Bell v. Foster Wheeler Energy Corporation, et al

Filing 352

ORDER AND REASONS - IT IS ORDERED that Atwoods motion for summary judgment (R. Doc. No. 208 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Auroras motion for summary judgment (R. Doc. No. 210 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Buffalos motion for summary judgment (R. Doc. No. 206 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Cranes motion for summary judgment (R. Doc. No. 201 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that DeLavals mot ion for summary judgment (R. Doc. No. 229 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Foster Wheelers motion for summary judgment (R. Doc. No. 199 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that General Electrics motion fo r summary judgment (R. Doc. No. 198 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Warrens motion for summary judgment (R. Doc. No. 224 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Westinghouses motion for summary judgment (R. Doc. No. 203 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Yorks motion for summary judgment (R. Doc. No. 215 ) is DENIED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that defendants shall re-file their summary judgment briefs no lat er than October 18, 2016. Plaintiffs responses are due no later than November 4, 2016. IT IS FURTHER ORDERED that a status conference in this matter shall take place at 9:00 AM on Tuesday, October 11, 2016 in the chambers of the undersigned U.S. Di strict Judge. Counsel may participate by phone if the Court is provided with a telephone number prior to the conference.18 Plaintiffs should be prepared at conference to discuss which claims they intend to pursue given the legal standard set forth in this opinion. Signed by Judge Lance M Africk. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM C. BELL ET AL.

CIVIL ACTION

VERSUS

No. 15-6394

FOSTER WHEELER ENERGY
CORP. ET AL.

SECTION I

ORDER AND REASONS
William Bell was regularly exposed to asbestos while serving as an engineman,
machinery repairman, and a machinist mate in the United States Navy in the 1960s.
Mr. Bell was exposed to asbestos both while serving at sea on four ships as well as
while training at a land-based Navy facility in Idaho. After being diagnosed with
mesothelioma in 2015, Mr. Bell sued the companies that he believed were responsible.
Mr. Bell passed away in 2016, and his executor and brother (“plaintiffs”) now pursue
wrongful death and survivorship claims.
Defendants manufactured a wide range of products—including pumps, 1
valves, 2 condensers, 3 compressors, 4 and turbines 5—on the vessels upon which Mr.
Bell served.

Each of those products was allegedly used in conjunction with asbestos

components, but the defendants had varying involvement in the manufacture and

The pump defendants are Air & Liquid Systems Corporation (“Buffalo”), Aurora
Pump Company, IMO Industries, Inc. (“DeLaval”), and Warren Pumps, LLC.
2 The valve defendants are Atwood & Morrill Co. and Crane Co.
3 The condenser defendant is Foster Wheeler Energy Corporation.
4 The compressor defendant is York International Corporation.
5 The turbine defendants are General Electric Company and CBS Corporation
(“Westinghouse”).
1

installation of those asbestos components.

For example, some of defendant-

manufacturers’ products did not include asbestos components when they left the
factory. Rather the asbestos parts (which were produced by third parties) were later
added by third parties. Further, even when some of the defendants included asbestos
components in their products prior to the products leaving their factories, by the time
Mr. Bell was exposed, those original asbestos components had been replaced
(sometimes more than once) with other asbestos parts manufactured by independent
third parties.
Courts are divided on when a manufacturer can be held liable for asbestos
exposure that results from asbestos that the manufacturer did not itself add to its
product. Everyone agrees that if a manufacturer of a finished product negligently
incorporates an asbestos-containing component into its product, and that asbestoscontaining component causes harm, then the manufacturer is liable. But what if the
asbestos-containing component is replaced with another asbestos-containing
component after the finished product has left the manufacturer’s control, and it is the
replacement component that causes harm? Or what if the manufacturer’s product
(whether component or final product) does not contain asbestos, but it is used with
asbestos products, and those asbestos products cause harm? Can the manufacturer
be liable in those circumstances?
The Sixth Circuit says no, never. See Lindstrom v. A-C Prods. Liability Trust,
424 F.3d 488, 492 (6th Cir. 2005). A number of courts—including most prominently
the asbestos MDL court—have adopted that view. Those courts hold that maritime

2

law does not impose on a manufacturer any duty to warn “about any product that is
not its own ‘product.’” Devries v. Gen. Elec. Co., ___ F. Supp. 3d ____, 2016 WL
2910099, at *6 (E.D. Pa. 2016); see also Vedros v. Northrup Grumman Shipbuilding,
Inc., No. 11-1198, 2014 WL 1093678, at *2-3 (E.D. La. 2014). Accordingly, those
courts require any asbestos plaintiff to “show, for each defendant, that (1) he was
exposed to the defendant’s product, and (2) the product was a substantial factor in
causing the injury he suffered.”

Lindstrom, 424 F.3d at 492. Some state court

decisions (outside the maritime context) also follow that rule. See, e.g., Simonetta v.
Viad Corp., 197 P.3d 127 (Wash. 2008); Braaten v. Saberhagen Holdings, 198 P.3d
493 (Wash. 2008). 6
The Sixth Circuit’s view—that a manufacturer is not liable unless the
manufacturer made, sold, or otherwise controlled the precise aftermarket asbestos
components that released the asbestos fibers that injured the plaintiff—has become
known colloquially as the “bare metal defense.” 7

Because identification of that

Defendants flag California as a state that follows the Sixth Circuit. However,
defendants overlook that the California Supreme Court’s decision in O’Neil v. Crane
Co. leaves open the possibility that manufacturers can have duties to warn regarding
products they did not produce in limited circumstances. See, e.g., 266 P.3d 987, 996
n.6 (Cal. 2012) (not expressing a view on the “difficult questions” of whether a
manufacture can be liable for producing (1) “a product that required the use of a
defective part in order to operate” or (2) “specified the or required the use of a
defective replacement part”). Thus, O’Neil offers the defendants little support in
arguing that a manufacturer can never have a duty to warn regarding a product the
manufacturer does not produce.
7 The Court recognizes that the term “bare metal defense” is a bit of a misnomer when
a defendant produces a product that includes asbestos components, and the Court
suggests that a better name for the argument might be the “not my asbestos defense”.
However, this Court will nonetheless use the term “bare metal defense” in order to
maintain continuity.
6

3

manufacturer is often nearly impossible, the Sixth Circuit’s interpretation of
maritime law has “the practical effect of precluding recovery in most instances.”
Schwartz v. Abex Corp., 106 F. Supp. 3d 626, 657 (E.D. Pa. 2015).
Not all courts agree with the Sixth Circuit. Those courts, while agreeing with
the general rule that companies only have to warn regarding their own products,
recognize certain exceptions to the general rule. For example, the Northern District
of Illinois has suggested that a manufacturer has a duty to warn regarding asbestos
under maritime law when,
the defendant manufactured a product that, by necessity, contained asbestos
components, where the asbestos-containing material was essential to the
proper functioning of the defendant’s product, and where the asbestoscontaining material would necessarily be replaced by other asbestoscontaining material, whether supplied by the original manufacturer or
someone else.
Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760, 769-70 (N.D. Ill. 2014). Similarly,
the recent trend in state court asbestos litigation has been to recognize limited
circumstances in which a manufacturer can have duties to warn regarding a product
that the manufacturer did not make, sell, or otherwise control. See, e.g., In re N.Y.C.
Asbestos Litig., ___ N.E.3d ___, 27 N.Y.3d 765, 790-99 (2016); May v. Air & Liquid
Sys. Corp., 129 A.3d 984, 999-1000 (Md. 2015); McKenzie v. A.W. Chesterson Co., 373
P.3d 150, 154-61 (Or. Ct. App. 2016). Indeed, even the asbestos MDL Court—when
not applying maritime law 8—has recognized that manufacturers can have duties to
See also Devries, 2016 WL 2910099, at *2 (“In deciding to adopt the decisions of the
Sixth Circuit, this MDL Court was mindful that . . . 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 . . . .”).

8

4

warn about a product that the manufacturer did not make. See Schwartz, 106 F.
Supp. 3d at 646 (applying Pennsylvania law).
Before the Court are ten motions 9 for summary judgment filed by the
defendants. The motions argue, among other things, that this Court should follow
the Sixth Circuit’s view and grant summary judgment because the plaintiffs allegedly
cannot establish that any of the defendants made, sold, or otherwise controlled the
asbestos components that released the asbestos fibers that caused Mr. Bell’s
mesothelioma. Therefore, as a prerequisite of resolving defendants’ motions, this
Court must determine whether it agrees with the Sixth Circuit’s view of maritime
law, or whether the Court agrees with the courts rejecting the Sixth Circuit’s view.
After reviewing the extensive case law, the Court concludes that it disagrees
with both sides of the split in authority. As will be explained, the Sixth Circuit’s view
overlooks a defendant’s potential liability for negligently advising that a customer
use asbestos products in conjunction with the defendant’s product. At the same time,
however, the Court also believes that exceptions set forth by the courts disagreeing
with the Sixth Circuit are equally problematic. For example, when determining
liability, courts traditionally treat manufacturers of component parts differently from
manufacturers of finished products. Yet, the courts rejecting the Sixth Circuit’s view
by and large do not distinguish between manufacturers of component parts and final
products when determining a manufacturer’s liability. Accordingly, this opinion will

9

R. Doc. Nos. 198, 199, 201, 203, 206, 208, 210, 215, 224, 229.
5

set forth a third view of a manufacturer’s liability for asbestos that a manufacturer
does not add to its product, sell, or otherwise control.
DISCUSSION
I.

A Manufacturer’s Liability for Asbestos On or In A Manufacturer’s
Product Under Maritime Law
Defendants argue that this Court should apply the Sixth Circuit’s

understanding of the bare metal defense and hold that a company can never have any
liability for a product that it did not make, sell, or otherwise control. 10 Plaintiffs
argue that the mere foreseeability that a company’s product may be used in
conjunction with asbestos gives rise to a duty to warn regarding another company’s
product. In the alternative, plaintiffs suggest that the Court apply the somewhat
narrower standard recognized by the Northern District of Illinois in Quirin, wherein
a company has a duty to warn regarding the hazards of asbestos when the company
makes “a product that, by necessity, contained asbestos components, where the
asbestos-containing material was essential to the proper functioning of the
defendant’s product, and where the asbestos-containing material would necessarily

“[A] party seeking to invoke federal admiralty jurisdiction . . . over a tort claim
must satisfy conditions both of location and of connection with maritime activity.”
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995).
After reviewing the location and connection tests, the Court agrees with the asbestos
MDL court that the application of the test “results in maritime law governing those
claims involving plaintiffs who were sea-based Navy workers so long as the allegedly
defective product was produced for use on a vessel.” Conner v. Alfa Laval, Inc., 799
F. Supp. 2d 455, 466 (E.D. Pa. 2011). The Court therefore applies maritime law to
determine defendants’ liability for Mr. Bell’s exposures to asbestos during Mr. Bell’s
shipboard service.
10

6

be replaced by other asbestos-containing material.” Quirin, 17 F. Supp. 3d at 769-70.
In the end, however, this Court is not entirely persuaded by either side.
Defendants’ theory of the bare metal defense, based on the Sixth Circuit’s
opinion in Lindstrom, depends critically on establishing that a manufacturer’s duties
in negligence causes of action go no farther than a manufacturer’s liability in a strict
products liability action. Cf. Devries, 2016 WL 2910099, at *4-5 (explaining that there
is no need to perform a separate analysis for negligence claims and strict liability
claims). But that, respectfully, cannot be correct.
The common law of torts imposes a duty to avoid negligent misrepresentations
even when “the information given is purely gratuitous, and entirely unrelated to any
interest of the actor.” See Restatement (Second) of Torts § 311 & cmt. c. So unless
defendants want to attempt the seemingly impossible argument that manufacturing
a product somehow immunizes that manufacturer from having duties that a purely
gratuitous bystander would have when providing advice, see Restatement (Second) of
Torts § 311 & cmt. c., the defendants are wrong when they argue that their liability
in negligence is equivalent to their liability in a strict products liability action, cf.
Schwartz, 106 F. Supp. 3d at 654 (applying Pennsylvania law, and concluding that
even where a defendant is not liable under a strict liability theory “the same result
need not arise from principles of negligence liability.”). Even if defendants do not
have a duty to warn arising out of merely manufacturing a particular product that
might be used with asbestos, they can nonetheless have duties arising out of taking

7

the additional action of negligently recommending that a plaintiff use asbestos in
conjunction with the manufacturer’s products. 11
Parts of plaintiffs’ argument are equally unpersuasive. For example, plaintiffs
argue that the mere foreseeability that a bare metal product may be used in
conjunction with asbestos gives rise to a duty to warn regarding another companies’
product. But such a duty would be impossibly broad, requiring that a manufacturer
“investigate the potential risks of all other products . . . that might foreseeably be
used with their own product and warn about all [those] risks.” O’Neil, 266 P.3d at
1006. Recognizing such a duty would also contravene the rule that a “court cannot
recognize a duty based entirely on the foreseeability of the harm.” In re N.Y.C.
Asbestos Litig., 27 N.Y.3d at 778; see, e.g., Schwartz, 106 F. Supp. 3d at 656
(manufacturer is “not required to warn about all foreseeable hazards that could arise
in connection with its product”); O’Neil, 266 P.3d at 1005 (“[I]n strict liability as in
negligence, foreseeability alone is not enough to create an independent tort duty.”

Some defendants suggest that the Court should follow the Sixth Circuit in order to
promote the uniformity of maritime law. E.g., R. Doc. No. 325, at 6. However, as the
Fifth Circuit has observed in the analogous situation of interpreting the federal
common law of contracts, “our interest in uniformity, though powerful, does not
require us to adopt legal conclusions we believe to be in error.” Excel Willowbrook,
L.L.C. v. JP Morgan Chase Bank, Nat. Ass’n, 758 F. 3d 592, 601 (5th Cir. 2014). This
Court is convinced that it is error to suggest that a manufacturer can affirmatively
recommend that a customer use asbestos in conjunction with the manufacturer’s
product knowing that asbestos is harmful and knowing that the customer did not
appreciate the dangers of asbestos, but then nonetheless expect to entirely escape
potential liability because the manufacturer did not make, sell, or otherwise control
the asbestos.

11

8

(internal quotation marks omitted)). 12 Indeed, imposing plaintiffs’ proposed duty to
warn would have the effect of reading the long-recognized general rule that
“component sellers should not be liable when the component itself is not defective”
entirely out of products liability law. Restatement (Third) of Torts: Product Liability
§ 5 cmt. a. 13 Accordingly, before imposing liability, the Court will require plaintiffs
to show that defendants did something beyond merely manufacturing a product that
might foreseeably be used with asbestos.

See also Restatement (Second) of Torts § 314 (“The fact that the actor realizes or
should realize that action on his part is necessary for another’s aid or protection does
not of itself impose upon him a duty to take such action.”).
13 Plaintiffs try to rely on Vickers v. Chiles Drilling Co.’s statement that the normal
use of a product “includes all reasonably foreseeable uses, including foreseeable
misuse” to support their argument that foreseeability that a product might be used
with an asbestos product is enough to give rise to a duty to warn. 822 F.2d 535, 538
(5th Cir. 1987). That is a misreading of Vickers, which is about the foreseeability of
harm created by the manufacturer’s product—not the defective nature of another
product entirely.
In any case, this Court’s “traditional discretion” to ensure “fair[] and flexible”
maritime rules, Pope & Talbot v. Hawn, 346 U.S. 406, 409 (1953), allows the Court
to reject plaintiffs’ broad conception of the duty to warn. Just as in East River
Steamship Corp. v. Transamerica DeLaval Inc., where the Supreme Court
determined “the increased cost to the public that would result from” recognizing a
duty to prevent a product from injuring itself under either a negligence or strict
liability theory “is not justified,” 476 U.S. 858, 872 (1986), here the costs of imposing
plaintiffs’ proposed foreseeability rule far outweigh any benefit. For example, under
plaintiff’s view, manufacturers of component parts would be “unjust[ly] and
inefficient[ly]” required “to develop sufficient sophistication to review the decisions of
the business entity that is already charged with responsibility for the integrated
product.” Restatement (Third) of Torts: Product Liability § 5 cmt. a. A more narrowly
tailored rule is plainly appropriate. See infra n.16 and accompanying text (setting
out more tailored rule).
12

9

But what is that something else? The courts rejecting the strong version of the
bare metal defense advanced by the Sixth Circuit have usually resorted to a laundry
list of factors to determine whether liability is warranted:
•

The Quirin court suggests that, under maritime law, a manufacturer can be
liable for failing to warn regarding asbestos when a manufacturer makes a
product in which the use of asbestos components is “essential to the proper
function of the . . . product.” Quirin, 17 F. Supp. 3d at 769-70.

•

The asbestos MDL court suggests that, under Pennsylvania law, a
manufacturer can be liable for negligently failing to warn regarding asbestos
when a manufacturer knows that “its product would be used with an asbestoscontaining component part of the type at issue.” Schwartz, 106 F. Supp. 3d at
654.

•

The New York Court of Appeals suggests that, under New York law, a
manufacturer can be liable for failing to warn regarding asbestos when
asbestos is the “only product that both enables the intended function of the
manufacturer’s product and is available at a cost that is reasonably
sustainable for the average individual or entity that purchases the
manufacturer's product for the use at issue.” In re N.Y.C. Asbestos Litig., 27
N.Y.3d at 797-98.

•

Finally, a number of courts suggest that a manufacturer can be liable for
failing to warn regarding asbestos when the manufacturer specifies the use of
asbestos components in conjunction with its product. See, e.g., May, 129 A.3d

10

at 996 (noting defendants’ “manuals also contained sections on maintenance
that detailed how to replace gaskets and packing, as well as a section on how
to order replacement parts”); In re N.Y.C. Asbestos Litig., 27 N.Y.3d at 793-94
(“[W]e have long regarded a manufacturer’s intent to have its customers
operate its product in a dangerous fashion as a significant cornerstone of its
liability for injuries caused by its product.”); cf. O’Neil, 266 P.3d at 996 n.6
(not expressing a view on the “difficult question[]” of whether a manufacturer
can be liable for “specif[ying] . . . the use of a defective replacement part”).
However, this Court is concerned that simply applying those factors overlooks
(1) the differing liabilities of manufacturers of final products and component parts,
and (2) the differences between strict products liability actions and negligence
actions.
For example, if the Court were to only look at whether asbestos was necessary
to enable a manufacturer’s product to function, that examination would ignore
whether a manufacturer was merely producing a component part or assembling a
final product. Such an approach would be problematic because tort law treats the
two types of entities differently. Component part manufacturers are generally only
liable when the component “is defective in itself,” unless the component part
manufacturer (1) “substantially participates in the integration of the component into
the design of the product,” “the integration of the component causes the product to be
defective,” and “the defect in the product causes the harm,” Restatement (Third) of
Torts: Product Liability § 5, or (2) negligently entrusts their component for use by a

11

person known to be incompetent, see id. § 5 cmt. b; Restatement (Second) of Torts §
390.

Meanwhile, manufacturers of final products are subjected to “assembler’s

liability” wherein an assembler that incorporates a defective component part into its
finished product is liable for those defects. See Restatement (Second) of Torts § 400;
cf. Klem v. E.I. DuPont De Nemours Co., 19 F.3d 997, 1002 (5th Cir. 1994) (applying
Louisiana law, and noting “finished product manufacturer has the obligation to
ascertain whether a component is appropriate for its intended use”).
The Court concludes that it is not appropriate to simply base a manufacturer’s
liability on the fact that it is necessary to use asbestos in conjunction with the
manufacturer’s product. Instead, the standard needs to take into account whether
the manufacturer included asbestos components in the original product and, if not,
the extent to which the component part manufacturer either (1) was involved in the
design of the broader product, or (2) negligently entrusted its component to an
incompetent assembler. Likewise, as discussed earlier, the standard should also take
into account whether the manufacturer recommended a customer use asbestos in
conjunction with the manufacturer’s product. See Restatement (Second) of Torts §
311 & cmt. c.
It is similarly inappropriate to entirely blur the distinction between strict
products liability and negligence liability. In the first place, regardless of the longrunning academic debate as to whether duty to warn products liability cases sounding
in negligence and strict liability are really the same thing, “conceptual
differences . . . continue to exist between warnings in negligence and warnings in

12

strict liability cases.” 2 Frumer and Friedman, Products Liability § 12.02 (Matthew
Bender, Rev. Ed. 2016). For example, there are some differences with respect to when
a manufacturer is required to know a component is harmful. Compare Restatement
(Second) of Torts § 402A (“[T]he seller is required to give warning against it, if he has
knowledge, or by the application of reasonable, developed human skill and foresight
should have knowledge, of the presence of the ingredient and the danger.”), with id.
§ 388 (seller has duty to warn when seller “knows or has reason to know that the
chattel is or is likely to be dangerous”), 14 and id. § 12 (“reason to know” standard
examines whether “actor has information from which a person of reasonable
intelligence or of the superior intelligence of the actor would infer that the fact in
question exists.”). 15 But even more importantly, once a manufacturer’s liability is no

See also Restatement (Second) of Torts § 394 (“The manufacturer of a chattel which
he knows or has reason to know to be, or to be likely to be, dangerous for use is subject
to the liability of a supplier of chattels with such knowledge.”).
15 These differences can be even more pronounced in certain jurisdictions. As one
treatise explains,
14

For example, the California Supreme Court has asserted that in a negligent
failure-to-warn case, a plaintiff must prove that a manufacturer did not warn
of a particular risk “for reasons which fell below the acceptable standard of
care, i.e., what a reasonably prudent manufacturer would have known and
warned about.” In contrast, strict liability claims are not concerned with the
standard of due care or the reasonableness of a manufacturer’s conduct,
because the doctrine’s rules require a plaintiff to prove only that the defendant
did not provide adequate warning of particular risks “known or knowable in
light of the generally recognized and prevailing best scientific and medical
knowledge available at the time of manufacture and distribution.” In strict
liability, as opposed to negligence, the reasonableness of the defendant’s failure
to warn is “immaterial.” A reasonably prudent manufacturer might reasonably
decide that a specific risk was not of a nature to need a warning. For example,
the manufacturer may have performed its own testing which showed that the
scientific community was incorrect. As explained by the Anderson court,
13

longer based on products liability law at all, but it is instead based solely on a
negligent misrepresentation theory, a manufacturer’s duties also vary. Cf. Schwartz,
106 F. Supp. 3d at 658 (under negligence standard, there is no “duty to undertake
reasonable investigation to identify all potential hazards”). Accordingly, the Court
also concludes that the legal standard for judging a manufacturer’s liability should
take account when a manufacturer’s liabilities sound only in negligence.
So rather than a one-size-fits-all test, the Court will apply a more granular
standard:
A.

Liability of Manufacturer That Incorporates Asbestos Into Its Finished Product:

When a claim runs against a manufacturer of a finished product that incorporates
asbestos components, the extent of the manufacturer’s liability primarily turn on
whether the harm was caused by a component added by the manufacturer or an
aftermarket component added by the user.
•

If the harm is caused by an asbestos component added to the product by the
manufacturer, then, through the uncontroversial application of products
liability law, the manufacturer may be liable in both strict liability and
negligence actions. See, e.g., Martinez v. Dixie Carriers, 529 F.2d 457, 464-65
(5th Cir. 1976) (standard for negligent failure to warn set out by section 388 of

“[s]uch a manufacturer might escape liability under negligence principles. In
contrast, under strict liability principles the manufacturer has no such leeway;
the manufacturer is liable if it failed to give warning of dangers that were
known to the scientific community at the time it manufactured or distributed
the product.”
2 Frumer and Friedman, Products Liability § 12.02 (Matthew Bender, Rev. Ed. 2016).
14

the Second Restatement of Torts); id. at 465-66 (standard for strict liability
failure to warn set out by section 402A of the Second Restatement of Torts).
•

If the harm is caused by an aftermarket asbestos component, the manufacturer
is not liable in a strict products liability action. See, e.g., Schwartz, 106 F.
Supp. 3d at 653 (concluding that strict products liability under § 402A does not
extend to products the manufacturer neither makes, nor sells, nor controls).
However, a manufacturer that assembled a product with original asbestos
components may still be liable under a negligence theory if a breach of the duty
to warn regarding the original asbestos components that the manufacturer
added to the product is a proximate cause of a subsequent harmful exposure to
asbestos contained in an aftermarket replacement part, see, e.g., Schwartz, 106
F. Supp. 3d at 654-55 (applying Pennsylvania law), subject to the
manufacturer’s ability to argue that the aftermarket product is a superseding
cause of any injury, see Restatement (Second) of Torts § 440; see also id. § 442
(setting out the relevant factors in determining whether an intervening force
is a superseding cause). 16

The Court recognizes that a number of courts—including courts that this Court has
cited as persuasive authority on certain points—have seen this particular issue
differently. However, the Court concludes that those cases incorrectly blur the
question of whether a manufacturer has a duty to warn regarding an aftermarket
product with the question of whether a manufacturer’s original failure to warn
regarding the hazards in a product as shipped may also be a proximate cause of a
subsequent injury. After all, tort law has long recognized that a particular injury
may have multiple proximate causes. See, e.g., Sosa v. Alvarez-Machain, 542 U.S.
692, 704 (2004) (“Proximate cause is causation substantial enough and close enough
to the harm to be recognized by law, but a given proximate cause need not be, and
frequently is not, the exclusive proximate cause of the harm.”). Indeed, particularly
16

15

o Likewise, if the harm comes from an aftermarket asbestos component,
the

manufacturer

may

also

face

liability

under

a

negligent

misrepresentation theory if the manufacturer negligently recommends
the use of a defective aftermarket product. See Restatement (Second) of
Torts § 311.

where a replacement aftermarket wear item—i.e., a part that is designed to wear
down and be replaced—is materially identical to a wear item in the originally shipped
product, it is hard to see how the manufacturer’s breach of its duty to provide a
suitable warning with respect to the original product is not at least one of the
proximate causes of a resulting injury. Cf. Schwartz, 106 F. Supp. 3d at 654 & n.76
(noting original failure to warn regarding gaskets would give rise to liability for
exposure to replacement gaskets but not exposure to replacement insulation).
Such an exception to the general rule that a manufacturer is only liable for its
own products may well be quite narrow. But that does not justify a categorical rule
that a failure to warn regarding a product as originally manufactured cannot, as a
matter of law, be one of the proximate causes of a sailor’s exposure to a hazardous
substance contained in an aftermarket replacement component part. That is all the
more true here given that the frequently offered justification for the bare metal
defense—the excessive costs of imposing a duty to warn regarding the interaction
between a manufacturer’s product and a third-party manufacturer’s product, see
supra n.13—does not apply when the underlying duty that is technically being
breached is the manufacturer’s obligation under assembler’s liability to warn
regarding the components that the manufacturer put into the product. The
manufacturer already has a preexisting obligation to investigate and warn regarding
those risks. See, e.g., In re N.Y.C. Asbestos Litig., 27 N.Y.3d at 798 (experience with
asbestos in the design of the original product helps ensure that the manufacturer has
sufficient “knowledge of the peril” so as to justify imposing liability in certain cases
involving replacement parts). Further, if anything, the manufacturer of the finished
product containing asbestos may well be better placed to warn when compared to the
manufacturer of an aftermarket wear item. See, e.g., Schwartz, 106 F. Supp. 3d at
657-58 & n.87 (noting practical difficulty of providing effective warnings on
aftermarket asbestos components because the high heat on asbestos wear items
obliterates warnings, and concluding that the manufacturer that placed asbestos in
the original product should be legally incentivized to provide warnings); In re N.Y.C.
Asbestos Litig., 27 N.Y.3d at 791 (“[T]he end user is more likely to interact with the
durable product over an extended period of time, and hence he or she is more likely
to inspect warnings on that item or in associated documentation than to review
warnings supplied by the maker of the ‘wear item’ . . . .”).
16

B.

Liability of A Bare Metal Component Part Manufacturer: When a claim runs

against a manufacturer of a bare metal component part that was used in conjunction
with an asbestos product, then the manufacturer’s liability turns on whether the
manufacturer did something beyond manufacturing the component part that was
used in conjunction with the asbestos. 17 If a component part manufacturer “simply
designs a component to its buyer’s specifications,” Restatement (Third) of Torts:
Product Liability § 5 cmt. e, and does nothing else, then the manufacturer—pursuant
to the operation of the component parts doctrine—faces no liability unless the
component part manufacturer’s component “is defective in itself,”

id. § 5(a).

However, if the component part manufacturer does something beyond simply
designing and manufacturing a component part, then the manufacturer may be liable
under a variety of theories.
•

If the bare metal component part manufacturer “is substantially involved in
the integration of the component into the design of the integrated product, the
component seller is subject to liability when the integration results in a
defective product and the defect causes harm to the plaintiff.” Id. § 5 cmt. e.
The component part manufacturer’s liability in such a circumstance would lie
in both negligence and strict liability.

Cf. Martinez, 529 F.2d at 464-65

(recognizing both theories of liability in products liability cases).

If, on the other hand, the component part manufacturer does not make a bare metal
product, but instead makes a component part containing asbestos, then, as previously
noted, the component part manufacturer can be liable for that asbestos.

17

17

•

If the bare metal component part manufacturer “supplies directly or through a
third person” a component part “for the use of another whom the supplier
knows or has reason to know to be likely because of his youth, inexperience, or
otherwise, to use it in a manner involving unreasonable risk of physical harm
to himself and others whom the supplier should expect to share in or be
endangered by its use,” then the manufacturer “is subject to liability for
physical harm resulting to them.”

Restatement (Second) of Torts § 390.

However, a manufacturer’s liability in such circumstances would lie only in
negligence.
•

If the bare metal component part manufacturer recommends the use of a
hazardous part in conjunction with the manufacturer’s component part, then
the manufacturer can face liability if the recommendation “negligently gives
false information to another,” and “harm results” to either (1) the recipient of
the information or (2) “third persons” that the manufacturer “should expect to
be put in peril by the” negligent recommendation. Id. § 311. Again, the
manufacturer is liable only in a negligence action for such a recommendation.

II.

Supplemental Briefing
This Court’s third view of a manufacturer’s liability for asbestos in and on the

manufacturer’s product creates difficulties for both sides’ summary judgment
briefing. In particular, both sides’ briefs analyze the defendants’ liability under what
this Court concludes are erroneous legal standards.

Accordingly, rather than sua

sponte reviewing the record or relying on determinations that certain arguments

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were waived, this Court will give the parties the ability to rebrief their summary
judgment contentions.
In so doing, the Court does not want to re-plow ground already covered.
Accordingly, the Court will limit each defendant to one summary judgment motion of
no more than fifteen pages. The Court will neither grant motions for excess pages
nor motions for leave to file a reply brief. The parties are urged to simplify their
arguments, and focus on the arguments that they expect to win.
CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Atwood’s motion for summary judgment (R. Doc. No.
208) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Aurora’s motion for summary judgment
(R. Doc. No. 210) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Buffalo’s motion for summary judgment
(R. Doc. No. 206) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Crane’s motion for summary judgment (R.
Doc. No. 201) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that DeLaval’s motion for summary judgment
(R. Doc. No. 229) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Foster Wheeler’s motion for summary
judgment (R. Doc. No. 199) is DENIED WITHOUT PREJUDICE.

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IT IS FURTHER ORDERED that General Electric’s motion for summary
judgment (R. Doc. No. 198) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Warren’s motion for summary judgment
(R. Doc. No. 224) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Westinghouse’s motion for summary
judgment (R. Doc. No. 203) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that York’s motion for summary judgment (R.
Doc. No. 215) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that defendants shall re-file their summary
judgment briefs no later than October 18, 2016. Plaintiffs’ responses are due no
later than November 4, 2016.
IT IS FURTHER ORDERED that a status conference in this matter shall
take place at 9:00 AM on Tuesday, October 11, 2016 in the chambers of the
undersigned U.S. District Judge. Counsel may participate by phone if the Court is
provided with a telephone number prior to the conference. 18 Plaintiffs should be
prepared at conference to discuss which claims they intend to pursue given the legal
standard set forth in this opinion.

The Court notes that its conference system can support only a limited number of
callers. Accordingly, the Court suggests that, as a matter of courtesy to out-of-state
counsel that wish to participate, New Orleans-based counsel attend the conference in
person and, further, that each party minimize the number of attorneys participating
by phone.
18

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IT IS FURTHER ORDERED that both the pre-trial conference and the trial
are CONTINUED to dates to be set at the status conference in consultation with the
Court’s case manager.
New Orleans, Louisiana, October 4, 2016.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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