# Petition for Writ of Certiorari — Air & Liquid Systems Corp. v. DeVries, 139 S. Ct. 986 (2019) (No. 17-1104) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0814%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2019 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0814%3A02. Public record. Not legal advice.