In a victory for plaintiffs seeking damages in connection with asbestos-related illnesses, a New Jersey appeals court has ruled that a manufacturer has a duty to warn about the risk of harm from exposure to asbestos-containing replacement parts, even if the manufacturer did not make or distribute those parts.
A three-judge Appellate Division panel in a published decision Monday, Whelan v. Armstrong International, reinstated lawsuits now maintained by the family of a man who died from complications of mesothelioma.
“We conclude that a duty to warn exists when the manufacturer’s product contains asbestos components, which are integral to the function of the product, and the manufacturer is aware that routine periodic maintenance of the product will require the replacement of the components with other asbestos-containing products,” Appellate Division Judge Heidi Currier wrote for the panel, joined by Judges Carmen Alvarez and William Nugent.
Currier said a Middlesex County judge erred in ruling that the manufacturers could not be held liable since they did not produce the products, nor place them into the stream of commerce.
“A careful review of the record reveals plaintiff presented sufficient evidence detailing his exposure to asbestos, either from original parts supplied by defendants or replacement parts required for the function of defendants’ products,” Currier wrote.
According to the decision, plaintiff Arthur Whelan, who has since died, was a residential and commercial plumber, as well as an auto mechanic, beginning in 1952. He developed a specialty in cleaning boilers, and worked continuously until 1996. Whelan was diagnosed mesothelioma in 2008.
Many defendants were named in the Whelan lawsuit—manufacturers who made boilers, valves, steam traps, and brake drums, according to the court: Armstrong International Inc., Burnham LLC, Carrier Corp., Cleaver-Brooks Inc., Crown Boiler Co., Ford Motor Co., Johnson Controls Inc., NIBCO Inc., and Oakfabco Inc.
The defendants acknowledged that replacement parts would be used in routine maintenance on their products. However, in seeking summary judgment, they said the duty to warn did not exist because they did not manufacture or distribute the asbestos-containing replacement products.
In Monday’s decision, Currier said Whelan made a prima facie showing of the defendants’ liability because they likely knew that the replacement parts contained asbestos. The exposure issue, she said, should not have been decided on summary judgment but should instead have been left for a jury to decide.
The duty to warn, the panel said, should not prove to be to onerous.
“We are satisfied the imposition of such a duty does not offend basic principles of fairness and public policy that must be awarded to all parties,” Currier wrote.
The court pointed to a pair of 1992 Appellate Division rulings, Molino v. BF Goodrich and Seeley v. Cincinnati Shaper, as supporting manufacturer duty to warn in connection with replacement parts.
The panel also distinguished its ruling in this case from the Appellate Division’s 2014 decision in Hughes v. A.W. Chesterton, where, according to Currier, “the panel found plaintiffs could not prove causation without showing exposure to an injury-producing element in the product that was manufactured or sold by the defendants. That product, according to the court, was only the manufacturer’s pump, and did not include its component parts.”
But, said Currier, “The ‘product,’ against which a worker’s exposure to asbestos is measured, is not the asbestos contained in the pump’s component parts, as stated in Hughes. The ‘product’ is the complete manufactured item as delivered by the manufacturer to the consumer, not just the asbestos contained in one of the product’s components.”
An asbestos-containing product “remains in substantially the same defective condition, whether or not its original asbestos has been replaced with other asbestos,” she said, adding that the replacement of asbestos-containing parts with other asbestos-containing parts is foreseeable to the manufacturer.
Houston litigator Kevin Parker represented Whelan’s family.
“The defendants argued they had no duty to warn, but if you put the replacement products into use, you’re still liable,” said Parker, of The Lanier Law Firm. “The Appellate Division made it clear that there is a duty to warn.”
The lead attorney for the defendants was Karen Stanzione of Reilly, McDevitt & Henrich in Cherry Hill, representing Cleaver-Brooks Inc. and Crown Boiler. She didn’t return a call seeking comment.