Presented by the Asbestos and Mass Tort Litigation Practice Group

Legal Updates for Toxic Torts Litigation - June 2016

June 1, 2016

Edited by Timothy D. Rau, Esquire

Bare Metal Defense Applied Under Maritime Law in Eastern District of PA

By Timothy Rau, Esq.

Judge Eduardo Robreno issued an opinion in DeVries v. General Electric Co., 5:13-00474 (E. D. Pa. May 18, 2016), clarifying the basis for his decision granting summary judgment to several defendants by ruling that the bare metal defense applied in asbestos cases to both theories of negligence and strict product liability.

In the underlying case, the plaintiffs alleged Mr. DeVries was injured as a result of exposure to asbestos while serving in the U.S. Navy from 1957-1962. Each of the remaining defendants argued that summary judgment was appropriate because they did not sell or manufacture the asbestos-containing parts in their equipment that were alleged to have caused Mr. DeVries' disease. Judge Robreno ruled that each of the remaining defendants was entitled to summary judgment based on the "bare metal defense."

After an appeal to the Third Circuit seeking a distinction between negligence and strict liability theories in applying the "bare metal defense," the appellate court remanded the case to Judge Robreno, seeking clarification as to whether his ruling was on one or both theories of liability.

In citing Conner v. Alfa Laval, Inc., 842 F.Supp. 791 (E.D. Pa. 2012) and Lindstrom v. A-C Product Liability Trust, 424 F.3d 488 (6th Cir. 2005), Judge Robreno wrote that the "bare metal defense" had been applied in maritime cases by the 6th Circuit Court of Appeals and adopted in the Eastern District of Pennsylvania. However, he noted that the issue had never been decided by the Third Circuit.

In DeVries, the plaintiffs argued that the defendants could still be liable in negligence for failure to warn that asbestos components may have been used in the defendants' equipment. Judge Robreno recently carved out such an exception to the "bare metal defense" under Pennsylvania law in Schwartz v. Abex Corp., 106 F.Supp. 3d 626 (2015).

Judge Robreno stated that maritime law's definition of "product" "renders the defense equally and indistinguishably applicable to both types of claims." DeVries, pg. 17. Since there was no evidence of exposure to asbestos from a given defendant's products, the "bare metal defense" was applied uniformly to all claims against the defendants.

The case will now be considered by the Third Circuit after considering Judge Robreno's supplemental opinion.

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

Delaware Court Clarifies Minimum Contacts Required for Jurisdiction

by Armand Della Porta, Esq.

The Delaware Supreme Court recently issued an opinion on the requirements for establishing minimum contacts to determine jurisdiction in Genuine Parts Co. v. Cepec, C.A. No. N156-02-184 (April 18, 2016). In an asbestos case, the court followed the U.S. Supreme Court case of Daimler AG v. Bauman, 134 S. Ct. 746 (2014), and held that a company not incorporated in Delaware and not satisfying the minimum contacts requirements of the long arm statute is not subject to jurisdiction in the state of Delaware.

Genuine Parts Co., a GA corporation, had appointed a registered agent to accept service of process. Genuine Parts was sued in an asbestos personal injury case where the plaintiff was not from Delaware, nor was his alleged exposure in Delaware. Genuine Parts filed a motion to dismiss, which the trial court denied. Genuine Parts appealed the decision to the Delaware Supreme Court, which reversed the trial court decision and held there was no jurisdiction over that defendant.

In explaining its decision, the court held that the defendant did not have its principal place of business in Delaware and found there was no other basis on which it could be established that Delaware was its home. The court concluded there was no basis for the plaintiff to establish specific jurisdiction over the nonresident defendant under the long arm statute or principles of due process. Hence, jurisdiction did not exist, and the defendant was entitled to be dismissed.

Previously, registering and consenting to service in Delaware equated to consenting to personal jurisdiction. Distinguishing and re-interpreting prior case law examining Delaware's long arm statute under Daimler, the court found that merely maintaining a registered agent in the jurisdiction was insufficient to establish jurisdiction.

For more information on the verdict, contact Armand Della Porta in our Wilmington office.

Philly Jury Awards $6.5 Million to Lung Cancer Plaintiff

By Timothy Rau, Esq.

William Roverano and his wife were awarded nearly $6.5 million in damages related to his diagnosis and treatment of lung cancer before Court of Common Pleas Judge Victor DiNubile in April 2016. In Roverano v. John Crane, et al., Phila CCP March 2013, No. 1123, the plaintiffs contended that he developed lung cancer as a result of his exposure to asbestos.

Mr. Roverano, who was 66 at the time of trial, alleged he was exposed to asbestos from various defendants' products while employed at Philadelphia Electric Co. as a helper in the mobile carpentry gang from 1971-2001. He worked at a number of power plants and alleged he was exposed to asbestos from insulation, gaskets and packing on pipes, turbines, boilers and compressors. The plaintiff did not have any underlying markers of asbestos exposure in his lungs and did not have asbestosis.

The plaintiff smoked one pack of cigarettes per day beginning in 1966 until 1997, when he quit. He had COPD as a result of his smoking, and the plaintiffs conceded that cigarette smoking was a cause of his lung cancer.

In support of their claims, the plaintiffs called Dr. Jonathan Gelfand, Dr. Arthur Frank and Stephen Compton as experts. The defendants remaining at trial were John Crane and Brand Insulation. The defendants called Dr. Alan Pope, Dr. Crapo, Fred Toca and Patrick Rafferty.

The plaintiffs sought damages for pain and suffering, medical expenses totaling $128,530, and future lost earnings at a rate of $20,000 for the "several years" he planned to continue to work. Mrs. Roverano also sought damages for the loss of consortium as a result of Mr. Roverano's illness.

The jury awarded Mr. Roverano $5,189,265 for his claims and Mrs. Roverano $1.25 million for her loss of consortium claim. The trial judge ruled that the Pennsylvania "Fair Share" Act did not apply to the case, and the jury was asked to allocate liability amongst the defendants, settled and non-settled. The jury found eight defendants liable for the award. The jury was not permitted to consider liability against any non-party, bankrupt entities.

The plaintiffs were represented at trial by Mike Cancelliere and Casey Coburn of Nass, Cancelliere and Brenner.

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

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