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From Products Liability Law Daily, February 23, 2015

Federal court backtracks on use of bare metal defense in South Carolina

By Pamela C. Maloney, J.D.

Finding that there had been an intervening change in controlling law regarding South Carolina’s adoption of the bare metal defense, a federal district court in that state granted an estate’s motion to reconsider the court’s earlier decision in which it predicted that the South Carolina Supreme Court would adopt and apply the defense in cases involving injuries from exposure to component products containing asbestos. According to the court, a decision by a South Carolina state trial court, which came to its attention after it had prepared its earlier order, had rejected the bare metal defense (Sparkman v. Goulds Pumps, Inc., February 19, 2015, Norton, D.).

Background. A worker at a pulp and paper mill, Elijah J. Sparkman, had been 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.

In its December 29 ruling on Goulds’ motion for summary judgment [see Products Liability Law Daily’s analysis], the federal district court predicted 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, and found that Goulds had no duty to warn consumers about potential dangers from exposure to parts of its product which it did not manufacture or supply. The district court also found that the estate failed to establish that the worker had been exposed to asbestos-containing products manufactured or supplied by Goulds. The estate moved for reconsideration, arguing that the order was inconsistent with the December 10, 2014, decision by a South Carolina Court of Common Pleas in Garvin v. Agco Corp., which indicated that the South Carolina Supreme Court would not adopt the bare metal defense, but instead would impose a duty to warn on manufacturers in these circumstances.

Intervening change in controlling law. The federal court noted that a motion for reconsideration will be granted for a limited number of reasons only, including to correct a clear error of law or to prevent manifest injustice. Having reviewed the Garvin decision, which was not available to the court when it rendered its initial decision in this matter, the district court concluded that ignoring that opinion would amount to manifest injustice.

The court in Garvin was presented with the same argument in favor of adoption of the bare metal defense as was put forward by Goulds in this case. However, Judge Garrison Hill—the administrative judge for asbestos litigation in the circuit courts of South Carolina—wrote in Garvin that the “term ‘bare metal’ is misleading and, as used here, is semantic advocacy rather than a useful doctrinal description.” According to Judge Hill, there was no evidence that the manufacturer, Crane, had sold “bare metal” valves or pumps. Instead, Crane placed into the stream of commerce products that not only contained asbestos, but specified that they be replaced by asbestos parts. Thus, the products were defective when they left Crane’s hands and remained defective and unreasonably dangerous when its specifications were heeded by the owner/user of the product as well as by another manufacturer when following Crane’s specifications for replacement parts.

Similarly, Goulds also specified use of blue African asbestos for packing and gaskets used in its pumps and for replacements. Goulds also sold some centrifugal pumps with asbestos-containing casing gaskets and stuffing box packing. In light of the factual similarity between the Garvin case and the persuasive weight of Judge Hill’s opinion, the federal court concluded that the South Carolina Supreme Court would reject the bare metal defense and find that a manufacturer had a duty to warn about potential dangers from exposure to asbestos in parts of its product which it did not manufacture or supply. Therefore, the court granted the estate’s motion to reconsider and denied Goulds’ motion for summary judgment.

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. David Michael Burkoff (Hunter Maclean Exley and Dunn), and Erik David Nadolink (Wheeler Trigg O'Donnell LLP) for Research-Cottrell, Inc.

Companies: Goulds Pumps Inc.; Research-Cottrell, Inc.

MainStory: TopStory DefensesLiabilityNews WarningsNews SCLIssuesNews AsbestosNews SouthCarolinaNews

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