Massachusetts Appeals Court to Address Replacement Components Defense in Whiting v. CBS Corporation Asbestos Case


In December of last year, Governo Law Firm prevailed on a motion for summary judgment in favor of our client, a valve manufacturer, in Willis Whiting v. Alfa Laval, Inc., et al. (No. 08-1825 & 08-1846), a Massachusetts Superior Court wrongful death asbestos action. The plaintiff claimed her husband died from mesothelioma due to exposure to asbestos-containing products while serving in the Navy. Shortly thereafter, the plaintiff appealed from summary judgments entered in favor of two other defendants, but did not appeal the judgment entered in favor of our client.

Recently, the plaintiff-appellant filed her appellate brief. The defendants-appellees then filed appellate briefs, and several organizations (the U.S. Chamber of Commerce, the Massachusetts Chamber of Commerce, the American Insurance Association, the American Tort Reform Association, the Coalition for Litigation Justice, and the NFIB Small Business Legal Center) also filed an amicus curiae brief in support of the defendants-appellees.

The primary issue before the Massachusetts Appeals Court is whether a manufacturer of equipment (e.g., valves and turbines) has a duty to warn of the dangers arising from asbestos-containing replacement components or external insulation associated with the equipment that it neither manufactured nor supplied. The defendants and the amici argue that the trial court properly granted summary judgment because imposing a legal duty in these circumstances would result in an unwarranted expansion of product liability law and would contravene established public policy in Massachusetts. They note that the majority of courts that have addressed this issue nationwide, including the California Supreme Court and the Washington Supreme Court, have ruled in favor of defendants, many of them adopting what is known as the "replacement components" or "bare metal" defense. See O'Neil v. Crane Co., 266 P.3d 987 (Cal. 2012); Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008); Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008).

The defendants also argue that summary judgment should be affirmed based on the applicability of the "sophisticated user" and "government contractor" defenses. The sophisticated user defense relieves a defendant of liability for a failure to warn where the end user or an intermediate party already knows of the hazards associated with the use of a product. In contrast, the government contractor defense applies where the Navy reviewed and approved reasonably precise specifications for a manufacturer's equipment, the equipment conformed to those specifications, and the government knew of the dangers associated with the use of the equipment.

We anticipate that oral argument in the Whiting appeal will be heard in the fall and that the Appeals Court's decision will be issued in early 2013. While it is difficult to predict the outcome of the Whiting appeal at this point, it will likely have important repercussions on both the Massachusetts Asbestos Litigation and Massachusetts product liability law generally.

For more information regarding this case or asbestos, toxic tort, and product liability litigation in general, please contact David Governo ([email protected]) or Corey Dennis ([email protected]).