Bare Metal Defense Applied For First Time In Yet Another Jurisdiction: Wyoming

In an order issued on October 9, 2015, the U.S. District Court for the District of Wyoming determined that under Wyoming law, equipment manufacturers can employ the “bare metal defense” against strict liability causes of action. In essence, plaintiffs now cannot argue that defendants are strictly liable for insulation or any replacement parts that they did not provide. However, defendants remain strictly liable for original components, and plaintiffs can argue that defendants were negligent for failing to warn about replacement parts provided by others.

Judge Alan Johnson analyzed in detail the “bare metal defense” and noted this was an issue of first impression for the courts in Wyoming. Although he did not accept defendants’ argument “that a majority of the courts” that have looked at this issue have adopted the defense, Judge Johnson went on to rely upon the Schwartz v. Abex decision by Judge Robreno in 2015 for guidance on how to decide the issue. Doing a similar analysis, Judge Johnson concluded that Wyoming would adopt the bare metal defense, at least in regards to strict liability. He noted that to do otherwise “would allow foreseeability alone to be sufficient to create [a] strict liability claim and impose an almost absolute liability for all manufacturers that sell products with replaceable components.”

Judge Johnson also concluded that under Wyoming law, strict liability and negligence are treated separately and that under a negligence analysis the plaintiffs could still recover if they can demonstrate that:

1. Defendant knew that its product would be used with an asbestos-containing component part,

2. Defendant knew that asbestos was hazardous, and

3. Defendant failed to provide an adequate and reasonable warning.

The order then, however, goes on to say:

Accordingly, the Court finds that it will not grant summary judgment on Plaintiff’s negligence claim against Goulds regarding parts that Goulds manufactured or supplied or those that Goulds did not manufacture or supply but it specified, required or were necessary to the operation of its pumps. (emphasis added).

This final clause seems to add more prerequisites in addition to Nos. 1-3 above, and would certainly allow defendants to make additional arguments responsive to negligence claims. For example, one could argue that none of the equipment “required” asbestos to the extent that the equipment could work with non-asbestos materials. And certainly language in catalogs or sales materials that may be a “requirement” or “specification” in the eyes of plaintiff counsel is likely to be construed differently by defense counsel.

On balance, if this ruling is followed by other courts in Wyoming, it will make plaintiffs’ cases a little harder in Wyoming, but leaves a number of viable causes of action and theories.