A Component Change to New Jersey’s Medical Causation Standard
The Supreme Court of New Jersey recently extended the scope of liability against certain defendants in strict liability, failure to warn cases in Whelan v. Armstrong International, Inc. The Court held that manufacturers and distributors of equipment could be liable for “asbestos-containing components and a third-party’s replacement components” related to the equipment. To prevail, a plaintiff must prove:
(1) the manufacturers or distributors incorporated asbestos-containing components in their original products;
(2) the asbestos-containing components were integral to the product and necessary for it to function;
(3) routine maintenance of the product required replacing the original asbestos-containing components with similar asbestos-containing components; and
(4) the exposure to the asbestos-containing components or replacement components was a substantial factor in causing or exacerbating the plaintiff’s disease. 1
While primarily affecting claims against equipment manufacturers that used asbestos-containing components, the decision significantly departs from well-settled standards of medical causation proofs.
Defendants should expect plaintiffs to try to leverage this decision to further erode overall standards of proof.
The Court makes it clear that it is departing from the previous medical causation standard, which required plaintiffs to “produce evidence that they had contact with friable asbestos in replacement parts that were manufactured or sold by [the defendant].”2 Rejecting that standard, in part, the Court concludes that a duty to warn is meaningless if there is no remedy for plaintiffs.
The Court thus reformulates the medical causation standard from Sholtis v. American Cyanamid Co. and James v. Bessemer Processing Co., 3 for cases that involve asbestos-containing components by only requiring proof that “the exposure to the asbestos-containing components or replacement components was a substantial factor in causing or exacerbating [the] disease.”4 That result is significant because a plaintiff, pre-Whelan, was required to show frequent, regular, and proximate exposure as to each defendant’s product.5
Defendants should note: Whelan affects medical causation in asbestos-containing component cases because it may now be sufficient for a plaintiff to establish exposure to the manufacturer’s product only—without articulating any exposure to a third party’s component on or in the product. According to the dissent, however, this “reformulates” the medical causation standard that has been a staple of New Jersey’s asbestos litigation.6
There is no doubt that the Court has eased the burdens on plaintiffs of product identification and medical causation. Whelan predicates manufacturer liability only on contact with that manufacturer’s product. This is converse to Hughes v. A.W. Chesterton and what defendants have been accustomed to with New Jersey’s medical causation jurisprudence, i.e., plaintiffs cannot prove causation by showing exposure to a product “without also showing exposure to an injury-producing element in the product that was manufactured or sold by defendant.”7
Manufacturer defendants in these situations have likely lost their last line of defense—medical causation—when now that manufacturer has a duty to warn about the asbestos-containing components used in conjunction with its product.
Revisiting Third-Party Tactics
Whelan creates a novel situation for New Jersey asbestos litigation. Defendants are now at risk to be liable, at the time of trial, for both its own product and an unidentified third-party manufacturer’s component. This places the onus on defendant-manufacturers to determine whether to implead third-party manufacturers of components to ensure a jury does not saddle the defendant-manufacturer with possible shares of liability that it would have not faced pre-Whelan.
Whelan’s clearest impact is that defendant-manufacturers and distributors are potentially liable for another entity’s asbestos-containing products. 8 The prior standard required that plaintiffs identify the asbestos-containing product, sue the responsible product manufacturer or its successor, and satisfy their burden pursuant to Sholtis and James. Whelan, however, relieves plaintiffs of the burden as it pertains to identifying third-party component manufacturer’s products.
In Promaulayko v. Johns Manville Sales Corp., the Supreme Court held that the two principles underlying strict tort liability are (1) to allocate the risk of loss to the party best able to control it; and (2) the allocation of the risk to the party best able to distribute it.9 Whelan now puts on defendants the decision of whether to implead manufacturers of component parts that plaintiffs fail to name. Whelan indicates that it is fair to allocate a risk associated with an unidentified asbestos-containing replacement component to a manufacturer or distributor.10
Put simply, Whelan takes the decision of whether to engage in third-party practice out of the hands of defendants. Defendants instead may now be compelled to implead third-party component manufacturers that are, or may be, linked to their products. The Court tries to quell this concern by emphasizing that plaintiffs are still incentivized to identify manufacturers of third-party components because they are another source of payment for damages.11
In reality, however, plaintiffs rarely identify component-manufacturers. The dissent acknowledges this issue, finding that the majority requires no showing that a plaintiff attempted to identify the proper defendant.12 Further, Whelan is likely to disincentivize plaintiffs from undertaking product-identification discovery that could reveal the identity of the manufacturer of the replacement part.
Because of Whelan, plaintiffs do not need to identify the manufacturer of the replacement component because the defendant manufacturer or distributor is now liable for both its own product and the replacement component. Whelan, therefore, may cause manufacturers or distributors to be at risk of inheriting another entity’s liability based on a plaintiff’s failure or unwillingness to identify the entity directly responsible for the asbestos-containing product at issue.
Whelan implies that the identity of the component manufacturer does not matter if the plaintiff sues the manufacturer or distributor. Rather, as the Court suggests, “defendants have an incentive to identify asbestos-containing manufacturers to share in bearing the cost of damages.”14
As a result, Whelan will likely spark an increase in third-party practice to preserve the right to pursue an allocation of liability at trial against an entity who actually manufactured a component that the plaintiff is claiming led to asbestos exposure.
1 Whelan v. Armstrong Intl’l, Inc., No. 081810, slip op. at 9-10 (2020).
2 Hughes v. A.W. Chesterton Co., 435 N.J. Super. 326, 346 (App. Div. 2014).
3 238 N.J. Super. 8, 29; 155 N.J. 279 (1998).
4 Whelan, slip op. at 42-43 (emphasis added).
5 See, e.g., Estate of Brust v. ACF Indus., LLC, 443 N.J. Super. 103, 125 (App. Div. 2015); Provini v. Asbestospray Corp., 360 N.J. Super. 234, 238 (App. Div. 2003).
6 Whelan, slip op. at 16 (Patterson, J., dissenting).
7 Hughes, 435 N.J. Super. at 346.
8 Whelan, slip op. at 9-10 (majority opinion).
9 116 N.J. 505, 509-10 (1989).
10 Whelan, slip op. at 35.
11 Id. at 42.
12 Whelan, slip op. at 19 (Patterson, J., dissenting).
14 Whelan, slip op. at 42 (majority opinion)
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