‘Bare Metal’ Defendants Had No Duty to Warn Naval Fireman, Fla. Judge Rules

August 7, 2012 – Media Coverage

MIAMI — Pump, valve and turbine manufacturers that were not in the distribution chain of asbestos-containing insulation incorporated into their products cannot be held responsible for injuries suffered by a U.S. Navy fireman exposed to asbestos from the products, a federal judge in Florida has ruled. Faddish v. Buffalo Pumps, et al., No. 08-80724 (S.D. Fla.).

Judge Daniel T.K. Hurley of the U.S. District Court for the Southern District of Florida ruled Aug. 2 that neither state nor maritime products liability law imposes a duty to warn, whether premised in negligence or strict liability, for hazards arising exclusively from another manufacturer’s product, regardless of foreseeability of the combined use and attendant risk.

The ruling followed motions for summary judgment filed by Warren Pumps, Crane Co. and Westinghouse Co., manufacturers of pumps, valves and turbines used on the U.S.S. Essex, a warship upon which plaintiff John Faddish served as a fireman between 1958 and 1961.

Faddish alleged that 40 years after working aboard the Essex, he developed mesothelioma as a result of exposure to asbestos from external insulation and gaskets and packing material that was incorporated into the defendants’ products, but were manufactured by a third-party. The plaintiff argued that Warren, Crane and Westinghouse were liable for Faddish’s mesothelioma and his eventual death for failing to warn him of known dangers associated with the intended and foreseeable use of asbestos materials with their original products.

In their motions for summary judgment, the defendants asserted the so-called “bare metal defense,” arguing that they cannot be held liable for injuries caused by exposure to asbestos insulation, gaskets and packing that were incorporated into their products, but that they themselves didn’t manufacture.

Faddish’s widow argued in response that even if her husband wasn’t exposed to asbestos from a product manufactured by the defendants, they bore the responsibility for his injuries because the products were originally outfitted with asbestos-containing materials, and it was foreseeable that repair, replacement and maintenance procedures on the product would release asbestos dust.

It was undisputed that any of the asbestos-containing insulation and gaskets and packing products originally supplied with the defendants’ products had been replaced long before Faddish worked on the Essex and that the Navy mandated the use of asbestos materials in conjunction with the defendants’ products.

Noting that a number of state courts have recently determined that a defendant manufacturer is not liable for a third-party’s asbestos-containing products when the defendant is not in the products’ chain of distribution, Judge Hurley opined that the Florida Supreme Court would likely follow the trend and conclude that bare metal suppliers would not be held responsible under the facts presented in Faddish’s case.

“In this case, it is undisputed that defendants sold their product to the Navy without insulation and did not manufacturer, sell or select the asbestos ultimately used with their products on the Essex,” Judge Hurley wrote. “Although there is evidence that the defendants’ valves, pumps and turbines contained internal asbestos containing gaskets and packing when the Essex was built, these original components had been replaced long before Faddish boarded the ship in 1958.”

Accordingly, and because there is no evidence the defendants manufactured the replacement parts or had any involvement in their installation, there exists no evidence that any of the asbestos to which Faddish was exposed came from a product manufactured by the defendants, he said.

“On this predicate, where the source of asbestos specifications originated with the Navy, where defendants’ own products were not inherently dangerous and did not contribute substantially to causing the harm, and where defendants did not participate substantially integration of their ‘bare metal’ products into the end design of systems aboard the Essex, the court finds no basis under Florida law for imposing a duty to warn of the risk of injury posed by the concededly foreseeable use of asbestos-containing materials in conjunction with the defendants’ products,” the judge concluded.

Faddish is represented by Case A. Dam and David A. Jagolinzer of The Ferraro Law Firm in Miami.

The defendants are represented by Kathleen M. LaBarge, Susan Jane Cole, Steven A. Edelstein and Thomas F. Schlotzhauer of Bice Cole Law Firm in Coral Gables, Fla.; Beranton J. Whisenant Jr. and Virginia E. Johnson of Foley & Mansfield; Helaine S. Goodner, Edward J. Briscoe and Ester E. Galicia of Fowler White Burnett; Rebecca C. Kibbe of K&L Gates; M. Stephen Smith III of Rumberger, Kirk & Caldwell; Stuart L. Cohen of Bennett, Aiello, Cohen & Fried; Melanie E. Chung of Blaxberg, Grayson & Singer; Christopher J.M. Collings and Natalia Medina of Morgan, Lewis & Bockius in Miami; David M. Governo and Jeniffer A.P. Carson of Governo Law Firm in Boston; Evelyn Fletcher Davis of Hawkins Parnell & Young in Atlanta; Richard M. Lauth and Christopher G. Conley of Evert Weathersby Houff in Atlanta; Tanya M. Lawson and Brenda Godfrey of Sedgwick in Fort Lauderdale; Tracy E. Tomlin of Nelson, Mullins, Riley & Scarborough in Charlotte, N.C.; and John R. Felice and Judith A. Perritano of Pierce, Davis & Perritano in Boston.

Document is Available Search www.harrismartin.com or Call (800) 496-4319 Opinion Ref# ASB-1208-12

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