Presented by the Asbestos and Mass Tort Litigation Practice Group

New Jersey Supreme Court Further Erodes Bare Metal Defense

A product that includes asbestos-containing component parts must provide an adequate warning to end users about the dangers of the original asbestos-containing component parts. Additionally, that product must also provide an adequate warning about the danger of any replacement asbestos-containing component part—even if those replacement parts were made or sold by a third party. If the manufacturer fails to warn about the danger of the original AND the replacement asbestos-containing component part, the manufacturer may be found liable for injuries suffered by the user.

In asbestos litigation, this issue has often been described as the “bare metal” or “component part” doctrine. Equipment manufacturers contend that they should not be liable for replacement component parts that they neither made nor supplied. Product liability law has long held that a manufacturer should be liable only for products which they have manufactured or distributed.

On June 3, 2020, the New Jersey Supreme Court continued the recent trend to extend strict product liability for failure to warn onto the manufacturer of a product that requires the use of asbestos-containing replacement component parts made or supplied by another company. In Whelan v. Armstrong International (A-40/41/42/43/44/45/46-18) (081810) (decided June 3, 2020), the court held that manufacturers and distributors can be found strictly liable for failure to warn of the dangers of their products, including their asbestos-containing components and a third-party’s replacement components, provided a plaintiff can prove the following:

  1. the manufacturer or distributors incorporated asbestos-containing components in their original products;
  2. the asbestos-containing components were integral to the product and necessary for it to function;
  3. routine maintenance of the product required replacing the original asbestos-containing components with similar asbestos-containing components; and
  4. the exposure to the asbestos-containing components or replacement components was a substantial factor in causing or exacerbating the plaintiff’s disease. Whelan, (slip opinion p.9).

The court noted: “Our evolving common law jurisprudence in the field of failure-to-warn, strict-liability cases involving asbestos-containing products leads to a result that aligns with similar decisions rendered by the United States Supreme Court, the New York Court of Appeals, and the Maryland Court of Appeals, citing to the recent decisions striking the ‘bare metal’ defense—In re NYC Asbestos Litig., 59 N.E.3d 458, 474-75 (N.Y. 2016); May v. Air & Liquid Systemens Corp., 129 A.3d 984, 998 (Md. 2015) and Air & Liquid Systems Corp. v. DeVries, 586 U.S. ____, 139 S.Ct. 986, 994-995 (2019).”

The court concluded: “Imposing a duty to warn about the dangers of asbestos-containing replacement components, regardless of who manufactured those components, adds hardly any further burden or cost to the product manufacturers, who already have a duty to warn of the dangers of the original asbestos-containing components.” Whelan, (slip opinion, p. 39).

This decision does not significantly alter the landscape in New Jersey asbestos litigation since it affirmed the holding and rationale of the New Jersey Appellate Division from the underlying Appellate Division opinion. The dedicated judge handling all asbestos litigation in New Jersey has been following the Appellate Division holding and rationale on this issue since 2018. The New Jersey Supreme Court’s affirmation of that holding and rationale merely confirms that this is now the law of the land in the great state of New Jersey.


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