In the past few years, the bare metal defense has seen inconsistent and nebulous holdings around the nation. The bare metal defense vindicates an asbestos defendant that manufactured a product that was made of only metal without asbestos but later utilized asbestos components within its products. The defense is commonly seen amongst pump and valve manufacturers and also in United States Navy cases, thereby implicating maritime law. Examples of trial courts granting summary judgment for the defense only to be overturned on appeal are readily available in the United States. Issues of foreseeability of use of asbestos components after the fact or whether the equipment in question couldn’t function without asbestos have also been raised on appeal. State court decisions are prime examples of the sliding scale for the use or nonuse of the defense, i.e., some apply it while others do not.

Representative bare metal defense cases

A recent New Jersey Appellate Court reversed the trial court in a mesothelioma case where the plaintiff worked as a plumber and auto mechanic. In that matter, the plaintiff sued several defendants alleging that the bulk of his work included replacement of asbestos within products like boilers, valves, and steam equipment. The defendants successfully moved for summary judgment arguing that they should not be held strictly liable for asbestos containing replacement materials that they did not manufacture or place into the stream of commerce. The victory was short lived when the appellate court reversed and issued an opinion striking down the bare metal defense. In its opinion, the court stated that a duty to warn is imposed upon the manufacturer’s product when the replacement part is necessary for it to function. That duty to warn extends to the risk created by the replacement part according to the court. The court went as far as to state that a sustainably similar replacement part is a foreseeable alteration.

In another case involving the bare metal defense, the U.S. District Court for the Northern District of California denied the bare metal defense on far less than a standard of foreseeability. The plaintiff’s decedent, Robert Hilt, sued multiple defendants, including Foster Wheeler for boilers allegedly encountered by Hilt on Navy ships. The court reversed summary judgment thereby denying the bare metal defense because “Plaintiffs have proffered a declaration from Charles Ay, who concluded that it was ‘more likely than not that [Hilt] was exposed to and inhaled respirable asbestos fibers in concentrations orders of magnitude above background or ambient levels from asbestos-containing refractory original to Foster boilers.” According to the court, this declaration created a genuine issue of material fact. Oddly, no discussion concerning foreseeability of use was found in this maritime opinion.

The U.S. Supreme Court struck some guidance on the bare metal defense in its opinion in Air & Liquid Systems, Inc. v. Devries (2019). The court delineated the three approaches taken by federal circuits with respect to the bare metal defense. The first approach, known as the foreseeability rule, espouses that a manufacturer may be liable when it was foreseeable that its product would be used with another product or part (even where the product did not require use of or incorporation of the other product or part). The second approach, the bare metal defense, exonerates a manufacturer who did not make, sell or distribute the part or incorporate the part even if the manufacturer knew the integrated product was likely to be dangerous. The third approach imposes a duty to warn when the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended use. Obviously, the plaintiffs pushed for the court to adopt a foreseeability standard, which the court rejected and commented that would “sweep too broadly.” Of interest, the court noted the “disagreement of the Courts of Appeals about the validity of the bare-metal defense under maritime law.” In its holding, the court found that in a maritime case, a product manufacturer has a duty to warn when:

  1. Its product requires incorporation of a part
  2. The manufacturer knows or has reason to know that the integrated part is likely to be dangerous for its intended uses
  3. The manufacturer has no reason to believe that the product’s users will realize that danger

The opinion certainly guides federal courts on the standard to apply a bare metal defense but only in the context of maritime cases. A strong dissent followed the opinion, highlighting some of the complications from the opinion. Specifically, “where is the line between asbestos and non-asbestos with respect to liability?” Highlights from the dissent include: “Would a company that sells smartphone cases have to warn about the risk of exposure to cell phone radiation? Would a car maker have to warn about the risks of improperly stored antifreeze? Would a manufacturer of flashlights have to warn about the risks associated with leaking batteries? Would a seller of hot dog buns have to warn about the health risks of consuming processed meat?”

With a dissent like that, the bare metal defense may very well be in its infancy.