A Look Back at the Bare Metal Defense in 2017
In the past year, the bare metal defense continued to see some variance from jurisdiction to jurisdiction, with at least one federal appellate court taking up an issue for further clarification late in the year. The bare metal or component parts defense essentially provides that a manufacturer is not liable for harm caused by asbestos products that the manufacturer did not manufacture or distribute, and owes no duty to warn of the hazards inherent to those products. It is viewed in some jurisdictions in the context of causation, with manufacturers of products that did not originally include asbestos component parts escaping liability given a lack of proximate cause for plaintiffs’ injuries. Other courts try to examine whether the risks of asbestos hazards were reasonably foreseeable to defendants whose products may ultimately have been integrated with asbestos components when in use in industry. Courts have distinguished bare metal standards in negligence and failure to warn claims. Looking at the published decisions from this year provides some elucidation for parties litigating this issue, but even finer points should emerge with pending decisions.
In reported cases from early in 2017, federal courts hearing summary judgment motions considered the bare metal defense where maritime law applied, specifically in cases involving exposure in the United States Navy. The district courts continued to acknowledge differences in court interpretation of the Lindstrom decision, which some courts read to hold that a manufacturer is never liable unless they made, sold, or controlled the aftermarket asbestos components that injured the plaintiff, and which others read as inapplicable to failure-to-warn claims, as influenced by the Quirin case. Regardless, the district courts were showing some consistency in analyzing case facts closely under either framework.
With the Third Circuit Court of Appeals Decision in In re: Asbestos Products Liability Litigation (No. VI) in early October, the standard was bolstered in negligence claims, with a clear statement that bare metal manufacturers may be held liable for subsequently added asbestos component parts if the injuries were a reasonably foreseeable consequence of the original manufacturer’s failure to provide a reasonable and adequate warning on a fact based standard. A few weeks later, the Third Circuit doubled down and certified questions of law to determine whether the bare metal manufacturer has a duty to warn about the asbestos-related hazards of component parts that it neither manufactures nor supplies. When the court’s ruling on this point of law arrives, expectations are that this one-two punch, and thorough analysis of the bare metal defense will be influential to other courts grappling with existing distinctions of law. We will continue to monitor and report.