A recent ruling in an asbestos-related case provides an important lesson for defendants in framing their defenses.
In Malone v. Air & Liquid Systems, et.al. (Report and Recommendation, C.A. No. 14-406-GMS-SRF (D. Del. Aug. 29, 2015)), a mesothelioma case pending in the U.S. District Court for the District of Delaware which involves allegations of asbestos exposure to several products at Ingalls Shipyard in Pascagoula, Mississippi, the court recently found summary judgment was appropriate for three defendants based on lack of evidence to support causation and the “bare metal defense.” The court, however, rejected the defendants’ other arguments based on the “learned intermediary doctrine” and the “government contractor defense.”
U.S. Magistrate Judge Sherry R. Fallon confirmed that the well-established “frequency, regularity, and proximity” causation standard adopted by Mississippi courts in asbestos actions is a uniform standard regardless of the alleged asbestos-related disease. The court recommended granting summary judgment for three defendants – Cummins, Inc. (“Cummins”); CBS Corporation f/k/a Westinghouse Electrical Corporation (“CBS”); and Foster Wheeler Energy Corporation (“Foster Wheeler”).[1] In the recommendation, the court noted that “Mississippi courts have not distinguished between different asbestos-related diseases when applying the frequency, regularity, and proximity test.” The court found the Malones’ argument that the factors should be applied “less rigidly” in mesothelioma cases unavailing, and that plaintiffs did not meet their burden to prove causation with respect to these defendants’ products.
Cummins, CBS, and Foster Wheeler each moved for summary judgment asserting as an additional ground the “bare metal defense.” The “bare metal defense” shields from liability companies that did not manufacture or distribute asbestos-containing components which were incorporated into the manufacturer’s product after its sale. In recommending summary judgment for each defendant, the court substantially followed its prior ruling in Dalton v. 3M Co., 2013 WL 4886658 (D.Del.), where the court found that “it is reasonably likely that the Supreme Court of Mississippi would follow the majority of jurisdictions that have refused to find defendants liable for other manufacturers’ asbestos products.” The court rejected plaintiffs’ argument that Dalton is inapplicable where the use of an asbestos-containing product in association with the defendant’s product was foreseeable, where the defendant did not require its use.
While the court granted judgment as a matter of law to all three defendants based on defendants’ causation and “bare metal” arguments, the court rejected CBS’ argument that it was entitled to summary judgment based on the “learned intermediary doctrine” and CBS’s and Foster Wheeler’s argument that each was entitled to summary judgment based on the “government contractor defense.” The court rejected CBS’s “learned intermediary” argument because, despite the fact that if offered evidence that the United States Navy was aware of the potential hazards associated with asbestos, it “offer[ed] no facts . . . to support whether Westinghouse reasonably relied on the Navy to warn users like Mr. Malone . . .” With regard to the government contractor defense, the court held that a factual issue concerning whether military specifications cited by plaintiffs were applicable to the Westinghouse turbines at issue, and thus whether the Navy required Westinghouse to create asbestos warning labels, precluded summary judgment on the government contractor defense.
Based on the court’s decision in Malone, defendants should take solace in the rejection, yet again, of a plaintiff’s argument for a less stringent causation standard in mesothelioma cases and the confirmation that yet another court adopts the majority approach to the “bare metal defense.” The ruling also, however, illustrates that defendants should expect a tough go of it when arguing the “learned intermediary doctrine” and “government contractor defense” at the summary judgment stage in this jurisdiction.
The entire Malone decision can be found here.
[1] The parties had fourteen days from the date of the Report and Recommendation to file written objections with the court. Because no party filed written objections within that time frame, it is likely the court will accept the Report and Recommendation as its opinion on the matter.