Robert H. Wright is a Partner with Horvitz & Levy LLP in Los Angeles, CA and is the WLF Legal Pulse’s Featured Expert Contributor on Mass Torts—Asbestos.
On May 19, the Tennessee Supreme Court will hear oral argument in a case that could decide the viability of the bare metal defense under Tennessee law. In Coffman v. Armstrong International Inc., No. E2017-01985-SC-R11-CV, the court framed the issue as whether defendants have “a duty to warn of the dangers associated with the post-sale integration of asbestos-containing materials manufactured and sold by others.” The Court of Appeals, which recognized a duty, focused its analysis on the foreseeability of harm. Yet other courts addressing the same issue have considered whether public policy supports imposing on manufacturers a duty to warn of the risks of products made by others.
Mr. Coffman worked at the Tennessee Eastman chemical plant in Kingsport from 1968 until 1997. The piping at the plant contained valves, pumps, and steam traps. That equipment did not contain asbestos, but worked in tandem with asbestos-containing parts such as insulation, gaskets, and packing. Mr. Coffman was allegedly exposed to asbestos when repairing and replacing this equipment. Rather than sue the manufacturers of the asbestos-containing parts, Mr. Coffman sued the manufacturers of the valves, pumps, and steam traps.
The trial court granted summary judgment for defendants. It reasoned that Tennessee recognizes the “bare metal defense.” Applying that defense, the court ruled that defendants did not have a duty to warn Mr. Coffman of the risks of the asbestos-containing parts that they did not manufacture.
The Court of Appeals reversed. It held that the issue was one of first impression in Tennessee and distinguished numerous cases that, according to the court, did not address the “post-sale integration of dangerous component parts manufactured and supplied by others.” Coffman v. Armstrong Int’l, Inc., No. E201700062COAR3CV, 2019 WL 3287067, at *17 (Tenn. Ct. App. July 22, 2019), appeal granted (Feb. 20, 2020).
To resolve the case, the Court of Appeals looked to Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008). In Satterfield, the Tennessee Supreme Court recognizing a duty of care in take-home exposure cases. The Supreme Court held that an employer owes “a duty to those who regularly and for extended periods of time came into close contact with the asbestos-contaminated work clothes of its employees to prevent them from being exposed to a foreseeable and unreasonable risk of harm.” Id. at 352.
While a majority of courts have adopted a no-duty rule in take-home cases, some courts have disagreed, finding that a duty exists. Ironically, many of these cases emphasize the same issue that other courts cite when rejecting a duty—the extent to which harm to the plaintiff was foreseeable. In Satterfield, the Tennessee Supreme Court focused heavily on the perceived foreseeability of harm. It held an employer owed a duty to an employee’s daughter, explaining that “the foreseeability factor has taken on paramount importance in Tennessee.” Id. at 366.
In Coffman, the Court of Appeals likewise emphasized foreseeability. It stated that, “[b]ecause foreseeability of harm is central to the Satterfield duty analysis, the bare metal defense is clearly inconsistent with Tennessee law.”
But foreseeability should not be controlling. In O’Neil v. Crane Co., 266 P.3d 987 (2012), the California Supreme Court held that a manufacturer cannot be found strictly liable for another’s product unless its own product “contributed substantially” to the overall harm or the manufacturer “participated substantially in creating a harmful combined use of the products.” Id. at 991. The court focused on the public-policy rationale behind imposing strict liability on manufacturers for defective products. As the court observed, strict liability was never intended “to impose absolute liability.” Id. at 1005. The court recognized the impracticality of imposing a duty to warn that would extend to another manufacturer’s defective product, as “a manufacturer cannot be expected to exert pressure on other manufacturers to make their products safe.” Id. at 1005-06. Likewise, “it is doubtful that manufacturers could insure against the ‘unknowable risks and hazards’ lurking in every product that could possibly be used with or in the manufacturer’s product.” Id. at 991.
In Air & Liquid Systems Corporation v. Devries, 139 S. Ct. 986 (2019), the United States Supreme Court rejected a “bare metal” defense to products liability claims in maritime cases, but also rejected a “foreseeability” test, adopting instead a middle approach. The Court held that “[i]n the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger.” Id. at 995.
As the U.S. Supreme Court recognized, products often can “foreseeably be used in numerous ways with numerous other products and parts. Requiring a product manufacturer to imagine and warn about all of those possible uses—with massive liability looming for failure to correctly predict how its product might be used with other products or parts—would impose a difficult and costly burden on manufacturers, while simultaneously overwarning users.” Id. at 994.
Time will tell whether the Tennessee Supreme Court follows the Court of Appeals’ lead in focusing on the issue of foreseeability or instead considers public policy in deciding whether a manufacturer’s duty to warn should be extended to products manufactured by others.