Pennsylvania Court Applies Maritime Bare Metal Test In Favor Of Defendants

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[co-author: Erin Beachum]

On July 7, 2021, U.S. District Court Judge Eduardo C. Robreno, who oversees the asbestos multi district litigation (MDL 875) in the Eastern District of Pennsylvania, applied a new standard set forth by the U.S. Supreme Court in Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986 (2019) in granting summary judgment for two turbine defendants accused of causing the decedent’s asbestos-related disease. Defendants General Electric (GE) and CBS Corporation (CBS) allegedly incorporated asbestos-containing components on their products to which the decedent was later exposed. Judge Robreno concluded that, even under the Supreme Court’s new maritime bare metal test, plaintiffs failed to show that the turbines supplied by defendants required the incorporation of asbestos insulation and that the defendants therefore had no duty to warn of any alleged hazards. Whether a defendant’s product “required” the incorporation of an asbestos-containing component is a threshold factor in determining if the defendant can be liable for causing or contributing to an asbestos-related disease under the Supreme Court’s new standard. Devries, et al., v. General Electric Co., et al., Case No. 5:13-cv-00474.

Background

Plaintiffs contended that John B. DeVries died of mesothelioma from exposure to asbestos in the U.S. Navy between 1957 and 1960. Defendants GE and CBS manufactured steam turbines aboard the ship on which Mr. DeVries served. Mr. DeVries was allegedly exposed to asbestos dust from insulation attached to those turbines. GE and CBS, however, delivered the turbines to the shipyard “bare metal,” meaning without any external insulation. Instead, the insulation was later installed on the turbines at the shipyard by naval contractors.

In 2014, the district court granted summary judgment for GE and CBS on these facts, finding they were not liable based on the “bare metal defense” and holding that manufacturers were not liable for injuries caused by asbestos parts not supplied by that manufacturer. The U.S. Supreme Court later accepted the case to resolve a circuit court split on the legal duty to warn in such circumstances under maritime law. On March 19, 2019 the Supreme Court announced the new maritime bare metal test for district courts to employ in determining the existence of a duty to warn.

Under the new test, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize the danger. The Supreme Court directed the district court to reconsider its prior grant of summary judgment under the new test – resulting in Judge Robreno’s July 7, 2021 order.

The “Requires” Prong of the Maritime Bare Metal Test

Under the new maritime bare metal test, a manufacturer can only be liable for a defendant’s injuries if it “required” the part that allegedly caused the injury at issue. A product “requires” a part under this test when (i) a manufacturer directed that the part be incorporated into the product, (ii) a manufacturer itself made the product with a part that the manufacturer knew would require replacement with a similar part, or (iii) a product would be useless without the part. Granting summary judgment for GE and CBS, the Eastern District of Pennsylvania found that plaintiffs were unable to establish that the defendants “required” the application of asbestos-containing insulation to its turbines, thus failing the initial prong of the new test.

First, plaintiffs failed to show that GE and CBS directed asbestos insulation be incorporated onto the turbines. Plaintiffs only produced evidence that the defendants manufactured some land-based turbines with asbestos-containing insulation. Judge Robreno, however, found that plaintiffs produced no relevant evidence that GE and CBS specified or directed the incorporation of asbestos insulation on their maritime turbines.

Second, there was “no serious dispute” that GE and CBS sold and delivered the turbines at issue without asbestos-containing insulation. The parties agreed that the turbines left defendants’ custody without any external insulation. Finally, both parties agreed that non-asbestos-containing insulation, a functionally equivalent insulation that would have enabled proper turbine functioning, was available and approved by the Navy. Therefore, the turbines would not have been “useless” without the asbestos-containing insulation later applied by the naval contractors and plaintiffs could not establish that defendants “required” the insulation that allegedly caused decedent’s disease. The court did not address the remaining elements of the maritime bare metal test after plaintiffs were unable to satisfy this threshold inquiry.

Insights

Judge Robreno’s decision provides insight into the application of the new maritime bare metal test adopted by the Supreme Court. With the new test, plaintiffs bear the burden of producing compelling evidence that the injury causing product required a specific part. Here, it was significant that the parties agreed that GE and CBS sold and delivered the turbines without asbestos-containing insulation. This weighed heavily on plaintiffs’ ability to show whether the insulation was required. Notably, other defendants were denied summary judgment after the court found “genuine disputes as to the material fact” of whether products were sold with asbestos-containing parts and/or whether the defendants knew they would be replaced with similar parts. Clearly, then, the new test depends heavily on fact-specific scenarios and (for now) narrowly applies only in the maritime context.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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