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From Products Liability Law Daily, September 13, 2013

Bare metal defense bars liability on most of worker’s asbestos injury claims

By John W. Scanlan, J.D.

A district court should find that a steam generator manufacturer and a second manufacturer of valves were not liable to a worker who developed mesothelioma because they were protected by the bare metal defense, but claims against the second manufacturer related to asbestos exposure from its pumps should proceed to trial, a U.S. Magistrate Judge recommended (Dalton v. 3M Co., September 12, 2013, Fallon, S.). The court declined to adopt the MDL court’s recommendation to transfer the case to a court in Mississippi, but it agreed with the MDL court’s determination that Mississippi law applied to the case.

Background. Tommy Carroll Dalton worked at Ingalls Shipyard in Mississippi from 1958 to 2000. After Dalton was diagnosed with mesothelioma, he filed a personal injury suit against several defendants, alleging that he developed his mesothelioma as a result of exposure during his career at Ingalls to asbestos-containing products, specifically while working in its Quality Assurance Department from 1959 to 1969. The case, which was brought in Delaware state court, was removed to federal court and then transferred to the U.S. District Court for the Eastern District of Pennsylvania, which handles the Multi-District Litigation Asbestos Docket. The defendants moved for summary judgment, which the MDL court denied, after which it further determined that Mississippi law should apply and then remanded the case back to the U.S. District Court in the District of Delaware with a recommendation that it be transferred to a court in Mississippi because the defendants had raised a defense that was an unsettled issue under that state’s law. After the other defendants settled with the plaintiffs, Crane Company and Foster Wheeler Energy Corporation filed new motions for summary judgment. The district court then referred the case to a magistrate judge to manage pretrial proceedings.

Dalton had identified Foster Wheeler as a brand of boilers present at Ingalls, which arrived bare and had external asbestos insulation applied after installation. He also identified Crane as a brand of pumps and valves to which external asbestos installation was added after installation. Crane did not supply the asbestos insulation for its pumps and valves. The pumps’ installation process, and the removal and replacement of their internal gaskets, generated asbestos dust.

“Bare metal defense.” The Supreme Court of Mississippi would likely find that manufacturers may not be held liable for injuries caused by asbestos-containing products they did not manufacture or supply. The district court was required to predict how the state high court would rule because the “bare metal defense,” also called the “component parts defense,” was still unsettled in Mississippi. The Mississippi Products Liability Act (MPLA) provides that no material change in a product may have occurred after leaving the control of the manufacturer. Applying the Restatement (Second) of Torts, which Mississippi follows, Mississippi courts have found that strict liability caused by a defective product should not be imposed on someone who neither manufactures nor sells the products. Mississippi also does not recognize a post-sale duty to warn—only of dangers known as of the time the product leaves the control of the manufacturer or seller. Based on current product liability law in Mississippi, the court concluded that the state would likely adopt this defense. Furthermore, there was additional persuasive weight from the fact that the majority of jurisdictions that have considered this issue have adopted it.

Steam generators. Summary judgment was recommended by the magistrate judge on Foster Wheeler’s motion because there were no genuine issues of material fact on whether the company supplied the asbestos insulation to which the worker had been exposed. The worker’s asbestos exposure was limited to the external insulation on the company’s boilers, but there was no evidence that the company had supplied this insulation and there was evidence that it had supplied only internal insulation. Under the bare metal defense, the company could not be held liable for injuries caused by products it did not supply. In addition, while the worker asserted that the company produced design manuals and sheet lists specifying the use of asbestos insulation on its boilers, testimony showed that the manuals and lists were not the company’s internal specifications but described third-party products generally available at that time, and that the company’s boilers were not normally insulated externally.

Pumps/valves. Summary judgment was recommended on the claims regarding Crane’s valves because the worker did not establish that the company designed its valves to require external asbestos insulation. Catalogs allegedly produced by the company that pictured the use of asbestos components inside the valves were undated and the worker did not assert that the valves in the catalogs were the same valves with which he had worked. Furthermore, all the asbestos components in the catalog were internal insulation, and there was no evidence that the company required or recommended external insulation. However, summary judgment was not recommended on the claims regarding asbestos-containing gaskets and packing in Crane pumps. The worker presented evidence that he was exposed to the original internal asbestos-containing gaskets and packing that Crane supplied, and he was present during the repair process during which asbestos dust was generated; therefore, there was a genuine issue of material fact as to Crane’s liability for the worker’s mesothelioma from exposure to asbestos related to the company’s pumps.

The case number is 10-113-SLR-SRF.

Attorneys: Michael L. Sensor (Perry & Sensor) for Tommy Carroll Dalton. Nicholas E. Skiles (Swartz Campbell LLC) for Crane Co. Beth E. Valocchi (Swartz Campbell LLC), Brian Lucian Kasprzak and Donald Robert Kinsley (Marks, O'Neill, O'Brien, Doherty & Kelly, P.C.) for Foster Wheeler Energy Corporation.

Companies: Crane Company; Foster Wheeler Energy Corporation

MainStory: TopStory SCLIssuesNews DefensesLiabilityNews AsbestosNews DelawareNews MississippiNews

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