CLOSE v. GENERAL ELECTRIC COMPANY et al
MEMORANDUM AND ORDER THAT THE MOTION FOR SUMMARY JUDGMENT OF DEFENDANT GENERAL ELECTRIC IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 4/3/12. 4/3/12 ENTERED AND E-MAILED.(jl, ) Modified on 4/3/2012 (jl, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Transferred from the
Case Nos.: See Exhibit A
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
APRIL 3, 2012
TABLE OF CONTENTS
LEGAL STANDARD........................................... 2
SUMMARY JUDGMENT STANDARD........................... 3
THE APPLICABLE LAW.................................. 5
PROCEDURAL MATTERS............................. 5
GOVERNMENT CONTRACTOR DEFENSE.................. 5
STATE LAW ISSUES (MARITIME VS. STATE LAW)...... 5
BARE METAL DEFENSE UNDER MARITIME LAW............... 8
GOVERNMENT CONTRACTOR DEFENSE....................... 8
GOVERNMENT CONTRACTOR DEFENSE AT SUMMARY JUDGMENT
Before the Court are Motions for Summary Judgment in
five (5) cases originating in California. A list of these cases
appears as “Exhibit A” hereto. Each of these cases was
transferred from the United States District Court for the
Northern District of California, and is now part of MDL-875, the
consolidated asbestos products liability multidistrict litigation
pending in the U.S. District Court for the Eastern District of
Pennsylvania. For the reasons set forth below, and for each of
the motions, summary judgment will be granted in part (as to
alleged asbestos exposure arising from insulation) and denied in
part (as to all other alleged asbestos exposure), and each case
remanded to the Northern District of California for further
proceedings. By stipulation dated September 22, 2011 (the
“Stipulation”), counsel for plaintiff(s) in each of these cases
entered into an agreement with counsel for Defendant General
Electric Company that the Court’s rulings on the summary judgment
motions filed by Defendant in these five (5) cases (which the
parties have agreed are “representative” cases) (the
“Representative Cases”) will be binding in approximately eightythree (83) other cases in which the Stipulation was filed of
record (“Other Cases”).1 A copy of the Stipulation appears as
“Exhibit B” hereto.
Defendant General Electric Company (“GE”) manufactured
turbines for use aboard Navy ships.
Each of the plaintiffs in
In accordance with the Stipulation, the Other Cases
will be subject to the same disposition: with respect to
Defendant GE, summary judgment will be granted in part (as to
alleged asbestos exposure arising from insulation) and denied in
part (as to all other alleged exposure), and, upon resolution of
any pending summary judgment motions filed by any other
defendants, each case remanded to the Northern District of
California for further proceedings.
the Representative Cases (“Plaintiffs”) alleges exposure to
asbestos from (1) insulation that Plaintiffs concede was not
manufactured or supplied by Defendant, and (2) one or more other
product that Plaintiffs contend Defendant supplied as an original
asbestos-containing component part with its turbine(s).
Defendant GE has moved for summary judgment in each
case on grounds of (1) the so-called “bare metal defense,” and
(2) the government contractor defense. GE contends that maritime
law applies. Plaintiffs in each of the Representative Cases have
opposed GE’s motions, contending that summary judgment is not
warranted because Defendant’s assertion of the bare metal defense
does not establish that it has no liability in these cases (as a
matter of law) and does not identify the absence of a genuine
dispute as to any material fact. Plaintiffs assert that
California law applies.
Summary Judgment Standard
Summary judgment is appropriate if the moving party
shows that there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a).2 “A motion for summary judgment will not
The familiar formulation of “genuine issue of material
fact” that was previously set forth in Federal Rule of Civil
Procedure 56(c) was recently modified to read “genuine dispute as
to any material fact.” See Fed. R. Civ. P. 56(a). As the notes to
be defeated by ‘the mere existence’ of some disputed facts, but
will be denied when there is a genuine issue of material fact.”
Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d
Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-248 (1986)). A fact is “material” if proof of its
existence or non-existence might affect the outcome of the
litigation, and a dispute is “genuine” if “the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
In undertaking this analysis, the court views the facts
in the light most favorable to the non-moving party.
making all reasonable inferences in the nonmoving party’s favor,
there is a genuine issue of material fact if a reasonable jury
could find for the nonmoving party.”
Pignataro v. Port Auth. of
N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing Reliance
Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir. 1997)). While
the moving party bears the initial burden of showing the absence
of a genuine issue of material fact, meeting this obligation
shifts the burden to the non-moving party who must “set forth
specific facts showing that there is a genuine issue for trial.”
Anderson, 477 U.S. at 250.
this amendment point out, the reformulation of the standard is
stylistic in nature and without substantive change. The notes
recognize that the standard now set forth in Rule 56(a) does not
affect the continuing development of the prior decisional law,
which applied the standard as previously set forth in Rule 56(c).
The Applicable Law
In multidistrict litigation, “on matters of procedure,
the transferee court must apply federal law as interpreted by the
court of the district where the transferee court sits.” Various
Plaintiffs v. Various Defendants (“Oil Field Cases”), 673 F.
Supp. 2d 358, 362-63 (E.D. Pa. 2009)(Robreno, J.). Therefore, in
addressing the procedural matters herein, the Court will apply
federal law as interpreted by the U.S. Court of Appeals for the
Third Circuit. Id.
Government Contractor Defense (Federal Law)
Defendant’s motion for summary judgment on the basis of
the government contractor defense is governed by federal law.
matters of federal law, the MDL transferee court applies the law
of the circuit where it sits, which in this case is the law of
the U.S. Court of Appeals for the Third Circuit.
Plaintiffs v. Various Defendants (“Oil Field Cases”), 673 F.
Supp. 2d 358, 362-63 (E.D. Pa. 2009)(Robreno, J.).
State Law Issues (Maritime versus State Law)
In each of these cases, Defendant GE has asserted that
maritime law is applicable.
Whether maritime law is applicable
is a threshold dispute that is a question of federal law, see
U.S. Const. Art. III, § 2; 28 U.S.C. § 1333(1), and is therefore
governed by the law of the circuit in which this MDL court sits.
See Various Plaintiffs v. Various Defendants (“Oil Field Cases”),
673 F. Supp. 2d 358, 362 (E.D. Pa. 2009)(Robreno, J.).
court has previously set forth guidance on this issue.
Conner v. Alfa Laval, Inc., 799 F. Supp. 2d 455 (E.D. Pa.
In order for maritime law to apply, a plaintiff’s
exposure underlying a products liability claim must meet both a
locality test and a connection test.
Id. at 463-66 (discussing
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513
U.S. 527, 534 (1995)).
The locality test requires that the tort
occur on navigable waters or, for injuries suffered on land, that
the injury be caused by a vessel on navigable waters.
assessing whether work was on “navigable waters” (i.e., was seabased) it is important to note that work performed aboard a ship
that is docked at the shipyard is sea-based work, performed on
See Sisson v. Ruby, 497 U.S. 358 (1990).
contrast, work performed in other areas of the shipyard or on a
dock, (such as work performed at a machine shop in the shipyard,
for example, as was the case with the Willis plaintiff discussed
in Conner) is land-based work.
The connection test requires that
the incident could have “‘a potentially disruptive impact on
maritime commerce,’” and that “‘the general character’ of the
‘activity giving rise to the incident’ shows a ‘substantial
relationship to traditional maritime activity.’” Grubart, 513
U.S. at 534 (citing Sisson, 497 U.S. at 364, 365, and n.2).
If a service member in the Navy performed
some work at shipyards (on land) or docks (on land) as
opposed to onboard a ship on navigable waters (which
includes a ship docked at the shipyard), “the locality
test is satisfied as long as some portion of the
asbestos exposure occurred on a vessel on navigable
waters.” Conner, 799 F. Supp. 2d at 466.
the worker never sustained asbestos exposure onboard a
vessel on navigable waters, then the locality test is
not met and state law applies.
When a worker whose claims meet the locality
test was primarily sea-based during the asbestos
exposure, those claims will meet the connection test
necessary for the application of maritime law. Id. at
467-69. But if the worker’s exposure was primarily
land-based, then, even if the claims could meet the
locality test, they do not meet the connection test and
state law (rather than maritime law) applies. Id.
In instances where there are distinct periods of
different types (e.g., sea-based versus land-based) of exposure,
the Court may apply two different laws to the different types of
See, e.g., Lewis v. Asbestos Corp., Ltd., No. 10-
64625, 2011 WL 5881184, at *1 n.1 (E.D. Pa. Aug. 2, 2011)
(Robreno, J.)(applying Alabama state law to period of land-based
exposure and maritime law to period of sea-based exposure).
It is undisputed that, with respect to each of the
Representative Cases, the alleged exposure pertinent to Defendant
GE was aboard ships. Therefore, this exposure was during seabased work. See Conner, 799 F. Supp. 2d 455. Accordingly,
maritime law is applicable to each Plaintiff’s claims against
Defendant GE. See id. at 462-63.
Bare Metal Defense Under Maritime Law
This Court recently found that the so-called “bare
metal defense” is recognized under maritime law, holding that a
manufacturer has no liability for harms caused by – and no duty
to warn about hazards associated with – a product it did not
manufacture or distribute.
Conner v. Alfa Laval, Inc., No. 09-
67099, – F. Supp. 2d –, 2012 WL 288364 (E.D. Pa. Feb. 1,
Government Contractor Defense
To satisfy the government contractor defense, a
defendant must show that (1) the United States approved
reasonably precise specifications for the product at issue;
(2) the equipment conformed to those specifications; and (3) it
warned the United States about the dangers in the use of the
equipment that were known to it but not to the United States.
Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988). As
to the first and second prongs, in a failure to warn context, it
is not enough for defendant to show that a certain product design
conflicts with state law requiring warnings. In re Joint E. &
S.D.N.Y. Asbestos Litig., 897 F.2d 626, 630 (2d Cir. 1990).
Rather, the defendant must show that the government “issued
reasonably precise specifications covering warningsspecifications that reflect a considered judgment about the
warnings at issue.” Hagen v. Benjamin Foster Co., 739 F. Supp. 2d
770, 783 (E.D. Pa. 2010) (Robreno, J.) (citing Holdren v. Buffalo
Pumps, Inc., 614 F. Supp. 2d 129, 143 (D. Mass. 2009)).
Government approval of warnings must “transcend rubber stamping”
to allow a defendant to be shielded from state law liability. 539
F. Supp. 2d at 783.
This Court has previously cited to the case
of Beaver Valley Power Co. v. Nat’l Engineering & Contracting
Co., 883 F.2d 1210, 1216 (3d Cir. 1989), for the proposition that
the third prong of the government contractor defense may be
established by showing that the government “knew as much or more
than the defendant contractor about the hazards” of the product.
See, e.g., Willis v. BW IP Int’l, Inc., No. 09-91449, 2011 WL
3818515, at *5 (E.D. Pa. Aug. 29, 2011) (Robreno, J.); Dalton v.
3M Co., No. 10-64604, 2011 WL 5881011, at *1 n.1 (E.D. Pa. Aug.
2, 2011) (Robreno, J.).
Although this case is persuasive, as it
was decided by the Court of Appeals for the Third Circuit, it is
not controlling law in this case because it applied Pennsylvania
Additionally, although it was decided subsequent to Boyle,
the Third Circuit neither relied upon, nor cited to, Boyle in its
Government Contractor Defense at Summary Judgment Stage
This Court has noted that, at the summary judgment
stage, a defendant asserting the government contractor defense
has the burden of showing the absence of a genuine dispute as to
any material fact regarding whether it is entitled to the
government contractor defense. Compare Willis, 2011 WL 3818515 at
*9 (addressing defendant’s burden at the summary judgment stage),
with Hagen, 739 F. Supp. 2d 770 (addressing defendant’s burden
when Plaintiff has moved to remand). In Willis, the MDL Court
found that defendants had not proven the absence of a genuine
issue of material fact as to prong one of the Boyle test since
plaintiff had submitted affidavits controverting defendants’
affidavits as to whether the Navy issued reasonably precise
specifications as to warnings which were to be placed on
The MDL Court distinguished Willis from
Faddish v. General Electric Co., No. 09-70626, 2010 WL 4146108 at
*8-9 (E.D. Pa. Oct. 20, 2010) (Robreno, J.), where the plaintiffs
did not produce any evidence of their own to contradict
Ordinarily, because of the standard applied
at the summary judgment stage, defendants are not entitled to
summary judgment pursuant to the government contractor defense.
Bare Metal Defense
In each case, GE asserts the bare metal defense,
arguing that it is immune from liability in this case under the
defense as a matter of law and that it is, therefore, entitled to
In its reply briefs (and again during oral argument),
GE acknowledges that “GE has not moved for summary judgment on
the issues of product identification, substantial factor and
medical causation in its motion–GE elected not to raise these
issues in its motion.”
(Def. Reply Mem. at 6.)
However, GE also
contends in its reply brief that summary judgment is warranted
because Plaintiffs have not produced product identification
evidence regarding gaskets, packing, and/or electrical components
– stating that “[w]hile GE has elected not to raise specific
issues of product identification or medical causation in its
motion, GE’s motion expressly raises the issue of ‘exposure’ that
is critical here – plaintiff has not come forward with any
admissible evidence to demonstrate that GE manufactured, sold,
supplied, or placed into the stream of commerce any asbestos11
containing product to which he may have been exposed.”
Reply Mem. at 6.)
Government Contractor Defense
GE argues that summary judgment is appropriate because
it is immune from any liability regarding Plaintiffs’ allegations
by way of the government contractor defense. Specifically, GE
argues that the Navy exercised detailed, ongoing and ultimate
control over the design and manufacture of the equipment it
supplied to the Navy and over the communication of any warnings
associated with that equipment. GE cites to the same evidence it
cited in Faddish (which involved GE’s assertion of the government
contractor defense): affidavits of Admiral Ben J. Lehman, former
GE engineer David Hobson, and Captain Lawrence Stilwell Betts,
along with a set of Military Specifications purported to have
been issued by the Navy and applicable to the GE products at
Bare Metal Defense
Plaintiffs contend that the bare metal defense is
irrelevant to (or at least not dispositive of) their cases
because they do not limit their allegations of asbestos exposure
to those arising from insulation.
Rather, each of the Plaintiffs
contends that GE supplied another asbestos-containing product
and/or original component part (e.g., electrical components,
gaskets, and/or packing) such that the bare metal defense does
not preclude liability on the part of GE.3
Plaintiffs argue that, even when the bare metal defense is
applied, Defendant GE is not entitled to full summary judgment in
any case and is instead entitled only to partial summary judgment
(as to insulation) because GE did not move for summary judgment
on grounds of insufficient product identification evidence.
Government Contractor Defense
First, Plaintiffs argue that the government contractor
defense is irrelevant as to at least one motion because the
alleged asbestos exposure is not limited to that arising from
products used in connection with turbines.
Rather, in at least
one case, Plaintiffs contend that GE supplied asbestos-containing
electrical components (not governed by Plaintiff’s turbinespecific evidence pertaining to the government contractor
defense), such that this defense does not preclude liability.
Significantly, Plaintiffs argues that, even if the government
contractor defense as invoked by GE is applied, Defendant is not
The alleged sources of asbestos exposure (other than
insulation) for each plaintiff (or decedent) are as follows:
Charles Clemmer: original gaskets and packing
Calvin Oxford: original gaskets and packing
Albert Rice: original gaskets and packing
Jack Reynolds: original gaskets and packing
Richard Close: original electrical components
entitled to full summary judgment and is instead entitled only to
partial summary judgment (as to parts governed by military
specifications, as identified by GE) because GE has presented no
evidence that the Navy (or its military specifications) required
asbestos-containing electrical components; rather, GE’s evidence
pertaining to the government contractor defense deals only with
asbestos-containing component parts in turbines that are governed
by military specifications (e.g., insulation).
Second, Plaintiffs argue that summary judgment in favor
of Defendants on grounds of the government contractor defense is
not warranted with respect to any of their turbine-related
claims/exposures because there are genuine issues of material
fact regarding its availability to Defendants. Plaintiffs contend
that Defendant has (1) not produced its contract with the
government or otherwise proven that it was a government
contractor, (2) not demonstrated that the product at issue was
“military equipment,” and (3) not demonstrated a genuine
significant conflict between state tort law and fulfilling its
contractual federal obligations (i.e., that its contractual
duties were “precisely contrary” to its duties under state tort
Furthermore, Plaintiffs assert that the government
contractor defense is not warranted because (4) SEANAV
Instruction 6260.005 makes clear that the Navy encouraged
Defendant to warn, (5) military specifications merely “rubber
stamped” whatever warnings Defendant elected to use (or not use)
and do not reflect a considered judgment by the Navy, (6) there
is no military specification that precluded warning about
asbestos hazards, and (7) Defendant cannot demonstrate what the
Navy knew about the hazards of asbestos relative to the knowledge
of Defendant, nor that the Navy knew more than it at the time.
To contradict the evidence relied upon by Defendant GE,
Plaintiffs cite to(a) MIL-M-15071D, and (b) SEANAV Instruction
6260.005, each of which Plaintiffs contend indicates that the
Navy not only permitted but expressly required warning.
Plaintiffs have also submitted objections to Defendant
GE’s evidence pertaining to the government contractor defense.
This Court has ruled that maritime law recognizes the
so-called “bare metal defense.” Conner, 2012 WL 288364.
Defendant’s briefs asserting the bare metal defense discuss only
insulation as the asbestos-containing product at issue.
Plaintiffs concede that any insulation used in connection with
GE’s turbines was externally applied after their distribution and
was not manufactured or supplied by GE. Therefore, Defendant’s
assertion of the bare metal defense entitles it to summary
judgment with respect to Plaintiff’s claims to the extent that
they are related to alleged asbestos exposure arising from
insulation. See id.
Importantly, however, Plaintiffs have not limited their
allegations to insulation and, in fact, each Plaintiff has
clarified in his or her opposition brief that he or she is
alleging that Defendant GE supplied original asbestos-containing
gaskets, packing, and/or electrical components for use aboard the
ships at issue (e.g., original gaskets and/or packing already
installed in its turbines at the time GE supplied those turbines
to the Navy).4 Defendant GE has not sought summary judgment on
grounds of insufficient product identification /causation
evidence.5 Defendant has not provided an affidavit stating that
it did not manufacture or supply the gaskets, packing, and/or
electrical components to which Plaintiffs have alleged exposure.
Therefore, as a matter of Rule 56 jurisprudence, Defendants have
neither identified the absence of a genuine dispute as to any
material fact, nor shifted to Plaintiffs any burden to identify
product identification evidence that is sufficient to support a
finding of causation with respect to original gaskets, packing,
See footnote 3 herein.
Defendant’s assertion of the bare metal defense did not
challenge the sufficiency of Plaintiffs’ evidence with respect to
their allegations pertaining to these asbestos-containing
products (other than insulation). Defendant GE’s assertion of the
bare metal defense was as follows: “An equipment manufacturer
like GE cannot be liable for injuries from asbestos products it
did not manufacture, sell, or supply, and as a matter of law GE
had no duty to warn of possible hazards from the products of
other manufacturers.” (Def. Mem. at 1.)
and/or electrical components from which Plaintiffs also allege
asbestos exposure. See Fed. R. Civ. P. 56(a); Anderson, 477 U.S.
Government Contractor Defense
Plaintiffs have pointed to evidence that contradicts
(or at least appears to be inconsistent with) GE’s evidence as to
whether the Navy did or did not reflect considered judgment over
whether warnings could be included with asbestos-containing
products. Specifically, Plaintiffs have pointed to (a) MIL-M15071D, and (b) SEANAV Instruction 6260.005, each of which
Plaintiffs contend indicates that the Navy not only permitted but
expressly required warning. This is sufficient to raise genuine
issues of material fact as to whether the first and second prongs
of the Boyle test are satisfied with respect to Northrop Grumman.
See Willis, 811 F. Supp. 2d 1146. Accordingly, summary judgment
on grounds of the government contractor defense is not warranted.
In light of this determination, the Court need not
reach Plaintiffs’ argument that Defendant’s evidence does not
warrant summary judgment with respect to electrical components
(i.e., products not governed by the military specifications as
identified by GE).
It also need not reach Plaintiffs’ challenge
to the admissibility of Defendant’s evidence pertaining to the
government contractor defense.
In each of the Representative Cases (see Exhibit A,
attached hereto), summary judgment in favor of Defendant GE is
granted with respect to alleged asbestos exposure arising from
insulation; however, with respect to all other alleged asbestos
exposure in each of these cases, summary judgment is not
Accordingly, Defendant’s motion in each case is
granted in part and denied in part.
Motions by General Electric Company
in Various Cases Transferred from the
United States District Court for the
Northern District of California
Name of Plaintiff
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