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Mesothelioma Litigation: Battling the Bare Metal Defense

The so-called “bare metal defense” is gaining traction in mass tort asbestos actions throughout the country.
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Mesothelioma litigation defendants are finding that in some cases, they can successfully argue they should not be held responsible for damages caused by asbestos-containing elements of their product, because they did not manufacture or distribute those specific elements. They assert no duty to warn with respect to a third-party’s asbestos-containing insulation or replacement components.
Our
New England mesothelioma lawyers
recognize the problem with this argument is that the asbestos-containing elements of those products were considered essential. To assert that the defendants didn’t know those parts of their product contained asbestos or that the asbestos wasn’t dangerous is a serious stretch, and one that allows culpable manufacturers to escape responsibility for the irreparable harm caused to so many people.

Unfortunately, some courts have been buying it. In Massachusetts, a Superior Court judge overseeing the case of Whiting v. Alfa Laval Inc. granted a summary judgment to two defendants in a case where a plaintiff widow alleged her husband had died due to exposure to asbestos-contaminated products while in the Navy. The defendant, in that case a manufacturer of valves and turbines used on Navy ships, asserted it had no duty to warn of the potential dangers arising from equipment that it neither manufactured nor supplied. Defendants cited favorable rulings by both the California and Washington Supreme courts.

The plaintiff appealed, but the appellate court affirmed.

That means that future asbestos plaintiffs in Massachusetts will have a tougher time securing a settlement or verdict against certain plaintiffs, but that doesn’t not mean the claims won’t ultimately be won.

More recently in Philadelphia, the National Asbestos Products Liability Multidistrict Litigation Court remanded the asbestos lawsuit of a deceased carpenter’s widow back to an Illinois federal court to determine whether that state recognizes the bare metal defense.

The deceased had been a carpenter between 1971 and 1984, and the claim alleges he was exposed to asbestos-containing turbines and switchgear at a Texaco refinery in Illinois, which ultimately lead to his 2002 death from bilateral asbestos-related pleural disease and lung cancer.

A summary judgement was awarded to the defense, also on the grounds of a “bare metal defense.” However, the appellate judge ruled that there was enough conflicting evidence and witness credibility issues for the matter to be heard by a jury. But first, he wants to know whether state courts will allow the defense to proceed with a bare metal defense.

Employees for the defense testified that the turbines were typically sold without thermal asbestos-containing insulation, and that this element was supplied later by a third party.

However, the plaintiff alleges that the asbestos dust went flying whenever electricians had to blow out the switchgear with compressed air. This put everyone in close proximity – including the decedent – at risk. The fact is that all switchgear in industrial and large commercial settings from 1945 into the early 1980s contained asbestos. Decedent co-workers testified that the decedent worked within feet of electricians who drilled holes into the turbine insulating boards, which contained asbestos.

Even if the bare metal defense is recognized, the plaintiff will have the option of continuing to pursue action against the manufacturer of the insulation.

For information on filing a mesothelioma lawsuit in Boston, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.

Additional Resources:
Philly asbestos judge to let Illinois federal court decide ‘bare metal defense’ issue, March 4, 2014, By Heather Isringhausen Gvillo, Legal Newsline
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