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"Bare metal defense" may not protect against asbestos claims

In a ruling that could affect asbestos claims in North Carolina and several other states, a federal district judge has rejected the contention that manufacturers of products that contain no asbestos cannot be liable if the product is later combined with asbestos-containing products. For years, manufacturers of metal parts that did not contain asbestos argued that they were not liable for claims resulting from the subsequent combination of their products with one or more products that contained asbestos fibers. This defense became known as the "bare metal defense."

The recent ruling was made by a federal judge assigned to handle a large number of asbestos claims in eastern Pennsylvania. Because the ruling was made in the course of a multi-district case, that is, a case involving plaintiffs who brought their product liability lawsuits in different judicial districts, it may affect cases pending in other states, including North Carolina. The judge ruled that a manufacturer whose product contained no asbestos could nevertheless be held liable based on principles of negligence if the plaintiff can show that the manufacturer knew that its product would later be combined with an asbestos-containing product, that the manufacturer knew about the dangers of asbestos, and that the manufacturer failed to provide an adequate warning of those dangers.

The judge was attempting to predict how the Pennsylvania Supreme Court would rule on the issue. The judge noted that courts across the country appear to be split on whether the bare metal defense can be used in asbestos cases. The federal judge relied on a Pennsylvania Supreme Court decision holding that a manufacturer can face liability under both strict liability and negligence theories.

This ruling could be appealed or limited by subsequent decisions. Nevertheless, it will provide significant assistance to persons who are attempting to recover damages from illnesses such asbestosis and mesothelioma that are caused almost exclusively by exposure to airborne asbestos fibers.

Source: Legal Intelligencer, "Manufacturers of Asbestos-Free Products May Still Face Claims," Saranac Hale Spencer, June 1, 2015

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