Devries v. Gen. Elec. Co.

• Decision Date: 18 May 2016
• Docket Number: CONSOLIDATED UNDER MDL 875,E.D. PA CIVIL ACTION NO. 5:13-00474-ER
• Citation: 188 F.Supp.3d 454
• Parties: John B. Devries, et al., Plaintiffs, v. General Electric Company, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

188 F.Supp.3d 454

John B. Devries, et al., Plaintiffs,

v.General Electric Company, et al., Defendants.

CONSOLIDATED UNDER MDL 875

E.D. PA CIVIL ACTION NO. 5:13-00474-ER

United States District Court, E.D. Pennsylvania.

Signed May 18, 2016

Filed May 19, 2016

Robert E. Paul, Paul Reich & Myers, PC, Philadelphia, PA, for Plaintiffs.

Stewart R. Singer, Salmon Ricchezza Singer & Turchi LLP, Philadelphia, PA, for Defendants.

MEMORANDUM

EDUARDO C. ROBRENO, District Judge

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. 5:13-cv-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) 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 Industries, Inc., 21 Fed.Appx. 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 so-called "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 asbestos litigation were California (in O'Neil v. Crane Co., 53 Cal.4th 335, 135 Cal.Rptr.3d 288, 266 P.3d 987 (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 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 alsoIn re Donald J. Trump 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 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, 118 S.Ct. 956, 140 L.Ed.2d 62 (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. SeeIn 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:

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

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