held strictly liable but may be liable for negligence if a breach of the duty to warn of the risks of original asbestos components was a proximate cause of a later harmful asbestos exposure from an aftermarket replacement part. The manufacturer may also be liable in negligence if it negligently recommended the use of a defective aftermarket part.

A manufacturer of a bare metal component part used in conjunction with an asbestos product is not liable under the component parts doctrine if it merely designs the product to the buyer’s specifications and nothing more. However, it would be liable in both negligence and strict liability if it is substantially involved in the integration of the component into the design of the finished product and the integration results in a defective product that harms the plaintiff. It would be liable only in negligence if it supplies directly or through a third person a component part for which the manufacturer knows or has reason to know that the user is likely to use it in a manner involving unreasonable risk of harm to the user or others who the supplier would expect to be endangered by its use. It would be liable for negligence in recommending the use of a hazardous part in conjunction with its component if the recommendation gives false information to another and harm results to either the recipient of the information or others that the manufacturer should expect to be put in peril by the recommendation.

The case is No. 15-6394.

Attorneys: Gerolyn Petit Roussel (Roussel & Clement) for Vickie G. Campos. John Joseph Hainkel, III (Frilot LLC) for Foster Wheeler Energy Corp., f/k/a Foster Wheeler Corp. and CBS Corp., f/k/a Westinghouse Electric Corporation f/k/a Viacom Inc. Rocky Wayne Eaton (Tyner, Eaton & Fulce, PLLC) for York International Corp.

Companies: Foster Wheeler Energy Corp., f/k/a Foster Wheeler Corp.; CBS Corp., f/k/a Westinghouse Electric Corporation f/k/a Viacom Inc.; York International Corp.

MainStory: TopStory SCLIssuesNews WarningsNews DesignManufacturingNews AsbestosNews LouisianaNews

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