The tide might be turning regarding what is known as the “bare metal” defense that turbine, boiler, valves, and pump manufacturers have traditionally used to avoid responsibility for injuries people have suffered due to workplace exposure to asbestos, according to an article published in the September 2016 issue of the Harris Martin publication Asbestos by Simmons Hanly Conroy Shareholders Dan Blouin and Ryan Kiwala.
What is Bare Metal Defense?
The “bare metal” defense is based on the belief that a manufacturer should not be held responsible for a product it did not make or sell, and as a general rule, should only be liable for dangers that it created.
The flaw in this thinking is in the assumption that a manufacturer only plays a role in creating an asbestos hazard when the asbestos passes through that manufacturer’s hands.
However, courts have historically taken a broader view, holding that manufacturer can also play a role in creating a hazard when it recommends or directs consumers to use dangerous products or materials from a third party in combination with the manufacturer’s product, or when the manufacturer’s product is designed in such a way that the use of a dangerous material is necessary – either physically or practically – to the proper functioning of the manufacturer’s product.
NY Court Finds Manufacturer Has Duty to Warn
In June 2016, the New York Court of Appeals ruled that a manufacturer has a duty to warn consumers of inherent danger when the manufacturer’s product includes asbestos-containing products produced by another company. When a manufacturer makes a product that cannot be used without another product because of design, mechanics, or a lack of economically feasible alternatives, the manufacturer plays a role, even indirectly, for harm caused by the third-party product.
Recent courts are increasingly not adopting the bare metal defense line of thinking, instead assigning liability on a case-by-case basis, depending on the defendant’s degree of connection to the asbestos. This trend could potentially provide those injured by asbestos exposure with a successful way to fight the bare metal defense and greatly improve their chances of getting compensation for their injuries.