By Allen Eraut and Shaun Morgan
In an unpublished decision, the Washington Court of Appeals in Woo v. General Electric, 2017 Wash. App. Lexis 784, (Ct. App. Apr. 3, 2017) recognized an exception to the bare metal defense. The court held that an issue of material fact precluded summary judgment in favor of an equipment manufacturer, where there was evidence that the equipment manufacturer knew that asbestos-containing insulation, gaskets, and packing were a necessary function of the equipment and the equipment manufacturer knew that only asbestos-containing components were available during the time period of the exposure. So even though General Electric did not manufacture or supply the asbestos-containing parts the plaintiff was exposed to, GE was still potentially liable. This is a significant departure from two Washington Supreme Court decisions, Simonetta v. Viad and Braaten v. Saberhagen Holdings, which held in favor of equipment manufacturers based on the bare metal defense. Asbestos plaintiffs will undoubtedly use this case to expand defendants’ liability.
Tell me more
Yuen Wing Woo served in the United States Navy from 1943 to 1946. While in the Navy, he worked as a machinist aboard the USS George MacKenzie. He then joined the Military Sea Transportation Service (MSTS), where he worked as a third assistant aboard two cargo ships (the USNS PVT John R. Towle and the USNS James O’Hara) from 1949 to 1952. Mr. Woo died from mesothelioma in 2009. His estate brought a wrongful death claim, alleging that his exposure to asbestos-containing insulation, gaskets and packing used in conjunction with General Electric steam turbines caused him to develop mesothelioma.
Plaintiff did not offer any direct evidence that Mr. Woo worked with or around asbestos-containing components originally supplied or installed by GE. A former engineer for GE testified in a corporate deposition that GE was not involved in the procurement, design, or installation of thermal heat products for the steam turbines. The engineer also testified that it was the shipyard’s responsibility to insulate equipment. GE argued that since it did not supply the insulation Mr. Woo was allegedly exposed to, it was not liable.
The estate responded that, at the time of Mr. Woo’s service in the Navy, GE knew that only asbestos-containing thermal insulation, gaskets, and packing were available, and that these products were necessary for the proper functioning of the steam turbines. In support of this assertion, the estate presented the following evidence:
GE technical documents from 1989 advising of the location of asbestos on steam-turbine generators and the availability of asbestos substitutes and describing the “necessity” of asbestos insulation materials in high-heat applications;
GE technical documents from 1989 describing the necessity of gaskets, and that only asbestos-containing gaskets were available before the 1970s;
GE technical documents showing that asbestos insulation was usually purchased and field-installed by GE to functional factory specifications;
Ship records showing the ships had extensive asbestos insulation material aboard before 1975;
Testimony from a naval expert that the Navy followed the directions of equipment manufacturers for the insulation of steam turbines;
Testimony from a former MTST employee who testified that an employee such as the decedent would have worked in the engine spaces powered by steam turbines, the turbines required insulation to function properly, and the turbines required asbestos gaskets and packing.
GE moved for summary judgment, arguing that it had no duty to warn of the hazards of asbestos-containing parts that it did not manufacture, sell, or put into the stream of commerce. GE relied on two Washington Supreme Court cases to support this general rule: Simonetta v. Viad Corp., 165 Wn.2d 341 (2008) and Braaten v. Saberhagen Holdings, 165 Wn.2d 373 (2008). In Simonetta, the Washington Supreme Court held that equipment manufacturers were not liable for asbestos insulation material placed on their equipment by the Navy.In Braaten, the Washington Supreme Court similarly held that equipment manufacturers were not liable for replacement gaskets and packing material supplied by third parties. In both cases, the Court reasoned that a manufacturer has no duty to warn an end-user regarding products that it did not manufacture or sell.
The trial court granted summary judgment. On appeal, the estate argued that the trial court failed to apply an exception to Simonetta and Braaten, which had been established by the Washington Supreme Court in Macias v. Saberhagen Holdings, 175 Wn.2d 403 (2012). In Macias, the Washington Supreme Court held that a manufacturer of respiratory masks could be liable for failing to warn that the masks created a danger of asbestos exposure if they were not properly cleaned, even though the mask manufacturer did not place the asbestos-containing products into the stream of commerce. The Supreme Court in Macias held that Simonetta and Braaten did not control, because the respirator’s product presented the inherent danger of exposure to asbestos when used as the manufacturer intended, while the equipment at issue in Simonetta and Braaten posed no inherent danger to the plaintiff nor was it a hazard that occurred when the equipment products functioned as intended.
On appeal, the estate argued that Macias imposes liability on a defendant who failed to warn about the hazards of asbestos-containing products that had to be used in the steam turbines. The Court of Appeals agreed, and reversed the trial court’s grant of summary judgment, finding that the estate presented sufficient evidence to create a reasonable inference that GE knew that only asbestos-containing products would be used with the steam turbines, that the asbestos insulation was necessary for the function of the steam turbines, and that heat retention materials for new steam turbines were installed according to GE functional factory specifications. The court of appeals distinguished Braaten, noting that there was no evidence in that case that the asbestos-containing components at issue were necessary for the function of the equipment. The court of appeals distinguished Simonetta, explaining that the Navy, not the manufacturer, chose to insulate the equipment at issue.
Woo is difficult to reconcile with Simonetta and Braaten. The basis of liability against GE appears to be that GE designed its turbines to require asbestos material for proper function and that it knew asbestos material was the only material available during the relevant timeframe. This holding seems to contradict Simonetta and Bratten, and a petition to Washington’s Supreme Court is likely. However, Woo, along with Macias, provide asbestos plaintiffs with a roadmap on how to avoid the bare metal defense. Expect to see testimony from fact and expert witnesses that mirror these decisions.