DEVRIES et al v. GENERAL ELECTRIC COMPANY et al
Filing
369
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/18/16. 5/19/16 ENTERED AND COPIES MAILED, E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN B. DEVRIES,
ET AL.,
Plaintiffs,
v.
GENERAL ELECTRIC COMPANY,
ET AL.,
Defendants.
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CONSOLIDATED UNDER
MDL 875
E.D. PA CIVIL ACTION NO.
5:13-00474-ER
M E M O R A N D U M
EDUARDO C. ROBRENO, J.
May 18, 2016
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
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’ appeal1 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. 5:13cv-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 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)
1
These product manufacturer Defendants are: Buffalo Pumps,
Inc., CBS Corporation, Foster Wheeler LLC, General Electric
Company, IMO Industries, Inc., and Warren Pumps.
2
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 Lindstrom v. A-C Product Liability
Trust, 424 F.3d 488 (6th Cir. 2005) and Stark v. Armstrong World
2
In addition, the Court notes that, at the time of its
decision to adopt the Lindstrom rule in February of 2012, the
“bare metal 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 same conclusion regarding the application of the
“bare metal defense” under maritime law. See Sweeney v.
Saberhagen 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. 09-69578
(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 motions decided, e.g., 2011 WL 4910416 (E.D. Pa. Mar.
2, 2011)(Robreno, J.)).
3
Industries, Inc., 21 F. App’x 371 (6th Cir. 2001)3 – decisions
consistent with, and bolstered by, the then-governing4 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 socalled “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
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-towarn claims apparently not pursued by that plaintiff). 21 F.
App’x 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.”
4
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)] . . . [by later]
distinguish[ing] the facts in Macias v. Saberhagen Holdings,
Inc., 175 Wash.2d 402, 282 P.3d 1069 (Wash. Aug. 9, 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.
4
asbestos litigation were California (in O’Neil v. Crane Co., 53
Cal.4th 335, 266 P.3d 987 (Cal. Jan. 12, 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 (Wash. 2008)(addressing negligence and strict
liability claims under Washington law); (4) Braaten (Wash. 2008)
(negligence and strict liability claims under Washington law);
(5) O’Neil (Cal. Jan. 12, 2012) (addressing negligence and
strict liability claims under California law). Each of these
decisions barred all 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.
5
for the Northern District of Ohio – the same district in which
Lindstrom and Stark were initially decided).6
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”); In 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 “[w]hen 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.I.C., 208 F.3d
959, 965-66 (11th Cir. 2000); see also In re Donald J. Trump
6
Specifically, these are the cases that comprise the MDL-875
maritime docket (often referred to as “MARDOC”). No. 2:02-md00875 (master docket).
6
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 In re Korean Air Lines
Disaster, 829 F.2d at 1176, in holding that Third Circuit
precedent would control interpretations of federal law, but that
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
7
the MDL Court during the pre-trial 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
(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 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:
8
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 [or decided] in districts within [one]
Circuit, and an opposing interpretation for cases
filed [or 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 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. In re Korean Air Lines Disaster of Sept. 1,
1983, 829 F.2d 1171, 1176 (D.C. Cir.1987), aff'd 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
9
transferee judge should consider whether to apply the
law of the transferee circuit or that of the
transferor court's circuit....”).
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.
10
II.
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 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 negligence7 cause of action against a
product manufacturer, see 424 F.3d at 492, the Lindstrom Court
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).
11
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),8 424 F.3d
at 496 (citing Stark, 21 F. App’x at 381), and “cannot be held
responsible for asbestos containing material that [] was
incorporated into its product post-manufacture.”9 Id. at 497
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 (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
12
(citing Stark, 21 F. App’x at 381). Intrinsic in these holdings
are the conclusions that, in 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 manufacturer
defendant had a “duty” to warn). See Lindstrom, 424 F.3d at 492,
496-97.10
be held responsible for asbestos containing material
that [] was incorporated into its product postmanufacture. 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).
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:
13
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]aving held as
a matter of law that a manufacturer is not liable for harm
(1) “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,
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
(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).
14
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 product
liability claims11 in the absence of (sufficient) evidence of
11
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
15
exposure to asbestos from the defendant’s “product” (as defined
by Lindstrom).12 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.
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).
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.
16
2015) (Robreno, J.)13), 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 liability14) renders the defense equally and
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.
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
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 arising from exposure to another
manufacturer’s product (or component part). With respect to a
strict product liability theory of liability: a product
manufacturer cannot be strictly liable for a product (or
component part) that is not its own product (i.e., over which it
had no control). See Conner, 842 F. Supp. 2d at 801 (citing
Lindstrom).
17
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 defendant15) and bars both types
of claims where there is no evidence (or insufficient evidence)
of exposure to asbestos from the defendant’s “product.”
III. Maritime Law Versus State Law: Differing Applications
of the “Bare Metal Defense”
Maritime law (as set forth in Lindstrom) has
established a bright-line rule regarding the “product(s)” for
which a product manufacturer can be liable. This rule requires
that a plaintiff establish (sufficient) exposure to asbestos
15
To the extent that a defendant in asbestos litigation has a
status other than – or in addition to – that of “product
manufacturer” (e.g., shipowner, shipbuilder, employer, etc.),
the “bare metal defense” and analysis of the “bare metal” issue
are, generally, inapplicable; and a separate and distinct
analysis of liability (under the concept of general common law
negligence and/or other statutes, such as the Jones Act) is
likely warranted and appropriate. See, e.g., Mack v. General
Electric Co., 896 F. Supp. 2d 333, 346 (E.D. Pa. 2012) (Robreno,
J.) (holding that, under maritime law, a Navy ship is not a
“product” for purposes of strict product liability law), and
Filer v. Foster Wheeler LLC, 994 F. Supp. 2d 679, 687-95 (E.D.
Pa. 2012) (Robreno, J.) (holding that, under maritime law, the
builder of a Navy ship owes a common law duty to exercise
reasonable care under the circumstances, in issuing warnings to
Navy seaman (and others) of the hazards of asbestos present
aboard the Navy ships they build).
18
from the defendant’s own “product” in order to maintain either a
negligence or strict liability claim (thus holding (implicitly)
that a product manufacturer defendant has no duty to warn about
any product that is not its own “product”).16 None of the
circumstances or exceptions identified in the February 5th Order
(and its citation to numerous decisions from other courts)
impacts the analysis of Plaintiffs’ maritime law claims against
the present appealing Defendants (all of whom are product
manufacturer defendants).17 This is because, with one exception,
16
See footnotes 11 and 12 herein.
17
The Court notes that the four (4) circumstances outlined by
the February 5th Order comprise an effort of the various courts
to distill into a rule of law (for application in the context of
an asbestos action) the “knew or should have known” requirement
that generally exists for a common law negligence cause of
action (and, in particular, a negligent failure-to-warn claim)
brought against a product manufacturer in a product liability
action (and, specifically, the element of “duty” that a
plaintiff contends has been breached). See 57A Am. Jur. 2d
Negligence §§ 357, 359 (“Duty to Warn. Generally” (§357) (“A
person who controls an instrumentality or agency that he or she
knows or should know to be dangerous and which creates a
foreseeable peril to others has, if the danger is not obvious
and apparent, a duty to give warning of the danger”); “Duty to
Warn. Foreseeability” (§359) (“If a product has dangerous
propensities, a duty to warn generally arises where there is
unequal knowledge, either actual or constructive, with respect
to the risk of harm, and the defendant, possessed of such
knowledge, knows or should know that harm might occur absent a
warning.”)).
Importantly, however, none of the rules/circumstances
identified by the February 5th Order impacts the viability of a
negligent failure-to-warn claim brought under maritime law,
because of the fact that, under maritime law, an asbestos
product manufacturer defendant (1) has no “duty” to warn about a
19
the cases cited by the February 5th Order all involved
application of a given state’s law, rather than maritime law.
See Surre v. Foster Wheeler LLC, 831 F. Supp. 2d 797 (S.D.N.Y.
2011)(New York law); O’Neil, 53 Cal.4th 335, 266 P.3d 987
(California law); May v. Air & Liquid Sys. Corp., -- A.3d – ,
2015 WL 9263907 (Md. Dec. 18, 2015)(Maryland law); Sparkman v.
Goulds Pumps, Inc., No. 12-02957, 2015 WL 727937 (D.S.C. Feb.
19, 2015)(South Carolina law); In re New York City Asbestos
Litig., 990 N.Y.S.2d 174 (N.Y. App. Div. 2014)(New York law);
Braaten, 165 Wash.2d 373, 198 P.3d 493 (Washington law);
Schwartz, 106 F. Supp. 3d 626 (Pennsylvania law); Macias, 175
Wash.2d 402, 282 P.3d 1069 (Washington law). The rule of law set
forth in each of these cases reflects a policy determination of
that particular state – a policy determination which need not be
consistent with the policy determination underlying maritime
law.18 See East River Steamship Corp. v. Transamerica Delaval,
“product” that it did not manufacture or supply (and has a
“duty” to warn only about “products” it manufactured or
supplied), and, in keeping with this delineation of “duty,” (2)
can only be liable in negligence if there is evidence of (a
sufficient amount of) exposure to asbestos from a “product” it
manufactured or supplied, in part because the “causation”
element is not satisfied. See Lindstrom, 424 F.3d at 492, 49697.
18
As explained by this Court in Schwartz, “whether or not a
given . . . law recognizes the so-called ‘bare metal defense’ .
. . is a matter determined largely by how that [jurisdiction]
defines the ‘product’ at issue. As such, the determination is
largely a matter of policy.” 106 F. Supp. 3d at 635-37.
20
Inc., 476 U.S. 858, 864–66, 106 S. Ct. 2295, 90 L. Ed. 2d 865
(1986) (absent a controlling statute, maritime law is “developed
by the judiciary” and reflects, inter alia, “public policy
judgment[s]”); Mack v. General Electric Co., 896 F. Supp. 2d
333, 338 (E.D. Pa. 2012) (Robreno, J.) (discussing policy
considerations unique to maritime law); Norfolk Southern Railway
Co. v. Kirby, 543 U.S. 14, 25-19, 125 S. Ct. 385, 394-96
(2004)(same); Cobb Coin Co., Inc. v. Unidentified, Wrecked and
Abandoned Sailing Vessel, 525 F. Supp. 186, 201-03 (S.D. Fla.
1981)(same).
The sole maritime law case cited by the February 5th
Order is Quirin v. Lorillard Tobacco Co., 17 F. Supp. 3d 760
(N.D. Ill. 2014), which was decided two years after this MDL
Moreover, maritime law is concerned with promoting
uniformity in the law of the sea. See Miles v. Apex Marine
Corp., 498 U.S. 19, 111 S. Ct. 317, 112 L. Ed. 2d 275 (1990)
(discussing Moragne v. States Marine Lines, Inc., 398 U.S. 375,
401, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970)); Miller v.
American President Lines, Ltd., 989 F.2d 1450, 1462 (6th Cir.
1993). The interests of maritime law are separate and different
from those of land-based law. See e.g., Mack v. General Electric
Co., 896 F. Supp. 2d 333, 338 (E.D. Pa. 2012) (Robreno, J.);
Norfolk Southern Railway Co. v. Kirby, 543 U.S. 14, 25-19, 125
S. Ct. 385, 394-96 (2004); Cobb Coin Co., Inc. v. Unidentified,
Wrecked and Abandoned Sailing Vessel, 525 F. Supp. 186, 201-03
(S.D. Fla. 1981). As such, it need not – and likely should not –
conform to states’ policy determinations where doing so would
create inconsistencies within maritime law (such as, for
example, inconsistencies across the Third and Sixth Circuits in
the application of maritime law in – and accompanying resolution
of – virtually identical asbestos cases).
21
Court’s decision in Conner. The Court has reviewed Judge
Gottschall’s thorough and well-reasoned decision in Quirin and
has identified the source of divergence between the Conner and
Quirin decisions: Quirin is premised on Judge Gottschall’s
construction of the Lindstrom decision as one that “did not
discuss a failure to warn claim,” 17 F. Supp. 3d at 768, leading
Judge Gottschall to proceed with setting forth maritime law as
to such a claim, while Conner has construed Lindstrom as already
encompassing the rule of law on negligent failure-to-warn claims
(as well as strict liability defective design/warning claims) –
a rule consistent with those set forth regarding state law in
O’Neil, Simonetta, and Braaten – decisions which each considered
and relied upon Lindstrom in determining its respective rule of
law regarding negligent failure-to-warn.19
19
Specifically, in Conner, this MDL Court explained that, in
addition to strict liability for defective design/warning, “a
manufacturer is also liable for the harm resulting from the
negligent failure to warn of the risks created by its products.”
842 F. Supp. 2d at 797 (emphasis added). It relied on Lindstrom
in setting forth the applicable rule of law:
In determining whether Defendant manufacturers are
liable under maritime law for injuries caused by
asbestos parts used with their products, whether in
strict liability or negligence, a plaintiff must
establish causation with respect to each defendant
manufacturer. See Lindstrom v. A–C Prod. Liab. Trust,
424 F.3d 488, 492 (6th Cir.2005). A plaintiff
establishes causation under maritime law by showing
(1) that the plaintiff was exposed to the defendant's
product and (2) that the product was a substantial
factor in causing the plaintiff's injury. See id.”
22
Id. (emphasis added). It concluded that this construction was
accurate, in part, because of the decisions in O’Neil,
Simonetta, and Braaten, each of which considered Lindstrom as
instructive and persuasive precedent regarding a negligent
failure-to-warn claim. A summary of the relevant aspect of each
of those three cases is as follows:
After considering Lindstrom, O’Neil found that there is “no
duty to warn of defects in another manufacturer’s product” and
“no duty of care to prevent injuries from another manufacturer’s
product,” because “[t]he same policy considerations that
militate against imposing strict liability in this situation
apply with equal force in the context of negligence.” 266 P.3d
at 997, 1006-07.
The Simonetta court found Lindstrom to be the precedent
most factually similar to the case before it, and held that,
“[b]ecause [evaporator manufacturer defendant] Viad was not in
the chain of distribution of the dangerous product [i.e.,
asbestos-containing insulation used with the evaporator], we
conclude not only that it had no duty to warn under negligence,
but also that it cannot be strictly liable for failure to warn.”
197 P.3d at 138.
Extending the holding of Simonetta to replacement parts,
the Supreme Court of Washington noted in Braaten that Lindstrom
was “particularly instructive,” and held that a valve
manufacturer defendant (Henry Vogt) had “no duty under common
law products liability or negligence principles to warn of the
dangers of exposure to asbestos in products it did not
manufacture and for which the manufacturer was not in the chain
of distribution. These holdings apply here and foreclose the
plaintiff's products liability and negligence claims based on
failure to warn of the danger of exposure to asbestos (1) in
insulation applied to pumps and valves the defendantmanufacturers sold to the navy, where the manufacturers did not
manufacture or sell the insulation and were not in the chain of
distribution of it and (2) in replacement packing and gaskets
installed in or connected to the pumps and valves after they
were installed aboard ships, where the manufacturers did not
manufacture or sell the replacement packing and gaskets and were
not in the chain of distribution of these products.” 198 P.3d at
504 (emphasis added).
23
In short, the rules of law surrounding the
circumstances identified by the February 5th Order are creatures
of state law – and determinations of state policy – that are not
applicable under maritime law (as construed by this MDL Court to
have been set forth in Lindstrom and Stark).
IV.
Summary and Conclusion
In adopting the so-called “bare metal defense” under
maritime law (as set forth in Lindstrom) and applying it to
subsequent MDL cases (including the present case), this MDL
Court (1) has considered plaintiffs’ negligent failure-to-warn
claims, (2) has determined that, when applicable, the defense
(as set forth by Lindstrom) bars both strict liability and
negligent failure-to-warn claims, and (3) has concluded that
maritime law’s application of the defense (as illustrated by
Lindstrom) rejects potential liability of a product manufacturer
in negligence for products (or component parts) that it did not
manufacture or supply (i.e., rejects separate and different
analyses of negligence liability and strict liability).
BY THE COURT,
/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.
24
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