Petition for Writ of Certiorari — Air and Liquid Systems Corp., et al., Petitioners v. Roberta G. DeVries, Individually and as Administratrix of the Estate of John B. DeVries, Deceased, et al.

No. 17-___

IN THE

Supreme Court of the United States

AIR AND LIQUID SYSTEMS CORP., CBS

CORPORATION, AND FOSTER WHEELER LLC,

Petitioners-Defendants,

v.

ROBERTA G. DEVRIES, Administratrix of the Estate

of John B. Devries, Deceased, and Widow in her own

right,

Respondent.

___________________

INGERSOLL RAND COMPANY,

Petitioner-Defendant,

v.

SHIRLEY MCAFEE, Executrix of the Estate of

Kenneth McAfee, and Widow in her own right,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

___________________

Benjamin M. Flowers

Shay Dvoretzky

JONES DAY

Counsel of Record

325 John H. McConnell

JONES DAY

51 Louisiana Ave NW,

Blvd., Suite 600

Washington, DC 20001

Columbus, OH 43215

Tel.: (202) 879-3939

sdvoretzky@jonesday.com

Counsel for Petitioner CBS Corporation

(Additional counsel listed on inside cover)

Brady L. Green

WILBRAHAM, LAWLER &

BUBA

1818 Market Street,

Suite 3100

Philadelphia, PA 19103

Counsel for Petitioner

Air & Liquid Systems

Corp. (successor by merger to Buffalo Pumps,

Inc.)

John J. Hare

MARSHALL DENNEHEY

WARNER COLEMAN &

GOGGIN

2000 Market Street,

Suite 2300

Philadelphia, PA 19103

Counsel for Petitioner

Ingersoll Rand, Inc.

Christopher J. Keale

Afigo I. OkpewhoFadahunsi

TANENBAUM KEALE LLP

1085 Raymond Blvd.

One Newark Center

16th Floor

Newark, NJ 07102

Counsel for Petitioner

Foster Wheeler LLC

(continued from front cover)

i

QUESTION PRESENTED

Can products-liability defendants be held liable

under maritime law for injuries caused by products

that they did not make, sell, or distribute?

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

The respondents, who

appellants below, are:

were

the

plaintiffs-

1. Roberta Devries, in her individual capacity and

in her capacity as administratrix of the estate of

John B. DeVries, and

2. Shirley McAfee, Executrix of the Estate of

Kenneth McAfee, Deceased, and Widow in her own

right.

The petitioners, all of whom were defendantsappellees below, are:

1. Air & Liquid Systems Corp. is a wholly owned

subsidiary of Ampco-Pittsburgh Corporation, a publicly traded corporation. It is the successor-bymerger to Buffalo Pumps, Inc.

2. CBS Corporation is a publicly traded company.

National Amusements, Inc. and its wholly owned

subsidiary, NAI Entertainment Holdings LLC, are

privately held companies, which, in the aggregate,

own the majority of the voting stock of CBS Corporation. To CBS Corporation’s knowledge, no publicly

held corporation owns 10% or more of the voting

stock of CBS Corporation.

3. Foster Wheeler LLC is a wholly-owned indirect

subsidiary of John Wood Group plc (Scotland), a publicly traded company. No known person or entity

currently owns 10% or more of John Wood Group

plc’s (Scotland) publicly traded common stock.

iii

4. The parent company for Ingersoll Rand Company is Ingersoll Rand PLC, a publicly traded corporation. No other publicly traded corporation owns

more than 10 percent of Ingersoll Rand Company

stock.

Along with the petitioners, the following parties

were listed as either defendants or defendantsappellees on the Third Circuit’s docket below. None

of the following parties are petitioners in this Court:

1.

20th Century Gove Corp. of Texas

2.

Allen Bradley Co.

3.

Allen Sherman Hoff

4.

American Optical

5.

American Optical Corp.

6.

AMTICO Division of American Biltrite

7.

Aurora Pumps

8.

AZRock Industries, Inc.

9.

AO SmithCorp.

10. BF Goodrich Co.

11. Baltimore Ennis Land Co. Inc.

12. Bayer Cropscience Inc.

13. Borg Warner Corp.

14. Burnham LLC

15. BW/IP Inc.

16. Carrier Corp.

17. Certain Teed Corp.

18. Cleaver Brooks Inc.

19. Crane Co.

iv

20. Crown Cork & Seal Co., Inc.

21. Federal Mogul Asbestos Personal Injury

Trust

22. Gallagher Fluid Seals, Inc.

23. General Electric Co.

24. Goodyear Tire & Rubber Co.

25. Goulds Pumps, Inc.

26. Hajoca Corp.

27. Hampshire Industries, Inc.

28. IMO Industries, Inc.

29. J.A. Sexauer

30. J.H. France Refractories Co.

31. John Crane, Inc.

32. Metropolitan Life Insurance Co.

33. Minnesota Mining & Manufacturing Co.

34. McCord Gasket Co.

35. NOSROC Corporation

36. Oakfabco, Inc.

37. Owens-Illinois, Inc.

38. Parker Hannifin Corp.

39. Pecora Corp.

40. Peerless Industries, Inc.

41. Riley Stoker Corp.

42. Selby Battersby & Co.

43. Sid Harvey Mid Atlantic, Inc.

44. Therman Engineering, Inc.

45. Trane U.S. Inc.

v

46. Warren Pumps, LLC

47. Weil McClain Division of the Marley Co.

vi

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT .............................. ii

TABLE OF AUTHORITIES...................................... ix

PETITION FOR A WRIT OF CERTIORARI ............ 1

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 2

STATUTORY PROVISIONS INVOLVED ................ 3

STATEMENT OF THE CASE ................................... 3

A.

The DeVries Matter .............................. 3

B.

The McAfee Matter ............................... 9

C.

The Third Circuit’s consolidated

resolution of the DeVries and

McAfee appeals .................................... 11

REASONS FOR GRANTING THE PETITION ...... 14

I.

THE CIRCUITS ARE SPLIT REGARDING THE ANSWER TO THE QUESTION PRESENTED ...................................... 14

II.

THE DIVISION IN THE LOWER

COURTS UNDERMINES MARITIME

LAW’S STRONG INTEREST IN UNIFORMITY ...................................................... 18

III.

THE THIRD CIRCUIT ERRED IN

ADOPTING A FORESEEABILITY

TEST .............................................................. 21

vii

TABLE OF CONTENTS

(continued)

Page

A.

Maritime law does not recognize

products-liability theories under

which defendants can be liable

for injuries caused by third parties’ products ....................................... 21

B.

The Third Circuit’s ad hoc foreseeability test hinders the purposes of maritime law ......................... 26

C.

The petitioners were entitled to

summary judgment under the

foregoing principles............................. 31

CONCLUSION ......................................................... 32

APPENDIX A: Opinion of the Court of Appeals

for the Third Circuit (October 3, 2017) .............. 1a

APPENDIX B: McAfee v. 20th Century Gove

Corp. of Texas, et al.,

No. 13-cv-6856 (E.D. Pa. May 25, 2016)........... 18a

APPENDIX C: DeVries v. General Electric Co.,

et al., No. 13-cv-474

(E.D. Pa. May 19, 2016) ................................... 20a

APPENDIX D: In re Asbestos Products

Liability Litigation (No. VI) (McAfee),

No. 15-2667 (3d Cir. May 12, 2016).................. 43a

APPENDIX E: In re Asbestos Products

Liability Litigation (No. VI) (DeVries),

No. 15-1278 (3d Cir. February 5, 2016) ........... 48a

viii

TABLE OF CONTENTS

(continued)

Page

APPENDIX F: McAfee v. 20th Century Glove

Corp. of Texas, et al., No. 13-cv-6856 (E.D.

Pa. October 23, 2014) (order awarding

summary judgment to Ingersoll Rand

Company), ......................................................... 55a

APPENDIX G: DeVries v. General Electric Co.,

et al., No. 13-cv-474 (E.D. Pa. October 10,

2014) (order awarding summary judgment

to CBS Corporation) .......................................... 63a

APPENDIX H: DeVries v. General Electric Co.,

et al., No. 13-cv-474 (E.D. Pa. October 10,

2014) (order awarding summary judgment

to Foster Wheeler LLC) .................................... 71a

APPENDIX I: DeVries v. General Electric Co.,

et al., No. 13-cv-474 (E.D. Pa. October 3,

2014) (order awarding summary judgment

to Buffalo Pumps, Inc.) ..................................... 79a

ix

TABLE OF AUTHORITIES

Page(s)

CASES

Baughman v. Gen. Motors Corp.,

780 F.2d 1131 (4th Cir. 1986) .............................. 22

Bell v. Foster Wheeler Energy Corp.,

2016 WL 5780104

(E.D. La. Oct. 4, 2016).......................................... 16

Boyle v. United Techs. Corp.,

487 U.S. 500 (1988) .............................................. 20

Braaten v. Saberhagen Holdings,

198 P.3d 493 (Wash. 2008) ...................... 17, 23, 24

Brown v. Drake-Willock Int’l, Ltd.,

530 N.W.2d 510

(Mich. Ct. App. 1995) ........................................... 22

Cabasug v. Crane Co.,

989 F. Supp. 2d 1027 (D. Haw. 2013).................. 15

Calhoun v. Yamaha Motor Corp.,

216 F.3d 338 (3d Cir. 2000) ................................. 24

Chesher v. 3M Co.,

234 F. Supp. 3d 693 (D.S.C. 2017)................. 16, 17

Cipollone v. Yale Indus. Prod., Inc.,

202 F.3d 376 (1st Cir. 2000) ................................ 23

Conner v. Alfa Laval, Inc.,

842 F. Supp. 2d 791 (E.D. Pa. 2012) ............... 8, 23

DeLovio v. Boit,

7 F. Cas. 418 (C.C.D. Mass. 1815) ....................... 18

x

TABLE OF AUTHORITIES

(continued)

Page(s)

E. River S.S. Corp. v. Transamerica

Delaval, Inc.,

476 U.S. 858 (1986) .................................. 19, 24, 26

Exxon Co., U.S.A. v. Sofec, Inc.,

517 U.S. 830 (1996) .............................................. 17

Exxon Corp. v. Cent. Gulf Lines, Inc.,

500 U.S. 603 (1991) .............................................. 25

Exxon Shipping Co. v. Baker,

554 U.S. 471 (2008) .................................. 19, 21, 24

Foremost Ins. Co. v Richardson,

457 U.S. 668 (1982) ........................................ 18, 24

Grant v. Foster Wheeler, LLC,

140 A.3d 1242 (Maine 2016) .......................... 17, 23

Hidalgo v. Fagen, Inc.,

206 F.3d 1013 (10th Cir. 2000) ............................ 23

In re Darvocet, Darvon, & Propoxyphene

Prod. Liab. Litig.,

756 F.3d 917 (6th Cir. 2014) ................................ 22

In re New York City Asbestos Litig.,

59 N.E.3d 458 (N.Y. 2016) ................................... 17

Kealoha v. E.I. du Pont de

Nemours & Co.,

844 F. Supp. 590 (D. Haw. 1994)................... 24, 25

Kermarec v. Compagnie Generale

Transatlantique,

358 U.S. 625 (1959) ............................ 18, 19, 21, 24

xi

TABLE OF AUTHORITIES

(continued)

Page(s)

Lindstrom v. A-C Products Liability

Trust,

424 F.3d 488 (6th Cir. 2005) ........................ passim

May v. Air & Liquid Sys. Corp.,

129 A.3d 984 (Md. 2015) ...................................... 17

McAlvey v. Atlas Copco Compressors,

L.L.C.,

2015 WL 5118138

(S.D. Ill. Aug. 28, 2015)........................................ 16

McIndoe v. Huntington Ingalls, Inc.,

817 F.3d 1170 (9th Cir. 2016) .............................. 25

Miles v. Apex Marine Corp.,

498 U.S. 19 (1990) ................................................ 30

Moragne v. States Marine Lines, Inc.,

398 U.S. 375 (1970) .............................................. 25

Nelson v. Air & Liquid Sys. Corp.,

2014 WL 6982476

(W.D. Wash. Dec. 9, 2014) ................................... 15

Osterhout v. Crane Co.,

No. 2016 U.S. Dist. LEXIS 39890

(N.D.N.Y. Mar. 21, 2016) ..................................... 16

Peralta Shipping Corp. v. Smith &

Johnson (Shipping) Corp.,

470 U.S. 1031 (1985) ............................................ 19

Quirin v. Lorillard Tobacco Co.,

17 F. Supp. 3d 760 (N.D. Ill. 2014) ...................... 16

xii

TABLE OF AUTHORITIES

(continued)

Page(s)

Sanders v. Ingram Equip., Inc.,

531 So. 2d 879 (Ala. 1988) ................................... 23

Stark v. Armstrong World Indus., Inc.,

21 F. App’x 371 (6th Cir. 2001) ............... 15, 20, 25

Stockton v. Ford Motor Co.,

2017 WL 2021760

(Tenn. Ct. App. May 12, 2017)............................. 28

Walton v. Harnischfeger,

796 S.W.2d 225 (Tex. App. 1990)......................... 23

Westchem Agric. Chems., Inc. v.

Ford Motor Co.,

990 F.2d 426 (8th Cir. 1993) ................................ 25

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const., Art. III, §2 ............................................. 18

28 U.S.C. § 1257 .......................................................... 3

28 U.S.C. § 1291 .......................................................... 3

28 U.S.C. § 1333 .......................................................... 2

28 U.S.C. § 1442 .......................................................... 2

OTHER AUTHORITIES

51 A.L.R.3d 1344 § 2 ................................................. 23

63A Am. Jur. 2d Prods. Liab. § 1027 ........................ 22

Restatement (Second) of Torts

§ 4 (1965) .............................................................. 21

Restatement (Second) of Torts

§ 314 (1965) .......................................................... 21

xiii

TABLE OF AUTHORITIES

(continued)

Page(s)

Restatement (Second) of Torts

§ 315 (1965) .......................................................... 21

Restatement (Second) of Torts

§ 388 (1965) .......................................................... 22

Restatement (Second) of Torts

§ 402A (1965)........................................................ 22

Restatement (Third) of Torts:

Prod. Liab. § 5 (1998) ..................................... 22, 25

PETITION FOR A WRIT OF CERTIORARI

This petition asks the Court to resolve an

acknowledged circuit split on an important issue of

federal law: In maritime-law cases, can a productsliability defendant be held liable for injuries allegedly caused by components that are manufactured,

sold, and distributed by third parties, and that are

added to the defendant’s products post-sale? In the

Sixth Circuit, the answer is “no.” That answer follows from the principle that tort-law defendants are

liable for only the injuries that they cause—they

bear no responsibility for injuries that others cause.

Without even mentioning this foundational tort-law

principle, the Third Circuit expressly parted ways

with the Sixth Circuit, and held that a defendant

may be held liable for injuries caused by the products

of a third party. This Court should grant certiorari

to restore uniformity to maritime law, and to clarify

that maritime-law defendants are not liable for injuries that they do not cause.

OPINIONS BELOW

1. Air & Liquid Systems Corp., et al, v.

DeVries. The United States District Court for the

Eastern District of Pennsylvania initially awarded

summary judgment to the petitioners in a series of

unpublished orders, all of which are available on

Westlaw at 2014 WL 6746811 (ordering summary

judgment for Foster Wheeler LLC), Pet. App. 71a;

2014 WL 6746795 (ordering summary judgment for

CBS Corporation), Pet. App. 63a; 2014 WL 6746960

(ordering summary judgment for Buffalo Pumps,

Inc.), Pet. App. 79a.

2

The United States Court of Appeals for the Third

Circuit remanded in an unpublished order. Pet. App.

48a. On remand, the District Court again awarded

summary judgment, and issued an opinion published

at 188 F. Supp. 3d 454. Pet. App. 20a. The Third

Circuit reversed, in an opinion published in the Federal Reporter at 873 F.3d 232. Pet. App. 1a.

2. Ingersoll Rand Co. v. McAfee. The United

States District Court for the Eastern District of

Pennsylvania awarded summary judgment to Ingersoll Rand in an unpublished order available on

Westlaw at 2014 WL 12601085, Pet. App. 55a.

The Third Circuit remanded in an unpublished order. Pet. App. 43a. On remand, the District Court

again awarded summary judgment, again in an unpublished order. Pet. App. 18a. On appeal, the

Third Circuit consolidated the case with the DeVries

matter; the opinion in the consolidated cases is published in the Federal Reporter at 873 F.3d 232. Pet.

App. 1a.

JURISDICTION

John and Roberta DeVries sued nearly 50 entities

in Pennsylvania state court. So too did Kenneth and

Shirley McAfee, in a separate action. Both cases

were removed to the United States District Court for

the Eastern District of Pennsylvania. That court had

jurisdiction pursuant to 28 U.S.C. §§ 1333(1) and

1442(a)(1), because both cases arose from injuries

that allegedly occurred aboard vessels on navigable

waters, and because several defendants stated a colorable federal common-law defense to claims arising

from their conduct as contractors for the United

States Navy.

3

After the District Court awarded summary judgment to the petitioners in both cases, Roberta

Devries (in her individual capacity, and as administratrix of John’s estate) and Shirley McAfee (in her

individual capacity, and as executrix of Kenneth’s

estate) appealed to the Third Circuit. That court had

jurisdiction under 28 U.S.C. § 1291. It consolidated

the cases in a single appeal, and issued its decision

on October 3, 2017. The petitioners moved this

Court for an extension of time in which to file their

petition for certiorari. See Air and Liquid Systems

Corp., et al. v. DeVries, et al., No. 17A625. Justice

Alito granted that application, giving the petitioners

until January 31, 2018, to file. They have timely

filed, and this Court has jurisdiction under 28 U.S.C.

§ 1257.

STATUTORY PROVISIONS INVOLVED

None.

STATEMENT OF THE CASE

The Third Circuit issued its opinion below in a

consolidated appeal that began as two separate matters: DeVries v. General Electric Co., et al., No. 13cv-474 (E.D. Pa.), and McAfee v. 20th Century Glove

Corp. of Texas, et al., No. 13-cv-6856 (E.D. Pa.). This

brief describes these matters separately, before turning to the Third Circuit’s decision in the consolidated

appeal.

A. The DeVries Matter

Sixty years ago, between 1957 and 1960, John B.

DeVries served in the Navy aboard the U.S.S.

Turner. He worked as an engineer. See Appendix 88

DeVries v. Buffalo Pumps, No. 15-1278 (3d Cir.)

4

(“DJA”). At first, his responsibilities included overseeing work in the Turner’s engine and fire rooms,

where he did not perform “actual hands-on work

with mechanical equipment.” DJA 619. Eventually,

the Navy promoted him to head of the Engineering

Department. DJA 618–19. His official duties in that

role were “limited to supervision,” but he occasionally “had to show people how to” work on equipment.

DJA 619. Some of that equipment was insulated

with asbestos, and some of it contained internal

components (like gaskets and packing) made with

asbestos. According to John DeVries, his work with

this equipment exposed him to asbestos dust.

In 2012, doctors diagnosed him with lung cancer,

allegedly caused by asbestos exposure. He and his

wife, Roberta, sued nearly 50 entities that they

claimed were responsible for his injuries, seeking relief under theories of negligence and strict liability.

These entities included the DeVries petitioners—

CBS Corporation, Foster Wheeler LLC, and Buffalo

Pumps (predecessor in interest to petitioner Air &

Liquid Systems Corp.)—all of which manufactured

and supplied equipment that the Navy used aboard

the Turner during John DeVries’s service. None of

these petitioners, however, manufactured or supplied

any of the asbestos-containing insulation, gaskets, or

packing alleged to have caused his injuries. Thus,

the litigation to date has focused largely on whether

defendants in maritime cases can be held liable for

injuries caused by third-party components that they

neither manufactured, distributed, nor sold.

1. Bath Iron Works built the Turner in 1945. DJA

619. The DeVries petitioners supplied one or more of

the durable parts installed on board the ship: West-

5

inghouse Electric Corporation (the predecessor-ininterest to petitioner CBS) supplied the Navy with

the Turner’s generators, blowers, and turbines. See

DJA 558–59, 605, 607. Foster Wheeler supplied

economizers for use inside Babcock & Wilcox boilers.

DJA 1151–53. And the ship’s pumps came from

(among others) Buffalo Pumps. See DJA 327, 352–

53, 357–63.

At the time, the Navy required equipment suppliers, including the petitioners, to conform their

equipment to precise Navy specifications. See, e.g.,

DJA 485, 487, 494, 940; 1475–76. One such requirement is particularly relevant to this case: Contractors had to supply equipment—including turbines and pumps—in “bare metal” form. That is,

contractors had to supply the equipment free of exterior insulation. See DJA 490.

As a result of this requirement, the petitioners had

no control over the materials the Navy would use to

insulate their equipment post-sale. That decision

was left to the Navy alone, which decided to insulate

the equipment on board the Turner with asbestos. It

made this decision based on its determination that

asbestos “best met the Navy’s military requirements”

at the time, including “optimum heat retention, low

weight, fire resistance, resistance to water damage

and insect infestation, and cost-efficiency.” DJA 491.

And the Navy made this decision notwithstanding

the dangers that asbestos posed—dangers that the

Navy knew of decades earlier, by 1922. See DJA

521–29.

The Navy used asbestos for more than insulation.

For example, it required asbestos-containing internal

components (like consumable gaskets and packing

6

used to form seals between metal components) in

certain equipment. See, e.g., DJA 491, 494, 1540.

These asbestos-containing internal components, unlike the insulation, could be included with equipment

supplied to the Navy. But such internal components

wore out and needed to be replaced many times over

during a ship’s multi-decade lifespan. It is thus uncontested that any asbestos-containing components

supplied with the petitioners’ equipment had worn

out and been replaced “numerous times” before John

DeVries began his service in 1957. DJA 1465, 1505.

What is more, none of the petitioners manufactured the replacement parts used aboard the Turner,

supplied such parts, or did anything else to facilitate

their installation. Instead, companies other than the

petitioners made and sold the asbestos and asbestoscontaining products to which John DeVries was allegedly exposed during his Navy service. And the

Navy chose to continue requiring asbestos insulation

and asbestos-containing replacement parts into the

late 1970s, see DJA 492—three decades after petitioners supplied their equipment for use aboard the

Turner, and at least two decades after the Navy became aware that some non-asbestos thermal insulation was “suitable for use on steam turbines and other machinery,” Supplemental Appendix 87 DeVries,

No. 15-1278.

2. In June 2012, more than 50 years after his service aboard the Turner, doctors diagnosed John

DeVries with lung cancer. DJA 97. Later that year,

he and his wife, Roberta, filed suit against the petitioners and numerous other entities in the Philadelphia Court of Common Pleas. DJA 87. Their complaint alleged that John DeVries had been exposed to

7

asbestos at every site where he worked during his

55-year career—a career that included, in addition to

3 years of Navy service, 32 years as an engineer for

Rohm & Hass, and 20 more as a part-time engineering consultant. The complaint further alleged that

this asbestos exposure caused John DeVries’s cancer.

DJA 87–98. The complaint sought to hold petitioners

liable under products-liability theories of strict liability and negligence. Pet. App. 4a.

After CBS removed the case to federal court, DJA

102–17, the DeVrieses voluntarily dismissed their

claims against some defendants. The District Court

dismissed the vast majority of other defendants,

whose summary-judgment motions the DeVrieses

chose not to oppose. This left only those defendants,

like the DeVries petitioners, that had supplied

equipment for the Turner during its construction,

but that did not make, distribute, sell, or otherwise

supply the asbestos and asbestos-containing parts

alleged to have caused John DeVries’s injuries.

Each of the DeVries petitioners moved for summary judgment under what some courts have called

the “bare-metal rule.” Under that rule, companies

that manufacture and sell equipment are not liable

for injuries caused by third-party asbestos added to

their equipment after it leaves their control. The

rule is sometimes called the “bare-metal defense.”

That, however, is a misnomer: The bare-metal rule

is not an affirmative defense, but rather an application of the principle that plaintiffs must prove causation in order to succeed on a tort claim.

The District Court granted the petitioners’ motions. As an initial matter, it held that the claims

against the petitioners were governed by maritime

8

law, since each sought relief for injuries allegedly

caused by shipboard exposure to asbestos. Pet. App.

66a, 74a, 81a. And maritime law, the court held,

recognizes the bare-metal rule. Pet. App. 67a, 74a,

82a. In reaching this conclusion, the District Court

relied on its earlier decision in Conner v. Alfa Laval,

Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa. 2012). Conner reasoned that the bare-metal rule is but a specific application of the basic tort-law principle that defendants are not liable for injuries caused by third

parties’ products—a principle that maritime law incorporates. See id. Since there was no evidence that

any of the petitioners manufactured, sold, or otherwise had any involvement with the distribution of

the asbestos alleged to have contributed to John

DeVries’s cancer, the District Court awarded summary judgment to each. Pet. App. 69a–70a, 77a–78a,

85a–87a.

3. John DeVries died from lung cancer before the

District Court entered summary judgment. But

Roberta DeVries—acting on her own behalf and now

on behalf of John DeVries’s estate—appealed to the

Third Circuit. Her brief argued that the bare-metal

rule does not apply in maritime law. According to

her, plaintiffs in asbestos suits arising under the federal courts’ admiralty jurisdiction need not prove

that the defendant’s product caused plaintiff’s harm;

instead, defendants can be held liable so long as it

was foreseeable that their product would be used in

conjunction with the alleged injury-causing product.

Because the District Court held otherwise, she argued that the Third Circuit should reverse it.

Rather than address the bare-metal rule’s applicability in maritime law, the Third Circuit remanded

9

the case so that the District Court could clarify the

scope of its ruling. The Third Circuit said that it

could not “determine whether the District Court considered the negligence claim.” Pet. App. 45a. It

asked the District Court to expressly address the

bare-metal rule’s application to negligence claims.

On remand, the District Court confirmed that it

had previously considered the negligence claims before awarding the petitioners summary judgment.

Pet. App. 22a. Emphasizing the importance of uniformity and predictability in maritime law, the District Court explained that maritime law does not impose liability for harms caused by third parties’

products. Pet. App 29a. A plaintiff accordingly cannot prevail without establishing that a defendant

manufactured or supplied the product that caused

his injuries. Pet. App 29a–30a. This rule applies

equally to strict liability and negligence claims. Pet.

App 33a–34a. The District Court accordingly reaffirmed summary judgment for Defendants on all

claims. Pet. App 22a, 42a. Roberta DeVries again

appealed to the Third Circuit.

B. The McAfee Matter.

Kenneth McAfee served aboard the U.S.S.

Wanamassa in the late 1970s. In the early-to-mid

1980s, he served aboard the U.S.S. Commodore. See

Joint Appendix 68, 107, McAfee v. Ingersoll Rand

Company, No. 15-2667 (3d Cir.) (“MJA”). Ingersoll

manufactured and supplied compressors that the

Navy used on those ships during McAfee’s service.

The Navy required Ingersoll to conform the equipment it manufactured to the Navy’s precise specifications. Supra 5. Specifically, the Navy required

Ingersoll to use certain asbestos-containing parts (for

10

example, gaskets and packing) with its compressors.

But to the extent any such parts were originally supplied with Ingersoll’s equipment, they had worn out,

and been replaced by the Navy many times before

McAfee began serving on the Wanamassa and the

Commodore. See Appellants Br. 9, 22, 29, McAfee v.

Ingersoll Rand Co., No. 15-2667. Ingersoll did not

manufacture, supply, or play any other role in replacing the asbestos-containing parts that allegedly

injured McAfee. See Pet. App. 4a. Indeed, Kenneth

McAfee admitted that he did not know who made

any of the asbestos-containing gaskets or packing

that he handled on the Wanamassa or the Commodore. See MJA 77–79.

McAfee and his wife sued nearly 50 entities, including Ingersoll Rand, for injuries allegedly caused

by asbestos exposure aboard the Wanamassa and the

Commodore. The District Court granted summary

judgment to Ingersoll, after determining that Ingersoll did not manufacture or supply the insulation,

gaskets, or packing that the Navy used with Ingersoll’s compressors. See Pet. App. 61a–62a.

As it did in DeVries, the Third Circuit summarily

remanded the case with the instructions to clarify

the bare-metal rule’s application to negligence

claims. See Pet. App. 47a. And the District Court, as

it did in DeVries, reaffirmed its earlier judgment.

See Pet. App. 18a–19a. Shirley McAfee appealed on

her own behalf, and on behalf of her now-deceased

husband’s estate.

11

C. The

Third

Circuit’s

consolidated

resolution of the DeVries and McAfee

appeals

The Third Circuit consolidated the second McAfee

and DeVries appeals. For a second time, it remanded

both matters. This time, however, it addressed

whether and how the bare-metal rule applies in maritime-law cases.

The court framed the appeal as presenting the following question: “When, if ever, should a manufacturer of a product that does not contain asbestos be

held liable for an asbestos-related injury most directly caused by parts added on to the manufacturer’s

product?” Pet. App. 5a. It held that manufacturers

can be held liable for injuries caused by third-party

asbestos—at least in negligence cases—when those

injuries are reasonably foreseeable consequences of

the manufacturer’s own conduct. Pet. App. 15a–16a.

Whether a particular injury is the reasonably foreseeable consequence of a manufacturer’s conduct will

be a fact-specific inquiry, guided by five nonexhaustive factors.

The Third Circuit’s holding grew out of its view

that the question whether manufacturers should be

held liable for injuries caused by others’ asbestos is

really all about foreseeability. In the Court’s words:

“When parties debate the bare-metal defense, they

debate when and whether a manufacturer could reasonably foresee that its actions or omissions would

cause the plaintiff’s asbestos-related injury.” Pet.

App. 7a. The Court cited nothing in support of this

assertion. Indeed, its opinion altogether ignored the

black-letter tort-law principle that defendants are

liable only for injuries they cause—a principle that

12

the petitioners argued required affirmance, since

Roberta DeVries and Shirley McAfee sought to hold

petitioners liable for injuries allegedly caused by asbestos and asbestos-containing products made, distributed, and sold by other companies.

After “rooting the bare-metal defense in foreseeability,” the court characterized the issue before it as

involving a choice between two options. On the one

hand, it could adopt a bright-line rule, under which

injuries caused by third parties’ asbestos are never

reasonably foreseeable. On the other, it could adopt

a totality-of-the-circumstances test for evaluating

foreseeability.

The Third Circuit acknowledged that the Sixth

Circuit had already addressed the question before it

in Lindstrom v. A-C Products Liability Trust, 424

F.3d 488 (6th Cir. 2005). There, the Sixth Circuit

adopted what the Third Circuit characterized as the

“bright-line rule, holding that a manufacturer of a

bare-metal product is never liable for injuries caused

by later-added asbestos-containing materials.” Pet.

App. 5a. But the Third Circuit parted ways with its

sister

circuit,

adopting

the

totality-of-thecircumstances approach. It held that a “manufacturer of a bare-metal product may be held liable for a

plaintiff’s injuries suffered from later-added asbestos-containing materials if the facts show the plaintiff’s injuries were a reasonably foreseeable result of

the manufacturer’s” conduct. Pet. App. 15a. “[F]or

example,” the court explained, “a bare-metal manufacturer may be subject to liability if it reasonably

could have known, at the time it placed its product

into the stream of commerce, that”:

13

(1)

asbestos is hazardous, and

(2)

its product will be used with an asbestos containing part, because

(a)

the product was originally equipped with

an asbestos containing part that could

reasonably be expected to be replaced

over the product’s lifetime,

(b)

the manufacturer specifically directed

that the product be used with an asbestos-containing part, or

(c)

the product required an asbestoscontaining part to function properly.

Pet. App. 15a–16a.

The court stressed, however, that these “may or

may not be the only facts on which liability can

arise,” and noted that the “finer contours of the”

bare-metal rule “must be decided on a case-by-case

basis.” Pet. App. 16a (emphasis added).

The Third Circuit adopted this totality-of-thecircumstances approach because it believed it would

do better than the bright-line rule at promoting maritime law’s “deep[] concern” for “the protection of

sailors.”

Specifically,

the

totality-of-thecircumstances approach would permit “a greater

number of deserving sailors to receive compensation.” Pet. App. 13a. The court acknowledged that

maritime law is additionally concerned with “traditions of simplicity and practicality,” Pet. App. 13a

(quoting Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 631 (1959)); that it “seeks out

‘uniform rules to govern conduct and liability,’” Pet.

App. 14a (quoting Foremost Ins. Co. v Richardson,

14

457 U.S. 668, 674–75 (1982)); and that its “fundamental interest” is “the protection of maritime commerce,” id.(quoting Exxon Corp. v. Cent. Gulf Lines,

Inc., 500 U.S. 603, 608 (1991)). But it concluded that

each of these purposes was equally consistent with

the bright-line rule it rejected and the totality-of-thecircumstances test it adopted. Pet. App. 13a–15a.

This petition for certiorari followed.

REASONS FOR GRANTING THE PETITION

The question presented involves an acknowledged

circuit split—one exacerbated by contradictory decisions from federal district courts and state courts.

That is reason enough to grant a petition for certiorari in any case involving federal law. But it is a

particularly strong reason to grant a petition arising

under this Court’s admiralty jurisdiction, which exists to ensure uniformity in maritime law. On top of

all that, the decision below is wrong, and will cause

confusion in the context of maritime-law productsliability suits.

I.

THE CIRCUITS ARE SPLIT REGARDING

THE ANSWER TO THE QUESTION

PRESENTED

In Lindstrom v. A-C Product Liability Trust, 424

F.3d 488, the Sixth Circuit held that maritime-law

defendants cannot be held liable for injuries caused

by exposure to asbestos from later-added insulation

and asbestos-containing parts that third parties

manufacture, distribute, and sell. Id. at 492–95.

The Third Circuit expressly rejected that rule in favor of its totality-of-the-circumstances foreseeability

test, and thus expressly created a circuit split. Pet.

15

App. 10a, 14a. The Third and Sixth Circuits are now

in direct conflict.

The approaches that the Third and Sixth Circuits

took to answering the question presented are as inconsistent as the answers they reached. Lindstrom

grounded its holding on the principle that tort-law

plaintiffs “must establish causation.” 424 F.3d at

492. As the Sixth Circuit explained in an earlier

case addressing the same issue, “in order to maintain

an action for either negligence or strict liability under maritime law, a plaintiff must show causation of

his injury by either the defendant’s negligence or the

product defect.” Stark v. Armstrong World Indus.,

Inc., 21 F. App’x 371, 375 (6th Cir. 2001). In asbestos cases, this means establishing that the defendant

made, supplied, or otherwise assisted in providing

the injury-causing asbestos. Lindstrom, 424 F.3d at

495–96. Thus, a defendant “cannot be held responsible for material ‘attached or connected’ to its product” post-sale. Id. at 495 (quoting Stark, 21 F. App’x

at 381). This approach stands in marked contrast to

that taken by the Third Circuit, which described the

bare-metal rule as turning entirely on the concept of

foreseeability, considering the totality of the circumstances. Pet. App. 7a–8a.

Rulings from federal district courts around the

country have further clouded the issue. Some have

sided with Lindstrom. See, e.g., Nelson v. Air & Liquid Sys. Corp., 2014 WL 6982476, at *12–*13 (W.D.

Wash. Dec. 9, 2014); Cabasug v. Crane Co., 989 F.

Supp. 2d 1027, 1039 (D. Haw. 2013). Others have

adopted something similar to the foreseeability test

embraced below. One court, for example, has held

that plaintiffs may bring failure-to-warn claims

16

against manufacturers based on later-added asbestos

if the breach of the duty to warn “regarding the original asbestos components that the manufacturer

added to the product is a proximate cause of a subsequent harmful exposure to asbestos contained in an

aftermarket replacement part.” See Bell v. Foster

Wheeler Energy Corp., 2016 WL 5780104, at *6 (E.D.

La. Oct. 4, 2016) (emphasis added). Other courts

hold that manufacturers can be held liable, at least

in failure-to-warn cases, if the future use of asbestos

is in some sense “inevitable.” See Chesher v. 3M Co.,

234 F. Supp. 3d 693, 713 (D.S.C. 2017); Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760, 769 (N.D. Ill.

2014).

There is further division even within these camps.

For example, the “inevitability” courts do not agree

on what the test requires. Some posit a three-part

test, under which manufacturers can be held liable

if:

(1)

“the defendant manufactured a product that,

by necessity, contained asbestos components”;

(2) “the asbestos containing material was essential to the proper functioning of the defendant’s product”; and

(3) “the asbestos-containing material would necessarily be replaced by other asbestoscontaining material, whether supplied by the

original manufacturer or someone else.”

Quirin, 17 F. Supp. 3d at 769–70; accord Osterhout v.

Crane Co., No. 2016 U.S. Dist. LEXIS 39890, at *34

(N.D.N.Y. Mar. 21, 2016); McAlvey v. Atlas Copco

Compressors, L.L.C., 2015 WL 5118138, at *2 (S.D.

17

Ill. Aug. 28, 2015). Others modify this test slightly,

so that failure-to-warn plaintiffs must show:

(1)

that “the defendant actually incorporated

asbestos-containing components into its original product,” and either

(2)

(a) “the defendant ‘specified’ the use of asbestos-containing replacement components,” or

(b) “such components were ‘essential to the

proper functioning’ of the defendant’s product.”

Chesher, 234 F. Supp. 3d at 714 (internal quotation

marks and citations omitted).

Further complicating matters, state courts disagree about the bare-metal rule’s applicability in cases arising under state law. Some have adopted the

Lindstrom test. See, e.g., Grant v. Foster Wheeler,

LLC, 140 A.3d 1242, 1248–49 (Maine 2016); Braaten

v. Saberhagen Holdings, 198 P.3d 493, 502 (Wash.

2008). Others have adopted some version of a foreseeability-based approach. See, e.g., In re New York

City Asbestos Litig., 59 N.E.3d 458, 475 (N.Y. 2016);

May v. Air & Liquid Sys. Corp., 129 A.3d 984, 994

(Md. 2015).

While states are free to design their tort law however they wish, this divergence causes problems for

federal courts applying maritime law, because federal courts “draw guidance from” state law when formulating maritime-law principles. Exxon Co., U.S.A.

v. Sofec, Inc., 517 U.S. 830, 839 (1996). With the

states divided as to the rule’s application, federal

courts cannot look to state law for consistent guidance regarding how (and whether) the bare-metal

rule ought to apply in the maritime context. As such,

18

the lower courts’ chances of resolving the confusion

without this Court’s help are even slimmer than they

would be in the context of a typical circuit split.

II. THE DIVISION IN THE LOWER COURTS

UNDERMINES MARITIME LAW’S STRONG

INTEREST IN UNIFORMITY

“The judicial Power” extends to “all cases of admiralty and maritime Jurisdiction.” U.S. Const., Art.

III, §2. This jurisdictional grant ensures “[t]he advantages resulting to the commerce and navigation

of the United States … from a uniformity of rules

and decisions in all maritime questions.” DeLovio v.

Boit, 7 F. Cas. 418, 443 (C.C.D. Mass. 1815) (Story,

J., riding circuit). To this day, maritime courts’ primary goals include assuring that “all operators of

vessels on navigable waters are subject to uniform

rules of conduct.” Foremost Ins., 457 U.S. at 675.

Those uniform rules should adhere to the maximum

extent possible to admiralty law’s “traditions of simplicity and practicality.” Kermarec, 358 U.S. at 631.

When it comes to the bare-metal rule, admiraltylaw defendants are not “subject to uniform rules of

conduct.” The Third and Sixth Circuits have adopted

squarely contrary approaches to the question whether manufacturers are liable for injuries caused by

asbestos made and sold by third parties. This means

that sailors, ship operators, and maritime manufacturing companies are subject to different rules depending on where on the Ohio River (Pittsburgh or

Cincinnati) or the Great Lakes (Toledo or Erie) a

barge happens to be. “The conflict between the approaches to this question taken by the Courts of Appeals is reason enough to grant this petition, for uniformity and predictability in the maritime industry

19

were the ends sought in the Constitution when federal-court maritime jurisdiction was created in the

first instance.” Peralta Shipping Corp. v. Smith &

Johnson (Shipping) Corp., 470 U.S. 1031, 1034

(1985) (Brennan, J., dissenting from denial of certiorari).

The divergent approaches taken by federal district

courts and state courts show that the confusion is

spreading, not subsiding. This Court’s intervention,

therefore, is the only realistic option for restoring

uniformity as to the question presented. Until the

Court intervenes, sailors and potential defendants

will be hard-pressed to make even an educated guess

regarding the applicable law outside the Third and

Sixth Circuits. They will, in other words, be deprived of the chance to “look ahead with some ability

to know what the stakes are in choosing one course

of action or another.” Exxon Shipping Co. v. Baker,

554 U.S. 471, 502 (2008). Permitting that confusion

to stand “would be foreign to” admiralty law’s “traditions of simplicity and practicality.” Kermarec, 358

U.S. at 631. And it would run contrary to the principle that the rules of maritime law ought not be “too

indeterminate to enable manufacturers easily to

structure their business behavior.” E. River S.S.

Corp. v. Transamerica Delaval, Inc., 476 U.S. 858,

870 (1986).

It is especially important to establish clear, uniform rules for adjudicating the liability of actions

taken pursuant to military contracts. Needless to

say, the federal government has a significant interest

in procuring the equipment it needs to defend the

country. And “[i]t is plain that the Federal Government’s interest in the procurement of equipment is

20

implicated by suits such as the present one—even

though the dispute is one between private parties.”

Boyle v. United Techs. Corp., 487 U.S. 500, 506

(1988). Again, the Navy contracted with each of the

petitioners to provide equipment for use on board

ships, and mandated that this equipment use asbestos insulation and asbestos-containing parts. Supra

5–6. Thus, Roberta DeVries and Shirley McAfee

seek to hold the petitioners liable for actions they

took in performance of military-procurement contracts. Assuming petitioners can be held liable for

such conduct at all, the standards by which their liability is to be judged must be uniform. After all, contractors (and prospective contractors) cannot rationally predict their risk if they do not know the rules

according to which their liability will be determined.

And when risk is difficult to gauge, businesses will

insure against it either by imposing higher prices or

by leaving the market altogether. Both possibilities

undermine the government’s interest in obtaining

military equipment.

These risks are magnified in the Navy context:

“On a ship most things are connected to other

things.” Stark, 21 F. App’x at 381. As a result, most

anything that goes on a ship works with or is incorporated into numerous other components and systems. Id. Permitting the imposition of liability

based on foreseeable interactions between products

thus exponentially increases the potential liability—

particularly since ships are built to last for decades,

with their various components interacting all the

while.

21

III. THE THIRD CIRCUIT ERRED IN

ADOPTING A FORESEEABILITY TEST

Finally, the Court should grant certiorari because

this is the perfect vehicle for reversing the foreseeability approach that the Third Circuit wrongly

adopted below.

A. Maritime law does not recognize

products-liability theories under which

defendants can be liable for injuries

caused by third parties’ products

The judiciary develops the substantive rules of

admiralty law “in the manner of a common law

court.” Exxon Shipping, 554 U.S. at 489–90. When

fashioning a national admiralty rule, courts look to

traditional common-law principles. See, e.g., id. at

490–515. They judge the wisdom of adopting these

principles with reference to admiralty law’s underlying objectives—for example, its interest in advancing

maritime commerce, ensuring predictability, and

promoting uniformity. See, e.g., Kermarec, 358 U.S.

at 630–31 (rejecting common-law distinction between

licensees and invitees, which “would be foreign to

[maritime law’s] traditions of simplicity and practicality”).

1. At common law, defendants are liable only for

the injuries they cause. See Restatement (Second) of

Torts §§ 4, 315 (1965). They have neither a duty to

control third parties, nor a duty to rescue potential

plaintiffs from injuries caused by third-party acts.

See id. §§ 314, 315.

As applied to products-liability law, this means

that defendants are liable only for injuries caused by

products that they either manufactured or sold. Re-

22

gardless of whether liability is predicated upon negligence or strict liability, the law penalizes only those

parties who placed the harmful product “into the

stream of commerce”—that is, those who manufactured, distributed, or sold the defective product. See

id. § 402A (strict liability only for “[o]ne who sells”

product); id. § 388 (“[o]ne who supplies directly or

through a third person a chattel” is liable in negligence for harms “caused by the use of the chattel”).

This makes sense: A defendant cannot be said to

have “caused” an injury by making and selling something other than the product that inflicted the injury.

See, e.g., In re Darvocet, Darvon, & Propoxyphene

Prod. Liab. Litig., 756 F.3d 917, 939 (6th Cir. 2014)

(concluding, under the law of 22 different states, that

branded-drug manufacturers cannot be held liable

under failure-to-warn theories in suits brought by

generic-drug consumers).

Products-liability law does not impose liability on

defendants for injuries caused by the use of other

parties’ products even when the products will be used

in combination. A manufacturer generally has no

duty of care with respect to another’s products. See,

e.g., Restatement (Third) of Torts: Prod. Liab. § 5

cmt. a (1998); 63A Am. Jur. 2d Prods. Liab. § 1027.

That is why courts have held makers of dialysis machines have no “duty to warn of the hazards” associated with dialysis-machine cleaning agents “manufactured by someone else.” Brown v. Drake-Willock

Int’l, Ltd., 530 N.W.2d 510, 515 (Mich. Ct. App.

1995). It is why automakers cannot be held liable for

defects in replacement wheels added to their cars

post-sale. See Baughman v. Gen. Motors Corp., 780

F.2d 1131, 1133 (4th Cir. 1986). It explains the rule

23

that manufacturers of non-defective component parts

of an integrated product cannot be held liable “for

injury that results from a defect in the integrated

product.” Cipollone v. Yale Indus. Prod., Inc., 202

F.3d 376, 379 (1st Cir. 2000); accord Hidalgo v.

Fagen, Inc., 206 F.3d 1013, 1017 (10th Cir. 2000).

And it justifies Lindstrom’s view that equipment

manufacturers cannot be held liable for injuries

caused by third parties’ asbestos added to their

equipment years after its sale. See Lindstrom, 424

F.3d at 495–96; see also, e.g., Grant, 140 A.3d at

1248; Braaten, 198 P.3d at 498, 500–01, 504.

The foregoing applies “[r]egardless of the theory

which liability is predicated upon.” 51 A.L.R.3d 1344

§ 2[a]. Because the bare-metal rule is premised on

the principle that a defendant has no duty of care

concerning another entity’s products, the rule bars

claims sounding in negligence. See, e.g., Braaten,

198 P.3d at 501; Conner, 842 F. Supp. 2d at 801; see

also, e.g., Walton v. Harnischfeger, 796 S.W.2d 225,

228 (Tex. App. 1990) (“the absence of a duty” to warn

about a third party’s products “compels a summary

judgment for [a manufacturer] based upon its ‘noduty’ ground”). And it applies equally to suits predicated on manufacturing-defect, design-defect, and

failure-to-warn theories. See, e.g., Lindstrom, 424

F.3d at 495 (in manufacturing-defect case, rejecting

liability where “asbestos that [plaintiff] may have

been exposed to in connection with [defendant’s]

product [was] attributable to some other manufacturer”); Sanders v. Ingram Equip., Inc., 531 So. 2d

879, 880 (Ala. 1988) (in design-defect case, “a distributor or manufacturer of a nondefective [product]

is not liable for defects in a product that it did not

24

manufacture, sell, or otherwise place in the stream of

commerce”); Braaten, 198 P.3d at 498 (describing

“majority rule” as a “‘manufacturer’s duty to warn is

restricted to warnings based on the characteristics of

the manufacturer’s own products,’” not “‘products of

others’”).

2. The traditional rule that a manufacturer generally owes no duty of care concerning another manufacturer’s product serves admiralty law’s underlying purposes.

First, a bright-line rule imposing liability only for

harm caused by products that a defendant manufactured or sold adheres to admiralty law’s general

goals of “simplicity and practicality.” Kermarec, 358

U.S. at 631. Because defendants know which products they manufacture and supply, the traditional

rule enables them to accurately assess their potential

“liability and then incorporate the insurance cost into the price of the product.” Kealoha v. E.I. du Pont

de Nemours & Co., 844 F. Supp. 590, 595 (D. Haw.

1994), aff’d, 82 F.3d 894 (9th Cir. 1996). That, in

turn, facilitates “the smooth flow of maritime commerce.” Foremost Ins. Co., 457 U.S. at 676; see also

Exxon Shipping, 554 U.S. at 502 (adopting rule that

allows parties to “look ahead with some ability to

know what the stakes are in choosing one course of

action or another”); E. River S.S., 476 U.S. at 870 (rejecting rules that are “too indeterminate to enable

manufacturers easily to structure their business behavior”).

Second, the traditional rule furthers admiralty

law’s goal of national uniformity. See Foremost Ins.,

457 U.S. at 675; Calhoun v. Yamaha Motor Corp.,

216 F.3d 338, 351 (3d Cir. 2000). As just noted, the

25

traditional rule is easy to apply and thus leads to

predictable results. And an easily applied, predictable test is a test capable of uniform application

throughout the country. By contrast, a malleable,

totality-of-the-circumstances test is not.

Third, the traditional rule promotes “the protection of maritime commerce” by eliminating the substantial burdens of requiring a manufacturer to engage in the costly and duplicative testing of third

parties’ products. Exxon, 500 U.S. at 608; see Restatement (Third) of Torts: Prods. Liab. § 5 cmt. a;

Kealoha, 82 F.3d at 899–900. This concern is heightened in the maritime context, because “[o]n a ship

most things are connected to other things,” so any

attempt to hold one manufacturer liable in admiralty

for another’s products would “implicate[] a broad[er]

class of potential sources of exposure” than in the

land-based context. Stark, 21 F. App’x at 381; see

also McIndoe v. Huntington Ingalls, Inc., 817 F.3d

1170, 1174 (9th Cir. 2016). In addition, admiralty

law routinely involves goods like anchors or engines

that are made to last for decades. It is thus particularly unreasonable to expect a manufacturer “to anticipate improper installation of all foreseeable aftermarket equipment [to its products,] and to ironclad [them] against every conceivable harm from

[the] improper installation” of another manufacturer’s defective product. Westchem Agric. Chems., Inc.

v. Ford Motor Co., 990 F.2d 426, 430 (8th Cir. 1993).

Finally, maritime law is sometimes described as

showing a “special solicitude for the welfare of those

men who undertook to venture upon hazardous and

unpredictable sea voyages.” Moragne v. States Marine Lines, Inc., 398 U.S. 375, 387 (1970). The tradi-

26

tional rule admittedly does nothing to advance this

interest, aside from creating predictable rules on the

basis of which sailors (like everyone else) can litigate

their cases. But neither does it hinder this special

solicitude: The traditional rule leaves seamen free to

sue those who cause them harm.

3. Because the relevant common-law principle is

consistent with the principles of maritime law, it

ought to be adopted as the governing principle in

maritime law cases.

B. The Third Circuit’s ad hoc foreseeability

test hinders the purposes of maritime

law

The Third Circuit did not perform anything like

the foregoing analysis. It began by declaring that

the question presented—whether maritime-law defendants can be held liable for injuries caused by

others’ products—turns on foreseeability. The Third

Circuit appears to have relied on nothing beyond its

own say-so in reaching this conclusion. But regardless, the Third Circuit certainly did not derive the

rule from traditional common-law principles, since it

did not even consult those principles. Had it done so,

it would have recognized one such principle previously invoked by this Court in the maritime-law context:

“In products-liability law, where there is a duty to

the public generally, foreseeability is an inadequate

brake” on liability. E. River, 476 U.S. at 874.

The Third Circuit next considered the purposes of

maritime law, but only for assistance in helping it

define the breadth of the foreseeability test it had

conjured up. The court (for reasons not entirely

clear) thought itself tasked with choosing between

27

two options. On the one hand, a bright-line rule under which injuries caused by others’ products are always unforeseeable—and thus never give rise to

foreseeability.

On the other, a totality-of-thecircumstances standard under which such injuries

are sometimes foreseeable—and thus sometimes give

rise to liability. The court looked to the purposes of

maritime law in deciding between these options.

This approach is upside down: Rather than identifying a rule and testing it against the purposes of

maritime law, the Third Circuit used maritime law

to craft the rule in the first place. And in any event,

as already explained above, the rule the Sixth Circuit adopted in Lindstrom—the “bright-line rule”

that is in fact a straightforward application of the

principle that defendants are liable only for injuries

that they cause—is the one that promotes the purposes of maritime law. Supra 24–26.

The Third Circuit’s contrary reasoning is unpersuasive. For example, the Third Circuit determined

that maritime law’s concern with “simplicity and

practicality” is neutral between a bright-line rule and

a totality-of-the-circumstances standard. According

to the court, while “‘simplicity’ might be seen as favoring the rule-based approach,” it “could also be

seen as favoring a foreseeability-based standard, because simplicity is related to familiarity, and foreseeability is such a familiar and key part of tort law.”

Pet. App. 13a–14a. None of this makes sense. For

one thing, it is not true that familiarity implies simplicity—many familiar tasks are complex to carry out

and lead to unpredictable results, as anyone who has

attempted to calculate her own taxes can attest. For

another, it is particularly dubious to suggest that

28

foreseeability, which “remains an elusive and indefinite concept” after all these years, Stockton v. Ford

Motor Co., 2017 WL 2021760, at *14 (Tenn. Ct. App.

May 12, 2017), is simple because it is familiar.

What is more, the concept of foreseeability is especially elusive, indefinite, and incapable of principled

application in the bare-metal context. The Third

Circuit’s opinion directs courts to ask, in assessing

foreseeability, whether the defendant “reasonably

could have known” that its “product required an asbestos-containing part to function properly.” Pet.

App. 15a. Relatedly, courts are to consider whether

the defendant “reasonably could have known” that

its product “was originally equipped with an asbestos-containing part that could reasonably be expected

to be replaced over the product’s lifetime.” Id. Making these determinations is an inevitably arbitrary

task. If, for example, there are three products that

are compatible with a defendant’s own product, does

a defendant “know” that any given one will be used

based on the 33 percent chance that a particular consumer may select it? What about ten alternatives,

each with a 10 percent chance of being used? Is a 51

percent likelihood required, and how is that determined?

And what does it mean for equipment to “function

properly”? If the product would operate 95 percent of

the time without an asbestos-containing part, does

the product “require” that part? Could it “reasonably

be expected” that the part will be replaced with another asbestos-containing part? How about if the rate

drops to 85 percent? Does a product “require” the

asbestos-containing part if it would work without it,

but slightly less efficiently? What if there is a per-

29

fect substitute for the asbestos-containing part, but it

is twice the price? Three times the price? Ten times

the price? One hundred times the price?

In addition to these metaphysical questions, there

are practical ones. Most obviously: How far into the

future are manufacturers expected to see? If a manufacturer could have reasonably expected that a

product would “require” the use of asbestos in the

immediate future, but had no idea what alternative

technologies might arise later, is the exposure to asbestos six months down the line foreseeable? How

about a year? Ten years? Forty years? Does it depend on the state of the science? Does it depend on

what the manufacturer knows about the state of the

science? The Third Circuit’s foreseeability approach

cannot plausibly be described as simpler and more

predictable than a bright-line rule.

To make all of this worse, the Third Circuit’s logic

extends beyond asbestos cases; it extends to all

products-liability suits alleging an injury caused by a

hazardous substance or component added to a defendant’s product post-sale. The breadth of the rule

is especially troubling as applied to Navy contractors. As addressed above, the inability to confidently

predict potential liability will cause Navy contractors

to charge more, or to cease providing goods, frustrating the Navy’s interest in efficient procurement contracting. And the Third Circuit’s foreseeability test

is nothing if not unpredictable. Third Circuit’s assessment of maritime law’s predictability interest is

therefore difficult to credit.

The same goes for its treatment of the interest in

promoting maritime commerce and the adoption of

uniform rules. Pet. App. 14a–15a. The Third Circuit

30

concluded that these interests too were neutral between the bright-line rule and the totality-of-thecircumstances standard. This was so, it said, because other courts had adopted both approaches,

meaning it was impossible to achieve uniformity regardless of the test adopted. This is a non sequitur.

First, when courts are divided between a bright-line

rule that limits liability and a totality-of-thecircumstances standard that expands it, maritime

commerce is best promoted by the former, regardless

of what other courts have done. To be sure, maritime law’s interest in uniformity is best promoted by

adhering to decisions from other courts. But that

should have led the Third Circuit to adopt the brightline rule, which was at the time the only rule ever

adopted by a federal appellate court.

Having wrongly determined that the foregoing

purposes of maritime law were neutral between a

bright-line rule and a foreseeability approach, the

court below relied exclusively on the “special solicitude” that admiralty courts pay to seamen. And it

determined that this policy favored the foreseeability

test, because it would “permit a greater number of

deserving sailors to receive compensation.” Pet. App.

13a. Of course, this Court has never held that maritime law’s concern for the welfare of seamen requires

whatever rule maximizes their potential recovery.

To the contrary, it has emphasized that it is “not free

to expand remedies at will simply because it might

work to the benefit of seamen and those dependent

upon them.” Miles v. Apex Marine Corp., 498 U.S.

19, 36 (1990) (adding: “We will not create, under our

admiralty powers, a remedy that is disfavored by a

clear majority of the States and that goes well be-

31

yond the limits of Congress’ ordered system of recovery for seamen’s injury and death.”) Regardless,

since the traditional common-law rule is at least consistent with the concern for seamen’s welfare, supra

25–26, this interest alone does not justify rejecting

the traditional rule.

C. The petitioners were entitled to

summary judgment under the foregoing

principles

Because maritime-law defendants cannot be held

liable for injuries caused by third parties’ products,

the petitioners are not liable as a matter of law for

John DeVries’s and Kenneth McAfee’s injuries. Accordingly, the Third Circuit erred in reversing the

District Court’s summary judgment awards.

Roberta DeVries claims that her husband was injured by exposure to external asbestos insulation attached to blowers, turbines, and generators manufactured by Westinghouse, and pumps manufactured by

Buffalo. But the DeVries petitioners did not manufacture or supply any of that insulation. See DJA

490. Indeed, even Roberta DeVries’s own evidence

confirms that “[i]nsulation [was] furnished and installed by the shipbuilder.” DJA 695; see also DJA

699 (“All other required fittings and attachments will

be furnished by the purchaser, including turbineheat insulation and lagging.”); DJA 682 (“The naval

architect is responsible to cover the turbines and the

other piping insulation in the engine room so that

personnel will not be burned.”).

The claims in DeVries are additionally predicated

on the allegation that John DeVries’s injuries were

caused by exposure to internal asbestos-containing

32

gaskets and packing used with equipment made by

Foster Wheeler and Buffalo.

Similarly, Shirley

McAfee alleges that her husband contracted cancer

caused by exposure to asbestos in replacement parts

used with Ingersoll’s compressors. None of the petitioners, however, manufactured or supplied any of

the asbestos-containing parts to which DeVries and

McAfee were allegedly exposed. See Pet. App. 4a,

61a, 69a, 78a, 86a.

Because it is undisputed that the petitioners neither made nor sold the asbestos alleged to have

caused John DeVries’s and Kenneth McAfee’s injuries, this case squarely presents the question—on

which the circuits are divided—whether productsliability defendants in maritime law cases can be

held liable for injuries caused by products that they

neither made nor sold. This case thus affords the

Court an opportunity to resolve that question, and to

correct the Third Circuit’s erroneous answer.

CONCLUSION

The Court should grant this petition for a writ of

certiorari.

33

January 31, 2018

Respectfully submitted,

Benjamin M. Flowers

JONES DAY

325 John H. McConnell

Blvd., Suite 600

Columbus, OH 43215

Shay Dvoretzky

Counsel of Record

JONES DAY

51 Louisiana Ave., N.W.

Washington, D.C. 20001

Tel: (202) 879-3939

sdvoretzky@jonesday.com

Counsel for Petitioner CBS Corporation

Brady L. Green

WILBRAHAM, LAWLER &

BUBA

1818 Market Street,

Suite 3100

Philadelphia, PA 19103

Counsel for Petitioner

Air & Liquid Systems

Corp. (successor by merger to Buffalo Pumps,

Inc.)

Christopher J. Keale

Afigo I. OkpewhoFadahunsi

TANENBAUM KEALE LLP

1085 Raymond Blvd.

One Newark Center

16th Floor

Newark, NJ 07102

Counsel for Petitioner

Foster Wheeler LLC

John J. Hare

MARSHALL DENNEHEY

WARNER COLEMAN &

GOGGIN

2000 Market Street,

Suite 2300

Philadelphia, PA 19103

Counsel for Petitioner

Ingersoll Rand, Inc.