Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - October 2017

Edited by Timothy D. Rau, Esq.

Third Circuit Rules Bare Metal Defense Not Available Under Maritime Law and Seeks Advisory Opinion Under PA Law

by Timothy D. Rau

In two separate opinions, the Third Circuit Court of Appeals has addressed the applicability of the “bare metal defense” in asbestos personal injury cases by issuing an opinion on its applicability under maritime law and by issuing an opinion seeking a ruling from the Pennsylvania Supreme Court on this issue.

Bare Metal Defense Not Available Under Maritime Law

In In RE: Asbestos Litigation (No. VI) DeVries and McAfee, No. 16-2602, (McAfee), the court considered an appeal in two consolidated cases in which the District Court granted the defendants’ summary judgment motions on the basis that the plaintiffs failed to prove they were exposed to asbestos component parts manufactured or supplied by the defendants and used in equipment originally designed and manufactured by the defendants.

Because the alleged exposures to each of the plaintiffs occurred aboard vessels at sea, the court was asked to apply maritime law and to determine if, under maritime law, the plaintiffs could sustain a negligence claim where there was no evidence the defendants supplied an asbestos-containing part used in an otherwise non-asbestos-containing product they manufactured and placed into the stream of commerce.

Under the “bare metal defense,” as applied in asbestos cases, the defendants allege they have no liability under theories of strict liability and negligence when there is no evidence they manufactured or supplied an asbestos-containing component part used in a piece of equipment manufactured or sold by them. In McAfee, the court was only asked to consider whether the defense could be applied under a theory of negligence.

In addressing this issue, the court noted there are no Supreme Court or Third Circuit opinions on the applicability of the bare metal defense and that the circuits were split on its application. The court noted that some courts apply a bright line approach in applying the defense, and others reject the defense altogether.

In rejecting a bright line application of the defense, the court held that the defense required an analysis as to the foreseeability of whether an asbestos-containing component would be used on equipment manufactured or designed by the defendants. After an in-depth analysis of negligence and foreseeability, the court issued a test to determine whether a manufacturer may be held liable for negligent failure to warn.

The court held that “[a] manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials if the facts show that the plaintiff’s injuries were a reasonably foreseeable result of the manufacturer’s failure to provide a reasonable and adequate warning.” The court also held that it reasonably could have known the following when it placed the product into the stream of commerce: 

  1. asbestos is hazardous, and
  2. its product will be used with an asbestos-containing part, because
    1. the product was originally equipped with an asbestos- containing part....
    2. the manufacturer specifically directed that the product be used with an asbestos-containing part, or
    3. the product required an asbestos-containing part to function properly.

The court noted that applying the above test required a case-by-case approach. The court also declined to apply these guidelines in the instant case and remanded the case for findings using the above criteria. 


Third Circuit Seeks Bare Metal Advisory Opinion from PA Supreme Court

In In RE: Asbestos Products Liability: Crane Co. (Rabovsky), No. 16-3704, the court issued an opinion and order submitting the issue to the Pennsylvania Supreme Court for a ruling on the “bare metal defense” under Pennsylvania law. Arising from a case in which it was alleged that the plaintiff/decedent was exposed to asbestos from gaskets and packing in Crane's valves that were used by him, resulting in his exposure to asbestos.

The case was tried to verdict before the Honorable Judge Nitza Quinones Alejandro in the Eastern District of Pennsylvania. Even though the asbestos-containing gaskets and packing used in Crane’s valves were not manufactured or sold by Crane, the plaintiffs alleged that Crane was negligent in failing to warn of the hazards of asbestos component parts in its valves.

Crane challenged that a case could not proceed against it because it did not manufacture the asbestos-containing gaskets or packing in the valves used by Mr. Rabovsky. Citing Judge Robreno’s opinion on the issue in the case of Schwartz v. Abex Corp., 106 F.Supp. 3d 626 (E.D. Pa. 2015), Judge Quinones Alejandro charged the jury that Crane could be found liable if it was shown that Crane knew asbestos-containing parts would be used in its valves, knew at the time it sold the valves that asbestos was dangerous and failed to warn against the hazards of asbestos. The jury found Crane liable. Crane subsequently appealed.

In the appeal, the court noted that Judge Robreno’s opinion in Schwartz was based on his interpretation of Pennsylvania law in light of Tincher v. Omega Flex, 104 A.3d 328 (Pa. 2014), in which the court radically changed the landscape of product liability law in Pennsylvania by allowing elements of negligence to be applied in product liability cases. The Third Circuit noted, as did Judge Robreno in Schwartz, that there was no clear ruling from any Pennsylvania court on whether a company could be liable for failing to warn of the hazards associated with products it did not manufacture or sell. Likewise, if there is such a potential for liability, what is the test for determining liability.

The Third Circuit submitted the case to the Pennsylvania Supreme Court for a ruling on the above issues by certifying the questions pursuant to both federal and state appellate rules. The Pennsylvania Supreme Court can now accept the petition and provide guidance on the issue or decline the request. The court takes less than 5% of all cases submitted to it on an annual basis. We will monitor what the Supreme Court does with the petition.

For more information on the verdict, contact Timothy Rau in our Philadelphia office.


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