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Recently in Poce v. O&G Industries, Inc., et al. the Superior Court, Nobel, J., granted  a motion to strike the negligence, recklessness, and premises liability counts of a thirty-count complaint because the plaintiffs failed to allege any "actual injury" which is an element of these causes of action in Connecticut.

In Poce, the plaintiffs, Julian Ponce, Skerdinand Xhelaj, Michael Meredith, Erjon Goxhaj, and Fatjon Rapo, were mason laborers who worked for Connecticut Mason Contractors. During the course their employment with Connecticut Mason Contractors, the plaintiffs allege in their complaint that they were "repeatedly exposed to asbestos" while "working on a project at Wethersfield High School" in Wethersfield, Connecticut. O&G Industries, Inc. ("O&G") was the project manager.

In its memorandum of decision, the Court noted that "each count contains an allegation that the respective plaintiffs were repeatedly exposed to known carcinogens requiring medical evaluations and lifetime medical monitoring; an increased risk of contracting asbestos-related pulmonary disease and/or cancer and will be required in the future to spend sums of money for medical evaluation and medical monitoring in the event that ‘asbestos and/or PCP-related disease becomes active and will be the course of continuing pain, mental and emotional distress."

In granting the motion to strike, the Court held that the plaintiffs failed to allege an "actual injury" that resulted from asbestos exposure. In doing so, that Court reasoned that "the plaintiff has no allegations that any physical manifestation occurred as a result of the exposure. That is, the complaint is devoid of any allegation of scarring to the lungs, implantation of asbestos fiber, pleural thickening or any other physical component following the exposure. The court holds that ‘actual injury’ as an element of negligence requires the pleading and proof of some physical component of injury."

Poce reaffirms the established principle that tort liability in Connecticut, as well as many jurisdictions, is limited to Cases involving physical harm to person or property." Lawrence v. O&G Industries, Inc. 319 Conn. 641, 646 (2015). This principle is an important check on tort litigation. If mere exposure to asbestos containing products rather than "actual injury" were sufficient to properly allege a cause of action sounding in negligence, recklessness, and premises liability, unbridled asbestos litigation would likely ensue and swiftly consume the courts. Fortunately, allegations of this nature remain legally insufficient – hopefully forever.

The bare metal defense essentially protects a manufacturer from liability for harm caused by asbestos products that the manufacturer did not manufacture or distribute, but rather, were installed by others post-sale, and owes no duty to warn of the dangers inherent to those products. Most commonly, the bare metal defense rejects liability for after applied external materials, such as thermal insulation or flange gaskets, placed on metal products by someone other than the defendant manufacturer.

In Connecticut, higher courts have yet to embrace the bare metal defense however the state Superior Court has acceptedthe defense under certain circumstances. Judge Barbara Bellis, the presiding judge of the Connecticut asbestos docket in Bridgeport, granted summary judgment to both Black & Decker and Snap-on Incorporated, defendants who asserted the defense, in the matter of Abate v. AFF-McQuay, Inc., et al., Docket No. CV-10-6006228. Black & Decker manufactured grinding machines and a shop vacuum.  Snap-on manufactured, distributed and sold blow guns. None of these products contained asbestos, but Plaintiffs argued that when the products were used for their intended purposes, they emitted hazardous amounts of asbestos dust into the air exposing Plaintiff-Decedent to this asbestos dust in his automotive garage. Defendants both countered that their products were all-purpose in nature,non-asbestos containing and had a variety of uses. Judge Bellis found that, unlike some products, Defendants’ productswere "not specifically designed for a use that would lead to asbestos exposure when said products were used as intended." Thus, the judge ruled that Defendants had no duty to warn.  Yet, she noted that a manufacturer isnot relieved of its duty to warn if its product, when used as intended, inevitably produces harmful dust (e.g.; brakeshoe grinding machines).

Although Connecticut’s application of the bare metal defense is narrow, it provides some Connecticut defendants with protection from liability.  As the defense is tested further in this jurisdiction, we will provide relevant updates.

NYC, Florham Pk., Sparta, Phila., Hartford and Wilmington offices are closed.  Please work from home today.

Syracuse and Sparta offices will be closed today. We will be closely monitoring Hartford and Florham Park throughout the day.

New Florham Park Address for McGivney, Kluger & Cook, P.C.

McGivney, Kluger & Cook, P.C. is proud to announce the relocation of its Florham Park office. After over 20 years at its former location, the firm has moved to 18 Columbia Turnpike in Florham Park, NJ. Because of the continued growth of the firm and its Florham Park office, the firm needed a modern, updated space, allowing for the room to grow and continue to provide the exceptional service and commitment to excellence that the firm prides itself on. The new office features beautiful, professional furnishings and modern workspaces and conference rooms, to support our attorneys, staff, and the needs of our clients and insurance carriers. We look forward to our future at 18 Columbia Turnpike, and look forward to welcoming you here.

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