Featured Expert Contributor, Mass Torts—Asbestos
Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA
On May 14, 2018 the United States Supreme Court agreed to decide a recurring issue in asbestos actions, the “bare-metal” rule. The Supreme Court granted the petition for writ of certiorari of four businesses that often face products-liability claims in asbestos actions, CBS Corporation, Air & Liquid Systems Corp., Foster Wheeler LLP and Ingersoll Rand, Inc. The issue, as framed in the petition, is whether products-liability defendants can be liable “under maritime law for injuries caused by products that they did not make, sell, or distribute.”
The case raises the fundamental question of whether a product-manufacturer defendant should be liable for injuries caused by adjacent products or replacement parts that were made by others but used in conjunction with the defendant’s product. The question occurs not infrequently in asbestos actions. Decades ago, when asbestos was in common use, many manufacturers sold bare-metal valves or other metal products that could be used adjacent to or in conjunction with asbestos-containing insulation or gaskets.
Plaintiffs argue that these manufacturers should be liable if they could have foreseen that asbestos would be added to or used with their bare-metal products. The manufacturers argue that they should not be liable unless their own products caused the harm.
In arguing in favor of certiorari, petitioners cited the U.S. Court of Appeals for the Third Circuit’s decision in the case, which held that petitioners could be liable in negligence, as conflicting with a decision by the Sixth Circuit rejecting liability, Lindstrom v. A-C Products Liability Trust, 424 F.3d 488 (6th Cir. 2005).
Outside the maritime context, state courts have also weighed in on the issue. See, e.g., O’Neil v. Crane Co., 53 Cal. 4th 335, 342 (2012) (“We hold that a product manufacturer may not be held liable in strict liability or negligence for harm caused by another manufacturer’s product unless the defendant’s own product contributed substantially to the harm, or the defendant participated substantially in creating a harmful combined use of the products.”); see also May v. Air & Liquid Sys. Corp., 129 A.3d 984, 1000 (Md. 2015) (recognizing liability); Braaten v. Saberhagen Holdings, 198 P.3d 493, 495 (Wash. 2008) (rejecting liability).
The Court’s decision in this case, which will likely be argued in the fall as part of its October Term 2018, could both resolve the conflict under maritime law and influence courts in other jurisdictions addressing the bare-metal rule.