Governo Law Firm attorneys David M. Governo and Corey M. Dennis published an article entitled "Replacement Components Defense in Massachusetts Asbestos Litigation" in The National Forum for Environmental & Toxic Tort Issues (FETTI) Summer/Fall 2012 Case Law Update Newsletter.
The article discusses the "replacement components" or "bare metal" defense, under which an equipment manufacturer cannot be held liable for asbestos-containing external insulation or replacement components that it did not supply. The applicability of this defense in Massachusetts is the subject of an appeal currently pending in the Massachusetts Appeals Court, Whiting v. CBS Corporation.
In December 2011, our firm prevailed on a motion for summary judgment on behalf of a valve manufacturer in a Massachusetts Superior Court wrongful death asbestos action, Whiting v. Alfa Laval, Inc. et al., No. 08-1825 & 08-1846 (Mass. Super. Ct. Dec. 19, 2011). The plaintiff in this case alleged that her husband's mesothelioma and subsequent death were caused by his exposure to asbestos-containing products while he served in the Navy. Although the Whiting Court did not issue a written decision, the primary ground argued in the Superior Court was the "replacement components" or "bare metal" defense, under which an equipment manufacturer cannot be liable for external insulation or replacement components that it did not supply. The Court had previously granted summary judgment on this ground in July 2010, but had not revisited the issue since that time. See Dombrowski v. Alfa Laval, Inc., No. CV 08-1938, 2010 WL 4168848 (Mass. Super. Ct. July 1, 2010) (holding defendant cannot be held liable for replacement gaskets and packing or external insulation that it did not supply, as this would create a legal duty "that would exceed all reasonable limits").
In January of this year, plaintiff Whiting filed a notice of appeal from summary judgments entered in favor of two other defendants, but did not appeal the judgment entered in favor of our client. The Massachusetts Appeals Court could address and affirm on any ground raised in the defendants' motions, including the replacement components defense, the sophisticated user defense, or the government contractor defense. However, we expect that the Court will address the replacement components defense on appeal. If so, the California Supreme Court's recent landmark decision in O'Neil v. Crane Co., 53 Cal. 4th 335 (Jan. 12, 2012), will likely be influential.
In O'Neil, the California Supreme Court held that a product manufacturer cannot be held liable for harm caused by another manufacturer's product unless the manufacturer's own product contributed substantially to the harm or it participated substantially in creating a harmful combined use of the products. In so holding, the Court rejected the argument that a manufacturer has a duty to prevent foreseeable harm caused by adjacent products or replacement parts that were made by others and used in conjunction with such a product. The influence of the O'Neil decision is apparent, as it has already been relied on in several significant decisions applying similar reasoning. See Conner v. Alfa Laval, Inc., MDL-875, 2012 WL 288364, *8 (E.D. Pa. Feb. 1, 2012) (adopting replacement components defense under maritime law in asbestos products liability multidistrict litigation case); Maxton v. W. States Metals, 203 Cal. App. 4th 81, 95 (2012) (holding manufacturer of raw metal materials could not be held liable under components parts defense where materials were used to manufacture other products); Barker v. Hennessy Indus., Inc., 206 Cal. App. 4th 140, 143, 158 (2012) (holding manufacturer of non-asbestos-containing brake shoe arcing machines had no duty with respect to asbestos-containing products used with machines); see also Campbell v. Ford Motor Co., 206 Cal. App. 4th 15, 32 (2012).
It is difficult to predict the outcome of the Whiting appeal at this point, given that there is little Massachusetts appellate authority on these issues and none addressing the replacement components defense. Nevertheless, regardless of which issues are taken up on appeal, we expect that this appeal will have a substantial impact on the Massachusetts Asbestos Litigation.