It is clear that a manufacturer of a product that contains asbestos can be held liable in New Jersey for asbestos related illnesses associated with the use of the asbestos containing product or associated with the manufacture’s failure to warn about potential harm. This essentially follows traditional theories of product liability when plaintiffs are injured as a result of exposure to dangerous products. When we are dealing with toxic products that cause harm, this is referred to as toxic tort liability.

Can an original manufacturer of a product that contains asbestos be legally liable to a victim of asbestos exposure when some or all of the asbestos emanated from a replacement part and not the original product? In the case of Whelan v. Armstrong International, the New Jersey Supreme Court decided on June 3, 2020 that in certain instances, an original manufacturer may be liable for harm caused by asbestos exposure potentially associated with a replacement part manufactured by a third party.

The Court held that the test for determining when an original parts manufacturer may be liable for exposure emanating from a replacement part involves the following considerations: (1) the manufacturer or distributor incorporated asbestos containing components in the original product, (2) the asbestos containing components were integral to the product and necessary for it to function, (3) routine maintenance on 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.

In Whelan, the plaintiff asserted that he developed mesothelioma when he was working on the defendants’ products that contained asbestos or the asbestos containing replacement parts which were supplied by third parties. The original products were designed to be used with asbestos containing replacement components which were necessary for the continued functioning of the products.

The plaintiff asserted that the defendants had a duty to provide warnings about the dangers associated not only with the asbestos containing original components, but also with the necessary replacement parts that also contained asbestos.

The Supreme Court held that in this strict liability case, the product at issue is the “aggregation of all its component parts.” In other words, “[f]or failure-to-warn purposes, no distinction is made between the original asbestos-containing components and the asbestos-containing replacement components necessary for the continued operation of defendants’ integrated products — even though the replacement components are manufactured or distributed by a third party.”

The Court held that New Jersey’s developing law in the area of toxic liability, coupled with principles of public policy and fairness, require the defendants to provide adequate warning relating not only to the original product, but to required replacement products as well. The purpose of this warning is to allow workers such as the plaintiff an opportunity to take necessary precautions such as using protective gear and using inhalation devices that are appropriate to guard against the dangerous fibers and dust. The Court held that it is the manufacturer and the distributor that is best situated to provide such warnings.

Strict liability jurisprudence for warnings regarding asbestos products is derived from two New Jersey Supreme Court decisions: Freund v. Cellofilm Properties, Inc., 87 N.J. 229 (1981) and Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191 (1982). In Beshada, the Court lays out the difference between negligence and strict liability claims: “negligence is conduct-oriented, asking whether defendant’s actions were reasonable; strict liability is product-oriented, asking whether the product was reasonably safe for its foreseeable purposes.” In other words, knowledge of the dangerousness of an asbestos product is imputed on the manufacturer. If they do not warn of a product’s danger, they are liable.

In the field of environmental law more generally, the concepts of strict liability and product liability are often invoked by plaintiffs. A claim of strict liability is particularly useful to plaintiffs, since defendants cannot argue as a defense that they acted reasonably or pursuant to industry standards. In some cases, strict liability is encoded in environmental statutes, such as the New Jersey Spill Act, N.J.S.A. 58:10-23.11 et seq.

Unlike New Jersey, the cleanup statute for hazardous substances in New York does not allow for a private right of action. In other words, only the New York Department of Environmental Conservation (“NYDEC”) can bring a statutory clean up claim. Thus, common law claims are generally the sole source of relief for an aggrieved plaintiff, and strict products liability claims are particularly valuable when applicable.

In Matter of Nassau County Consol. MTBE (Methyl Tertiary Butyl Ether) Prods. Liab. Litig., 29 Misc. 3d 1219(A) (2010), for example, municipal water districts in Long Island sued defendant petroleum distributors for their supply of gasoline with the the additive MTBE. MTBE was banned by the New York legislature in 2004 due to its harm to humans and the environment. MTBE was identified in Long Island aquifers, which precipitated the lawsuit.

Plaintiffs invoked, among other claims, strict product liability for design defect and strict liability failure to warn. The Nassau County Supreme Court found that the claims as to distributors, Colonial Pipeline and Buckeye Pipeline, should be dismissed. With respect to design defect, the Court found that it was not enough for plaintiffs to allege that the pipelines were involved in the “distribution process.” For example, it could be that the defendants’ infrastructure was leased, and that they were not sufficiently involved in introducing the product into the stream of commerce.

The Court also denied the plaintiffs’ failure to warn claim, alleging that defendants failed to warn water districts, the general public and public officials regarding MTBE’s dangers. The Court was unconvinced by the assertion that public officials must be warned for product liability purposes. Moreover, “the dangers associated with spilling gasoline are common knowledge, such that additional warnings delivered to ultimate consumers regarding the characteristics of MTBE, would not be effective.” Finally, the plaintiffs did not sufficiently allege that defendants “had any more reason to know of the dangers of MTBE” than plaintiffs.

More recently, New Jersey and New York have both filed lawsuits concerning chemicals known as PFOS (perfluorooctane sulfonic acid) and PFOA (perfluorooctanoic acid). The States filed suit against most of the same defendants, including 3M Company, Tyco Fire Products LP, Chemguard, Inc., Buckeye Fire Equipment Company, Kidde-Fenwal, Inc., E.I. du Pont de Nemours & Company and The Chemours Company. Both States have invoked strict product liability claims on the bases of defective design and failure to warn. In the future, we may see New Jersey amend its complaint to include a Spill Act claim, since the State has moved to add PFOA and PFOS to its list of Hazardous Substances, which would bolster the claim of strict liability against these industry giants.