The Bare-Metal Defense in Asbestos Cases

Decisions in our library in which the court ruled on bare-metal defense: 218 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

Washington

• Deem v. Air & Liquid Systems Corporation (2019). After Air & Liquid Systems v. DeVries, a manufacturer in maritime tort law has a duty to warn when its product requires incorporation of a part, it knows or has reason to know the integrated product is likely dangerous, and it has no reason to believe users will realize the danger. The court deferred applying this standard pending further briefing.
• Yaw v. Air & Liquid Systems Corporation (2019). A party seeking to amend after the scheduling-order deadline must show good cause under Rule 16(b)(4), and the plaintiff's husband's death just before the deadline met that standard. Because DeVries announced a new maritime-law duty-to-warn standard after briefing, the court required supplemental briefing before deciding summary judgment.
• Woo v. General Electric Company (1st Division, 2017). A manufacturer generally has no duty to warn of asbestos in other makers' products used with its equipment, but a fact issue on duty exists where the evidence shows the equipment required asbestos-containing insulation, gaskets and packing to function as designed and the plaintiff was exposed to original gaskets and packing the manufacturer supplied.
• Hoffman v. General Electric Company (2nd Division, 2016). On a CR 12(b)(6) motion, facts alleged and hypothetical facts are taken as true. Hoffman's allegations could bring his claims within exceptions to Alaska's statute of repose (defective product as to GE, gross negligence as to both defendants), so there might be no conflict with Washington law and dismissal was improper.
• Estenson v. Caterpillar Inc. (1st Division, 2015). An asbestos plaintiff may prove exposure to a defendant's product by direct or circumstantial evidence and need not show inhalation of airborne fibers from that product. Causation may be shown under the substantial factor test, and a large noneconomic award is not shown to be the product of passion or prejudice by its size alone when substantial evidence supports it.
• Nelson v. Air & Liquid Systems Corporation (2014). Under maritime law, an asbestos plaintiff must show exposure to each defendant's product and that the product was a substantial factor in causing the injury. A manufacturer is not liable for replacement parts it did not place in the stream of commerce.
• Macias v. Saberhagen Holdings, Inc. (2012). The general rule that a manufacturer must be in the chain of distribution of the asbestos-containing product (Simonetta, Braaten) does not bar a failure-to-warn claim against respirator makers, because their own products, used and cleaned as intended, inherently involve asbestos exposure. The WPLA applies when substantially all exposure occurred on or after July 26, 1981.
• Stevens v. CBS Corporation (2012). Circumstantial evidence can let a jury reasonably infer that a worker was exposed to a defendant's original or replacement asbestos-containing parts. Where the facts are disputed, summary judgment is not available on causation, the government contractor defense or assumption of risk. Under maritime law, Washington substantive law applies because it does not conflict with maritime law.
• Stevens v. CBS Corporation (2012). Discovery under Rule 26 may reach equipment on the vessels the plaintiff worked on during his years of exposure, but requests for every asbestos-containing component sold to all customers over thirty years are overly broad and unduly burdensome without more than conclusory reasoning.
• Wangen v. AW Chesterton Company (1st Division, 2011). A pump manufacturer is not liable for asbestos in replacement gaskets, packing or insulation it did not manufacture or supply, and the plaintiff must show exposure to asbestos products made or supplied by that defendant. Evidence that the manufacturer specified asbestos parts did not defeat summary judgment where no authority supported liability on that basis.
• Yankee v. APV North America, Inc. (1st Division, 2011). An equipment manufacturer has no duty to warn of asbestos in replacement parts it did not make, sell or supply, and the documents offered here did not amount to specifications requiring asbestos-containing parts, so the court did not need to decide whether a specification exception exists.
• Cashman v. Pacific Scientific Company (1st Division, 2010). A party who does not object in the trial court to evidence considered on summary judgment cannot challenge its admissibility on appeal. A manufacturer has no duty to warn about asbestos insulation made by others and added later, and trial courts have broad discretion to choose a spoliation sanction short of dismissal.
• Macias v. Mine Safety Appliances Co. (2nd Division, 2010). A manufacturer outside the chain of distribution of the hazardous product (asbestos) has no duty to warn under negligence (Restatement § 388), common law strict liability (§ 402A), or the Washington Products Liability Act, even if its product is a respirator designed to protect against hazardous substances.
• Cashman v. Pacific Scientific Company (1st Division, 2009). A manufacturer owes no common law duty to warn of hazards of replacement asbestos insulation it did not make or supply, and a worker without a proper foundation cannot give opinion that materials contained asbestos; speculative circumstantial evidence of exposure to the defendant's asbestos product does not defeat summary judgment.
• Braaten v. Saberhagen Holdings (2008). Under Washington common law strict liability and negligence, a manufacturer has no duty to warn of asbestos hazards in other manufacturers' products (insulation or replacement packing and gaskets) that it did not make or supply and was not in the chain of distribution of. The plaintiff also failed to show exposure to the original packing and gaskets supplied with the defendants' products.
• Simonetta v. Viad Corporation (2008). Under Washington common law (Restatement (Second) of Torts §§ 388 and 402A), the duty to warn, in negligence and in strict liability, is limited to those in the chain of distribution of the hazardous product. A manufacturer therefore has no duty to warn of the hazards of another company's asbestos insulation used with its own product.

Wisconsin

• Carroll v. Abb, Inc. (2017). Under Wisconsin law as applied here, a manufacturer is not liable for asbestos products it did not make or distribute unless it specified asbestos replacement parts, and a plaintiff must offer evidence from which a jury could infer without speculation that the defendant's asbestos products were a substantial factor in the injury.
• Spychalla v. Boeing Aerospace Operations Inc. (2015). The court did not decide whether Wisconsin recognizes the bare metal defense. Even assuming it does, it would not apply to makers of completed aircraft and engines when unrebutted expert evidence showed they specified asbestos-containing replacement parts. Issues already decided by the MDL court on product identification and causation would not be reopened.