Can You Really Be Liable For a Product You Didn’t Make? In New Jersey, the Answer is Yes

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In Whelan, the defendants’ products had originally been sold with asbestos-containing parts.

December 14, 2020
James Burger & Robert Devine - White and Williams LLP

New Jersey has recently expanded liability for product distributors and manufacturers to products that the distributor/manufacturer did not make or sell. This alert discusses this new law and steps that distributors and manufacturers may consider to reduce their potential liability.

In Whelan v. Armstrong International, Inc., the New Jersey Supreme Court held that distributors and manufacturers can be strictly liable for injuries caused by replacement parts added after the point of sale which had not been manufactured or sold by any of the defendants in the case. In Whelan, the defendants’ products had originally been sold with asbestos-containing parts. Mr. Whelan, the plaintiff, argued that asbestos-containing replacement parts were required to repair and maintain the products. The court found that because the products were designed with asbestos-containing parts, “[d]efendants had a duty to provide warnings given the foreseeability that third parties would be the source of asbestos-containing replacement components.” (Emphasis added).

This reasoning, based on “foreseeability,” should give pause to all product distributors and manufacturers—even those who do not make or sell products that contain asbestos. Certainly distributors and manufacturers of products with asbestos-containing parts must take heed that they may now be liable for replacement parts that they neither manufactured nor sold. This alone is a significant holding that expands potential liability.

Reprinted courtesy of James Burger, White and Williams LLP and Robert Devine, White and Williams LLP

Mr. Burger may be contacted at burgerj@whiteandwilliams.com
Mr. Devine may be contacted at deviner@whiteandwilliams.com



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