Bare Metal Defense

State Adoption

Updated: May 2015

  State courts that have adopted the Bare Metal Defense
  Lower/trial court decisions that support the Bare Metal Defense
  Battleground Jurisdictions

*Maritime law is not included in the map. When considering maritime law, courts have generally applied the O’Neil approach to the Bare Metal Defense.

Since the landmark California decision in O’Neil v. Crane Co., handled by Edward Slaughter and Jason Irvin on the trial level, multiple jurisdictions have applied the “Bare Metal Defense.” In asbestos toxic tort litigation, we've seen that counsel for plaintiffs are attempting to stretch liability to manufacturers of products that did not contain asbestos — they merely made “bare metal” products, such as pipes and valves. Later, third-party purchasers altered the original bare metal product with asbestos-containing products. Consistent with well-established law, the majority of courts considering the issue apply O’Neil and refuse to hold these manufacturers liable. 

However, some courts have made inconsistent decisions on the issue. These “Battleground States” are discussed below:

New York

The New York City Asbestos Litigation court has held that liability may be imposed when a defendant manufacturer either “meant for its . . . [product] to be used, or knew or should have known that its . . . [product] would be used” in conjunction with asbestos-containing materials.[1] However, these decisions likely misinterpret established state law.[2] This approach represents the minority approach taken by courts to the Bare Metal Defense.

In the non-asbestos case of Rastelli v. Goodyear Tire & Rubber Co., the Court of Appeals of New York held that manufacturers are not liable for third-party products, unless the manufacture exercised control over production, derived a benefit from the sale of the dangerous product, or placed the dangerous product into the stream of commerce.[3] In other words, New York applies an approach similar to that taken in O’Neil for non-asbestos product liability cases.

Further, district courts in New York have applied the O’Neil and Rastelliapproach, creating a split between state and federal courts in the state.[4]As discussed in the previous section, state courts in New York have applied the Foreseeability Test in the asbestos context. It seems, however, that New York’s highest court will be considering this issue in the near future.[5]


In Chicano v. GE, a 2004 district court for the Eastern District of Pennsylvania denied defendant’s motion for summary judgment, holding that a manufacturer can be held liable if it could “reasonably foresee that its [product] would be combined with asbestos-containing insulation.”[6]The Chicano court interpreted Pennsylvania law as imposing a duty to warn on component manufacturers when it is foreseeable their products would be used in conjunction with other dangerous products.[7]

However, a 2010 Pennsylvania appellate court applied the approach later adopted by the California O’Neil court. In Schaffner v. Aesys Techs., LLC,[8] the Superior Court affirmed a summary judgment granted in favor of the defendant-manufacturer. the court held a manufacturer cannot be held liable under strict liability or a failure to warn theory for a product it did not manufacture or supply.[9] The court’s reasoning was supported by prior Pennsylvania case law, which held a plaintiff must show their injuries were caused by a product the defendant manufactured.[10] The court also relied on Simonetta[11] and Braaten,[12] to Washington state cases that formed the basis for California’s O’Neil decision.

A federal court recently held that Pennsylvania law would likely partially adopt the Bare Metal Defense. In Schwartz v. Abex Corp., the court granted partial summary judgment to a defendant-manufacturer. The court predicted that, under Pennsylvania law, a “manufacturer (or supplier) of a product is not liable in strict liability for aftermarket asbestos-containing component parts that it neither manufactured nor supplied.” 2015 WL 3387824, *1 (E.D. Pa. May 27, 2015). However, such a manufacturer does have a duty to warn under negligence if the manufacturer (a) “knew that an asbestos-containing component part of that type would be used with its product,” and (b) “knew at the time it placed its product into the stream of commerce that there were hazards associated with asbestos.” Id.


Federal courts in Illinois have applied interesting approaches to this issue. In Ruppel v. Crane, the district court denied the defendant-manufacturer’s motion for summary judgment.[13] The court recognized that “Illinois law holds manufacturers liable for injuries resulting from reasonable foreseeable post-sale alternations to its product.”[14]

In Quirin v. Lorillard Tobacco Co., a federal district court in Illinois followed a “middle road” approach.[15] While this court noted that “a manufacturer is not [generally] liable for materials it did not supply,” the court stated that a duty to warn may attach where: (1) the defendant’s product, “by necessity,” had asbestos-containing components; (2) the asbestos-containing material “was essential to the proper functioning of the defendant’s product”; and (3) the “asbestos-containing material would necessarily be replaced by other asbestos-containing material, whether supplied by the original manufacturer or someone else.”[16]

[1]Matter of New York City Asbestos Litig., 2013 N.Y. Misc. LEXIS 5173, *17-19 (N.Y. Sup. Ct. 2013) (quoting Dummitt v. A.W. Chesterton (In re: New York City Asbestos Litig.), 36 Misc3d 1234[A}, 960 N.Y.S.2d 51 (N.Y. Sup. Ct. 2012)).

[2]See Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 591 N.E.2d 222 (1992); Mark A. Behrens, Dummitt v. Crane Co.: New York’s Highest Court Should Reaffirm Its “Stream of Commerce” Approach to Product Liability and Confirm that New York Law is in Harmony with the Clear Majority Rule Nationwide, 29:16 Mealey’s Litig. Rep.: Asbestos 1 (Sept. 24, 2014) [Hereinafter New York Should Reaffirm Its “Stream of Commerce” Approach].

[3]79 N.Y.2d 289, 591 N.E.2d 222 (1992); Behrens, New York Should Reaffirm Its “Stream of Commerce” Approach, 1.

[4]See Surre v. Foster Wheeler LLC, 831 F. Supp. 2d 797, 800-801(S.D. N.Y. 2011).

[5]See Behrens, New York Should Reaffirm Its “Stream of Commerce” Approach, 1-2.

[6]2004 U.S. Dist. LEXIS 20330, *20 (E.D. Pa. 2004).

[7]See Id. at 28.

[8]2010 Pa. Super. LEXIS 3246 (Pa. Super. Ct. 2010).

[9]Id. at 15.

[10]Id. at 10-11.

[11]Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (Wash. 2008)

[12]Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 198 P.3d 493 (Wash. 2008)

[13]Ruppel v. Crane Co., 2014 U.S. Dist. LEXIS 138342, *15-16 (S.D. Ill. 2014)

[14]Id. at *15.

[15]2014 U.S. Dist. LEXIS 18744, *24 (N.D. Ill. 2014).

[16]Id. at *25.


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