Heather Isringhausen Gvillo Sep. 29, 2014, 1:26pm

ST. LOUIS (Legal Newsline) – As more asbestos defendants seek bankruptcy protection, replacement part lawsuits have become more common in asbestos litigation - but two attorneys agree there seems to be no trend as states rule down the middle on the subject.

Asbestos attorneys Tobin Taylor and Mark Buha discussed the bare metal defense in replacement part asbestos cases at the HarrisMartin Midwest Asbestos Litigation Conference in St. Louis on Sept. 18.

“Bare metal” products relate to metal products that contain or were encapsulated in asbestos-containing products made by a third party. The arguments raised from this type of exposure are known as the “bare metal defense” in litigation.

An example of a replacement part case could include a company that only manufactured metal pumps and valves. But the products required the use of third-party gaskets and packing, which typically contained asbestos and had to be changed regularly.

Buha, a plaintiff attorneys with Maune Raichle Hartley French & Mudd, said this issue is about whether a company had a duty to warn for a part that it knew would have a longer life span than the asbestos-containing component parts used within the metal.

He asked if the pump manufacturer had a duty to warn the first user who would have been exposed to the component parts it initially placed inside the products.

Ultimately, he concluded that a manufacturer has a duty to warn through the lifespan of its product.

Furthermore, Buha argued that the manufacturer of the finished product owes a bigger duty to warn than the component part manufacturer.

A component part manufacturer, he explained, is only liable if the defect is contained within the part, but the finished product manufacturer is liable for the entire thing.

However, Taylor, a defense attorney with the Heyl Royster law firm, said expansion of liability could lead to "absurd results," comparing the duty to warn of all potential dangers to igniting dynamite.

“Defendants should be liable for only those defective products it placed into the stream of commerce and only when the defect actually caused the harm,” he wrote in his presentation.

Of the several factors states take into consideration when determining whether or not it will support the bare metal defense, Buha focused primarily on foreseeability, saying it plays a “prominent role” in determining whether to recognize a duty.

“Most states consider foreseeability to be the most important factor,” he said.

He explained in his presentation that defendants’ products originally came with asbestos components, which required frequent replacement, and defendants knew end users would replace them with more asbestos components.

“In other words, foreseeability of asbestos exposure – if not actual knowledge or intention – can be easily demonstrated,” Buha said. “And harm from asbestos exposure has long been recognized in the law as foreseeable.”

Defendants, on the other hand, argue that the burden to warn of third-party component parts would require them to police all potential defects.

However, Buha said they already owed a duty to warn the first user and there would be no additional burden if they would have done that in the beginning.

“A warning should have already been on defendants’ equipment, so there is no additional burden to warn end users about replacement subcomponents with the same exact hazard,” he wrote in his presentation.

Furthermore, Buha said it would not have been impossible for pump manufacturers to foresee and prevent against the product’s defects, because asbestos was the only risk.

“It’s not an infinite universe,” he said. “It’s one particular defense. And that’s what makes this different.”

While other states have found that liability should not stretch to another company’s products, Taylor said Illinois has not provided much guidance on the issue.

Buha added that there is no trend in the bare metal defense decisions, as states seem to be split in half.

Buha explained that eight states are “plaintiff-friendly,” meaning they reject the bare metal defense argument and extend liability to the asbestos-containing parts. Nine states are “defense-friendly,” meaning they don’t extend liability when an asbestos-containing product is manufactured by a third party. Five states are mixed, meaning courts in those states have ruled both for and against the bare metal defense.

Illinois and Missouri are included on the “plaintiff-friendly” list.

“There is no trend,” he said. “It’s about 50-50 and there’s no guiding principle.”

As an example of the defendant’s perspective in replacement part cases, Taylor shared a hypothetical story where his youngest daughter didn’t get to eat dessert because she left her bicycle in the driveway. Then, because it is reasonable to assume that his other daughters have also left their bicycles in the driveway in the past and it is foreseeable that they will do the same in the future, they were also denied dessert. As a result, the other daughters were upset for being punished for their sister’s mistake.

Likewise, Taylor said it is inappropriate for manufacturers of pumps and valves to be liable for the asbestos-containing component parts used inside the products that were manufactured by third parties.

He asked if a manufacturer should be held liable in court to another manufacturer’s products or activities, saying the answer is “clearly no.”

“To be punished for something you didn’t do is fundamentally unfair,” he said.

Buha, on the other hand, framed the story differently, saying the story applies more accurately if the other daughters required the youngest daughter to leave her bicycle out.

He explained that the asbestos-containing component parts were necessary for the pump to work, so they would have to be replaced every time they wore out. Because the only component parts available at the time contained asbestos, it was as if the pump manufacturer required asbestos to be used in its product.

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

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