Last week, in a precedential opinion, the U.S. Court of Appeals for the Third Circuit rejected a bright-line application of what has come to be known as the “bare-metal defense” in asbestos litigation. The holding is limited to claims of negligence under maritime law. Issues regarding strict liability claims and the government contractor defense were not before the Court.
What does this mean?
For years, manufacturers of equipment, such as boilers, turbine generators, pumps and valves, have asserted they cannot be held liable for exposures to asbestos that occurred during the removal and/or replacement of asbestos-containing component parts (e.g., insulation, gaskets and/or packing) during the repair and maintenance of the equipment. The equipment defendants’ argument has been that, essentially, all they manufactured and supplied was a “bare metal” machine, not the asbestos-containing products that exposed plaintiffs to asbestos and asbestos dust. In response, plaintiffs have long-argued that the defendant-manufacturers should, nevertheless, be liable for such exposures because the manufacturers knew (or at least reasonably should have known) that their equipment required the use of asbestos-containing component parts. Discovery in many cases has revealed drawings and operating manuals showing that the equipment manufacturers actually designed and specified the use of asbestos-containing gaskets, packing and other insulating products in conjunction with their equipment in order for the equipment to operate as intended. In other instances, equipment manufacturers even supplied the original asbestos-containing component parts. Still, many courts across the country, including the United States District Court for the Eastern-District of Pennsylvania in the MDL-875, In Re: Asbestos Products Liability Litigation (No. VI), have routinely granted summary judgment in favor of equipment-manufacturing defendants, resulting in the outright dismissal of many plaintiffs’ lawsuits on the basis of the so-called “bare-metal defense”.
In rejecting the bright-line application of the “bare-metal defense, the Third Circuit concluded that “maritime law’s special solitude for the safety and protection of sailors counsels us to adopt a standard-based approach to the bare-metal defense,” permitting plaintiffs to recover against an equipment manufacturer “when the facts show the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s conduct.” (See p. 19) While noting that the analysis “will necessarily be fact-specific,” the Third Circuit provided the following example of when an equipment manufacturer may be liable for a plaintiff’s injuries: If, at the time the manufacturer placed its equipment into the stream of commerce, it “reasonably could have known” (1) that asbestos is hazardous, and (2) that its product will be used with an asbestos-containing part, because “(a) the product was originally equipped with an asbestos containing part that could reasonably be expected to be replaced over the product’s lifetime, (b) the manufacturer specifically directed that the product be used with an asbestos-containing part, or (c) the product required an asbestos-containing part to function properly.” (See pp. 17-18) The Court noted that this list is not exclusive, and that there may be other facts on which liability may be based. (See p. 18)
I have personally represented plaintiffs and their family members in asbestos mesothelioma cases for nearly a decade, and this opinion is one of the best I have read. (Another being Tooey v. A.K. Steel Corporation, 81 A.3d 851 (Pa. 2013), in which the Supreme Court of Pennsylvania held that plaintiffs can sue their former employers for exposures to asbestos in the workplace under certain circumstances.)
It will be interesting to see how the DeVries and McAfee cases, which were the subject of the Third Circuit’s opinion, proceed on remand. It will also be interesting to see how other courts respond to the “bare-metal defense,” going forward, in both maritime and land-based cases. For now, I predict the Third Circuit’s opinion could be a game-changer, and hopefully many more asbestos plaintiffs, including those who served in the United States Navy and those who worked at shipyards, such as the Philadelphia Naval Shipyard (P.N.S.Y.), will be allowed their day in court.
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