New Jersey Appellate Court Undermines Bare Metal Defense Superior Court of New Jersey, Appellate Division, August 6, 2018
NEW JERSEY — The plaintiff, Arthur Whelan, worked as a plumber and auto mechanic and later developed mesothelioma. He filed suit against numerous manufacturers of boilers, valves, steam traps and brake drums. While the plaintiff did install original products, the bulk of his testimony concerned replacement components used with the products. Many defendants filed motions for summary judgment, arguing that plaintiff had failed to demonstrate evidence of exposure to a product they sold, manufactured or supplied. The trial court found the defendants were not liable for asbestos-containing replacement parts that they did not manufacture or place into the stream of commerce, and granted summary judgment as to each.
On appeal, the New Jersey Appellate Division reversed. This decision was based on the finding that a manufacturer’s product includes any replacement parts necessary to its function; therefore, defendants’ duty to warn extends to any danger created by those replacement parts. The court found that it was undisputed that the defendants’ products as originally marketed had asbestos-containing parts. Furthermore, no defendants argued that they were unaware that the component parts would be replaced regularly. The court additionally held that the replacement of an original part with a substantially similar part is a foreseeable alteration. Accordingly, the replacement of the asbestos did not alter either the injury-producing element or the product defect. The court concluded by stating that a manufacturer will have a duty to warn in strict liability if a plaintiff can show: 1) the manufacturer’s product as marketed to the end user contained asbestos-containing components; 2) the asbestos-containing components were integral to the function of the product; and 3) the manufacturer was reasonably aware its product would require periodic and routine maintenance involving the replacement of the asbestos-containing component parts with other asbestos-containing component parts.