[co-author: Peter Lucier]
In June, the New Jersey Supreme Court affirmed a 2018 Appellate Division ruling holding that manufacturers and distributors can be held strictly liable for damages caused by third party replacement parts containing asbestos.
Whelan v. Armstrong International, Inc.
Arthur Whelan was a career tradesman, spending over 40 years working as a commercial plumber and auto-mechanic. Whelan worked on steam traps, installed and maintained boilers, and also replaced brake drums, and steam valves. During the course of that work, he often replaced asbestos-containing components on products with replacement parts from third parties, such as rope gaskets. Or, he was exposed to replaceable asbestos-containing parts, such as cleaning the firebox of a boiler. When working on a boiler, Whelan was not sure if he was dealing with original asbestos products produced by the manufacturer of the boiler, or if the insulation or gasket had been replaced by a third-party product.
Whelan could not identify with specificity the manufacturer of the products he was exposed to. Because of this, the trial court dismissed his complaint. Whelan appealed. The Appellate Division overturned the trial court in 2018. This allowed the case to move forward under a new theory of liability. Specifically, the Appellate Division determined not only that defendants had a duty to warn plaintiffs about the dangers of asbestos-containing components even if they did not manufacture component parts, but also that defendants can be held strictly liable for the failure to do so, provided a plaintiff suffered sufficient exposure to the replacement components to contribute to his or her disease. See Whelan v. Armstrong Int’l, Inc.
The New Jersey Supreme Court’s decision to affirm the Appellate Division ruling that manufacturers can be liable for third party replacement parts, was based on a lack of distinction. Distinction “between the original asbestos-containing components and the asbestos-containing replacement components necessary for the continued operation of defendants’ integrated products…[and] defendants who manufacture or distribute products that, by their design, require the replacement of asbestos-containing components with other asbestos-containing components during the ordinary life of the product have a duty to give adequate warnings to the ultimate user”. The ruling further erodes the “bare metal” defense. The theory holds that a manufacturer who produces the “bare metal” of a product, but not the insulation or packing, is not liable for damages caused by asbestos in component parts which the manufacturer did not produce.
Prior to Whelan, manufacturers were insulated from liability for injuries caused by exposure to third party component parts. Post-Whelan, manufacturers and distributors may be liable if a plaintiff can prove:
- the manufacturers or distributors incorporated asbestos-containing components in their original products
- the asbestos-containing components were integral to the product and necessary for it to function
- routine maintenance of the product required replacing the original asbestos-containing components with similar asbestos-containing components
- the exposure to the asbestos-containing components or replacement components was a substantial factor in causing or exacerbating the plaintiff’s disease
It is the fourth element that departs from prior law. A New Jersey Superior Court panel previously held in Hughes v. A.W. Chesterton Co. that manufacturers had a duty to warn users of dangers of replacement parts, but still required a showing of medical causation from the product manufacturer. Put differently, while a plaintiff may show that the manufacturer breached a duty owed to plaintiff by selling an asbestos-containing product without an adequate warning, the plaintiff still must show that exposure to that defendant’s asbestos-containing product was a substantial contributing factor in causing the disease. Post-Whelan, a plaintiff no longer needs to show sufficient exposure to that defendant’s asbestos-containing product; exposure to replacement or component parts for the manufacturer’s asbestos-containing product is sufficient.
The Whelan decision will likely not have an immediate impact on asbestos cases in New Jersey. New Jersey courts have been following the Appellate Division analysis since it was published in 2018. However, with the New Jersey Supreme Court’s stamp of approval, this new take on duty to warn and medical causation substantially lowers the burden for plaintiffs to establish cases against asbestos manufacturers and distributors.