Will the Exception Swallow the Rule? The Northern District of Illinois’ Take on the Bare Metal Defense

The bare metal defense has become a “go-to” defense for defendants involved in national asbestos litigation.  Predominantly asserted by manufacturers of industrial equipment, the defense provides that those defendants that manufactured products composed only of metal have no duty to warn of asbestos-containing components later installed by others post-sale.  It also rejects liability for “affixed” external materials – typically thermal insulation and flange gaskets manufactured by others – placed on the metal products by someone other than the defendant.

While the defense has been the subject of numerous cases, its application has not been uniform.  However, the decisions fall into three main categories:

(1) a defense-friendly category, holding that manufacturers have no duty to warn of asbestos-containing replacement parts supplied by a third party;

(2) a plaintiff-friendly category, holding that manufacturers have a duty to warn whenever it is foreseeable that asbestos-containing material may be used with their products; and

(3)  a “middle ground,” holding that manufacturers generally have no such duty, but do have a duty to warn when the use of asbestos-containing materials (a) was specified by a defendant, (b) was essential to the proper functioning of the defendant’s products, or (c)         was for “some reason so inevitable that, by supplying the product, the defendant was responsible for introducing asbestos into the environment at issue.”

Recently, the Northern District of Illinois expressly adopted the middle ground. In Quirin v. Lorillard Tobacco Co., 2014 U.S. Dist. LEXIS 18744 (N.D. Ill. Feb. 14, 2014), the court ultimately denied Crane Co.’s summary judgment motion under an exception to the middle-ground approach, namely that the plaintiff was able to proffer evidence that Crane Co. specified the asbestos-containing replacement components or that the asbestos-containing components were necessary for the metal products to function.

Quirin arose out of the plaintiff’s alleged exposure to asbestos-containing Crane Co. valves during the plaintiff’s service in the U.S. Navy.  Although the valves themselves were composed of “bare metal,” they included an internal bonnet gasket and stem packing at the time of shipment that may have contained asbestos. In addition, Crane Co. sold asbestos-containing replacement gaskets, gasket material and packing.  Crane Co. moved for summary judgment, arguing that its valves were bare metal and, accordingly, Crane Co. had no duty to warn of asbestos-containing components manufactured by others and ultimately applied by the Navy, the end user of the product.

Quirin looked to other jurisdictions for guidance, expressly citing the California Supreme Court’s ruling in O’Neil v. Crane Co., 53 Cal. 4th 335 (2012), noting that “manufacturers are not required to investigate and warn of the potential risks of any other products that might be used with a Crane Co. product.  The duty attaches only when the manufacturer incorporated the asbestos-containing material into its product, meaning that asbestos would inevitably be introduced into the stream of commerce along with the product.”  The Quirin court, however, found that the O’Neil court “qualified its conclusion” and “left room for an exception to the rule” because the plaintiffs in O’Neil did not prove the equipment at issue needed asbestos to function.

Quirin relied on evidence that Crane Co. valves were used for high heat applications, that at least some of its valves needed asbestos-containing components to function properly, and that Crane Co. provided specifications for such use.  Taken together, the court concluded that a jury could find that Crane Co. had a legal duty to warn about the hazards of asbestos exposure from working with its valves.

On one hand, the fact that the Quirin court cited the O’Neil case with approval is encouraging for equipment defendants in Illinois.  However, the adoption of the middle-ground approach by the Northern District of Illinois is troubling. Practically speaking, there is minimal difference between the middle-ground approach and the plaintiff-oriented foreseeability approach, since the plaintiffs will merely proffer expert testimony to prove the “bare metal” product at issue was used for hot applications and “needed asbestos” to function properly.  As presently interpreted by the Northern District, then, defendants need to be particularly aware of the bare metal defense’s limitations; it does not provide a complete bar for bare metal defendants, even those that never manufactured asbestos-containing products or provided asbestos-containing components with their products.

Fortunately, however, development of the bare metal defense is still in its infancy in Illinois.  Indeed, there has yet to be a definitive ruling rendered by an Illinois appellate court on the issue.  In fact, just before the ruling in Quirin, the Asbestos MDL remanded an asbestos lawsuit to the Southern District of Illinois to determine whether the state even recognized the bare metal defense.  For now, equipment defendants in federal court in Illinois are well advised to argue the policy and rationale of O’Neil and push at the state and federal level for a bright-line rule of nonliability for other parties’ products.

New Jersey: No Liability for Other Parties’ Asbestos Products

New Jersey has joined the list of jurisdictions that hold a defendant is not liable for asbestos in replacement parts supplied by others, regardless of whether there was asbestos in the same part as originally supplied.

Hughes v. A.W. Chesterton Co. is a generally good result for asbestos defendants. Notably, it did not get to the result the same way that other cases (e.g., California, Washington, and the asbestos MDL) did.

Hughes held that there was a duty to warn, but found no liability as a matter of causation. Many other cases coming to the same result as Hughes held that there is no duty to warn. (For example, California’s O’Neil, Washington’s Braaten and Simonetta, the Sixth Circuit’s Lindstrom, the MDL’s Prange, etc.)

Hughes imposed a duty to warn on the grounds that it was reasonably foreseeable at the time the Goulds pumps were sold that original gaskets and packing would be regularly replaced with gaskets and packing that contained asbestos. “Since the risk of exposure continued and was perhaps increased by the replacement process, a warning given at the time of the initial sale would ensure that this information was available to be considered in subsequent decisions regarding the choice of replacement parts and any additional safeguards for workers who made the replacements. We therefore conclude that it would be reasonable, practical, and feasible to impose a duty to warn upon Goulds under the facts here.”

“We do not agree that plaintiffs may prove causation by showing exposure to a product without also showing exposure to an injury-producing element in the product that was manufactured or sold by defendant.” The court rejected plaintiffs’ argument that causation may be proved by mere likelihood that defendant’s equipment would be used with asbestos-containing replacement parts, requiring instead proof that such parts were “manufactured or sold by the defendant.”

“California law,” as O’Neil  says in contrast, “does not impose a duty to warn about dangers arising entirely from another manufacturer’s product, even if it is foreseeable that the products will be used together. Were it otherwise, manufacturers of the saws used to cut insulation would become the next targets of asbestos lawsuits.”

It is unclear whether the Hughes/New Jersey/causation approach will lead to more consistently positive results for defendants than the O’Neil/California/no duty approach. For example, California courts have since split on whether cases against various defendants, including some that never made any asbestos-containing products but only products that were used with such products, fall within O’Neil exceptions. Such exceptions to O’Neil may be irrelevant to a causation analysis under Hughes. Another potential difference is that it ought generally to be easier to win summary judgment on duty, a legal issue, than on causation, which will involve facts. On the other hand, it’s still all about one question: “was it the defendant’s product that contained the asbestos?”