United States: "Third View" Of Bare Metal Defense In Asbestos Litigation Further Complicates Applicability

Last Updated: November 3 2016
Article by Kevin J. Penhallegon

The United States District Court for the Eastern District of Louisiana recently issued an opinion in Bell v. Foster Wheeler Energy Corp., CV-15-6394, Africk, L., 2016 U.S. Dist. LEXIS 137547 (E.D. La. Oct. 4, 2016) that enunciates what it calls a "third view" on the so-called "bare metal defense" for asbestos litigation. This "third view" introduces further uncertainty into the ever-changing landscape of the "bare metal defense" and would require additional analysis to evaluate the defense's applicability to a manufacturer as opposed to the two views that previously existed within the split of authority.  

Split of Authority Prior to Bell Decision

In Bell, the plaintiff is a former U.S. Navy engineman, machinery repairman and machinist mate and the court analyzed the case under maritime law. Ten defendants filed a motion for summary judgment seeking to avoid liability on the basis of the "bare metal defense." As the court noted in its decision, there is a split in authority among the various circuits and also within the states as to the proper application of this defense. The "bare metal defense" generally makes it more difficult for a plaintiff to prove causation where the alleged asbestos exposure was from a component part for which the manufacturer is not directly responsible. The Bell court noted that where the "bare metal defense" applies, a manufacturer cannot be held liable unless it made, sold, or otherwise controlled the asbestos fibers that caused injury. The law does not impose a duty upon a manufacturer to warn about any product that is not its own. That view is held by the Sixth Circuit and other courts following its rationale. Alternatively, the court cited to the Northern District of Illinois' decision in Quirin v. Lorillard Tobacco Co. for the proposition that a manufacturer has a duty to warn regarding asbestos under maritime law when "the defendant manufactured a product that, by necessity, contained asbestos components, where the asbestos-containing material was essential to the proper functioning of the defendant's product, and where the asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else." 17 F. Supp. 3d 760, 769-70 (N.D. Ill. 2014). The Bell court also noted a growing trend in state law that recognizes exceptions to the general "bare metal defense" under certain limited circumstances, similar to the view expressed in Quirin.  

The "Third View" Proposed by Bell

Ultimately, the court in Bell rejected both theories and found flaws in the approach proposed by both the defendants and plaintiff. In rejecting the defendant's proposed standard, the court held that "[e]ven if defendants do not have a duty to warn arising out of merely manufacturing a particular product that might be used with asbestos, they can nonetheless have duties arising out of taking the additional action of negligently recommending that a plaintiff use asbestos in conjunction with the manufacturer's products." Bell, 2016 U.S. Dist. LEXIS 137547 at *13. The court found plaintiff's proposed standard equally unpersuasive and held that "imposing plaintiff's proposed duty to warn would have had the effect of reading the long-recognized general rule that 'component sellers should not be liable when the component itself is not defective' entirely out of products liability law" and instead found that before imposing liability, "the Court will require plaintiffs to show that defendants did something beyond merely manufacturing a product that might foreseeably be used with asbestos." Bell, 2016 U.S. Dist. LEXIS 137547 at *14-15.

In its explanation as to why its so-called "third view" should apply, the court discussed the concepts of component parts liability and the distinction between a manufacturer's liability for negligence and strict liability. Accordingly, the court laid out a set of standards applicable to a variety of different circumstances and concluded that "it is not appropriate to simply base a manufacturer's liability on the fact that it is necessary to use asbestos in conjunction with the manufacturer's product." Bell, 2016 U.S. Dist. LEXIS 137547 at *19. Under this "third view," the court will "take into account whether the manufacturer included asbestos components in the original product and, if not, the extent to which the component part manufacturer either (1) was involved in the design of the broader product, or (2) negligently entrusted its component to an incompetent assembler." Bell, 2016 U.S. Dist. LEXIS 137547 at *19-20. Additionally, the court held that "the standard should also take into account whether the manufacturer recommended a customer use asbestos in conjunction with the manufacturer's product." Bell, 2016 U.S. Dist. LEXIS 137547 at *20.  

Analyzing Cases Under Bell's "Third View" Standard

The court's "third view" separated the analysis into two primary categories: (a) liability of manufacturer that incorporates asbestos into its finished product, and (b) liability of a bare metal component part manufacturer.  In category (a), the extent of the manufacturer's liability turns on "whether the harm was caused by a component added by the manufacturer or an aftermarket component added by the user." Bell, 2016 U.S. Dist. LEXIS 137547 at *21. Not surprisingly, the court held that if the harm is caused by an asbestos component added to the product by the manufacturer, then the manufacturer can be held liable in both strict liability and negligence. However, if the harm was caused by an aftermarket component added to the product, the manufacturer cannot be held strictly liable but may be held liable for negligence if a breach of the duty to warn regarding the original asbestos components that the manufacturer added to the product was a proximate cause of a later harmful exposure to asbestos from an aftermarket replacement part. Additionally, the manufacturer can be held liable for negligence if it negligently recommended the use of a defective aftermarket part. Bell, 2016 U.S. Dist. LEXIS 137547 at *23-24.

Alternatively, where category (b) applies, "the manufacturer's liability turns on whether the manufacturer did something beyond manufacturing the component part that was used in conjunction with the asbestos." Pursuant to the component parts doctrine, if a component part manufacturer merely designs the component to its buyer's specifications, the manufacturer faces no liability unless the component part itself is defective. However, if the component part manufacturer goes beyond that and was substantially involved in the integration of the component part into the design of the finished product, the manufacturer could be held liable in both negligence and strict liability if that integration results in a defective product that harms the plaintiff. Additionally, the component part manufacturer can be held liable for negligence if it supplies a component part that it knows or has reason to know will be used in a manner involving unreasonable risk of physical harm or if it recommends the use of a hazardous part in conjunction with the manufacturer's component part. Bell, 2016 U.S. Dist. LEXIS 137547 at *28-29.

If this "third view" proposed by the court in Bell is more widely adopted, it will require parties to conduct a threshold analysis of the issues to determine which standard to apply. Therefore, rather than a clear rule whereby the parties can evaluate liability based on a set of defined principles, the parties will be forced to argue over which standard to apply, and then argue for why the defendant is or is not liable under that proposed standard. Such an approach could lead to the unworkable position where the parties cannot even address the merits of the defense because there is disagreement as to the precise applicability of the defense at the outset and the scope of the standards to be applied.  

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.