In a case that poses a major impact on products liability law, the state Supreme Court heard arguments Tuesday on the issue of whether manufacturers have a duty to warn about and are liable for someone else's asbestos-containing product.

In this case, replacement parts for boilers that were integral to the maintenance and functioning of the original equipment the manufacturer sold, but manufactured and distributed by another company, had posed a risk from exposure to asbestos.

In Whelan v. Armstrong International, plaintiff Arthur Whelan worked as a residential and commercial plumber and an auto mechanic from 1952 to 1996. He developed a specialty in cleaning boilers. Whelan was diagnosed with mesothelioma in 2008 and has since died.

Several dozen companies are named as defendants in the suit. One group of defendants—Armstrong International Inc., Burnham LLC, Carrier Corp., Cleaver-Brooks Inc., Crown Boiler Co., Ford Motor Co., Johnson Controls Inc., NIBCO Inc., and Oakfabco Inc.—filed summary judgment motions, claiming the plaintiff had not demonstrated exposure to friable asbestos on a regular and frequent basis from a product it sold, manufactured, supplied, or distributed.

The trial judge found the defendants not liable for asbestos-containing replacement parts they did not manufacture or place into the stream of commerce.

Because plaintiff could not identify an exposure to asbestos from a product actually manufactured or distributed by those defendants, the court granted summary judgment to each defendant.

But an appeals court in August 2018 reinstated the complaints against those companies. The panel found that a manufacturer's product includes any replacement parts necessary to its function, and therefore the defendants' duty to warn extends to any danger created by those replacement parts. The appeals court said that the imposition of such a duty does not offend basic principles of fairness and public policy.

The case was granted certification on Jan. 18, 2019. The plaintiffs bar group New Jersey Association for Justice presented an amicus brief.

Sean Marotta of Hogan Lovells

Defense attorney Sean Marotta of Hogan Lovells in Washington, D.C., represents several of the company defendants. He argued before the justices that the Appellate Division erred in favor of the plaintiffs and that the defendants had no duty to warn of the replacement parts being dangerous.

"Asbestos strict-liability failure-to-warn cases are like no other," Marotta said as he began his argument. "The Appellate Division's imposition of a duty to warn of third-party asbestos creates a brand-new hybrid strict-liability cause of action, part strict liability and part negligence. But it is black-letter law that failure-to-warn asbestos cases do not require—or allow—proof of a defendant's knowledge, a hallmark of negligence approaches to product liability.

"The Appellate Division allowing plaintiffs to prove medical causation by exposure to third-party asbestos contravenes decades of precedent requiring exposure to asbestos the defendant actually made or sold, not asbestos that happened to be installed in or used with its products," Marotta said.

Among the products at issue are materials used to construct fireboxes on oil-fired boilers made by Cleaver-Brooks that Whelan cleaned a number of times in the 1950s. Whelan testified that he could not identify the manufacturer of the asbestos-laden materials in the boilers, according to court documents.

Another such product is the replacement gaskets he fitted on about 20 Armstrong steam traps installed on commercial boilers. The gaskets, which were made with asbestos, were made by another company, but Whelan was unable to identify it, according to the documents.

Defendants have not said they were unaware that these component parts would be replaced regularly as part of routine maintenance on their products, but they assert that the duty to warn does not extend to replacement parts they did not manufacture or distribute.

"Fundamentally, the Appellate Division's decision upsets the balance this court carefully struck in its asbestos decisions and that has served litigants reasonably well for decades," Marotta argued. "Asbestos defendants are denied certain defenses and face liability on looser proofs than other tortfeasors. In return, asbestos defendants are guaranteed that they will be held responsible only for the asbestos they made or sold, limiting their overall liability.

"The Appellate Division's opinion shifts the balance too far against defendants, expanding liability on negligence grounds while limiting defenses on strict-liability grounds. The court should set the scales right again," Marotta said.

Justice Barry Albin asked Marotta, "the equipment in question needed a poisonous part to function. Shouldn't the manufacturer be one of the entities that should warn people? What's wrong with that?"

"Using the 'state of the art' defense, we did not know the product was dangerous," Marotta said, raising a defense that knowledge of a product's dangers must be proved to make out a claim.

"You are holding a manufacturer responsible for dangers they did not know about," he added. "You can't warn about something you don't know about. It throws the balance off."

To which Justice Jaynee LeVecchia interjected: "The basic maintenance of these boilers put people in direct contact with" the dangerous parts.

Justice Anne Patterson brought up case law surrounding the state-of-the-art defense.

"If you were to impose on the manufacturer of the original part a duty to warn on replacement parts, that manufacturer has to anticipate state of the art," she said.

Albin stayed laser-focused on accountability: "You produce a product that has an asbestos part. What is unfair for the manufacturer to put out that this is a dangerous product, and the replacement part will always be dangerous. What's wrong with that?"

Justice Faustino Fernandez-Vina added, "All we are saying: 'Tell the people. Give them the opportunity to protect themselves.'"

To which Marotta responded: "You are using the same bar—state of the art—on everyone's product. You are essentially saying you are responsible for everyone's asbestos."

Co-counsel for the defense, Karen Conte of Reilly, McDevitt &  Henrich in Cherry Hill, said there was no indication that any of the replacement parts that Whelan came into contact with contained asbestos.

"There is no evidence in the record," Conte said. "If you allow this, then essentially, if I worked on a boiler and a replacement part had asbestos, the only thing the plaintiff has to do is [prove manufacturers'] liability at one point. It's not even relevant to the issue."

"But the defendant spent a long time cleaning these [boiler] boxes," said LeVecchia.

Patterson asked: "Does this put product liability burden of proof on the defense?"

"Yes, it does," said Conte.

Christopher Placitella

When it came time for his turn, Whelan's attorney, Christopher Placitella of Cohen, Placitella & Roth in Red Bank. reminded the justices that his client's health was devastated by his work. He said the core issue before the court is the policy behind the duty to warn.

"The policy reasons for imposing duty to warn here are significant," Placitella said. "Defendants are in the best position as masters of their equipment to put [out] a warning."

"The policy is for having the equipment manufacturer do this since a component manufacturer may not know all the uses of the equipment," added Placitella.

Placitella said the Appellate Division's opinion in the case should stand because it was a "well-reasoned, accurate analysis and application of New Jersey's failure-to-warn, strict product liability jurisprudence."

He said his client has steadfastly maintained that manufacturers of complex, multipart products that use hazardous components have always had a duty to warn of the hazards of replacement parts manufactured by third parties.

"As a result of being a plumber and working on these brakes, Mr. Whelan was devastated. This equipment was meant to last many years," Placitella told the court. "Asbestos products were integral to the function of the equipment. The required maintenance required exposure to the danger created by the product itself.

"If the equipment was never turned on, Mr. Whelan would never have had exposure to asbestos," Placitella said. "That is what created the danger and what caused Mr. Whelan's asbestos exposure. The defect we are alleging is that routine maintenance required asbestos exposure. And the only entity to make the warning to Mr. Whelan is the manufacturer."

Albin asked: "So just because a supplier supplied the part, it does not relieve liability from the manufacturer?"

"They want you to relieve them of duty and leave the plaintiff no relief," Placitella answered. "The point is, it was the machine that created the hazard. The part was unsalable without it."

"We have a hazard created by a replacement part," Patterson observed. "If not a design defect, where is there a failure-to-warn duty imposed by this replacement part? This could have major ramifications for product liability."

"What is going on is that the equipment caused the danger. Not the product," Placitella said. "The reason the danger was imposed is because of the equipment, and the only one that knows that is the equipment manufacturer."

Attorney Amber Long of Levy Konigsberg in New York represented the NJAJ as amicus. She spoke after Placitella, urging the court to affirm the Appellate Division's decision.

"The duty to warn applies here, even if the product changes, including liability for a replacement part," Long said.