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Recently, the New Jersey Supreme Court affirmed a 2018 appellate court’s reversal of its trial court’s granting of summary judgment in favor of product manufacturers who argued they had no duty to warn the ultimate user when their products required the replacement of asbestos-containing components with other asbestos-containing components during the ordinary life of the product.

In Whelan v. Armstrong International, Inc., the plaintiff sued several defendants who allegedly manufactured products that integrated asbestos-containing components. He claimed he suffered asbestos exposures while replacing component parts, but the defendants contended the plaintiff could not establish the manufacturer’s component parts were still on the product, rather than those made by third-parties. The plaintiff rebutted this argument, stating the distinction was one without a difference and that the manufacturer-defendants had a duty to warn regardless.

The New Jersey Supreme Court noted that a manufacturer had a duty to exercise due care to a foreseeable user of its products. It also stated manufacturers can place proper warnings on their products, making those products safe “at virtually no added cost and without limiting [the product’s] utility.” Finally, the court said that warnings about the dangers of the original asbestos-containing replacement components could easily encompass the dangers of the required asbestos-containing replacement components integrated into the product during routine maintenance at later times. In finding such a duty exists, the court also held that the foreseeability and knowledge of the dangers inherent in the replacement parts would be imputed to the defendants. As a result, the trial court’s summary judgment in favor of the defendants was overturned.

The above argument is often incorporated into a “bare metal” defense, which is essentially the argument that a product manufacturer is not liable when third-party asbestos-containing components are attached to a product (the “bare metal”) after its original sale. In recent years, courts around the United States have held such a defense does not automatically avoid potential liability of the product manufacturer, especially when it is found to be reasonably foreseeable that these after-market components will be used.

Article by GOT attorneys Derek Ruzicka and Don O’Keefe

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