Oregon Discards “Bare Metal Defense”

By Allen Eraut


For several years now, Northwest asbestos defendants have employed the “bare metal defense,” which generally limits a defendant’s liability to those products that the defendant placed into the  steam of commerce.  Under this defense, a defendant is not liable for asbestos-containing replacement parts used with the defendant’s product, if the defendant did not manufacture or sell those replacement parts.  For example, if a piece of equipment used asbestos gaskets, but those gaskets were replaced before the plaintiff worked with the equipment, the equipment manufacturer would not be liable unless it supplied the specific asbestos-containing parts the plaintiff worked with.
 
This defense is no longer available in Oregon.  In McKenzie v. A.W. Chesterton, et al, 277 Or App 728 (2016) the Oregon Court of Appeals reversed summary judgment in favor of defendant Warren Pumps, LLC, a mechanical pump manufacturer.  In so doing, the court found Oregon law to be “inconsistent” with the bare metal defense.   This decision makes Oregon a more attractive jurisdiction for asbestos plaintiffs, and we expect an increase in filings here.
 
Paul McKenzie had a 20-year Naval career, which included service on two aircraft carriers, the USS Hancock and USS Boxer. Defendant Warren supplied pumps for both ships, which included some asbestos-containing gaskets and packing.  But Mr. McKenzie did not serve on either ship until many years after Warren sold its pumps (10 years for the Boxer, and 24 years for the Hancock).  Because the evidence showed that the original gaskets and packing that Warren supplied with its pumps had been replaced with different companies’ products before Mr. McKenzie worked with them, Warren argued that it was not responsible for the replacement parts. The trial court agreed and granted summary judgment.
 
Warren’s argument was firmly rooted in case law from Washington and California that recognized the bare metal defense.  See Simonetta v. Viad
Corp., 165 Wash 2d 341, 197 P3d 127 (2008); Braaten v. Saberhagen Holdings, 165 Wash 2d 373, 198 P3d 493 (2008); and O’Neil v. Crane
Co., 53 Cal 4th 335, 266 P3d 987 (2012). Those states did not impose a duty on a product manufacturer to warn an end user about hazards associated with other manufacturer’s products, even if the defendant could reasonably foresee that another manufacturer’s products would be used. 
 
The McKenzie court was not persuaded by these authorities, finding Oregon law to be materially different than that of Washington or California.  McKenzie analyzed the products liability and negligence claims separately, and started with the products liability claim.  Oregon’s product liability statute, ORS 30.920(1), imposes liability for the sale of an “unreasonably dangerous product” that reaches the end user without substantial change from the condition in which the product was sold.  The “product” for the McKenzie court was not the component parts that contained asbestos (gaskets and packing) but the pump as a whole.  The court reasoned that even though the original gaskets or packing may have been replaced by a different company’s gasket or packing, the pump as a whole was still in substantially the same condition when Mr. McKenzie worked on it.  McKenzie  drew support from the Restatement (Second) of Torts section 402A, commend d, which used examples that “support the idea” that a seller may be liable even if some component parts of the larger product wear out and are replaced. McKenzie, 277 Or App at 738.
 
Having defined the product as the pump, and not the specific asbestos-containing parts, the court turned to the nature of the defendant’s duty.  Under Restatement (Second) of Torts section 402A comment h, liability can exist if  “[the seller] has reason to anticipate that danger may result from a particular use .” In Mr. McKenzie’s case, the court noted that that the Navy specified that asbestos gaskets and packing be used with equipment such as pumps.  This provided some evidence that Warren knew or should have known that asbestos-containing replacements would be used.  This, combined with evidence that Warren knew or should have known about a danger with asbestos-containing gaskets and packing, was adequate to defeat summary judgment as to the product liability claim.
 
The result was no different for the negligence claim.  McKenzie looked to Restatement (Second) of Torts section 388 to define the negligence duty owed by a product supplier.  Under section 388, a seller “is negligent if it fails to warn of those dangerous propensities of which it knows or reasonably should know.” Because the plaintiff presented evidence that Warren knew or should have known about “dangerous propensities” associated with its product (the pump), summary judgment was not appropriate.
 
Warren will likely petition for review by the Oregon Supreme Court.
 
Please let us know if you have any questions or need additional information.
 


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