Heather Isringhausen Gvillo Jun. 5, 2014, 3:09pm

BIRMINGHAM, Ala. (Legal Newsline) - In an article for the American Journal of Trial Advocacy, two asbestos defense attorneys from Shook, Hardy & Bacon addressed concerns about what they say is a growing trend of plaintiffs' attorneys attempting to impose duty to warn liability for asbestos-containing products manufactured by third-party companies.

Mark Behrens and Margaret Horn jointly wrote the article titled "Liability for Asbestos-Containing Connected or Replacement Parts Made by Third-Parties: Courts are Properly Rejecting this Form of Guilt by Association," revealing how virtually every asbestos court to consider the theory has rejected it.

"Ordinarily, manufacturers are named in asbestos cases with respect to asbestos that was contained in their own products - not to hold them liable for products made by others," Behrens and Horn explained.

"This is an important point to keep clear. Whether couched in terms of strict liability or negligence, or in terms of manufacturing defect, design defect or failure to warn, it is black-letter product liability law that manufacturers are not liable for harms caused by others' products except in limited situations not presented in these cases. 'The [defendant's own] product must, in some sense of the word, 'create' the risk.'"

Third-party duty-to-warn cases, specifically against external thermal insulation and asbestos-containing component parts manufacturers, became more prevalent after nearly 100 companies entered the protection of bankruptcy. Plaintiffs and their attorneys then turned the blame to the remaining companies still able to go to trial, thus claiming manufacturers have a duty to warn about products made by other companies, the article says.

Plaintiffs' attorneys argue that manufacturers of "baremetal" products - such as turbines, pumps and valves - that originally came with asbestos-containing component parts should have warned of potential harms from possible asbestos exposure when replacing the parts with asbestos-containing products made by other companies.

Behrens and Horn note the O'Neil decision in the Supreme Court of California, which had drawn a line in duty-to-warn liability, holding that defendants are only responsible for harms caused by their own products unless the "'defendant's product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined used of the products.'"

The O'Neil case involved a former sailor who died from mesothelioma allegedly caused by exposure to asbestos in the engine and boiler rooms of a WWII era naval ship in the late 1960s. His family sued two companies that sold valves and pumps to the navy at least 20 years before the decedent worked aboard the ship

The decedent's family claimed he was exposed to asbestos-containing external insulation and replacement gaskets and packing, all of which were manufactured and sold by third-parties.

When reaching its decision in O'Neil, the court stated, "It is fundamental that the imposition of liability requires a showing that the plaintiff's injuries were caused by an act of the defendant or an instrumentality under the defendant's control.

"[T]he foreseeability of harm, standing along, is not a sufficient basis for imposing strict liability on the manufacturer of a non-defective product, or one whose arguably defective product does not actually cause harm."

The court also held that the defendants had no duty to warn in negligence claims about the hazards of asbestos dust released from surrounding products that was a foreseeable consequence of maintenance work on defendants' pumps and valves.

The court concluded that extending duty-to-warn to third-party products would "exceed the boundaries established over decades of product liability law."

Behrens and Horn say that imposing liability on manufacturers and sellers for an asbestos-containing product made by a third-party would present unsound public policy.

Referring to O'Neil, they say that the doctrine of strict product liability was never intended to impose "insurer-like" asbestos liability.

"In contrast, plaintiffs' theory in the 'baremetal' product and third-party replacement part cases 'would make all manufacturers the guarantors not only of their own products, but also of each and every product that could conceivably be used in connection with or in the vicinity of their product,'" they wrote.

If courts enforced such strict duty to warn liability on every relative hazards of third-party products, it would lead to "business chaos" as every manufacturer and supplier warned of every foreseeable danger of every product used at a jobsite, the article says.

In fact, companies that may have never manufactured or sold asbestos-containing products could still be held liable, Behrens and Horn claim.

Behrens and Horn also say that over-warning can also be a problem.

"Perhaps the only limit on such an expansive legal requirement would be the imagination of creative plaintiffs' lawyers," Behrens and Horn wrote.

"Indeed, if a manufacturer's duty were defined by foreseeable users of other products, the chain of warnings and liability would be so endless, unpredictable, and speculative that it would be worthless. No rational manufacturer could operate under such a system. Manufacturers cannot be expected to have research facilities to identify potential dangers with respect to all products that may be used in conjunction with or in the vicinity of their own products."

Citing O'Neil, they added that "'to warn of all potential dangers would warn of nothing.'"

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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