Illinois District Court Rejects Strict Application of the “Bare Metal” Asbestos Defense

by Wilson Elser
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On February 14, 2014, the U.S. District Court for the Northern District of Illinois, in Quirin v. Lorillard Tobacco Company, et al.,  rejected strict application of the “bare metal” defense, under which defendants cannot be held liable for the dangers of asbestos-containing parts supplied by third parties. The court instead favored a “middle path” approach, holding that a defendant owes a duty to warn a plaintiff of harm from asbestos-containing products manufactured by third parties where the defendant’s product required asbestos-containing components and where that material would necessarily be replaced with asbestos-containing material “whether supplied by the original manufacturer or someone else.”

Background
Plaintiff filed suit against Crane Co. (Crane) and others alleging that her husband, Ronald J. Quirin, developed and died from mesothelioma as a result of exposure to asbestos-containing materials during his naval service aboard the USS Tolovana from May 1954 to August 1957. During his service, Mr. Quirin removed or repaired Crane Co. valves when they no longer sealed properly. Evidence suggested that Crane was the main supplier of industrial valves for the USS Tolovana.

Crane’s valves were made of metal and did not contain asbestos fibers. Evidence presented indicated that at least some of the valves required asbestos-containing components to function properly in high heat applications. Evidence also suggested that Crane was aware that its valves would be used in these high heat applications and provided specifications for such use. There was no evidence that Crane manufactured the needed asbestos-containing components, but Crane separately sold asbestos-containing gaskets and packing manufactured by others for use with its valves. Crane was also aware that the required gaskets and packing would be removed and replaced if worn, where the valve remained serviceable. The court considered whether Crane had a duty to warn Mr. Quirin, who performed these services, of hazards arising from other manufacturers’ products, where Crane did not supply those products.

Court Ruling
The court ruled that defendants have a duty of care under maritime law to warn a plaintiff of harm “where the defendant manufactured a product that, by necessity, contained asbestos components, where the asbestos containing material was essential to the proper functioning of the defendant’s product, and where the asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else.”

As this was an issue of first impression, the court considered the case law of other jurisdictions, finding three approaches to the question: (1) some courts have held defendants liable whenever the use of asbestos in connection with a product is foreseeable, (2) other courts have reached the opposite conclusion finding that defendants are never liable for asbestos-containing products manufactured by a third party, and (3) still other courts find that a duty exists where the use of asbestos-containing materials “was specified by a defendant, was essential to the proper functioning of the defendant’s product, or was for some other reason so inevitable that, by supplying the product, the defendant was responsible for introducing asbestos into the environment at issue.”

The court adopted the third approach, reasoning this was the “middle path.”

Applying the “middle path” approach to the facts at issue, the court determined that the record contained sufficient evidence that a reasonable jury could conclude that “it was not just foreseeable, but inevitable, that the product would subject those working with it to the possible hazards of asbestos exposure.” The jury could, therefore, conclude that Crane owed a duty to warn Mr. Quirin about asbestos exposure from the gaskets and packing used with its valves, even if it did not supply or manufacture the gaskets and packing.

In applying the same approach, the court concluded that Crane owed no duty to warn Mr. Quirin about the dangers of asbestos-containing insulation, pipe coverings or cement. Crane did not supply the original insulation or other materials used with the piping systems into which Crane valves where incorporated. Also, there is no evidence that Crane specified that its valves needed to be used with such asbestos-containing materials to properly function.

In holding that defendants have a duty to warn of foreseeable harm associated with the use of their products, the court denied Crane’s motion for summary judgment and allowed the plaintiff to proceed on negligent failure to warn as well as design and manufacture theories of liability.

Comment
While other states have adopted and discussed the “bare metal” defense, it has not been addressed under Illinois law. Quirin was decided under maritime law, but the court suggested that whether maritime law or Illinois law applied may “be a distinction without difference.”

As Quirin is a federal court decision applying maritime law, it is not binding precedent in Illinois. Rather, like the case law from other jurisdictions, as referenced by the court in Quirin the holding is only persuasive authority. Therefore:

  • Plaintiffs’ counsel will likely cite Quirin in an attempt to persuade Illinois courts to broaden the duty of defendants to warn of hazards from asbestos when it is foreseeable that asbestos-containing products will be incorporated into the defendants’ products.
  • Defendants should stress that the Quirin court accepts the “bare metal” defense, and creates only a narrow exception when the defendant manufactures a product that requires incorporation of asbestos-containing components into the product to properly function. Defendants can emphasize that the Quirin holding is limited to the facts of the case and should not be broadened.

Written by:

Wilson Elser
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