Mixed Results for Bare Metal Defense in Asbestos Cases Around The Country

Over the past several years, there has been an increase in defendants’ raising the “bare metal defense” in asbestos cases across the country. As the name implies, this defense is generally used by manufacturers that made bare metal products, such as pipes, pumps and valves. Subsequently, aftermarket, the bare metal product is altered by a third-party with an asbestos-containing product — oftentimes thermal insulation, gaskets, or packing material. The manufacturers of the original bare metal product thus argue  that they should not be responsible for any asbestos exposure caused by such alteration.

The use of this defense is important not just for the particular manufacturers that raise it, but for all asbestos defendants generally. If this defense continues to gain acceptance, the landscape of asbestos litigation may change as to which defendants continue to be sued and what will be expected from them for settlement. For example, gone may be the bare metal defendants, and thus those defendants that can rely on this defense will have a better chance of dismissing the case against them, settling their cases sooner for less money, or, perhaps, eventually not being sued at all. Similarly, non-bare metal defendants should be aware that further acceptance of this defense may have a ripple effect as to them, as the plaintiffs’ bar may look to them to pay more in settlement to counteract the reduced settlement payments coming from the bare metal defendants.

Thus far, the bare metal defense has met with various degrees of success. Depending upon the state, or even the particular court within a particular state, some defendants have been able to obtain summary judgment using this defense, while others have not had success even in very similar factual situations. While the defense appears to be slowly gaining wider acceptance, there is still much debate concerning how, or if, it should be applied.

There have been, generally, three types of rulings on this defense: 1) that manufacturers have no duty to warn of the aftermarket asbestos-containing parts supplied by a third-party; 2) that manufacturers have a duty to warn if it was foreseeable that asbestos-containing material may be used with their products; and 3) that manufacturers generally do not have a duty, unless the use of the asbestos-containing materials was specified by the manufacturer, the aftermarket asbestos product was essential for the product to function properly, or it is deemed that by supplying the product it was inevitable that asbestos would be introduced into the environment.

State courts that have accepted the bare metal defense include California, Washington, Georgia, Maryland, and Massachusetts. States where there has been some success with the bare metal defense in the lower courts include Texas, Florida, Oregon, Idaho, Utah, Arizona, Minnesota, Maine, Connecticut, New Jersey, Alabama, and Mississippi. In several states — New York, Pennsylvania and Illinois — there are inconsistent decisions on the bare metal defense.

In New York, for example, in a case called Surre v. Foster Wheeler LLC, 831 F.Supp.2d 797 (S.D.N.Y. 2011), the U.S. District Court for the Southern District of New York found that “foreseeability” that a third-party might subsequently insulate a product with asbestos material was not enough to give rise to a duty to warn. In contrast, however, the New York State Appellate Division, First Department, in a case commonly referred to as “Dummitt” from the New York City Asbestos Litig., 121 A.D.3d 230 (1st Dept. 2014), essentially held that foreseeability equals a duty to warn. It is worth noting that there were two dissenting judges in the Dummitt opinion and that the case is now on appeal in the New York Court of Appeals, the highest appellate court in the State of New York, and therefore we may expect to see a more definitive ruling as to the status of the bare metal defense in New York.

Another example of conflicting rulings on this issue, even within the same court, can be found in the case of Sparkman v. Goulds Pumps, Inc., et al., 2015 U.S. Dist. Lexis 19579 (February 19, 2015). In Sparkman, the U.S. District Court for the District of South Carolina originally recognized the bare metal defense in granting Goulds’ motion for summary judgment, based on its belief that the South Carolina Supreme Court would likely adopt the bare metal defense. The plaintiff subsequently moved for reconsideration and relied upon a recently decided similar case in which a lower South Carolina state court reached the opposite conclusion. Reversing itself, the District Court then held that ignoring the lower state court decision would be unjust and found that the South Carolina Supreme Court would likely reject the bare metal defense. The District Court thus granted the plaintiff’s motion to reconsider and denied Goulds’ motion for summary judgment.

The status of this defense continues to be in flux across the country. While a manufacturer may be able to raise the defense and obtain summary judgment in one state, it may lose summary judgment on the same exact argument in another state — or even in a different court within the same state. It is thus important for manufacturers, and their counsel, to keep abreast of the developing law on this defense and raise it where applicable. We will continue to monitor the status of this defense, as it will continue to have great impact on defending, settling, and trying asbestos cases.


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