Petition for Writ of Certiorari — Air & Liquid Systems Corp. v. DeVries, 139 S. Ct. 986 (2019) (No. 17-1104)
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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
Blvd., Suite 600 51 Louisiana Ave NW,
Columbus, OH 43215 Washington, DC 20001
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 mer-
ger to Buffalo Pumps,
Inc.)
Christopher J. Keale
Afigo |. Okpewho-
Fadahunsi
TANENBAUM KEALE LLLP
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.
(continued from front cover)
i
QUESTION PRESENTED
Can products-liability defendants be }-:d liable
under maritime law for injuries caused by products
that they did not make, sell, or distribute?
1
PARTIES TO THE PROCEEDING
AND RULE 29.6 STATEMENT
The respondents, who were the plaintiffs-
appellants below, are:
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 defendants-
appellees below, are:
1. Air & Liquid Systems Corp. is a wholly owned
subsidiary of Ampco-Pittsburgh Corporation, a pub-
licly traded corporation. It is the successor-by-
merger 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 Corpora-
tion. 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 ple (Scotland), a pub-
licly traded company. No known person or entity
currently owns 10% or more of John Wood Group
ple’s (Scotland) publicly traded common stock.
ill
4. The parent company for Ingersoll Rand Com-
pany is Ingersoll Rand PLC, a publicly traded corpo-
ration. 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 defendants-
appellees on the Third Circuit’s docket below. None
of the following parties are petitioners in this Court:
20th Century Gove Corp. of Texas
Allen Bradley Co.
Allen Sherman Hoff
American Optical
American Optical Corp.
AMTICO Division of American Biltrite
Aurora Pumps
AZRock Industries, Inc.
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.
CEIee ww =
iv
Crown Cork & Seal Co., Inc.
. Federal Mogul Asbestos Personal Injury
Trust
Gallagher Fluid Seals, Inc.
General Electric Co.
Goodyear Tire & Rubber Co.
Goulds Pumps, Inc.
Hajoca Corp.
Hampshire Industries, Inc.
28. IMO Industries, Inc.
J.A. Sexauer
J.H. France Refractories Co.
John Crane, Inc.
Metropolitan Life Insurance Co.
Minnesota Mining & Manufacturing Co.
McCord Gasket Co.
NOSROC Corporation
Oakfabco, Inc.
Owens-Illinois, Inc.
Parker Hannifin Corp.
Pecora Corp.
40. Peerless Industries, Inc.
Riley Stoker Corp.
Selby Battersby & Co.
Sid Harvey Mid Atlantic, Inc.
Therman Engineering, Inc.
Trane U.S. Inc.
v
46. Warren Pumps, LLC
47. Weil McClain Division of the Marley Co.
vi
TABLE OF CONTENTS
Page
QUESTION PRESENTED...............ccccccscccceeeeeeeeeeeeeees i
PARTIES TO THE PROCEEDING AND
RULE 29.6 STATEMENT ...................000000c000++ ii
TABLE OF AUTHORITIEG.....................:00cceccceceeeeees ix
PETITION FOR A WRIT OF CERTIORARI ............ |
TE aecsicctesecssetsesnsctecnnesdnceuasensenisctanvese 1
. ENS EONS mn 2
STATUTORY PROVISIONS INVOLVED ................ 3
STATEMENT OF THE CASE. ..................0cccccceseeeeeees 3
A. The DeVries Matter .....................cc0s0000 3
B. The McAfee Matter .................ccc00eeeeeeees 9
C. The Third Circuit’s consolidated
resolution of the DeVries and
McAfee appeals...................eeeeccsssseeeees 11
REASONS FOR GRANTING THE PETITION ...... 14
I. THE CIRCUITS ARE SPLIT REGARD-
ING THE ANSWER TO THE QUES-
TION PRESENTED ................:0ccceeeeeeeeeeeeeees 14
ll. THE DIVISION IN THE LOWER
COURTS UNDERMINES MARITIME
LAW’S STRONG INTEREST IN UNI-
Il. THE THIRD CIRCUIT ERRED IN
ADOPTING A FORESEEABILITY
vil
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 par-
CE IIE saccescessenesnccatcsscssenerisccscees 21
B. The Third Circuit’s ad hoc fore-
seeability test hinders the pur-
poses of maritime law ....................0+-++ 26
C. The petitioners were entitled to
summary judgment under the
foregoing principles.................<.-s:+++++++ 31
Se crciicisrccdenercsintunesacsitniiaehidtiitenitianeninasuaneen 32
APPENDIX A: Opinion of the Court of Appeals
for the Third Circuit (October 3, 2017).............. la
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) ................cecceseeseeeeeesees 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
vill
TABLE OF CONTENTS
(continued)
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
CI veccesertevtentcicentrnnsccsistartauesueesinninsmese
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)..............0000..c.cccccsccosssesees
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) ........................00eee000-
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, Enc.) ........00.c.ccccssseseseseeeeeees
Page
...19a
ix
TABLE OF AUTHORITIES
CASES
Baughman v. Gen. Motors Corp.,
780 F.2d 1131 (4th Cir. 1986).................
Bell v. Foster Wheeler Energy Corp.,
2016 WL 5780104
eT ee
Boyle v. United Techs. Corp.,
GE TE Gare Ge esterctcccsesccesccsccsccsceosces
Braaten v. Saberhagen Holdings,
198 P.3d 493 (Wash. 2008) .....................
Brown v. Drake-Willock Int'l, Lid.,
530 N.W.2d 510
(Mich. Ct. App. 1995) ............-.-ces-cse0se---
Cabasug v. Crane Co.,
989 F. Supp. 2d 1027 (D. Haw. 2013).....
Calhoun v. Yamaha Motor Corp.,
216 F.3d 338 (3d Cir. 2000) .................-..
Chesher v. 3M Co.,
234 F. Supp. 3d 693 (D.S.C. 2017)..........
Cipollone v. Yale Indus. Prod., Inc.,
202 F.3d 376 (1st Cir. 2000) ...................
Conner v. Alfa Laval, Inc.,
842 F. Supp. 2d 791 (E.D. Pa. 2012) ......
DeLovio v. Boit,
7 F. Cas. 418 (C.C.D. Mass. 1815)..........
Page(s)
x
TABLE OF AUTHORITIES
(continued)
Page(s)
E. River S.S. Corp. v. Transamerica
Delaval, Inc.,
Fr i ecescccnsasncccscosesenseerses 19, 24, 26
Exxon Co., U.S.A. v. Sofec, Inc.,
rn 17
Exxon Corp. v. Cent. Gulf Lines, Inc.,
I iircticencscectnnedntnnisicecssecermmsintesensnas 25
Exxon Shipping Co. v. Baker,
I Be ae i icccescecectccsceveccccscecscvsses 19, 21, 24
Foremost Ins. Co. v Richardson,
ne 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).........................24. 23
In re Darvocet, Darvon, & Propoxyphene
Prod. Liab. Litig.,
756 F.3d 917 (6th Cir. 2014)..............ccccc cette 22
In re New York City Asbestos Litig.,
59 N.E.3d 458 (N.Y. 2016) .................ccceeeeeeeeeeeeee 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).................eeeeeceeees 18, 19, 21, 24
xl
TABLE OF AUTHORITIES
(continued)
Lindstrom v. A-C Products Liability
Trust,
424 F.3d 488 (6th Cir. 2005)..................+.
May v. Air & Liquid Sys. Corp.,
129 A.3d 984 (Md. 2015) ...............ccceeeecees
McAlvey v. Atlas Copco Compressors,
L.L.C.,
2015 WL 5118138
(S.D. Til. Aug. 28, 2015)..................sccsee0es
MclIndoe v. Huntington Ingalls, Inc.,
817 F.3d 1170 (9th Cir. 2016)..................
Miles v. Apex Marine Corp.,
I le Be i ereeceeeresesccsnssececscccrevens
Moragne v. States Marine Lines, Inc.,
398 U.S. 376 (1970)..................sescescsrreerees
Nelson v. Air & Liquid Sys. Corp.,
2014 WL 6982476
(W.D. Wash. Dec. 9, 2014) ..............00000000-
Osterhout v. Crane Co.,
No. 2016 U.S. Dist. LEXIS 39890
(N.D.N.Y. Mar. 21, 2016)...............c0000000es
Peralta Shipping Corp. v. Smith &
Johnson (Shipping) Corp.,
470 U.S. 1031 (1985) .....e-ceccecessescesseeeeeeeens
Quirin v. Lorillard Tobacco Co.,
17 F. Supp. 3d 760 (N.D. Til. 2014)..........
TABLE OF AUTHORITIES
(continued)
Page(s)
Sanders v. Ingram Equip., Inc.,
531 So. 2d 879 (Ala. 1988) ....................ceeceeeeeeeeeee 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).....................cccc000e 28
Walton v. Harnischfeger,
796 S.W.2d 225 (Tex. App. 1990)......................0. 23
Westchem Agric. Chems., Inc. v.
Ford Motor Co..,
990 F.2d 426 (8th Cir. 1993) ...............cccccecceceeeeees 25
CONSTITUTIONAL AND STATUTORY AUTHORITIES
ee I. . FEU Tia UI csesncsncnevesconcsessccsseceicucccbeiteidiand 18
FS Fe Oe Oe cncdsrsnsctsnienivtanivienncnicsianmniastinamiaal 3
A Ue PII cccococscsasonsscocconsansencsinntesiseeeaaiailaaanhaaia 3
ee I estas ccsccstinscaccenceociesncsnsisptitaiaimaian 2
ile A i ninecsccesticasctevistsccissenemnseghalumiciaiian 2
OTHER AUTHORITIES
OR ee I Oe teceictasccctencsenicmcmncssccisnsinnntinianeal 23
63A Am. Jur. 2d Prods. Liab. § 1027........................ 22
Restatement (Second) of Torts
i ruideracisccetnbenectdundatennnsnstedceneieansunsiiaiiaiiinnde 21
Restatement (Second) of Torts
EY Ea een. 21
TABLE OF AUTHORITIES
(continued)
Page(s)
Restatement (Second) of Torts
NE 21
Restatement (Second) of Torts
EEE 22
Restatement (Second) of Torts
EE Ee 22
Restatement (Third) of Torts:
a 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 products-
liability defendant be held liable for injuries alleged-
ly 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 fol-
lows 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 inju-
ries 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 Fed-
eral 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 Inger-
soll Rand in an unpublished order available on
Westlaw at 2014 WL 12601085, Pet. App. 55a.
The Third Circuit remanded in an unpublished or-
der. Pet. App. 43a. On remand, the District Court
again awarded summary judgment, again in an un-
published order. Pet. App. 18a. On appeal, the
Third Circuit consolidated the case with the DeVries
matter; the opinion in the consolidated cases is pub-
lished in the Federal Reporter at 873 F.3d 232. Pet.
App. la.
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 col-
orable federal common-law defense to claims arising
from their conduct as contractors for the United
States Navy.
3
After the District Court awarded summary judg-
ment to the petitioners in both cases, Roberta
Devries (in her individual capacity, and as adminis-
tratrix 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
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 mat-
ters: DeVries v. General Electric Co., et al., No. 13-
cv-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 turn-
ing 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 over-
seeing 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 occasional-
ly “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 re-
lef 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-in-
interest 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 suppli-
ers, including the petitioners, to conform their
equipment to precise Navy specifications. See, e.g.,
DJA 485, 487, 494, 940; 1475-76. One such re-
quirement is particularly relevant to this case: Con-
tractors had to supply equipment—including tur-
bines and pumps—in “bare metal” form. That is,
contractors had to supply the equipment free of exte-
rior 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, un-
like 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 un-
contested 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 manufac-
tured 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 asbestos-
containing products to which John DeVries was al-
legedly 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 peti-
tioners supplied their equipment for use aboard the
Turner, and at least two decades after the Navy be-
came aware that some non-asbestos thermal insula-
tion was “suitable for use on steam turbines and oth-
er machinery,” Supplemental Appendix 87 DeVries,
No. 15-1278.
2. In June 2012, more than 50 years after his ser-
vice aboard the Turner, doctors diagnosed John
DeVries with lung cancer. DJA 97. Later that year,
he and his wife, Roberta, filed suit against the peti-
tioners and numerous other entities in the Philadel-
phia Court of Common Pleas. DJA 87. Their com-
plaint 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 engineer-
ing 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 liabil-
ity 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 sum-
mary 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 applica-
tion of the principle that plaintiffs must prove causa-
tion in order to succeed on a tort claim.
The District Court granted the petitioners’ mo-
tions. 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, 8la. 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). Con-
ner reasoned that the bare-metal rule is but a specif-
ic application of the basic tort-law principle that de-
fendants are not liable for injuries caused by third
parties’ products—a principle that maritime law in-
corporates. See id. Since there was no evidence that
any of the petitioners manufactured, sold, or other-
wise had any involvement with the distribution of
the asbestos alleged to have contributed to John
DeVries’s cancer, the District Court awarded sum-
mary 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 fed-
eral courts’ admiralty jurisdiction need not prove
that the defendant’s product caused plaintiffs 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 ar-
gued that the Third Circuit should reverse it.
Rather than address the bare-metal rule’s applica-
bility 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 con-
sidered 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 be-
fore awarding the petitioners summary judgment.
Pet. App. 22a. Emphasizing the importance of uni-
formity and predictability in maritime law, the Dis-
trict Court explained that maritime law does not im-
pose liability for harms caused by third parties’
products. Pet. App 29a. A plaintiff accordingly can-
not 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 reaf-
firmed 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 equip-
ment it manufactured to the Navy’s precise specifica-
tions. 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 sup-
plied 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 re-
placing 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 Commo-
dore. See MJA 77—79.
McAfee and his wife sued nearly 50 entities, in-
cluding 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 Inger-
soll did not manufacture or supply the insulation,
gaskets, or packing that the Navy used with Inger-
soll’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 mar-
itime-law cases.
The court framed the appeal as presenting the fol-
lowing question: “When, if ever, should a manufac-
turer of a product that does not contain asbestos be
held liable for an asbestos-related injury most direct-
ly 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 fore-
seeable consequence of a manufacturer’s conduct will
be a fact-specific inquiry, guided by five non-
exhaustive 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 rea-
sonably foresee that its actions or omissions would
cause the plaintiffs 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 as-
bestos and asbestos-containing products made, dis-
tributed, and sold by other companies.
After “rooting the bare-metal defense in foreseea-
bility,” 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-the-
circumstances approach. It held that a “manufactur-
er of a bare-metal product may be held liable for a
plaintiffs injuries suffered from later-added asbes-
tos-containing materials if the facts show the plain-
tiffs injuries were a reasonably foreseeable result of
the manufacturer’s” conduct. Pet. App. 15a. “[Fjor
example,” the court explained, “a bare-metal manu-
facturer 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 con-
taining 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 asbes-
tos-containing part, or
(c) the product required an _ asbestos-
containing 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-the-
circumstances approach because it believed it would
do better than the bright-line rule at promoting mar-
itime law’s “deep[] concern” for “the protection of
sailors.” Specifically, the _ totality-of-the-
circumstances approach would permit “a greater
number of deserving sailors to receive compensa-
tion.” Pet. App. 13a. The court acknowledged that
maritime law is additionally concerned with “tradi-
tions of simplicity and practicality,” Pet. App. 13a
(quoting Kermarec v. Compagnie Generale Transat-
lantique, 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 “funda-
mental interest” is “the protection of maritime com-
merce,” 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-the-
circumstances 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 deci-
sions from federal district courts and state courts.
That is reason enough to grant a petition for certio-
rari in any case involving federal law. But it is a
particulariy strong reason to grant a petition arising
under this Court’s admiralty jurisdiction, which ex-
ists 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 products-
liability suits.
I. THE CIRCUITS ARE SPLIT REGARDING
THE ANSWER TO THE QUESTION
PRESENTED
Ir 4indstrom 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. Jd. at 492-95.
The Third Circuit expressly rejected that rule in fa-
vor 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 in-
consistent 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 un-
der 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 asbes-
tos 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 responsi-
ble for material ‘attached or connected’ to its prod-
uct” 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 circum-
stances. 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 & Liq-
uid 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 orig-
inal asbestos components that the manufacturer
added to the product is a proximate cause of a subse-
quent 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. Lo-
rillard Tobacco Co., 17 F. Supp. 3d 760, 769 (N.D. Il.
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 compo-
nents’;
(2) “the asbestos containing material was essen-
tial to the proper functioning of the defend-
ant’s product”; and
(3) “the asbestos-containing material would nec-
essarily be replaced by other asbestos-
containing 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
lil. 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 orig-
inal product,” and either
(2) (a) “the defendant ‘specified’ the use of asbes-
tos-containing replacement components,” or
(b) “such components were ‘essential to the
proper functioning’ of the defendant’s prod-
uct.”
Chesher, 234 F. Supp. 3d at 714 (internal quotation
marks and citations omitted).
Further complicating matters, state courts disa-
gree about the bare-metal rule’s applicability in cas-
es 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 fore-
seeability-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 how-
ever they wish, this divergence causes problems for
federal courts applying maritime law, because feder-
al courts “draw guidance from” state law when for-
mulating 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 guid-
ance 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.
Il. THE DIVISION IN THE LOWER COURTS
UNDERMINES MARITIME LAW’S STRONG
INTEREST IN UNIFORMITY
“The judicial Power” extends to “all cases of admi-
ralty and maritime Jurisdiction.” U.S. Const., Art.
Ill, §2. This jurisdictional grant ensures “[tjhe ad-
vantages 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’ pri-
mary 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 sim-
plicity and practicality.” Kermarec, 358 U.S. at 631.
When it comes to the bare-metal rule, admiralty-
law defendants are not “subject to uniform rules of
conduct.” The Third and Sixth Circuits have adopted
squarely contrary approaches to the question wheth-
er manufacturers are liable for injuries caused by
asbestos made and sold by third parties. This means
that sailors, ship operators, and maritime manufac-
turing companies are subject to different rules de-
pending 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 ap-
proaches to this question taken by the Courts of Ap-
peals is reason enough to grant this petition, for uni-
formity and predictability in the maritime industry
19
were the ends sought in the Constitution when fed-
eral-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 certio-
rari).
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 de-
prived 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 “tradi-
tions of simplicity and practicality.” Kermarec, 358
U.S. at 631. And it would run contrary to the princi-
ple that the rules of maritime law ought not be “too
indeterminate to enable manufacturers easily to
structure their business behavior.” FE. River S.S.
Corp. v. Transamerica Delaval, Inc., 476 U.S. 858,
870 (1986).
It is especially important to establish clear, uni-
form 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 “[ijt is plain that the Federal Govern-
ment’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 asbes-
tos 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 con-
tracts. Assuming petitioners can be held liable for
such conduct at all, the standards by which their lia-
bility is to be judged must be uniform. After all, con-
tractors (and prospective contractors) cannot ration-
ally 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 incor-
porated into numerous other components and sys-
tems. /d. 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
Il. THE THIRD CIRCUIT ERRED IN
ADOPTING A FORESEEABILITY TEST
Finally, the Court should grant certiorari because
this is the perfect vehicle for reversing the foreseea-
bility 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 underly-
ing 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 practi-
cality”).
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 neg-
ligence or strict liability, the law penalizes only those
parties who placed the harmful product “into the
stream of commerce”—that is, those who manufac-
tured, distributed, or sold the defective product. See
id. § 402A (strict liability only for “[o]ne who sells”
product); id. § 388 (“[o}Jne who supplies directly or
through a third person a chattel” is liable in negli-
gence 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 some-
thing 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 ma-
chines have no “duty to warn of the hazards” associ-
ated with dialysis-machine cleaning agents “manu-
factured 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 “[rjegardless 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 ‘no-
duty’ ground”). And it applies equally to suits predi-
cated 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 manufac-
turer’); Sanders v. Ingram Equip., Inc., 531 So. 2d
879, 880 (Ala. 1988) (in design-defect case, “a dis-
tributor 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 gen-
erally owes no duty of care concerning another man-
ufacturer’s product serves admiralty law’s underly-
ing purposes.
First, a bright-line rule imposing liability only for
harm caused by products that a defendant manufac-
tured or sold adheres to admiralty law's general
goals of “simplicity and practicality.” Kermarec, 358
U.S. at 631. Because defendants know which prod-
ucts they manufacture and supply, the traditional
rule enables them to accurately assess their potential
“liability and then incorporate the insurance cost in-
to the price of the product.” Kealoha v. E.I. du Pont
de Nemours & Co., 844 F. Supp. 590, 595 (D. Haw.
1994), affd, 82 F.3d 894 (9th Cir. 1996). That, in
turn, facilitates “the smooth flow of maritime com-
merce.” 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 (re-
jecting rules that are “too indeterminate to enable
manufacturers easily to structure their business be-
havior’).
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, predicta-
ble 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 protec-
tion of maritime commerce” by eliminating the sub-
stantial burdens of requiring a manufacturer to en-
gage in the costly and duplicative testing of third
parties’ products. Exxon, 500 U.S. at 608; see Re-
statement (Third) of Torts: Prods. Liab. § 5 cmt. a;
Kealoha, 82 F.3d at 899-900. This concern is height-
ened 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 particu-
larly unreasonable to expect a manufacturer “to an-
ticipate improper installation of all foreseeable af-
termarket equipment [to its products,] and to iron-
clad [them] against every conceivable harm from
[the] improper installation” of another manufactur-
er’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 Ma-
rine 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 de-
fendants 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 regard-
less, 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 previous-
ly 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 un-
der which injuries caused by others’ products are al-
ways unforeseeable—and thus never give rise to
foreseeability. On the other, a_ totality-of-the-
circumstances 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 identi-
fying 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 Cir-
cuit 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 pur-
poses of maritime law. Supra 24-26.
The Third Circuit’s contrary reasoning is unper-
suasive. 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 fa-
voring the rule-based approach,” it “could also be
seen as favoring a foreseeability-based standard, be-
cau~e simplicity is related to familiarity, and fore-
seeability 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 sim-
plicity—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 indefi-
nite 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 espe-
cially 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 as-
bestos-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 asbes-
tos-containing part that could reasonably be expected
to be replaced over the product's lifetime.” Id. Mak-
ing these determinations is an inevitably arbitrary
task. If, for example, there are three products that
are compatible with a defer¢ant’s own product, does
a defendant “know” that any given one will be used
based on the 33 percent chance that a particular con-
sumer imay 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 deter-
mined?
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 an-
other 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 man-
ufacturer 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 as-
bestos six months down the line foreseeable? How
about a year? Ten years? Forty years? Does it de-
pend 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 de-
fendant’s product post-sale. The breadth of the rule
is especially troubling as applied to Navy contrac-
tors. As addressed above, the inability to confidently
predict potential liability will cause Navy contractors
to charge more, or to cease providing goods, frustrat-
ing the Navy’s interest in efficient procurement con-
tracting. And the Third Circuit's foreseeability test
is nothing if not unpredictable. Third Circuit’s as-
sessment 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 be-
tween the bright-line rule and the totality-of-the-
circumstances standard. This was so, it said, be-
cause other courts had adopted both approaches,
meaning it was impossible to achieve uniformity re-
gardless 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-the-
circumstances standard that expands it, maritime
commerce is best promoted by the former, regardless
of what other courts have done. To be sure, mari-
time 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 bright-
line 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 solici-
tude” 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 mari-
time 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 tw 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 recov-
ery for seamen’s injury and death.”) Regardless,
since the traditional common-law rule is at least con-
sistent 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. Ac-
cordingly, the Third Circuit erred in reversing the
District Court’s summary judgment awards.
Roberta DeVries claims that her husband was in-
jured by exposure to external asbestos insulation at-
tached to blowers, turbines, and generators manufac-
tured by Westinghouse, and pumps manufactured by
Buffalo. But the DeVries petitioners did not manu-
facture or supply any of that insulation. See DJA
490. Indeed, even Roberta DeVries’s own evidence
confirms that “[ijnsulation [was] furnished and in-
stalled by the shipbuilder.” DJA 695; see also DJA
699 (“All other required fittings and attachments will
be furnished by the purchaser, including turbine-
heat 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 peti-
tioners, 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 nei-
ther made nor sold the asbestos alleged to have
caused John DeVries’s and Kenneth McAfee’s inju-
ries, this case squarely presents the question—on
which the circuits are divided—whether products-
liability 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 Shay Dvoretzky
JONES DAY Counsel of Record
325 John H. McConnell JONES DAY
Blvd., Suite 600 51 Louisiana Ave., N.W.
Columbus, OH 43215 Washington, D.C. 20001
Tel: (202) 879-3939
sdvoretzky@jonesday.com
Counsel for Petitioner CBS Corporation
Brady L. Green John J. Hare
WILBRAHAM, LAWLER & MARSHALL DENNEHEY
BUBA WARNER COLEMAN &
1818 Market Street, GOGGIN
Suite 3100 2000 Market Street,
Philadelphia, PA 19103 Suite 2300
Philadelphia, PA 19103
Counsel for Petitioner
Air & Liquid Systems Counsel for Petitioner
Corp. (successor by mer- Ingersoll Rand, Inc.
wt Buffalo Pumps,
ne.
Christopher J. Keale
Afigo I. Okpewho-
Fadahunsi
TANENBAUM KEALE LLP
1085 Raymond Bivd.
One Newark Center
16th Floor
Newark, NJ 07102
Counsel for Petitioner
Foster Wheeler LLC
APPENDIX
la
APPENDIX A
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 16-2602 & 16-2669
IN RE: ASBESTOS PRODUCTS
LIABILITY LITIGATION (No. VI)
ROBERTA G. DEVRIES, Administratrix
of the Estate of John B. Devries,
Deceased, and Widow in her own right,
Appellant in 16-2602
IN RE: ASBESTOS PRODUCT
LIABILITY LITIGATION (No. VI)
SHIRLEY MCAFEE, Executrix
of the Estate of Kenneth McAfee,
Deceased, and Widow in her own right,
Appellant in 16-2669
2a
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Judge: Honorable Eduardo C. Robreno
(D.C. Nos. 5-13-cv-00474, 5-13-cv-06856,
2-01-md-00875)
Argued March 29, 2017
Before: VANASKIE, SHWARTZ, and RESTREPO,
Circuit Jud
(Opinion Filed: October 3, 2017)
OPINION OF THE COURT
VANASKIE, Circuit Judge.
These asbestos cases involve the availability of the
“bare-metal defense” under maritime law. The
defense’s basic idea is that a manufacturer who
delivers a product “bare metal”—that is without the
insulation or other material that must be added for the
product’s proper operation—is not generally liable for
injuries caused by asbestos in later-added materials.
A classic scenario would be if an engine manufacturer
ships an engine without a gasket, the buyer adds a
gasket containing asbestos, and the asbestos causes
injury to a worker. May the manufacturer be held
liable? Some courts say no—never. Others rely on a
more fact-specific standard and ask whether the facts
of the case made it foreseeable that hazardous
3a
asbestos materials would be used. Neither this Court
nor the Supreme Court has confronted the issue.
In that void, we survey bedrock principles of
maritime law and conclude that they permit a
manufacturer of even a bare-metal product to be held
liable for asbestos-related injuries when
circumstances indicate the injury was a reasonably
foreseeable result of the manufacturer’s actions—at
least in the context of a negligence claim. The District
Court had instead applied the bright line rule
approach and entered summary judgment against the
plaintiffs. We will vacate the entry of summary
judgment on the plaintiffs’ negligence claims, affirm
the entry of summary judgment on the plaintiffs’
product liability claims (which we conclude were
abandoned on appeal), and will remand, for further
proceedings.
L.
Appellants Roberta G. Devries and Shirley McAfee
are the widows of deceased husbands who served in
the United States Navy. Each couple filed a
Complaint in Pennsylvania state court alleging that
the husband contracted cancer caused by exposure to
asbestos. Devries alleges that on the U.S.S. Turner
from 1957-60, her husband was exposed to asbestos-
containing insulation and components that were
added onto the ship’s engines, pumps, boilers, blowers,
generators, switchboards, steam traps, and other
devices. McAfee alleges her husband was similarly
exposed through his service on two ships and in the
Philadelphia Naval Shipyard.
Devries and McAfee named a number of defendants,
of which Appellee manufacturers (“Manufacturers”)
4a
are a subset.! The Manufacturers each made their
products “bare metal,” in that if they manufactured an
engine, they shipped it without any asbestos-
containing insulation materials that would later be
added.
Devries and McAfee’s Complaints each allege claims
of negligence and strict liability. The Manufacturers
removed to the Eastern District of Pennsylvania and
invoked the bare-metal defense in support of their
respective summary judgment motions, arguing that
because they shipped their products bare metal, they
could not be held liable for the sailors’ injuries. The
District Court agreed and granted the Manufacturers
summary judgment motions.
Devries and McAfee each appealed separately,
raising an issue as to whether the District Court’s
decision addressed their negligence claims. We
summarily remanded with instructions that the
District Court address the negligence issue and also
consider a split in authority as to whether a bright-line
rule or a fact-specific standard governed the bare-
metal defense’s availability. In re Asbestos Prods.
Liab. Litig., No. 15-2667, Order (3d Cir. May 12, 2017)
(McAfee); In re Asbestos Prods. Liab. Litig., No. 15-
1278, Order (3d. Cir. Feb. 5, 2016) (Devries).
On remand, the District Court applied the bright-
line-rule version of the bare-metal defense, and
clarified that summary judgment had been entered in
favor of the Manufacturers on both the strict liability
| The Appellee-Manufacturers are Air & Liquid Systems
Corp., CBS Corp., Foster Wheeler LLC, Genera] Electric Co., IMO
Industries Inc., Warren Pumps LLC, and Ingersoll Rand Co.
5a
and negligence claims. The Court reasoned that the
rule approach was best because, according to the
Court’s view of the precedents, maritime law favors
uniformity and the rule approach was the majority
view.
Devries and McAfee appealed for a second time. We
consolidated their appeals and ordered coordinated
briefing.
Il.
The District Court had federal-officer jurisdiction
under 28 U.S.C. § 1442(a)(1), and maritime
jurisdiction under 28 U.S.C. § 1333(1). We have
jurisdiction under 28 U.S.C. § 1291. We review the
District Court’s grant of summary judgment de novo.
Faush v. Tues. Morning, Inc., 808 F.3d 208, 215 (3d
Cir. 2015).
III.
The key question in this case is the bare-metal
defense’s availability: 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? Neither the Third Circuit
nor the Supreme Court has addressed the question,
and the courts from other jurisdictions that have are
split. Some courts apply a bright-line rule, holding
that a manufacturer of a bare-metal product is never
liable for injuries caused by later-added asbestos-
containing materials. See, e.g., Lindstrom v. A-C Prod.
Liab. Tr., 424 F.3d 488, 492, 494-97 (6th Cir. 2005);
Cabasug v. Crane Co., 989 F. Supp. 2d 1027, 1038-43
(D. Haw. 2013). Others apply a more fact-specific
standard, stating, for example, that a bare-metal
6a
manufacturer may be held liable if the plaintiffs
injury was a reasonably foreseeable result of the
manufacturer's conduct. See, e.g., Quirin v. Lorillard
Tobacco Co., 17 F. Supp. 3d 760, 768-70 (N.D. Ill. 2014)
(determining whether the addition of asbestos
material was “foreseeable” by asking whether addition
of asbestos- containing materials was “inevitable,” and
whether those added materials were “necess[ary]” or
“essential” to the manufacturer’s product); Chicano v.
Gen. Elec. Co., 2004 WL 2250990, at *6 (E.D. Pa.
Oct. 5, 2004) (asking if the addition of asbestos-
containing materials was “foreseeable”).?
In addressing this question, we (1) examine the
doctrinal roots of the bare-metal defense, and
(2) address how it should be applied in Devries and
McAfee’s negligence actions.
A.
The doctrinal root of the bare-meta! defense has
proved to be a particularly vexing question. Some
2 Illustrative of the unsettled status of this issue, we recently
certified to the Pennsylvania Supreme Court the question of
whether under Pennsylvania law a manufacturer of a product can
assert the bare metal defense in the context of a negligent failure
to warn claim arising out of exposure to asbestos. See In re
Asbestos Products Liability Lit. (No. VI), Crane Co., No. 16-3704
(3d Cir. Sept. 27, 2017) (Petition for Certification of Question of
State Law).
Whether, under Pennsylvania law, a manufacturer has a duty to
warn about the asbestos-related hazards of component parts it
has neither manufactured nor supplied.
If such a duty exists, what is the appropriate legal test to
determine whether the company is in fact liable for failing to
warn about the risks of asbestos?
Id. at 11.
7a
courts have rooted the defense in causation: When if
ever can it be said that a bare-metal manufacturer
causes an asbestos-related injury? See, e.g., Thurmon
v. Ga. Pac., LLC, 650 F. App’x 752, 756 (11th Cir. 2016)
(“the ‘bare metal defense’ is, essentially, a causation
argument”). Others locate the defense in duty: Cana
manufacturer’s duty to act with reasonable care with
respect to reasonably foreseeable risks and plaintiffs,
be said to extend to asbestos-related injuries? See, e.g.,
Quirin, 17 F. Supp. 3d at 767-70 (reviewing the issue
as one of “legal duty’). The question is more than
academic. If the elemental root is duty, the defense
should be expected to operate differently in strict
liability as compared to negligence, because a
defendant’s duty of course differs between the two
types of actions. See Chesher v. 3M Co., 234 F. Supp.
3d, 693, 700-03 (D.S.C. 2017) (holding that the defense
should apply in a weaker fashion in a negligence
action, as compared to strict liability). The opposite
might be true too—the defense should operate in
similar fashion in both negligence and strict liability if
it is rooted in causation, because the proximate cause
inquiry cuts across the two types of actions. See, e.g.,
Lindstrom, 424 F.3d at 492 (suggesting the defense
applies similarly under “both negligence and strict
liability theories”).
We find that both approaches are correct: the
defense is rooted in both duty and cause because its
keystone is the concept of foreseeability. 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 injuries. The bright-line rule
approach says it is never reasonably foreseeable, and
8a
the fact-specific standard approach says it sometimes
is. This debate over foreseeability sounds in both duty
and cause, because foreseeability is a concept
embedded in each element. See Gibbs v. Ernst, 647
A.2d 882, 891 (Pa. 1994) (highlighting “the common
law notion of foreseeability as found in the concepts of
duty and proximate cause”). In the duty element in a
negligence action, foreseeability limits a defendant’s
liability to only the risks and plaintiffs that are
reasonably foreseeable. See Restatement (Third) of
Torts: Phys. & Emot. Harm § 7, cmt. j (2010 Am. Law
Inst.) (acknowledging “widespread use” of
foreseeability as an aspect of the duty of reasonable
care, despite the Restatement’s disagreement with
such an approach). And in proximate cause,
foreseeability limits a defendant’s liability to only the
injuries that are a reasonably foreseeable result of the
defendant’s actions. Jd. § 29, cmt.j (discussing
foreseeability as an aspect of proximate cause in both
negligence and strict-liability actions).2 Thus, the
bare-metal defense is nothing more than the concept
of foreseeability, as embedded in the duty of
reasonable care in a negligence action and the
3 Instead of starting from subject-specific asbestos cases, we
maritime and tort law, as exemplified in the most reliable
treatises and restatements. Cf. M&G Polymers USA, LLC v.
Tackett, 135 S. Ct. 926, 929-30 (2015) (abrogating a circuit's
labor-law-specific rule for contract interpretation, and calling on
lower courts in labor-law cases to still adhere to “ordinary” and
“traditional” principles of contract law); Paroline v. United States,
134 S. Ct. 1710, 1719-20 (2014) (citing, as authority for the
federal common law of proximate cause, the Restatement (Third)
of Torts, Prosser and Keeton’s treatise on torts, and LaFave's
treatise on criminal law).
9a
proximate cause standard in a negligence or strict-
liability action, as applied to the facts of a certain
subset of asbestos cases.
This dual-elemental home for the defense does not,
however, totally explain when or whether the
defense’s application should differ from strict-liability
to negligence. It might be that the defense could apply
the same in both types of actions, because of the
shared proximate-cause element. Or the differences
in the two actions’ duty elements might mean the
defense is more forceful in one action than the other.
See, e.g., Chesher, 234 F. Supp. 3d at 700-03 (holding
that the defense is weaker in negligence and stronger
in strict liability, because in strict liability the
manufacturer's duty is limited to the product, but with
negligence the duty extends further); Bell v. Foster
Wheeler Energy Corp., No. 15-6394, 2016 WL 5780104,
at *5-7 (E.D. La. Oct. 4, 2016) (same). And of course
the facts of a given case could be the most important
variable.
We need not settle these doctrinal distinctions
today, because Devries and McAfee waived their strict
liability claim in this appeal. As a general matter, an
appellant waives an argument in support of reversal if
it is not raised in the opening brief. McCray v. Fidelity
Nat Title Ins. Co., 682 F.3d 229, 241 (3d Cir. 2012).
Here, in this appeal Devries and McAfee focused the
entirety of their briefing on their negligence claims,
yet attempted to also incorporate their strict-liability
claim through a footnote: “By concentrating on
[negligence] issues in this brief, Appellants do not
waive any issues argued in their original briefs as to
Defendants’ liability under [the strict liability
claims].” (Appellants’ Br. at 2 n. 1). This attempt to
10a
shoehorn in an argument outside the briefs is
insufficient to raise an issue on appeal. See John
Wyeth & Brother Lid. v. CIGNA Int'l Corp., 119 F.3d
1070, 1076 n. 6 (3d Cir. 1997) (stating that “arguments
raised in passing (such as, in a footnote), but not
squarely argued, are considered waived”); see also
Skretvedt v. El. DuPont De Nemours, 372 F.3d 193,
202-04 (3d Cir. 2004) (declining to consider arguments
not properly raised and therefore waived). In
particular, it fails to give fair notice of the claims being
contested on appeal. Thus, Devries’s and McAfee’s
waiver of their strict-liability arguments means that
we will affirm the District Court’s decision to that
extent, and need not fully explore the precise contours
of the defense’s distinctions in strict liability and
negligence, beyond the unifying principle of
foreseeability.
B.
For the negligence claims, rooting the bare-metal
defense in foreseeability does not on its own resolve
the issue, because the split in authority can be
characterized as a debate over what a bare-metal
manufacturer could reasonably foresee—no asbestos-
related injuries, see, e.g., Lindstrom, 424 F.3d at 492,
494-97, or some, see, e.g., Quirin, 17 F. Supp. 3d at 769-
70.
These two choices raise familiar tradeoffs between
rules and standards.‘ A rule is a legal directive that
4 For a review of the characteristics and tradeoffs of rules and
standards, see Bryan A. Garner et al., The Law of Judicial
Precedent 78 (2016) (noting that “rules and standards . . . denote
different levels of specificity for norms” and “judicial holding{s}”);
Kathleen M. Sullivan, The Supreme Court, 1991 Term—
lla
attempts to capture a background principle into an
easy-to-apply form that is predictable and efficient. A
speed limit is a good example: its goal is road safety,
but because liability turns on speed rather than the
amorphous definition of “safety” itself, it is easier for
drivers, police, and insurers to shape their conduct
accordingly. Rules have downsides though too, in that
they necessarily result in errors of over- and under-
inclusion. In the case of the speed limit, it furthers the
policy of road safety, but does so imperfectly: speedy
drivers get punished even if they speed safely, and
slow drivers go free even if they amble along
haphazardly.
A standard, on the other hand, collapses the
background principle into the actual legal directive,
resulting in better accuracy and “fit” with the
underlying purpose, and fewer errors of over- and
under-inclusion. Another road-safety example would
be a reckless-driving prohibition that simply prohibits
driving that is “reckless.” Such a prohibition is less
predictable and efficient than the speed limit, in that
it is harder to predict what a decisionmaker will find
to be “reckless” than whether he or she will agree that
76 miles per hour exceeds a 70 m.p.h. speed limit. But
liability better tracks the actual goal of road safety,
because almost all “reckless” drivers are unsafe.
The point is there are tradeoffs, and courts face
those tradeoffs in choosing an approach to the bare-
metal defense. The rule-based approach is efficient
and _ predictable—bare-metal manufacturers are
simply not liable—but the downside is some deserving
Foreword: The Justices of Rules and Standards, 106 Harv. L.
Rev. 22, 58-59 (1992).
12a
sailor-plaintiffs will not receive their due. On the
other hand, the standard-based approach is bound to
be less predictable and less efficient, because the
standard’s fact-centered nature will push more cases
into discovery, see, e.g., Quirin, 17 F. Supp. 3d at 771-
72 (denying defendant’s motion to dismiss after
applying the standard), but the most-deserving sailor-
plaintiffs are less likely to be denied compensation.
Thankfully, we do not weigh these tradeoffs in a
vacuum. Maritime law is undergirded by established
principles, at least four of which are implicated here.
First and perhaps foremost, maritime law is deeply
concerned with the protection of sailors, due to a
historic and “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). This “special
solicitude” developed “unknown to the common law,”
and so maritime law is at times more lenient toward a
sailor than a state’s common law may be to a similarly-
situated plaintiff. Jd. This divergence is acceptable if
not appropriate because the “humane and liberal
character of” maritime law counsels that it is better “to
give than to withhold the remedy” wherever
“established and inflexible rules” do not require
otherwise. Id. (quoting The Sea Gull, 21 F. Cas. 909,
910 (C.C. Md. 1865)). For example, in Moragne v.
States Marine Lines, the Supreme Court made it
permissible for maritime plaintiffs to bring wrongful
death actions even though the common law
disapproved of such actions. 398 U.S. at 381-88, 408-
09. In arriving at that holding, the Court explicitly
referenced and discussed maritime law’s special
solicitude for sailor safety and how that solicitude
13a
permitted maritime law to have more sailor-friendly
rules than the common law. Id. at 386-88.5
Here, maritime law’s special solicitude for sailors’
safety similarly favors the adoption of the standard-
like approach to the bare-metal defense. A standard
will permit a greater number of deserving sailors to
receive compensation, and compensation that is closer
to what they deserve. Given that results for sailor-
victims will differ under a rule as compared to a
standard, and since no “established” or “inflexible”
rule prohibits the more forgiving standard, the
“humane and liberal character” of maritime law
counsels that we follow the standard. Even if certain
states’ common laws would call for a more stringent
rule, maritime law’s more liberal attitude permits us
to diverge from that path.
Second, maritime law is built on “traditions of
simplicity and practicality,” Kermarec v. Compagnie
Generale Transatlantique, 358 U.S. 625, 631 (1959),
but that principle cuts in both directions and does not
provide much guidance. On one hand, “simplicity”
might be seen as favoring the rule-based approach,
because simplicity is related to predictability, and it is
easier to predict how a rule will apply than a standard.
On the other hand, “simplicity” could also be seen as
favoring a foreseeability-based standard, because
simplicity is related to familiarity, and foreseeability
5 Moragne’s holding was based most directly on principles
other than the special solicitude for sailor safety, but the special
solicitude was still crucial to the Court's decision because it
explained why the Court’s ruling was appropriate even though it
likely diverged from the common law. Moragne, 398 U.S. at 386-
88.
l4a
is such a familiar and key part of tort law. See id. at
631-32 (choosing to adopt a familiar standard over a
“foreign” and “alien” rule while invoking maritime
law’s “traditions of simplicity and practicality”).
The third and fourth principles implicated in this
case are also not particularly helpful. Maritime law
has a “fundamental interest” in “the protection of
maritime commerce,” Exxon Corp. v. Cent. Gulf Lines,
Inc., 500 U.S. 603, 608 (1991) (quoting Sisson v. Ruby,
497 U.S. 358, 367 (1990)), and seeks out “uniform rules
to govern conduct and liability,” Foremost Ins. Co. v.
Richardson, 457 U.S. 668, 674-75 (1982). Here, the
parties all argue these two principles encourage the
Court to side with whatever side is winning in the split
in authority. The idea is that the sooner one side wins
out over the other, the sooner the split in authority is
ended and the goals of seamless commerce and
uniformity of rules will be achieved. The rub, however,
is determining which view is the majority. The bright-
line rule could be said to be in the lead because it has
on its side the Sixth Circuit, the only court of appeals
to weigh in. Lindstrom, 424 F.3d at 492, 494-97. The
standard could similarly be said to be the majority
view because the courts that have confronted the
question most recently have generally favored the
standard, and have done so after a much more
thorough analysis than that found in the Sixth
Circuit’s opinion in Lindstrom, which was decided
much earlier in ihe debate over the bare-metal
defense. Compare Chesher, 234 F. Supp. 3d at 696-712
(analyzing in painstaking detail the split in authority
and adopting a version of the standard); Bell, 2016 WL
5780104, at *3-7 (same), with Lindstrom, 424 F.3d at
494-97 (not mentioning the split in authority). We
l5a
need not decide which approach is winning in terms of
wins and losses— it is enough that the score is too close
for us to say that the goals of seamless commerce and
rule-uniformity push in one way or the other.
In sum, the special solicitude for the safety and
protection of sailors is dispositive, because it counsels
us to follow the standard-based approach, and none of
the other principles weigh heavily in either direction.
The standard-based approach is the one we will
therefore follow: foreseeability is the touchstone of the
bare-metal defense; a manufacturer of a bare-metal
product may be held liable for a plaintiffs 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
failure to provide a reasonable and adequate warning;
and although cases will necessarily be fact-specific,
already-decided precedents show, for example, that 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
(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,"
6 See Bell, 2016 WL 5780104, at *5.
7 See id.
8 See Chesher, 234 F. Supp. 3d at 714; Quirin, 17 F. Supp. 3d
at 769-71.
l6a
(b) the manufacturer specifically directed that
the product be used with an asbestos-containing
part,’ or
(c) the product required an asbestos-containing
part to function properly. '°
These may or may not be the only facts on which
liability can arise. The finer contours of the defense,
and how it should be applied to various sets of facts,
must be decided on a case-by-case basis.
IV.
Finally, the Manufacturers advanced two
alternative arguments in support of an affirmance on
the negligence claims. They argued (1) insufficient
evidence had been presented as to causation and was
fatal to Devries and McAfee’s claims, and (2) the
government-contractor defense should insulate the
Manufacturers from liability. These arguments were
also presented below, but the District Court declined
to rule on them because its bare-metal-defense holding
was sufficient to enter summary judgment in favor of
the Manufacturers. The Manufacturers urge us to
address them now. on the grounds that we may affirm
a judgment for a>., reason supported by the record.
Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir.
2011). Addressing alternative grounds for affirmance,
however, is a matter left to our discretion. See Gov't of
the V.1. v. Walker, 261 F.3d 370, 376-77 (3d Cir. 2001)
(declining to reach arguments raised before but not
decided by the lower court, and instead remanding).
9 See Bell, 2016 WL 5780104, at *5, 7.
10 See Chesher, 234 F. Supp. 3d at 714; Quirin, 17 F. Supp. 3d
at 769-70.
17a
Given that we are without the benefit of the District
Court’s well-regarded expertise, and the parties’
briefing and oral argument was appropriately focused
on the bare-metal defense, we will leave the
insufficient-evidence and contractor-defense
arguments to be dealt with on remand.
Vv.
In conclusion, maritime law’s special solicitude for
the safety and protection of sailors counsels us to
adopt a standard-based approach to the bare-metal
defense that permits a plaintiff to recover, at least in
negligence, from a manufacturer of a bare-metal
product when the facts show the plaintiffs injuries
were a reasonably foreseeable result of the
manufacturer’s conduct. We will affirm the decision of
the District Court with respect to Devries and
McAfee’s strict liability claims, and remand for further
proceedings on their negligence claims consistent with
this Opinion.
18a
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
KENNETH E. MCAFEE, CONSOLIDATED
et al. UNDER MDL 875
v. E.D. PA CIVIL
20TH CENTURY GOVE ACTION NO.
CORP. OF TEXAS, et al 13-CV-06856
ORDER
AND NOW, this 25th day of May, 2016, upon
receipt of the Third Circuit Court of Appeal’s May 11,
2016 remand order seeking this Court’s guidance as to
whether, in granting summary judgment in favor of
Ingersoll-Rand & Company on October 22, 2014 (ECF
No. 218), it:
(1) considered the negligence theory, (2) concluded
that the bare metal defense applies to it and why, or
(3) considered whether the circumstances listed in
the cases cited herein should apply to a negligence
claim brought under maritime law (and if not, why
not, and if so, why and whether the record here
would support such a claim)
In re: Asbestos Products, Docket No. 15-02667, Doc. 35
(3d Cir. Jul 16, 2015), it is hereby ORDERED that
this Court REAFFIRMS its October 22, 2014 entry of
19a
judgment and directs any interested parties to its
reasoning set forth in its May 19, 2016 explanatory
order in Devries v. General Electric Co., 13-cv-474 Doc.
369 which responds directly to these questions and
explains how the Court considers a Plaintiff's
negligence claim in the maritime context and why it
applies the so called “bare metal defense” thereto.
IT IS SO ORDERED
/s/ Eduardo Robreno
EDUARDO C. ROBRENO, J.
20a
APPENDIX C
John B. DEVRIES, et al., Plaintiffs,
v.
GENERAL ELECTRIC COMPANY, et al.,
Defendants.
CONSOLIDATED UNDER MDL 875
E.D. PA CIVIL ACTION
NO. 5:13-00474-ER
United States District Court,
E.D. Pennsylvania.
Signed May 18, 2016
Filed May 19, 2016
Robert E. Paul, Paul Reich & Myers, PC,
Philadelphia, PA, for Plaintiffs.
Stewart R. Singer, Salmon Ricchezza Singer &
Turchi LLP, Philadelphia, PA, for Defendants.
MEMORANDUM
EDUARDO C. ROBRENO, District Judge
This case was removed in January of 2013 from the
Court of Common Pleas of Philadelphia to the United
States District Court for the Eastern District of
Pennsylvania, where it became part of the
consolidated asbestos products liability multidistrict
litigation (MDL 875). The basis of jurisdiction is
2la
federal question jurisdiction (pursuant to 28 U.S.C.
§ 1442).
Plaintiffs allege that John DeVries was exposed to
asbestos from various products while serving in the
U.S. Navy during the time period 1957 to 1960. After
the completion of discovery, numerous defendants
moved for summary judgment, contending that
Plaintiffs’ evidence was insufficient to establish
causation with respect to any product(s) for which it
could be held liable. This Court determined that
maritime law was applicable to the claims against
each of the product manufacturer Defendants now
opposing Plaintiffs’ appeal' and, after applying
maritime law (including the so-called “bare metal
defense” as applied under maritime law), granted each
of these Defendants’ motions.
Plaintiffs thereafter appealed, contending that this
Court misapplied the maritime law “bare metal
defense” and, in particular, that it failed to consider
the viability of Plaintiffs’ negligence claims. By way of
Order dated February 5, 2016 (the “February 5th
Order”) (ECF No. 368 in D.C. No. 5:13-cv-474), the
United States Court of Appeals for the Third Circuit
remanded the case to this MDL Court for explicit
consideration and clarification of the issues of whether
this MDL Court (1) considered the negligence theory
of liability when it granted summary judgment in its
entirety to the product manufacturer defendants, (2)
concluded that the “bare metal defense” applies to
claims sounding in negligence, and (3) considered
| These product manufacturer Defendants are: Buffalo
Pumps, Inc., CBS Corporation, Foster Wheeler LLC, General
Electric Company, IMO Industries, Inc., and Warren Pumps.
22a
whether the circumstances of the present case
warrant application of the legal rationale by which
certain other courts’ decisions (identified in the
February 5th Order) exempted negligence claims from
being barred by the defense. As directed by the
February 5th Order, the Court hereby clarifies its
application of the so-called “bare metal defense,” as
recognized by maritime law, to claims brought by
Plaintiffs against the appealing product manufacturer
Defendants.
I. Background and History Surrounding
the MDL’s Adoption of the Maritime
Law “Bare Metal Defense”
By way of the decision in Conner v. Alfa Laval, Inc.,
842 F.Supp.2d 791 (E.D.Pa. 2012) (Robreno, J.), this
MDL Court adopted the so-called “bare metal defense”
as applied by the United States Court of Appeals for
the Sixth Circuit in two separate maritime law cases:”
2 In addition, the Court notes that, at the time of its decision
to adopt the Lindstrom rule in February of 2012, the “bare meta!
defense” (although not necessarily identified with that coinage)
had already been considered by a magistrate judge in the MDL,
who had issued a Report and Recommendation that reached the
Holdings, Inc., No. 09-64399, 2011 WL 346822, at *6 (E.D.Pa.
Jan. 13, 2011) (Strawbridge, M.J.). The Court accepted and
adopted the recommendation, and applied it in deciding summary
judgment motions in Sweeney v. Saberhagen Holdings, Inc.,
No. 09-64399, 2011 WL 359696 (E.D.Pa. Feb. 3, 2011) (Robreno,
J.), Delatte v. A.W. Chesterton Co., No. 0969578 (multiple
summary judgment motions decided, e.g. 2011 WL 4910416
(E.D.Pa. Feb. 28, 2011) (Robreno, J.)), and Ferguson v. Lorillard
Tobacco Co., Inc., No. 09-91161 (multiple summary judgment
23a
Lindstrom v. A-C Product Liability Trust, 424 F.3d
488 (6th Cir.2005) and Stark v. Armstrong World
Industries, Inc., 21 Fed.Appx. 371 (6th Cir.2001)°—
decisions consistent with, and bolstered by, the then-
governing‘ decisions on the issue under California and
Washington state law. At the time of this MDL
Court’s decision in Conner, the Sixth Circuit was the
only federal appellate court to have considered the so-
motions decided, e.g., 2011 WL 4910416 (E.D.Pa. Mar. 2, 2011)
(Robreno, J.)).
3 Stark, standing alone, does not provide a comprehensive
outline of the “bare metal defense” and its application under
maritime law because it addresses only strict liability claims
(while acknowledging the possibility of negligent failure-to-warn
claims apparently not pursued by that plaintiff). 21 Fed_Appx. at
374-75. Nonetheless, it begins the development of the defense
under maritime law and is cited repeatedly by the Sixth Circuit
in Lindstrom, which further expounds upon the rules of law
underlying the “defense.”
* As this MDL Court acknowledged in Schwartz v. Abex Corp.,
106 F.Supp.3d 626 (E.D.Pa.2015) (Robreno, J.), “the Supreme
Court of Washington appears to have since retreated somewhat
from its earlier adoption of the so-called ‘bare metal! defense’ in
Simonetta |v. Viad Corp., 165 Wash.2d 341, 197 P.3d 127
(Wash.2008),] and Braaten |v. Saberhagen Holdings, 165
Wash.2d 373, 198 P.3d 493 (Wash.2008)j... [by later]
distinguish|[ing] the facts in Macias v. Saberhagen Holdings, Inc.,
175 Wash.2d 402, 282 P.3d 1069 (Wash.2012), and holding that a
product manufacturer can at least sometimes be liable for failure
to warn of the hazards of asbestos exposure that necessarily
occurs as a result of the intended use of the product for the
purpose for which it was designed — even if the product itself did
not contain asbestos when manufactured and supplied, and the
asbestos was released from another manufacturer's product.”
However, at the time of this MDL Court’s February 1, 2012
adoption of the “bare metal defense” under maritime law, the
defense was still the clear governing rule in Washington.
24a
called “bare metal defense” under maritime law (or
any other law) in the context of asbestos litigation.
The only two states whose highest courts had
considered the issue in the context of asbestos
litigation were California (in O'Neil v. Crane Co., 53
Cal.4th 335, 135 Cal. Rptr.3d 288, 266 P.3d 987 (2012))
and Washington (in Simonetta v. Viad Corp., 165
Wash.2d 341, 197 P.3d 127 (Wash.2008), and Braaten
v. Saberhagen Holdings, 165 Wash.2d 373, 198 P.3d
493 (Wash.2008)).5
In deciding to adopt the decisions of the Sixth
Circuit, this MDL Court was mindful that—unlike the
present case presented by the DeVries Plaintiffs—the
bulk of the thousands of asbestos cases pending in the
MDL originated in the Sixth Circuit and would be
remanded for trial (after completion of the MDL pre-
trial process) to a district court within the Sixth
Circuit (specifically, the United States District Court
5 A short, chronological summary of appellate precedent on the
“bare metal” issue in asbestos cases (nationwide) at the time of
this MDL Court's decision in Conner is as follows: (1) Stark (6th
Cir.2001) (addressing only strict liability claims under maritime
law); (2) Lindstrom (6th Cir.2005) (addressing negligence and
strict liability claims under maritime law); (3) Simonetta
under Washington law); (4) Braaten (Wash.2008) (negligence and
strict liability claims under Washington law); (5) O'Neil
(Cal.2012) (addressing negligence and strict liability claims
under California law). Each of these decisions barred al! of the
types of claims it considered where there was no (or insufficient)
evidence of exposure to asbestos from a “product” (or component
part) that the defendant(s) either manufactured or supplied.
25a
for the Northern District of Ohio—the same district in
which Lindstrom and Stark were initially decided).®
It is true that, in general, matters of substantive
federal law (such as maritime law) are applied by an
MDL Court in accordance with the law of the Circuit
in which it sits (in the case of this MDL, the law of the
Third Circuit). See, e.g., Various Plaintiffs v. Various
Defendants (“The Oil Field Cases”), 673 F.Supp.2d
358, 363 n. 3 (E.D.Pa.2009) (Robreno, J.) (“in cases
where jurisdiction is based on federal question, this
Court, as the transferee court, will apply federal law
as interpreted by the Third Circuit”); Jn re Korean Air
Lines Disaster, 829 F.2d 1171, 1178 (D.C.Cir.1987);
Menowitz v. Brown, 991 F.2d 36, 40-41 (2d Cir.1993)
(“a transferee federal court should apply its
interpretations of federal law, not the constructions of
federal law of the transferor circuit”); In re
Temporomandibular Joint (TMJ) Implant Prod. Liab.
Litig., 97 F.3d 1050, 1055 (8th Cir.1996) (holding that
“Iwilhen analyzing questions of federal law, the
transferee court should apply the law of the circuit in
which it is located”); Newton v. Thomason, 22 F.3d
1455, 1460 (9th Cir. 1994); Murphy v. F.D.LC., 208
F.3d 959, 965-66 (1 1th Cir.2000); see also In re Donald
J. Trump Casino Securities Litigation-Taj Mahal
Litigation, 7 F.3d 357, 368 n. 8 (3d Cir.1993)
(assuming without deciding that the district court
correctly applied Jn re Korean Air Lines Disaster, 829
F.2d at 1176, in holding that Third Circuit precedent
would control interpretations of federal law, but that
6 Specifically, these are the cases that comprise the MDL-875
maritime docket (often referred to as “MARDOC”). No. 2:02-md-
00875 (master docket).
26a
the law of the transferor circuit merited close
consideration); Eckstein v. Balcor Film Investors, 8
F.3d 1121, 1126-27 (7th Cir.1993) (holding that a
transferee court is not required to defer to the
interpretation of federal law utilized by the transferor
court and should, generally utilize its own
independent judgment regarding the interpretation of
federal law, and concluding that, “a transferee court
should use the rule of the transferor forum,” but only
when there is a discrepancy in law between the two
forums); McMasters v. U.S., 260 F.3d 814, 819 (7th Cir.
2001) (same). Importantly, however, the matter of the
“bare metal defense” had never been squarely
addressed by the Third Circuit in the context of
asbestos litigation (or any other type of litigation).
Therefore, the matter was one of “first impression” in
the Third Circuit, for which there was no binding
precedent.
This MDL Court was mindful that applying an
interpretation of maritime law on the matter that was
inconsistent with that of the Sixth Circuit would give
rise to inconsistencies in the handling and outcome of
the thousands of cases pending in the MDL, as some
cases were being resolved in the MDL Court during
the pretrial phase (by way of summary judgment,
settlement, etc.), while, pursuant to the requirements
of 28 U.S.C. § 1407 and the Supreme Court decision in
Lexecon Inc. v. Milberg Weiss Bershad Hynes &
Lerach, 523 U.S. 26, 118 S.Ct. 956, 140 L.Ed.2d 62
(1998), those continuing on to trial in the transferor
court would receive application of maritime law by a
trial court located within the Sixth Circuit (which
would, presumably, apply its own precedents
interpreting maritime law on the matter). In all of its
27a
cases, the MDL Court has sought to ensure
consistency in the handling of cases. See In re Korean
Air Lines Disaster, 829 F.2d at 1175-76 (citing
uniformity in the application of federal law as a
primary goal in the context of a discussion of choice-of-
Circuit-law by federal transferee courts in cases
transferred to an MDL court pursuant to 28 U.S.C.
§ 1407); Menowitz v. Brown, 991 F.2d at 41 (“It would
be unwieldy, if not impossible, for a court to apply
differing rules of federal law to various related cases
consolidated before it.”).
Although the present case brought by the DeVries
Plaintiffs is not part of the maritime docket of cases
(“MARDOC”), the application of federal maritime law
therein should be consistent with—and in uniformity
with—that applied in the MARDOC cases. See id. In
setting forth guidance on this matter, now-Supreme
Court Justice Ginsburg wrote:
For the adjudication of federal claims,... “[{t]he
federal courts comprise a single system |in which
each tribunal endeavors to apply] a single body of
law|.]”
***
Application of Van Dusen in the matter before us,
we emphasize, would not produce uniformity. There
would be one interpretation of federal law for the
cases initially filed jor decided] in districts within
lone] Circuit, and an opposing interpretation for
cases filed for decided] elsewhere.... Indeed,
because there is ultimately a single proper
interpretation of federal law, the attempt to
ascertain and apply’ diverse’ circuit
interpretations simultaneously is inherently
28a
self-contradictory. Our system contemplates
differences between different states’ laws; thus a
multidistrict judge asked to apply divergent state
positions on a point of law would face a coherent, if
sometimes difficult, task. But it is logically
inconsistent to require one judge to apply
simultaneously different and _ conflicting
interpretations of what is supposed to be a
unitary federal law.
In re Korean Air Lines Disaster, 829 F.2d at 1175
76(internal citations omitted) (emphasis added). In
considering the adoption of Lindstrom’s maritime law
“bare metal defense,” this MDL Court explained in
Conner.
[W]here, as here, a defense arises under federal law
and the U.S. Supreme Court has not ruled on the
issue, the transferee court typically applies the law
of the circuit in which it sits, that is, Third Circuit
law. See, e.g., Oil Field Cases, 673 F.Supp.2d 358,
362-63 (E.D.Pa.2009) (Robreno, J.). The law of a
transferor forum “merits close consideration,
but does not have stare decisis effect” on the
transferee court. Jn re Korean Air Lines Disaster of
Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C.Cir.1987),
affd sub nom. Chan v. Korean Air Lines, Ltd., 490
U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989); see
also Federal Judicial Center, Manual for Complex
Litigation § 20.132, at 222 (4th ed. 2004) (“Where
the claim or defense arises under federal law,
however, the transferee judge should consider
whether to apply the law of the transferee
circuit or that of the transferor court's
circuit... .”).
29a
842 F.Supp.2d at 794 n. 4(emphasis added).
In sum, in the absence of Third Circuit precedent on
this issue of maritime law (and the absence of any
other precedent on the matter from any United States
Court of Appeals), this court factored in (1) the goal of
uniformity of application of maritime law (both within
and beyond the MDL), (2) the fact that, at the time,
the Sixth Circuit precedent of Lindstrom was (a) the
only pronunciation of maritime law on the matter from
any federal appellate court, and (b) the “majority rule”
(i.e., in keeping with the rulings of the only two states
whose highest courts had considered the issue, and
also in keeping with an earlier recommendation by an
MDL-875 magistrate judge), and (3) policy
considerations surrounding products liability law. See
842 F.Supp.2d at 800-01. After doing so, it decided to
adopt the holdings of Lindstrom in applying the
maritime law “bare metal defense” in cases pending in
MDL-875. Since its adoption of the Lindstrom rule in
2012, the MDL Court has consistently applied the rule
in dozens of cases (and hundreds of summary
judgment motions) governed by maritime law.
Il. Application of the “Bare Metal Defense”
Under Lindstrom’s Pronunciation of
Maritime Law
A. In General
Under maritime law, as set forth in Lindstrom, a
plaintiff must show evidence of (sufficient) exposure to
asbestos from a defendant's own “product” in order to
hold a product manufacturer liable under any theory
of liability (whether strict liability or negligence). See
Lindstrom, 424 F.3d at 492, 496-97. Necessarily,
then, maritime law imposes no duty upon a product
30a
manufacturer to warn of the dangers associated with
another manufacturer's “product” (or component
part). See id. For this reason, there can be no liability
in negligence for asbestos exposure arising from a
product (or component part) that a manufacturer
defendant did not manufacture or supply (as a plaintiff
will not be able to establish the breach of any duty to
warn about that other product).
To be sure, despite acknowledging the availability
under maritime law of a negligence’ cause of action
against a product manufacturer, see 424 F.3d at 492,
the Lindstrom Court nonetheless explicitly stated
that, under maritime law, a product manufacturer
(such as a pump manufacturer) “cannot be held
responsible for the asbestos contained in another
product” (such as a gasket used in connection with a
pump, but which the pump manufacturer neither
manufactured nor supplied),® 424 F.3d at 496 (citing
7 For the sake of clarity, this MDL Court notes that it deems a
“negligent failure-to-warn claim” to be a type of common law
negligence claim. A separate (but related) warning-related claim
exists in strict liability (and is, under some states’ law, subject to
different analysis): defective warning and/or defective design
(insofar as the alleged defective design is a design with either no
warning or a deficient warning).
8 In Lindstrom, defendant Coffin (a pump manufacturer) was
sued for asbestos exposure arising from the following products
used in connection with its pumps: (1) external insulation, (2)
replacement gaskets, (3) original packing rings, and (4)
replacement packing rings. The Sixth Circuit held that
defendant Coffin could not be liable for asbestos in any of these
(except for the original packing rings) because there was no
evidence that they were manufactured (or supplied) by it.
Although it acknowledged that defendant Coffin would be liable
for asbestos exposure arising from the original packing rings
3la
Stark, 21 Fed.Appx. at 381), and “cannot be held
responsible for asbestos containing material that | |
was incorporated into its product post-manufacture.”®
Id. at 497 (citing Stark, 21 Fed. Appx. at 381).
Intrinsic in these holdings are the conclusions that, in
(because the evidence indicated that they were manufactured
(and/or supplied) by defendant Coffin with its pumps), Coffin
faced no liability in connection with these asbestos products,
because there was no evidence that the plaintiff was exposed to
respirable dust from these original packing rings—and, to the
contrary, there was testimony from plaintiff that the rings were
not “dusty” when he removed them (i.e., there was no evidence of
exposure to asbestos in connection with these products).
9 The Lindstrom court found that Ingersoll Rand, a defendant
who manufactured air compressors, was not liable for asbestos
exposure arising from packing material that was used in its air
compressors, but which it did not manufacture (or supply). In
explaining the rule of maritime law, the court wrote:
Even if (plaintiff) Lindstrom’s testimony is
sufficient to establish that he came in contact
with sheet packing material containing
asbestos in connection with an Ingersoll
Rand air compressor, {product manufacturer
defendant} Ingersoll Rand cannot be held
responsible for asbestos containing material that
|] was incorporated into its product post-
manufacture. See Stark, 21 Fed.Appx. at 381;
Koonce v. Quaker Safety Products & Mfg. Co., 798
F.2d 700, 715 (Sth Cir.1986). Lindstrom did not
allege that any Ingersoll Rand product itself
contained asbestos. As a result, plaintiffs-
appellants cannot show that an Ingersoll Rand
product was a substantial factor in Lindstrom’s
illness, and we therefore affirm the district
court’s grant of summary judgment in Ingersoll
Rand's favor.
424 F.3d at 497 (emphasis added).
32a
the maritime law regime, an asbestos product
manufacturer defendant (1) has no “duty” to warn
about a “product” that it did not manufacture or
supply (and has a “duty” to warn only about “products”
it manufactured or supplied), and, in keeping with this
delineation of “duty,” (2) can only be liable in
negligence if there is evidence of (a sufficient amount
of) exposure to asbestos from a “product” it
manufactured or supplied, in part because the
“causation” element is not satisfied (i.e., a “breach” of
the “duty” to warn has only “caused” the injury at
issue where the alleged asbestos exposure has arisen
from a “product” for which the maw«facturer
defendant had a “duty” to warn). See Lindstrom, 424
F.3d at 492, 496-97.'°
10 This is apparent from the Sixth Circuit's explanation and
discussion. At the risk of repetition, for the sake of clarity and to
be fully responsive to the questions posed by the Third Circuit on
remand, that discussion, verbatim, was as follows:
(1) “Even if [plaintiff] Lindstrom’s testimony is
sufficient to establish that he came in contact
with sheet packing material containing asbestos
im connection with an Ingersoll Rand air
compressor, Ingersoll Rand cannot be held
responsible for asbestos containing
material that | |] was incorporated into its
product post-manufacture. See Stark, 21
Fed.Appx. at 381; Koonce, 798 F.2d at 715.
Lindstrom did not allege that any Ingersoll Rand
product itself contained asbestos. As a result,
plaintiffs-appellants cannot show that an
Ingersoll Rand product was a substantial factor
in Lindstrom’s illness, and we therefore affirm
the district court’s grant of summary judgment in
Ingersoll Rand’s favor.” 424 F.3d at 497
(emphasis added); and
33a
In adopting the rules of Lindstrom, this MDL Court
made clear in Conner that it was aware of and had
considered the negligence claims of the plaintiffs
therein—and that it was applying the Lindstrom
rule(s) not only to the plaintiffs’ strict liability claims,
but also to their negligence claims. Specifically, the
Conner opinion stated that, “[h]Javing held as a matter
of law that a manufacturer is not liable for harm
caused by the asbestos products that it did not
manufacture or distribute . . . Defendants are entitled
to summary judgment on Plaintiffs’ products-liability
claims based on strict liability and negligence.”
842 F.Supp.2d at 803 (emphasis added). This MDL
Court’s subsequent application of Conner in dozens of
cases (including the present case) has consistently
applied the rules of Lindstrom and Conner as a bar to
both types of claims.
B. Uniform Application to Negligence
Claims and Strict Liability Claims
Maritime law (as set forth in Lindstrom and Stark)
bars both negligent failure-to-warn claims and strict
(2) “The information presented establishes that
the only asbestos-containing products, aside from
the graphite-coated packing rings, to which
Lindstrom was exposed in connection with any
Coffin Turbo products were not manufactured by
Coffin Turbo, but rather products from another
company that were attached to a Coffin product.
Coffin Turbo cannot be held responsible for
the asbestos contained in another product.”
Id. at 496 (emphasis added).
See also footnote 11 herein (discussing “duty” and “causation” as
set forth by Lindstrom), and footnote 12 herein (discussing
“product” as defined by Lindstrom).
34a
product liability claims"! in the absence of (sufficient)
evidence of exposure to asbestos from the defendant’s
1! As explained by this MDL Court in Conner, the reason the
defense applies equally and uniformly to both types of claims
under maritime law is that, under maritime law’s construction
and definition of the term “product” (i.e., that product for which
a given defendant can be liable), as set forth in Lindstrom, (there
is an inability of a plaintiff to establish causation with respect to
the defendant's “product” (i.e., a sufficient amount of exposure to
asbestos from the defendant’s product—as opposed to asbestos
from the product of another manufacturer/supplier that is used
in connection with the defendant's product but was neither
manufactured nor supplied by the defendant)), regardless of the
theory of liability underlying the claim (as a showing of causation
is required for both negligence and strict liability claims). 842
F.Supp.2d at 797 (citing Lindstrom). In Lindstrom, the Sixth
Circuit explicitly stated this rule of maritime law:
Plaintiffs in products liability cases under
maritime law may proceed under both
negligence and strict liability theories.
Under either theory, a plaintiff must
establish causation. Stark v. Armstrong World
Indus., Inc., 21 Fed.Appx. 371, 375 (6th Cir.
2001). We have required that a plaintiff
show, for each defendant, that (1) he was
exposed to the defendant’s product, and (2)
the product was a substantial factor in causing
the injury he suffered. Id.
424 F.3d at 492 (emphasis added). Implicit in this rule is the
holding that a product manufacturer has no duty to warn about
hazards arising from another manufacturer's product (or
component part). Accordingly, the MDL Court addressed
negligence claims in Conner when it declared, “this Court adopts
Lindstrom and now holds that, under maritime law, a
manufacturer is not liable for harm caused by, and owes no
duty to warn of the hazards inherent in, asbestos products
that the manufacturer did not manufacture or distribute.”
842 F.Supp.2d at 801 (emphasis added).
35a
“product” (as defined by Lindstrom).'2 To state this
differently, Lindstrom holds that, under maritime law,
a plaintiff must show evidence of (sufficient) exposure
to asbestos from a defendant’s own “product” in order
to hold a product manufacturer liable under any
theory of liability (whether strict liability or
negligence).
It follows then that, under maritime law (unlike, for
example, Pennsylvania law, as recently predicted by
this MDL Court in Schwartz v. Abex Corp., 106
F.Supp.3d 626 (E.D.Pa.2015) (Robreno, J.)"%), it is not
necessary to analyze the two types of claims
separately, as maritime law’s definition of a “product”
for which a defendant can be liable (under either
theory of liability'*) renders the defense equally and
12 The definition of “product” utilized by maritime law, as set
forth in Lindstrom, can be inferred from that court’s discussion
and handling of the claims brought against defendants Coffin and
Ingersoll Rand. (See footnotes 8 and 9 herein.) Under maritime
law, a defendant's “product” is one that it has manufactured or
supplied. This includes original component parts (i.e., component
parts supplied by the defendant in/with the product), but does not
include external insulation or replacement components parts that
were neither manufactured nor supplied by the defendant.
13 This MDL Court's prediction of Pennsylvania law, as set
forth at length in Schwartz, was driven in large part by “the
recent Pennsylvania Supreme Court decision in Tincher, which
pronounces the availability of negligence causes of action (in
addition to strict liability causes of action) against product
manufacturers,” 106 F.Supp.3d at 652, and, unlike the maritime
law rule of Lindstrom, does not explicitly premise a negligence
cause of action upon a showing of asbestos exposure arising from
the defendant's own “product.”
14 With respect to a negligence theory of liability: under
maritime law, a product manufacturer defendant has no duty to
36a
indistinguishably applicable to both types of claims.
For this reason, this Court’s decisions on Defendants’
summary judgment motions did not analyze Plaintiff's
negligence and strict liability claims separately.
Instead, upon concluding that there was no evidence
of exposure to asbestos from a given defendant's
“product(s),” simultaneously and uniformly applied
the “bare metal defense” to all claims against it.
In short, to be clear, Conner (the governing rule
applied in the present case brought by the DeVries
Plaintiffs) holds that, under maritime law (as set forth
by Lindstrom and adopted by Conner), the so-called
“defense” applies to both negligence and strict product
liability claims (as asserted against a _ product
manufacturer defendant") and bars both types of
warn about asbestos hazards arising from another
manufacturer's product (or component part) thus no negligence
cause of action (for failure to warn) can be brought against a
product manufacturer defendant for harm amsing from exposure
to another manufacturer's product (or component part). With
respect to a strict product liability theory of liability: a product
manufacturer cannot be strictly liable for a product (or
component part) that is not its own product (i.e., over which it
had no control). See Conner, 842 F.Supp.2d at 801 (citing
Lind ).
15 To the extent that a defendant in asbestos litigation has a
status other than—or in addition to—that of “product
manufacturer” (e.g., shipowner, shipbuilder, employer, etc.), the
“bare metal defense” and analysis of the “bare metal” issue are,
generally, inapplicable; and a separate and distinct analysis of
habihty (under the concept of general common law negligence
and/or other statutes, such as the Jones Act) is likely warranted
and appropriate. See, eg., Mack v. General Electric Co., 896
F Supp.2d 333, 346 (E.D.Pa. 2012) (Robreno, J.) (holding that,
under maritime law, a Navy ship is not a “product” for purposes
of strict product liability law), and Filer v. Foster Wheeler LLC.
37a
claims where there is no evidence (or insufficient
evidence) of exposure to asbestos from the defendant's
“product.”
Ill. Maritime Law Versus State Law:
Differing Applications of the “Bare
Metal Defense”
Maritime law (as set forth in Lindstrom) has
established a bright-line rule regarding the
“product(s)” for which a product manufacturer can be
liable. This rule requires that a plaintiff establish
(sufficient) exposure to asbestos from the defendant's
own “product” in order to maintain either a negligence
or strict liability claim (thus holding (implicitly) that a
product manufacturer defendant has no duty to warn
about any product that is not its own “product”).'®
None of the circumstances or exceptions identified in
the February 5th Order (and its citation to numerous
decisions from other courts) impacts the analysis of
Plaintiffs’ maritime law claims against the present
appealing Defendants (all of whom are product
manufacturer defendants).'’ This is because, with one
994 F.Supp.2d 679, 687-95 (E.D.Pa.2012) (Robreno, J.) (holding
that, under maritime law, the builder of a Navy ship owes a
common law duty to exercise reasonable care under the
circumstances, in issuing warnings to Navy seaman (and others)
of the hazards of asbestos present aboard the Navy ships they
build).
16 See footnotes 11 and 12 herein.
'T The Court notes that the four (4) circumstances outlined by
the February 5th Order compnse an effort of the various courts
to distill into a rule of law (for application in the context of an
asbestos action) the “knew or should have known” requirement
that generally exists for a common law negligence cause of action
(and, in particular, a negligent failure-to-warn claim) brought
38a
exception, the cases cited by the February 5th Order
all involved application of a given state’s law, rather
than maritime law. See Surre v. Foster Wheeler LLC,
831 F.Supp.2d 797 (S.D.N.Y.2011) (New York law);
O'Neil, 53 Cal.4th 335, 135 Cal. Rptr.3d 288, 266 P.3d
987 (California law); May v. Air & Liquid Sys. Corp.,
446 Md. 1, 129 A.3d 984 (Md.2015) (Maryland law);
Sparkman v. Goulds Pumps, Inc., No. 1202957, 2015
WL 727937 (D.S.C. Feb. 19, 2015) (South Carolina
law); In re New York City Asbestos Litig., 121 A.D.3d
230, 990 N.Y.S.2d 174 (2014) (New York law); Braaten,
165 Wash.2d 373, 198 P.3d 493 (Washington law);
against a product manufacturer in a product liability action (and,
specifically, the element of “duty” that a plaintiff contends has
been breached). See 57A Am. Jur. 2d Negligence §§ 357, 359
(“Duty to Warn. Generally” (§ 357) (‘A person who controls an
instrumentality or agency that he or she knows or should know
to be dangerous and which creates a foreseeable peri! to others
has, if the danger is not obvious and apparent, a duty to give
warning of the danger”); “Duty to Warn. Foreseeability” (§ 359)
(lf a product has dangerous propensities, a duty to warn
generally arises where there is unequal knowledge, either actual!
or constructive, with respect to the risk of harm, and the
defendant, possessed of such knowledge, knows or should know
that harm might occur absent a warning.”)).
Importantly, however, none of the rules/circumstances identified
by the February 5th Order impacts the viability of a negligent
failure-to-warn claim brought under maritime law, because of the
fact that, under maritime law, an asbestos product manufacturer
defendant (1) has no “duty” to warn about a “product” that it did
not manufacture or supply (and has a “duty” to warn only about
“products” it manufactured or supplied), and, in keeping with this
delineation of “duty,” (2) can only be liable in negligence if there
is evidence of (a sufficient amount of) exposure to asbestos from
a “product” it manufactured or supplied, in part because the
“causation” element is not satisfied. See Lindstrom, 424 F.3d at
492, 496-97.
39a
Schwartz, 106 F.Supp.3d 626 (Pennsylvania law);
Macias, 175 Wash.2d 402, 282 P.3d 1069 (Washington
law). The rule of law set forth in each of these cases
reflects a policy determination of that particular
state—a policy determination which need not be
consistent with the policy determination underlying
maritime law.'* See East River Steamship Corp. v.
Transamerica Delaval, Inc., 476 U.S. 858, 864— 66, 106
S.Ct. 2295, 90 L.Ed.2d 865 (1986) (absent a controlling
statute, maritime law is “developed by the judiciary”
and reflects, inter alia, “public policy judgment|s]”);
Mack v. General Electric Co., 896 ¥ Supp.2d 333, 338
(E.D.Pa.2012) (Robreno, J.) (discussing policy
18 As explained by this Court in Schwartz, “whether or not a
given ... law recognizes the so-called ‘bare metal defense’... is
a matter determined largely by how that [jurisdiction] defines the
‘product’ at issue. As such, the determination is largely a matter
of policy.” 106 F.Supp.3d at 635-37.
Moreover, maritime law is concerned with promoting uniformity
in the law of the sea. See Miles v. Apex Marine Corp., 498 U.S.
19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) (discussing Moragne v.
States Marine Lines, Inc., 398 U.S. 375, 401, 90 S.Ct. 1772, 26
L.Ed.2d 339 (1970)); Miller v. American President Lines, Lid., 989
F.2d 1450, 1462 (6th Cir. 1993). The interests of maritime law
are separate and different from those of land-based law. See e.z.,
Mack v. General Electric Co., 896 F Supp.2d 333, 338
(E.D.Pa.2012) (Robreno, J.); Norfolk Southern Railway Co. v.
Kirby, 543 U.S. 14, 25-19, 125 S.Ct. 385, 394-96, 160 L.Ed.2d 283
(2004); Cobb Coin Co., Inc. v. Unidentified, Wrecked and
Abandoned Sailing Vessel, 525 F.Supp. 186, 201— 03
(S.D.Fla.1981). As such, it need not—and likely should not—
conform to states’ policy determinations where doing so would
inconsistencies across the Third and Sixth Circuits in the
apphcation of mantime law in—and accompanying resolution
of —virtually identical asbestos cases).
40a
considerations unique to maritime law); Norfolk
Southern Railway Co. v. Kirby, 543 U.S. 14, 25-19, 125
S.Ct. 385, 394-96, 160 L.Ed.2d 283 (2004) (same);
Cobb Coin Co., Inc. v. Unidentified, Wrecked and
Abandoned Sailing Vessel, 525 F.Supp. 186, 201-03
(S.D.Fla.1981) (same).
The sole maritime law case cited by the February
5th Order is Quirin v. Lorillard Tobacco Co., 17
F Supp.3d 760 (N.D.TIL. 2014), which was decided two
years after this MDL Court’s decision in Conner. The
Court has reviewed Judge Gottschall’s thorough and
well-reasoned decision in Quirin and has identified
the source of divergence between the Conner and
Quirin decisions: Quirin is premised on Judge
Gottschall’s construction of the Lindstrom decision as
one that “did not discuss a failure to warn claim,” 17
F Supp.3d at 768, leading Judge Gottschall to proceed
with setting forth maritime law as to such a claim,
while Conner has construed Lindstrom as already
encompassing the rule of law on negligent failure-to-
warn claims (as well as strict liability defective
design/warning claims)}—a rule consistent with those
set forth regarding state law in O'Neil, Simonetta, and
Braaten——decisions which each considered and relied
upon Lindstrom in determining its respective rule of
law regarding negligent failure-to-warn.'®
'9 Specifically, in Conner, this MDL Court explained that, in
addition to strict liability for defective design/warning, “
eneiliaines te dbte Uli te Ges hese saniien haw Gn
negligent failure to warn of the risks created by its products.”
842 F.Supp.2d at 797 (emphasis added). It relied on Lindstrom
in setting forth the applicable rule of law:
“In determining whether Defendant
manufacturers are liable under maritime law for
Ala
injuries caused by asbestos parts used with their
products, whether in strict liability or
negligence, a plaintiff must establish
causation with respect to each defendant
manufacturer. See Lindstrom v. A-C Prod.
Liab. Trust, 424 F.3d 488, 492 (6th Cir.2005). A
plaintiff establishes causation under
maritime law by showing (1) that the plaintiff
was exposed to the defendant's product and
(2) that the product was a substantial factor in
causing the plaintiff's injury. See id.”
id. (emphasis added). It concluded that this construction was
accurate, in part, because of the decisions in O'Neil, Simonetta,
and Braaten, each of which considered Lindstrom as instructive
and persuasive precedent regarding a negligent failure-to-warn
claim. A summary of the relevant aspect of each of those three
cases is as follows:
After considering Lindstrom, O'Neil found that there is “no duty
to warn of defects in another manufacturer's product” and “no
duty of care to prevent injuries from another manufacturer's
product,” because “|t}he same policy considerations that militate
against imposing strict liability in this situation apply with equal
force in the context of negligence.” 135 Cal. Rptr.3d 288, 266 P.3d
at 997, 1006-07.
The Simonetta court found Lindstrom to be the precedent most
factually similar to the case before it, and held that, “[blecause
jevaporator manufacturer defendant] Viad was not in the chain
of distribution of the dangerous product [i.e., asbestos-containing
insulation used with the evaporator], we conclude not only that it
had no duty to warn under negligence, but also that it cannot be
strictly liable for failure to warn.” 197 P.3d at 138.
Extending the holding of Simonetta to replacement parts, the
Supreme Court of Washington noted in Braaten that Lindstrom
was “particularly instructive,” and held that a _ valve
manufacturer defendant (Henry Vogt) had “no duty under
common law products lability or neghgence principles to warn of
the dangers of exposure to asbestos in products it did not
manufacture and for which the manufacturer was not in the
chain of distribution. These holdings apply here and foreclose
42a
In short, the rules of law surrounding the
circumstances identified by the February 5th Order
are creatures of state law —and determinations of
state policy—that are not applicable under maritime
law (as construed by this MDL Court to have been set
forth in Lindstrom and Stark).
IV. Summary and Conclusion
In adopting the so-called “bare metal defense” under
maritime law (as set forth in Lindstrom) and applying
it to subsequent MDL cases (including the present
case), this MDL Court (1) has considered plaintiffs’
negligent failure-to-warn claims, (2) has determined
that, when applicable, the defense (as set forth by
Lindstrom) bars both strict liability and negligent
failure-to-warn claims, and (3) has concluded that
maritime law’s application of the defense (as
illustrated by Lindstrom) rejects potential liability of
a product manufacturer in negligence for products (or
component parts) that it did not manufacture or
supply (i.e., rejects separate and different analyses of
negligence liability and strict liability).
the plaintiffs products liability and negligence claims based
on failure to warn of the danger of exposure to asbestos (|)
in insulation applied to pumps and valves the defendant.
manufacturers sold to the navy, where the manufacturers did not
manufacture or sell the insulation and were not in the chain of
distribution of it and (2) in replacement packing and gaskets
installed in or connected to the pumps and valves after
they were installed aboard ships, where the
manufacturers did not manufacture or sell the
replacement packing and gaskets and were not in the
chain of distribution of these products.” 198 P.3d at 504
(emphasis added).
43a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 15-2667
IN RE: ASBESTOS PRODUCTS LIABILITY
LITIGATION (NO. VI)
Shirley McAfee, individually and as
Executrix of the Estate of Kenneth McAfee,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
(D.C. No. 5-13-cv-06856)
District Judge: Hon. Gerald J. Pappert
Submitted: May 11, 2016
44a
Before: VANASKIE, SHWARTZ, and RESTREPO,
fieealt Baden
ORDER
Kenneth McAfee (“Mr. McAfee”) and Shirley
McAfee brought strict products liability and
negligence claims against a group of manufacturers
including Ingersoll-Rand & Company, (“Ingersoll”),
alleging that Mr. McAfee contracted lung cancer in
part due to his contact with asbestos-containing
products used with Ingersoll compressors aboard
United States Navy ships. Because Mr. McAfee’s
exposure to asbestos occurred while aboard Navy
vessels on navigable waters, his claims are governed
by maritime law.
The District Court granted Ingersoll’s motion for
summary judgment. It applied the so-called “bare
metal defense,” under which a manufacturer cannot be
held liable for injuries attributable to a product that it
did not manufacture or distribute, App. 11, 14, and
concluded that the evidence did not show that McAfee
was exposed to asbestos products manufactured or
sold by Ingersoll and hence could not prove that
Ingersoll’s products caused his injury. App. 14 (noting
that while “[t]here is evidence that [Mr. McAfee] was
exposed to respirable dust from asbestos-containing
gaskets, packing, and insulation used in connection
with various Ingersoll compressors ...{and] that
Ingersoll anticipated (and perhaps’ ever
recommended) use of [such] asbestos-containing
[parts] ... there is no evidence that Mr. McAfee was
45a
exposed to [asbestos from parts actually] supplied by
Ingersoll”).
In reaching its decisions, the District Court relied
upon Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791
(E.D. Pa. 2012), in which the District Court surveyed
various cases as well as the Restatement (Second) of
Torts § 402A (1965), which sets forth a theory of strict
liability. See also Schwartz v. Abex Corp., 106
F. Supp. 3d 626, 634-35 (E.D. Pa. 2015); Simonetta v.
Viad Corp., 197 P.3d 127, 134 (Wash. 2008). While
Conner appears to hold that the bare metal defense
applies to both strict liability and negligence claims,
see Connor, 842 F. Supp. 2d at 802,' the opinion in this
case contains no specific reference to negligence.
Therefore, we are unable to determine whether the
District Court considered the negligence claim or if it
meant to apply the bare metal defense to it.
We also note that several maritime and state law
cases examining the bare metal defense have
mentioned circumstances under which a
manufacturer could potentially be liable for asbestos
parts that it did not supply. The District Judge is
1 In Conner, the District Court held that
under maritime law, a manufacturer is not liable for harm
caused by, and owes no duty to warn of the hazards inherent
in asbestos products that the manufacturer did not
manufacture or distribute. This principle is consistent with
the development of products liability law based on strict
liability and negligence .... A plaintiff's burden to prove a
defendant’s product caused harm remains the same in cases
involving third-party asbestos manufacturers as it would in
other products-liability cases based on strict liability and
negligence.
Connor, 842 F. Supp. 2d at 802.
46a
familiar with these cases and has ably examined them.
See Schwartz, 106 F. Supp. 3d at 644-48. Those
circumstances include when: (1)the defendant's
product requires asbestos components to function, see
Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760,
769-70 (N.D. Ill. 2014); Surre v. Foster Wheeler LLC,
831 F. Supp. 2d 797, 801-02 (S.D.N.Y. 2011); O’Neil v.
Crane Co., 266 P.3d 987, 996 (Cal. 2012); May v. Air &
Liquid Sys. Corp., 129 A.3d 984, 990-92 (Md. 2015);
(2) the defendant affirmatively specifies that asbestos
components and replacement parts be used, see
Sparkman v. Goulds Pumps, Inc., Civ. No. 2:12-cv-
02957, 2015 WL 727937, at *2-3 (D.S.C. Feb. 19,
2015); Quirin, 17 F. Supp. 3d at 769-70; O'Neil, 266
P.3d at 996; In re N.Y.C. Asbestos Litig., 990 N.Y.S.2d
174, 189-90 (N.Y. App. Div. 2014); Braaten v.
Saberhagen Holdings, 198 P.3d 493, 495-96 (Wash.
2008); (3) the defendant “knew” that the customer
would use asbestos parts with its product, see
Schwartz, 106 F. Supp. 3d at 654-55; Surre, 831 F.
Supp. 2d at 801; In re N.Y.C. Asbestos, 990 N.Y.S.2d at
196, or (4) the defendant intended that the product be
used with asbestos, see Macias v. Saberhagen
Holdings, Inc., 282 P.3d 1069, 1077 n.4 (Wash. 2012).?
Because of the District Judge’s wealth of experience
with these types of cases, and because we are unable
to determine whether the District Court:
(1) considered the negligence theory, (2) concluded
that the bare metal defense applies to it and why, or
(3) considered whether the circumstances listed in the
cases cited herein should apply to a negligence claim
2 We offer no opinion at this time whether such circumstances
provide a basis for liability in this or any case.
47a
brought under maritime law (and if not, why not, and
if so, why and whether the record here would support
such a claim), and upon consideration of the
arguments by counsel presented in their briefs, it is
hereby ordered that the case is summarily remanded
to the District Court to consider these items.
In the event that a subsequent appeal is taken after
the proceedings on remand have concluded, any future
appeal will be considered by this panel after
completion of briefing.
By the Court,
s/Patty Shwartz
Circuit Judge
Dated: May 12, 2016
PDB/cc: All Counsel of Record
48a
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 15-1278
IN RE: ASBESTOS PRODUCTS LIABILITY
LITIGATION (NO. VI)
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE EASTERN
DISTRICT OF PENNSYLVANIA
(D.C. Nos. 5-13-cv-00474 & 2-01-md-00875)
District Judge: Hon. Eduardo C. Robreno
Argued: January 29, 2016
Before: VANASKIE, SHWARTZ, and RESTREPO,
Piatt Ration
49a
ORDER
John B. and Roberta G. DeVries brought strict
products liability and negligence claims against
various manufacturers, including Air & Liquid
Systems Corp., IMO Industries, Inc., Warren Pumps,
CBS Corporation, Foster Wheeler LLC, and General
Electric Company (together, “Defendants”), based
upon the theory that Defendants failed to warn
Mr. DeVries of the dangers of handling the asbestos
insulation and parts used in conjunction with their
products, which contributed to his development of
lung cancer. Because Mr. DeVries’s exposure to
asbestos occurred while at sea on board a Navy vessel,
the claims are governed by maritime law.
The District Court granted Defendants’ motions for
summary judgment. It applied the so-called “bare
metal defense,” under which a manufacturer cannot be
held liable for injuries attributable to a product that it
did not manufacture or distribute, App. 9, 17, 25, 33,
41, 49, and concluded that the evidence did not show
that Mr. DeVries was exposed to asbestos products
manufactured or sold by Defendants and hence could
not prove that they caused his injury. App. 12, 20, 29,
36-37, 44-45, 52-53.
In reaching its decisions, the District Court relied
upon Conaer v. Alfa Laval, Inc., 842 F. Supp. 2d 791
(E.D. Pa. 2012), in which the District Court surveyed
various cases as well as the Restatement (Second) of
Torts § 402A (1965), which sets forth a theory of strict
liability. See, e.g., Schwartz v. Abex Corp., 106 F.
50a
Supp. 3d 626, 634-35 (E.D. Pa. 2015); Simonetta v.
Viad Corp., 197 P.3d 127, 134 (Wash. 2008). While
Conner appears to hold that the bare metal defense
applies to both strict liability and negligence claims,
842 F. Supp. 2d at 802,' the opinions in this case
contain no specific reference to negligence. Therefore,
we are unable to determine whether the District Court
considered the negligence claim or if it meant to apply
the bare metal defense to it.
We also note that several maritime and state law
cases examining the bare metal defense have
mentioned circumstances under which a
manufacturer could potentially be liable for asbestos
parts that it did not supply. The District Judge is
familiar with these cases and has ably examined them.
See Schwartz, 106 F. Supp. 3d at 644-49. Those
circumstances include when: (1)the defendant's
product requires asbestos components to function, see
Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760,
769-70 (N.D. Tl. 2014); Surre v. Foster Wheeler LLC,
831 F. Supp. 2d 797, 801-02 (S.D.N.Y. 2011); O’Neil v.
Crane Co., 266 P.3d 987, 996 (Cal. 2012); May v. Air &
! In Conner, the District Court held that
under maritime law, a manufacturer is not liable for harm
caused by, and owes no duty to warn of the hazards inherent
in asbestos products that the manufacturer did not
manufacture or distribute. This principle is consistent with
the development of products liability law based on strict
liability and negligence .... A plaintiffs burden to prove the
defendant's product caused harm remains the same in cases
involving third-party asbestos manufacturers as it would in
other products liability cases based on strict liability and
negligence.
842 F. Supp. 2d at 802.
5la
Liquid Sys. Corp., — A.3d —, 2015 WL 9263907, at *9
(Md. Dec. 18, 2015); (2) the defendant affirmatively
specifies that asbestos components and replacement
parts be used, see Sparkman v. Goulds Pumps, Inc.,
Civ. No. 2:12-cv-02957, 2015 WL 727937, at *2 (D.S.C.
Feb. 19, 2015); Quirin, 17 F. Supp. 3d at 769-70;
O'Neil, 266 P.3d at 996; In re New York City Asbestos
Litig., 990 N.Y.S.2d 174, 190 (N.Y. App. Div. 2014);
Braaten v. Saberhagen Holdings, 198 P.3d 493, 495-96
(Wash. 2008); (3) the defendant “knew” that the
customer would use asbestos parts with its product,
see Schwartz, 106 F. Supp. 3d at 654-55; Surre, 831 F.
Supp. 2d at 801; In re New York City Asbestos, 121
A.D. 3d at 259; or (4) the defendant intended that the
product be used with asbestos, Macias v. Saberhagen
Holdings, Inc., 282 P.3d 1069, 1077 n.4 (Wash. 2012).?
Because of the District Judge’s wealth of experience
with these types of cases, and because we are unable
to determine whether the District Court:
(1) considered the negligence theory, (2) concluded
that the bare metal defense applies to it and why, or
(3) considered whether the circumstances listed in the
cases cited herein should apply to a negligence claim
brought under maritime law (and if not, why not, and
if so, why and whether the record here would support
such a claim), and upon consideration of the
arguments by counsel presented in their briefs and at
oral argument, it is hereby ordered that the case is
summarily remanded to the District Court to consider
these items.
2 We offer no opinion at this time whether such circumstances
provide a basis for liability in this or any case.
52a
In the event that a subsequent appeal is taken after
the proceedings on remand have concluded, any future
appeal will be considered by this panel after
completion of briefing.
By the Court,
s/ Patty Shwartz
Circuit Judge
DATED: February 5, 2016
ARR/cc: All Counsel of Record
53a
OFFICE OF THE CLERK
MARCIA M. UNITED STATES CouRT TELEPHONE
WALDRON OF APPEALS 215-597-2995
CLERK FOR THE THIRD
CIRCUIT
21400 UNITED STATES
COURTHOUSE
601 MARKET STREET
PHILADELPHIA, PA
19106-1790
Website:
February 5, 2016
ENTRY OF JUDGMENT
Today, February 05, 2016 the Court issued a case
dispositive order in the above-captioned matter which
serves as this Court’s judgment. Fed. R. App. P. 36.
If you wish to seek review of the Court’s decision, you
may file a petition for rehearing. The procedures for
filing a petition for rehearing are set forth in Fed. R.
App. P. 35 and 40, 3rd Cir. LAR 35 and 40, and
summarized below.
Time for Filing:
14 days after entry of judgment
45 days after entry of judgment in a civil case if the
United States is a party
Page Limits:
15 pages
54a
Attachments:
A copy of the panel’s dispositive order only. No other
attachments are permitted without first obtaining
leave from the Court.
Unless the petition specifies that the petition seeks
only panel rehearing, the petition will be construed as
requesting both panel and en banc rehearing. If
separate petitions for panel rehearing and rehearing
en banc are submitted, they will be treated as a single
document and will be subject to a combined 15 page
limit. If only panel rehearing is sought, the Court’s
rules do not provide for the subsequent filing of a
petition for rehearing en banc in the event that the
petition seeking only panel rehearing is denied.
Please consult the Rules of the Supreme Court of the
United States regarding the timing and requirements
for filing a petition for writ of certiorari.
Very truly yours,
s/Marcia M. Waldron
Marcia M. Waldron, Clerk
By: /s/ Aina, Case Manager
Direct Dial: 267-299-4957
APPENDIX F
United States District Court,
E.D. Pennsylvania.
Kenneth E. McAfee, et al., Plaintiffs,
v.
20% Century Glove Corp.
of Texas, et al., Defendants.
CONSOLIDATED UNDER MDL 875
E.D. PA Civil Action No. 5:13-06856—ER
Filed 10/23/2014
ORDER
EDUARDO C. ROBRENO, District Judge.
AND NOW, this 22nd day of October, 2014, it is
hereby ORDERED that the Motion for Summary
Judgment of Defendant Ingersoll-Rand & Co. (Doc.
No. 171) is GRANTED. '
! This case was removed in November of 2013 from the Court
of Common Pleas of Philadelphia to the United States District
Court for the Eastern District of Pennsylvania as part of MDL-
875.
Plaintiff alleges that he was exposed to asbestos while serving in
the U.S. Navy during the time period 1969 to 1991 and while
working in the Philadelphia Naval Shir yard during the years
1991 to 1993. Defendant Ingersoll-Rand & Co. (“Ingersoll” or
“Ingersoll-Rand”) manufactured compressors used aboard ships.
The alleged asbestos exposure pertinent to Defendant occurred,
inter alia, while Plaintiff was aboard:
* USS Wanamassa
* USS Commodore
Plaintiff asserts that he developed lung cancer as a result of his
exposure to Defendant’s asbestos-containing products.
Plaintiff brought claims against various defendants. Defendant
Ingersoll has moved for summary judgment, arguing that (1)
there is insufficient evidence to establish causation with respect
to its product(s), and (2) it is entitled to summary judgment on
grounds of the bare metal! defense.
Defendant asserts that maritime law applies, while Plaintiff
contends that Pennsylvania law applies.
IL. Legal Standard
A. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine dispute
as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion for
summary judgment will not be defeated by ‘the mere existence’ of
some disputed facts, but will be denied when there is a genuine
issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd.,
584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-248 (1986)). A fact is “material” if
proof of its existence or non-existence might affect the outcome of
the litigation, and a dispute is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
In undertaking this analysis, the court views the facts in the light
most favorable to the non-moving party. “After making all
reasonable inferences in the nonmoving party’s favor, there is a
57a
genuine issue of material fact if a reasonable jury could find for
the nonmoving party.” Pignataro v. Port Auth. of N.Y. & N.J/.,
593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance Ins. Co. v.
Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While the moving
party bears the initial burden of showing the absence of a genuine
issue of material fact, meeting this obligation shifts the burden
to the non-moving party who must “set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477
U.S. at 250.
B. The Applicable Law
Defendant asserts that maritime law applies. Plaintiff contends
that Pennsylvania law applies because (1) some of the alleged
exposure occurred at a shipyard and is therefore land-based, and
(2) the products at issue were designed on land in Pennsylvania.
Whether maritime law is applicable is a threshold dispute that is
a question of federal law, see U.S. Const. Art. ITI, § 2; 28 U.S.C. §
1333(1), and is therefore governed by the law of the circuit in
which this MDL court sits. See Various Plaintiffs v. Various
Defendants (“Oil Field Cases”), 673 F. Supp. 2d 358, 362 (E.D. Pa.
2009)(Robreno, J.). This court has previously set forth guidance
on this issue. See Conner v. Alfa Laval, Inc., 799 F. Supp. 2d 455
(E.D. Pa. 2011)(Robreno, J.).
In order for maritime law to apply, a plaintiffs exposure
underlying a products liability claim must meet both a locality
test and a connection test. Jd. at 463-66 (discussing Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527,
534 (1995)). The locality test requires that the tort occur on
navigable waters or, for injuries suffered on land, that the injury
be caused by a vessel on navigable waters. /d. In assessing
whether work was on “navigable waters” (i.e., was sea-based) it
is important to note that work performed aboard a ship that is
docked at the shipyard is sea-based work, performed on navigable
waters. See Sisson v. Ruby, 497 U.S. 358 (1990). This Court has
previously clarified that this includes work aboard a ship that is
in “dry dock.” See Deuber v. Asbestos Corp. Lid., No. 10-78931,
2011 WL 6415339, at *1 n.1 (E.D. Pa. Dec. 2, 2011)(Robreno,
J.)(applying maritime law to ship in “dry dock” for overhaul). By
contrast, work performed in other areas of the shipyard or on a
dock, (such as work performed at a machine shop in the shipyard,
58a
for example, as was the case with the Willis plaintiff discussed in
Conner) is land-based work. The connection test requires that
the incident could have “ ‘a potentially disruptive impact on
maritime commerce,’ ” and that “ ‘the general character’ of the
‘activity giving rise to the incident’ shows a ‘substantial
relationship to traditional maritime activity.’ ” Grubart, 513 U.S.
at 534 (citing Sisson, 497 U.S. at 364, 365, and n.2).
Locality Test
If a service member in the Navy performed some work at
shipyards (on land) or docks (on land) as opposed to onboard a
ship on navigable waters (which includes a ship docked at the
shipyard, and includes those in “dry dock”), “the locality test
is satisfied as long as some portion of the asbestos exposure
occurred on a vessel on navigable waters.” Conner, 799 F.
Supp. 2d at 466; Deuber, 2011 WL 6415339, at *1 n.1. If,
however, the worker never sustained asbestos exposure
onboard a vessel on navigable waters, then the locality test is
not met and state law applies.
Connection Test
When a worker whose claims meet the locality test was
primarily sea-based during the asbestos exposure, those
claims will almost always meet the connection test necessary
for the application of maritime law. Conner, 799 F. Supp. 2d
at 467-69 (citing Grubart, 513 U.S. at 534). This is
particularly true in cases in which the exposure has arisen as
a result of work aboard Navy vessels, either by Navy personne!
or shipyard workers. See id. But if the worker’s exposure was
primarily land-based, then, even if the claims could meet the
locality test, they do not meet the connection test and state law
(rather than maritime law) applies. Jd.
The alleged exposures pertinent to Defendant occurred aboard
ships—some of which were in “dry dock” a the shipyard.
Therefore, these exposures were during sea-based work. See
Conner, 799 F. Supp. 2d 455; Deuber, 2011 WL 6415339, at *1
n.1. Accordingly, maritime law is applicable to Plaintiff's claims
against Defendant. See id. at 462-63.
C. Bare Metal Defense Under Maritime Law
59a
This Court has held that the so-called “bare metal defense” is
recognized by maritime law, such that a manufacturer has no
liability for harms caused by—and no duty to warn about hazards
associated with—a product it did not manufacture or distribute.
Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 801 (E.D. Pa.
2012)(Robreno, J.).
D. Product Identification/Causation Under Maritime Law
In order to establish causation for an asbestos claim under
maritime law, a plaintiff must show, for each defendant, that “(1)
he was exposed to the defendant’s product, and (2) the product
was a substantial factor in causing the injury he suffered.”
Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir.
2005); citing Stark v. Armstrong World Indus., Inc., 21 Fed.Appx.
371, 375 (6th Cir. 2001). This Court has also noted that, in light
of its holding in Conner, 842 F. Supp. 2d 791, there is also a
requirement (implicit in the test set forth in Lindstrom and
Stark) that a plaintiff show that (3) the defendant manufactured
or distributed the asbestos-containing product to which exposure
is alleged. Abbay v. Armstrong Int'l, Inc., No. 10-83248, 2012 WL
975837, at *1 n.1 (E.D. Pa. Feb. 29, 2012)(Robreno, J.).
Substantial factor causation is determined with respect to each
defendant separately. Stark, 21 Fed.Appx. at 375. In
establishing causation, a plaintiff may rely upon direct evidence
(such as testimony of the plaintiff or decedent who experienced
the exposure, co-worker testimony, or eye-witness testimony) or
circumstantial evidence that will support an inference that there
was exposure to the defendant’s product for some length of time.
Id. at 376 (quoting Harbour v. Armstrong World Indus., Inc., No.
90-1414, 1991 WL 65201, at *4 (6th Cir. April 25, 1991)).
A mere “minimal exposure” to a defendant’s product is
insufficient to establish causation. Lindstrom, 424 F.3d at 492.
“Likewise, a mere showing that defendant’s product was present
somewhere at plaintiff's place of work is insufficient.” Jd. Rather,
the plaintiff must show “ ‘a high enough level of exposure that an
inference that the asbestos was a substantial factor in the injury
is more than conjectural.’” Jd. (quoting Harbour, 1991 WL 65201,
at *4). The exposure must have been “actual” or “real”, but the
question of “substantiality” is one of degree normally best left to
the fact-finder. Redland Soccer Club, Inc. v. Dep’t of Army of
U.S., 55 F.3d 827, 851 (3d Cir. 1995). “Total failure to show that
the defect caused or contributed to the accident will foreclose as
a matter of law a finding of strict products liability.” Stark, 21
Fed.Appx. at 376 (citing Matthews v. Hyster Co., Inc., 854 F.2d
1166, 1168 (9th Cir. 1988)(citing Restatement (Second) of Torts,
§ 402A (1965))).
Ifl. Defendant Ingersoll Rand’s Motion for Summary
Judgment
A. Defendant’s Arguments
Product Identification / Causation
Defendant contends that Plaintiffs’ evidence is insufficient to
establish that any product for which it is responsible caused the
ilness at issue.
Bare Metal Defense
Defendant argues that it has no duty to warn about and cannot
be liable for injury arising from any product or component part
that it did not manufacture or supply.
B. Plaintiffs Arguments
Product Identification / Causation / Bare Metal Defense
Plaintiffs contend that they have identified sufficient product
identification/causation evidence to survive summary judgment.
In support of this assertion, Plaintiffs cite to the following
evidence, which is summarized in pertinent part as follows:
* Depositions of Plaintiff Kenneth McAfee Plaintiff testified
that he was exposed to respirable dust from asbestos-
containing gaskets, packing, and insulation used in connection
with Ingersoll compressors aboard various ships.
(P1. Exs. A and B, Doc. No. 203.)
* Discovery Responses of Defendant Plaintiffs point to
discovery responses of Defendant to support their contentions
that (1) Defendant admits that its compressors were designed
and intended to contain asbestos, and that (2) Defendant
required asbestos on high temperature gaskets on its
compressors and pumps.
(Pl. Exs. D and E, Doc. No. 203-1)
6la
* Expert Affidavit of Arthur Faherty Plaintiffs point to the
affidavit of expert Arthur Faherty, who provides testimony
that (1) “Generally, if a company supplied asbestos with its
equipment, some of that asbestos was always present unless
the record shows that the asbestos installed by the defendant
was entirely, removed,” and (2) “The removal of the entire
initial asbestos never occurred.”
(PL. Ex. C, Doc. No. 203)
+ Expert Affidavit of Dr. Arthur Frank P\aintiffs point to the
affidavit of expert Arthur Frank, who they contend will
provide testimony that Defendant knew or could or should
have known of the hazards of asbestos at the relevant times.
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