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.

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The Tennessee Supreme Court has endorsed the “bare metal” defense and in doing so widened a divide among state and federal courts on that issue.  The defense tests whether defendants who delivered a product that was “bare metal” should be liable for injuries caused by later-added materials such as replacement parts that contained asbestos.  In Coffman v. Armstrong International, Inc., No. E2017-01985-SC-R11-CV, 2021 WL 22180 (Tenn. Jan. 4, 2021), the Tennessee Supreme Court joined the courts of a number of other states including California, Georgia, and Washington in rejecting such liability.

The Tennessee Supreme Court construed the Tennessee Products Liability Act, which provides that a manufacturer is not liable for injury from a product unless it was in a “defective condition or unreasonably dangerous at the time it left the control of the manufacturer.”  Tenn. Code Ann. § 29-28-105(a) (2012).  The court held the Act’s plain language was dispositive on the issue of the defendants’ liability.  Under the Act, manufacturers are liable only for products that are defective when leaving their control.  Defendants thus had no duty to warn of the dangers associated with the post-sale integration of asbestos-containing materials manufactured and sold by others.

The action was originally filed by Donald Coffman, who worked as a mechanic at a chemical plant for almost three decades starting in 1968.  He maintained pipes, pumps, valves, and steam traps for a piping system that carried highly corrosive steam and acids.  Defendants manufactured that equipment.  Although the equipment did not contain asbestos, the materials used to repair and maintain the equipment allegedly included asbestos-containing insulation, gaskets, and packing.  The defendants did not make or sell these asbestos-containing materials.

The trial court granted summary judgment for defendants, applying the “bare metal” defense.  The court ruled that defendants did not have a duty to warn Mr. Coffman about asbestos-containing parts that they did not manufacture or sell.  The Court of Appeals reversed.  It focused on the foreseeability and magnitude of the potential harm.  The appeals court concluded that, because the harm was foreseeable and the magnitude of potential harm was great, the defendants had a duty to warn about the dangers associated with the later-added products.

The Supreme Court reversed the Court of Appeals.  Justice Roger Page authored the Supreme Court’s majority opinion.  Three other justices joined the opinion, but Justice Sharon Lee dissented.

In dissent, Justice Lee looked to the “collective wisdom of the common law” for guidance.  She acknowledged that the majority’s holding had the benefit of providing “clarity and predictability.”  But she also cautioned against “erecting absolute rules to bar products liability claims.”  To support the existence of a duty, she argued that “the party to best hold liable for an accident is the party in the position to avoid the accident mostly cheaply” and that the “duty to warn is a fairly inexpensive duty to fulfill.”

The majority opinion declined to address the dissent’s focus on “the optimal outcome of this case in terms of public policy.”  The majority explained that such a “determination is for the legislature.”

Although the majority opinion did not address public policy, other courts have.  For example, in O’Neil v. Crane Co., 266 P.3d 987 (2012), the California Supreme Court unanimously held that public policy would not be served by requiring manufacturers to warn about the dangerous propensities of products they did not design, make, or sell.  The California Supreme Court in O’Neil identified several key factors weighing against imposing a duty to prevent injuries caused by replacement parts made and sold by others:

• Burden of Warning.  “Recognizing a duty of care would clearly impose a significant burden on defendants and all other companies that could potentially be held liable for injuries caused by products they neither made nor sold.”  266 P.3d at 1007 (emphasis added).  Although the Coffman dissent suggested that the duty to warn is not burdensome, it did not expressly address the burden of warning about the risks of products made by others.
• Awareness of Risks.  “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.”  266 P.3d at 1007.  The Coffman dissent observed that a manufacturer will be responsible only for replacement parts that are foreseeable.  But that observation does not answer the question of how a manufacturer can obtain insurance covering unknown risks and hazards.  Further, the dissent did not explain why a duty is better placed on the defendant that did not make the replacement part instead of the defendant that did.
• Excessive Warning.  “Such an expanded duty could also undermine consumer safety by inundating users with excessive warnings.  ‘To warn of all potential dangers would warn of nothing.’ ”  Id.  Any modern consumer can attest to the problem of over-warning and the difficult of separating the warnings that communicate relevant information from those that do not.

Other courts addressing the issue have agreed with the approach of the O’Neil court and the Coffman majority.  See Davis v. John Crane, Inc., 836 S.E.2d 577, 583-84 (Ga. Ct. App. 2019); Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 340 (Tex. 2014); Braaten v. Saberhagen Holdings, 198 P.3d 493, 504 (Wash. 2008); Simonetta v. Viad Corp., 197 P.3d 127, 132-33 (Wash. 2008); Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex. 1989).  By contrast, the United States Supreme Court has rejected the “bare metal” defense and held that in the maritime 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.”  Air and Liquid Systems Corp. v. DeVries, 139 S. Ct. 986, 991 (2019).

The split of authority on this issue seems likely to continue, with courts on both sides of the issue examining policy and statutory language in evaluating the viability of a “bare metal” defense.