Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - July 2015

July 16, 2015

Edited by Timothy D. Rau, Esq.

Federal Judge Applies "Bare Metal Defense" Under PA Law

Judge Eduardo Robreno of the USDC for EDPA issued a thorough and searching analysis of the applicability of what has been termed the "bare metal defense" under Pennsylvania law and predicted how Pennsylvania courts would determine this issue in the current absence of appellate authority directly on point.

In Schwartz, et al. v. Abex Corp., et al., MDL 875, 2:05-cv-02511 (EDPA May 27, 2015), Judge Robreno predicted that Pennsylvania’s appellate courts would find that, under Pennsylvania law, an equipment manufacturer—such as a pump manufacturer—cannot be found strictly liable for failure to warn where a plaintiff alleges injuries resulting from exposure to replacement components—such as packing or gaskets—when there is no evidence that the equipment manufacturer manufactured or supplied the component. By contrast, Judge Robreno held that the same equipment manufacturer has a common law duty to warn, and thus, a plaintiff has a cause of action sounding in negligence for the equipment manufacturer's failure to warn under identical circumstances.

Ultimately, Judge Robreno predicted that the Pennsylvania Supreme Court would institute a two-part test where an equipment manufacturer could be found to be liable for a negligent failure to warn about dangers inherent in products manufactured and supplied by third parties: (1) whether the equipment was supplied with original asbestos-containing components and (2) where the equipment manufacturer knew of the hazards of asbestos.

This case is a benefit to equipment defendants in asbestos cases as it knocks out 402A claims and leaves plaintiffs with only a cause of action sounding in negligence.

For a negligence case, a variety of considerations may be presented to the jury by both sides, including the conduct of the parties, what the defendant knew, whether the defendant acted reasonably based on that knowledge, what a consumer would expect from the product, and potential factual defenses, such as federal regulations and relative knowledge of the parties as well as other entities, i.e., the U.S. Navy in particular cases. While this case may be viewed as persuasive to Pennsylvania courts, it is not binding precedent. The ultimate impact of this decision remains to be seen as this issue winds its way through the Pennsylvania courts.

For a copy of the Schwartz decision, please contact Josh Scheets in our Philadelphia office.

Summary Judgment Reversed on Plaintiff's Jones Act Claims

The Pennsylvania Superior Court reversed orders from the Philadelphia Court of Common Pleas granting summary judgment in favor of defendants Arco and Sunoco on the basis that evidence existed that the plaintiff was exposed to asbestos aboard vessels operated by the defendants and that the plaintiff had met the "relaxed causation standard employed under the Jones Act."

In Criswell v. ARCO, 2015 PA Super 119, the court was asked to consider whether the trial court improperly granted summary judgment in favor of two defendants against whom the plaintiff had asserted claims of negligence under the Jones Act, 46 U.S.C.A. Sec. 30104, related to his asbestos exposure while employed by the defendants. The plaintiff worked as an oiler and pump man aboard ARCO vessels for approximately five years and worked aboard Sunoco vessels for seven years. The Superior Court found that evidence established that Mr. Criswell worked with asbestos insulation, asbestos mortar, and asbestos cement while aboard the defendants' vessels.

After finding the plaintiff had sufficiently established exposure to asbestos, the court considered whether the plaintiff had put forth enough evidence to establish legal causation under the Jones Act. The plaintiff argued that the trial court applied the wrong standard for negligence, and the Superior Court agreed. While the trial court found that a plaintiff must show the product at issue was a substantial factor in causing the plaintiff's disease, the Superior Court held that a different standard applied to negligence cases brought under the Jones Act.

The Criswell court held that the proper causation standard under the Jones Act is "whether the employer's negligence played any part, however slight, in causing the injury." The plaintiff's expert report from Dr. Arthur Frank as sufficient to meet the relaxed causation standard in reversing the summary judgment.

For a copy of the opinion or for more information contact Tim Rau in our Philadelphia office.

**Superior Court Rules Tincher Applies to Failure to Warn Cases**

The Pennsylvania Superior Court recently issued an opinion deciding a number of issues in the consolidated appeal of Amato v. Crane/Vinciguerra v. Crane, 2015 PA Super. 83. The cases were appeals from jury verdicts of $2.5 million and $2.3 million that were tried in Philadelphia in February 2013 before the Honorable Mark Bernstein.

The opinion is most notable because of the panel's finding that the Pennsylvania Supreme Court's ruling in Tincher v. Omega Flex, 104 A.2d 328 (2014) applied to product liability cases alleging that a product was defective because of a failure to warn. In November 2014, the Pennsylvania Supreme Court issued the Tincher opinion, which declined to adopt the Third Restatement of Torts but overruled the law of Azzarello v. Black Brothers, 391 A.2d 1020 (Pa. 1978). Azzarello had previously prevented a jury from taking questions of risk and utility of a product into consideration in a product liability case. The Tincher court held that a jury can take risk and utility into account when determining if a product is defective and "unreasonably dangerous."

Crane Co. argued that the trial judge erred by failing to permit a jury instruction that incorporated a reasonableness test. The plaintiffs argued that the Tincher decision was decided in the context of a design defect case and did not apply to failure to warn cases, such as the asbestos cases of Amato and Vinciguerra.

The court noted that Tincher established that questions of whether a product is unreasonably dangerous and defective is now generally a question of fact for a jury. In doing so, the court rejected the plaintiffs' arguments and held that Tincher applied to failure to warn cases.

Despite finding that Tincher applied to the instant cases, however, the court found that Crane was not entitled to the jury instruction it sought as a result of the defenses asserted at trial. The court held that Crane was not prejudiced by the instruction given to the jury because of the arguments made to the jury.

For a copy of the opinion or for more information contact Tim Rau in our Philadelphia office.

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