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From Products Liability Law Daily, December 31, 2014

Bare metal defense protects pump maker from liability for asbestos-containing components

By Pamela C. Maloney, J.D.

Predicting that the Supreme Court of South Carolina would adopt and apply the “bare metal defense” in cases involving injuries from exposure to component products containing asbestos, a federal district court found that the manufacturer of pumps used at a pulp and paper mill was not liable for a worker’s death from mesothelioma (Sparkman v. A.W. Chesterton Co., December 29, 2014, Norton, D.).

Background. A worker at a pulp and paper mill, Elijah J. Sparkman, was diagnosed with and died from mesothelioma, which his estate alleged was a result of prolonged exposure to asbestos while working with and around asbestos-containing pumps manufactured by Goulds Pumps Inc. Goulds moved for summary judgment on the estate’s breach of implied warranty, breach of post-sale duty to warn, false representation, negligence, recklessness, and strict liability in tort claims, arguing that there was no evidence that the worker had been exposed to an asbestos-containing product that Goulds had placed into the stream of commerce and that it was not responsible for asbestos-containing components that it did not manufacture or supply.

Causation in asbestos claims. The court began its analysis of the issues in this case by clarifying that in order to establish an actionable claim for workplace asbestos exposure, the worker must establish sufficient proximate cause between the injury and exposure to asbestos from a particular product under the frequency, regularity, and proximity test established by the U.S. Court of Appeals for the Fourth Circuit. The court rejected the estate’s attempt to persuade the court that a more relaxed causation standard applied in mesothelioma cases because the disease developed after only minor exposures to asbestos fibers.

Proof of exposure to asbestos. Testimony presented by the deceased worker’s co-workers provided sufficient evidence that in the course of his duties as an operator at the mill, the worker was exposed to dust when he moved insulation on Goulds pumps out of the way to turn pump valves. He was also exposed to asbestos-containing gaskets in the pumps when he worked around the millwrights who were responsible for replacing the gaskets on the pumps. There was also evidence that Goulds had supplied some asbestos-containing gaskets and packing with its pumps until the mid-1980s and that Goulds specified the use of blue African asbestos for packing and gaskets used in its pumps. Thus, there was sufficient evidence on the record from which a reasonable jury could conclude that the worker had been exposed to asbestos-containing insulation and gaskets used in connection with Goulds pumps on a frequent, regular, and proximate basis and that, as such, the exposure to these products was a substantial cause in the development of his mesothelioma.

Bare metal defense. However, there was no evidence that the insulation and gaskets to which the worker had been exposed were manufactured or supplied by Goulds. To counter this lack of evidence, the worker’s estate argued that because Goulds knew the asbestos-containing components originally supplied with its pumps were hazardous and that asbestos-containing replacement components would be used with its pumps, Goulds had a duty to warn consumers of the dangers of asbestos inherent in its pumps.

The court rejected this argument finding that Goulds could be liable for the worker’s exposure to asbestos-containing component products only if South Carolina law does not recognize the “bare metal defense.” The bare metal defense provides that a manufacturer has no duty to warn about potential dangers from exposure to a part of its product if the manufacturer did not make or distribute the part. Courts that have adopted the defense require plaintiffs to prove exposure to a specific product made by a specific company during a time period that would merit a finding of causation.

Noting that the validity of the bare metal defense in asbestos cases had not yet been addressed by an appellate court in South Carolina, the district court concluded that a review of products liability law in the state did not point directly for or against recognition of the defense. However, the rationale for strict liability under South Carolina products liability law and the persuasive weight of authority from other jurisdictions that have adopted the bare metal defense compelled the district court to conclude that the South Carolina Supreme Court would side with the majority of courts in finding that Goulds had no duty to warn about potential dangers from exposure to parts of its product which it did not manufacture or supply. Thus, Goulds could not be liable for the worker’s exposure to asbestos in components it did not manufacture or supply.

The case is No. 2:12-cv-02957-DCN.

Attorneys: John Eugene Herrick (Motley Rice) for Terrence J. Sparkman. Moffatt Grier McDonald (Haynsworth Sinkler Boyd) for Goulds Pumps Inc.

Companies: Goulds Pumps Inc.

MainStory: TopStory DefensesLiabilityNews SCLIssuesNews AsbestosNews SouthCarolinaNews

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